Citation Nr: 21014980 Decision Date: 03/16/21 Archive Date: 03/16/21 DOCKET NO. 14-33 911 DATE: March 16, 2021 ORDER Service connection for left lower extremity radiculopathy is granted. A total disability rating based upon individual unemployability (TDIU) is granted beginning October 15, 2015, based upon a single service-connected disability. Entitlement to special monthly compensation (SMC) based on statutory housebound criteria is granted beginning October 15, 2015. REMANDED An evaluation in excess of 30 percent for the residuals of lacerations of the right radial nerve, including surgical scars is remanded. Entitlement to special monthly compensation based on aid and attendance is remanded. FINDINGS OF FACT 1. A current left lower extremity radiculopathy disability has been present at least at some point during the appeal period, and it is related to the service-connected low back disability. 2. Beginning October 15, 2015, the Veteran is unable to secure or follow a substantially gainful occupation based solely on service-connected posttraumatic stress disorder (PTSD). 3. Beginning October 15, 2015, the Veteran has a single service-connected disability evaluated at 100 percent and additional disabilities that combine to a 60 percent disability rating. CONCLUSIONS OF LAW 1. The criteria for service connection for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.310, 4.71a. 2. Beginning October 15, 2015, the criteria for entitlement to a total disability rating based upon individual unemployability (TDIU) have been satisfied due solely to PTSD. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16. 3. Beginning October 15, 2015, the criteria for Special Monthly Compensation based on statutory housebound status have been met. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1975 to March 1983. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). 1. Service connection for left lower extremity radiculopathy. The Veteran contends that he has left lower extremity radiculopathy that is associated with his service-connected lumbar spine disability. The Board concludes that at least at one point during the appeal period, the Veteran had a current left lower extremity radiculopathy disability. June 2010 VA treatment records show the Veteran reporting pain radiates down the left leg. Physical examination showed numbness of the dorsal feet. Reflexes were equivocally decreased in the left ankle jerk. The impression was lumbar radiculopathy. At a September 2010 VA examination by Dr. Gluck, the Veteran reported pain radiating to the buttocks, but not the legs. On examination, Dr. Gluck reported the examination was limited by “diffuse exquisite pain” that included his ankles and feet. Gait problems were due to bilateral knee and hip pain. The Veteran was referred to neurology, which found the diffuse joint pains were likely secondary to the trauma to the Veteran’s spine he sustained related to his in-service parachute jumps. A September 2010 peripheral nerves examination showed complaints of bilateral lower extremity radicular symptoms. The examiner diagnosed the Veteran with subjective radicular symptoms. The examiner noted that there was no objective physical examination or diagnostic findings to support nerve root compression. The Veteran’s history is remarkable for an April 2012 thoracic spine epidural abcess with residuals of paraplegia and neurogenic bowel and bladder disabilities. The Veteran brought a claim under 38 U.S.C. § 1151, which was denied in a March 2015 rating decision, and for which the Veteran did not appeal. There is discrepancy in the record as to how well the Veteran has recovered. The Veteran asserts he has recovered to 65 percent, and a December 2014 VA treatment record reports the Veteran has recovered. A July 2012 Veteran submitted examination for housebound status or permanent need for regular aid and attendance was an examination showing the Veteran was wheelchair bound. An August 2013 VA examination found bilateral radiculopathy of the sciatic nerve. A March 2014 private examination found the left lower extremity was normal. The August 2014 VA examination attributed the Veteran’s current symptoms to the epidural abcess. The examiner found no radiculopathy. In October 2019 VA treatment, the Veteran reported bilateral lower extremity numbness and tingling. The March 2020 VA examination found that the Veteran did not have radiculopathy, including in 2010. The examiner reported that the Veteran had transient paralysis from the epidural abscess which may have affected his examinations for some time after. Upon review of the record, the Board finds the evidence to at least be in equipoise as to whether the Veteran has had, at least at some point during the appeal period, especially in June to September 2010, a current left lower extremity radiculopathy disability that is related to his service service-connected lumbar spine disability. Accordingly, after resolving all doubt in favor of the Veteran, the Board finds that service connection for left lower extremity radiculopathy is warranted. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 2. Entitlement to a total disability rating based upon individual unemployability from October 15, 2015. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims held that a total disability rating based on individual unemployability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. In this case, a TDIU was raised by the record or asserted by the Veteran. Accordingly, the TDIU claim is before the Board as a component of his claim for an increased evaluation for his right upper extremity. Id. Total disability is considered to exist when there is any impairment in mind or body that is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability, that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). If there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Individual unemployability must be determined without regard to any non-service connected disabilities or the veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19 (2020); Van Hoose v. Brown, 4 Vet. App. 361 (1993). In this case, the Veteran has been service-connected for posttraumatic stress disorder evaluated at 70 percent disabling beginning June 30, 2006. That evaluation has periodically increased to 100 percent on the basis of a temporary total evaluation for hospitalization. Additionally, the evaluation increased to 100 percent beginning April 16, 2020. The Veteran has been awarded a TDIU from June 30, 2006, to October 14, 2015. The period from October 15, 2015, is still on appeal as there has been no award of TDIU and Special Monthly Compensation has not been awarded for all periods beginning October 15, 2015. See Harper v. Wilkie, 30 Vet. App. 356 (2018) (holding that once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal). The Veteran has additional service-connected disabilities including lichen simplex chronicus, residuals of a low back injury, bilateral onychomycosis with fungus infection feet, bilateral onychomycosis with fungus infection feet, residuals of lacerations of the right radial nerve, status post residuals injury flexor and extensor muscle, right forearm condition (MG Vll and Vlll), left wrist scar residuals, status post excision of ganglion cyst, right knee condition, scar, right forearm, independently ratable at 60 percent or more. The question before the Board is whether the Veteran is entitled to a total disability rating based upon individual unemployability. The Board is to maximize the Veteran’s evaluation. Accordingly, Board analyzes whether the Veteran is entitled to a TDIU based only on a single disability. In this case, the Board concludes that the Veteran was unable to secure or follow a substantially gainful occupation continuing from October 15, 2015, based solely on his PTSD. A March 2015 VA mental disorders examination showed the Veteran had not worked since the early 1990’s because he has not been able to get along with people, stemming from trust issues and impatience and irritability. The symptoms for rating included depressed mood, panic attacks more than once a week, the inability to establish and maintain effective work and social relationships, and neglect of personal appearance and hygiene. This evidence shows substantial impairment in factors affecting the Veteran’s ability to work. Work generally requires some level of relationships with others. Here, the Veteran is deemed unable to establish and maintain work relationships. Accordingly, a TDIU is warranted. 3. Entitlement to special monthly compensation based on statutory housebound criteria. The issue of special monthly compensation is treated like a claim for increased compensation. It is part and parcel to an increased rating claim. Entitlement to SMC is, therefore, an inferable issue anytime the Veteran is asking for increased benefits. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). In this case, the Board concludes that SMC on the statutory housebound basis has been met beginning October 15, 2015. Entitlement to special monthly compensation based on housebound status will be granted when a veteran has a single service-connected disability rated as 100 percent and, 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. 38 C.F.R. § 3.350 (i). The case Bradley v. Peake holds that TDIU may satisfy the single service-connected disability rated as 100 percent if TDIU is based on a single service-connected disability. Here, the Board has granted TDIU based on a single service-connected disability, PTSD. Accordingly, his disabilities meet the statutory housebound criteria. REASONS FOR REMAND 1. An evaluation in excess of 30 percent for the residuals of lacerations of the right radial nerve, including surgical scars is remanded. 2. Entitlement to special monthly compensation based on aid and attendance is remanded. The Veteran seeks an evaluation in excess of 30 percent for the residuals of lacerations of the right radial nerve, including surgical scars. Additionally, during the appeal period, the Veteran has submitted a claim for entitlement to SMC on the basis of aid and attendance. The issue of special monthly compensation is treated like a claim for increased compensation. It is part and parcel to an increased rating claim. Entitlement to SMC is therefore an inferable issue anytime the Veteran is asking for increased benefits. Akles v. Derwinski, 1 Vet. App. 118, 121 (1991). New, relevant evidence was received since the last adjudication by the Agency of Original Jurisdiction in April 2020. In December 2020, the Board sent the Veteran a letter informing him of this fact and asking him if he would like to waive his right to remand the case for AOJ review of the additional evidence. See 38 C.F.R. § 20.1305 (2020). The Veteran did not reply to the letter; therefore, the Board assumes that the Veteran wishes to have the case remanded to the AOJ for review of the additional evidence. The matters are REMANDED for the following action: 1. Review the evidence associated with the claims file since the last AOJ adjudication with respect to the issue of an evaluation in excess of 30 percent for the residuals of lacerations of the right radial nerve, including surgical scars, and for the issue of special monthly compensation based on aid and attendance. If upon completion of the above action any benefit sought on appeal remains denied, the case should be returned to the Board after compliance with appellate procedure. DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Rocktashel, 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.