Citation Nr: 21007345 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 18-55 337A DATE: February 9, 2021 ORDER 1. Entitlement to a rating of 40 percent but not higher for residuals of a fracture of the pelvis is granted for the entire period of the appeal. 2. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity is denied. 3. Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity is denied. 4. Entitlement to special monthly compensation based on aid and attendance is granted, with an effective date of January 7, 2013. FINDINGS OF FACT 1. Resolving inconsistencies in the VA examination report and placing some weight on the appellant’s and daughter’s medical training, the Veteran’s forward flexion of the thoracolumbar spine was shown by the most probative evidence of record to be 30 degrees or less for the entire period of the appeal. 2. Throughout the appellate period, the Veteran’s radiculopathy of the left lower extremity was manifested by symptoms consistent with mild incomplete paralysis of the sciatic nerve. 3. Throughout the appellate period, the Veteran’s radiculopathy of the right lower extremity was manifested by symptoms consistent with mild incomplete paralysis of the sciatic nerve. 4. The criteria for special monthly compensation based on the need for aid and attendance have been met. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating of 40 percent, but not higher, for residuals of a fracture of the pelvis have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (DC) 5235-5243 (2019). 2. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2019). 3. The criteria for a disability rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.20, 4.27, 4.40, 4.124a, Diagnostic Code 8520 (2019). 4. The criteria for special monthly compensation based on the need for the regular aid and attendance of another person are met. 38 U.S.C. § 1114 (2012); 38 C.F.R. §§ 3.350, 3.352 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from April 1946 to July 1966. This appeal comes to the Board of Veterans’ Appeals (Board) from a March 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran passed away in June 2013. The appellant was properly substituted for the Veteran and continues the increased rating claims pending at the time of his death. A Board video conference hearing took place in November 2020 before the undersigned Veterans Law Judge; a transcript is available in the record. Increased Ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). Increased Ratings for residuals of a fracture of the pelvis The Veteran’s back disability is currently rated under 38 C.F.R. § 4.71a; DC 5235. Under DC 5235, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a , DC 5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a , DC 5242, Note (4). Alternatively, a spinal disorder can be rated as Intervertebral Disc Syndrome (IVDS) based on incapacitating episodes. Under those criteria, found at Diagnostic Code 5243, a 20 percent evaluation requires incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of less than six weeks but more than four weeks and a 60 percent rating is warranted if incapacitating episodes have a total duration of at least six weeks during the past 12 months. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires treatment and bed rest prescribed by a physician. 38 C.F.R. § 4.71a , DC 5243, Note (1). DC 5243 is not for application in the present case, as neither medical or lay evidence shows a diagnosis or complaint of IVDS, nor has the Veteran been prescribed bed rest by a physician. The Veteran was granted a 20 percent rating for residuals of a fracture of the pelvis in March 2005 and the Veteran sought a higher rating. The Veteran’s claim was remanded by the Board in November 2006 for further development and the Board denied the Veteran’s claim in March 2009, in what was a final decision. The Veteran subsequently put forward a claim for an increased rating on March 12, 2012. In doing so, the Veteran stated that his symptomatology had worsened, as evidenced by being “confined to a wheelchair and [that he] cannot walk at all.” The Veteran stated that he lost all strength in his legs, could not bend over at all, could not take care of himself, needed help getting out of bed and was unable to get around on his own. See March 2012 VA 21-4138. The Board has considered all evidence up to one year prior to March 12, 2012. Records of care at a military clinic include a March 2012 physical assessment. The physician noted the history of a spinal fracture in 1947 which required a cast for 6 months. His daughter, a physician, reported that the Veteran experienced low back pain since 1947 and his wife, an intensive care nurse, was having difficulty caring for him, especially in the past 6 months. The Veteran was using a wheelchair and could not walk long distances and experienced pain when transitioning from sitting to standing. The physician observed that the Veteran walked bent at the waist but could walk the full length of the corridor. Motor strength was normal and mental status was awake, alert, with normal attention span. There was hip pain on motion and mild tenderness of the thoracolumbar region. The physician noted a review of November 2011 imaging studies that showed a T-12 compression fracture and two lumbar bulging discs. The Veteran was afforded a VA examination in July 2012. During the examination the Veteran stated that his injury had progressively worsened in the in the decade proceeding the examination. The Veteran reported low back pain with standing and walking, with no pain in the back while seated. The Veteran stated that in the year proceeding the examination he had increased difficulty with walking and balancing, which required him to use a wheelchair when he left his home, which the Veteran reported doing with his wife for medical appointments and shopping. When at home the Veteran reported using the furniture or walls to ambulate, or a cane for short distances. Flare ups were reported, with sitting or lying down with no activity being needed for the pain to subside. Upon examination, range of motion showed forward flexion to 60 degrees with pain at 40 degrees, and extension to -20. Right and left lateral flexion were to 10 degrees with pain at 10 degrees. There was no change in repetitive use testing. Functional loss was described as less movement than normal, pain on movement, disturbance of locomotion, interference with sitting/standing and/or weight-bearing, as well as inability to straighten back beyond 20 degrees of forward flexion. Muscle strength testing was normal and without muscle atrophy. Intervertebral disc syndrome (IVDS) was not found. See July 2012 VA Examination. In a September 2012 addendum, the examiner summarized the Veteran’s condition as follows: “This is a further addenda to the C&P examination and notes of July 06, 2012 and Aug 02, 2012 on this patient, who has a history of a spinal injury with vertebral fracture in 1947 while stationed in Japan, and subsequent spinal stenosis and radiculopathy to the lower extremities. He cannot walk or stand for any significant time and his condition makes him totally disabled as outlined in the prior reports. There has been no change in status since the evaluations in July and August of 2012.” See October 2012 VA examination. The Veteran’s claim was denied, and the Veteran subsequently appealed. In doing so, a letter was submitted from the Veteran’s attending military clinic physician, dated November 2012. The physician wrote that the Veteran’s back had become progressively worse over the years and that as of November 2012 the Veteran was unable to leave the house, drive, or walk. The private examiner further opined that the Veteran should be evaluated at 100 percent. See February 2013 Medical Treatment Record. A review of the Veteran’s medical record shows that he continued to receive treatment for his service-connected injury throughout the appellate period, but the record does not show that any further testing was done regarding the forward flexion of the Veteran’s thoracolumbar spine. The Veteran passed away in June 2013, and the Veteran’s spouse timely substituted. A hearing before the Board was requested, which was provided in November 2012. At the hearing, the Veteran’s spouse and daughter identified themselves as a critical care nurse and physician and National Guard medical officer respectively. They spoke credibly as to the limitations suffered that the Veteran suffered from, to include the need for assistance with showering, dressing, preparing food, and getting into or out of bed. The Veteran’s spouse further stated that “…he was able to bend about, I would say about 30 percent he can bend.” See November 2020 Hearing Transcript, p. 3. In this, the Board recognizes that the Veteran’s spouse is a registered nurse and as such is competent to make such a medical determination. It is the duty of the Board to weigh the probative evidence. In the present case, the Board finds that the March 2012 VA examination to be the most probative evidence of record. At one point in the examination, the examiner noted flexion to 60 degrees but also noted pain on standing with an inability to stand upright beyond 20 degrees of forward flexion with an abnormal gait. In reaching this conclusion, the Board notes that the March 2012 VA examiner reviewed the Veteran’s medical record, conducted an in-person examination, provided detailed measurements of the Veteran’s range of motion, considered the Veteran’s lay statements, indicated the functional impact of the Veteran’s impairments, provided a rationale for his findings, and followed up several months later with a detailed addendum opinion that was supported by the record. Resolving all inconsistencies in the Veteran’s favor, the Board will find that flexion was less than 30 degrees at least at one point during the examination. The Veteran’s military physician, who wrote to the Board in November 2012, provided a medical opinion that the Board affords less probative weight to this opinion as it is applicable to rating the individual disabilities. This is because the private physician did not indicate whether any in-person testing was done, did not mention any medical records that were reviewed, and provided a generalized and conclusory statement without a rationale to support it. Finally, the Board has considered the testimony of the Veteran’s spouse and daughter. The Board does acknowledge the Veteran’s spouse medical experience as a registered nurse, and the Veteran’s daughter’s expertise as a brigade surgeon in the United States Army Reserves. They testified that the Veteran’s back appeared stiff but were not clear that there was ankylosis or range of motion 30 degrees or less. Resolving all doubt in this estimate, 30 percent of a range of zero to 90 degrees would be (arithmetically) 27 degrees and thus less than 30 degrees. In sum, the most probative medical evidence of record does not show that a 40 percent rating is warranted for forward flexion of the thoracolumbar spine, as the Veteran’s range of motion was shown to be 30 degrees or less. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Increased ratings for radiculopathy Diagnostic Code 8520 applies to the sciatic nerve and allows for a 10 percent rating for mild incomplete paralysis and a 20 percent rating for moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a , DC 8520. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve, and a 60 percent rating is applicable if the incomplete paralysis is severe with marked muscle atrophy. An 80 percent rating is available for complete paralysis evidenced by the foot dangling and dropping, no possible active movement below the knee, and weakened or lost flexion of the knee. Id. The terms mild, moderate, moderately severe and severe are not defined in the Rating Schedule. The use of such terminology by VA examiners and others, although an element of evidence to be considered by the Board, is not necessarily dispositive. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124A. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Entitlement to a rating in excess of 20 percent for radiculopathy of the left lower extremity Entitlement to a rating in excess of 20 percent for radiculopathy of the right lower extremity The Veteran was granted 20 percent ratings for radiculopathy of the left and right lower extremities in March 2005 and the Veteran sought a higher rating. The Veteran’s claim was remanded by the Board in November 2006 for further development and denied the Veteran’s claim in March 2009, in what was a final decision. The Veteran subsequently put forward a claim for an increased rating on March 12, 2012. The Board has considered all evidence up to one year prior. In July 2012 the Veteran received a VA examination. There, the examiner noted that due to the Veteran’s radiculopathy, he suffered from “pain on standing with inability to stand upright beyond 20 degrees of forward flexion with abnormal gait.” The severity of the Veteran’s radiculopathy was found to be moderate. Neither constant, nor intermittent paid was noted, nor was paresthesias, dysesthesias or numbness. See July 2012 VA examination, pp. 7-8. The Board has further reviewed the Veteran’s medical treatment records, and during the appellate period no medical evidence has manifested showing that the Veteran’s radiculopathy was severe in nature, as the medical evidence of record does not show evidence of foot drop, paralysis, constant weakness, or muscle atrophy. The Board notes that the record is absent of lay evidence to the contrary, to include the November 2020 Hearing before the undersigned VLJ. In light of the above, the evidence of record does not support a rating of 40 percent for moderately severe symptoms under Diagnostic Code 8520 as the medical evidence as a whole supports a disability picture consistent with no more than moderate incomplete paralysis of the sciatic nerve of the right lower extremity. In light of his symptoms and clinical findings, the Board concludes that these neurologic abnormalities approximate no more than moderate incomplete paralysis of the sciatic nerve of the left and right lower extremity contemplated by the current 20 percent evaluations. Because the preponderance of the evidence is against the Veteran’s claims, the benefit of the doubt doctrine is not for application. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Special Monthly Compensation for Aid and Attendance Under the pertinent criteria, the law provides that SMC is payable if a veteran, as the result of service-connected disability, has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114 (l) (West 2014); 38 C.F.R. § 3.350 (2016). The criteria for determining that a Veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352 (a) (2016). Determinations as to the need for aid and attendance are factual in nature and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as the: (1) Inability of the claimant to dress or undress him or herself or to keep him or herself ordinarily clean and presentable; (2) Frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) Inability of the claimant to feed him or herself through loss of coordination of upper extremities or through extreme weakness; (4) Inability to attend to the wants of nature; or (5) Incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. It is not required however that all of the disabling conditions enumerated be present before a favorable rating may be made. The particular personal functions which the claimant 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, not that there be a constant need. 38 C.F.R. § 3.352 (a) (2016). A Veteran who is bedridden shall also be considered to require regular aid and attendance. “Bedridden” constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed bed rest for a lesser or greater portion of the day to promote convalescence or cure will not suffice. Id. When all the evidence is assembled, the Secretary is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Therefore, the issue is adjudicated on the basis of the record, keeping in mind the benefit of the doubt. Under 38 U.S.C. § 1114 (s), special monthly compensation is payable if a veteran has a single service-connected disability rated as 100 percent and, (1) has additional service-connected disability or 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 (2) is permanently housebound by reason of service-connected disability or disabilities. The second requirement is met when a Veteran is substantially confined as a direct result of service-connected disability to his dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). As a result of the increased rating granted above, at the time of his death the Veteran he was rated at 40 percent under DC 5235 for the fracture of the Veteran’s pelvis, and 20 percent under DC 8520 for right and left lower extremity radiculopathy, for a combined rating of 70 percent. Entitlement to Special Monthly Compensation for Aid and Attendance In May 2012 the Veteran submitted his claim. The Board has considered all evidence up to one year prior. In March 2012, a Social Work Assessment was of record, in which the Veteran was found to not be housebound. It was found there that the Veteran received assistance with showering, foot care, dressing, shaving and oral care, but that the Veteran was able to change linen, do the laundry, make the bed and go shopping. See November 2012 CAPRI, p. 4. Contradictory to this, a letter from Dr. P.C, dated November 2012, stated that the Veteran’s injuries “have rendered him unable to leave the house and unable to drive or walk even useful distances at all. He needs total care due to his spinal and leg conditions.” See February 2013 Medical Treatment Record – Government – Facility. The Veteran submitted a claim for Aid and Attendance in May 2012. In doing so, the Veteran stated that he could walk 10 feet with a cane but was mostly confined to a wheelchair. The Veteran further stated that he could not take care of himself, and cited loss of strength in his legs with the inability to bend over as being the cause. See May 2012 VA 21-4138. The Veteran was provided an examination for housebound status or permanent need for regular aid and attendance in May 2012. There, the examiner found that the Veteran was able to feed himself but could not prepare his own meals. The Veteran claimed assistance was needed to bathe and tend to other hygiene needs and required medication management. The Veteran was not found to be legally blind, to require nursing home care, and did not have the ability to manage his own financial affairs. The examiner found that the Veteran needed assistance 90 percent of the time but did not indicate how much of that assistance was due to the Veteran’s service-connected disabilities and how much was due to his non-service connected Alzheimer’s and dementia. The Veteran was noted to leave the home for medical appointments every 3 to 4 months. A description of the Veteran’s limitations included unsteady gait, poor balance, decreased propulsion, and only being able to walk 10 feet with the help of a cane. See May 2012 VA 21-2680. Another VA examination was provided in July 2012. There, the Veteran reported pain when standing and walking, but no pain when sitting and that the Veteran increasingly used a wheelchair when leaving the home. When in the home, the Veteran reported holding onto furniture and walls to ambulate or using a cane to move short distances. The Veteran stated that he could dress himself without assistance, but his wife had to lay out his clothing, that he could bathe himself with minor assistance, and that he could get up from a seated position without assistance. The Veteran was noted to leave the house with his wife for medical appointments, shopping and “other basic activities” but usually remain in his wheelchair of their car. See May 2014 Medical Treatment Record – Government Facility. As of January 2013, a nursing care note showed that the Veteran received assistance in bathing more than one part of the body. The Veteran was able to get clothes from closets and drawers, including under-clothes, outer garments and fasteners, but received assistance in dressing and undressing. The Veteran was found to need assistance with transferring and toileting but could feed himself without assistance. The note indicated that the Veteran had to be accompanied on shopping trips. See March 2013 CAPRI, p. 56. As of February 2013, the Veteran was found to be in “high risk of nursing placement.” Id at 1. The Veteran subsequently passed away in June 2013. See May 2014 Death Certificate. Also of record is a hearing before the undersigned VLJ, dated November 2020. At the hearing, the Veteran’s family members described the limitations of the Veteran’s conditions and the effect on his daily life. The Veteran’s family members described how the Veteran was not “able to do basic things” for the last three years of his life. It was described how the Veteran was uncomfortable sitting down, and thus required work in which he could stand up throughout the day. The Veteran’s wife described how, as a registered nurse, she had to take care of his daily needs, including cooking, bathing and dressing. It was also described how the Veteran was in a wheelchair and was unable to drive and needed handles to help him get in and out of their car. See November 2020 Hearing Transcript. Based on a thorough review of the record, the Board finds that the preponderance of the evidence is for the Veteran's claim for special monthly compensation based on the requirement of care and assistance on a regular basis to protect the Veteran from hazards or dangers incident to his daily environment. In reaching this conclusion, the Board notes that during the appellate period, the Veteran was shown to be unable to take care of his daily needs, such as cooking, bathing, dressing and in transferring. The question thus before the Board is when the benefit arose. Here, the Board finds that the benefit arose as of January 7, 2013. There, the nursing note shows that the Veteran was bathing dependent, dressing dependent, toileting dependent and transferring dependent. In this, the note showed that the Veteran could not move into or out of bed without assistance. Furthermore, the record shows that the Veteran needed to have meals prepared and served, needed to be accompanied on any shopping trip, travel was limited with the assistance of another, and laundry items had to be done by another. See March 2013 CAPRI, pp. 56-57. This stands in contrast to the Veteran’s May 2012 VA examination, which noted unsteady gait, poor balance, decreased propulsion, and only being able to walk 10 feet with the help of a cane. Furthermore, the VA examiner found that the Veteran required assistance with bathing, hygiene needs and preparing food, but did not list transferring or dressing as areas in which assistance was needed, nor did the examiner find that nursing home care was required. See May 2012 VA examination. And while the record does indicate a worsening of symptomatology between the May 2012 VA examination and the January 2013 nursing care note, the record does not show any point in time prior to January 2013 in which the Veteran’s service-connected disabilities required care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. In sum, the preponderance of the evidence demonstrates that the Veteran is entitled to special monthly compensation based on the need for aid and attendance as of January 7, 2013. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). J.W. FRANCIS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board P. Abels, 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.