Citation Nr: 21075083 Decision Date: 12/17/21 Archive Date: 12/17/21 DOCKET NO. 17-46 633 DATE: December 17, 2021 ORDER A reduction in evaluation from 60 percent to 20 percent for lumbar degenerative disc disease with intervertebral disc syndrome (IVDS) on April 1, 2016 was proper, and the appeal to restore the higher rating is denied. An evaluation of 40 percent, but not in excess thereof, for lumbar degenerative disc disease with IVDS from April 1, 2016 is granted. An initial evaluation in excess of 20 percent for radiculopathy affecting the left femoral nerve is denied. An effective date earlier than November 25, 2011 for an award of service connection for radiculopathy affecting the left femoral nerve is denied. Service connection for bowel incontinence as secondary to a lumbar spine disability with radiculopathy is denied. Service connection for urinary incontinence as secondary to a lumbar spine disability with radiculopathy is denied. Service connection for bed sores as secondary to a lumbar spine disability with radiculopathy and a left shoulder disability is denied. Service connection for erectile dysfunction is denied. New and material evidence has been received, and the appeal for entitlement to service connection for a gastrointestinal disability, to include gastritis and constipation, is reopened. Service connection for a gastrointestinal disability, to include gastritis and constipation, is denied. New and material evidence has not been received, and the appeal to reopen a claim of service connection for hypertension is denied. Special monthly compensation (SMC) based on loss of use is denied. A grant for an automobile or other conveyance and adaptive equipment or for adaptive equipment only is denied. An aid and attendance allowance for the Veteran's spouse is denied. FINDINGS OF FACT 1. To the extent that a prior finding of incapacitating episodes was not clearly and unmistakably erroneous, a September 2015 VA examination found that the Veteran's lumbar degenerative disc disease with IVDS had improved. 2. From April 1, 2016, the Veteran's lumbar degenerative disc disease with IVDS was productive of the functional equivalent of forward flexion limited to 30 degrees or less but was not productive of unfavorable ankylosis or incapacitating episodes. 3. The Veteran's radiculopathy affecting the left femoral nerve is not productive of complete paralysis or severe incomplete paralysis. 4. VA did not receive any communication indicating an intent to apply for service connection for a lumbar spine disability or associated radiculopathy prior to November 25, 2011. 5. The Veteran's bowel incontinence is not related to his lumbar spine disability or otherwise related to service. 6. The Veteran's urinary incontinence is not related to his lumbar spine disability or otherwise related to service. 7. The Veteran's bed sores are not related to his lumbar spine disability or otherwise related to service. 8. The Veteran's erectile dysfunction is not related to a service-connected disability or otherwise related to service. 9. Evidence received since a June 2013 final rating decision relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating a claim of service connection for a gastrointestinal disability. 10. A gastrointestinal disability is not related to a service-connected disability or otherwise related to service. 11. Evidence received since a June 2013 final rating decision is essentially cumulative to evidence previously of record with regard to the basis of the prior denial of service connection for hypertension. 12. The Veteran's service-connected disabilities have not caused loss of use in any of his extremities. 13. The Veteran's service-connected disabilities have not resulted in loss or permanent loss of use of one or both hands or feet, permanent impairment of vision of both eyes, a severe burn injury, ALS, or ankylosis of one or both knees or hips. 14. The Veteran's spouse is not so helpless as to be in regular need of aid and attendance. CONCLUSIONS OF LAW 1. The reduction in evaluation from 60 percent to 20 percent for lumbar degenerative disc disease with IVDS on April 1, 2016 was proper. 38 U.S.C. §§ 1155 (2018); 38 C.F.R. §§ 3.344(c), 4.1, 4.71a, Diagnostic Code 5242 (2020). 2. The criteria for an evaluation of 40 percent, but not in excess thereof, for lumbar degenerative disc disease with IVDS from April 1, 2016 are met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.71a, Diagnostic Code 5242 (2020). 3. The criteria for an evaluation in excess of 20 percent for radiculopathy affecting the left femoral nerve are not met. 38 U.S.C. § 1155 (2018); 38 C.F.R. § 4.124a, Diagnostic Code 8526 (2020). 4. The criteria for an effective date earlier than November 25, 2011 for an award of service connection for radiculopathy affecting the left femoral nerve are not met. 38 U.S.C. § 5110 (2018); 38 C.F.R. § 3.400 (2020). 5. The criteria for service connection for bowel incontinence as secondary to a lumbar spine disability with radiculopathy are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 6. The criteria for service connection for urinary incontinence as secondary to a lumbar spine disability with radiculopathy are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 7. The criteria for service connection for bed sores as secondary to a lumbar spine disability with radiculopathy and a left shoulder disability are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 8. The criteria for service connection for erectile dysfunction are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 9. Evidence received since a June 2013 final rating decision is new and material; therefore, the Veteran's claim of entitlement to service connection for a gastrointestinal disability, to include gastritis and constipation, is reopened. 38 U.S.C. §§ 5108, 7105(c) (2018); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). 10. The criteria for service connection for a gastrointestinal disability, to include gastritis and constipation, are not met. 38 U.S.C. §§ 1101, 1110, 5107 (2018); 38 C.F.R. §§ 3.102, 3.303, 3.310 (2020). 11. Evidence received since a June 2013 final rating decision is not new and material, and reopening of the Veteran's claim of entitlement to service connection for hypertension is not warranted. 38 U.S.C. §§ 5108, 7105(c) (2018); 38 C.F.R. §§ 3.156(a), 20.1103 (2020). 12. The criteria for SMC based on loss of use are not met. 38 U.S.C. §§ 1114(k), 5107 (2018); 38 C.F.R. §§ 3.350(a) (2020). 13. The criteria for a grant for an automobile and adaptive equipment or adaptive equipment only are not met. 38 U.S.C. §§ 3901, 3902, 5107 (2018); 38 C.F.R. §§ 3.102, 3.808 (2020). 14. The criteria for an aid and attendance allowance for the Veteran's spouse are not met. 38 U.S.C. § 1115 (2018); 38 C.F.R. §§ 3.351, 3.352 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1971 to May 1974. This appeal is before the Board of Veterans' Appeals (Board) from September 2015, April 2016, October 2017, and May 2018 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In April 2019 decided 10 issues and remanded the abovementioned issues. All issues except the appeal for an increased rating for a lumbar spine disability were remanded with instruction to provide a statement of the case under Manlincon v. West, 12 Vet. App. 238 (1999), and the lumbar spine increased rating was remanded as intertwined. Statements of the case were issued in November 2019 and May 2020, and a supplemental statement of the case regarding the lumbar spine rating was issued in July 2020. The Board is therefore satisfied that the instructions in its April 2019 remand have been satisfactorily complied with. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Whether a reduction in evaluation from 60 percent to 20 percent for lumbar degenerative disc disease with IVDS on April 1, 2016 was proper The Veteran disputes his reduction in rating from 60 percent to 20 percent for his lumbar spine disability. Generally, a disability rating will not be reduced unless an improvement in the disability is shown to have occurred. See 38 U.S.C. § 1155. When an RO makes a rating reduction without following the applicable regulations, the reduction is void ab initio. Greyzck v. West, 12 Vet. App. 288, 292 (1999). For ratings in effect for less than five years, adequate reexamination that discloses improvement in the disability warrants reduction in rating. See 38 C.F.R. § 3.344(c). In considering the propriety of a reduction, the Board must focus on the evidence available to the RO at the time the reduction was effectuated, although post-reduction evidence may be considered to determine whether the condition had demonstrated actual improvement. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). A 60 percent evaluation for lumbar degenerative disc disease with IVDS was originally assigned in a June 2013 rating decision. The rationale for this assignment was not explained in the rating decision or the notification sent to the Veteran, but it was presumably based on the findings in the May 2013 VA examination report, in which the examiner found that the Veteran had experienced at least 6 weeks of incapacitating episodes over the prior 12 months. The Veteran underwent a VA examination in September 2015. Among other findings, discussed in more detail below, the examiner found that the Veteran had no incapacitating episodes requiring bed rest over the prior 12 months. In the April 2016 rating decision on appeal, VA reduced the Veteran's rating from 60 percent to 20 percent effective April 1, 2016. This reduction was based on a finding that the June 2013 rating decision contained clear and unmistakable error (CUE) in that there was no evidence of incapacitating episodes with physician-prescribed bed rest and that a 60 percent rating based on IVDS episodes may not be assigned concurrently with a 40 percent rating based on sciatic radiculopathy in the left lower extremity. Neither the Veteran nor his representative have explained why he believes that the reduction in his lumbar spine rating was improper. The April 2016 rating decision states that the June 2013 rating decision's finding of incapacitating episodes was clearly and unmistakably erroneous. If this finding of CUE is correct, the reduction was proper. Alternatively, if there was no CUE then the September 2015 VA examination adequately showed improvement in its finding that there were no incapacitating episodes in the prior year. There is no evidence in the record to contradict this finding of improvement. Because the reduction in the Veteran's rating did not result in any reduction or discontinuance of compensation, the procedural requirements of 38 C.F.R. § 3.105(e) are inapplicable. For these reasons, the Board finds that the reduction in rating was proper, and restoration of a 60 percent rating is denied. 2. Entitlement to an evaluation in excess of 20 percent for lumbar degenerative disc disease with IVDS from April 1, 2016 3. Entitlement to an initial evaluation in excess of 20 percent for radiculopathy affecting the left femoral nerve The Veteran claims increased ratings for his lumbar spine disability and associated radiculopathy of the left femoral nerve. A rating in excess of 60 percent prior to April 1, 2016 for a lumber spine disability and a rating in excess of 40 percent for radiculopathy affecting the left sciatic nerve were denied in the Board's April 2019 decision. Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. Consideration must also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria."). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the claimant will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. With respect to disabilities of the lumbar spine, the February 2021 changes limited the circumstances under which a code for IVDS could be assigned and limited alternative criteria to degenerative or traumatic arthritis. The Board finds that there is no scenario under which the amended criteria could be more favorable to the Veteran, and as such will analyze his appeal under the criteria in effect prior to February 7, 2021. The Veteran is currently in receipt of a 20 percent disability rating for his lumbar spine disability under 38 C.F.R. § 4.71a, Diagnostic Code 5242, degenerative arthritis of the spine. This disability is evaluated either upon application of the General Rating Formula for Diseases and Injuries of the Spine ("General Formula"), or under the Formula for Rating IVDS Based on Incapacitating Episodes ("IVDS Formula"), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. See VBA Training Letter 02-04 (October 24, 2002). Under the General Formula, a 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or 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. The next higher rating of 40 percent is assignable for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Also, under the General Formula, any associated objective neurologic abnormalities are to be evaluated separately under an appropriate diagnostic code. The Veteran is currently in receipt of two ratings for radiculopathy of the left lower extremity. The Veteran's radiculopathy affecting the left femoral nerve is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under this code, his current evaluation of 20 percent is warranted for moderate incomplete paralysis, an evaluation of 30 percent is warranted for severe incomplete paralysis, and an evaluation of 40 percent is warranted for complete paralysis. Complete paralysis of the femoral nerve causes paralysis of the quadriceps extensor muscles. The Veteran's radiculopathy affecting the left sciatic nerve is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. In its April 2019 decision, the Board denied an evaluation in excess of 40 percent, and this rating is thus beyond the scope of this decision. The criteria are provided to differentiate from radiculopathy affecting the femoral nerve. Under this code, his current evaluation of 40 percent is warranted for moderately severe incomplete paralysis, an evaluation of 60 percent is warranted for severe incomplete paralysis with marked muscular atrophy, and an evaluation of 80 percent is warranted for complete paralysis. Complete paralysis of the sciatic nerve causes the foot to dangle and drop, with no active movement possible of the muscles below the knee, and with flexion of the knee weakened or (very rarely) lost. In rating the peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree Under the IVDS Formula, ratings are based on evidence of incapacitating episodes, defined as periods of acute signs and symptoms that require bed rest prescribed by a physician and treatment by a physician. A 10 percent is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. The maximum rating of 60 percent is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. The Veteran underwent a VA examination in May 2013. He reported flare-ups consisting of pain, stiffness, and weakness during which he could not walk or dress himself. Forward flexion was limited to 75 degrees with pain thereat. Extension was limited to 5 degrees with pain thereat. Lateral flexion and lateral rotation were limited to 10 degrees with pain thereat in both directions. He was unable to be tested for repetitive use due to left-sided hemiplegia. The examiner noted functional loss with contributing factors of less movement than normal, pain on movement, instability of station, disturbance of locomotion, and interference with sitting, standing, or weight bearing. There was objective evidence of tenderness to palpation and muscle spasm or guarding resulting in abnormal gait. Muscle strength was 1/5 on the left side without atrophy. Reflexes were hypoactive on the left. Sensory examination was normal. He reported moderate numbness, paresthesia, and constant and intermittent pain in the left lower extremity. He was diagnosed with lumbar degenerative disc disease with IVDS and radiculopathy in the left lower extremity affecting the sciatic and femoral nerves. The examiner noted IVDS was at least six weeks of incapacitating episodes over the prior year. Despite explicitly noting the absence of any radiculopathy symptoms in the right lower extremity, the examiner diagnosed severe radiculopathy in both lower extremities. The Veteran's lumbar spine rating effective April 2016 is based on a VA examination he underwent in September 2015. He reported intermittent lower back pain with prolonged sitting. He denied flare-ups or functional loss. Ranges of motion were unable to be measured as he was confined to a wheelchair and immobilized due to his history of stroke. The examiner was unable to estimate ranges of motion with repeated use over time because the Veteran's stroke had left him fully immobilized all the time. He reported mild numbness in the left lower extremity. There was no ankylosis. He was diagnosed with a lumbosacral strain with IVDS and mild left lower extremity radiculopathy. The examiner was unable to determine which nerve was affected. VA treatment records reflect that in April 2018 the Veteran presented to the emergency room reporting sudden onset of left lower extremity pain originating in his thigh and radiating downward. He denied trauma. A Doppler study ruled out deep vein thrombosis, and he was prescribed medication and discharged with a diagnosis of left lower extremity pain. The Board finds that a 40 percent rating is warranted for the Veteran's lumbar spine disability for the period beginning April 1, 2016. As discussed above, the September 2015 VA examiner was unable to measure the Veteran's ranges of motion due to immobility related to non-service-connected disabilities. The April 2016 rating decision which assigned his current 20 percent rating referred to a combined range of motion not greater than 120 degrees, presumably that measured at a prior May 2013 VA examination. The Board finds this examination inadequate to measure the Veteran's range of motion, in that it failed to test repetitive motion or to estimate ranges of motion during flare-ups or after repeated use over time under Sharp v. Shulkin, 29 Vet. App. 26, 35-36 (2017). Furthermore, these ranges of motion were now measured more than eight years ago. As examination has proven difficult in the Veteran's current condition, the Board finds that remand is less than ideal. As such, affording all benefit of the doubt to the Veteran, the Board finds that his lumbar spine disability is productive of the functional equivalent of forward flexion limited to 30 degrees or less. A 40 percent rating is therefore warranted from April 1, 2016. The Board further finds that an evaluation in excess of 40 percent is not warranted for the Veteran's lumbar spine disability from April 1, 2016. Higher or alternative ratings are available for unfavorable ankylosis or incapacitating episodes. The evidence weighs against such symptoms. There is no evidence in the record of unfavorable ankylosis, and while the Veteran is often bedridden, there is no evidence that he is ever prescribed bed rest to treat his back pain during this period. Moreover, a rating under the IVDS formula would replace his rating for his lumbar spine disability along with his radiculopathy ratings, and as such he is unable to receive a higher rating due to incapacitating episodes. For these reasons, the Board finds that an evaluation in excess of 40 percent is not warranted for the Veteran's lumbar spine disability from April 1, 2016. Finally, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's radiculopathy affecting his left femoral nerve. Higher ratings are available for the equivalent of severe incomplete paralysis or complete paralysis of the femoral nerve. The evidence weighs against such severity. The September 2015 VA examination shows mild radiculopathy of the left lower extremity. While the May 2013 examiner diagnosed severe radiculopathy, the Board finds this diagnosis less probative as it contradicts the evidence presented in the examination report. The symptoms noted in the examination were moderate, and the examiner inexplicably noted severe radiculopathy in the right lower extremity as well despite a complete lack of symptoms. Furthermore, the May 2013 examiner failed to explain to what extent the lack of muscle strength was due to radiculopathy as opposed to his non-service-connected stroke. The bulk of the evidence does not show radiculopathy symptoms beyond the sensory, and as such a severe rating is not indicated under the criteria. For these reasons, the Board finds that an evaluation in excess of 20 percent is not warranted for the Veteran's radiculopathy affecting his left femoral nerve. 4. Entitlement to an effective date earlier than November 25, 2011 for an award of service connection for radiculopathy affecting the left femoral nerve The Veteran claims an earlier effective date for his award of service connection for radiculopathy affecting his left femoral nerve. Generally, the effective date of an award of a service connection claim, including a claim reopened after a final disallowance, is the date of receipt of a claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. Under regulations applicable prior to March 24, 2015, any communication or action indicating an intent to apply for one or more benefits under the laws administered by VA from a claimant may be considered an informal claim. An informal claim must identify the benefit sought. 38 C.F.R. § 3.155(a) (2014). The April 2016 rating decision on appeal assigned a 20 percent rating for radiculopathy affecting the left femoral nerve effective November 25, 2011, the date that VA received the Veteran's claim of service connection for his lumbar spine disability. There is no record of any communication prior to that date that could be construed as a claim for service connection for either a lumbar spine disability or its associated radiculopathy. Neither the Veteran nor his representative have explained why they believe an earlier effective date is warranted, and the Board is unable to discern any basis for this appeal. For these reasons, the Board finds that the Veteran did not claim service connection for a lumbar spine disability or its associated radiculopathy prior to November 25, 2011, and an earlier effective date is therefore denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection requires: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498 (1995). Service connection may also be granted for any disease diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection is also warranted for a disability which is proximately due to or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Such secondary service connection is warranted for any increase in severity of a nonservice-connected disability that is proximately due to or the result of a service-connected disability. 38 C.F.R. § 3.310(b). For certain chronic diseases, such as hypertension, a presumption of service connection arises if the disease is manifested to a degree of 10 percent within one year following discharge from service. 38 C.F.R. §§ 3.307(a)(3), 3.309(a). When a chronic disease is not shown to have manifested to a compensable degree within one year after service, under 38 C.F.R. § 3.303(b) for the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. When the fact of chronicity in service is not adequately supported, a showing of continuity after discharge is required to support a claim for such diseases; however, such continuity of symptomatology may only support a claim for those chronic diseases listed under 38 C.F.R. § 3.309(a). 38 C.F.R. § 3.303(b); see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. VA may reopen a claim that has been previously denied if new and material evidence is submitted by or on behalf of a veteran. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). "New" evidence is evidence not previously submitted to agency decision makers and "material" evidence is 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 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). In determining whether the evidence presented or secured since the prior final disallowance of the claim is new and material, the credibility of the evidence is generally presumed. Cox v. Brown, 5 Vet. App. 95, 98 (1993); Justus v. Principi, 3 Vet. App. 510, 513 (1992). In Shade v. Shinseki, 24 Vet. App. 100 (2010), the United States Court of Appeals for Veterans Claims (Court) held that § 3.159(c)(4) does not require new and material evidence as to each previously unproven element of a claim for the claim to be reopened and the duty to provide an examination triggered. In a fact pattern where a prior denial was based on lack of current disability and nexus, the Court found that newly submitted evidence of a current disability was, in concert with evidence already of record establishing an injury in service, new and material and sufficient to reopen the claim and obtain an examination. Regardless of any RO determinations that new and material evidence has been submitted to reopen service connection, the Board must still determine whether new and material evidence has been submitted in this matter. Jackson v. Principi, 265 F.3d 1366, 1369 (Fed. Cir. 2001). 5. Entitlement to service connection for bowel incontinence as secondary to a lumbar spine disability with radiculopathy 6. Entitlement to service connection for urinary incontinence as secondary to a lumbar spine disability with radiculopathy The Veteran claims service connection for bowel and urinary incontinence due to his lumbar spine disability. Service treatment records do not reflect any symptoms of or treatment for bowel or urinary incontinence, and the Veteran does not claim that either disability arose in service. VA treatment records reflect that the Veteran was given nursing home care from March 1985 to July 1985 for aftereffects of a 1980 ruptured cerebral aneurysm and subsequent seizure disorder. He was noted to be on medication for urinary tract symptoms. In July 2003 he reported urinary urgency and incontinence to his neurologist. He was referred to a urology nurse practitioner who considered neurogenic bladder due to diabetes. He denied fecal incontinence. He continued regularly report urinary incontinence. In January 2009, he reported that his incontinence began after his stroke. In February 2009 his urologist diagnosed possible neurogenic bladder. He reported worsening incontinence in January 2012 and again in January 2013. He underwent diagnostic testing. The Veteran underwent a VA examination for his lumbar spine disability in May 2013. The examiner noted bowel and bladder incontinence but explained that they were attributable to his history of stroke. VA treatment records reflect that in September 2013 the Veteran was diagnosed with urinary incontinence probably secondary to his stroke. In April 2015 his treating physician diagnosed urinary incontinence most likely secondary to diabetic neuropathy. In November 2016 he was noted to have urinary incontinence since his stroke in 1980. Subsequent treatment records attribute his urinary incontinence and neurogenic bladder to his stroke or his diabetes. The Veteran underwent a VA examination in April 2018. He was diagnosed with urinary and fecal incontinence since his stroke with flaccid hemiplegia. The examiner opined that the incontinency was less likely than not related to his lumbar spine or left shoulder disabilities. This opinion was based on the rationale that both urinary and fecal incontinency were caused by his stroke, and his lumbar spine and left shoulder disabilities would not cause this. In a November 2019 addendum, the examiner clarified that his incontinence was also less likely than not aggravated by his lumbar spine or left shoulder disabilities based on the same rationale. The Board finds that the evidence weighs against a finding that the Veteran's urinary and bowel incontinence are related to his lumbar spine disability or are otherwise related to service. The April 2018 VA examiner gave a probative opinion explaining that the Veteran's incontinence is due to his stroke, not his lumbar spine disability, and in November 2019 explained that there was no aggravation by the lumbar spine disability. The only contradicting evidence in the record is his physicians' suspicion that his urinary incontinence is related to his non-service-connected diabetes mellitus. While the Veteran may believe that his incontinence is related to his lumbar spine disability, he is not competent to offer such an opinion, and he has not explained any basis for it. There is no competent evidence of such a relationship. Furthermore, there is no evidence or indication that his incontinence is directly related to service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's urinary and bowel incontinence are related to his lumbar spine disability or are otherwise related to service, and service connection is therefore denied. 7. Entitlement to service connection for bed sores as secondary to a lumbar spine disability with radiculopathy and a left shoulder disability The Veteran claims service connection for bed sored caused by his lumbar spine and left shoulder disabilities. Service treatment records do not reflect any symptoms of or treatment for bed sores, and the Veteran does not claim that the disability arose in service. VA treatment records reflect that in March 2018 the Veteran's physical therapist consulted with his nurse regarding a skin condition on his buttocks. The nurse stated that he did not have any pressure sores but had a red skin rash being treated with cream. The Veteran underwent a VA examination in April 2018. The examiner spoke to his treating nurse in the geriatric unit. He had a healed stage-2 coccyx ulcer and no other bed sores or healed bed sores. The nurse explained that he had a major stroke with flaccid paralysis and could not walk at all. The examiner opined that the healed ulcer was less likely than not related to his lumbar spine disability or left shoulder disability. This opinion was based on the rationale that his stroke with flaccid hemiplegia is the cause of his ulcer because it prevented him from walking or standing, causing him to lie in bed most of the time. The examiner explained that his lumbar spine disability and left shoulder disability would not cause a coccyx ulcer. In a November 2019 addendum, the examiner clarified that his bed sores were also less likely than not aggravated by his lumbar spine or left shoulder disabilities based on the same rationale. The Board finds that the evidence weighs against a finding that the Veteran's bed sores are related to his lumbar spine or left shoulder disabilities or are otherwise related to service. The April 2018 VA examiner gave a probative opinion explaining that the Veteran's bed sore was due to his stroke, not his lumbar spine or left shoulder disabilities, and in November 2019 explained that there was no aggravation by the lumbar spine or left shoulder disabilities. While the Veteran may believe that his bed sore was related to his lumbar spine and shoulder disabilities, as discussed above the evidence indicates that he was not prescribed bed rest for low back pain but was instead rendered immobile by his history of stroke, and it is unclear how his left shoulder disability would confine him to his bed. Furthermore, there is no evidence or indication that bed sores are directly related to service. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's bed sores are related to his lumbar spine or left shoulder disabilities or are otherwise related to service, and service connection is therefore denied. 8. Entitlement to service connection for erectile dysfunction The Veteran claims service connection for erectile dysfunction. Service treatment records do not reflect any symptoms of or treatment for erectile dysfunction, and no such abnormality was noted at the Veteran's April 1974 separation examination. VA treatment records reflect that in January 2004 the Veteran reported poor sexual function and asked for Viagra. His physician informed him that Viagra was contraindicated. In his November 2015 claim, the Veteran reported erectile dysfunction. He claimed direct service connection, secondary to a mental disability, secondary to medication prescribed for a service-connected disability, or secondary to diabetes mellitus. In April 2020, VA obtained a series of medical opinions regarding the Veteran's erectile dysfunction. The examiner opined that erectile dysfunction was less likely than not caused or aggravated by bronchitis, a left shoulder disability, a lumbar spine disability, radiculopathy, a left ankle fracture, a left ankle scar, tinnitus, or the medications used to treat such disabilities. These opinions were based on the rationale that there was no plausible relationship between erectile dysfunction and any of his service-connected disabilities, and a thorough review of medical literature failed to demonstrate a relationship. The examiner further noted that the Veteran had a medical history of hypertension, diabetes mellitus, obesity, and hyperlipidemia, all of which are medically recognized causes of erectile dysfunction. Finally, the examiner stated that while erectile dysfunction has been linked to certain prescription medications, there is no evidence to link it to the nonsteroidal anti-inflammatory drugs (NSAIDs) or narcotics prescribed to the Veteran. The Board finds that the evidence weighs against a finding that the Veteran's erectile dysfunction is related to a service-connected disability or is otherwise related to service. He has stated that he claims that erectile dysfunction is secondary to a service-connected disability, but he has not identified which disability he believes is causing or aggravating it. The only disabilities he identifies by name a mental health disability and diabetes mellitus are not service connected. Similarly, he states that it is caused by a medication treating a service-connected disability but has identified no such medication. In April 2020, VA obtained a series of opinions explaining that there is no medical basis for a relationship between erectile dysfunction and any of the Veteran's service-connected disabilities or their associated medications. There is no evidence in the record to contradict these opinions. Furthermore, there is no record of erectile dysfunction in service. The Veteran stated he claims direct service connection but has offered no evidence of such. He has not stated that erectile dysfunction began in service or identified a related in-service event, disease, or injury. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's erectile dysfunction is related to a service-connected disability or is otherwise related to service, and service connection is therefore denied. 9. Whether new and material evidence has been received to reopen a claim of service connection for a gastrointestinal disability, to include gastritis and constipation 10. Entitlement to service connection for a gastrointestinal disability, to include gastritis and constipation The Veteran seeks to reopen his claim of service connection for a gastrointestinal disability. Service connection for gastritis was originally denied in a June 2013 rating decision based on a finding that the evidence did not show a current disability or any event, disease, or injury in service. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period, and it therefore became final. In his November 2015 claim to reopen, the Veteran reported constipation. He claimed direct service connection, secondary to a mental disability, or secondary to medication prescribed for a service-connected disability. The Board finds that the Veteran's November 2015 report of constipation constitutes new and material evidence. The evidence relates to an unestablished fact, is not cumulative or redundant of the evidence previously of record, and is sufficient to raise a reasonable possibility of substantiating the claim. The Veteran's claim is therefore reopened and will be adjudicated on the merits. Service treatment records do not reflect any symptoms of or treatment for a gastrointestinal disability, and no such abnormality was noted at the Veteran's April 1974 separation examination, and in the accompanying report of medical history he explicitly denied having ever experienced stomach or intestinal trouble. In April 2020, VA obtained a series of medical opinions regarding the Veteran's gastritis. The examiner opined that gastritis was less likely than not caused or aggravated by bronchitis, a left shoulder disability, a lumbar spine disability, radiculopathy, a left ankle fracture, a left ankle scar, tinnitus, or the medications used to treat such disabilities. These opinions were based on the rationale that there was no plausible relationship between gastritis and any of his service-connected disabilities, and a thorough review of medical literature failed to demonstrate a relationship. Finally, the examiner stated that there was no established relationship between gastritis and the medications used to treat his service-connected disabilities. The Board finds that the evidence weighs against a finding that the Veteran's gastrointestinal disability is related to a service-connected disability or is otherwise related to service. He has stated that he claims that his gastrointestinal disability is secondary to a service-connected disability, but he has not identified which disability he believes is causing or aggravating it. The only disability he identifies by name a mental health disability is not service connected. Similarly, he states that it is caused by a medication treating a service-connected disability but has identified no such medication. In April 2020, VA obtained a series of opinions explaining that there is no medical basis for a relationship between a gastrointestinal disability and any of the Veteran's service-connected disabilities or their associated medications. There is no evidence in the record to contradict these opinions. Furthermore, there is no record of a gastrointestinal disability in service. The Veteran stated he claims direct service connection but has offered no evidence of such. He has not stated that a gastrointestinal disability began in service or identified a related in-service event, disease, or injury. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's gastrointestinal disability is related to a service-connected disability or is otherwise related to service, and service connection is therefore denied. 11. Whether new and material evidence has been received to reopen a claim of service connection for hypertension The Veteran seeks to reopen his claim of service connection for hypertension. Service connection for hypertension was originally denied in a November 2005 rating decision based on a finding of no relationship between current hypertension and service and no diagnosis of hypertension within one year of separation from service. Service connection was again denied in a June 2013 rating decision based on a finding that the evidence did not show an in-service event, disease, or injury and did not show a relationship to service or manifestation within one year of separation from service. The Veteran neither appealed this decision nor submitted new evidence within the one-year appeal period, and it therefore became final. In his November 2015 claim to reopen, the Veteran reported high blood pressure treated with medication. He claimed direct service connection, secondary to a mental disability, secondary to medication prescribed for a service-connected disability, or secondary to diabetes mellitus. In April 2020, VA obtained a series of medical opinions regarding the Veteran's hypertension. The examiner opined that hypertension was less likely than not caused or aggravated by bronchitis, a left shoulder disability, a lumbar spine disability, radiculopathy, a left ankle fracture, a left ankle scar, tinnitus, or the medications used to treat such disabilities. These opinions were based on the rationale that there was no plausible relationship between hypertension and any of his service-connected disabilities, and a thorough review of medical literature failed to demonstrate a relationship. The examiner further noted that the Veteran had medically recognized risk factors for essential hypertension of obesity and race. Finally, the examiner stated that there was no established relationship between hypertension and the medications used to treat his service-connected disabilities. The Board finds that the evidence received since the June 2013 final rating decision is not new and material. His claim to reopen states theories of service connection but does not provide any evidence. He states that he claims direct service connection but does not identify any new evidence. He states that he claims secondary service connection but does not identify a service-connected disability to which he believes his hypertension is secondary, let alone evidence of a secondary relationship. He identifies a potential relationship to a mental health disability or diabetes mellitus, but neither is a service-connected disability. The evidence from the April 2020 VA medical opinions is entirely negative and thus raises no possibility of substantiating his claim. For these reasons, the Board finds that the evidence received since the June 2013 final rating decision is essentially cumulative to evidence previously of record with regard to the basis of the prior denial, and the appeal to reopen the claim of service connection for hypertension is therefore denied. 12. Entitlement to SMC based on loss of use 13. Entitlement to a grant for an automobile or other conveyance and adaptive equipment or for adaptive equipment only The Veteran claims SMC based on loss of use. In his March 2018 claim, he specified that he was claiming loss of use of his left upper extremity due to a frozen left shoulder. In his May 2018 notice of disagreement, he stated that his claimed SMC was based on loss of use of one or both of his lower extremities. He also claims assistance in acquiring an automobile and adaptive equipment or adaptive equipment. In his June 2018 notice of disagreement, he based this claim on loss of use of his dominant left upper extremity or loss of use of one or both lower extremities diagnosed as radiculopathy. SMC is available under 38 U.S.C. § 1114(k) for anatomical loss or loss of use of any of a number of organs and extremities, including one or both of the claimant's hands or feet. The term "loss of use of a hand or foot" is defined as existing when no effective function remains other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with the use of a suitable prosthetic appliance. See 38 C.F.R. § 3.350(a)(2). In order to establish entitlement to financial assistance in purchasing an automobile or other conveyance and adaptive equipment, a veteran must have a service-connected disability which includes one of the following: loss or permanent loss of use of one or both feet, loss or permanent loss of use of one or both hands, permanent impairment of vision of both eyes, a severe burn injury, or ALS. 38 U.S.C. §§ 3901, 3902; 38 C.F.R. § 3.808. Assistance for adaptive equipment only is available for veterans suffering from ankylosis of one or both knees or one or both hips. 38 C.F.R. § 3.808(b)(6). The term "permanent loss of use" is not defined in 38 C.F.R. § 3.808 but is defined in 38 C.F.R. § 3.350(a)(2) as described above. The Veteran underwent a VA examination for his left shoulder in September 2015. He was diagnosed with a shoulder strain and degenerative arthritis. While the examiner noted that he had limited range of motion of his left upper and lower extremities due to his stroke, the examiner explicitly found that there was not functional impairment such that no effective function remained other than that which would be equally well served by amputation with prosthesis. The Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities have resulted in the loss of use of any of his extremities. As discussed above, he is in receipt of two ratings for moderate radiculopathy of the left lower extremity. Neither nerve exhibits complete paralysis. While he often uses a wheelchair, there is no indication that his radiculopathy prevents him from walking. Similarly, the September 2015 VA examiner explicitly found that his left shoulder disability was not productive of functional impairment such that no effective function remained other than that which would be equally well served by amputation with prosthesis. There is no evidence in the record to contradict this finding. For these reasons, the Board finds that the evidence weighs against a finding that the Veteran's service-connected disabilities have resulted in the loss of use of any of his extremities. SMC based on loss of use is therefore denied. In addition, there is no indication that his service-connected disabilities have resulted in permanent impairment of vision of both eyes, a severe burn injury, ALS, or ankylosis of either knee or hip. A grant for an automobile and/or adaptive equipment is therefore denied. 14. Entitlement to an aid and attendance allowance for the Veteran's spouse VA has denied a claim of compensation based on the need for aid and attendance of the Veteran's spouse. Compensation provided by 38 C.F.R. § 3.351(a)(2) is payable where a veteran's spouse is in need of aid and attendance. The need for aid and attendance means helplessness requiring the regular aid and attendance of another person. 38 C.F.R. § 3.351(b). A spouse will be considered in need of regular aid and attendance if he or she (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for aid and attendance under the criteria set forth at 38 C.F.R. § 3.352(a). The following is accorded consideration in determining the need for regular aid and attendance: inability to dress or undress oneself, or to keep oneself ordinarily clean and presentable; inability to attend to the wants of nature; and incapacity, physical or mental, which requires care or assistance on a regular basis to protect oneself from hazards or dangers incident to his or her daily environment. It is not required that all of these disabling conditions be found to exist before a favorable rating may be made. The particular personal functions which one 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 a person is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations are based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). In his November 2015 claim, the Veteran did not check the box indicating that he wished to file a claim for additional benefits because his spouse was seriously disabled, but he did provide his spouse's name. VA construed this as a claim for compensation based on his wife's need for aid and attendance. No evidence of such need was provided. In his May 2016 notice of disagreement, the Veteran's representative stated that the Veteran's wife is not seriously disabled, and the application for SMC was made for the Veteran, who resides in a nursing facility. The Board finds that the evidence weighs against a finding that the Veteran's spouse is in need of aid and attendance. As explained in his May 2016 notice of disagreement, she is not seriously disabled, and such an allowance is therefore not warranted. The Board further finds that to the extent that the Veteran claims SMC for himself based on a need for aid and attendance, the evidence weighs against a finding that the Veteran has such a need due to service-connected disabilities. He is service connected for his lumbar spine disability, radiculopathy of the left sciatic and femoral nerves, a frozen left shoulder with degenerative changes, bronchitis, tinnitus, and residuals of a left ankle fracture including a scar. While he is in care of a nursing home, the evidence is consistent that this is due to his non-service-connected stroke residuals. Neither he nor his representative have put forth evidence showing that his service-connected disabilities have given rise to a need for aid and attendance. For these reasons, the Board finds that the Veteran's service-connected disabilities have not rendered him so helpless as to be in need of regular aid and attendance, and SMC on such a basis is therefore denied. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Gallagher, 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.