Citation Nr: 21005378 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 15-09 437 DATE: February 1, 2021 ORDER Entitlement to an initial rating in excess of 40 percent for degenerative disc disease of the lumbar spine (hereinafter back disability) is denied. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. Entitlement to an initial rating in excess of 20 percent for right lower extremity radiculopathy is denied. Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is denied. FINDINGS OF FACT 1. Throughout the appeal period, the preponderance of the evidence shows that the Veteran’s back disability has not resulted in unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or incapacitating episodes of intervertebral disc syndrome (IVDS) having a total duration of at least six-weeks during the past 12-months. 2. As of April 10, 2014, the Veteran’s left lower extremity radiculopathy has resulted in no more than moderate incomplete paralysis of the sciatic nerve. 3. As of April 10, 2014, the Veteran’s right lower extremity radiculopathy has resulted in no more than moderate incomplete paralysis of the sciatic nerve. 4. The preponderance of the evidence is against a finding that the Veteran’s service-connected disabilities render him housebound or so helpless as to be in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 40 percent for back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 2. The criteria for an initial rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for an initial rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for SMC based on the need for aid and attendance have not been met. 38 U.S.C. §§ 1114, 5121; 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2001 to December 2001. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. Subsequently, the matter was remanded by the Board in July 2018 for further development. During the pendency of the appeal, a May 2019 rating decision assigned an initial 40 percent rating for the Veteran’s back disability. As this increase does not represent a total grant of benefits sought on appeal, the claim for an increased rating remains before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, while on remand, the Agency of Original Jurisdiction (AOJ) assigned separate 20 percent ratings for the Veteran’s bilateral lower extremity radiculopathy, effective April 10, 2014. See May 2019 rating decision. The Board notes that the Veteran did not enter a notice of disagreement with respect to the propriety of the assigned ratings or effective date; however, such matters are part and parcel of his claim for an increased rating for his back disability. Specifically, the rating criteria governing the evaluation of such disability states that any associated objective neurological abnormalities be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). Therefore, such issue will be addressed herein. Moreover, the Board notes that the matter previously included the claim for a total disability rating due to individual unemployability (TDIU). However, the AOJ granted TDIU, effective March 5, 2015, in a May 2019 rating decision. The evidence of record indicates that the Veteran’s last date of employment was March 4, 2015; as such, this represents a full grant of the benefits for TDIU. Accordingly, the matter is no longer in appellate status and will not be further addressed herein. Lastly, the Board notes that in October 2019, the Veteran’s former representative, the Military Order of the Purple Heart (MOPH), submitted a letter stating that they were withdrawing from representation of the Veteran due to a lack of funding. In December 2020, the Veteran was sent a letter informing him that he had 30 days to appoint a representative by completing a VA Form 21-22 or 21-22a. The Veteran did not do so. The Board finds that the notification of withdrawal of services was appropriate under 38 C.F.R. § 20.6, and that the Veteran was properly notified of the opportunity and need to complete a new VA Form 21-22 or 21-22a. The Veteran did not do so; therefore, as the Veteran has not appointed a new representative, he is unrepresented at this time in his appeal. Increased Rating A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 126–27 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Back Disability Throughout the appellate period, the Veteran’s back disability has been in receipt of a 40 percent rating under Diagnostic Code 5237. Diagnostic Code 5237 is part of the General Rating Formula for Disease and Injuries of the Spine (General Rating Formula). 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 will apply: a 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5237. A July 2010 VA treatment note indicates that the Veteran reported having chronic lower back pain with acute exacerbation. He denied any radiation to the lower extremities or bowel or bladder incontinence. The Veteran underwent a VA examination in July 2011. The examiner noted that the Veteran denied any radicular symptoms, foot drop, bowel or bladder incontinence, or saddle anesthesia. The Veteran also denied any subluxation, dislocation, instability, or ankylosing areas. The examiner indicated that the Veteran could walk one-fourth mile, stand for five minutes, sit for 30 minutes, and lift 20 pounds. He indicated that the Veteran worked full-time as a custodian, with no restrictions. The Veteran reported having mild to moderate flare-ups with repetitive use. Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees, and bilateral lateral rotation to 30 degrees. The examiner indicated that there was no additional restrictive range of motion or loss of joint function with use or against resistance. The Veteran’s 2014 VA treatment records indicate that he reported lower back pain with occasional radiation into the right lower extremity. The Veteran was afforded a VA examination in April 2019. The Veteran reported having flare-ups of the thoracolumbar spine, which he described as sharp, aching, throbbing, pain and stiffness. The Veteran reported having difficulty walking, running, sitting, and standing for long periods of time. Initial range of motion testing revealed forward flexion to 40 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees with pain. Repetitive use testing revealed forward flexion to 35 degrees, extension to 15 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees with pain. The examiner opined that pain and lack of endurance significantly limits the Veteran’s functional ability with repeated use over a period of time and during flare-ups. The examiner described the Veteran’s functional ability during repetitive use in terms of range of motion, noting forward flexion to 30 degrees, extension to 10 degrees, bilateral lateral flexion to 10 degrees, and bilateral lateral rotation to 10 degrees. The examiner also described the Veteran’s functional ability during flare-ups in terms of range of motion, noting forward flexion to 25 degrees, extension to 5 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 5 degrees. The examiner noted guarding and muscle spasm not resulting in abnormal gait or abnormal spinal contour. Sensory examination revealed decreased sensation to touch in the bilateral lower leg/ankle (L4/L5/S1) and bilateral foot/toes (L5). The examiner noted that the Veteran had bilateral lower extremity radiculopathy, indicating moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The examiner indicated that the Veteran had moderate bilateral radiculopathy of the L4/L5/S1/S2/S3 nerve roots. There was no evidence of reduced muscle strength, muscle atrophy, ankylosis, or other neurologic abnormalities. The examiner noted that the Veteran had IVDS of the thoracolumbar spine. He indicated that the Veteran reported having episodes of bed rest over the past 12-months having a total duration of less than one-week. The Veteran reported regular use of a brace and constant use of cane for his back condition. The Board finds that the Veteran’s back disability does not warrant a rating in excess of 40 percent. To warrant a rating higher than 40 percent under the General Rating Formula the Veteran’s back disability must manifest in unfavorable ankylosis of the entire thoracolumbar spine, or unfavorable ankylosis of the entire spine. In this case, the medical treatment records and VA examination reports do not indicate the presence of ankylosis in the Veteran’s spine at any point. Therefore, a rating higher than 40 percent is not warranted. Additionally, the Board notes that as 40 percent is the highest schedular rating for limitation of motion of the spine, the regulatory provisions (38 C.F.R. §§ 4.40, 4.45) pertaining to functional loss are not for application. Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 85 (1997); see also Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board has considered whether the Veteran is entitled to a disability rating under an alternative diagnostic code as back disabilities may also be evaluated under Diagnostic Code 5243 for IVDS. The criteria for IVDS rates the disability according to the number of incapacitating episodes suffered per year. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As indicated above, the evidence does not show and the Veteran does not allege that he has had any physician prescribed bed rest having a total duration of at least six-weeks over a 12-month period, which is required for the next higher 60 percent rating, at any time during the appeal period. Accordingly, Diagnostic Code 5243 is not applicable. Moreover, the Board has considered whether the Veteran is entitled to additional separate ratings for associated neurologic conditions, other than his bilateral lower extremity radiculopathy discussed in more detail below. However, the record does not reflect that the Veteran has had other neurologic abnormalities associated with his service-connected back disability. Therefore, a separate evaluation for associated additional neurologic conditions is not warranted. In sum, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran’s back disability. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 50 (1990). Bilateral Lower Extremity Radiculopathy The Veteran’s radiculopathy of the right and left lower extremities have each been evaluated as 20 percent disabling, effective April 10, 2014, under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent disability rating. Moderate incomplete paralysis warrants a 20 percent disability rating. Moderately severe incomplete paralysis warrants a 40 percent disability rating. Severe incomplete paralysis with marked muscular atrophy, warrants a 60 percent rating. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost and warrants an 80 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. Id. The Board observes that the words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Upon review of the record, the Board finds that, as of April 10, 2014, the evidence shows that the Veteran first reported having radicular symptoms related to his back disability, and thus, the assigned effective date for the Veteran’s radiculopathy is proper. See VA treatment records. The Board notes that while a January 2012 VA treatment note indicated a provisional assessment of radiculopathy in regard to the Veteran’s complaint of right knee pain, there is no indication that such assessment was made using objective evidence. Additionally, the Board finds that the Veteran’s bilateral lower extremity radiculopathy does not warrant ratings higher than 20 percent for the entire appellate period. There is no competent evidence to support a finding that the Veteran has worse than moderate, incomplete paralysis of the lower extremities. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The April 2019 VA examination report noted moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The VA examiner classified the severity of the Veteran’s radiculopathy as moderate. Additionally, as mentioned, when the involvement is wholly sensory, no more than a moderate degree should be assigned. Here, the Veteran’s symptoms are almost entirely sensory. In sum, the Board finds that initial ratings in excess of 20 percent is not warranted for the Veteran’s bilateral lower extremity radiculopathy. Accordingly, as the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application, and the claim must be denied. 38 U.S.C. § 5107; Gilbert, 1 Vet. App. at 50. Entitlement to SMC Under 38 U.S.C. § 1114(l), SMC is payable if, as the result of service-connected disability, the 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; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). In determining whether there is helplessness such as to require the regular aid and attendance of another person, the following circumstances will be considered: inability to dress or undress self, or to keep self ordinarily clean and presentable; inability of the veteran to feed himself 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 veteran from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). The particular personal functions which the veteran 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 the veteran is so helpless as to need regular aid and attendance, and not that there is a constant need for aid and attendance. Id.; see Turco v. Brown, 9 Vet. App. 222 (1996). Decisions must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). The Veteran is service-connected for a back disability, rated as 40 percent disabling; right lower extremity radiculopathy, rated as 20 percent disabling; and left lower extremity radiculopathy, rated as 20 percent disabling. He is also in receipt of a TDIU, effective March 5, 2015. The evidence of record does not show, and the Veteran does not allege that he has anatomical loss of both feet or of one hand and one foot, blindness in both eyes, or is permanently bedridden. Thus, the critical question to be determined in this case is whether the Veteran’s service-connected disabilities have resulted in the need for regular aid and attendance of another person because of resultant helplessness due to mental and/or physical impairment. The Veteran’s Social Security Administration (SSA) records indicate that in 2015 the Veteran reported being able to make simple meals, drive, go shopping, attend church, do the laundry, vacuum, and mow the lawn. In 2016 the Veteran reported having problems with personal care and needing reminders for personal needs and medications. The record indicates that he was able to cook, do laundry, drive, shop, handle money, and walk half a mile before rest. A vocational explanation states the Veteran could stand and walk for up to six hours a day. An April 2017 VA treatment note indicates that the Veteran reported spending his days hanging out at his brother’s mechanic shop, riding around town, and visiting friends. During the April 2018 Board hearing, the Veteran testified that pays someone to do the household chores, such as sweeping and doing the dishes, because he is no longer able to complete such tasks. He also reported that he could no longer walk his dog due to his back disability. The Veteran was afforded a VA housebound status or permanent need for regular aid and attendance examination in April 2019. The examiner indicated that the Veteran was able to feed himself, prepare his own meals, and manage his own financial affairs. He further indicated that the Veteran did not need assistance in bathing and tending to other hygiene needs, require medication management, or require nursing home care. He stated that the Veteran can feed himself, button his clothing, shave, and attend to the needs to nature. He also indicated that while the Veteran can walk and ambulate independently with the help of a cane, the Veteran has difficulty climbing more than one flight of stairs, walking for more than one block as well as difficulty lifting and carrying more than 20 pounds. The examiner indicated that the Veteran leaves the house only for medical purposes due to his difficulty walking for more than one block without assistance. An April 2019 VA treatment note indicates that the Veteran reported driving a school bus part-time. He also reported that he walks his dog and goes to his brother’s mechanic shop most of the day. Upon consideration of the evidence of record, the Board finds that the Veteran’s service-connected disabilities do not render him unable to feed himself, keep himself ordinarily clean and presentable, attend to the wants of nature, dress or undress himself, or that the Veteran’s service-connected disabilities require care or assistance on a regular basis in order to protect himself from the hazards and dangers incident his daily life. Here, the competent evidence of record indicates that the Veteran is able to perform activities of daily living and self-care skills. Additionally, the evidence of record indicates that the Veteran is able to leave his home to walk his dog, visit his brother’s mechanic shop, work part-time as a bus driver, and attend medical appointments. Accordingly, after weighing all of the evidence, the Board finds that the Veteran’s service-connected disabilities do not rise to the level of a disability picture requiring the aid and attendance of another person. 38 C.F.R. § 3.352(a). VA regulations also provide additional compensation on the basis of being housebound. A veteran meets the criteria for SMC at the housebound rate when he has a single service-connected disability rated at 100 percent and, either additional service-connected disabilities independently ratable at 60 percent (separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems) or is permanently housebound by reason of service-connected disability. This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises and it is reasonably certain that the disability or disabilities will continue throughout his or her lifetime. 38 C.F.R. § 3.351(i). The Board finds that entitlement to SMC at the housebound rate is not warranted. As noted above, the Veteran does not meet the criteria for statutory housebound entitlement because his other service-connected disabilities are not independently ratable at 60 percent or more. Additionally, the Veteran does not contend, and the evidence does not show that he is housebound. In sum, the Board finds that the Veteran is not, as a result of his service-connected disabilities, housebound or so helpless as to be in need of regular aid and attendance. Accordingly, SMC based on the need for regular aid and attendance and/or housebound status is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate 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.