Citation Nr: 22017885 Decision Date: 03/26/22 Archive Date: 03/26/22 DOCKET NO. 15-44 190 DATE: March 26, 2022 ORDER Entitlement to an initial rating of 40 percent, but no higher, for voiding dysfunction is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. REMANDED Entitlement to a rating in excess of 20 percent for right lower extremity paresthesia, weakness and ataxis (right lower extremity disorder) is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity paresthesia, weakness and ataxis (left lower extremity disorder) is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran voiding dysfunction has been productive of daytime voiding interval of less than one hour and awakening to void five or more times per night; but does not require wearing of absorbent materials which must be changed more than four times per day, or catherization. 2. The Veteran's service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment consistent with his education, training, and experience. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 40 percent, but no higher, for voiding dysfunction have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.115a, Diagnostic Code 7517. 2. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from September 1982 to July 1992. These matters come to the Board of Veterans' Appeals (Board) on appeal from a September 2013 rating decision issued by the Department of Veterans Affairs (VA). In November 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is included in the claims file. The United States Court of Appeals for Veterans Claims (Court) has held that a claim for entitlement to a TDIU, either expressly raised by the Veteran or reasonably raised by the record, is part of the claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has asserted that he is unable to work due to his service-connected disabilities. Accordingly, in light of the Court's holding in Rice, the issue of entitlement to a TDIU has been raised by the record and is within the jurisdiction of the Board. Additionally, the Veteran has separate appeals regarding entitlement to service connection for tinnitus, posttraumatic stress disorder (PTSD), traumatic brain injury (TBI) sleep apnea, and Parkinson's disease; entitlement to increased ratings for bilateral hearing loss, right and left upper extremity cervical radiculopathy, erectile dysfunction, residuals of a burst fracture at C5 vertebrae, and insomnia with unspecified depressive disorder; entitlement to earlier effective dates for the awards of service connection for bilateral hearing loss, right and left upper extremity cervical radiculopathy, insomnia, erectile dysfunction, special monthly compensation (SMC), and residuals of a burst fracture at C5 vertebrae; as well as entitlement to SMC under the Appeals Modernization Act (AMA). These appeals originate from separate appeal streams and will be addressed in separate Board decisions. Increased Ratings Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of the matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to an initial rating of 40 percent, but no higher, for voiding dysfunction is granted. The Veteran generally asserts that he should have a higher rating for his voiding dysfunction as it worse than contemplated by the currently assigned rating. This appeal stems from a claim dated in September 2012. During the period on appeal, the Veteran's neurogenic bladder is rated 10 percent under 38 C.F.R. § 4.71a, Diagnostic Code 7517, which rated bladder injuries. 38 C.F.R. § 4.115a, Diagnostic Code 7542. Diagnostic Code 7517 instructs the rater to evaluate the disability as a voiding dysfunction. Voiding dysfunctions are rated under the criteria applicable to urine leakage, urinary frequency, or obstructed voiding. For urine leakage, a 20 percent rating is warranted when the wearing of absorbent materials which must be changed less than two times per day is required. A 40 percent rating is warranted when absorbent materials must be changed two to four times per day. A 60 percent rating is assigned when the use of an appliance is required, or absorbent materials must be changed more than four times per day. 38 C.F.R. § 4.115a. For urinary frequency, a 10 percent rating is assigned with a daytime voiding interval between two and three hours, or; awakening to void two times per night. A 20 percent rating is assigned with a daytime voiding interval between one and two hours, or; awakening to void three to four times per night. A 40 percent rating requires a daytime voiding interval of less than one hour, or; awakening to void five or more times per night. 38 C.F.R. § 4.115a. For obstructed voiding, a 0 percent rating is assigned for obstructive symptomatology with or without stricture disease requiring dilation one to two times per year. A 10 percent rating is assigned for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream), with any one or combination of the following: (1) post-void residuals greater than 150cc; (2) uroflowmetry; markedly diminished peak flow rate (less than 10cc/second); (3) recurrent urinary tract infections secondary to obstruction; or (4) stricture disease requiring periodic dilation every two to three months. A 30 percent rating applies to urinary retention requiring intermittent or continuous catheterization. 38 C.F.R. § 4.115a. Turning to the evidence, the Veteran was afforded a VA examination in November 2012. At that time, the examiner reported that the Veteran experienced voiding dysfunction causing urinary frequency productive of daytime voiding interval between two and three hours, and nighttime awakening to void two times. The Veteran did not experience obstructive voiding. The Veteran's voiding dysfunction did not require use of an appliance, and there was no evidence recurrent urinary tract infections. There was also no evidence of catheterization. At a December 2018 VA examination, the Veteran reported that he urinated frequently and that he sometimes experienced leakage. the examiner reported that the Veteran's voiding dysfunction caused urine leakage but did not require use of absorbent material. The examiner indicated that the Veteran's voiding dysfunction was productive of daytime voiding interval less than 1 hour, and nighttime awakening to void 5 or more times. He had obstructed voiding that manifested with marked hesitancy. The Veteran's voiding dysfunction did not require use of an appliance, and there was no evidence recurrent urinary tract infections. There was also no evidence of catheterization. The examiner reported that the Veteran's voiding dysfunction did not impact his ability to work. At a November 2021 hearing before the Board, the Veteran reported that he experienced voiding approximately 7 to 10 times per day. He stated that he experienced leakage if he was unable to use the bathroom but indicated that he did not use absorbent pads. After careful review of the record, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's voiding dysfunction throughout the period on appeal. In this regard, the December 2018 examiner found that the Veteran's voiding dysfunction was productive of daytime voiding interval less than one hour, and nighttime awakening to void five or more times, which is the criteria associated with a 40 percent rating. See 38 C.F.R. § 4.115a, Diagnostic Code 7517. The Board affords the Veteran the benefit of the doubt that he experienced such symptomatology throughout the entirety of the appeal period. To that end, in his August 2014 notice of disagreement, the Veteran indicated that his voiding dysfunction had worsened since the November 2012 VA examination; however, through no fault of the Veteran an additional examination was not scheduled until December 2018. Next, the Board finds that the Veteran is not entitled to a higher rating under any diagnostic code. In this regard, there is no evidence that the Veteran used absorbent material for urine leakage, much less that the Veteran required absorbent materials to be changed more than four times per day, and there is no evidence of catherization. Therefore, a higher rating in excess of 40 percent is not warranted. See 38 C.F.R. § 4.115a, Diagnostic Code 7517. The Board acknowledges the Veteran's statements that his voiding dysfunction disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v Brown, 6 Vet. App. 465, 469-70 (1994. The Board finds, however, that neither the Veteran's statement nor medical evidence demonstrates that the criteria for higher rating than those assigned have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for the neurogenic bladder disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. Consideration has also been given to assigning staged ratings. However, at no time during the period in question has the disability warranted a higher schedular rating than that assigned. Hart v. Mansfield, supra. Further, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with regard to the rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that the evidence supports the award of a 40 percent rating, but no higher, for the Veteran's voiding dysfunction throughout the entire period on appeal. To that extent, the appeal is granted. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, supra. Entitlement to a TDIU is granted. The Veteran asserts that the combined effects of his service connected disabilities have prevented him from securing or following a substantially gainful occupation. A TDIU is warranted where the combined schedular evaluation for service-connected disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded from obtaining or maintaining any gainful employment, by reason of his or her service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Under 38 C.F.R. § 4.16(a), if there is only one such disability, it must be rated at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent. 38 C.F.R. § 4.16(a). The Veteran is currently service connected for the following disabilities: unspecified depressive disorder and insomnia, rated as 50 percent disabling; residuals of a burst fracture of the C5 vertebrae, rated as 20 percent disabling; left lower extremity weakness, rated as 20 percent disabling; right lower extremity weakness, rated as 20 percent disabling; left upper extremity cervical radiculopathy, rated as 20 percent disabling; right upper extremity cervical radiculopathy, rated as 20 percent disabling and voiding dysfunction, now rated as 40 percent disabling. Service connection is also in effect for scars of the right and left side of the head, left eye optic neuritis, bilateral hearing loss and erectile dysfunction, with each rated as noncompensably disabled. At the outset, the Board notes that, as a result of the assignment of the 40 percent rating for voiding dysfunction, the Veteran has met the schedular criteria for assignment of a TDIU throughout the period on appeal. 38 C.F.R. § 4.16. The Veteran reported that he last worked full-time in 2012, at which time he became too disabled to work as a result of his service-connected disabilities. Prior to 2012, the Veteran worked as a driver for the United States Postal Service (USPS) for approximately 15 years. There is no evidence that the Veteran has worked in any other profession or that he has additional training in other fields. Military personnel records reflect the Veteran's military occupation specialty (MOS) was that of an electrical systems repairman. The Veteran has a high school education with two years of college. The Veteran also reported that he had a commercial driver's license (CDL) that expired, and no other professional licenses. In light of the Veteran's occupational background and the functional limitations resulting from his service-connected disabilities, the Board finds that he is unable to obtain and maintain substantially gainful employment. In this regard, there are multiple VA examinations of record showing that the Veteran's service-connected disabilities have a significant effect on his employability. To that end, a December 2018 VA examiner indicated that the Veteran experienced cervical spine pain that is aggravated with repetitive flexion, rotation and extension. The examiner also indicated that the Veteran's cervical radiculopathy prevented the Veteran from performing jobs that required heavy lifting and overhead reaching, as well as prolonged typing, writing, gripping or pulling. VA examiners have also indicated that the Veteran's service-connected disabilities result in chronic fatigue, pain and muscle weakness, as well as voiding more than once an hour. The Board finds that the Veteran would not be able to perform any physical work based on these limitations. The Board had also considered whether the Veteran would be able to perform non-physical activities. However, the Board finds that given the Veteran's background and limitations, the Veteran would not be able to secure or maintain such employment. To that end, the Veteran had worked as a truck driver for 15 years and has no other licenses or training in any other area. The Board notes that such a profession undoubtedly requires full control of muscular faculties and repeated cervical spine movement, as well as use of the lower extremities. Thus, the Board finds that the impairment caused by the Veteran's service-connected disabilities prevents him from securing and maintaining employment consistent with his industrial background and education. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra REASONS FOR REMAND The Board finds that additional information is required before the remaining claims on appeal are decided. Entitlement to a rating in excess of 20 percent for a right lower extremity disorder is remanded. Entitlement to a rating in excess of 20 percent for a left lower extremity disorder is remanded. The Veteran was most recently afforded a VA examination November 2012 with specific regard to his right and left upper extremity disorders. The Board finds that it is unable to decide the claim based on the findings contained within the December 2018 VA examination report. In this regard, at his November 2021 hearing before the Board, the Veteran indicated experiencing symptoms that could be indicative of worsening. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995). Therefore, the Board finds that an additional VA examination is needed. The matters are REMANDED for the following action: 1. The Veteran should be given an opportunity to identify any outstanding private or VA treatment records relevant to the claims on appeal. After obtaining any necessary authorization from the Veteran, all outstanding records should be obtained, to include updated VA treatment records dated. For private treatment records, make at least two (2) attempts to obtain records from any identified sources. If any such records are unavailable, inform the Veteran and his representative and afford him an opportunity to submit any copies in their possession. For federal records, all reasonable attempts should be made to obtain such records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 2. Following the receipt of outstanding records, schedule the Veteran for a VA examination by an examiner with appropriate expertise to determine the current level of severity of all impairment resulting from his right and left lower extremity disorders in accordance with VA rating criteria. The claims file must be made available to and reviewed by the examiner. The examiner should identify the nature and severity of all current manifestations and residuals of the Veteran's service-connected right and left lower extremity disorders. A rationale for any opinion offered should be provided KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher O'Donnell, 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.