Citation Nr: 1751749 Decision Date: 11/13/17 Archive Date: 11/22/17 DOCKET NO. 13-14 206 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial evaluation higher than 10 percent for intervertebral disc syndrome, right lower extremity as secondary to the service-connected disability of chronic low back strain with degenerative joint disease prior to May 2, 2017. 2. Entitlement to an initial evaluation higher than 20 percent for intervertebral disc syndrome, right lower extremity as secondary to the service-connected disability of chronic low back strain with degenerative joint disease since May 2, 2017. 3. Entitlement to an initial evaluation higher than 10 percent for intervertebral disc syndrome, left lower extremity as secondary to the service-connected disability of chronic low back strain with degenerative joint disease. 4. Entitlement to a special home adaptation grant. 5. Entitlement to specially adapted housing. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. S. Willie, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from November 1992 to February 1996. This matter came to the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia (hereinafter Agency of Original Jurisdiction (AOJ)). The case was remanded in July 2016 to afford the Veteran a hearing before a member of the Board. The Veteran was afforded a videoconference hearing before the undersigned Veterans Law Judge (VLJ) in September 2016. A copy of the transcript is of record. This case was remanded for further development in January 2017. At that time, the issue of entitlement to special monthly compensation based on aid and attendance was also remanded. In an August 2017 rating decision, special monthly compensation based on aid and attendance was granted. As the benefit sought on appeal has been granted, the Board no longer has jurisdiction over this issue. FINDINGS OF FACT 1. Prior to May 2, 2017, intervertebral disc syndrome, right lower extremity was manifested by moderate paralysis of the sciatic nerve. 2. Since May 2, 2017, intervertebral disc syndrome, right lower extremity is manifested by no more than moderate paralysis of the sciatic nerve. 3. Intervertebral disc syndrome, left lower extremity is manifested by no more than mild paralysis of the sciatic nerve. 4. The Veteran's service-connected disabilities involve the loss of use of his lower extremities so as to preclude him from perambulating without an assistive device. 5. The Veteran's claim for a special home adaptation grant is moot. CONCLUSIONS OF LAW 1. The criteria for a uniform rating of 20 percent, but no higher, for intervertebral disc syndrome of the right lower extremity are met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a rating in excess of 10 percent for intervertebral disc syndrome of the left lower extremity are not met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b) (2014); 38 C.F.R. §§ 3.102, 3.159, 4.40, 4.45, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for specially adapted housing grant have been met. 38 U.S.C. §§ 2101, 5107 (2014); 38 C.F.R. § 3.809 (2017). 4. The criteria for the dismissal of the claim of entitlement to a special home adaptation grant have been met. 38 U.S.C. § 7105 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VETERANS CLAIMS ASSISTANCE ACT OF 2000 (VCAA) The Board initially notes that VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2016). A review of the record does not disclose that the Veteran and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Veteran's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). 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. § 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; 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. 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. In Fenderson v. West, 12 Vet. App. 119 (1999), the United States Court of Appeals for Veterans Claims (Court) held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran appeals the denial of a rating higher than 10 percent for intervertebral disc syndrome of the left lower extremity. He also appeals the denial of a rating higher than 10 percent for intervertebral disc syndrome of the right lower extremity prior to May 2, 2017 and a rating higher than 20 percent thereafter. The Veteran's right lower extremity disability is rated under 38 C.F.R. § 4.124a, DC 8520. His left lower extremity disability is rated under DCs 5243-8520. Diagnostic Code 5243 evaluates intervertebral disc syndrome, while DC 8520 evaluates incomplete paralysis of the sciatic nerve. Under Diagnostic Code 8520, incomplete paralysis of the sciatic nerve warrants a 10 percent evaluation when mild, a 20 percent evaluation when moderate, a 40 percent evaluation when moderately severe, and a 60 percent evaluation when severe, with marked muscular atrophy. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture 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, at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. During the January 2011 VA examination, the Veteran reported numbness, tingling and loss of feeling in the legs. Examination revealed there was normal motor function and reflexes, but decreased sensory function of both extremities. There was a showing of decreased muscle strength on the right but normal findings on the left during the June 2015 VA examination. There was no muscle atrophy. Normal sensory findings for the knee were shown but the ankles were hypoactive for the right and left lower extremity. There were also decreased sensory findings on the right but normal sensory examination on the left. The May 2017 VA examination disclosed there was normal muscle strength and normal reflexes for the right and left lower extremities. Examination, however, revealed decreased sensory findings of the right lower leg/ankle and foot/toes. Essentially normal sensory examination for the left lower extremity was disclosed and there was no showing of muscle atrophy. The severity of the radiculopathy on the right side was found to be moderate and mild on the left side. After review of the record, the Board finds against a rating in excess of 10 percent for intervertebral disc syndrome of the left lower extremity. To that end, the Veteran's symptoms in this regard most nearly approximate mild incomplete paralysis. While the Veteran reports lower extremity pain, tingling and numbness, examinations at most show decreased sensory findings for the left lower extremity. With the exception of the June 2015 showing of hypoactive ankles bilaterally, the record essentially shows there is normal muscle strength and reflexes for the left lower extremity. The May 2017 VA examiner also found that the severity of the Veteran's radiculopathy was at most mild on the left side. Hence, the constellation of manifestations expected for moderate impairment is not shown. In reaching this determination, the Board has considered the guidance established in section 4.120, 4.123 and 4.124. When the evidence is viewed as a whole, however, the criteria for a rating higher than 10 percent for intervertebral disc syndrome of the left lower extremity have not been met. The Board finds, however, that a uniform rating of 20 percent for intervertebral disc syndrome of the right lower extremity is warranted. To that end, the record shows that prior to May 2, 2017 the right lower extremity had decreased sensory findings as well as diminished motor strength in all spheres. The Board finds that the Veteran symptoms have not significantly changed during this appeal and that a uniform 20 percent rating is warranted. A rating higher than 20 percent, however, is not warranted at any point during this appeal as a moderately severe right lower extremity disability has not been shown. Although diminished muscle strength was shown in June 2015, there was still some muscle movement. Examinations in January 2011 and June 2017, disclosed normal normal muscle strength and normal reflexes on the right and left. Furthermore, the May 2017 VA examiner found that the severity of Veteran's radiculopathy on the right side was at most moderate. These findings support no more than a 20 percent rating. In reaching this determination, the Board has considered the guidance established in section 4.120, 4.123 and 4.124. When the evidence is viewed as a whole, however, the criteria for a 20 percent rating for intervertebral disc syndrome right lower extremity but no higher have been met. To the extent that the Veteran's left lower extremity disability is rated by analogy under DC 5243, the Board notes that while the May 2017 VA examination showed that the Veteran has IVDS of the thoracolumbar spine, he did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Board has considered all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the appellant or his representative, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has found no section that provides a basis upon which to assign a higher disability rating for his disability. The claim is denied. Special home adaptation grant or specially adapted housing A certificate of eligibility for assistance in acquiring specially adapted housing may be provided if, among other things, the veteran is entitled to service-connected compensation for permanent and total disability due to: (1) the loss, or loss of use, of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (2) blindness in both eyes, having only light perception, plus the anatomical loss or loss of use of one lower extremity, or (3) the loss or loss of use of one lower extremity together with residuals of organic disease or injury which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (4) the loss or loss of use of one lower extremity together with the loss or loss of use of one upper extremity which so affect the functions of balance or propulsion as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair, or (5) the loss or loss of use of both upper extremities such as to preclude use of the arms at or above the elbow, or (6) full thickness or subdermal burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk. 38 U.S.C. § 2101(a); 38 C.F.R. § 3.809. The term "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(d). In order for a veteran to be entitled to a certificate of eligibility for assistance in acquiring special home adaptation, he or she must be entitled to compensation for permanent and total disability that includes: (1) anatomical loss or loss of use of both hands, or (2) be due to: (i) blindness in both eyes with 5/200 visual acuity or less, or (ii) deep partial thickness burns that have resulted in contractures with limitation of motion of two or more extremities or of at least one extremity and the trunk, or (iii) full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk, or (iv) residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 U.S.C. § 2101(b);38 C.F.R. § 3.809. The Veteran appeals the denial of a special home adaptation grant or specially adapted housing. The Veteran is service-connected for depression, rated as 60 percent, chronic low back strain rated as 40 percent, intervertebral disc syndrome of the right lower extremity rated as 20 percent and intervertebral disc syndrome of the left lower extremity rated as 10 percent. His combined evaluation is 100 percent. As a threshold matter, the evidence shows no credible lay or medical evidence that the Veteran has blindness in both eyes plus the anatomical loss or loss of use of one lower extremity and/or full thickness or subdermal burns. In this regard, the Veteran does not assert nor has he presented any evidence showing blindness in both eyes and/or full thickness or subdermal burns. The Veteran maintains that he has loss of use of his lower extremities. During his September 2016 hearing, he testified that he could only walk about 10-15 feet due to pain. He also stated that he is unable to walk without the aid of an assistance device. Although the Veteran maintains that he has loss of use of his extremities, the objective evidence of record is against such a finding. To that end, the May 2017 VA examination disclosed there was normal muscle strength and normal reflexes for the right and left lower extremities. While there were decreased sensory findings of the right lower extremity, the left lower extremity sensory examination was essentially normal. The severity of the radiculopathy on the right side was found to be moderate and mild on the left side at most. Also, after review of the lay and medical evidence, the June 2017 VA examiner found that the Veteran did not have "loss of use of the foot involved." The Board notes, however, that the lay statements and VA examinations disclose that the Veteran has regular use of a wheelchair and constant use of braces due to his neuropathy and lumbar spine disabilities. In Jensen v. Shulkin, 2017 U.S. Vet. App. Claims LEXIS 1299, the Court found that loss of use existed when the Veteran was "deprived of the use of his lower extremities to such a degree that his locomotion is precluded." The phrase "preclude locomotion" is defined as the necessity for regular and constant use of a wheelchair, braces, crutches or canes as a normal mode of locomotion although occasional locomotion by other methods may be possible. 38 C.F.R. § 3.809(c). While the Veteran can occasionally ambulate unassisted over very short distances, the preponderance of the evidence reflects that his service-connected disabilities preclude locomotion within the meaning of the regulation. Id. In view of the foregoing the Board finds the competent and credible evidence of record reflects the Veteran's service-connected disabilities have resulted in the loss of use of both lower extremities, such as to preclude locomotion without the aid of braces, crutches, canes, or a wheelchair. Therefore, the criteria for specially adapted housing under 38 C.F.R. § 3.809 are met. Accordingly, the claim is granted. By virtue of the foregoing grant of specially adapted housing, the claim for a special home adaptation grant is moot, and it is dismissed. 38 U.S.C .§ 7105 (2014). ORDER Entitlement to an initial evaluation of 20 percent for intervertebral disc syndrome, right lower extremity as secondary to the service-connected disability of chronic low back strain with degenerative joint disease prior to May 2, 2017 is granted. Entitlement to an initial evaluation higher than 20 percent for intervertebral disc syndrome, right lower extremity as secondary to the service-connected disability of chronic low back strain with degenerative joint disease is denied. Entitlement to an initial evaluation higher than 10 percent for intervertebral disc syndrome, left lower extremity as secondary to the service-connected disability of chronic low back strain with degenerative joint disease is denied. Entitlement to a special home adaptation is granted. Entitlement to specially adapted housing is dismissed as moot. ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs