Citation Nr: 22014608 Decision Date: 03/14/22 Archive Date: 03/14/22 DOCKET NO. 12-08 378 DATE: March 14, 2022 ORDER Entitlement to service connection for neurogenic bowel is granted. REMANDED Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome (IVDS), status post laminectomy, for the periods from February 24, 2010 to March 26, 2019 and from May 1, 2019 to the present, is remanded. FINDING OF FACT The Veteran has a diagnosis of neurogenic bowel that is caused by his service-connected lumbar spine disability. CONCLUSION OF LAW The criteria for service connection for neurogenic bowel have been met. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303(a), 3.310. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from November 1965 to September 1967, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO) in June 2010. The issue of a higher disability rating for lumbar spine DDD with IVDS was previously before the Board in August 2015 and January 2018, and it was remanded both times for evidentiary development. In a January 2021 rating decision, the RO granted a temporary 100 percent disability rating for the Veteran's lumbar spine disability for the period from March 29, 2019 to April 30, 2019. In a February 2021 rating decision, the RO granted an earlier effective date of March 27, 2019 for the temporary 100 percent rating. In April 2021, the Veteran requested a Board hearing. He testified before the undersigned Veterans Law Judge (VLJ) at a November 2021 hearing. A copy of the hearing transcript has been reviewed and associated with the claims file. Entitlement to service connection for neurogenic bowel The Board has an obligation to discuss all theories of entitlement reasonably raised by the evidence of record. Robinson v. Peake, 21 Vet. App. 545, 552-56 (2008). This obligation includes developing unstated claims for secondary service connection during the adjudication of increased rating claims for separate disabilities where such is reasonably raised by the record. Bailey v. Wilkie, 22 Vet. App. 188, 203 (2021). Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires evidence satisfying three criteria: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Alternatively, service connection may be granted on a secondary basis for a disability that is proximately due to or the result of (caused) or permanently worsened beyond its natural progression (aggravated) by a service-connected disease or injury. Allen v. Brown, 7 Vet. App. 439, 448-49 (1995) (en banc); 38 C.F.R. § 3.310. In adjudicating these claims, the Board must assess the competence and credibility of the claimant. Washington v. Nicholson, 19 Vet. App. 362 (2005). Lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Falzone v. Brown, 8 Vet. App. 398, 405 (1995) (lay person competent to testify to pain and visible flatness of his feet. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307, at *10 (Fed. Cir. Dec. 17, 2021). If "the positive and negative evidence is in approximate balance (which includes but is not limited to equipoise) the claimant receives the benefit of the doubt." Id. The Veteran underwent a VA lumbar spine examination in September 2019. The examiner noted neurologic abnormalities related to the lumbar spine disability. When asked for a description of the neurologic abnormalities and how they are related to the spine disability, the examiner wrote "see bladder DBQ." However, disability benefits questionnaires (DBQs) were completed for disabilities of both the bladder and the rectum or anus. These DBQs show diagnoses of neurogenic bladder and neurogenic bowel. The bowel DBQ indicated that the Veteran began experiencing fecal leakage after undergoing a back surgery in 2019. At his November 2021 hearing, the Veteran testified regarding his neurogenic bladder. He stated that, since his lumbar spine surgery, he has been unable to control his bowels. The Board finds that the issue of entitlement to service connection for neurogenic bowel as secondary to lumbar spine DDD with IVDS has been reasonably raised by the evidence of record. See Bailey, 22 Vet. App. at 203. The Board further finds that service connection is warranted for the Veteran's neurogenic bowel. In this regard, while the bowel DBQ was not explicitly referenced by the September 2019 examiner, the DBQ itself states that the Veteran began experiencing fecal leakage after his 2019 lumbar spine surgery. In addition, the Veteran provided credible testimony regarding the onset of his neurogenic bowel. The Board notes that the Veteran is competent to testify regarding the onset of his bowel symptoms. See Layno, 6 Vet. App. at 469. Therefore, the evidence establishes that the Veteran's neurogenic bowel was caused by his service-connected lumbar spine disability, and service connection is warranted. Allen, 7 Vet. App. at 448-49; 38 C.F.R. § 3.310. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for degenerative disc disease (DDD) of the lumbar spine with intervertebral disc syndrome (IVDS), status post laminectomy, for the periods from February 24, 2010 to March 26, 2019 and from May 1, 2019 to the present is remanded. The Veteran most recently underwent a VA lumbar spine examination in October 2020. Of note, the examination report indicates that range of motion (ROM) testing could not be completed because the Veteran stated that he was in too much pain to undergo ROM testing. At his November 2021 hearing, the Veteran and his representative testified that he could not complete ROM testing because he wears a steel back brace that cannot be removed. He also testified that his back disability has worsened since the October 2020 examination. The Board finds that a new VA medical examination is needed. In this regard, the Veteran indicated that his back disability has worsened since the October 2020 VA examination. Additionally, he could not complete ROM testing at the October 2020 examination because of his back brace. If ROM testing cannot be completed, the examiner should estimate, to the extent possible, what the Veteran's back ROM would be if he did not wear a back brace. The Board also notes that ROM testing could not be completed during VA examinations in May 2010, April 2019, and December 2019; therefore, retrospective ROM estimates should also be provided for these examinations. Because of the indication of worsening and unavailability of ROM measurements from the October 2020 examination, a remand is warranted to obtain a new VA examination. The matter is REMANDED for the following actions: 1. Obtain and associate with the claims file the Veteran's updated VA treatment records, from January 2021 to the present. 2. After completing #1, schedule the Veteran for a new VA examination to determine the current severity of the Veteran's service-connected lumbar spine disability. The entire claims file, including a copy of this remand, must be made available for review by the examiner, and such review should be noted in the examination report. The Board notes that ROM testing may not be possible due to the Veteran's back brace. If ROM testing cannot be completed, please estimate, to the extent possible, what the Veteran's back ROM would be if testing could be conducted. The examiner should provide ROM measurements or estimates for active motion, passive motion, weight-bearing, and non-weight-bearing. In addition to describing the current severity of the Veteran's back disability, the examiner should provide ROM estimates for the May 2010, April 2019, December 2019, and January 2021 VA examinations. The examiner must provide a comprehensive rationale for each proffered opinion. The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports are to be considered in formulating any opinion. If any opinion cannot be given without resorting to speculation, the examiner should explain why and state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), the record (additional facts are required), or the examiner does not have the knowledge or training. As appropriate, the AOJ should conduct additional development or supplement the record. Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Pratt The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.