Citation Nr: 22017540 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-60 119 DATE: March 25, 2022 REMANDED Prior to December 3, 2021, a rating in excess of 20 percent for detrusor instability (bladder urgency). From December 3, 2021, a rating in excess of 40 percent for detrusor instability. REASONS FOR REMAND The Veteran served on active duty from September 1983 to September 2005. The case is on appeal from an August 2013 rating decision. The claim was before the Board in September 2021. At that time, the Board denied service connection for atrial fibrillation, to include as secondary to syncope and/or rhabdomyolysis and remanded the claims of service connection for obstructive sleep apnea and a disability rating in excess of 20 percent for detrusor instability for further development. While the claim was appellate status, in a December 2021 rating decision, the Regional Office (RO) granted service connection for sleep apnea with an evaluation of 50 percent, effective August 29, 2012. Therefore, this issue is no longer before the Board. In the August 2013 rating decision, the RO denied a rating in excess of 20 percent for the bladder disorder. Thereafter, in the December 2021 rating decision, the RO increased the Veteran's bladder rating to 40 percent effective December 3, 2021. The matter remains in appellate status as the maximum bladder ratings have not been assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). 1. Prior to December 3, 2021, a rating in excess of 20 percent for detrusor instability. 2. From December 3, 2021, a rating in excess of 40 percent for detrusor instability. The Veteran contends that his detrusor instability and the associated symptoms are more severe than reflected by the 20 percent rating assigned prior to December 3, 2021, and the 40 percent rating assigned from that date. The Board finds there was not substantial compliance with the Board's September 2021 remand directives, where the Board directed the RO to obtain a VA examination to determine the severity of the Veteran's bladder disorder. See Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board observes that, even though the Veteran was afforded a December 2021 VA examination, the VA examiner did not properly consider the evidence of record as requested, namely lay evidence. Following the September 2021 remand, a new VA examination was provided to the Veteran in December 2021. The examiner noted: the voiding dysfunction causes the Veteran to change his clothes 3-4 times a day, that the voiding dysfunction causes increased urinary frequency (daytime voiding interval between 1 and 2 hours and nighttime awakening to void 5 or more times), that it causes signs/symptoms of obstructed voiding (including hesitancy, slow stream, weak stream, and decreased force of stream), and that it impacts his ability to work because he has to take frequent bathroom breaks. The VA examiner further noted that the Veteran's symptoms had worsened. The Board notes this examination report led to the increased rating assigned by the RO. However, it is unclear whether the examiner considered the lay evidence of record, including the Veteran's reports in September 2013 of voiding 24 times in a 14-hour period. Moreover, an August 2012 statement from the Veteran's spouse indicated the Veteran wakes up within the first hour of going to sleep to urinate and subsequently, gets up 3-8 times each night to go to the bathroom. Without fully addressing the evidence of record, including the lay statements, the Board cannot adjudicate the Veteran's worsening detrusor instability. Additionally, addressing the lay statements was the bases for the Board's prior remand, so this leaves the December 2021 VA opinion inadequate. See McKinney v. McDonald, 28 Vet. App. 15, 30 (2016). Additionally, a January 2022 statement was submitted by the Veteran's representative thereafter which reported the Veteran's 40 percent rating should be assigned much earlier than December 3, 2021, based on the severity of the Veteran's symptoms. The representative noted the lay evidence in support, including the September 2013 notice of disagreement (NOD) and September 2016 substantive appeal. Accordingly, a new VA examination is warranted which fully addresses the lay evidence of record. In light of the remand, updated VA treatment records should be obtained. The matters are REMANDED for the following action: 1. Obtain VA treatment records dated since September 2021. 2. Thereafter, schedule the Veteran for VA examination (or a telehealth interview, review of the record, etc., if an in-person examination is not feasible) by an appropriate clinician to determine the current severity of his service-connected detrusor instability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria, including both daytime and nighttime voiding. Consideration should be given to the lay statements of record, including the August 2012 statement from the Veteran's spouse in which she recounted the Veteran waking up within the first hour of going to sleep to urinate and subsequently, getting up 3-8 times each night to go to the bathroom; the Veteran's September 2013 NOD which reports voiding 24 times in a 14-hour period; and his November 2016 substantive appeal. A rationale for all opinions expressed should be provided. BRANDON B. ISAACS Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Becton, Associate Counsel 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.