Citation Nr: 21066772 Decision Date: 11/02/21 Archive Date: 11/02/21 DOCKET NO. 16-41 675 DATE: November 2, 2021 ORDER The portion of the June 3, 2021 Board of Veterans' Appeals (Board) decision that denied an initial disability rating higher than 20 percent for both right and left lower extremity radiculopathy is vacated. Entitlement to an initial rating higher than 20 percent for right lower extremity radiculopathy is denied. Entitlement to an initial rating higher than 20 percent for left lower extremity radiculopathy is denied. Entitlement to special monthly compensation (SMC) under the provisions of 38 U.S.C. § 1114 (s) beginning April 9, 2015, but no earlier, is granted, subject to the laws and regulations controlling the award of monetary benefits. FINDINGS OF FACT 1. The Board failed to meet its duty to assist the Veteran by failing to adjudicate the reasonably raised issue of entitlement to a SMC, thus the Veteran was denied due process of law. 2. The Veteran's right lower extremity radiculopathy symptomatology does not more nearly approximate moderately severe incomplete paralysis. 3. The Veteran's left lower extremity radiculopathy symptomatology does not more nearly approximate moderately severe incomplete paralysis. 4. Beginning on April 9, 2015, the Veteran is in receipt of a TDIU based on his psychiatric disability alone, and has additional service connected disabilities independently ratable at 60 percent or more. CONCLUSIONS OF LAW 1. The criteria for vacating part of the June 3, 2021 Board decision that denied an initial rating higher than 20 percent for both right and left lower extremity radiculopathy are met. See 38 U.S.C. § 7104; 38 C.F.R. § 20.1000. 2. The criteria for an initial rating higher than 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, diagnostic code (DC) 8520. 3. The criteria for an initial rating higher than 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.123, 4.124, 4.124a, DC 8520. 4. The criteria for SMC pursuant to 38 C.F.R. § 1114 (s); 38 C.F.R. § 3.350 (i) are met as of April 9, 2015, but not earlier. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1972 to December 1979. This matter comes to the Board of Veterans' Appeals (Board) on appeal from September 2013, April 2015, and September 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The September 2013 rating decision continued a 20 percent rating for lumbar spine disability, left lower extremity radiculopathy, and right lower extremity radiculopathy, and denied entitlement to a TDIU. In October 2013, the Veteran filed his notice of disagreement with the denial of a TDIU. In the April 2015 rating decision, the RO decreased its evaluation for right and left lower extremity radiculopathy, evaluating each as noncompensable from July 1, 2015, creating a staged rating, and the September 2015 rating decision granted an increased rating for anxiety disorder, evaluating it as 30 percent disabling from April 9, 2015. In April 2016, the Veteran filed his notice of disagreement with the 30 percent evaluation for anxiety, and the noncompensable ratings for right and left lower extremity radiculopathy, was issued a statement of the case in June 2016, and in August 2016 perfected his appeal to the Board In a June 2016 rating decision, the RO granted an increased rating for anxiety disorder, evaluating it as 50 percent disabling from April 9, 2015, right and left lower extremity radiculopathy, evaluating each as 10 percent disabling from July 1, 2015, and granted entitlement to a TDIU effective April 9, 2015. The Veteran requested a Board hearing with a Veterans Law Judge which was scheduled for June 11, 2019. However, in a May 2019 letter, the Veteran's agent reported that the Veteran wished to waive his right to testify at the scheduled hearing. Therefore, the Board considers the hearing request withdrawn. See 38 C.F.R. § 20.704 (d). In August 2019, the Board remanded the Veteran's claims for further development, specifically for new VA examinations to determine the current severity of the Veteran's service connected disabilities, and to adjudicate the claim for a TDIU as inextricably intertwined with the claims for higher ratings. In an August 2020 rating decision, the RO granted a rating increase for right and left lower extremity radiculopathy, evaluating each as 20 percent disabling from July 1, 2015. In June 2021, the Board granted a 40 percent rating for lumbar spine disability, an initial 70 percent rating for anxiety disorder, TDIU, and denied an initial rating higher than 20 percent for both right and left lower extremity radiculopathy. In October 2021, the Veteran' representative filed a motion for reconsideration of the June 2021 Board decision regarding the issue of entitlement to an SMC. PARTIAL VACATUR OF BOARD DECISION The Board may vacate an appellate decision at any time upon request of the appellant or his or her representative, or on the Board's own motion, when an appellant has been denied due process of law, or when benefits were allowed based on false or fraudulent evidence. 38 U.S.C. § 7104 (a); 38 C.F.R. § 20.1000. In this case, the Board issued a decision dated June 3, 2021 which granted an increased rating of 40 percent for lumbar spine disability, an initial 70 percent rating for anxiety disorder, a total disability rating due to individual unemployability (TDIU) from April 4, 2012, and denied an initial rating higher than 20 percent for both left and right lower extremity radiculopathy. In October 2021, the Veteran's representative submitted a Motion for Reconsideration of the June 3, 2021 decision based on the failure to adjudicate the reasonably raised claim for special monthly compensation (SMC). The representative stated that the Veteran has a 70 percent disability rating for his psychiatric disability which qualifies as a single disability causing total disability, and has additional disabilities which combine for a rating of more than 60 percent. Therefore, the grant of the TDIU raised the issue of SMC which was not adjudicated as part of the increased rating claim. As the Board failed to adjudicate the reasonably raised issue of SMC, the Veteran was denied due process of law. Therefore, based on the Veteran's representative's arguments in the October 2021 Motion, the Board grants the Motion for Reconsideration, and vacates the June 3, 2021 decision to the extent that it denied entitlement to a higher initial rating for both left and right lower extremity radiculopathy. At this time, the Board will reconsider entitlement to an initial rating higher than 20 percent for both right and left lower extremity radiculopathy, and entitlement to SMC pursuant to 38 C.F.R. § 1114 (s). RATINGS Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Right and Left Lower Extremity Radiculopathy The Veteran's right and left lower extremity radiculopathy are each currently rated 20 percent disabling under DC 8520. Under DC 8520, a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely), lost. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with this and other peripheral nerve injuries, 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 is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, note at "Diseases of the Peripheral Nerves." The mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous assigned a lower medical grade reflecting less impairment and/or affecting a smaller area in the nerve distribution. The moderate level of evaluation would be reserved for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution. This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength. The July 2012 examination report indicated that the Veteran had radicular pain or other signs or symptoms due to radiculopathy which entailed moderate, constant pain, and mild paresthesias and/or dysesthesias of the right and left lower extremities. A January 2015 VA examination report reflects a diagnosis of bilateral symmetric upper and lower extremity sensory peripheral neuropathy, with the Veteran reporting numbness in both feet which is mild to moderate, and in his hands which is mild. The examiner noted mild numbness of the left and right upper extremities, and moderate numbness of the left and right lower extremities. Muscle strength was normal, and the Veteran did not have muscle atrophy. There was decreased sensation to light touch in the right and left lower extremities, and the examiner noted mild incomplete paralysis of the right and left upper and lower extremities, but not due to the Veteran's back disability. The Veteran did not have any trophic changes, had a normal gait, but used a cane regularly for locomotion to prevent falls. The examiner reported that the Veteran's peripheral nerve condition did not impact his ability to work. The examiner also reported that the Veteran's right and left lower extremity radiculopathies had resolved with no objective evidence of residuals. While the January 2015 VA examination report indicates that the Veteran had mild numbness and mild incomplete paralysis of the left and right upper extremities, the Board notes that the Veteran does not have a separate claim for right and left upper extremity radiculopathy. In Chavis v. McDonough, No. 18-2928 (Vet. App. Apr. 16, 2021), the Court held that if the issue of entitlement to an increased rating for radiculopathy is determined to be within the scope of the claim for an increased rating for a spinal disability on appeal, the Board has jurisdiction to address the ratings for associated radiculopathy without requiring a separate notice of disagreement as to the radiculopathy ratings. Here, while the Veteran has claims for a higher rating for a lumbar spine disability, and right and left lower extremity radiculopathy, the January 2015 examiner noted that the Veteran's mild incomplete paralysis was not due to his back disability. Therefore, the Board will not adjudicate a claim of entitlement to an increased rating for right and left upper extremity radiculopathy. In his September 2019 letter, the Veteran stated that he had no radicular pain or other signs or symptoms due to radiculopathy, but reported referred symptoms down his bilateral lower extremities. The November 2019 disability benefits questionnaire (DBQ) reflects that the Veteran experienced pain and tingling in the bilateral lower extremities. The examiner noted decreased sensation to light touch in the lower right and left leg, ankle, foot, and toes, and noted mild constant pain, paresthesias and/or dysesthesias, and numbness, and moderate intermittent pain of the right and left lower extremities. The examiner also reported that the Veteran has diminished Achilles reflex bilaterally, straight leg-raise positivity bilaterally, and pain/paresthesias of the lower extremities bilaterally. The DBQ reflected that the Veteran's left and right side radiculopathy was mild, with involvement of the right and left side sciatic nerves. Based on the evidence of record, the Board finds that the Veteran's right and left lower extremity radiculopathy symptomatology does not more nearly approximate at least moderately severe incomplete paralysis of the sciatic nerve to warrant a disability rating higher than 20 percent. The July 2012 examination report reflects radiculopathy symptomatology of moderate, constant pain, and mild paresthesias and/or dysesthesias, and the January 2015 examiner noted moderate numbness of the right and left lower extremities with no muscle atrophy, and normal muscle strength. The Veteran reported having no radicular pain in his September 2019 letter, and the November 2019 examiner reported symptoms he described primarily as mild or moderate. Thus, even with consideration of the Veteran's diminished Achilles reflex, and straight leg raise, the predominant nature of the Veteran's right and left lower extremity radiculopathy symptomatology does not more nearly approximate at least moderately severe incomplete paralysis. Therefore, an initial rating higher than 20 percent is not warranted for either right or left lower extremity radiculopathy. SMC VA has a duty to infer a claim for special monthly compensation when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). SMC pursuant to 38 U.S.C. § 1114 (s) is payable by law where the veteran has a single service connected disability rated as 100 percent, and has additional service connected disability or disabilities independently ratable at 60 percent. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). The Board notes that while the Veteran has been granted TDIU for the period from April 4, 2012 based on multiple service connected disabilities, he has been granted TDIU from April 9, 2015 based solely on his service connected anxiety disorder. For SMC purposes, a TDIU predicated on one service connected disability satisfies the requirement of a "single service connected disability rated as total." Bradley v. Peake, 22 Vet. App. 280, 293 (2008). In this case, as of April 9, 2015, the Veteran is also service connected for lumbar spine disability rated 40 percent disabling, left and right lower extremity radiculopathy each rated 40 percent disabling, and back strain syndrome, rated 20 percent disabling. Thus, he has additional service connected disabilities independently rated at 60 percent or higher. (Continued on the next page) In light of the foregoing, the criteria are met for entitlement to SMC under the provisions of 38 U.S.C. § 1114 (s) effective from April 9, 2015, but not earlier, as it is not until April 9, 2015 that the Veteran has a TDIU predicated solely on his service connected anxiety disorder, and separate service connected disabilities independently rated at 60 percent or higher. Thus, entitlement to SMC under the provisions of 38 U.S.C. § 1114 (s) is warranted as of April 9, 2015. Rachel Walker Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Maddox, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.