Citation Nr: 1531324 Decision Date: 07/22/15 Archive Date: 08/05/15 DOCKET NO. 14-14 120 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an initial increased rating for lumbar spondylosis, evaluated as 10 percent disabling from August 19, 2011, and as 40 percent disabling from December 20, 2014. 2. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance or by reason of being housebound. 3. Entitlement to an initial rating greater than 10 percent for lumbar radiculopathy of the left lower extremity. 4. Entitlement to an initial rating greater than 10 percent for lumbar radiculopathy of the right lower extremity. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD M. Carsten, Counsel INTRODUCTION The Veteran served on active duty from April 1953 to April 1956. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from July 2010 and April 2013 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Los Angeles, California. In October 2014, the Board remanded the issues of entitlement to an increased rating for the lumbar spine and for SMC. The case was returned to the Board following substantial compliance with the remand directives. This is a paperless appeal and the Veterans Benefits Management System (VBMS) and Virtual VA folders have been reviewed. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to initial ratings greater than 10 percent for lumbar radiculopathy of the left and right lower extremities is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. For the period from August 19, 2011 to December 19, 2014, the Veteran's lumbar spondylosis is not manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 2. For the period from December 20, 2014, the Veteran's lumbar spondylosis is not manifested by unfavorable ankylosis of the entire thoracolumbar spine. 3. The Veteran requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; however, the preponderance of the evidence shows that this need is due to nonservice-connected disabilities. 4. The Veteran's award of a total disability rating based on individual unemployability (TDIU) was predicated on a single disability, but the Veteran does not have additional disabilities independently ratable at 60 percent or more. 5. The preponderance of the evidence is against finding that the Veteran is permanently housebound by reason of service-connected disabilities. CONCLUSIONS OF LAW 1. For the period from August 19, 2011 to December 19, 2014, the criteria for an initial rating greater than 10 percent for lumbar spondylosis are not met. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2014). 2. For the period from December 20, 2014, the criteria for a rating greater than 40 percent for lumbar spondylosis are not met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.71a, Diagnostic Code 5242. 3. The criteria for SMC due to the need for regular aid and attendance are not met. 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350(b), 3.352(a) (2014). 4. The criteria for SMC at the housebound rate are not met. 38 U.S.C.A. § 1114(s) (West 2014); 38 C.F.R. § 3.350(i) (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The requirements of 38 U.S.C.A. §§ 5103 and 5103A (West 2014) have been met. By correspondence dated in November 2009 (resent in March 2010) and September 2012, VA notified the Veteran of the information and evidence needed to substantiate his claims, to include notice of the information he was responsible for providing and notice of the evidence that VA would attempt to obtain. The letters also provided notice as to how VA assigns disability ratings and effective dates. The rating issue is downstream and additional notice is not required. VA also satisfied the duty to assist. The claims folder contains service treatment records, service personnel records, VA medical center records, and identified private records. The Veteran was provided VA spine examinations in September 2012 and December 2014; and has submitted aid and attendance/housebound examinations. Further examinations are not warranted. In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159 (2014). Analysis Increased rating for lumbar spondylosis In April 2013, the RO granted service connection for lumbar spondylosis and assigned a 10 percent rating from August 19, 2011. The Veteran disagreed with the decision and perfected this appeal. In February 2015, the RO increased the rating for lumbar spondylosis to 40 percent from December 20, 2014, resulting in staged ratings. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule), found in 38 C.F.R. Part 4. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Evaluation of a service-connected disorder requires a review of a Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2 (2014); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3 (2014). If there is a question as to which evaluation to apply to a Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2014). Where an increase in the disability rating is at issue, the present level of a claimant's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). VA regulations, set forth at 38 C.F.R. §§ 4.40, 4.45, 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. The United States Court of Appeals for Veterans Claims (Court) has held that a higher rating can be based on "greater limitation of motion due to pain on use." DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Any such functional loss must be "supported by adequate pathology and evidenced by the visible behavior of the claimant." See 38 C.F.R. § 4.40. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The RO rated the Veteran's lumbar spine disability under Diagnostic Code 5242 (degenerative arthritis of the spine). Pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. On VA examination in September 2012, the Veteran reported longstanding low back pain. He took oral pain medication and used a cane. He reported chiropractic treatment and a trial of physical therapy. He reported flare-ups with extended use or malposition. Range of motion testing showed forward flexion to 65 degrees with pain beginning at 65 degrees; extension to 15 degrees with pain beginning at 15 degrees; right lateral flexion to 20 degrees with pain beginning at 20 degrees; left lateral flexion to 20 degrees with pain beginning at 20 degrees; right lateral rotation to 20 degrees with pain beginning at 20 degrees; and left lateral rotation to 20 degrees with pain beginning at 20 degrees. The Veteran was able to perform repetitive use testing with no additional limitation of motion. There was functional impairment due to less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weight bearing. There was localized tenderness in the midline and paraspinal lumbar, but no guarding or muscle spasm. Muscle strength was 5/5 with no atrophy. The Veteran used a cane and weight belt. Arthritis was documented on x-ray. The examiner noted that subjective complaints would make extended ambulatory work difficult secondary to pain. In his May 2013 notice of disagreement, the Veteran reported that his back pain was severe and that his evaluation should be 60 percent. In his April 2014 Form 9, he reported that sometimes he has to stay in bed several days because his back gives out and sometimes he cannot walk. The Veteran most recently underwent a VA examination on December 20, 2014. Range of motion testing showed forward flexion 0 to 25 degrees; extension 0 to 10 degrees; right lateral flexion 0 to 10 degrees; left lateral flexion 0 to 10 degrees; right lateral rotation 0 to 15 degrees; and left lateral rotation 0 to 15 degrees. Range of motion was limited due to pain. There was moderate tenderness of the lumbar spine. The Veteran was able to perform repetitive use testing with no additional loss of motion. The examiner stated that pain, weakness, fatigability and incoordination did not significantly limit functional ability with repeated use or with flare-ups. There was muscle spasm, tenderness, and guarding not resulting in abnormal gait or abnormal spinal contour. Muscle strength was 4/5 without atrophy. There was no ankylosis of the spine. The Veteran regularly used a wheelchair and walker and occasionally used a brace. For the period prior to December 20, 2014, the Board finds that an initial rating greater than 10 percent is not warranted. The evidence relevant to that period simply does not show forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, and combined range of motion exceeds 120 degrees. There was no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spine contour. As noted, a 40 percent rating was assigned from December 20, 2014 based on the VA examination showing forward flexion limited to 25 degrees. A rating greater than 40 percent is not warranted as there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine. In making the above determinations, the Board has considered the Veteran's reports of severe low back pain. While the Veteran is competent to report his low back symptoms and associated impairment, his subjective complaints are not sufficient to outweigh the objective evidence of record. Additionally, the Board does not find adequate pathology to support higher evaluations based on functional impairment due to pain on motion or other factors. The Board acknowledges the Veteran's reports that sometimes his back gives out and he has to stay in bed several days. VA examinations of record do not show intervertebral disc syndrome and there is no indication of incapacitating episodes as defined by regulation. There is no basis for assigning higher ratings under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2014). The Board further notes that pursuant to the General Rating Formula, Note (1) associated objective neurologic abnormalities are to be separately evaluated. The Veteran is currently assigned separate 10 percent ratings for radiculopathy of the left and right lower extremities and these issues will be discussed further in the remand section below. Additional associated neurologic abnormalities are not shown. Finally, the Board has considered whether the Veteran may be entitled to an extraschedular rating pursuant to 38 C.F.R. § 3.321 (2014). On review, the referenced diagnostic code considers limitation of motion and contemplates functional impairment. Higher schedular ratings are available for greater levels of disability. As the rating criteria are considered adequate, referral for consideration of an extraschedular rating is not warranted. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual condition fails to capture all the service-connected disabilities experienced. In addition to his low back disability, the Veteran is service-connected for numerous other disabilities. The only rating issue currently being decided is the evaluation for the service-connected lumbar spine disability. Accordingly, that is the only disability that the Board has considered in the extraschedular analysis with respect to considering the collective impact of the disabilities. See id. The Veteran has been in receipt of a TDIU since March 26, 1998. Further consideration pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is not warranted. Special monthly compensation In July 2010, the RO denied entitlement to SMC based on aid and attendance or housebound. The Veteran disagreed with the decision and perfected this appeal. i. Aid and attendance Special monthly compensation is payable at the (l) rate if a veteran, as the result of service-connected disability, is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). The following will be accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). "Bedridden" will be a proper basis for the determination. For the purpose of this paragraph, "bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that claimant has voluntarily taken to bed or that a physician has prescribed bed rest for the greater or lesser part of the day to promote convalescence or cure will not suffice. Id. It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Id. The Veteran is currently service connected for postoperative neuropathy of right (dominant) median nerve with hypesthesia (70 percent from March 26, 1998); lumbar spondylosis (10 percent from August 19, 2011; 40 percent from December 20, 2014); right lower extremity lumbar radiculopathy (10 percent from March 19, 2014); and left lower extremity lumbar radiculopathy (10 percent from March 19, 2014). VA medical records show that the Veteran suffered a stroke in June 2009 resulting in legal blindness. He underwent an examination for housebound status or permanent need for aid and attendance on June 20, 2009. Diagnosis was "CVA" (cerebrovascular accident). Gait was ambulatory with a walker. The examiner stated that the large subacute stroke restricted activities. The Veteran was not confined to bed. He was not able to feed himself or prepare his own meals. He needed assistance in bathing and tending to hygiene needs because he was blind due to the stroke. He did not require nursing home care. The Veteran's posture was good but he had difficulty with the activities of daily living because of the stroke and blindness. There were no restrictions of the spine. VA records dated in July 2009 show that the Veteran needs assistance. Prior to the stroke, he was reportedly independent in activities of daily living. A December 2009 letter from a private healthcare service indicates that they started providing services for the Veteran in August 2009. He was authorized services for 4 hours a day, 5 days a week, which included light housekeeping, meal preparation, laundry, hygiene assistance and ambulation assistance. A Companion Care Services Activity Summary dated in February 2010 shows that the Veteran continued to need help with activities of daily living. Diagnoses were listed as congestive heart failure and CVA. The Veteran underwent a VA hand, thumb and fingers examination in November 2010. The Veteran was able to hold a spoon or fork to eat, but was unable to prepare his food. He dropped things frequently but did have some use with his right hand. The examiner noted severe neuropathy of the right median nerve with effects on daily activities. He further noted that the Veteran required assistance with all activities of daily living. The October 2012 examination for housebound status or permanent need for regular aid and attendance indicates that the Veteran's activities were restricted due to legal blindness and carpal tunnel syndrome. The Veteran could feed himself, but needed assistance with meal preparation. He also needed assistance with hygiene and bathing due to blindness. He was not confined to bed and did not require nursing home care. There was right hand numbness but he was able to grasp well. He was unable to walk far and lost balance due to low back pain and congestive heart failure. He used a cane, walker, and wheelchair. Evidence of record shows that the Veteran needs regular aid and attendance. He receives home health care services and his spouse also provides significant assistance. Notwithstanding, the preponderance of the evidence is against finding that this need is a result of service-connected disabilities. The Board acknowledges the Veteran suffers from back pain and radiculopathy and that he has severe impairment of the right hand. These service-connected disabilities are productive of some interference with the activities of daily living. They do not, however, render him so helpless as to need regular aid and attendance. In making this determination the Board acknowledges the Veteran's reports that sometimes his back condition causes him to be in bed for several days. Objective evidence does not show that the condition is of such severity that he is required to remain in bed and there is no indication that he is "bedridden" due to such. A longitudinal review of the record shows the Veteran was essentially independent until June 2009 when he suffered a stroke which resulted in blindness. The need for aid and attendance is related to the stroke and associated vision impairment. The doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102 (2014). ii. Housebound Special monthly compensation is payable at the (s) rate if a Veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or, (2) is permanently housebound by reason of service-connected disability or disabilities. A veteran will be considered housebound where the evidence shows that, as a direct result of his service-connected disability or disabilities, he is substantially confined to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran does not have a single service-connected disability rated as 100 percent disabling. Notwithstanding, in Bradley v. Peake, 22 Vet. App. 280 (2009), the Court held that the provisions of section 1114(s) do not limit a "service-connected disability rated as total" to only a schedular 100 percent rating. This finding allows a TDIU rating to serve as the "total" service-connected disability, if the TDIU entitlement was solely predicated upon a single disability for the purpose of considering entitlement to SMC at the (s) rate. The Court was clear that the requirement for a single "service-connected disability rated as total" cannot be satisfied by a combination of disabilities. Review of the record shows that the Veteran was awarded TDIU effective May 14, 1998. At that time, he was only service-connected for right median nerve neuropathy rated as 70 percent disabling. Thus, the award of TDIU was predicated upon a single disability. The Veteran, however, is not entitled to statutory housebound benefits because at this time, he does not have additional disabilities independently evaluated as 60 percent or more. See 38 C.F.R. § 4.25 (2014). The remaining question is whether the Veteran is housebound in fact. In his August 2010 notice of disagreement, the Veteran argued that he was housebound, but went on to state that he goes to the bank and conducts financial business. In a March 2014 Form 9, the Veteran reported that his back condition keeps him confined to his home because he has severe back pain and is unable to walk at times. In an April 2014 Form 9, he reported that he only leaves his house to go to the doctor. The June 2009 VA examination indicates that the Veteran will need an attendant to leave his home since he was recently blind due to a stroke. A January 2010 VA Geriatrics and Extended Care Referral indicates that the Veteran is homebound. The October 2012 VA examination indicates that the Veteran can leave his home weekly to attend church and medical appointments. In considering the claim, the Board acknowledges the Veteran's reports that he is confined to his home. Information in the record, however, shows that he is able to leave his home to go to the bank, and to attend church and medical appointments. The Board acknowledges the January 2010 VA referral indicating that the Veteran is homebound. The diagnoses considered were not specifically referenced, but the referral was made at the 6 month evaluation following the Veteran's stroke. The overall evidence does not establish that the Veteran is substantially confined to his premises due to service-connected disabilities. To the extent he has difficulty leaving his home, it is related to the nonservice-connected stroke and blindness. The preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application. See 38 C.F.R. § 3.102. (Continued on the next page) ORDER For the period from August 19, 2011 to December 19, 2014, an initial rating greater than 10 percent for lumbar spondylosis is denied. For the period beginning December 20, 2014, a rating greater than 40 percent for lumbar spondylosis is denied. Entitlement to SMC based on the need for aid and attendance or by reason of being housebound is denied. REMAND In February 2015, the RO granted service connection for lumbar radiculopathy of the left and right lower extremities and assigned a 10 percent rating for each. In a May 2015 statement, the Veteran disagreed with the ratings. As the Veteran submitted a timely notice of disagreement, a remand is needed so that a statement of the case can be furnished. Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) Issue a statement of the case addressing entitlement to initial ratings greater than 10 percent for lumbar radiculopathy of the left and right lower extremities. If, and only if, the appellant complete his appeal by filing a timely substantive appeal on these issues should they be returned to the Board. 38 U.S.C.A. § 7104 (West 2014). The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ S. L. Kennedy Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs