MENTAL DISORDERS

ANN K. MINAMI · 2025 · Case ID: A25061642

MIXED

Summary

The veteran, who served honorably in the United States Navy from May 1996 to August 2010, appeals the denial of increased disability ratings for several conditions and the effective date of certain grants. The Board denied increased ratings for an acquired psychiatric disorder, gastritis, a back disability, bilateral lower extremity radiculopathy (sciatic and femoral nerves of the left leg, and sciatic nerve of the right leg), and urinary incontinence. For the acquired psychiatric disorder, the veteran was already assigned the maximum 100% rating, thus denying any increase. For gastritis, the Board applied pre-May 2024 rating criteria, finding the veteran was already assigned the maximum 60% rating. For the back disability, the Board found no evidence of ankylosis or incapacitating episodes requiring bedrest, and the VA examinations did not support ankylosis, denying an increased rating. For bilateral lower extremity radiculopathy, the Board found the veteran did not meet criteria for severe paralysis or atrophy, and the symptomology was duplicative, denying increased ratings for the left leg and denying ratings above 10% for the right leg due to mild symptomology. For urinary incontinence, the Board found the veteran did not require absorbent materials or an appliance, denying an increased rating above 20%. The Board granted TDIU effective August 30, 2019, finding the veteran met schedular criteria due to total occupational impairment from the psychiatric disorder. The Board denied an earlier effective date for the acquired psychiatric disorder, as the August 30, 2019 date was the date of claim. However, the Board granted an effective date of March 6, 2020, for service connection for urinary incontinence and right lower extremity radiculopathy, finding entitlement arose on that date, which was the day after a VA exam that did not indicate these conditions, and the earliest possible date.

Rationale

Veteran already assigned maximum 100% rating; No basis for rating in excess of maximum

Service Branch

UNITED STATES NAVY

Special Benefit

TDIU; EARLIER EFFECTIVE DATE

Docket No.

220511-242752

Full Decision Text

Citation Nr: A25061642
Decision Date: 07/21/25 Archive Date: 07/21/25

DOCKET NO. 220511-242752
DATE: July 21, 2025

ORDER

A disability rating in excess of 100 percent for an acquired psychiatric disorder is denied.

A disability rating in excess of 60 percent for gastritis is denied.

A disability rating in excess of 40 percent for a back disability is denied.

A disability rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity is denied.

A disability rating in excess of 20 percent for femoral radiculopathy of the left lower extremity is denied.

An initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity is denied.

An initial disability rating in excess of 20 percent for urinary incontinence is denied.

A total disability due to individual unemployability (TDIU) effective August 30, 2019 is granted.

Dependent's Educational Assistance (DEA) earlier than August 30, 2019 is denied.

An effective date earlier than August 30 2019 for the assignment of service connection for an acquired psychiatric disorder is denied.

An effective date of March 6, 2020 for the assignment of service connection for urinary incontinence is granted.

An effective date of March 6, 2020 for the assignment of service connection for radiculopathy of the lower right extremity is granted.

FINDINGS OF FACT

1. The Veteran has already been assigned the maximum disability rating for an acquired psychiatric disorder.

2. The Veteran has already been assigned the maximum disability rating for gastritis.

3. The Veteran's back disability did not manifest ankylosis or incapacitating episodes requiring physician prescribed bedrest throughout the period on appeal.

4. The Veteran's sciatic radiculopathy of the left lower extremity did not manifest complete paralysis or severe incomplete paralysis with marked atrophy during the period on appeal, and the symptomology of the Veteran's sciatic and femoral radiculopathy of the left lower extremity is duplicative; and the combined disability rating for both disabilities is 40 percent.

5. The Veteran's femoral radiculopathy of the left lower extremity did not manifest complete paralysis or severe incomplete paralysis with marked atrophy during the period on appeal, and the symptomology of the Veteran's sciatic and femoral radiculopathy of the left lower extremity is duplicative; and the combined disability rating for both disabilities is 40 percent.

6. The Veteran's radiculopathy of the right lower extremity did not manifest complete paralysis, severe incomplete paralysis with marked atrophy, moderately severe incomplete paralysis, or moderate incomplete paralysis during the period on appeal.

7. The Veteran's urinary incontinence did not manifest the need for either absorbent materials or an appliance during the period on appeal.

8. From August 30, 2019, the Veteran's previously service connected disabilities prevented the Veteran from securing and maintaining substantially gainful employment, and the Veteran met the schedular criteria for TDIU.

9. The Veteran was honorably discharged from the United States Navy, and, from August 30, 2019 (and no earlier), the Veteran was assigned a permanent total disability rating.

10. The Veteran has been assigned service connection for an acquired psychiatric disorder effective August 30, 2019; the date of claim.

11. The Veteran's urinary incontinent arose March 6, 2020, and the date of claim was August 30, 2019.

12. The Veteran's radiculopathy of the right lower extremity arose March 6, 2020, and the date of claim was August 30, 2019.

CONCLUSIONS OF LAW

1. The criteria for a disability rating in excess of 100 percent for an acquired psychiatric disorder have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.130, Diagnostic Code 9434.

2. The criteria for a disability rating in excess of 60 percent for gastritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115 (2021).

3. The criteria for a disability rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243.

4. The criteria for a disability rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38
2. The criteria for a disability rating in excess of 60 percent for gastritis have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115 (2021).

3. The criteria for a disability rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5243.

4. The criteria for a disability rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.124a, Diagnostic Code 8520.

5. The criteria for a disability rating in excess of 20 percent for femoral radiculopathy of the left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.14, 4.124a, Diagnostic Code 8526.

6. The criteria for an initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520.

7. The criteria for an initial disability rating in excess of 20 percent for urinary incontinence have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.115b, Diagnostic Code 7542.

8. The criteria for TDIU effective August 30, 2019 have been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.16.

9. The criteria for DEA earlier than August 30, 2019 have not been met. 38 U.S.C. §§ 1160, 3501; 38 C.F.R. § 3.807.

10. The criteria for effective date earlier than August 30 2019 for the assignment of service connection for an acquired psychiatric disorder have not been met. 38 U.S.C. § 5110, 38 C.F.R. § 3.400.

11. The criteria for an effective date of March 5, 2020 for the assignment of service connection for urinary incontinence have been met. 38 U.S.C. § 5110, 38 C.F.R. § 3.400.

12. The criteria for an effective date of March 5, 2020 for the assignment of service connection for radiculopathy of the lower right extremity have been met. 38 U.S.C. § 5110, 38 C.F.R. § 3.400.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served honorably in the United States Navy from May 1996 to August 2010.

These matters come to the Board of Veterans' Appeals (Board) on appeal from a May 2021 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In the May 2022 notice of disagreement (NOD) which commenced this appeal, the Veteran opted into the Evidence Submission Docket.

The Board may only consider the evidence of record before the agency of original jurisdiction (AOJ) at the time of its decision on the issue(s) on appeal, as well as any evidence submitted by the Veteran or his or her representative with the NOD (VA Form 10182) or within 90 days following receipt of the NOD. 38 C.F.R. §§ 20.300(a), 303. If additional evidence was submitted between the dates of the AOJ decision and VA's receipt of the NOD, the Board will not consider it unless it is resubmitted during the 90 days following VA's receipt of the NOD. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023).

Increased Rating

Disability ratings are determined by applying a
VA's receipt of the NOD. If the Veteran would like VA to consider any evidence that was added to the claims file that the Board could not consider, the Veteran may file a supplemental claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim(s), considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. See also Cook v. McDonough, 36 Vet. App. 175 (2023).

Increased Rating

Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

1. A disability rating in excess of 100 percent for an acquired psychiatric disorder is denied.

At issue is whether the Veteran is entitled to an increased disability rating for an acquired psychiatric disorder. The Veteran was previously granted service connection and assigned a disability rating of 50 percent for an acquired psychiatric disorder. The Veteran filed an increased disability rating claim, and, in May 2021, the RO assigned the Veteran a disability rating of 70 percent. The Veteran appealed the new disability rating. During the pendency of the appeal, the Veteran was assigned a total disability rating for an acquired psychiatric disorder throughout the period on appeal. See May 2025 Rating Decision Code Sheet. This is the maximum disability rating permitted under the rating criteria for an acquired psychiatric disorder. 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 100 percent for an acquired psychiatric disorder is denied.

2. A disability rating in excess of 60 percent for gastritis is denied.

At issue is whether the Veteran is entitled to a disability rating in excess of 60 percent for gastritis. The Veteran initially appealed the assignment of a disability rating of 10 percent for gastritis. During the period on appeal, the Veteran's disability rating was increased to 60 percent. See May 2025 Rating Decision Code Sheet The Board notes that during the pendency of the appeal, the rating criteria for gastritis was amended effective May 19, 2024. 89 Fed. Reg. 19743 (March 20, 2024). This regulatory change occurred well after the period on appeal. The Board, however, may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). As there is not explicit provision for applying the current rating criteria retroactively, the Board must apply the old rating criteria. Under the old rating criteria, the maximum disability rating for the Veteran's gastritis is 60 percent. 38 C.F.R. § 4.114, Diagnostic Code 7346 (2021). Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 60 percent for gastritis is denied.

3. A disability rating in excess of 40 percent for a back disability is denied.

At issue is whether the Veteran is entitled to a disability rating in excess of 40 percent for a back disability. The weight of the evidence indicates that
38 C.F.R. § 4.114, Diagnostic Code 7346 (2021). Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 60 percent for gastritis is denied.

3. A disability rating in excess of 40 percent for a back disability is denied.

At issue is whether the Veteran is entitled to a disability rating in excess of 40 percent for a back disability. The weight of the evidence indicates that the criteria for a disability rating in excess of 40 percent for a back disability have not been met.

The Veteran was previously granted service connection and assigned a disability rating of 40 percent for a back disability. The Veteran filed an increased rating claim, and, in May 2021, the RO denied the claim. The Veteran appealed.

Disability ratings for a back disability are assigned pursuant to the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Formula for Rating IVDS Based on Incapacitating Episodes.

The Formula for Rating IVDS Based on Incapacitating Episodes has not been raised by the record, because the record is silent for incapacitating episodes requiring physician prescribed bedrest throughout the period on appeal. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note (1). As such, the Formula for Rating IVDS Based on Incapacitating Episodes does not provide a valid basis for an increased disability rating.

Under the General Rating Formula for Diseases and Injuries of the Spine, a disability rating of 40 percent is assigned for flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine, and a disability rating of 50 percent is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a total disability rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

The Veteran's treatment records are silent for ankylosis of the thoracolumbar spine.

The Veteran underwent VA examinations in September 2019, March 2020, and April 2021, and, in each of these examinations, the examiner opined that the Veteran was not manifesting ankylosis of the thoracolumbar spine.

The weight of the evidence indicates that the Veteran is not entitled to a disability rating in excess of 40 percent. In order to meet the criteria for a disability rating in excess of 40 percent, the Veteran needed to manifest ankylosis of the thoracolumbar spine. The Veteran's treatment records are silent ankylosis of the thoracolumbar spine, and three separate VA examinations all indicated that the Veteran does not have ankylosis of the thoracolumbar spine. As such, the criteria for a disability rating in excess of 40 percent have not been met.

The Board is cognizant that in evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). When, as in this case, the Veteran has been assigned the maximum disability rating based on range of motion, further DeLuca analysis is foreclosed. Johnston v. Brown, 10 Vet. App. 80 (1997). As such, the Veteran is not entitled to a disability rating in excess of 40 percent even after taking additional functional impairment into consideration.

Here, the weight of the probative evidence of record does not demonstrate that the Veteran is entitled to an increased disability rating. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 40 percent for a back disability is denied.

4. A disability rating in excess of 20 percent for sciatic radiculopathy
As such, the Veteran is not entitled to a disability rating in excess of 40 percent even after taking additional functional impairment into consideration.

4. A disability rating in excess of 20 percent for sciatic radiculopathy of the left lower extremity is denied.

5. A disability rating in excess of 20 percent for femoral radiculopathy of the left lower extremity is denied.

6. An initial disability rating in excess of 10 percent for radiculopathy of the right lower extremity is denied.

At issue is whether the Veteran is entitled to increased disability ratings for neurological disabilities of the bilateral lower extremities. The weight of the evidence indicates that the criteria for increased disability ratings have not been met.

The Veteran was previously assigned two disability ratings of 20 percent for radiculopathy of the sciatic and femoral nerves of the lower left extremity. The Veteran filed an increased disability rating, and, in May 2021, the RO granted service connection an assigned an initial disability rating of 10 percent for radiculopathy of the lower right extremity but otherwise denying the Veteran's claim. The Veteran appealed.

Disability ratings for the Veteran's radiculopathy of the sciatic and femoral nerves of the left lower extremity are assigned pursuant to Diagnostic Codes 8520 and 8526 respectively. Regarding the Veteran's two separate disability ratings for radiculopathy of the left lower extremity, the practice of assigning multiple disability ratings for duplicative symptomology (also known as pyramiding) is to be avoided. 38 C.F.R. § 4.14. As such, the Veteran has effectively been assigned a disability rating of 40 percent for radiculopathy of the left lower extremity, and the Board would normally consider assigning increased disability ratings under either Diagnostic Code 8520 or 8526 depending on which would result in a higher disability rating. In this case however, the Diagnostic Code 8526 does not provide criteria for a disability rating in excess of 40 percent, and, as such, Diagnostic Code 8526 does not provide an adequate basis for an increased disability rating. Disability ratings for the Veteran's radiculopathy of the sciatic nerve of the right lower extremity is assigned pursuant to Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Under Diagnostic Code 8520, a disability rating of 10 percent is assigned for mild incomplete paralysis of the lower extremity, and a disability rating of 20 percent is assigned for moderate incomplete paralysis of the lower extremity. A disability rating of 40 percent is assigned for moderately severe incomplete paralysis of the lower extremity, and a disability rating of 60 percent is assigned for severe incomplete paralysis with marked muscular atrophy of the lower extremity. A disability rating of 80 percent is assigned for completed paralysis of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

Complete paralysis is defined as the foot dangles and drops, a lack of active movement of muscles below the knee, or flexion of knee is weakened or (very rarely) lost. Id.

The rating criteria does not define mild, moderate, moderately severe, severe, or marked. The common definition of moderate is "tending toward the mean or average amount or dimension[.]" "Moderate," Merriam-Webster's Online Dictionary, https://www.merriam-webster.com/dictionary/moderate (last visited July 15, 2025). The common definition of marked is "having a distinctive or emphasized character[.]" "Marked," Merriam-Webster's Online Dictionary, https://www.merriam-webster.com/dictionary/marked (last visited July 15, 2025).

As such, mild incomplete paralysis is paralysis that is less than the mean or average amount of paralysis. Moderate incomplete paralysis is the mean or average amount of paralysis. Moderately severe incomplete paralysis is above average paralysis and possibly manifesting some degree of indistinctive atrophy. Severe incomplete paralysis with marked atrophy is above average paralysis and definitely manifesting distinctive atrophy.

The Veteran underwent a VA examination in September 2019.
5). The common definition of marked is "having a distinctive or emphasized character[.]" "Marked," Merriam-Webster's Online Dictionary, https://www.merriam-webster.com/dictionary/marked (last visited July 15, 2025).

The Veteran underwent a VA examination in September 2019. The examiner noted mild intermittent pain, paresthesias and or dysesthesias, and numbness in the left lower extremity. The examination is silent for symptomology of the right lower extremity. The examiner diagnosed the Veteran with radiculopathy of the left lower extremity with involvement of the sciatic nerve and characterized the overall severity of the Veteran's radiculopathy of mild. The examination report was silent for reports of atrophy.

The Veteran underwent another VA examination in March 2020. The Veteran reported pain that radiated down his left leg (and only his left leg) down to his toes with numbness and tingling. The examiner noted moderate constant pain, paresthesias and or dysesthesias, and numbness in the left lower extremity as well as severe intermittent pain of the left lower extremity. The examination is silent for symptomology of the right lower extremity. The examiner diagnosed the Veteran with radiculopathy of the left lower extremity with involvement of the sciatic and femoral nerves and characterized the overall severity of the Veteran's radiculopathy of moderate. The examination report was silent for reports of atrophy.

The Veteran underwent another VA examination in April 2021. The examiner noted moderate constant pain, paresthesias and or dysesthesias, and numbness in the left lower extremity as well as severe intermittent pain of the left lower extremity. The examiner noted mild intermittent pain, paresthesias and or dysesthesias, and numbness in the right lower extremity. The examiner diagnosed the Veteran with radiculopathy of the left lower extremity with involvement of the sciatic and femoral nerves. The examiner diagnosed the Veteran with radiculopathy of the right lower extremity with involvement of the sciatic nerve. The examination report is silent for atrophy.

The Veteran is not entitled to a disability rating of 60 percent or more for either lower extremity during the period on appeal. In order to meet the criteria for a disability rating of 60 percent or more for either extremity, the Veteran needed to manifest severe incomplete paralysis with marked atrophy or complete paralysis did not manifest complete paralysis of either lower extremity characterized as the foot dangles and drops, a lack of active movement of muscles below the knee, or flexion of knee is weakened or (very rarely) lost. While the Veteran has manifested symptomology in both lower extremities including constant pain, intermittent pain, paresthesias and or dysesthesias, and numbness. Nevertheless, the record is silent for symptomology suggestive of complete paralysis or any kind of atrophy marked or otherwise. As such, neither lower extremity warrants the assignment of a disability rating of 60 percent or more.

As previously noted, the Veteran's combined disability ratings for radiculopathy of the left lower extremities are 40 percent, and the symptomology of the various forms of radiculopathy are duplicative. As such, the Board cannot consider the Veteran's lower left extremity any further in order to avoid the rule against pyramiding.

The Veteran is not entitled to a disability rating in excess of 10 percent for radiculopathy of the right lower extremity. In order to meet the criteria for a disability rating in excess of 10 percent, the Veteran needed to manifest moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis with marked atrophy, or complete paralysis. As previously noted, the Veteran did not manifest atrophy or complete paralysis. As also previously noted, moderate or moderately severe incomplete paralysis requires average or above average degree of paralysis. In two out of three of the VA examinations on appeal, the examiner did not indicate that the Veteran was manifesting radiculopathy of the right lower extremity suggesting that either the Veteran was not manifesting any symptomology or that such symptomology was so slight so as to avoid detection entirely. The one examination that did discover radiculopathy of the right lower extremity indicated that the Veteran's symptom
10 percent, the Veteran needed to manifest moderate incomplete paralysis, moderately severe incomplete paralysis, severe incomplete paralysis with marked atrophy, or complete paralysis. As previously noted, the Veteran did not manifest atrophy or complete paralysis. As also previously noted, moderate or moderately severe incomplete paralysis requires average or above average degree of paralysis. In two out of three of the VA examinations on appeal, the examiner did not indicate that the Veteran was manifesting radiculopathy of the right lower extremity suggesting that either the Veteran was not manifesting any symptomology or that such symptomology was so slight so as to avoid detection entirely. The one examination that did discover radiculopathy of the right lower extremity indicated that the Veteran's symptomology was consistently mild. Additionally, the record is silent for lay reports of the Veteran suggesting that the radiculopathy of the right lower extremity was more severe. As such, the Board must conclude that the Veteran's paralysis of the right lower extremity was neither average or above average in severity, and a disability rating in excess of 10 percent for radiculopathy of the right lower extremity must be denied.

Here, the weight of the probative evidence of record does not demonstrate that the Veteran is entitled to increased disability ratings for radiculopathy of the bilateral lower extremities. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, increased disability ratings for radiculopathy of the bilateral lower extremities is denied.

7. An initial disability rating in excess of 20 percent for urinary incontinence is denied.

At issue is whether the Veteran is entitled to an increased disability rating for urinary incontinence. The weight of the evidence indicates that the criteria for an increased disability rating have not been met.

In May 2021, the RO granted service connection and assigned an initial disability rating of 20 percent for urinary incontinence. The Veteran appealed.

Disability ratings for urinary incontinence are assigned pursuant to Voiding Dysfunction or Urinary Tract Infection. 38 C.F.R. § 4.115b, Diagnostic Code 7542.

Under Urinary Tract Infection is not raised by the record, because the record is silent for recurrent symptomatic infection; and, as such, Urinary Tract Infection does not provide an adequate basis for an increased disability rating. 38 C.F.R. § 4.115a, Urinary Tract Infection

Under Voiding Dysfunction, a disability rating of 20 percent is assigned for the required wearing of absorbent materials which must be changed less than two times per day, and a disability rating of 40 percent is assigned for the required wearing of absorbent materials which must be changed two to four times per day; and a disability rating of 60 percent is assigned for the required use of an appliance or the wearing of absorbent materials which must be changed more than four times per day. 38 C.F.R. § 4.115a, Voiding Dysfunction.

The Veteran underwent a VA examination in April 2021. The Veteran reported that his bladder feels constantly full requiring frequent urination. The examiner indicated that the Veteran's urinary frequency does not require the use of absorbent materials or an appliance. The examiner noted that the Veteran would awaken to void two times a night, and that the interval between daytime voiding was one to two hours.

The Veteran is not entitled to a disability rating in excess of 20 percent for urinary incontinence. In order to be assigned a disability rating in excess of 20 percent, the Veteran needed to manifest the need for absorbent materials which must be changed at least two times per day or the need for an appliance. The Veteran underwent a VA examination which indicated that the Veteran needed neither absorbent materials nor an appliance. As such, the criteria for a disability rating in excess of 20 percent have not been met.

Here, the weight of the probative evidence of record does not demonstrate that the Veteran is entitled to a disability rating in excess of 20 percent for urinary incontinence. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, a disability rating in excess of 20 percent for urinary incontinence is denied.

8. TDIU effective August 30, 2019 is granted.

At issue is whether the Veteran is
in excess of 20 percent have not been met.

8. TDIU effective August 30, 2019 is granted.

At issue is whether the Veteran is entitled to TDIU prior to August 29, 2020. From August 30, 2019, the Veteran met the schedular rating criteria for TDIU; 38 C.F.R. § 4.16; because the Veteran manifested a disability that was at least 60 percent disabling; notably a total disability rating for an acquired psychiatric disorder. See May 2025 Rating Decision Code Sheet. This represents a finding that the Veteran manifested total occupational impairment; 38 C.F.R. § 4.130, General Rating Formula for Mental Disorders; and, as such, the Veteran was therefore incapable of securing and maintaining substantial gainful employment. This is sufficient to grant TDIU on a schedular basis. 38 C.F.R. § 4.16. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, TDIU effective August 30, 2019 is granted.

9. DEA earlier than August 30, 2019 is denied.

At issue is whether the Veteran is entitled to DEA prior to August 30, 2019. The weight of the evidence indicates that the Veteran is not entitled to a DEA earlier than August 30, 2019.

The criteria for DEA, in pertinent part, are that the Veteran must have been discharged under other than dishonorable conditions, and that the Veteran has a permanent total disability.

The Veteran was honorably discharged from the United States Navy, and the Veteran has been assigned a permanent total disability rating effective August 30, 2019; but no earlier. See May 2025 Rating Decision Code Sheet.

The criteria for a DEA earlier than August 30, 2019 have not been met. In order to meet the criteria for DEA, the Veteran needed to have been discharged under other than dishonorable conditions and have a permanent total disability. The Veteran was discharged honorably from the United States Navy, and the Veteran does have a permanent total disability effective August 30, 2019; but the Veteran does not have a permanent total disability any earlier.

Here, the weight of the probative evidence of record does not demonstrate that the Veteran is entitled to DEA earlier than August 30, 2019. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, DEA earlier than August 30, 2019 is denied.

Earlier Effective Date

Except as otherwise provided, the effective date of an evaluation and award of compensation based on a claim reopened after a final disallowance will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400.

10. An effective date earlier than August 30 2019 for the assignment of service connection for an acquired psychiatric disorder is denied.

At issue is whether the Veteran is entitled to the assignment of service connection for an acquired psychiatric disorder earlier than August 30, 2019. The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date.

The Veteran filed a notice of intent to file a claim on August 30, 2019 (eventually filing a claim for service connection in February 2020), and, in June 2020, the Veteran was granted service connection and assigned an initial effective date of August 30, 2019. The Veteran continually prosecuted the claim until appealing the matter to the Board.

The Veteran has already been assigned an effective date of August 30, 2019 which is the date of claim. As such, the Veteran has been assigned the earliest possible effective date, and further relief is precluded
August 30, 2019. The weight of the evidence indicates that the Veteran is not entitled to an earlier effective date.

The Veteran has already been assigned an effective date of August 30, 2019 which is the date of claim. As such, the Veteran has been assigned the earliest possible effective date, and further relief is precluded. Therefore, the evidence in this case is not so evenly balanced so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, an effective date earlier than August 30, 2019 for the assignment of service connection for an acquired psychiatric disorder is denied.

11. An effective date of March 6, 2020 for the assignment of service connection for urinary incontinence is granted.

12. An effective date of March 6, 2020 for the assignment of service connection for radiculopathy of the lower right extremity is granted.

At issue is whether the Veteran is entitled to earlier effective dates for the assignment of service connection for urinary incontinence and radiculopathy of the right lower extremity. In both cases, the Veteran meets the criteria for an effective date of March 6, 2020.

The Veteran filed a notice of intent to file a claim on August 30, 2019 and subsequently pursued an increased rating claim for a back disability which was disposed of in June 2020. The Veteran continually prosecuted the claim until appealing the matter to the Board. In May 2021 during the pendency of the appeal, the Veteran was granted service connection for urinary incontinence and radiculopathy of the right lower extremity as neurological abnormalities arising from the Veteran's back disability. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). The Veteran appealed. Thus the date of claim is August 30, 2019.

The Veteran underwent a VA spinal examination on March 5, 2020. The examiner did not indicate that the Veteran manifested urinary incontinence or radiculopathy of the lower right extremity.

The Veteran underwent another VA spinal examination in April 2021. The examiner indicated that the Veteran manifested urinary incontinence and radiculopathy of the lower right extremity.

It is unclear from the record exactly when entitlement arose. Resolving all doubt in the Veteran's favor however, the Board finds that entitlement arose on March 6, 2020. This is the day after the VA examination which indicated that the Veteran did not have urinary incontinence or radiculopathy of the lower right extremity, and it is the earliest possible date that entitlement could have arisen. As such, the date of claim is August 30, 2019, and entitlement arose on March 6, 2020. This is sufficient to assign service connection effective March 6, 2020 for both conditions.

Here, the weight of the probative evidence of record demonstrates that the Veteran is entitled to an effective date of March 6, 2020 for the assignment of service connection for urinary incontinence and radiculopathy of the lower right extremity. Therefore, the evidence in this case is evenly balanced enough so as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. As such, an effective date of March 6, 2020 for the assignment of service connection for urinary incontinence and radiculopathy of the lower right extremity is granted.

Ann K. Minami

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board David R. Seaton, 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.

for the assignment of service connection for urinary incontinence and radiculopathy of the lower right extremity is granted.

Ann K. Minami

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board David R. Seaton, Counsel

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