Citation Nr: 21023390 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 15-35 172 DATE: April 20, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine with arthritis (formerly rated as spinal stenosis) is denied. Entitlement to a disability rating of 40 percent, but no higher, throughout the period on appeal for left lower extremity lumbar radiculopathy is granted. Entitlement to a disability rating of 40 percent, but no higher, throughout the period on appeal for right lower extremity lumbar radiculopathy is granted. Entitlement to special monthly compensation (SMC) at the (s) rate is granted. FINDINGS OF FACT 1. The Veteran’s lumbar spine disability has not been manifested by unfavorable ankylosis of the entire thoracolumbar spine. 2. The Veteran’s left lower extremity lumbar radiculopathy has been manifested by moderately severe incomplete paralysis throughout the period on appeal. It has not been manifested by severe incomplete paralysis with marked muscular atrophy or complete paralysis. 3. The Veteran’s right lower extremity lumbar radiculopathy has been manifested by moderately severe incomplete paralysis throughout the period on appeal. It has not been manifested by severe incomplete paralysis with marked muscular atrophy or complete paralysis. 4. Throughout the period on appeal, the Veteran had a single service-connected disability rated at 100 percent plus additional service-connected disabilities having a combined rating of at least 60 percent. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine with arthritis (formerly rated as spinal stenosis) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 2. The criteria for entitlement to a disability rating of 40 percent, but no higher, for left lower extremity lumbar radiculopathy throughout the period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for entitlement to a disability rating of 40 percent, but no higher, for right lower extremity lumbar radiculopathy throughout the period on appeal have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8520. 4. The criteria for SMC at the housebound rate have been met. 38 U.S.C. §§ 1114(s), 5107; 38 C.F.R. §§ 3.102, 3.350(i). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1967 to November 1970 and from August 1972 to August 1996. He appeals a February 2013 rating decision granting an increased rating of 40 percent for a lumbar spine disability and individual 20 percent ratings for both left and right lower extremity radiculopathy. The Board remanded the issues on appeal in October 2020 for further development. Specifically, a new examination was ordered to determine whether the Veteran has a diagnosis of IVDS and to assess the current severity of his lumbar spine disability and associated bilateral lower extremity radiculopathy. The Board is satisfied there has been substantial compliance with its previous remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Here, the Veteran was provided with a VA examination in January 2021 – which the Board finds adequate for adjudication purposes. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran’s entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 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). Further, “[w]here 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. 1. Entitlement to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine with arthritis. The Veteran asserts that his lumbar disability is worse than is contemplated by the 40 percent rating he currently receives. He also asserts that the condition has worsened throughout the period on appeal. After review of the evidence, the Board finds that a rating in excess of 40 percent is not warranted. The Veteran’s lumbar degenerative disc disease is rated under Diagnostic Code 5242 via use of the General Rating Formula for Disease and Injuries of the Spine (“General Rating Formula”). 38 C.F.R. § 4.71a. The General Rating Formula provides the following ratings for the thoracolumbar spine: • 20 percent – 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, • 40 percent – Forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, • 50 percent – Unfavorable ankylosis of the entire thoracolumbar spine, • 100 percent – Unfavorable ankylosis of the entire spine. Also for potential application is a rating under DC 5243, which compensates for intervertebral disc syndrome (IVDS). This is an alternate option for rating spine disabilities, not to be combined with ratings under the General Rating Formula. When IVDS is present, a rating of 60 percent (the only rating available that is higher than the 40 percent rating the Veteran currently receives) requires incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. 38 C.F.R. § 4.40. The Veteran has not been diagnosed with ankylosis of any portion of the spine at any time during the period on appeal, and a 40 percent rating is the highest rating available under the General Rating Formula in the absence of ankylosis. The Board has considered whether the symptoms of the Veteran’s lumbar disability cause additional functional loss that is the functional equivalent of ankylosis. It acknowledges the Veteran’s inability to perform repetitive range of motion testing during a January 2013 VA examination, due in part to pain, stiffness, and lack of endurance, and his report that he experienced flare-ups that decrease mobility and cause problems with ambulation, sitting, walking, lifting, and carrying. The Board further acknowledges that the Veteran was unable to perform range of motion testing at all during a January 2021 VA examination, due to severe pain and issues with balance. However, favorable ankylosis of the thoracolumbar spine also warrants a 40 percent rating, and the evidence does not support a finding that the functional loss associated with the Veteran’s lumbar disability causes the functional equivalent of unfavorable, as opposed to favorable, ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula, Note 5. For the foregoing reasons, the 40 percent rating the Veteran currently receives under the General Rating Formula is the highest available throughout the claim period. The record does show that the Veteran has been diagnosed with IVDS throughout the entire appeal period. Although the January 2019 VA examiner replied in the negative when asked if the Veteran had IVDS, it was noted that he had incapacitating episodes severe enough to require prescribed bed rest for a duration of at least 1 week but not more than 2 weeks over the past 12 months. In addition, the January 2021 VA examiner confirmed a diagnosis of IVDS but noted no incapacitating episodes in the past 12 months. In any event, the medical evidence does not show that the Veteran suffered from incapacitating episodes having a total duration of at least 6 weeks during the past 12 months at any time during the period on appeal. In August 2013, the Veteran asserted that he remained on bed rest for almost 4 weeks after a recent back injury. He further asserted that his doctors had often placed him on bed rest in the past. In a separate August 2013 lay statement, the Veteran’s spouse reported that the Veteran went on bed rest about 5-6 times per year for 3-6 weeks at a time. However, she clarified that the Veteran placed himself on bed rest rather than as prescribed by a doctor. As such, the Board finds that neither the medical nor lay evidence of record shows that the Veteran’s IVDS resulted in incapacitating episodes having a total duration of at least 6 weeks during the past 12 months at any time during the period on appeal. Based on the foregoing, the Board finds that the Veteran’s current 40 percent rating is the maximum allowable for the period on appeal. He has not been diagnosed with ankylosis of any kind, had functional limitation equivalent to unfavorable ankylosis, or suffered from incapacitating episodes having a total duration of at least 6 weeks during any 12-month period. As a rating in excess of 40 percent is not warranted, the claim is denied. 2. Entitlement to a disability rating in excess of 20 percent for left lower extremity lumbar radiculopathy. 3. Entitlement to a disability rating in excess of 20 percent for right lower extremity lumbar radiculopathy. The Veteran seeks individual ratings greater than 20 percent for his bilateral lower extremity lumbar radiculopathy. After review of the evidence, the Board finds that individual ratings of 40 percent, but no higher, are warranted for both the Veteran’s left and right lower extremity lumbar radiculopathy. The Veteran’s bilateral lower extremity radiculopathy is rated under DC 8520, which compensates based on paralysis of the sciatic nerve. Under the applicable rating criteria, mild incomplete paralysis is assigned a 10 percent rating. Moderate incomplete paralysis is assigned a 20 percent rating. Moderately severe incomplete paralysis is assigned a 40 percent rating. Severe incomplete paralysis, described as “with marked muscular atrophy,” is assigned a 60 percent rating. Finally, complete paralysis of the sciatic nerve, described as “the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost,” is granted an 80 percent rating. 38 C.F.R. § 4.124a, DC 8520. Although the rating criteria in this matter provides some description for severe incomplete paralysis of the sciatic nerve, and complete paralysis of the sciatic nerve, terms such as “mild,” “moderate,” and “severe” are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. As an initial matter, the Board observes that the Veteran has not been diagnosed with complete paralysis or atrophy of the lower extremities. As such, ratings of 60 and 80 percent are not available. Thus, the crux of the matter is whether the Veteran’s lower extremity radiculopathy is more accurately described as “moderate” or “moderately severe.” The Board finds the Veteran’s disability picture more nearly approximates as moderately severe. At his January 2013 VA examination, the Veteran was noted to have moderate intermittent pain with mild parasthesia and mild numbness in both lower extremities. However, in August 2013, the Veteran reported that he had such a lack of coordination that he must rely on the use of assistive devices to remain mobile. He reported frequent falls despite constant use of a cane. He reported that the symptoms had been ongoing for several years. The Board observes that the Veteran is competent to describe his ongoing symptoms and his statements are credible in this regard. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Upon examination in January 2021, the Veteran was noted to have severe parasthesia and numbness in both lower extremities. He again reported constant use of a cane for ambulation. Based on the medical and lay evidence of record, the Board finds that the Veteran’s bilateral lower extremity radiculopathy has been manifested by moderately severe symptomatology throughout the period on appeal. The evidence indicates that not only could he barely walk, even with the assistance of a cane, but that his condition only worsened over time. However, as mentioned, he has not been diagnosed with complete paralysis or atrophy of the lower extremities, and a rating in excess of 40 percent is not warranted. In summation, the Board finds that the Veteran’s left and right lower extremity radiculopathy symptoms have most closely approximated the criteria for 40 percent ratings, but no higher, throughout the period on appeal. To that extent, the claim is granted. Special Monthly Compensation The Veteran has been granted entitlement to a total disability rating based on individual unemployability (TDIU) throughout the entire period on appeal. Hence, although not raised by the Veteran, the Board finds that VA’s duty to maximize a claimant’s benefits warrants a discussion of SMC in this case. The VA has a 'well-established' duty to maximize a claimant's benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008). This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement SMC under 38 U.S.C. § 1114. See Bradley, 22 Vet. App. 280, 294 (2008). SMC is payable at the housebound rate where the Veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a 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. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). A TDIU may satisfy the "rated as total" element of section 1114(s) when the TDIU is based on a single disability, but not multiple disabilities. Buie v Shinseki, 24 Vet. App. 242, 250 (2010). The requirement of "permanently housebound" will be considered to have been met when the veteran is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises due to a service-connected disability or disabilities which it is reasonably certain will remain throughout his or her lifetime. 38 C.F.R. § 3.350(i). In addition to his physical disabilities, the Veteran is service-connected for an acquired psychiatric disorder, rated at 70 percent, secondary to his low back disability. The evidence indicates that his award of TDIU is based solely on the physical limitations of his low back disability, as the effective date for his TDIU predates the effective date for his acquired psychiatric disorder. In addition, per the Order above, the Veteran met the schedular requirements for TDIU throughout the period on appeal solely based on the combined evaluation attributable to his low back disability. Hence, the evidence shows that the Veteran’s TDIU rating qualifies as a single service-connected disability rated at 100 percent, and his acquired psychiatric disorder qualifies as a service-connected disability independently ratable at 60 percent. In summation, the Board finds that the Veteran has a single service-connected disability rated at 100 percent and, in addition, has a service-connected disability independently rated higher than 60 percent. Accordingly, entitlement to SMC at the housebound rate is warranted. 38 C.F.R. § 1114(s). 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. L. STEPANICK Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel