Citation Nr: 21023975 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 18-34 906 DATE: April 21, 2021 ORDER Entitlement to an increased rating for radiculopathy, right lower extremity, rated as 20 percent disabling prior to December 30, 2019, and 40 percent disabling thereafter, is denied. Entitlement to a rating in excess of 20 percent for radiculopathy, left lower extremity prior to January 28, 2021, is denied. Entitlement to a 40 percent rating for radiculopathy left lower extremity since January 28, 2021, is granted. Entitlement to special monthly compensation (SMC) based on the need for the regular aid and attendance of another (A&A) is granted. REMANDED Entitlement to an effective date earlier than December 30, 2019, for the award of a total disability rating based on individual unemployability (TDIU), to include on an extraschedular basis, is remanded. Entitlement to an effective date earlier than December 30, 2019, for eligibility for Dependents' Education Assistance (DEA) benefits under 38 U.S.C. Chapter 35 is remanded. FINDINGS OF FACT 1. Prior to December 30, 2019, the Veteran’s right lower extremity radiculopathy did not manifest in moderately severe incomplete paralysis. 2. From December 30, 2019, the Veteran’s right lower extremity radiculopathy did not manifest in severe incomplete paralysis. 3. Prior to January 28, 20121, the Veteran’s left lower extremity radiculopathy did not manifest in moderately severe incomplete paralysis. 4. From January 28, 2021, the Veteran’s left lower extremity radiculopathy manifested in moderately severe incomplete paralysis; severe incomplete paralysis was not shown. 5. Resolving all reasonable doubt in favor of the Veteran, his disabilities leave him in need of regular aid and attendance. CONCLUSIONS OF LAW 1. The criteria for an increased rating for radiculopathy, right lower extremity have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2020). 2. Prior to January 28, 2021, the criteria for a rating in excess of 20 percent for radiculopathy, left lower extremity have not been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2020). 3. From January 28, 2021, the criteria for a 40 percent rating for radiculopathy, left lower extremity have been met. 38 U.S.C. § 1155 (2018); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2020). 4. The criteria for SMC on the basis of the need for regular aid and attendance are met. 38 U.S.C. §§ 1114 (l), 5107(b) (2018); 38 C.F.R. §§ 3.102, 3.350 (b), 3.352(a) (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1950 to November 1954. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a September 2017 decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In September 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ) and a transcript of the proceeding is of record. The Board remanded the appeal for further development in December 2019 and June 2020. 1. Increased ratings for bilateral lower extremity radiculopathy The Veteran's radiculopathy of the lower extremities is rated as 20 and 40 percent disabling pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8520. This diagnostic code provides the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, the rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a . In this case, the Veteran submitted claims for increased ratings in August 2017. At a September 2017 VA back conditions examination, the Veteran reported moderate intermittent pain and numbness of both lower extremities. Straight leg raise test was negative. Muscle strength was rated as 4/5 in the bilateral lower extremities. Deep tendon reflexes were hypoactive in the knees and ankles. Sensation to light touch was normal in the lower extremities. The examiner diagnosed moderate incomplete paralysis of the left and right sciatic nerves. During the September 2019 Board hearing, the Veteran testified that the severity of his radiculopathy had worsened since the last VA examination. He testified that he used a walker. At a December 30, 2019 VA peripheral nerves examination, the Veteran reported that his right lower extremity symptoms included moderate constant pain, severe paresthesias and/or dysesthesias, and severe numbness. His left lower extremity symptoms included mild constant pain, moderate paresthesias and/or dysesthesias, and moderate numbness. Muscle strength was rated as 3/5 in right knee extension, ankle plantar flexion, and ankle dorsiflexion. On the left, muscle strength was rated as 4/5 in the same movements. The Veteran did not have muscle atrophy. Deep tendon reflexes were normal in the lower extremities. Sensation to light touch was decreased in the bilateral lower leg/ankle and foot/toes. The Veteran’s gait was guarded due to his bilateral lower extremity radiculopathy. The examiner diagnosed moderately severe incomplete paralysis of the right sciatic nerve and moderate incomplete paralysis of the left sciatic nerve. At a January 28, 2021 VA peripheral nerves examination, the Veteran reported moderate intermittent pain, paresthesias and dysesthesias, and numbness of the bilateral lower extremities. Muscle strength was rated as 3/5 in bilateral knee extension, ankle plantar flexion, and ankle dorsiflexion. The Veteran did not have muscle atrophy. Deep tendon reflexes were absent in the lower extremities. Sensation to light touch was decreased bilaterally. The Veteran’s gait was unsteady with a walker. The examiner diagnosed moderately severe incomplete paralysis of the right and left sciatic nerves. Based on the foregoing, the Board finds that a higher rating is not warranted for the right lower extremity at any time during the appeal. However, a higher, 40 percent rating for radiculopathy of the left lower extremity is warranted from January 28, 2021. Right lower extremity Prior to December 30, 2019, the Veteran’s right lower extremity radiculopathy did not more nearly approximate moderately severe incomplete paralysis. In this regard, the Board relies heavily on the findings of the September 2017 VA examiner. After conducting a complete neurological examination and interview of the Veteran, the examiner opined that the Veteran’s right lower extremity radiculopathy manifested in moderate incomplete paralysis. Moreover, the examiner’s opinion is consistent with the Veteran’s reports of moderate intermittent pain and numbness. There are no clinical records or statements tending to support a higher rating. Since December 30, 2019, the Veteran’s right lower extremity radiculopathy has not more nearly approximated severe incomplete paralysis with marked muscular atrophy. After conducting complete neurological examinations and interviews of the Veteran, both the December 2019 and January 2021 VA examiners opined that the Veteran’s right lower extremity manifested in moderately severe incomplete paralysis. Moreover, both examiners specified that there was no muscle atrophy present. Muscle atrophy is required for a 60 percent rating. There are no clinical records or statements tending to support a higher rating. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for higher ratings at any time during the appeal. As such, the appeal for increased rating for right lower extremity is denied. Left lower extremity Prior to January 28, 2021, the Veteran’s left lower extremity radiculopathy did not more nearly approximate moderately severe incomplete paralysis. After conducting complete neurological examinations and interviews of the Veteran, both the September 2017 and December 2019 VA examiners opined that the Veteran’s left lower extremity manifested in moderate incomplete paralysis. Moreover, the examiners’ opinions are consistent with the symptoms reported by the Veteran, which were no greater than moderate in severity. There are no clinical records or statements tending to support a higher rating. However, since January 28, 2021, the VA examination report reflects that the Veteran’s left lower extremity radiculopathy more nearly approximated moderately severe incomplete paralysis. Consequently, a higher, 40 percent rating is warranted from that date. However, there is no evidence reflecting severe incomplete paralysis. In this regard, there is no showing of muscle atrophy. Moreover, there are no clinical records or statements tending to support a 60 percent rating. In sum, the medical and lay evidence more nearly approximates the criteria for a 40 percent rating from January 28, 2021, but no earlier. The appeal is thus granted in part, and denied in part. 2. SMC based on the need for the regular A&A of another Under 38 U.S.C. § 1114 (l), SMC for aid and attendance 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) (2018); 38 C.F.R. § 3.350 (b) (2020). The following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352 (a). There need not be a constant need but, rather, only a regular need for aid and attendance. Id. It is not required that all of the disabling conditions are present or are due to a service-connected condition to warrant SMC. Id.; see also Turco v. Brown, 9 Vet. App. 222, 224 (1996). Here, the Veteran seeks SMC based on the need for aid and attendance. He is service-connected for radiculopathy of the bilateral lower extremities, intervertebral disc syndrome of the lumbar spine, and scar of the lower back. He is also awarded TDIU. On review, the Board finds that, resolving all reasonable doubt in his favor, the Veteran is entitled to SMC based on the need for aid and attendance. The evidence clearly shows that the Veteran has abnormal function in his lower extremities, due in large part to pain and weakness and he uses a cane or wheelchair. This impairment results in difficulty in his ability to prepare his meals, dress, undress, self-bathe and self-groom, as asserted by the Veteran and his spouse during the Board hearing and affirmatively stated by an October 2018 physician. Resolving all reasonable doubt in his favor, entitlement to SMC based on the need for aid and attendance is granted. REASONS FOR REMAND 1. Entitlement to an effective date earlier than December 30, 2019, for the award of a TDIU, to include on an extraschedular basis is remanded. Prior to December 30, 2019, the Veteran does not meet the schedular criteria for a TDIU. 38 C.F.R. § 4.16(a). However, the Veteran maintains that his service-connected disabilities prevented him from maintaining gainful employment prior to this date. The Board finds that there is a reasonable possibility that the Veteran was unemployable by reasons of his service-connected disabilities prior to December 30, 2019. However, the Board may not consider his claim for TDIU in the first instance. Accordingly, remand is required for referral of the claim for a TDIU to the Director, Compensation Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). 2. Entitlement to an effective date earlier than December 30, 2019, of eligibility for DEA benefits is remanded. This claim is inextricably intertwined with the claim for entitlement to an earlier effective date for TDIU. Consequently, this issue must also be remanded. The matters are REMANDED for the following action: 1. Refer the Veteran’s claim for TDIU prior to December 30, 2019 to VA’s Director of Compensation Service for extraschedular consideration. 2. Then, readjudicate the claims on appeal, to include entitlement to DEA benefits prior to December 30, 2019. If any of the benefits sought remain denied, issue an appropriate supplemental statement of the case and return the matters to the Board, if otherwise in order. WILLIAM H. DONNELLY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Roya Bahrami, 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.