Citation Nr: 21076314 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 19-35 373 DATE: December 23, 2021 ORDER A disability rating greater than 40 percent for chronic lumbosacral sprain with discogenic disease of the lumbosacral spine is denied. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment is granted. REMANDED Entitlement to special monthly compensation (SMC) based on the regular need for the aid and attendance of another person is remanded. FINDINGS OF FACT 1. The Veteran's lumbosacral spine disability is manifested by stiffness, decreased range of motion, and pain that is worse with use. 2. There is no evidence of ankylosis of the thoracolumbar spine, or of the entire spine. 3. There is no evidence that the Veteran's thoracolumbar spine disability has resulted in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 4. The Veteran's service-connected lumbosacral spine disability with associated right lower extremity radiculopathy with foot drop results in a severity that equates to the permanent functional loss of use of the right foot. CONCLUSIONS OF LAW 1. The criteria have not been met for a rating greater than 40 percent for chronic lumbosacral sprain with discogenic disease of the lumbosacral spine. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria have been met to establish eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment. 38 U.S.C. §§ 3901, 3902, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.808. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1973 to December 1974. This matter is before the Board of Veterans' Appeals (Board) on appeal from rating decisions in March 2018 and January 2019. In February 2021, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the Veteran's hearing testimony is considered as evidence in this appeal. On the record during the February 2021 hearing, the Veteran and his representative expressed an intention to withdraw an appeal for an increased rating for right lower extremity radiculopathy expressing understanding that such action would result in the Board no longer having appellate jurisdiction to consider this matter. Upon a full review of the procedural history of this case however, the Board finds that an appeal had not been perfected on this issue of an increased rating for radiculopathy. The Veteran's April 2018 notice of disagreement did not list this issue, and it was in turn not included on the September 2019 statement of the case or the June 2020 supplemental statement of the case. As such, an appeal for an increased rating for right lower extremity has not been perfected before the Board. However, to the extent to which an appeal for radiculopathy may have been inferred as part of the April 2018 notice of disagreement or part of the perfected appeal for an increased rating for the lumbosacral spine disability, the Veteran has expressed the desire not to pursue such an avenue of appeal, which had it been perfected would now be withdrawn and dismissed. Thus, the Board has no jurisdiction to consider the matter of the rating for right lower extremity radiculopathy at this time. However, the Board does acknowledge that in the same hearing testimony and other statements in evidence, the Veteran and his spouse have described the Veteran's service-connected disabilities as resulting in his need for the aid and attendance of another person. As such, a claim of entitlement to SMC on this basis is inferred. As the evidence does not currently contain sufficient information to grant compensation on this basis, a remand is needed to assist the Veteran in obtaining the evidence necessary to substantiate his claim as will be discussed in the remand portion below. 1. A disability rating greater than 40 percent for chronic lumbosacral sprain with discogenic disease of the lumbosacral spine is denied. The Veteran contends that his current 40 percent rating is not reflective of the severity of his lumbar spine disability. The Veteran's lumbosacral spine disability is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." However, in this instance, the evidence shows annular disc bulging at the L3-S1 levels with significant nerve root involvement per the October 2020 VA examination that references a July 2017 MRI report. As such, evaluating under DC 5243 remains appropriate. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Of note, bilateral lower extremity radiculopathy is already separately evaluated in this instance. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. 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. 38 C.F.R. § 4.45 requires consideration 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; 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 criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In all, the Board finds that the preponderance of the evidence is against a rating greater than 40 percent for the Veteran's service-connected lumbosacral spine disability based on incapacitating episodes. The evidence does not show that the Veteran was prescribed bed rest by a physician for a duration of at least 6 weeks during the last 12 months. See, e.g., VA treatment records; VA examination, January 2020. The preponderance of the evidence is also against a rating greater than 40 percent under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due pain, stiffness, weakened movement, and repetitive use. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by these statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The Veteran is less able to tolerate weight bearing activities such as standing, walking, running, climbing, kneeling, squatting, or rising, but is shown to maintain forward flexion of up to 30-45 degrees. VA examinations, January 2020, July 2018, March 2018. There is no additional loss of function or range of motion shown after repetitive use. VA examination, January 2020. The Board does not find the severity and functional limitation described by the Veteran to equate to bony fixation of the thoracolumbar spine or the entire spine, because even though range of motion is less than normal, significant movement of the joint remains. In all, the preponderance of the evidence is against the Veteran's claim for a rating greater than 40 percent for his lumbosacral spine disability. Because the evidence weighs against the claim, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Eligibility for financial assistance in the purchase of one automobile or other conveyance and automobile adaptive equipment is granted. In pertinent part, financial assistance in acquiring an automobile (or other conveyance) with adaptive equipment is available when one or more service-connected disability results in the loss or permanent loss of use of one or both feet. 38 C.F.R. § 3.808. The applicable regulation does not further define the phrase "loss or permanent loss of use." Under the eligibility criteria found in 38 U.S.C. § 3901 and 38 C.F.R. § 3.808, the appellant must show that he or she had anatomical loss of a foot or hand, or permanently lost the use of a foot or hand due to service-connected disability. The term "loss of use" is also used in several places in various statutes and regulations describing disability ratings by VA. In all, loss of use under 38 C.F.R. § 3.808 will be taken to mean actual loss of functional use of the body part(s) involved, with any need of assistive devices being relevant to, but not dispositive of the question of whether a veteran experiences a permanent loss of use. In this case, service connection is in effect for chronic lumbosacral sprain with discogenic disease of the lumbosacral spine and the associated right lower extremity radiculopathy with foot drop, among other service-connected disabilities not pertinent to this matter. The Veteran describes his right lower extremity as "dead weight" with toes permanently curled under after undergoing spinal surgery. Board hearing testimony, February 2021. A March 2019 automobile adaptive equipment evaluation requested by VA found the Veteran to be in need of a left foot accelerator with gas pedal block. An October 2020 VA medical opinion further described the Veteran's right foot drop and found the Veteran "has no use of the right foot [which] drags and interferes with ambulation." Considering the record as a whole, a preponderance of the evidence shows that the Veteran has effectively lost the use of his right foot as a result of his service-connected disabilities and entitlement to the claimed automotive adaptive equipment benefit is warranted on this basis. The appeal is granted. REASONS FOR REMAND 3. Entitlement to SMC based on the regular need for the aid and attendance of another person is remanded. Statements provided by the Veteran and his spouse in January 2018, April 2018, June 2018, April 2019, November 2019, and hearing testimony from February 2021 describe the Veteran as regularly needing help from his wife in matters of mobility and activities of daily living. However, the record does not contain sufficient evidence to meet the criteria for determining the Veteran's need for aid and attendance under 38 C.F.R. § 3.352. VA has a duty to assist the Veteran in obtaining evidence in support of this claim. 38 C.F.R. § 3.159(c). Therefore, the Veteran should be afforded the opportunity to report for an examination to document the manifestations of his service-connected disabilities and the functional impairment that he reports requires regular aid and assistance. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine and record manifestations of his service-connected disabilities pertinent to the Veteran's need for the regular aid and attendance of another person. The examiner is asked to describe in detail the Veteran's ability or inability to dress or undress, keep himself ordinarily clean and presentable, attend to the wants of nature, any frequent need of adjustment of any special prosthetic or orthopedic appliances which cannot be done without aid, and any incapacity which requires care or assistance on a regular basis to protect himself from the hazards or dangers incident to his daily environment. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. McDonald, 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.