Citation Nr: 21068387 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 06-33 501 DATE: November 10, 2021 ORDER Entitlement to an initial 10 percent rating for right lower extremity radiculopathy prior to April 9, 2018, is granted. Entitlement to an initial 10 percent rating for left lower extremity radiculopathy prior to April 9, 2018, is granted. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy from April 9, 2018, is denied. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy from April 9, 2018, is denied. Entitlement to special monthly compensation based on need for aid and attendance is denied. FINDINGS OF FACT 1. The Veteran's low back disability has resulted in right lower extremity radiculopathy, which was mild in nature, from the time of his initial claim of service connection. 2. The Veteran's low back disability has resulted in left lower extremity radiculopathy, which was mild in nature, from the time of his initial claim of service connection. 3. For all periods on appeal, the Veteran's right lower extremity radiculopathy has been manifested by no greater than mild incomplete paralysis of the sciatic nerve. 4. For all periods on appeal, the Veteran's left lower extremity radiculopathy has been manifested by no greater than mild incomplete paralysis of the sciatic nerve 5. The Veteran's service-connected disabilities do not render him unable to dress or undress himself or to keep himself ordinarily clean and presentable; he does not require the use of prosthetic devices; he is not unable to feed himself through loss of coordination of upper extremities or through extreme weakness; he is able to attend to the wants of nature; and his disabilities do not require care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. CONCLUSIONS OF LAW 1. From the February 10, 2005, to April 9, 2018, the criteria for an additional disability rating of 10 percent for right lower extremity radiculopathy, as a neurological complication of his lumbar spine disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8520. 2. From the February 10, 2005, to April 9, 2018, the criteria for an additional disability rating of 10 percent for left lower extremity radiculopathy, as a neurological complication of his lumbar spine disability, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. From April 9, 2018, the criteria for a rating in excess of 10 percent for right lower extremity radiculopathy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. From April 9, 2018, the criteria for a rating in excess of 10 percent for left lower extremity radiculopathy, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. The criteria for a finding of need for aid and attendance 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 served on active duty from September 1980 to September 1983, and from January 2003 to February 2005. He has additional periods of confirmed active duty for training (ACDUTRA) in May and June 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2005 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection of a low back disability. Of note, during the pendency of this appeal, which has included multiple remands, to include an appeal to the United States Court of Appeals For Veterans Claims (Court), the Board granted a 40 percent rating for the Veteran's lumbar spine disorder, which the Veteran has not contested. That grant was issued in a June 2019 decision and remand issued by the Board. However, that decision also noted that ratings for the Veteran's bilateral radiculopathy of the lower extremities are part of the increased ratings claim for the low back, and remanded those issues for further development. Also noted in the June 2019 decision and remand issued by the Board, was a grant of special monthly compensation (SMC) based on housebound criteria being met, by virtue of development throughout this appeal, as granted in an April 2018 rating decision. The Veteran objected to the level of SMC granted, requesting that said compensation be granted based on need for aid and attendance. As SMC based on need for aid and attendance is a higher benefit than SMC granted based on housebound status, that issue was also included as part of the increased rating claim on appeal, and remanded for further development. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the Veteran's low back disability, and by relation his associated lower extremity radiculopathy, the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Further, "[w]here there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. It is noted that the Veteran's low back disability, is diagnosed as degenerative disc disease with degenerative joint disease and minbar strain myositis, and is rated under Diagnostic Code DC 5243, which compensates for spinal injuries which result in intervertebral disc syndrome (IVDS). Generally low back disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, or in the alternative, under the Rating Formula for IVDS Based on Incapacitating episodes. The General Formula instructs the rating party to evaluate any associated objective neurological abnormalities under an appropriate diagnostic code, when rating a spine disability. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (1). In light of this, the Veteran has been granted a 10 percent rating for each lower extremity based on the presence of radiculopathy, associated with his lumbar disability, effective April 9, 2018. As discussed above, the Board has already addressed the Veteran's rating for the back disability itself. Therefore, this leaves two questions before the Board: whether the Veteran is entitled to any separate rating for radiculopathy in either lower extremity prior to April 9, 2018; and whether the Veteran is entitled to a rating for either lower extremity in excess of 10 percent from April 9, 2018. The Veteran's right and left lower extremity is rated pursuant to DC 8520, which compensates for neurological disabilities associated with paralysis of the sciatic nerve. Under the applicable rating criteria, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. Moderate incomplete paralysis of the sciatic nerve is assigned a 20 percent rating. moderately severe incomplete paralysis of the sciatic nerve is assigned a 40 percent rating. Severe incomplete paralysis of the sciatic nerve, which is described as "with marked muscular atrophy," is assigned a 60 percent rating. Finally, complete paralysis of the sciatic nerve, described as "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost," is afforded an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520. Terms such as "mild," "moderate," and "severe" are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. 1. Entitlement to an initial 10 percent rating for right lower extremity radiculopathy prior to April 9, 2018 2. Entitlement to an initial 10 percent rating for left lower extremity radiculopathy prior to April 9, 2018 The Veteran has been granted ratings of 10 percent each for right and left lower extremity radiculopathy, effective April 9, 2018, as neurological residuals of his low back disability. The Board finds that a 10 percent minimum rating should be granted for each lower extremity for the entire period on appeal. As was noted in the prior remand, despite the Veteran being granted ratings for radiculopathy in April 2018, the evidence of record indicated that his neurological symptoms preexisted that date, and likely were present as early as 2004. As such, the Board remanded the issue of ratings for both lower extremity radiculopathies so that a medical opinion could be obtained which assessed the Veteran's complete medical history going back as far as an August 2004 nerve study, and to also include March 2011 radiological records, and August 2015 electrodiagnostic testing, and to determine the severity of the Veteran's lower extremity radiculopathy throughout the entire period on appeal, if it existed. Evidence in the record shows left lower extremity radiculopathy in August 2004. In June 2006, medical evidence suggests right and left lower extremity radiculopathy had been diagnosed. Additional records between the initial claim and April 2018 also confirm a diagnosis of radiculopathy of the lower extremities. It is noted that in the resulting December 2020 opinion, as was requested in the most recent Board remand, the examiner reviewed the entire records and did not find that radiculopathy was not present prior to April 2018. As such, the Board will grant an initial minimum rating of 10 percent for each lower extremity, from the date of service connection of the spine disability. The Board will address whether a rating in excess of 10 percent is warranted for any period on appeal, below. 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy 4. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy The Board has granted an initial minimum rating for both right and left lower extremity radiculopathy, which means the Veteran has been granted an additional rating of 10 percent each for right and left lower extremity radiculopathy for the entire period on appeal. The Board finds that ratings in excess of 10 percent for any period on appeal are not supported. The Veteran has been shown to have radiculopathy in both lower extremities as early as 2004. In June 2004 he was noted to have left lower extremity radicular symptoms, although his sensory and motor systems were generally normal. In June 2005, a VA examination found all sensory functions to be intact with normal strength and reflexes, and no evidence of atrophy. Tone and strength were 5/5 proximally and distally in both lower extremities. In March 2011, he was noted to have lower extremity radiculopathy, as a complaint, although following an examination he was diagnosed with left lower extremity root irritability at L4, and right lower extremity root irritability at S1. Although diagnostic testing was completed on the upper extremities, no such testing was done in the lower extremities. In April 2018, his diagnosis of radiculopathy was confirmed in both lower extremities. Constant pain was not present. Intermittent pain (usually dull) was mild in both lower extremities. He also showed mild paresthesias and/or dysesthesias, as well as numbness in both lower extremities. The examiner reviewed the Veteran's symptoms as a whole, concluded they were sciatic in nature, and opined that the general effect in both lower extremities was mild. In December 2020, a new VA examination was conducted, which generally showed complete and normal strength in all planes of movement with the exception of great toe extension, bilaterally, which still showed active movement against some resistance. There was no evidence of muscle atrophy. Knee and ankle reflexes were normal. He had some decreased (but not absent) sensation in the lower leg/ankle of both extremities, but normal upper extremity sensation. Constant pain, paresthesias and/or dysesthesias, and numbness were all mild bilaterally, although the Veteran reported severe intermittent dull pain bilaterally. No other radicular symptoms were identified, and the examiner opined that, based on the Veteran's condition as a whole, his radicular symptoms were generally mild, bilaterally. In a separate opinion by the 2020 VA examiner, the examiner again stated that the bilateral lower extremity radiculopathy was mild in nature. In support of this, the examiner noted that, although he endorses pain, paresthesia, and numbness in both lower extremities, he can ambulate without assistance, uses a cane only occasionally, there is no history of other indicators of severe sciatic involvement such as sphincter control, and the examination showed mild weakness of the distal legs/feet, and mild decrease sensation to light touch at the lower legs and feet. He has no atrophy and his straight leg test was negative. In light of this, the Board finds that a rating of 10 percent is the maximum rating supported for any period on appeal. The Veteran's radiculopathy is wholly sensory in nature and does not generally interfere with his ability to use his lower extremities. Although he does report "severe" intermittent pain, that pain is described as generally dull in nature, and is only intermittent. It is not constant and there is no indication that it greatly affects the Veteran's use of either lower extremity. All other symptoms are described by the Veteran as mild in nature. Taken as a whole, and considering the Veteran's own reports of severity of his condition, the Board agrees with the 2018 and 2020 VA examiners that for the entire period on appeal, the Veteran's right and left lower extremity radiculopathy is mild and nature, and a 10 percent rating for each extremity is the maximum rating supported by the evidence of record. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Special Monthly Compensation VA disability compensation provides monthly benefits to Veterans in recognition of the effects of disabilities, diseases, or injuries incurred or aggravated during active military service. Special monthly compensation (SMC) is an additional benefit paid to the Veteran if certain criteria are met. SMC at the housebound rate under subsection (s) is awarded where the Veteran has a service-connected disability rated as total and (1) has additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is permanently housebound due to such service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(h)(3)(i). The Veteran in this matter is already in receipt of SMC at the housebound rate. A higher rate of SMC is payable, as relevant, if a veteran, as the result of a service-connected disability, is with such significant disabilities as to be in need of regular aid and attendance. The following factors will be accorded consideration in determining whether a veteran is in need of regular aid and attendance: (1) inability of the veteran to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) inability of the veteran to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or (5) incapacity, physical or mental, which requires care or assistance on a regular basis to protect the veteran 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 disabling conditions enumerated above be found to exist before a favorable rating may be made. "It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need." Id. 5. Entitlement to special monthly compensation based on need for Aid and Attendance The Veteran is presently service connected for major depressive disorder, a lumbar spine disorder, a cervical spine disorder, residuals of a right knee arthroscopy, and right and left lower extremity peripheral neuropathy. In support of his claim, the Veteran submitted an August 2020 private evaluation. The Veteran presented as well developed and well nourished. His primary disability included pain and limitation of motion due to his spine disability, particularly with bending and stooping. The examiner also found memory loss was an issue due to his depressive disorder. The examiner stated he could not prepare his own meals and needed assistance with general hygiene, because he could not engage in movements such as bending, squatting and kneeling, and also due to depression (although the examiner did not address how depression affected cooking or his hygiene). He was able to feed himself. He required reminding about doctors' appointments. In December 2020, a VA aid and attendance examination was conducted. The examiner noted all service-connected disabilities, particularly that the Veteran had asserted worsening in his low back which had made it difficult to walk long distances, bend the back normally, lift objects from the ground, or drive for long distances. He was not restricted to his home or its immediate vicinity. He was not hospitalized, and did not require an attendant in reporting to the examination. He arrived in a private vehicle driven by his wife. He was not permanently bedridden. He did not require the use of a prosthetic appliance. He had no complaints of dizziness or memory loss. He did note some balance issues over the prior few years. On a typical day, the Veteran stated that he mostly stays home, helping with house chores, tending to the garden, or watching TV. He denied being able to engage in any forms of self-care. Upon examination, he had not functional restrictions in the upper extremities. In the lower extremities, he had some weakness in his great toe, but otherwise all other possible deficits were absent. His lumbar spine motion was limited. The examiner noted that the Veteran walked into the appointment place without assistance and his gait was observed as within normal limits. Per the Veteran, he was able to walk 100 meters without assistance of another person, and he occasionally used a cane to ambulate. He reported being able to leave his home on a daily basis, to walk to a neighboring area or to get into a private vehicle. His vision was better than 5/200 in both eyes. During the evaluation, he was oriented to person, place, and time; could count and perform basic arithmetic functions; could read and understand the interviewer. He showed no significant deterioration of cognitive function in the examination. The examiner then opined that the Veteran's disabilities did not cause him to need regular aid in attendance. In support of this opinion, the examiner stated that the Veteran personally endorsed being able to perform his activities of daily living without assistance of another person. He is able to feed, perform personal hygiene, dress, use the bathroom without help, and ambulate on his own. The Board finds the VA examination report to be more probative of the Veteran's need for aid and attendance than the private report. Particularly, the VA examination was based upon actual observations of the Veteran, as well as statements made by the Veteran regarding his physical and mental abilities. Although he certainly is affected by his service-connected disabilities, there is no indication that he is incapable of carrying out the basic activities of daily living. There is some indication that his spine movement is limited, and he is unable to bend over, stoop or kneel. However, he walked into his most recent examination with a generally normal gait, asserted that he could walk up to 100 meters (328 feet) without assistance, was able to feed himself and engage in basic hygiene practices, and did not show any major cognitive defects such that he would be limited in his ability for self-care. While the private examiner did find him incapable, those statements were generally limited to several specific movements, and did not provide detail as to how his disabilities limited his functional abilities. As such, the Board finds the 2020 VA examination and opinion persuasive in this matter. In sum, the Veteran's service-connected disabilities do not render him unable to dress or undress himself or to keep himself ordinarily clean and presentable; he does not require the use of prosthetic devices; he is not unable to feed himself through loss of coordination of upper extremities or through extreme weakness; he is able to attend to the wants of nature; and his disabilities do not require care or assistance on a regular basis to protect the veteran from hazards or dangers incident to his daily environment. As such, a finding of need for aid and attendance is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Saudiee Brown Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, 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.