Citation Nr: 1715380	
Decision Date: 05/08/17    Archive Date: 05/22/17

DOCKET NO.  05-20 107	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Wilmington, Delaware


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for chronic lumbosacral strain prior to December 12, 2002, and in excess of 40 percent thereafter.

2. Entitlement to an extraschedular rating for chronic lumbosacral strain prior to January 28, 2009.

3.  Entitlement to an initial rating in excess of 40 percent for right lower extremity radiculopathy.

4.  Entitlement to an initial rating in excess of 40 percent for left lower extremity radiculopathy.

5.  Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or by reason of being permanently housebound.

6.  Entitlement to a total disability rating for individual unemployability due to service-connected disabilities (TDIU) prior to January 28, 2009.



REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


ATTORNEY FOR THE BOARD

Andrew Mack, Counsel


INTRODUCTION

The Veteran served on active duty from July 1973 to July 1975. 

This appeal is before the Board of Veterans' Appeals (Board) from February 2002 and April 2004 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO).  

The Board remanded the appeal in April 2007 and September 2010.  On remand, the Agency of Original Jurisdiction (AOJ), in February 2012 and September 2014 decisions granted 40 percent ratings for right and left lower extremity radiculopathies and a total disability rating for individual unemployability due to service-connected disabilities (TDIU), each effective January 28, 2009.

The issues of an extraschedular rating for chronic lumbosacral strain and a TDIU prior to January 28, 2009, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.





FINDINGS OF FACT

1.  Prior to December 12, 2002, the Veteran's chronic lumbosacral strain more closely approximated "moderate" than "severe" limitation of spine motion; it more closely approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees than forward flexion of the thoracolumbar spine 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine;  and it was not shown to approximate listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, or a loss of lateral motion.  

2.  The Veteran's chronic lumbosacral strain has at no point approximated unfavorable ankylosis of the entire thoracolumbar spine, or recurring attacks with little intermittent relief, or incapacitating episodes, of intervertebral disc syndrome.  

3.  The Veteran's right and left lower extremity radiculopathy has each more closely approximated moderately severe incomplete paralysis of the sciatic nerve than severe incomplete paralysis with marked muscular atrophy.

4.  The Veteran is not so helpless as to be in need of regular aid and attendance, and is not permanently housebound, as a result of her service-connected disabilities.


CONCLUSIONS OF LAW

1.  The criteria for a schedular rating in excess of 20 percent for chronic lumbosacral strain prior to December 12, 2002, and in excess of 40 percent thereafter, have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5003, 5242, 5243, 5295, 5292, 5293, Plate V (2002, 2003, 2016). 

2.  The criteria for an initial rating in excess of 40 percent for right lower extremity radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2016).

3.  The criteria for an initial rating in excess of 40 percent for left lower extremity radiculopathy have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.124a, Diagnostic Code 8520 (2016).

4.  The criteria for SMC based on the need for regular aid and attendance or by reason of being permanently housebound have not been met.  38 U.S.C.A. § 1114(l), (s) (West 2014); 38 C.F.R. §§ 3.350(b), (i), 3.352(a) (2016).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

Under applicable criteria, VA has certain notice and assistance obligations to claimants.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  In this case, required notice was provided in multiple letters, including ones dated in March 2001, August 2006, May 2007, and September 2010.  See Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II); Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006); Mayfield v. Nicholson, 20 Vet. App. 537, 543 (2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

As to VA's duty to assist, all necessary development has been accomplished.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Veteran's service treatment records, VA medical records, Social Security Administration (SSA) records and identified private treatment records have been obtained.  Also, the Veteran was provided multiple VA examinations of his disabilities and a May 2015 examination in connection with his SMC claims.  Together, these examinations and their associated reports were adequate.  Along with the other evidence of record, they provided sufficient information and sound bases for decisions on the Veteran's claims.  38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303 (2007).  



Moreover, in sending the Veteran the May 2007 and September 2010 development letter, providing October 2007 and May 2015 VA examinations, and obtaining the Veteran's SSA records and updated VA treatment records, the AOJ substantially complied with the Board's April 2007 and September 2010 remand instructions.  See D'Aries v. Peake, 22 Vet. App. 97, 104-106 (2008); Stegall v. West, 11 Vet. App. 268 (1998).

Therefore, VA has satisfied its duties to notify and assist, and there is no prejudice to the Veteran in adjudicating this appeal.  

II. 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.  See 38 U.S.C.A. § 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.  Staged ratings are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999).

Disability of the musculoskeletal system is primarily the inability, due to damage or infection of parts of the musculoskeletal system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.  The functional loss may be due to absence of part, or all, of the necessary bones, joints, and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion.  Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995).

When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant.  38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  

A.  Chronic lumbosacral strain

Initially, the Board notes that the Rating Schedule has been revised with respect to evaluating disabilities of the spine.  67 Fed. Reg. 54,345 (Aug. 22, 2002) (codified at 38 C.F.R. § 4.71a, DC 5293 (2002)).  Those provisions, which became effective September 23, 2002, replaced the rating criteria of 38 C.F.R. § 4.71a, DC 5293 (as in effect through September 22, 2002).  The Board observes that the regulations were further revised, effective from September 26, 2003.  68 Fed. Reg. 51,454-58 (Aug. 27, 2003).  Disabilities and injuries of the spine are now evaluated under 38 C.F.R. § 4.71a, DCs 5235 through 5243, with DC 5243 as the new code for intervertebral disc syndrome (IDS).

Where the law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeal process has been concluded, the version most favorable to the appellant will apply unless Congress provided otherwise or permitted the Secretary to do otherwise and the Secretary did so.  Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991).  As the Veteran's claim was prior to September 26, 2003, the Board will consider the regulations in effect both prior to and since September 26, 2003, as well as those both prior to and since September 23, 2002.  The Board observes, however, that when an increase is warranted based solely on the revised criteria, the effective date for the increase cannot be earlier than the effective date of the revised criteria.  See 38 C.F.R. § 5110(g); VAOGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997).



Prior to September 26, 2003, the Veteran's chronic lumbosacral strain was rated under Diagnostic Code (DC) 5295-5292 for limitation of motion of the lumbar spine.  See 38 C.F.R. §§ 4.20, 4.27.  

Under the criteria in effect prior to September 26, 2003, limitation of motion of the lumbar spine warrants a 10 percent evaluation if it is slight, a 20 percent evaluation if it is moderate or a 40 percent evaluation if it is severe.  38 C.F.R. § 4.71a, DC 5292 (2002).

Under the criteria in effect prior to September 26, 2003, lumbosacral strain with characteristic pain on motion warrants a 10 percent disability rating.  A 20 percent evaluation is warranted for lumbosacral strain with muscle spasm on extreme forward bending, and loss of lateral spine motion, unilateral, in a standing position.  Severe lumbosacral strain with listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, a loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion, warrants a 40 percent evaluation.  38 C.F.R. § 4.71a, DC 5295 (2002).

The words "slight," "moderate" and "severe", as used in the various diagnostic codes, are not defined in the VA Schedule for Rating Disabilities.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to ensure that its decisions are "equitable and just."  38 C.F.R. § 4.6.  The Board also notes that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of the Board's determination of an issue.  The Board evaluates all evidence in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Also, under the criteria in effect prior to September 23, 2002, IDS is evaluated as 10 percent disabling when mild; 20 percent disabling when moderate, with recurring attacks; 40 percent disabling when severe, with recurring attacks and little intermittent relief; and 60 percent disabling when pronounced; with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, and little intermittent relief.  38 C.F.R. Part 4, § 4.71a, DC 5293 (2002).

Under the version of DC 5293 in effect from September 23, 2002, to September 25, 2003, IDS can be evaluated either on the total duration of incapacitating episodes over the past 12 months, or by combining, under 38 C.F.R. § 4.25, separate evaluations of chronic orthopedic and neurologic manifestations associated with IDS, along with evaluations for all other disabilities, whichever method results in the higher evaluation.  38 C.F.R. § 4.71a, DC 5293 (2003).

Beginning September 26, 2003, lumbosacral strain is rated under DC 5237 for lumbosacral or cervical strain, and thus is rated according to the General Rating Formula for Diseases and Injuries of the Spine.  See 38 C.F.R. § 4.71a, DC 5237.

Under the General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), effective from September 26, 2003, the following evaluations are assignable with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease: 
* 10 percent 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; 
* 20 percent 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; 
* 40 percent for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine; 
* 50 percent for unfavorable ankylosis of the entire thoracolumbar spine; and 
* 100 percent for unfavorable ankylosis of the entire spine.  

Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code.  38 C.F.R. § 4.71a.

Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees.  Plate V, 38 C.F.R. § 4.71a.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.  Fixation of a spinal segment in neutral position (0 degrees) always represents favorable ankylosis.  See C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 5.

An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and treatment prescribed by a physician.  The following evaluations are assignable for intervertebral disc syndrome based on incapacitating episodes: 10 percent where incapacitating episodes have a total duration of at least one week but less than 2 weeks during the past 12 months; 20 percent where incapacitating episodes have a total duration of at least two weeks but less than four weeks during the past 12 months; 40 percent where incapacitating episodes have a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and 60 percent where incapacitating episodes have a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a, DC 5243.

In this case, neither a schedular rating in excess of 20 percent for chronic lumbosacral strain prior to December 12, 2002, nor one in excess of 40 percent thereafter, is warranted.

Prior to December 12, 2002, the Veteran's lumbar spine disability was manifested by pain and moderate limitation of motion approximating forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, resulting in functional impairment of limited activities involving bending, lifting, and other regular use of the back.  On February 2001 VA examination, she reported that her activities were generally limited with anything that required bending or stressing of her back; however, she reported that she did not take any medication for her pains, tried to be active and walk a fair amount, and was able to drive 40 miles to and from work.  On range of motion testing she had 50 degrees of flexion, 15 degrees of extension, 10 degrees of bending to the right, and 15 degrees of bending to the left.  She reported pain with all motions and was noted to have been unsteady in forward and backward bending and needed to lean on the wall for support.  

Even considering the Veteran's pain and unsteadiness, the Board finds that her spine disability was shown to have more closely approximated "moderate" than "severe" limitation of spine motion; it also more closely approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees than forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  Also, her spine disability was not shown to approximate listing of the whole spine to the opposite side, positive Goldthwaite's sign, marked limitation of forward bending in a standing position, or a loss of lateral motion.  

Such findings are consistent with contemporaneous VA treatment records; in March 2000, it was noted that the Veteran's lumbosacral spine had about 85 percent of normal motion in all directions with some lower back pain on extremes of motion.  A December 19, 2002, VA treatment record reflects a worsening of the Veteran's back problems following a December 2002 motor vehicle accident, with the Veteran then being treated with morphine for pain.  



Given the above, considering the evidence as a whole, the Board finds that, prior to December 12, 2002, the Veteran's lumbar spine disability more closely approximated the criteria for a 20 percent rating than those for a 40 percent rating under all pertinent rating criteria, both prior to after September 26, 2003.  

Furthermore, at no point has the Veteran's lumbar spine disability approximated the schedular criteria for a rating in excess of 40 percent.  Even considering all relevant factors such as pain and functional limitation, the Veteran's lumbar spine disability has at no point approximated unfavorable ankylosis of the entire thoracolumbar spine.   VA treatment records, as well as examinations in August 2006, June 2007, January 2009, December 2010, and May 2015, while reflecting painful and restricted spine motion, do not reflect any ankylosis or other symptomatology of the severity of unfavorable ankylosis of the entire thoracolumbar spine.

Also, the record has not shown recurring attacks of IDS with little intermittent relief or incapacitating episodes of IDS at any point during the appeals period.  The extensive medical record does not reflect periods of acute signs and symptoms due to IDS that have required bed rest and treatment prescribed by a physician.  On January 2009, December 2010 and May 2015 VA examinations the Veteran was noted not to have been incapacitated or bedridden under care of a physician due to her spine disability, or not to have IDS with corresponding symptoms at all.

Furthermore, the record does not reflect any neurologic abnormalities or findings related to the Veteran's spine disability, other than her service-connected lower extremity radiculopathy, addressed below. 

Accordingly, neither a schedular rating in excess of 20 percent for chronic lumbosacral strain prior to December 12, 2002, nor one in excess of 40 percent thereafter, is warranted in this case.





B.  Lower extremity radiculopathy

The Veteran's right and left lower extremity radiculopathy is rated under DC 8520.  DC 8520 provides that mild incomplete paralysis of the sciatic nerve is rated as 10 percent and that moderate incomplete paralysis is rated as 20 percent.  Moderately severe incomplete paralysis is rated as 40 percent, and severe incomplete paralysis with marked muscular atrophy is rated 60 percent.  Complete paralysis is rated as 80 percent, and is manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened and (very rarely) lost.  38 C.F.R. § 4.124a, DC 8520.

Under the provisions of 38 C.F.R. § 4.124a , the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree.

In this case, a rating greater than 40 percent for neither lower extremity radiculopathy disability is warranted.  

On January 28, 2009, VA examination, the Veteran reported radiating pain down the back of the legs and intermittent weakness of the legs.  Neurological examination revealed no atrophy, but weakness of the gastrocnemius muscles, 4+/5, with positive straight leg elevation to 40 degrees with worsening radicular symptoms.  Bilateral S1 radiculopathies of moderate severity were diagnosed.  

On December 2010 VA examination, neurological examination revealed absent ankle reflexes bilaterally; diminished sensation in the S1 dermatomal patterns bilaterally; weakness of the gastrocnemius muscles, 4+/5, bilaterally; and positive straight leg raise to 40 degrees.  Again, osteoarthritis with moderate degree of S1 radiculopathy bilaterally was diagnosed. 


On May 2015 VA examination, the Veteran was noted to have had 4/5 strength of knee extension and ankle plantar flexion and dorsiflexion, with normal reflexes of the knee and ankle and no atrophy.  Sensory examination was normal in the thighs, knees, lower legs, and ankles, with decreased sensation in the foot and toes.  She was assessed as having incomplete paralysis of the sciatic nerve of "Mild" severity.  

Neither the VA treatment records nor any other probative evidence suggests that the Veteran's right or left lower extremity radiculopathy has more closely approximated "severe incomplete paralysis with marked muscular atrophy" than "moderately severe incomplete paralysis" of the sciatic nerve.  Thus, a higher schedular rating for right or left lower extremity radiculopathy under DC 8520 is not warranted.  
Moreover, no earlier date for separately compensable ratings than January 28, 2009, for the Veteran's left and right radiculopathy is warranted in this case.  

Prior to this, on October 2007 VA examination, the examiner reviewed the diagnostic evidence and examined the Veteran; the examiner found lower extremity strength full except for left foot inversion and eversion (4+/5); deep tendon reflexes absent; and sensation to vibration absent in the feet and ankles, with sensation to pinprick reduced in the left lateral leg.  However, the examiner nonetheless determined the following: "There is no complete or incomplete paralysis of a sciatic nerve.  Sensory loss to vibration is secondary to peripheral neuropathy (etiology unknown) and not related to her service connected back disorder."

Also, on August 2006 VA examination, it was noted that sensation was intact to light touch in the bilateral lower extremities, muscle stretch reflexes were 1+ bilaterally in the lower extremities, and Lasegue's sign was negative.  In a November 2006 addendum, the examiner clarified that since the Veteran's reflexes were symmetrical, the examiner did not find any particular significance to the reflex being 1+ in the bilateral lower extremities, and this was within normal limits in her particular case.  

The Board notes the Veteran's representative's statements in a February 2017 brief that the Veteran was noted to have complained of "occasional tingling in her thighs and legs posteriorly with prolonged sitting" on February 2001 VA examination.  Her representative further stated that, on that examination, it was noted that "[s]he has absent patellar and Achilles reflexes throughout" and "some decreased sensation on the plantar aspect of the ball of her [left] foot," and that she was diagnosed with spinal stenosis syndrome with radiculopathic lower extremity pain left more than right.  The Board also notes that on May 2003 VA examination, the Veteran was assessed as having "radiculopathy, right equal to left."

However, on that February 2001 VA examination, while it was noted that there was some decreased sensation on the plantar aspect of the ball of the left foot, it was also noted that the Veteran, herself, related this to a 1997 motor vehicle accident.  
Furthermore, the October 2007 VA examiner, a neurologist, specifically noted the Veteran's sensory deficits and neurological symptoms of the lower extremities but specifically determined, based on her medical expertise, that there was no complete or incomplete paralysis of a sciatic nerve, and that the Veteran's sensory loss was not related to her service connected back disorder.

In this regard, the Board notes that, while the Veteran had previously, but inconsistently, been assessed as having lower extremity radiculopathy-on February 2001 and May 2003 VA examination, but not on August 2006 or July 2007 VA examination- the October 2007 examining neurologist was the only examiner, up to that point, to directly assess whether or not there was actual complete or incomplete paralysis of a sciatic nerve.  The Board finds the October 2007 VA examiner's assessment persuasive, and that the probative evidence as a whole weighs against a finding of any complete or incomplete paralysis of a sciatic nerve during this period.

The earliest point in the record reflecting incomplete paralysis of the sciatic nerve related to the Veteran's spine in the extensive medical record was on January 28, 2009, VA examination, when it was determined that the Veteran had bilateral S1 radiculopathies of moderate severity.  




Accordingly, a rating greater than 40 percent for neither lower extremity radiculopathy disability is warranted, and no earlier date than January 28, 2009, for such ratings is warranted.  

III. SMC

Special monthly compensation provided by 38 U.S.C. 1114(l) is payable for being so helpless as to be in need of regular aid and attendance.  38 C.F.R. § 3.350(b).  The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a).  38 C.F.R. § 3.350(b)(3).

Under 38 C.F.R. § 3.352(a), the following is accorded consideration in determining the need for regular aid and attendance: inability of claimant to dress or undress himself (herself), or to keep himself (herself) 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 (herself) 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 or her daily environment.  38 C.F.R. § 3.352(a).
 
It is not required that all of the above disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which a veteran is unable to perform should be considered in connection with his or her 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. Determinations that a veteran is so helpless, as to be in need of regular aid and attendance are based on the actual requirement of personal assistance from others.  Id. 


In this case, SMC for aid and attendance is not warranted.  While the record has reflected functional impairment due to the Veteran's disabilities, particularly in moving around, bending, lifting, or other functions involving the back or legs, it reflects that the Veteran's disabilities have not resulted in a level of functional impairment requiring regular aid and attendance under the criteria of 38 C.F.R. § 3.352(a).

As reflected in her May 2004 statement, the Veteran asserts that she is unable to do housework such as due to bending, lifting, and reaching restrictions from her back, and that she requires a walker or cane to ambulate.  Also, the Board notes the June 2007 lay statements from the Veteran's friends, R.D. and A.D.  Such statements indicate that they drove her places, took her out to eat, and had her over for meals, and that if someone could not drive her she walked to take a bus to go where she needed to go.

However, neither this evidence, nor any other lay or medical evidence in the record, establishes that the Veteran's service-connected disabilities have resulted in impairment approximating inability to dress or undress herself or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances that cannot be done without aid; inability to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity requiring care or assistance on a regular basis to protect the Veteran from hazards or dangers incident to her daily environment.  

The Veteran was provided a May 2015 VA examination in connection with her claim.  At the time, the Veteran reported being able to travel beyond her home, going out for grocery shopping, going out once a month for quilting, and doing ironing of quilting while sitting down.  It was noted that she used a hand-cart type gadget for all locomotion and a cane, but was able to perform all functions of self-care.  



In light of the above, a preponderance of the evidence is against a finding that the Veteran is so helpless as to be in need of regular aid and attendance as a result of her service-connected disabilities.

Finally, the Board has considered SMC under 38 U.S.C. § 1114(s), but finds that it is not applicable.  

Special monthly compensation provided by 38 U.S.C. § 1114(s) is payable where a veteran has a single service-connected disability rated as total and either (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, 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.  38 U.S.C.A. § 1114(s); 38 C.F.R. § 3.350(i).  This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her 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 or her lifetime.  Id.

For purposes of satisfying the requirements of 38 U.S.C. § 1114(s), a rating for TDIU may be considered a total rating, and any disabilities that do not form the basis for the TDIU may satisfy the requirement for additional service-connected disability or disabilities independently ratable at 60 percent or more under Section 1114(s).  See Bradley v. Peake, 22 Vet. App. 280, 291-93 (2008).  However, multiple disabilities, even if able to be combined and considered as a single disability for purposes of 38 C.F.R. § 4.16(a), do not meet the criteria for "a service-connected disability rated as total" for SMC under 38 U.S.C. § 1114(s).  Id. at 290-91.

The Veteran's service connected disabilities are chronic lumbosacral strain, rated 40 percent, and right and left lower extremity radiculopathy secondary to the Veteran's lumbosacral disability, each rated 40 percent.  Even if the Board were to find one of the Veteran's service-connected disabilities, on its own, "total" for purposes of 38 U.S.C. § 1114(s), the other service-connected disabilities would not be "separate and distinct" from it and involve different anatomical segments or bodily systems; the Veteran has a lumbar spine disability and neurological disability of the lower extremities caused by such spine disability.  

Furthermore, the record does not reflect that the Veteran is permanently housebound.  The Board notes the Veteran's representative's assertions in a February 2017 brief that the Veteran stated that she could travel beyond her
current domicile via "[a]ccompanied public transportation"; went shopping "at odd hours so as to 'not have to put up with all the people'" by taking taxis; used a hand-cart type gadget for all locomotion and a cane; could perform all functions; could not walk without the assistance of another person; needed an aid for ambulation; and could not leave the house in cold weather.  The Veteran's representative argued that, based on these factors, she be granted SMC by reason of being housebound, as she had been substantially confined to her dwelling as a result of service-connected disabilities because she could not walk without the assistance of another person, needed an aid for ambulation, and only left home for necessary occasions with special preparations. 

Initially, the Board notes that on May 2015 VA examination and throughout the record, the evidence clearly reflects that the Veteran is able to walk with the assistance of a device-specifically a walker or cane-and does not require the aid of another person to ambulate.  Moreover, none of the evidence discussed by the Veteran's representative or any of the other evidence of record reflects that the Veteran is permanently, substantially confined to her dwelling and the immediate premises due to her service-connected disabilities.  On the contrary, it reflects that she regularly leaves her home to go shopping, go to church, and go other places; also, it was specifically noted on May 2015 VA examination that the Veteran could travel beyond her current domicile and traveled to that examination by public transportation.  

Thus, a preponderance of the evidence is against a finding that the Veteran is so helpless as to be in need of regular aid and attendance, or is permanently housebound, as a result of her service-connected disabilities.  Accordingly, SMC based on the need for regular aid and attendance or by reason of being permanently housebound is not warranted.


ORDER

A schedular rating in excess of 20 percent for chronic lumbosacral strain prior to December 12, 2002, and in excess of 40 percent thereafter, is denied.

An initial rating in excess of 40 percent for right lower extremity radiculopathy is denied.

An initial rating in excess of 40 percent for left lower extremity radiculopathy is denied.

SMC based on the need for regular aid and attendance or by reason of being permanently housebound is denied.


REMAND

In the Board's September 2010 remand, it instructed the AOJ specifically to adjudicate the claim for an extraschedular rating due to the Veteran's service-connected lumbar spine disability.  In doing so, it noted evidence regarding the functional impairment resulting from her use of morphine for pain, and that such evidence suggested consideration of an extraschedular rating.  See 38 C.F.R. § 3.321(b)(1).  However, the AOJ did not adjudicate this matter.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  In this regard, the record, including VA treatment notes in May 2003, October 2004, and April 2006, and June 2008 and January 2009 VA examination reports, reflect that the morphine taken for the Veteran's spine pain has caused her drowsiness, sleepiness, and frequent dizziness with episodes of falling.  Such records further reflect that the Veteran's morphine usage has caused occupational difficulties leading to job terminations, missed work days, and ultimately, in part, an inability to work.  

To accord justice to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation Service, is authorized to approve an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities.  The governing norm in these exceptional cases is: A finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  See 38 C.F.R. § 3.321(b)(1).  

The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate, which involves a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  When an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service.

Given the additional impairment due to morphine taken for the Veteran's service-connected spine disability as noted above, the case should be referred to the Under Secretary for Benefits or the Director, Compensation Service, for consideration of an extraschedular rating  under 38 C.F.R. § 3.321(b)(1) prior to January 28, 2009.  

Also, the record contains evidence that, prior to January 28, 2009, the Veteran was unemployable due to her service-connected disability.  Such evidence includes the Veteran's SSA records, which reflect findings that the Veteran had not engaged in substantially gainful activity since July 30, 2006, and since that date had been too disabled to work, primarily due to her spine disability.  Indeed, the January 28, 2009, VA opinion stated that the Veteran would not be able to hold down gainful employment because of her lower back condition and the morphine that she is taking.  The AOJ relied on this opinion awarding the Veteran TDIU, specifically noting the inability to work as a driver because of her service-connected conditions (requiring the use of morphine) and the award for SSA disability based on the service-connected disabilities.  SSA records and other statements from the Veteran also reflect that she worked primarily as a driver for decades prior to stopping work.  

While the Veteran did not meet the schedular percentage requirements for a TDIU during that period under 38 C.F.R. § 4.16(a), a TDIU on an extraschedular basis may still be considered if she had been unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities.  38 C.F.R. § 4.16(b).  Rating boards are to submit these cases to the Director, Compensation Service, for extraschedular consideration, with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.  Id. 

Accordingly, the case is REMANDED for the following action:

1.  Submit to the Under Secretary for Benefits or the Director, Compensation Service, the matter of an extraschedular rating for chronic lumbosacral strain prior to January 28, 2009, pursuant to 38 C.F.R. § 3.321(b)(1).

2.  Upon completion of the above and after completing any other necessary development, adjudicate the matter of an extraschedular rating for chronic lumbosacral strain prior to January 28, 2009, under 38 C.F.R. § 3.321(b)(1)

3.  Based upon the decision of the above adjudication, consider the issue of entitlement to TDIU prior to January 28, 2009.  If the schedular TDIU under 4.16(a) remains denied, consider submission to the Director, Compensation Service, the issue of extraschedular TDIU consideration under 38 C.F.R. § 4.16(b), with a full statement as to the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue.

4.  Upon completion of the above and after completing any other necessary development, adjudicate any issues remaining on appeal.

The Veteran has the right to submit additional evidence and argument on the 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 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).



______________________________________________
JONATHAN B. KRAMER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs