Citation Nr: 21007196 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 15-01 155 DATE: February 8, 2021 ORDER A disability rating of 40 percent, but no higher, from October 9, 2008 to July 25, 2016, and from October 1, 2016, for the Veteran’s lumbar spine degenerative disc disease, is granted. REMANDED Entitlement to a compensable disability rating for left lower extremity radiculopathy of the sciatic nerve associated with lumbar spine degenerative disc disease prior to July 26, 2016, and in excess of 20 percent thereafter, is remanded. Entitlement to a compensable disability rating for right lower extremity radiculopathy of the sciatic nerve associated with lumbar spine degenerative disc disease prior to August 28, 2020, and in excess of 20 percent thereafter, is remanded. Entitlement to a compensable disability rating for left lower extremity radiculopathy of the femoral nerve associated with lumbar spine degenerative disc disease prior to August 28, 2020, and in excess of 20 percent thereafter, is remanded. Entitlement to a compensable disability rating for right lower extremity radiculopathy of the femoral nerve associated with lumbar spine degenerative disc disease prior to August 28, 2020, and in excess of 20 percent thereafter, is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to October 29, 2008, is remanded. Entitlement to special monthly pension based on the need for aid and attendance prior to June 24, 2016 is remanded. FINDING OF FACT From October 9, 2008 to July 25, 2016 and from October 1, 2016, the Veteran’s lumbar spine disability was manifested by forward flexion limited to 30 degrees. CONCLUSION OF LAW The criteria for a 40 percent rating, but no higher, for lumbar spine degenerative disc disease from October 9, 2008 to July 25, 2016 and from October 1, 2016, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5243 and 5237 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1968 to May 1970. These matters come to the Board of Veterans’ Appeals (Board) from a March 2010 rating decision which, in pertinent part, continued a 10 percent evaluation for lumbar spine degenerative disc disease and denied entitlement to special monthly pension. In a November 2014 rating decision, the RO granted an increased 20 percent evaluation for lumbar spine degenerative disc disease, effective March 22, 2011. In an August 2016 rating decision, the RO granted entitlement to special monthly pension based on the need for aid and attendance effective June 24, 2016. In an April 2018 decision, the Board, in pertinent part, found that entitlement to a TDIU had been raised as part of the Veteran’s lumbar spine increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), and remanded the lumbar spine increased rating claim and claims of entitlement to a TDIU and special monthly pension for further development. In a July 2019 rating decision, the RO granted service connection for left lower extremity sciatic nerve radiculopathy, evaluated at 20 percent, effective July 26, 2016, and denied entitlement to a TDIU. In an October 2019 rating decision, the RO granted a temporary total evaluation for the Veteran’s lumbar spine disability effective July 26, 2016 based on surgical or other treatment necessitating convalescence, and continued a 20 percent evaluation from October 1, 2016. As the temporary total evaluation from July 26, 2016 to September 30, 2016 is a maximum award of benefits, the Board will not review this staged rating. In a September 2020 rating decision, the RO granted an increased 40 percent evaluation for the Veteran’s lumbar spine disability effective June 27, 2019; granted service connection for right lower extremity sciatic nerve radiculopathy, and left and right lower extremity femoral nerve radiculopathy, each evaluated at 20 percent, effective August 28, 2020; and granted entitlement to a TDIU, effective October 29, 2008. The Board notes that while the Veteran has not specifically appealed the ratings assigned for bilateral lower extremity sciatic and femoral nerve radiculopathy, any neurologic manifestations of his lumbar spine disability are part and parcel of his lumbar spine increased rating claim on appeal. See 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Because the grants of service connection for bilateral lower extremity sciatic and femoral nerve radiculopathy are part and parcel of the Veteran’s lumbar spine increased rating claim, and as the ratings do not commence from the earliest possible effective date stemming from the underlying claim for a higher rating for the service-connected lumbar spine disability or constitute the highest possible rating, the claims remain at issue. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, the issues on appeal have been recharacterized as listed on the title page of this decision. Additionally, the Board notes that while the RO indicated in the September 2020 rating decision that the grant of a TDIU from October 29, 2008 represented a full grant of the benefit sought on appeal, entitlement to a TDIU was raised as part and parcel of the Veteran’s lumbar spine increased rating claim. As discussed further below, the Board has considered the Veteran’s lumbar spine increased rating claim from October 29, 2007. Therefore, entitlement to a TDIU prior to October 29, 2008 remains pending before the Board. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Within that context, VA must assess the level of disability from the date of initial application and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a “staged rating.” See Fenderson v. West, 12 Vet. App. 119 (1999). The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The standard of proof to be applied in decisions on claims for veteran’s benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). Entitlement to a disability rating in excess of 10 percent for lumbar spine degenerative disc disease prior to March 22, 2011, in excess of 20 percent from March 22, 2011 to July 25, 2016 and from October 1, 2016 to June 26, 2019, and in excess of 40 percent from June 27, 2019. The Veteran contends that an increased rating is warranted for his lumbar spine disability. The Veteran is currently assigned a 10 percent rating prior to March 22, 2011, a 20 percent rating from March 22, 2011 to July 25, 2016 and from October 1, 2016 to June 26, 2019, and a 40 percent rating from June 27, 2019. The Veteran’s thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Codes (DCs) 5243 and 5010-5237. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the 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 such as scoliosis, reversed lordosis, or abnormal kyphosis. 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. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, a 40 percent evaluation is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 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, Note (1). The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 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. 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 Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. As it pertains to the relevant temporal period on appeal, the focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Here, the Veteran filed his lumbar spine increased rating claim on October 29, 2008. As such, the Board has considered the Veteran’s claim from October 29, 2007 to the present. Turning to the evidence of record, an October 9, 2008 examination for Social Security Disability benefits reflects the Veteran reported back pain when bending, walking, and climbing, and that when sitting or standing, he had to change positions. Upon examination, flexion was to 30 degrees, extension was to 10 degrees, and right and left lateral flexion were to 15 degrees each. A March 2009 VA examination report reflects the Veteran reported daily back pain made worse by bending over and standing, walking, or sitting for long periods, and treated with Vicodin. Upon examination, flexion to was 70 degrees with pain beginning at 30 degrees, extension was to 15 degrees, and left and right lateral flexion and rotation were to 20 degrees each. Muscle strength was normal and there was no edema, swelling, or muscle spasm but the examiner noted the Veteran walked with a cane. August 2009 VA physical therapy records for low back pain shows limited lumbar rotation and a December 2010 VA treatment record shows the Veteran received a transforaminal epidural steroid junction for chronic lower back pain with radiation. A March 2011 VA examination report reflects the Veteran reported stiffness in his lumbar spine and using a walker for two years. Upon examination, flexion was to 50 degrees with pain at 50 degrees, extension was to 10 degrees with pain at 10 degrees, and lateral flexion and rotation were to 10 degrees each with pain at 10 degrees. The examiner noted that ranges of motion during passive, active, and three repetitive motions were the same, with no loss of joint function with use due to pain, weakness, fatigability, incoordination, or flare-ups. In June 2012, the Veteran sought emergency treatment for an acute flare-up of back and sciatic pain and he reported that he was unable to walk. He was discharged with a referral to the pain clinic and told to continue Vicodin, gabapentin, ibuprofen, and muscle relaxers. A November 2013 VA physical therapy consult for low back pain reflects a decrease in trunk range of motion and core strength and increased tightness in back musculature and low back pain. Range of motion was noted to be limited in all planes. The Veteran was prescribed an additional physical therapy session, as well as a home exercise program and issued a back brace. A September 2014 VA examination report reflects the Veteran reported flare-ups of occasional low back pain. Upon examination, flexion was to 50 degrees with pain at 50 degrees, extension was to 10 degrees, right lateral flexion was to 15 degrees, left lateral flexion was to 15 degrees with pain at 15 degrees, and right and left lateral rotation were to 20 degrees each with pain at 20 degrees. The examiner noted that repetitive use testing resulted in additional limitation of range of motion and functional loss and/or impairment resulting in less movement than normal and pain on movement. However, increased pain, weakness, fatigability, or incoordination did not further limit functional ability during flare-ups or after repeated use over time. While the Veteran had muscle spasms, the examiner indicated that it did not result in abnormal gait or spinal contour, but the examiner noted regular use of a back brace and walker. The examiner provided a diagnosis of intervertebral disc syndrome (IVDS) but indicated there were no incapacitating episodes over the past twelve months. In February 2015, the Veteran underwent a transforaminal steroid injection and in December 2015, the Veteran underwent a bilateral lumbar medial branch block. Additionally, he sought physical therapy treatment in January 2016. The Veteran again visited the emergency room in June 2016 for exacerbation of low back pain over the previous two months and a July 2016 neurology consult reflects the Veteran reported injections and physical therapy for his back with little relief, and that his back pain had significantly worsened over the last four months, resulting in being dependent on his walker for mobility. The Veteran was assessed with low back pain and advised to continue with conservative therapy. However, in late-July 2016, the Veteran underwent a minimally invasive hemilaminectomy and removal of a significantly-sized synovial cyst that was compressing the L5 nerve root. In January 2017, the Veteran sought emergency treatment for his low back pain and followed up with physical therapy, where he was noted to have range of motion restrictions of the lumbar spine in all planes. A June 2019 VA examination report reflects the Veteran reported previous pain treatment, physical therapy, and surgery for his back with minimal relief. The Veteran denied flare-ups but reported limitation in his activities due to his lumbar spine disability. Upon examination, flexion was to 30 degrees, extension was to 15 degrees, right and left lateral flexion were to 20 degrees each, and right and left lateral rotation were to 25 degrees each, with pain noted in all planes. There was evidence of pain in weight-bearing, but no tenderness to palpation. The Veteran was able to do repetitive use testing without additional loss of function or range of motion, but the examiner indicated that pain would significantly limit functional ability with repeated use over time, with flexion further limited to 20 degrees and extension to 10 degrees. Muscle strength was normal, and while the Veteran had IVDS, there were no episodes of acute signs and symptoms requiring prescribed bed rest in the last twelve months. The examiner noted regular use of a brace and walker and was unable to stand or lift for prolonged periods of time. Additionally, the examiner indicated that for prior examinations with missing range of motion findings, the Veteran would approximately have had a 30 percent reduction in ranges of motion. Physical therapy records dated in September 2019 show flexion limited to 30 degrees, extension to 15 degrees, and right and left lateral flexion to 15 degrees each. An August 2020 VA examination report reflects the Veteran reported flare-ups which decreased his ability to walk, stand, kneel, climb, bend, and lift. Upon examination, flexion was to 50 degrees, extension was to zero degrees, and right and left lateral flexion and rotation were to 20 degrees each, with pain in all planes resulting in functional loss. After repetitive use testing and estimations for flare-ups and after repeated use over time, the examiner found flexion was further limited to 45 degrees and right and left lateral flexion were limited to 15 degrees each, with pain, fatigue, and lack of endurance contributing to functional loss. Muscle strength was reduced to 4/5 on the left side, but there was no muscle atrophy. The examiner indicated that the Veteran had decreased ability to bend, walk, stand, or lift more than light weights more often than infrequently. Additional August 2020 VA examination reports reflect that the Veteran reported urinary incontinence beginning in 2008 after prostate surgery and constipation after a 2016 back surgery. The examiner opined that the Veteran’s urinary incontinence was less likely than not due to his lumbar spine disability and subsequent radiculopathy, and at least as likely as not due to his prostate surgery. As to the Veteran’s bowel complaints, after examining the Veteran and reviewing the claims file, the examiner opined that while degenerative disc disease can affect the spinal cord causing cauda equina-type symptomatology such as bowel incontinence, it was less likely than not that his constipation was due to a lumbar spine disability, and more likely than not that his constipation was due to a nonservice-connected stroke which significantly affected his left upper and lower extremities. Upon review of the record, and affording the Veteran the benefit of doubt, the Board finds that an increased 40 percent evaluation, but no higher, is warranted for the Veteran’s lumbar spine disability from October 9, 2008 to July 25, 2016 and from October 1, 2016. Specifically, an October 9, 2008 SSA examination shows that the Veteran’s lumbar spine forward flexion was limited to 30 degrees, which warrants a 40 percent rating. The Board acknowledges that a March 2009 VA examination report shows forward flexion of 70 degrees and combined range of motion of 165 degrees, symptomatology associated with a 10 percent evaluation, and the March 2011 and September 2014 VA examination reports show forward flexion of 50 degrees, symptomatology associated with a 20 percent evaluation. However, the Board notes that it has previously found these examinations to be inadequate. The Board further notes that several months prior to the March 2011 VA examination, the Veteran underwent a transforaminal epidural steroid injection for his lumbar spine disability and that throughout the appeal period, the Veteran was prescribed prescription pain medication for his lumbar spine disability. Thus, not only were the examinations inadequate, it is also unclear whether the March 2009, March 2011, and September 2014 VA examinations took into account the ameliorative effects of these treatments. For these reasons, the Board finds that a 40 percent rating is warranted from October 9, 2008 to July 26, 2016. The Board has considered whether an increased rating is warranted prior to October 9, 2008. However, it is from this October 9, 2008 date that it is factually ascertainable that the Veteran’s lumbar spine disability had increased in severity to warrant a rating in excess of the 10 percent he was previously assigned. Additionally, the Board notes that after the Veteran’s July 2016 lumbar spine surgery, he was not afforded a VA examination until June 2019. The June 2019 VA examination report showed forward flexion limited to 30 degrees, symptomatology associated with a 40 percent rating. In light of the Board’s grant of a 40 percent evaluation from October 9, 2008 until his surgery in July 2016, and the first VA examination after his surgery showing symptomatology associated with a 40 percent rating, the Board finds that a 40 percent rating is also warranted from the end of the Veteran’s temporary total rating, or from October 1, 2016. The evidence of record does not reflect that a rating in excess of 40 percent is warranted from October 9, 2008 to July 25, 2016 or from October 1, 2016. In light of the Board’s grant of a 40 percent rating from October 9, 2008 to July 25, 2016 and from October 1, 2016, the Veteran is in receipt of the maximum schedular rating available based on limitation of motion in the absence of unfavorable ankylosis of the thoracolumbar spine. The evidence of record does not show a finding of ankylosis or symptomatology more nearly approximated by ankylosis, favorable or otherwise, at any point during the appeal period. Where a veteran is in receipt of the maximum schedular rating based on limitation of motion, and a higher rating requires ankylosis, the regulations pertaining to functional impairment are not for application. See Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. §§ 4.40, 4.45, 4.59. The Board has also considered whether a higher rating is warranted under the formula for rating IVDS based on incapacitating episodes. However, the record does not show incapacitating episodes with bed rest prescribed by a physician having a total duration of at least 6 weeks during the past twelve months. As such, a rating in excess of 40 percent from prior to July 26, 2016 or from October 1, 2016 is not warranted. The Board has also considered whether separate or higher ratings are warranted for neurologic manifestations due to his lumbar spine disability. However, while the Veteran claimed his urinary incontinence and bowel constipation were due to his lumbar spine disability, these have been attributed to his prostate surgery and stroke, respectively, by the August 2020 VA examiner. The Veteran is not competent to provide a nexus opinion in this case, as the issue is medical complex and requires specialized medical education. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). Consequently, the Board gives more probative weight to the August 2020 VA examiner’s opinions, as they are based on a thorough review of the Veteran’s medical history and medical expertise. As to the Veteran’s radiculopathy, as discussed further below, the Board is remanding the Veteran’s increase rating claims for bilateral lower extremity radiculopathy for further development. In conclusion, after a thorough review of the record, and affording the Veteran the benefit of doubt, the Board finds that a disability rating of 40 percent, but no higher, is warranted from October 9, 2008 to July 25, 2016 and from October 1, 2016. REASONS FOR REMAND 1. Entitlement to a compensable disability rating for left lower extremity radiculopathy of the sciatic nerve associated with lumbar spine degenerative disc disease prior to July 26, 2016, and in excess of 20 percent thereafter, is remanded. 2. Entitlement to a compensable disability rating for right lower extremity radiculopathy of the sciatic nerve associated with lumbar spine degenerative disc disease prior to August 28, 2020, and in excess of 20 percent thereafter, is remanded. 3. Entitlement to a compensable disability rating for left lower extremity radiculopathy of the femoral nerve associated with lumbar spine degenerative disc disease prior to August 28, 2020, and in excess of 20 percent thereafter, is remanded. 4. Entitlement to a compensable disability rating for right lower extremity radiculopathy of the femoral nerve associated with lumbar spine degenerative disc disease prior to August 28, 2020, and in excess of 20 percent thereafter, is remanded. The Board cannot make a fully-informed decision on the issues of entitlement to increased ratings for bilateral lower extremity radiculopathy at this time. As it pertains to these claims, the Veteran is in receipt of a 20 percent rating for left lower extremity sciatic nerve radiculopathy from July 26, 2016, and 20 percent ratings each for right lower extremity sciatic nerve and bilateral lower extremity femoral nerve radiculopathy from August 28, 2020. Treatment records reflect, however, complaints of lower extremity radiculopathy prior to these effective dates. Specifically, straight leg testing during an October 2008 Social Security Administration examination was positive; a March 2009 VA examination report noted complaints of lumbar pain radiating to the right lower extremity and a mildly positive straight leg test on the right side; a June 2010 VA physical therapy record noted a diagnosis of lumbar radiculopathy; a December 2010 VA treatment record shows a transforaminal epidural steroid injection for chronic lower back pain with radiation; a March 2011 VA examination report notes right-sided sciatic pain since 2003, occasionally on the left, with paresthesias in the feet bilaterally; and a June 2012 VA emergency record showing treatment for an acute flare-up of back and sciatic pain. Therefore, the Board finds that a remand is warranted for an addendum opinion as to the Veteran’s bilateral lower extremity radiculopathy, to include an opinion as to when radicular symptoms first manifested and whether the symptoms were mild, moderate, or severe in severity. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to October 29, 2008, is remanded. As discussed above, as entitlement to a TDIU was raised as part and parcel of the Veteran’s lumbar spine increased rating claim, entitlement to a TDIU prior to October 29, 2008 remains pending before the Board. Because a decision on the remanded increased rating claims could significantly impact a decision on the issue of entitlement to a TDIU prior to October 29, 2008, the issues are inextricably intertwined. A remand of the claim of entitlement to a TDIU prior to October 29, 2008 is required. 6. Entitlement to special monthly pension based on the need for aid and attendance prior to June 24, 2016 is remanded. Because a decision on the remanded increased rating claims could significantly impact a decision on the issue of entitlement to special monthly pension prior to June 24, 2016, the issues are inextricably intertwined. A remand of the claim of entitlement to special monthly pension prior to June 24, 2016 is required. The matters are REMANDED for the following actions: 1. Obtain an addendum opinion from an appropriate clinician as to the Veteran’s bilateral lower extremity radiculopathy. An in-person examination is not necessary unless deemed so by the examiner. The examiner is asked to opine as to when radicular symptoms first manifested, to include consideration of treatment records showing a positive straight leg test during an October 2008 Social Security Administration examination; a March 2009 VA examination report noting complaints of lumbar pain radiating to the right lower extremity and a mildly positive straight leg test on the right side; a June 2010 VA physical therapy record noting a diagnosis of lumbar radiculopathy; a December 2010 VA treatment record showing a transforaminal epidural steroid injection for chronic lower back pain with radiation; a March 2011 VA examination report noting right-sided sciatic pain since 2003, occasionally on the left, with paresthesias in the feet bilaterally; and a June 2012 VA emergency record showing treatment for an acute flare-up of back and sciatic pain. If the examiner finds that left lower extremity sciatic nerve radiculopathy manifested prior to July 26, 2016, or that right lower extremity sciatic nerve and bilateral lower extremity femoral nerve radiculopathy manifested prior to August 28, 2020, the examiner must opine as to whether the radiculopathy was mild, moderate, or severe in severity. 2. After completing the above, and any other development as may be indicated, the Veteran’s claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). (Continued on next page)   An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. K. Parakkal Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Owen, 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.