Citation Nr: A21019243 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 210707-170603 DATE: December 2, 2021 ORDER The claim for a rating higher than 40 percent for intervertebral disc syndrome with spinal stenosis and lumbar spondylosis is denied. The claim for a rating higher than 10 percent for a painful residual surgical scar is denied. The claim for an initial noncompensable rating for a superficial residual surgical scar is denied. The claim for an effective date of July 11, 2007, but not earlier, for the award of a separate noncompensable rating for the Veteran's superficial residual surgical scar is granted. The claim for special monthly compensation (SMC) under 38 U.S.C. § 1114(r)(1) is granted. The claim for SMC under 38 U.S.C. § 1114(r)(2) is denied. REMANDED The claim for a rating higher than 60 percent for right lower extremity radiculopathy is remanded. The claim for a rating higher than 20 percent for left lower extremity radiculopathy is remanded. FINDINGS OF FACT 1. The Veteran's orthopedic impairment associated with the low back disability most nearly approximates painful and limited motion without ankylosis, symptoms approximating ankylosis, or incapacitating episodes having a total duration of at least six weeks during the past 12 months. 2. The Veteran's residual surgical scar is tender, painful, superficial, and stable with no loss of skin covering. It measures 18 centimeters (cm) by 0.5 cm; it covers an area of 23 square (sq.) cm. The scar is not due to a burn, does not involve the head, face, or neck, and does not result in any functional impairment. 3. The Veteran's inferred claim for service connection for a residual surgical scar was received on November 29, 2006; entitlement to the benefit arose on July 11, 2007. 4. The Veteran is entitled to two SMC awards under 38 U.S.C. § 1114(l) without consideration of any condition twice: he meets the criteria for SMC based on the need for aid and attendance due to his service-connected low back disability and urinary and fecal incontinence, and his service-connected radiculopathy of the lower extremities result in the equivalent of loss of use of both feet. 5. The Veteran is entitled to an additional monthly allowance of SMC at the rate under subsection (r)(1) of 38 U.S.C. § 1114, based on entitlement to the rate under subsection (o) and the need for regular aid and attendance. 6. The Veteran is not in need of personal health-care services provided on a daily basis in his home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 40 percent for intervertebral disc syndrome with spinal stenosis and lumbar spondylosis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.45, 4.71a, Diagnostic Codes 5235-5243 (2020 & 2021). 2. The criteria for a rating higher than 10 percent for a painful residual surgical scar are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7804. 3. The criteria for an initial compensable rating for a superficial residual surgical scar are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.7, 4.118, Diagnostic Code 7800-7803, 7805. 4. The criteria for an effective date of July 11, 2007, but not earlier, for the award of service connection for a superficial residual surgical scar are met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for payment of SMC at the (r)(1) level are met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 6. The criteria for payment of SMC at the (r)(2) level are not met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1962 to August 1964. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2021 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran's case was decided under VA's modernized review system, also known as the Appeals Modernization Act (AMA). The claims on appeal were originally decided in a November 2019 rating decision. In that decision, the agency of original jurisdiction (AOJ) denied a claim for SMC based on the need for aid and attendance and continued the disability evaluations assigned the Veteran's low back disability, bilateral radiculopathy, and surgical scar. Additionally, the AOJ granted service connection for additional symptomatology associated with the Veteran's surgical scar, assigning an initial compensable rating from August 21, 2019. The Veteran appealed the denial of the claim for SMC directly to the Board and in January 2020, the Board granted the claim for SMC based on the need for aid and attendance and denied additional SMC at a higher rate. The Board's award of SMC was implemented by the RO in a February 2020 rating decision with an assigned effective date of August 21, 2019. In October 2020, the Veteran filed a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the November 2019 rating decision, specifically the ratings assigned his low back disability and radiculopathy, the initial rating and effective date for the award of service connection for a surgical scar, and SMC at the highest level. The Veteran also filed a supplemental claim in January 2021 requesting a higher rate for the payment of SMC. In February 2021, the AOJ issued the HLR decision on appeal, which continued the currently assigned ratings, effective dates, and denial of SMC based on the evidence of record at the time of the prior November 2019 decision. The Veteran appealed this decision and selected the Evidence Submission docket on his July 2021 VA Form 10182, Decision Review Request: Board Appeal. Therefore, the Board may only consider the evidence of record at the time of the original November 2019 rating decision, as well as any evidence submitted by the Veteran within 90 days from receipt of the VA Form 10182. 38 C.F.R. § 20.303. The November 2019 rating decision denied increased evaluations for the Veteran's service-connected low back, radiculopathy, and painful scar disabilities. The February 2021 HLR decision characterized the Veteran's claims pertaining to these disabilities as claims for increased ratings and earlier effective dates. This language was repeated by the Veteran's representative in the July 2021 VA Form 10182 (notice of disagreement (NOD)). Under 38 C.F.R. § 20.202, a NOD must identify the specific decision and issue with which the claimant disagrees. The term "issue" means "an adjudication of a specific entitlement" Id. Since a rating decision denying an increased rating claim does not adjudicate the previously assigned effective date, the NOD is not valid with respect to an effective date. Were the Board to consider the issue, it would constitute a freestanding earlier effective date claim and would be dismissed as a matter of law pursuant to Rudd v. Nicholson, 20 Vet. App. 296 (2006). Therefore, the Board's current decision is limited to consideration of whether high ratings are warranted for the Veteran's service-connected low back, radiculopathy, and painful scar. 1. Entitlement to a rating higher than 40 percent for intervertebral disc syndrome with spinal stenosis and lumbar spondylosis. Service connection for residuals of a herniated nucleus pulposus, L5-S1 was granted in a January 1969 rating decision with an initial 20 percent evaluation assigned effective September 18, 1968. In the November 2019 and February 2021 rating decisions, the RO continued the current 40 percent evaluation for the service-connected low back disability and characterized the condition as intervertebral disc syndrome with spinal stenosis and lumbar spondylosis. The Veteran contends that a higher rating is warranted as he experiences constant low back pain that results in severe functional impairment. The Board notes that the current 40 percent evaluation addressed in this decision is assigned for the orthopedic impairment associated with the Veteran's low back disability. His neurological impairment of the lower extremities is the subject of separate claims before the Board and are addressed in the Remand below. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations at any point during the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). For disabilities evaluated based on limitation of motion, VA is required to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. DeLuca v. Brown, 8 Vet. App. 202 (1995); Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59; see also Chavis v. McDonough, 34 Vet. App. 1 (2021) (ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis). 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 a claim or an appeal, the version more favorable to the Veteran 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. The Veteran's intervertebral disc syndrome is currently rated as 40 percent disabling under Diagnostic Code 5243 and the general rating formula for rating diseases and injuries of the spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. The pre-February 2021 version of Diagnostic Code 5243 provides that intervertebral disc syndrome is rated either under the general rating formula or the formula for rating intervertebral disc syndrome based on incapacitating episodes, whichever method results in a higher evaluation. Under the current version of Diagnostic Code 5243, this code is only assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root. Diagnostic Code 5242 is assigned for all other diagnoses. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2020 & 2021). As the Veteran is currently rated under Diagnostic Code 5243, the Board will consider whether a higher rating is possible under the rating formulas pertaining to the spine generally and intervertebral disc syndrome specifically. The general rating formula for rating diseases and injuries of the spine was not changed by the February 2021 regulatory changes. Under the general rating formula, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply. A 40 percent evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. Thus, to warrant an increased evaluation under the general rating formula, the Veteran's low back disability must demonstrate symptoms which more nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. An initial rating higher than 40 percent is not warranted in this case as the evidence does not establish the Veteran's lumbar impairment more nearly approximates ankylosis of the thoracolumbar spine. Generally, ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)). An ankylosed joint is more commonly referred to as "frozen." See, e.g., Dorland's Illustrated Medical Dictionary 286 (32d ed.2012). In this case, the Veteran has retained at least some useful motion of his back throughout the claims period. The October 2019 VA examiner noted the presence of spinal motion and specifically found that the thoracolumbar spine was not ankylosed. The Veteran was able to forward flex his back to 20 degrees with a combined range of motion to 60 degrees. Spinal motion was further limited due to symptoms such as pain, weakness, fatigability, and incoordination. With consideration of all functional factors (including repeated use over time and with consideration of the Veteran's reports of flare-ups of pain), forward flexion was limited to 5 degrees with combined spinal motion to 30 degrees. The examiner described the Veteran's condition as "very debilitated" and noted that the Veteran could not stand, sit, or walk without an assistance from a device for a family member. However, the examiner did not conclude that the Veteran's spine was ankylosed. VA treatment records also document the Veteran's reports of constant back pain and impairment, but again, do not support a finding of ankylosis of the entire thoracolumbar spine. Thus, although the Veteran clearly experiences a severe loss of spinal motion and accompanying functional impairment, the competent medical evidence establishes that he has retained some ability to move and bend his spine throughout the claims period and it is not ankylosed. Moreover, he does not exhibit symptoms such as breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, etc. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The competent lay evidence also does not establish ankylosis. Throughout the claims period, the Veteran reports experiencing low back pain that limits, if not eliminates, his ability to perform most activities. He is competent to report the symptoms he experiences, but the Board finds that the objective medical evidence is more probative regarding the range of motion of the service-connected back disability and whether the record establishes actual ankylosis of the spine or symptoms which produce the functional equivalent of ankylosis. The Board also notes that the Veteran has never reported that any part of his spine is frozen, fixated, or immobile. The Board acknowledges the Veteran's lay reports of symptoms including constant pain and a near inability to accomplish his activities of daily living. Here, the current 40 percent rating already compensates him for functional loss resulting in forward flexion of the thoracolumbar spine limited to 30 degrees or less with consideration of various functional factors. The Veteran is also in receipt of SMC based on the actual impact of his disabilities on his daily life. In addition, the Veteran's other disabilities (both service-connected and nonservice-connected) impact his ability to perform his daily activities and the Veteran does not distinguish the impairment associated with his low back condition alone. The Board finds that the preponderance of the evidence is against a finding that the Veteran has functional immobility or ankylosis of his thoracolumbar spine even with consideration of all relevant functional factors. See Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board has also considered whether a rating higher than 40 percent is warranted under the formula for rating intervertebral disc syndrome. Diagnostic Code 5243 provides for a 60 percent evaluation for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 provides that 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. 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the evidence does not establish, and the Veteran does not allege, that his back disability has resulted in incapacitating episodes requiring bed rest prescribed by a physician. The Veteran has stated on multiple occasions that he spends most of the day lying in bed because his disabilities render him unable to stand or ambulate without excruciating pain. He has not stated that his impairment is due to his service-connected low back disability alone (as opposed to other service-connected or nonservice-connected conditions), nor has he reported his bed rest was prescribed by a healthcare provider. Moreover, treatment records do not document any prescribed bed rest for the low back condition. The Veteran was seen at the VA Medical Center (VAMC) emergency department on four occasions during the relevant claims period for exacerbations of back pain, but was treated with various medications and never prescribed bed rest. Treatment records, including records from his VA primary care doctor, are similarly negative for evidence of doctor-prescribed bed rest. Finally, the October 2019 VA examiner found that the Veteran's intervertebral disc syndrome manifested episodes of bed rest having a total duration of at least one week, but less than two weeks, during the past 12 months. This is clearly less than the amount of bed rest needed for a maximum 60 percent evaluation under the rating formula. As the Veteran has clearly not experienced incapacitating episodes as defined by VA having a total duration of at least 6 weeks during any 12-month period relevant to the claim, a rating higher than 40 percent is not warranted under the criteria pertaining to specifically to intervertebral disc syndrome. The Veteran's intervertebral disc syndrome with spinal stenosis and lumbar spondylosis is therefore appropriately rated as 40 percent disabling throughout the claims period and the claim for an increased rating is denied. 2. Entitlement to a rating higher than 10 percent for a painful residual surgical scar. 3. Entitlement to an initial compensable rating for a superficial residual surgical scar. 4. Entitlement to an effective date earlier than August 21, 2019 for the award of a separate noncompensable rating for a residual surgical scar. Service connection for a residual surgical scar of the back was granted in an August 2007 rating decision with an initial 10 percent evaluation assigned effective July 11, 2007. A separate award of service connection for a scar as a residual of back surgery was awarded in a November 2019 rating decision with an initial noncompensable evaluation assigned effective August 21, 2019. The Veteran contends that higher ratings are warranted for his scar, as well as an earlier effective date for the award of an additional separate rating. The Board will first address the appropriate ratings for the Veteran's scar before determining the correct effective date. As a preliminary matter, the Board notes that the Veteran is in receipt of two separate ratings pertaining to the single surgical scar of his back. As noted above, service connection and an initial 10 percent evaluation were assigned for a painful residual surgical scar associated with the Veteran's low back disability in an August 2007 rating decision effective from July 11, 2007. The medical and lay evidence of record establishes that the Veteran has only one scar associated with his low back surgeries. Despite the presence of only one surgical scar, the November 2019 rating decision included a separate award of service connection and a noncompensable evaluation for a surgical residual scarpresumably the same scar that was previously service-connected. The RO did not specify in the November 2019 rating decision or the February 2021 HLR decision why the single scar was the subject of two separate awards of service connection and two separate ratings. The Board can only assume that the separate ratings for the surgical scar were assigned to acknowledge the scar was productive of separate and distinct symptomatology. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (Separate disability ratings may be assigned only if the symptomatology for a disability is not duplicative or overlapping with the symptomatology of any other disability). The Veteran's scar is currently rated as 10 percent disabling under Diagnostic Code 7804 which provides for a 10 percent rating for one or two scars that are unstable or painful. 38 C.F.R. § 4.118. A higher rating under this diagnostic code requires more than two scars that are unstable or painful, but the Veteran's surgical residuals clearly manifest only one scar. A higher rating is also possible under Note (2) of Diagnostic Code 7804 which provides for an additional 10 percent evaluation for a scar that is both unstable and painful. Note (1) clarifies that an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar. Review of the evidence of record establishes that the Veteran's residual surgical scar of the back scar is stable. The scar was examined by VA in October 2019 and was found to manifest painful, burning, and sharp stabbing pain. It was not unstable with no loss of skin covering. The Veteran has also never alleged that he experiences frequent loss of covering of the skin over the scar; rather, he consistently reports experiencing pain and tenderness around the scar. This symptomatology is specifically contemplated by the current 10 percent rating. Therefore, an increased rating is not warranted under Diagnostic Code 7804. The Veteran's separate noncompensable rating for his surgical scar is assigned in accordance with Diagnostic Code 7802 pertaining to burn scars or scars due to other causes not of the head, face, or neck, that are not associated with underlying soft tissue damage. A 10 percent evaluation is warranted for these superficial scars that involve an area or areas of 144 square inches (929 sq. cm.) or greater. 38 C.F.R. § 4.118, Diagnostic Code 7802. The Veteran's scar is located on his lumbar spine and measures 18 cm by 0.5 cm. The October 2019 VA examiner found that it did not involve underlying tissue damage and affected an area 23 sq. cm. As the service-connected scar clearly does not involve an area of 929 sq. cm., a compensable evaluation is not warranted under Diagnostic Code 7802. The Board has considered whether there is any other schedular basis for granting a higher rating for the service-connected scar, but has found none. The scar is not due to a burn, is not located on the head, face, or neck, and has not resulted in any disabling effects not considered by Diagnostic Codes 7804 and 7802, such as limitation of motion or other impairment. The other diagnostic codes for rating scars are therefore not for application in this case. The Board has also considered the doctrine of reasonable doubt but has determined that it is not applicable in this case because the preponderance of the evidence is against the assignment of higher ratings. As a final matter, the Board finds that an earlier effective date of July 11, 2007 is warranted for the award of a separate noncompensable rating for the service-connected surgical scar. In the August 2007 rating decision, the RO found that the Veteran's November 29, 2006 claim for an increased rating for the low back disability included an inferred claim for service connection for a residual scar associated with multiple back surgeries. The 10 percent rating for a residual painful scar was assigned effective from July 11, 2007the date of the VA examination that established entitlement to the benefit. The November 2019 rating decision awarding service connection for a separate noncompensable evaluation for the same scar assigned an effective date of August 21, 2019, the date VA received the Veteran's intent to file a claim for compensation. In general, the effective date of an award of service connection is the date of receipt of the claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(b)(2)(i). In this case, the Board finds that the Veteran's claim was filed on November 29, 2006the date the RO initially recognized an inferred claim for service connection for a surgical scar. The July 2007 VA examination also recognized that the surgical scar of the back was well-healed, was not associated with a burn, and did not involve the Veteran's head, face, or neck. The Board therefore finds that entitlement to a separate noncompensable rating under Diagnostic Code 7802 arose on July 11, 2007. An effective date of July 11, 2007, but not earlier, is therefore warranted for the separate noncompensable evaluation assigned the Veteran's superficial residual surgical scar. 5. Entitlement to SMC paid at higher rate than 38 U.S.C. § 1114(l). The Veteran is currently in receipt of SMC under 38 U.S.C. § 1114(l) based on the need for aid and attendance of another person. He contends that he is entitled to SMC at a higher rate of compensation due to impairment associated with his service-connected disabilities. Specifically, the Veteran contends that he should receive an additional allowance of SMC under 38 U.S.C. § 1114(r)(1) and 38 U.S.C. § 1114(r)(2). As explained below, the Board finds that the Veteran meets the criteria for an award of SMC under the (r)(1) rate, but not under the (r)(2) rate. SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See generally 38 U.S.C. § 1114; 38 C.F.R. §§ 3.350, 3.352; see also VA G.C. Prec. Op. 5-89 (Mar. 23, 1989) (explaining that SMC is a supplementary statutory benefit based on noneconomic factors such as personal inconvenience, social inadaptability, or the profound nature of a disability). The rate of SMC varies according to the nature of the Veteran's service-connected disabilities. Basic levels of SMC are listed at 38 U.S.C. § 1114(k). Higher levels of SMC are provided at 38 U.S.C. § 1114(l), (m), (n), and (o). SMC is payable in addition to the basic rate of compensation otherwise payable for the degree of disability. In January 2020, the Board awarded the Veteran SMC based on the need for regular aid and attendance of another person due to his service-connected disabilities, specifically, his low back disability, bilateral radiculopathy, and urinary and fecal incontinence. Aid and attendance is an award of SMC under 38 U.S.C. § 1114(l). An additional allowance of SMC is payable for Veterans who need regular aid and attendance or a higher level of care under 38 U.S.C. § 1114(r)(1) and 38 U.S.C. § 1114(r)(2). An award of SMC at the (r)(1) rate requires the Veteran be entitled to SMC at the rate authorized under subsection (o), the maximum rate authorized under subsection (p), or at the intermediate rate authorized between the rates authorized under subsections (n) and (o) and at the rate authorized under subsection (k). The Veteran must also need regular aid and attendance. See 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h), 3.352. Therefore, to determine whether an award of SMC at the (r) rate is warranted, the Board must first determine whether he meets the criteria for an award of SMC under 38 U.S.C. § 1114(o). SMC at the (o) rate is warranted, if a Veteran, as the result of service-connected disability, has incurred disability under conditions which would entitle such Veteran to two or more of the rates provided in one or more subsections (l) through (n), with no condition being considered twice in the determination. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350 (e)(1)(ii). SMC under 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) is payable as the result of service-connected disability if a veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less (or concentric contraction of the field of vision beyond 5 degrees in both eyes); is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. Currently, the Veteran is in receipt of SMC pursuant to 38 U.S.C. § 1114(l) for aid and attendance based on all his service-connected disabilities. However, the Board finds that the Veteran also meets the criteria for SMC at the (l) rate on two separate bases. First, that he requires the aid and assistance of another person based solely on his low back disability and urinary and fecal incontinence. And second, that the Veteran meets the criteria for SMC under 38 U.S.C. § 1114(l) for loss of use of both feet due to service-connected radiculopathy of the lower extremities. The Board reiterates that an award under 38 U.S.C. § 1114(o) (and by extension (r)(1)), requires the Veteran meet the criteria for two awards of SMC at the (l) rate with no condition being considered twice. In other words, the same disability cannot form the basis for two awards of SMC at the (l) rate to support an award under (o). The Board finds that the Veteran's service-connected low back disability and urinary and fecal incontinence are of sufficient severity to render the Veteran in need of the regular aid and attendance of another person. Determinations as to the need for aid and attendance must be based on actual requirement of personal assistance from others. In making such determinations, consideration is given to such conditions as: inability of claimant to dress or undress herself or to keep herself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid; inability of claimant to feed herself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. "Bedridden" will be a proper basis for the determination and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. It is not required that all the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the Veteran is unable to perform should be considered in connection with his/her condition as a whole. 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. 38 C.F.R. § 3.352. In this case, the competent lay and medical evidence establishes that the Veteran's low back disability results in constant pain, extremely limited range of motion, and severe functional impairment. During an October 2019 VA examination of his lumbar spine, the Veteran was described as "very debilitated," and the examiner concluded the Veteran could not walk, stand, or sit without the use of a cane, walker, or with help from his family. The Veteran's muscle strength was reduced in the back and the examiner found he was unable to perform any activity without pain related to his lumbar spine disability and stenosis. The Veteran's low back disability has also resulted in urinary and fecal incontinence. In statements dated in August and September 2020, the Veteran and his son (who assists the Veteran in all his daily activities) reported that the Veteran is unable to participate in his own dressing, bathing, or toileting due to functional impairment from the Veteran's back disability. Similarly, the Veteran is unable to ambulate quickly enough to the bathroom to prevent accidents due to his incontinence and requires assistance to clean himself and change his incontinence materials. The Board therefore finds that the Veteran's low back disability and associated urinary and fecal incontinence alone establish a factual need for aid and attendance and form the basis of an award of SMC at the 38 U.S.C. § 1114(l) rate. The Board also finds that the Veteran meets the criteria for a separate award of SMC at the (l) rate as his service-connected bilateral radiculopathy results in a loss of use of both feet. Under VA regulation, "loss of use of a hand or foot" is defined as no effective function remaining other than that which would be equally well served by an amputation stump at the site of election below the elbow or knee with use of a suitable prosthetic appliance. The determination will be made based on the actual remaining function, whether the acts of grasping, manipulation, etc., in the case of the hand, or of balance, propulsion, etc., in the case of a foot, could be accomplished equally well by an amputation stump with prosthesis. 38 C.F.R. §§ 3.350(a)(2)(i), 4.63. Examples under 38 C.F.R. § 3.350(a)(2) which constitute loss of use of a foot include extremely unfavorable ankylosis of the knee, complete ankylosis of two major joints of an extremity, shortening of the lower extremity of 3 1/2 inches or more, and complete paralysis of the external popliteal (common peroneal) nerve and consequent foot-drop, accompanied by characteristic organic changes including trophic and circulatory disturbances and other concomitants confirmatory of complete paralysis of that nerve. See also 38 C.F.R. § 4.63. In Tucker v. West, 11 Vet. App. 369, 373 (1999), the U.S. Court of Appeals for Veterans Claims (Court) stated that the relevant inquiry concerning loss of use is not whether amputation is warranted, but whether the claimant has had effective function remaining other than that which would be equally well served by an amputation with use of a suitable prosthetic appliance. The Court also stated that in accordance with 38 C.F.R. § 4.40, the Board is required to consider the impact of pain in making its decision and to articulate how pain on use was factored into its decision. Id. "Loss of use" may be organic or "functional" in origin. See VAOPGCPREC 60-90 (Jul. 18, 1990) (holding that SMC was warranted for functional (as opposed to organic) loss of the foot due to service-connected functional hysteria or conversion reaction, where such loss was permanent in nature). In Jensen v. Shulkin, 29 Vet. App. 66, 78-79 (2017), the Court clarified that the standard for "loss of use of the feet" under 38 C.F.R. §§ 3.350(a)(2)(i) and 4.63 is not the same as "loss of use of the lower extremities" for purposes of entitlement to specially adapted housing under 38 C.F.R. § 3.809(b). That is, "loss of use of the feet" is a more stringent standard for a veteran to meet than "loss of use of the lower extremities." Id. The Jensen Court did note, however, that "loss of use" in a general sense was the "deprivation of the ability to avail oneself" of that extremity. Id. The Veteran's bilateral radiculopathy manifests symptoms that are functionally equivalent to the loss of use of both feet. The October 2019 VA examination noted the presence of constant pain, decreased muscle strength, weakened reflexes, and loss of sensation affecting both lower extremities. The Veteran has consistently reported that he falls regularly due to lower extremity weakness and must utilize some assistive device (wheelchair, walker, or cane) to maintain balance. The October 2019 VA examiner also characterized the Veteran's condition as "debilitated." In their 2020 statements to VA, the Veteran and his son described how the Veteran was unable to stand or walk beyond two or three minutes and had lost almost all sensation below his knees. The Veteran was unable to move between standing and sitting without assistance due to leg weakness and fell approximately eight to nine times a week due to his radiculopathy and accompanying loss of function. Although the October 2019 VA examiner found that the Veteran's loss of function due to radiculopathy was not equivalent to an amputation with prosthesis, a private examiner opined in December 2020 that the Veteran had loss the use of bilateral lower extremities due to the severity of his bilateral radiculopathy. As noted above, "loss of use of the feet" is not the same as "loss of use of the lower extremities," but based on the lay and medical evidence describing the severity of the Veteran's disability, the Board will resolve any doubt in his favor and finds that the service-connected radiculopathy has resulted in loss of use the feet. This finding is based on the extreme loss of effective function remaining in the Veteran's feet due to radiculopathy, as well as the Veteran's extreme difficulties with the actual acts of balance and propulsion. The Veteran therefore meets the criteria for a separate award of SMC at the (l) rated based on the loss of use of both feet due to service-connected radiculopathy alone. Thus, the Board finds that the Veteran is twice entitled to 38 U.S.C. § 1114 (l) rate based on separate disabilities: first, due to the need for aid and attendance based on his low back disability and incontinence, and second due to the loss of use of the feet related to bilateral radiculopathy of the lower extremities. As the Veteran is twice entitled under the (l) rate, entitlement to the SMC at the (o) rate is warranted. 38 U.S.C. § 1114(o); 38 C.F.R. § 3.350 (e)(1)(ii). In turn, entitlement to the SMC (o) rate meets the threshold requirement for entitlement to the SMC (r)(1) rate. The law states that when one is entitled to SMC (o), and establishes a factual need for regular aid and attendance, entitlement to special aid and attendance is demonstrated. 38 U.S.C. § 1114(r); 38 C.F.R. § 3.350(h). The need for aid and attendance need not be independent of the underlying disabilities used to meet the threshold eligibility requirement, as the regulation provides an exception to the pyramiding rule. 38 C.F.R. § 3.350(h)(1). Here, the Board finds that a factual need for regular aid and attendance has been established (and the Veteran is already in receipt of regular aid and attendance as awarded by the Board in its previous January 2020 decision). Based on a review of the evidence, the Board finds that entitlement to SMC at the (r)(1) rate is warranted, based on a demonstrated factual need for a special level of aid and attendance. However, the Board finds that the Veteran's disabilities do not warrant SMC at the (r)(2) (higher level of care) rate. The need for a higher level of care which necessitates the payment of (r)(2) means that the Veteran requires personal health-care services provided on a daily basis in their home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health-care professional. 38 C.F.R. § 3.352(b)(2). Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of catheters, and the changing of sterile dressings, or similar functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a licensed physical therapist. Id. While the Veteran requires the assistance of his son to conduct almost all his activities of daily living, the evidence does not reflect that his care needs to be skilled. In addition, there is no indication in the lay or medical evidence that the Veteran's son has any professional health-care training or is following a regimen of personal health-care services prescribed by a health-care professional with consultations occurring at least once a month. See 38 C.F.R. § 3.352(b)(iii)(3) and (b)(iii)(4) (A person performing personal health-care services who is a relative of the Veteran is not exempted from the requirement that he or she be a licensed health-care professional or be providing such care under the regular supervision of a licensed health-care professional). As such, entitlement to SMC based on the need for aid and attendance as contemplated by 38 U.S.C. § 1114 (r)(2) is not warranted. REASONS FOR REMAND 1. Entitlement to a rating higher than 60 percent for right lower extremity radiculopathy. 2. Entitlement to a rating higher than 20 percent for left lower extremity radiculopathy. The issues of increased ratings for right and left lower extremity radiculopathy are remanded to correct a duty to assist error that occurred prior to the rating decision on appeal. The AOJ obtained an October 2019 VA examination report addressing the Veteran's peripheral nerves, however, the Board finds that this examination is not adequate for rating purposes as the examiner did not specify the nerves affected by the service-connected lower extremity radiculopathy. The examination report includes diagnoses and findings pertaining to both service connected and nonservice connected disabilities, including bilateral sciatica (radiculopathy), peripheral neuropathy, and peripheral artery disease. The examiner found that all the Veteran's nerves of the lower extremities were affected by his neurological impairment, but did not specify the nerves associated with the service-connected radiculopathy. As such, the Board cannot accurately rate the Veteran's radiculopathy and a remand is necessary to correct this pre-decisional duty to assist error. The matters are REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected radiculopathy of the lower extremities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. To the extent possible, the examiner must specify the nerves and impairment associated with the service-connected radiculopathy alone. If this is not possible, the examiner should so state. K. Conner Veterans Law Judge Board of Veterans' Appeals M. Riley, Attorney for the Board Department of Veterans Affairs 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.