Citation Nr: 21010202 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 07-10 042A DATE: February 24, 2021 ORDER Entitlement to a 40 evaluation for the service-connected low back pain with degenerative disc disease prior to November 14, 2007, is granted. Entitlement to a total disability rating based upon individual unemployability (TDIU) prior to November 14, 2007, is granted. Entitlement to special monthly compensation (SMC) based on the need for regular aid and attendance or housebound is granted. Entitlement to SMC by reason of being housebound is dismissed. FINDINGS OF FACT 1. Prior to November 14, 2007, the Veteran’s service-connected back disability was manifested by severe symptoms with marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, and narrowing or irregularity of joint space. 2. From July 23, 2003, to November 14, 2007, the Veteran was unable to maintain substantially gainful employment due to his service-connected low back pain with degenerative disc disease. 3. Resolving any reasonable doubt in the Veteran’s favor, his service-connected back disability renders him so helpless as to be in the need of regular aid and attendance of another person. 4. The grant of SMC at the aid and attendance rate renders the question of entitlement to SMC on account of being housebound moot. CONCLUSIONS OF LAW 1. The criteria for a 40 percent evaluation for the service-connected low back pain with degenerative disc disease prior to November 14, 2007, have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). 2. The criteria for a TDIU from July 23, 2003, to November 14, 2007, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. 3. The criteria for SMC based on regular aid and attendance have been met. 38 U.S.C. § 1114; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. 4. The issue of entitlement to the grant of SMC on account of being housebound is dismissed. 38 U.S.C. §§ 1114(l), (s), 7104, 7105; 38 C.F.R. §§ 20.101, 20.200, 20.202, 20.204. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from July 1987 to July 1990. These matters are on appeal from multiple rating decisions rendered by the Agency of Original Jurisdiction. 1. Entitlement to an evaluation greater than 20 percent for the service-connected low back pain with degenerative disc disease prior to November 14, 2007. The Veteran’s attorney argues that the Veteran is entitled to a 40 percent rating for his service-connected low back pain with degenerative disc disease under Diagnostic Code 5295. 38 C.F.R. § 4.71a. The attorney has limited the scope of the appeal to 40 percent. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection is required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board of Veterans’ Appeals (Board) will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). 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. When evaluating joint disabilities rated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The U.S. Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. Prior to September 26, 2003, the criteria in effect for lumbosacral strain provided for a 10 percent rating for characteristic pain on motion. A 20 percent rating was warranted where there is evidence of muscle spasm on extreme forward bending, loss of lateral spine motion, unilateral, in standing position. The maximum rating of 40 percent was warranted where the symptoms are severe, with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295. The Veteran’s attorney has requested that the Board evaluate the Veteran’s claim under these criteria rather than the current rating criteria for spine disabilities. The prior rating criteria, as discussed below, are the most advantageous to the Veteran. On July 23, 2003, VA received the Veteran’s claim of entitlement to service connection for a back disability. The Veteran sought home health care services due to his back disability in 2003. The Veteran had a magnetic resonance imaging (MRI) that showed focal disc protrusions at L3-L4, L4-L5, and L5-S1. There was also facet arthritis. In August 2003, the Veteran rented a wheelchair at the direction of his doctor. The Veteran was certified for home care from August 2003 to October 2003. In August 2003, the Veteran was treated at a VA emergency room for back pain. The Veteran returned in September 2003 with more complaints of back pain. X-ray studies showed narrowing between L4 and L5 and retrolisthesis of L4 over L5. Degenerative changes and scoliosis of the lumbar spine were noted. The Veteran was certified for additional home health care benefits for his back disability from February 2004 to April 2004. In May 2004, the Veteran was granted Social Security Administration disability benefits, in part, due to his degenerative disc disease of the lumbar spine. In April 2005, the Veteran had a private MRI. The findings were abnormal and showed disc herniations at L3-4, L4-5, and L5-S1 levels. The Veteran was prescribed a heavy duty walker and commode. In July 2005, the Veteran underwent an comprehensive adult nursing assessment. The Veteran presented with herniated disc and constant pain. He was evaluated as a fall risk. The Veteran required assistance with bathing and showering. In November 2005, the Veteran was prescribed a TENs unit. In April 2006, the Veteran was afforded a VA spine examination. The Veteran reported back pain that was remarkably limiting. His daily pain was a 6 out of 10. He experienced major flare-ups 4 to 5 times per year. These flare-ups were manifested by pain that was a 10 out of a 10. The flare-ups lasted from a week to 14 weeks. During the 14 week flare-up, the Veteran required home healthcare and nursing friends. A friend moved in to help him. He was under the care of a pain management physician. The Veteran was able to walk 50 feet with the assistance of a walker and was unsteady on his feet. He used a shower chair and commode rails. The Veteran reported that he called an ambulance 15 times over a 4-year period to get him out of his house during periods of intense back pain. Over the last 12-month period, the Veteran estimated that he spent 6 to 7 months in bed due to back pain. The Veteran arrived at the VA examination in a wheelchair. Upon examination, there was mild tenderness to palpation. The lumbar spine was manifested by: forward flexion was from zero to 45 degrees; extension was from zero degrees to 5 degrees; bilateral lateral bending was from zero to 30 degrees; right rotation was from zero degrees to 20 degrees; and, left rotation was from zero to 15 degrees. The Veteran was unable to complete repetitive use testing. Previously, he was employed as a pizza delivery driver but was laid off due to excessive absenteeism because of his back pain. In July 2006, the Veteran sought home care services again for his back disability and gout. The Veteran’s physician indicated that he needed intermediate to care to assist with daily living services. He also required home delivered meals and assistive/adaptive devices. The Veteran required hands on assistance with at least two activities of daily living. The Veteran was certified for home healthcare for September 2006 to February 2007 due, in part, to his back disability. In September 2006, the Veteran underwent another MRI. Multilevel disc disease at L3-4, L4-5, and L5-S1 was noted. In October 2006, the Veteran wrote that he had required emergency treatment and home healthcare periodically through 2004 and 2005. The Veteran was evaluated by Dr. M.B. in January 2007. She reported the Veteran had facet arthritis of the spine that caused difficulty with the activities of daily living. During flare-ups, the Veteran utilized adaptive equipment. Again, the Veteran was certified for home healthcare from March 2007 to May 2007. His type II diabetes and back disability were listed as the diagnoses pertinent to his home healthcare. Imaging studies prior to November 14, 2007, show narrowing of the joint space. Additionally, the medical and lay evidence indicates that the Veteran’s back disability was manifested by severe symptoms including marked limitation of motion. During flare-ups, the Veteran was unable to move and received home healthcare because he was unable to care for himself. The April 2006 examination documented that the Veteran’s back pain was remarkably limiting and that he was only able to walk 50 feet with the assistance of a walker. Prior to November 14, 2007, the Veteran’s service-connected back disability was manifested by severe symptoms with marked limitation of forward bending in standing position, loss of lateral motion with osteo-arthritic changes, and narrowing or irregularity of joint space. Based upon the foregoing, the Board finds that the Veteran is entitled to a 40 percent evaluation for his service-connected low back pain with degenerative disc disease prior to November 14, 2007. The Veteran’s attorney has specifically argued that the Veteran is entitled to a 40 percent evaluation under Diagnostic Code 5295, and has limited the scope of the appeal to a 40 percent evaluation. 38 C.F.R. § 4.71a. Therefore, the Board’s grant of a 40 percent evaluation under Diagnostic Code 5295 is a full grant of the benefits sought. U.S.C. §§ 1155, 5103(a), 5103A, 5107(b); 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2003). 2. Entitlement to a TDIU prior to November 14, 2007. The Veteran contends that his service-connected back disability has precluded substantially gainful employment since July 23, 2003. He was fired from his job as a pizza delivery driver due to the excessive absenteeism caused by his back disability. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The central inquiry is, “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Effective July 23, 2003, the Veteran was service-connected for the following: chronic low back pain with evidence of degenerative disc disease rated as 40 percent disabling; left lower extremity lumbar radiculopathy associated with chronic low back pain, rated as 20 percent disabling; and, right lower extremity lumbar radiculopathy associated with chronic low back pain, rated as 20 percent. These disabilities are evaluated as a single disability because they arise from a common etiology. Because he had at least one service-connected disability rated at 60 percent or more at the time, the Veteran has met the schedular criteria for a TDIU rating under 38 C.F.R. § 4.16(a) since July 23, 2003. The Veteran last worked as a pizza delivery driver in March 2003. He was fired due to excessive absenteeism related to his service-connected back disability. As discussed above, the Veteran has experienced annual incapacity episodes of back pain since 2003. During the incapacitating episodes, the Veteran required the assistance of home health aides. In July 2016 and February 2018, Dr. P.C. concluded that the Veteran’s service-connected back disability had concluded sedentary and physical employment since 2003. Dr. P.C.’s opinions were based upon a review of the Veteran’s medical records and his medical history. Based upon the forgoing, the Board finds that the Veteran has been unable to maintain substantially gainful employment since July 23, 2003. The claim of entitlement to a TDIU is granted, effective July 23, 2003. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.15, 4.16, 4.19. 3. Entitlement to SMC on the need for regular aid and attendance or housebound. The Veteran’s attorney argues that the Veteran is entitled to SMC based on the need for regular aid and attendance. Generally, claims for SMC are governed by the provisions set forth at 38 U.S.C. § 1114(k) through (s), and 38 C.F.R. §§ 3.350 and 3.352. 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. Aid and attendance means helplessness or being so nearly helpless as to require the regular aid and attendance of another person. 38 C.F.R. § 3.350(b)(3). Determinations as to 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 to dress or undress himself or keep himself ordinarily clean and presentable, frequent need for adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid, inability to feed himself through loss of coordination of upper extremities or through 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 individual from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352; see Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of special monthly compensation based on need for aid and attendance). “Bedridden” will be a proper basis for the determination of being so helpless as to require regular aid and attendance of another and is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. Id. It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. Id. The particular personal functions which the veteran is unable to perform should be considered in connection with his 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. Id. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that the claimant’s condition is such that it would require him to be in bed. They must be based on the actual requirements of personal assistance from others. Id. If a veteran does not qualify for increased benefits for aid and attendance, increased pension benefits may still be payable if the veteran has a single permanent disability rated 100 percent disabling, and in addition has either additional disability or disabilities independently ratable at 60 percent or more or is permanently housebound by reason of a disability or disabilities. 38 U.S.C. § 1521(e); 38 C.F.R. § 3.35(d). A veteran is “permanently housebound” when he is substantially confined to his house (ward or clinical areas, if institutionalized) or immediate premises due to permanent disability or disabilities. 38 U.S.C. § 1502(c); 38 C.F.R. § 3.35(d)(2). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is entitled to SMC based on the need for aid and attendance. The Veteran is in receipt of a TDIU for the entire appeal period based upon his service-connected back disability. In November 2007, the Veteran was afforded a VA examination. The VA examiner found that the Veteran experienced significant decreased range of motion and significant pain with motion. He demonstrated evidence of moderate to severe functional impairment. The VA examiner noted that the Veteran had been seen several times in the emergency department with flare-ups of back pain and that he had authorized home healthcare for 4 hours per day five days per week. The Veteran required durable medical equipment, including a power chair, an electric scooter, a walker, a bed cane, a TENs unit, a shower chair and commode rails. The VA examiner concluded that the Veteran’s service-connected back disability was productive of moderate to severe functional impairment. Later that month, the Veteran called and reported severe back pain that was a 10. He indicated that he was going to have someone bring him into the emergency room. In December 2007, VA received an Examination for Housebound Status or Permanent Need for Regular Attendance prepared by Dr. M.B. She noted the Veteran had chronic low back pain with intermittent sever exacerbations and intermittent ankle and foot pain with gouty attacks. The examination stated that overuse of the Veteran’s back resulted in exacerbations of pain. The Veteran was homebound during periods of exacerbations. Otherwise, the Veteran was able to utilize a cane for ambulation. The Veteran received home healthcare from May 2008 to November 2008. His principal diagnosis was osteoarthritis. His functional limitations were related to ambulation and endurance. He needed assistance with personal care and home-making activities. In January 2011, the Veteran testified that he received home healthcare. Standing and walking for any length of time aggravated his back pain. Somedays he needed home healthcare to do everything for him. Days when his pain was not exacerbated, he was able to perform some duties by himself. On good days, the Veteran required a walker, and on bad days, he required a motorized scooter. He was monitored when he showered because he was a fall risk. The Veteran last worked in 2003 as a pizza delivery driver. He lost his job after missing too many days due to exacerbations of back pain. August 2014 VA treatment notes document difficulty with housework, transportation, and shopping. The Veteran required help or supervision with bathing, transfers, moving around indoors, and moving around his wheelchair. The Veteran was afforded a VA aid and attendance examination in November 2014. The Veteran was not bedridden or hospitalized and was able to leave his home. He was accompanied by a friend who drove him to the examination. The Veteran had a home healthcare assistant 4 hours per week. He was able to leave his house to visit family and medical appointments. The home healthcare assistant usually shopped for the Veteran. The VA examiner found that the Veteran was able to feed, toilet, shower, and brush his teeth on his own with the use of assistive devices. He needed assistive devices for his shoes and socks, but was otherwise able to dress on his own. The Veteran experienced constant severe gait imbalance. The VA examiner concluded that the Veteran would benefit from aid and attendance due to the gait imbalance caused by his service-connected back disability. In July 2016, Dr. P.C. conducted a review of the Veteran’s medical records and offered a medical opinion on the functional impairment caused by the service-connected back disability. Dr. P.C. concluded that the Veteran’s back disability had rendered him unable to perform the activities of daily life since 2003. The Veteran was afforded another back examination in January 2017. VA obtained an addendum opinion in April 2017. The Veteran’s back disability caused difficulty with prolonged walking, standing, or sitting. He was not comfortable driving depending upon the level of his back pain. A May 2017 VA risk assessment indicates that the Veteran required an aid to assist with bathing, dressing, housekeeping, laundering, meal preparation, and shopping. The aid visited twice per week for 3 hours at a time. The Veteran’s limitation was caused by his chronic back pain. In February 2018, S.B., a friend of the Veteran, wrote that she had assisted the Veteran with his daily care since 2012. In February 2018, after reviewing the Veteran’s medical records and relevant lay statements of record, Dr. P.C. concluded that the Veteran was severely disabled. He was unable to manage basic activities on his own. His ability to walk and stand were limited even with assistive devices. In March 2019, the Veteran underwent his most recent VA back examination. The Veteran was brought to the examination by a friend. He endorsed constant pain. He described flare-ups that occurred 2 to 3 times every 2 months. The flare-ups lasted between 1 day and 2 weeks. During flare-ups, he stayed in his chair and was paralyzed due to the severity of his pain. The VA examiner estimated that the Veteran had no range of motion during flare-ups. The Veteran demonstrated instability of station, disturbance of locomotion, interference with sitting, and interference with standing. He required the use of a wheelchair, motorized wheelchair, brace, cane, walker, and stair lift. The Veteran had pain with sitting, standing, and walking. He was precluded from sedentary and physical employment since 2003. In an addendum opinion, the VA examiner explained that the Veteran’s occupational function and activities of daily living were limited by his difficulty sitting, standing, walking, and driving. Throughout the appeal period, the Veteran has required home healthcare aides and has relied upon friends and family to help him with the activities of daily living. He has experienced regular flare-ups that have left him bedridden for months at a time. The Board notes that the Veteran must only demonstrate a need for regular aid and attendance, not a constant need. The evidence of record clearly demonstrates that the Veteran experiences regular flare-ups that require home healthcare. SMC based on the need for regular aid and attendance is granted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Lastly, the Board notes that SMC at the aid and attendance rate is a greater benefit than the housebound benefit. 38 U.S.C. § 1114(l), (s). The claim for SMC on account of being housebound arose at the same time as the claim for SMC based on the need for regular aid and attendance. Thus, the grant of SMC at the aid and attendance rate renders the question of entitlement to SMC on account of being housebound moot, and the appeal for that issue is dismissed. DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.R. Watkins, 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.