Citation Nr: 18154660 Decision Date: 11/30/18 Archive Date: 11/30/18 DOCKET NO. 15-05 894 DATE: November 30, 2018 ORDER New and material evidence sufficient to reopen a claim for entitlement to service connection for a right knee disability has not been received. An increased rating of 20 percent, but no higher, effective November 4, 2010 for left lower radiculopathy is granted. An increased rating in excess of 20 percent from July 7, 2016 for left lower extremity radiculopathy is denied. An increased rating in excess of 10 percent for a left knee disability is denied. An increased rating in excess of 10 percent for a bilateral foot disability is denied. An increased rating in excess of 60 percent for a back disability is denied. Special monthly compensation (SMC) based on aid and attendance or homebound status is denied. FINDINGS OF FACT 1. Evidence added to the record since the previous final denial does not raise a reasonable possibility of substantiating the claim of entitlement to service connection for a right knee disability. 2. From November 4, 2010, the Veteran’s left lower extremity radiculopathy was manifested by moderate incomplete paralysis. 3. From July 7, 2016, the Veteran’s left lower extremity radiculopathy was not manifested by severe incomplete paralysis. 4. The Veteran’s left knee disability was not manifested by moderate recurrent subluxation or lateral instability. 5. The Veteran’s bilateral foot disability is manifested by weak foot. 6. The Veteran’s back disability is not manifested by unfavorable ankylosis of the entire spine. 7. The Veteran is not required to remain in bed and is not unable to care for himself with respect to dressing, hygiene, feeding, toileting, and protection from hazards or dangers in his daily environment due to his service-connected disabilities. He is also not substantially confined to his dwelling and the immediate premises and he does not suffer from loss of both feet. CONCLUSIONS OF LAW 1. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for a right knee disability. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 2. The criteria for a 20 percent rating, but no higher, effective November 4, 2010 for a left lower extremity disability have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8526. 3. The criteria for an increased rating in excess of 20 percent thereafter for a left lower extremity have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8526. 4. The criteria for entitlement to an increased rating in excess of 10 percent for a left knee disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5257. 5. The criteria for entitlement to an increased rating in excess of 10 percent for a bilateral foot disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5277. 6. The criteria for an increased rating in excess of 60 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.27, 4.71a, DC 5243. 7. The criteria for an award of special monthly compensation based on aid and attendance homebound status have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from May 1971 to May 1991. The Board notes the Veteran has been in receipt of a total disability rating based on individual unemployability (TDIU) since March 1, 2003. New and Material Evidence Rating actions are final and binding based on evidence on file at the time the veteran is notified of the decision and may not be revised on the same factual basis except by a duly constituted appellate authority. 38 C.F.R. § 3.104(a). Generally, a claim which has been denied in an unappealed Board decision or an unappealed AOJ decision may not thereafter be reopened and allowed. 38 U.S.C. §§ 7104(b), 7105(c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). The Veteran’s original claim for service connection for a right knee disability was denied in a July 1996 rating decision. The Veteran submitted new medical treatment records within one year of the July 1996 rating decision and appealed the decision. In January 1999, the Board denied service connection for a right knee disability, explaining there was no evidence of a current right knee disability. This decision was final. The Veteran submitted the present claim for service connection for a right knee disability in November 2010. A March 2012 rating decision denied reopening of the claim because no new and material evidence had been submitted. The Veteran appealed. Relevant evidence prior to the previous final denial for service connection for a right knee disability included treatment records, examinations, service treatment records (STRs), and Veteran statements. Relevant evidence submitted since the previous final denial for the Veteran’s right knee disability includes examinations, STRs, medical treatment records, and Veteran statements. While this evidence is new in that it was not of record at the time of the previous final denial, it is not material in that none of the evidence submitted shows the Veteran has a current right knee disability. The July 2016 examiner noted the Veteran did not have a current right knee diagnosis and none of the objective evidence submitted since the previous final denial shows the Veteran has a current right knee diagnosis. The medical records submitted do not show a current right knee disability. While the Veteran says he has a right knee disability, the Veteran is not competent to opine on medical matters, such as a diagnosis of a medical condition. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Therefore, because no evidence has been submitted that reasonably raises the possibility of substantiating the claim, the claim will not be reopened. Increased Rating Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Left Lower Extremity Radiculopathy The Veteran’s left lower extremity radiculopathy is rated under DC 8526. Under DC 8526, a 40 percent rating is warranted for complete paralysis of the anterior crural nerve (femoral) resulting in paralysis of the quadriceps extensor muscles. Incomplete paralysis of the anterior crural nerve (femoral) warrants a 30 percent rating if it is severe, a 20 percent rating if it is moderate, or a 10 percent rating if it is mild. 38 C.F.R. § 4.124a, DC 8526. The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at “Diseases of the Peripheral Nerves” in 38 C.F.R. § 4.124 (a). The Veteran contends his left lower extremity radiculopathy is worse than indicated by his noncompensable rating prior to July 7, 2016 and his 20 percent rating thereafter. After review of the Veteran’s record, the Board finds a higher, 20 percent rating is warranted effective November 4, 2010 due to his moderate symptoms. A December 2010 examiner noted the Veteran suffered from moderate stenosis with pain that was aggravated by walking and prolonged standing. A June 2012 medical record reported the Veteran suffered from severe symptoms which were exacerbated by activity and weight bearing. A December 2013 medical record indicated the Veteran suffered from tingling and weakness. An August 2015 medical record noted the Veteran had symptoms of throbbing and stabbing pain which were worse when walking and standing. The medical record also noted the Veteran experienced weakness and limping. The Board finds a higher 30 percent rating is not warranted for any time period on appeal. While the Veteran has continued seeking treatment for his left lower extremity radiculopathy, the Veteran’s medical records do not indicate he suffers from severe incomplete paralysis, as discussed above. While there was one mention of severe symptoms in June 2012, the majority of evidence shows the Veteran’s symptoms to be moderate. Additionally, in a July 2016 examination, the examiner noted the Veteran suffered from moderate symptoms. The examiner noted the Veteran’s left lower extremity sensory exam showed slightly degreed sensitivity in his left lower extremity. The examiner also opined the Veteran suffered from mild constant pain and numbness and moderate intermittent pain and paresthesias of his left lower extremity. The examiner did not indicate the Veteran suffered from moderately severe incomplete paralysis. Lastly, none of the Veteran’s medical records show the Veteran suffers from severe incomplete paralysis symptoms. Therefore, a higher 30 percent rating is not warranted. Left Knee Disability The Veteran’s left knee disability is currently rated under DC 5257. Under DC 5257, a 10 percent rating will be assigned with evidence of slight recurrent subluxation or lateral instability of a knee; a 20 percent rating will be assigned with evidence of moderate recurrent subluxation or lateral instability; and a 30 percent rating will be assigned with evidence of severe recurrent subluxation or lateral instability. Descriptive 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 for “equitable and just decisions.” 38 C.F.R. § 4.6. The Veteran contends his left knee disability is worse than indicated by his 10 percent rating. The Veteran was afforded an examination in February 2011. The Veteran reported he had pain about two to three times per month with pain in moderate severity, which was worsened by standing, walking, and bending. The examiner noted there was instability, giving away, stiffness, weakness, and incoordination of the Veteran’s left knee. The Veteran reported he was unable to walk more than a few yards or stand for more than a few minutes. The examiner reported the Veteran’s left knee flexion was to 55 degrees and his extension was normal. The Veteran was afforded another examination for his left knee in July 2016. The Veteran reported flare ups that manifested by worse pain than usual and decreased movement in the left knee. The Veteran reported functional loss in that he had trouble bending, squatting, climbing, standing, and walking. The Veteran also used a brace regularly. The Veteran’s left knee flexion was to 120 degrees and extension was to zero degrees. The Veteran’s symptoms included swelling and interference with standing. The examiner opined the Veteran did not have recurrent subluxation or lateral instability, but did have recurrent effusion. The Board finds a higher 20 percent rating for moderate recurrent subluxation or lateral instability is not warranted. The February 2011 examiner opined there was giving way and instability. However, the examiner did not offer an opinion as to severity. The July 2016 examiner opined the Veteran did not have subluxation or lateral instability at all in his left knee. The remainder of the Veteran’s objective record does not show he suffers from moderate recurrent subluxation or lateral instability. The Board has considered whether the Veteran’s left knee flexion or extension would warrant a higher disability rating. However, based on the findings above, neither the Veteran’s level of flexion or extension would warrant a higher disability rating under DC 5260 or DC 5261. In addition to considering the other applicable diagnostic codes to see if the Veteran could receive a higher disability rating under a different diagnostic code, the Board has also considered the directives laid out in Correia v. McDonald, 28 Vet. App. 158 (2016) and Sharp v. Shulkin, No. 16-1385 (Vet. App. Sept. 6, 2017). However, viewing the Veteran’s objective record and his examinations in totality, the Board finds them adequate and finds a remand is not necessary. Bilateral Foot Disability The Veteran is currently rated under DC 5277 for his bilateral foot disability. The Veteran contends his bilateral foot disability is worse than indicated by his 10 percent rating. DC 5277 provides a 10 percent rating for a symptomatic condition of weak foot secondary to many constitutional conditions, characterized by atrophy of the musculature, disturbed circulation, and weakness. The highest rating available under DC 5277 is 10 percent rating for bilateral weak foot. Therefore, a higher rating is not available. The Board has considered whether the Veteran’s service-connected bilateral foot disability warrants an increased rating under any of the other diagnostic codes pertaining to the foot. The Board finds that DCs 5256 (flat foot), 5278 (claw foot/pes cavus), 5279 (Morton’s disease), 5280 (hallux valgus), 5281 (hallux rigidus), 5282 (hammer toe), and 5283 (malunion or nonunion of the tarsal or metatarsal bones) are not applicable because the evidence does not show that the Veteran’s bilateral foot disability has been manifested by these disabilities at any time during the appeal period. The Board has considered whether the Veteran would be entitled to a higher disability rating under DC 5284. The Veteran had an examination for his bilateral foot disability in February 2011 where the Veteran reported pain, swelling, stiffness, and fatigability in his feet, particularly when standing or walking. The examiner noted there was evidence of painful motion and tenderness, but on examination, no evidence of swelling, instability, or weakness. The Veteran had another examination for his bilateral foot disability in July 2016. The Veteran reported stiffness and more pain than normal. The Veteran also reported that walking and standing for extended periods of time were difficult. The Veteran’s foot disability manifested with symptoms of pain on weight-bearing, disturbance of locomotion, and interference with standing. The examiner noted the Veteran had moderate severity bilateral foot difficulties. The examiner noted the Veteran’s foot condition chronically compromised weight bearing and required arch supports. However, under DC 5284, moderately severe foot injuries warrant a 10 percent disability rating and therefore, would not result in a higher rating for the Veteran. Back Disability The Veteran’s back disability is currently rated as 60 percent disabling under DC 5243. DC 5243 provides that intervertebral disc syndrome (IVDS) is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Based on Incapacitating Episodes provides a 60 percent disability rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides a 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a, DC 5243. The Veteran is in receipt of the highest rating under DC 5243 based on incapacitating episodes. Under the General Rating Formula, the next higher, 100 percent rating, is warranted when there is unfavorable ankylosis of the entire spine. The Board has reviewed the Veteran’s record, including the buddy statements submitted in May 2011 by the Veteran’s spouse and children who said the Veteran’s back surgeries and constant pain limit the Veteran’s ability to help around the house, limit his ability to be active, makes the Veteran unable to stand for long periods of time, or spend time playing with the grandchildren. The Board recognizes the Veteran continues to seek treatment for his back and continues to suffer a great deal of pain and limitation of movement and activities. (See January, June 2017 treatment records.) However, his records do not show he suffers from ankylosis of the entire spine. The February 2011 examiner opined the Veteran had ankylosis of the thoracolumbar spine, but did not say the Veteran had ankylosis of the entire spine. The July 2016 examiner opined the Veteran did not have ankylosis of the spine. Therefore, a higher rating is not warranted. Regarding the increased rating claims above, neither the Veteran nor his representative has identified any other rating criteria that would provide a higher rating or an additional rating. However, the potential applications of various provisions of Title 38 of the Code of Federal Regulations (2016) have been considered as required by the holding of the Court in Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Special Monthly Compensation The Veteran contends that he is entitled to special monthly compensation for aid and attendance and housebound benefits. SMC may be granted to a Veteran for aid and attendance from another person or for being housebound. In other words, a Veteran may receive SMC for either needing the regular aid and attendance of another person or for being housebound but not for both simultaneously. SMC by reason of the need for regular aid and attendance of another person is a greater monthly benefit than SMC by reason of being housebound. 38 U.S.C. §§ 1114 (l), (s). SMC for aid and attendance of another person is payable if a Veteran, as a result of the service-connected disability, either: (1) has suffered the anatomical loss or loss of use of both feet, (2) has suffered the anatomical loss or loss of use of one hand and one foot, (3) is blind in both eyes, (4) is permanently bedridden, or (5) is with such significant disabilities/so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l); 38 C.F.R. § 3.350 (b). Bedridden means the Veteran is actually required to remain in bed. 38 C.F.R. § 3.352 (a). The fact that the Veteran has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. In determining the need for aid and attendance of another person, several factors are for consideration. These include: (1) the inability of the Veteran to dress or undress himself or to keep himself ordinarily clean and presentable, (2) the frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the Veteran’s 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.), (3) the inability of the Veteran to feed himself through loss of coordination of his upper extremities or through extreme weakness, (4) the inability of the Veteran to attend to the wants of nature, (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment, and (6) the Veteran being bedridden. Id. Granting SMC for aid and attendance requires at least one of the above disabling factors be met. Turco v. Brown, 9 Vet. App. 222 (1996). Regarding being bedridden, however, a favorable determination will not be based solely upon an opinion that the Veteran’s condition is such as would require him to be in bed. 38 C.F.R. § 3.352 (a). Such a determination instead must be based on the actual requirement of personal assistance from others. Id. As implied from above, it is not required that all the disabling factors be found to exist before a favorable determination is made. The particular personal functions the Veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary the evidence establish the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need. The performance of the necessary aid and attendance service by a relative or other member of the Veteran’s household will not prevent a favorable determination. 38 C.F.R. § 3.352 (c). The regulations also provide additional compensation on the basis of being housebound where the veteran (1) has, in addition to a single, permanent service-connected disability rated 100 percent disabling, additional service-connected disability or disabilities independently ratable at 60 percent, 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. § 1114 (s); 38 C.F.R. § 3.350 (i). Substantially confined does not mean that the Veteran is unable to leave his dwelling and the immediate premises at all. Hartness v. Nicholson, 20 Vet. App. 216 (2006); Howell v. Nicholson, 19 Vet. App. 535 (2006). First, the Board notes the Veteran does not meet the service connection requirements for SMC based on being housebound. Additionally, the Veteran’s record does not show he is bedridden as defined above. The Veteran’s record also does not indicate he requires aid and attendance. The Veteran’s record shows his service connected disabilities make it difficult for him to sit, stand, walk, or perform other physical activities such as squatting. However, the Veteran’s record does not show he is unable to perform the majority of factors that would entitle him to aid and attendance, such as dressing himself, tending to his hygiene, requiring help to feed himself, tending to the wants of nature, or has physical or mental incapacity requiring care and assistance to protect him. The Board turns to the Veteran’s claim that his service connected disabilities, specifically his back, radiculopathy, and bilateral food disability, amount to loss of both feet. (See January 2015 Form 9.) The July 2016 examiner opined there was not functional impairment such that no effective function remained other than that which would be equally well served by an amputation with prosthesis due to the Veteran’s foot condition. The examiner noted the Veteran’s foot condition led to chronically compromised weight bearing that required the use of arch supports. However, the examiner also noted the Veteran did not require the use of a cane, walker, or wheelchair. The Veteran is also service connected for his back and left lower extremity radiculopathy. However, while the Veteran’s medical history, including his multiple examinations, shows multiple back surgeries, continued problems with managing pain due to his conditions, as well as an inability to bear weight, walk, or stand without significant pain, the Veteran’s record does not indicate he has suffered the loss of use of his feet. The Board has also considered the Veteran’s family’s statements that the Veteran can no longer spend time being active and spends a large amount of his time in bed due to his back condition. However, while the Board is sympathetic to the Veteran’s condition, these statements do not show the Veteran has lost the use of his feet. Regarding all the above, the Board acknowledges and has considered the Veteran’s statements that his conditions bother him, causes him pain, discomfort, trouble walking, standing, squatting, sitting, and he believes his disabilities warrant a higher rating and SMC. The Board also recognizes the Veteran continues to seek medical treatment for these conditions. However, while the Veteran is competent to report the symptoms of his disabilities, he is not competent to opine on matters requiring medical knowledge, such as determining the severity of his medical conditions. See Jandreau, supra. This finding does not suggest that the Veteran does not have many problems, simply that he does not meet the requirements cited above. It is important for the Veteran to understand that the medical findings provide highly probative evidence against these claims that the Board cannot, unfortunately, ignore, outweighing the Veteran’s belief that his disabilities warrant a higher disability rating, providing a highly clear basis for the opinion. Therefore, the Board provides more weight to the competent medical evidence of record and must deny the claims. (Continued on the next page)   Regarding all the above, the Board has considered the applicability of the benefit of the doubt doctrine. Because the preponderance of the evidence is against the Veteran’s claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C. §5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57(1990). John J. Crowley Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Snoparsky, Associate Counsel