Citation Nr: 21024001 Decision Date: 04/21/21 Archive Date: 04/21/21 DOCKET NO. 15-19 881 DATE: April 21, 2021 ORDER Entitlement to a rating in excess of 20 percent for service-connected sensory deficit of the sciatic nerve, left lower extremity, is denied. Entitlement to a rating in excess of 20 percent for service-connected sensory deficit of the sciatic nerve, right lower extremity, is denied. Entitlement to a rating in excess of 20 percent for service-connected left shoulder dislocation is denied. Entitlement to a rating in excess of 20 percent for service-connected lumbar spine degenerative joint disease (DJD) and intervertebral disc syndrome (IVDS) of L5/S1 is denied. REMANDED Entitlement to compensation under 38 U.S.C. § 1151 for bilateral amputations, lower leg below the knee is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status is remanded. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded. FINDINGS OF FACT 1. The Veteran’s sensory deficit of the left sciatic nerve results in no more than moderate incomplete paralysis. 2. The Veteran’s sensory deficit of the right sciatic nerve results in no more than moderate incomplete paralysis. 3. The Veteran’s service-connected left shoulder disability is not productive of limitation of motion of the arm to 25 degrees from his side. 4. The Veteran does not have forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. He also does not have incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the previous 12 months. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for service-connected sensory deficit of the sciatic nerve, left lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 2. The criteria for a disability rating in excess of 20 percent for service-connected sensory deficit of the sciatic nerve, right lower extremity, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating in excess of 20 percent for a left shoulder disability have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40-4.45, 4.71a, Diagnostic Codes 5201-5203. 4. The criteria for an evaluation in excess of 20 percent for degenerative arthritis of the lumbar spine have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1985 to March 1995. In January 2019, the Veteran, his wife, and his son testified before the undersigned Veterans Law Judge via video conference. A transcript of the hearing is associated with the claims file. The case was remanded in January 2020 for additional development. That development has been completed, and the case has since been returned to the Board for appellate review. INCREASED RATING Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 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 rating 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45. VA must analyze the evidence of pain, weakened movement, excess fatigability, or incoordination and determine the level of associated functional loss in light of 38 C.F.R. § 4.40, which requires the VA to regard as “seriously disabled” any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The Court has 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 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). Instead, in Mitchell, the Court 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 (38 C.F.R. §§ 4.40), 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 (38 C.F.R. § 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. Therefore, in rating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a rating in excess of 20 percent for service-connected sensory deficit of the sciatic nerve, left lower extremity Entitlement to a rating in excess of 20 percent for service-connected sensory deficit of the sciatic nerve, right lower extremity The Veteran’s sensory deficits of the lower extremities are currently rated as 20 percent disabling under § 38 C.F.R. § 4.124(a), DC 8520. The Veteran contends that his sensory deficits of the sciatic nerve, left and right lower extremities, are more severe than what is represented by 20 percent ratings. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or (very rarely), lost. 38 C.F.R. § 4.124a, DC 8520. Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as “mild,” “moderate,” “moderately severe,” and “severe.” Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The term “incomplete paralysis,” with this and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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 wholly sensory, the rating is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, note at “Diseases of the Peripheral Nerves.” VA’s Adjudication Manual gives the following guidance on cases where a peripheral nerve disability is only manifested by sensory impairment: “To make a choice between mild and moderate, consider the evidence of record and the following guidelines: The mild level of evaluation would be more reasonably assigned when sensory symptoms are recurrent but not continuous, assigned a lower medical grade reflecting less impairment, and/or affecting a smaller area in the nerve distribution. Reserve the moderate level of evaluation for the most significant and disabling cases of sensory-only involvement. These are cases where the sensory symptoms are continuously assigned a higher medical grade reflecting greater impairment and/or affecting a larger area in the nerve distribution.” VA Adjudication Procedures Manual, III.iv.4. The September 2013 examiner found no symptoms of radiculopathy in either extremity at that time. Muscle strength testing was normal. There was no muscle atrophy found on examination. Reflexes were normal bilaterally. A sensory examination was normal bilaterally. There were no trophic changes and the Veteran had a normal gait. There was no functional impact as the examiner determined that his condition was asymptomatic at that time. See September 2013 VA examination report. In February 2015, the Veteran underwent bilateral below the knee amputations. A February 2018 VA examination for the back found that the Veteran experienced radiculopathy of the bilateral lower extremities. Upon examination the Veteran’s reflexes were normal but sensory testing revealed decreased or absent sensation to light touch in the upper anterior thigh and thigh/knee. The examiner reported that the Veteran experienced moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in both lower extremities. There were no other symptoms of radiculopathy. The examiner characterized the severity of the Veteran’s bilateral radiculopathy as “moderate.” See February 2018 VA examination report. A March 2018 VA treatment record documents the Veteran’s complaint of severe low back pain radiating to his legs. During the January 2019 Board hearing, the Veteran testified that his bilateral sciatica causes pain and limits his ability to stand and walk. He also described numbness and tingling in the lower extremities. He was not currently receiving any treatment for sciatica. See January 2019 Board hearing transcript at 9-10. During a November 2020 VA examination for the back, the examiner noted normal sensation to light touch testing for the bilateral thighs. She was unable to perform sensation testing below the knees due to bilateral below-the-knee amputations. The examiner also noted mild numbness of the lower extremities, bilaterally, and moderate constant pain and paresthesias and/or dysesthesias, bilateral lower extremities. There were no other signs or symptoms of radiculopathy. The severity of the Veteran’s bilateral radiculopathy was characterized as “mild.” See November 2020 VA examination report. After a review of the evidence, the Board finds that the Veteran’s sensory deficits of the sciatic nerve of the left and right lower extremities are each adequately compensated by a 20 percent rating. The Veteran’s disability was not found to be moderately severe at any time during the appeal period in order to warrant a rating in excess of 20 percent. 38 C.F.R. § 4.124(a), DC 8520. The Board acknowledges the Veteran’s complaints of bilateral lower extremity pain, numbness and tingling limiting his ability to stand and walk. However, after reviewing the evidence of record and providing a thorough physical examination, the VA examiners found that, at worse, the Veteran suffered from moderate incomplete paralysis of the sciatic nerve bilaterally. Examinations of the Veteran’s lower extremities have revealed diminished sensory responses; however, atrophy and motor and/or reflex impairment such as weakness has not been demonstrated. The Veteran’s muscle strength was normal. The Veteran does experience numbness, constant pain and paresthesias and/or dysesthesias. However, these findings do not support a rating in excess of 20 percent under DC 8520. Accordingly, the Board agrees with the examiners that moderately severe incomplete paralysis has not been demonstrated. The Board pauses to note that although the February 2018 VA examiner indicated that the Veteran experienced radiculopathy of the femoral nerve, the remaining evidence of record indicates that the Veteran’s radiculopathy impacts his sciatic nerve. See the November 2020 VA examination report, August 2010 examination report. The February 2018 VA examiner did not provide any rationale for this conclusion and the record does not otherwise indicate that both nerves are impacted. The VA examination reports indicate that the femoral nerve impacts the L2/L3/L4 nerve roots whereas the sciatic nerve impacts the nerve roots from L4-S3. The August 2018 VA examiner identified nerve impairment in the L1-S1 nerve roots and the Board therefore finds that the weight of evidence indicates that the Veteran’s sciatic nerve is impaired. In sum, the Board finds that the Veteran is warranted a disability rating of 20 percent for sensory deficits of the left and right lower extremities. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Entitlement to a rating in excess of 20 percent for service-connected left shoulder dislocation is denied The Veteran is currently assigned a 20 percent evaluation for his service-connected left shoulder disability pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5201. Diagnostic Code 5201 provides that limitation of motion of the major arm at shoulder level warrants a 20 percent evaluation. Limitation of motion of the major arm midway between the side and shoulder level warrants a 30 percent evaluation. A 40 percent rating is warranted with limitation of motion of the major arm to 25 degrees from the side. For the minor arm, limitation of motion at shoulder level warrants a 20 percent evaluation, as does limitation of motion of the major arm midway between the side and shoulder level. A 30 percent rating is warranted with limitation of motion of the minor arm to 25 degrees from the side. For VA compensation purposes, normal range of motion for the shoulder is 180 degrees of forward flexion, 180 degrees of abduction, and 90 degrees of external and internal rotation. See 38 C.F.R. § 4.71, Plate I. Handedness for the purpose of a dominant rating will be determined by the evidence of record, or by testing on VA examination. Only one hand shall be considered dominant. The injured hand, or the most severely injured hand, of an ambidextrous individual will be considered the dominant hand for rating purposes. 38 C.F.R. § 4.69. In this case, the record clearly indicates that the Veteran is right hand dominant. As such, the left shoulder disability is rated as the minor joint. Painful, unstable, or malaligned joints, due to healed injury, are entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised select diagnostic codes “to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities.” Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F.3d 1327. Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. The Veteran filed his claim for an increased rating for the left shoulder in December 2012 and was afforded a VA examination in connection with his shoulder claim in September 2013. The examiner diagnosed left shoulder impingement syndrome and noted that the Veteran is right-hand dominant. No flare-ups were reported at that time. Initial range of motion (ROM) testing showed flexion to 90 degrees and abduction to 90 degrees. The examiner was unable to perform repetitive use testing on the left side due to pain. The examiner noted pain on palpation and guarding of the left shoulder. Muscle strength was rated as normal, 5/5, and there was no ankylosis of the shoulder joint. The examiner noted no history of mechanical symptoms or subluxation. The examiner remarked that left shoulder external and internal rotation ends at 45 degrees with objective evidence of painful motion beginning at 45 degrees. Contributing factors of disability would include pain, weakness, fatigability, and/or incoordination and there is additional limitation of functional ability of the shoulder joint during flare-ups or repeated use over time. The degree of ROM loss during pain on use or flare-ups is approximately 90 degrees in multiple planes of motion. See September 2013 VA examination report. An additional VA examination was performed in February 2018. At that time, the Veteran reported flare-ups with sharp stabbing pain, numbness and tingling, and loss of strength. Range of motion testing of the left shoulder revealed flexion to 80 degrees, abduction to 85 degrees, and external/internal rotation from 0 to 70 degrees. Pain was noted on examination and with weight-bearing. There was no crepitus. The examiner noted tenderness of the left lateral shoulder. There was no additional loss of ROM after three repetitions. With regard to repetitive use over a period of time, the Veteran told the examiner that after a day of physical therapy and having to use his arms to help him walk, the shoulder/arm is “completely dead” and he cannot use it. Muscle strength testing was normal, 5/5, with no muscle atrophy. There was no ankylosis of the shoulder joint. The rotator cuff was tested and the Hawkins’ impingement test was positive on the left side. There were no other pertinent physical findings or symptoms. Functional impact of the left shoulder disability was described as periods of increased pain of the left shoulder preventing him from performing his job duties. The examiner found no pain on passive ROM testing or with non-weight bearing. See February 2018 VA examination report. Following remand, an additional VA examination of the left shoulder was conducted in November 2020. The Veteran reported a worsening of his left shoulder disability since the last examination but no specific treatment. He reported constant left shoulder pain, described as 7/10 on average. The pain was worse with pulling or moving heavy objects. He took Tylenol as needed and did not report any flare-ups. Initial range of motion testing showed flexion to 140 degrees and abduction to 85 degrees, external rotation to 70 degrees and internal rotation to 85 degrees. There was no pain noted on examination. There was no evidence of pain with weight-bearing. The examiner did note objective evidence of crepitus in the left shoulder. There was no additional loss of function or ROM after three repetitions. Muscle strength testing was normal, 5/5, and no muscle atrophy. The examiner found no functional loss or impairment due to the left shoulder disability. The examiner explained that although the Veteran complained of left shoulder pain there was no objective medical evidence of pain during the examination. The examiner found no objective evidence to support a functional loss. She also found no objective evidence of pain with passive ROM testing or non-weight bearing. See November 2020 VA examination report. In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to an increased evaluation for his service-connected left shoulder disability. The evidence does not show that the Veteran’s left shoulder (minor arm) was limited to 25 degrees from his side. Indeed, the September 2013 VA examination revealed left shoulder flexion to 90 degrees and abduction to 90 degrees. The February 2018 VA examination also documented left shoulder flexion to 80 degrees and abduction to 85 degrees, and a November 2020 VA examination revealed left shoulder flexion to 140 degrees and abduction to 85 degrees. As such, an increased evaluation is not warranted under Diagnostic Code 5201 for the left shoulder. The Board also notes that the February 7, 2021 amendments to DC 5201 would not result in a higher evaluation. The Board has also considered whether an increased evaluation is warranted under other relevant diagnostic codes, including codes governing ankylosis of scapulohumeral articulation, other impairment of the humerus, and impairment of the scapula or clavicle. However, the Board finds that the criteria for a higher or separate rating under these provisions are not met. See 38 C.F.R. § 4.71a, Diagnostic Codes 5200, 5202, 5203. In this regard, the September 2013, February 2018, and November 2020 VA examiners specifically stated that the Veteran did not have ankylosis of the left shoulder, and the aforementioned range of motion findings do not show or suggest that the shoulder is fixed or immobile. The Veteran has also not been shown to have impairment of the humerus. Moreover, a 20 percent evaluation is the maximum schedular evaluation available under Diagnostic Code 5203 for impairment of the clavicle or scapula and under Diagnostic Code 5003 for degenerative arthritis. Therefore, an increased evaluation cannot be granted under Diagnostic Code 5203 or 5003. Thus, the Board finds that the Veteran is not entitled to a higher or separate evaluation under Diagnostic Codes 5003, 5200, 5202, or 5203. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the left shoulder disability is not warranted on the basis of functional loss due to pain or weakness in this case. The Veteran has already been assigned a 20 percent evaluation for the left shoulder disability due to painful range of motion. Moreover, the Veteran’s left shoulder symptoms are supported by pathology consistent with the assigned 20 percent rating, and no higher. In this regard, the Board observes that the Veteran has complained of pain and difficulty moving the shoulder, as well as weakness and fatiguability, throughout the appeal period. However, even with such symptoms, he has still had a range of motion greater than midway between his side and shoulder level or 25 degrees from his side during all range of motion testing. As such, the Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation beyond the 20 percent evaluation already assigned. Accordingly, the Board concludes that an increased or separate evaluation is not warranted for the Veteran’s service-connected left shoulder disability under DeLuca. Based on the foregoing, the Board concludes that an increased evaluation is not warranted for the Veteran’s left shoulder disability during the appeal period. The Veteran and his representative have not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Entitlement to a rating in excess of 20 percent for service-connected lumbar spine degenerative joint disease (DJD) and intervertebral disc syndrome (IVDS) of L5/S1 is denied The Veteran’s degenerative arthritis of the lumbar spine is currently assigned a 20 percent evaluation, pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Diagnostic Code 5242 indicates that degenerative arthritis should be evaluated under the General Rating Formula for Diseases and Injuries to the Spine. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent evaluation is warranted when there is forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; the combined range of motion of the thoracolumbar spine is 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 evaluation is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diagnostic Codes 5235-5243. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be rated separately, under an appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note (1). For VA compensation purposes, normal range of motion for the thoracolumbar spine is 90 degrees of forward flexion, 30 degrees of extension, 30 degrees of left and right lateral flexion, and 30 degrees of left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees, consisting of the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation. See 38 C.F.R. § 4.71a, General Rating Formula, Note (2) and Plate V. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent evaluation is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent evaluation is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, evaluate each segment on the basis of chronic orthopedic and neurologic manifestations or incapacitating episodes, whichever method results in a higher evaluation for that segment. Id., Note (2). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to a rating in excess of 20 percent for degenerative arthritis of the lumbar spine. The evidence does not show that the Veteran has forward flexion of the thoracolumbar spine limited to 30 degrees. In fact, during a September 2013 VA examination, the Veteran demonstrated forward flexion to 45 degrees. During a February 2018 VA examination, the examiner was unable to test range of motion because the Veteran could not get out of his wheelchair. It was noted that he was using the wheelchair because he had a double below-the-knee amputation and had prostheses but could not bear any weight due to recent heart surgery. The examiner attempted range of motion testing with the Veteran seated in the wheelchair and seated with his legs flexed at the hips at 90 degrees, he could not lean forward more than 10 degrees. During a November 2020 VA examination, the Veteran reported worsening symptoms since his last examination. He reported constant back pain, 8/10 on average, made worse with prolonged sitting, lifting, and turning to the right. He did not report any flare-ups at that time. He demonstrated forward flexion to 70 degrees. It was noted that he has bilateral lower extremity prosthetics due to bilateral below-the-knee amputations and was unable to perform extension of the lumbosacral spine without losing his balance. There was no additional loss of function or range of motion after three repetitions. The VA examiner noted that there was no pain noted on examination and no evidence of pain with weight bearing. Passive ROM testing was not performed as it was not feasible to do so in a safe and reasonable manner. There was no objective evidence of pain with non-weight bearing. She stated that the Veteran’s complaints of pain were subjective in nature and there was no objective evidence of pain observed on examination. See November 2020 VA examination report. The Board finds that the November 2020 examination was Correia-compliant insofar as passive ROM testing was not medically advised. See Correia v. McDonald, 25 Vet. App. 158 (2016) (38 C.F.R. § 4.59 requires VA examinations to include joint testing for pain on both active and passive range of motion, as well as with weight-bearing and nonweight-bearing). Moreover, based on the aforementioned range of motion findings, the record shows that the Veteran’s thoracolumbar spine is not fixated or immobile. Ankylosis is defined as “immobility and consolidation of a joint due to disease, injury, surgical procedure.” Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). In addition, the September 2013, February 2018 and November 2020 VA examiners specifically noted that there was no ankylosis of the spine. Therefore, the Veteran has not been shown to have met the criteria for an increased rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board has also considered whether the Veteran is entitled to a rating in excess of 20 percent under the rating criteria for evaluating intervertebral disc syndrome. However, in this case, the Board finds that these criteria have not been met. There is no indication that the Veteran has intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. In fact, the September 2013 VA examiner found that the Veteran did not have intervertebral disc syndrome of the thoracolumbar spine. The February 2018 and November 2020 examiners found that he did have IVDS but that there were no incapacitating episodes in the past 12 months. Thus, the Board finds that a rating in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board notes that while portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, these diagnostic codes were not changed. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran’s lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran’s symptoms are supported by pathology consistent with the assigned 20 percent evaluation, and no higher. In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain in the Veteran’s lumbar spine is contemplated in the currently assigned evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The Board finds that the effect of the pain in the Veteran’s back is contemplated in the currently assigned 20 percent evaluation and that he does not more nearly approximate the criteria for a higher evaluation. The Veteran’s complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation throughout the appeal. The current 20 percent rating is based on evidence showing that the Veteran’s spine disability is manifested by symptoms that include significant pain, flare-ups, and functional loss. The record shows no additional factors, such as atrophy of disuse, which would restrict motion to such an extent that the criteria for a rating in excess of 20 percent would be approximated or met. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The Board further notes that the Veteran is already in receipt of separate disability ratings for radiculopathy of the bilateral lower extremities associated with degenerative arthritis of the lumbar spine, and there is no other separate neurological disability shown by the evidence of record. Thus, the Board further finds that a separate disability rating is not warranted at any time during the appeal period because the evidence does not demonstrate that the Veteran suffers from a separate neurological disability distinct from his already service-connected lumbar spine and bilateral lower extremity radiculopathy disabilities. See Bierman v. Brown, 6 Vet. App. 125, at 129-32 (1994). Separate disability ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not “duplicative of or overlapping with the symptomatology” of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 262 (1994). For these reasons, the Board finds that the Veteran’s degenerative arthritis of the lumbar spine does not warrant a rating in excess of 20 percent during the appeal period. REASONS FOR REMAND Entitlement to compensation under 38 U.S.C. § 1151 for bilateral amputations, lower leg below the knee is remanded Under VA laws and regulations, when a veteran incurs an additional disability or death as a result of hospital care, medical or surgical treatment, or an examination furnished by the VA, disability compensation shall be awarded in the same manner as if such disability or death was service-connected. 38 U.S.C. § 1151; 38 C.F.R. §§ 3.358, 3.361. For claims filed after October 1, 1997, as in this case, the claimant is required to show fault or negligence in medical treatment. Specifically, that the proximate cause of the disability was due to carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on the part of the VA in furnishing medical care, or was an event not reasonably foreseeable. 38 U.S.C. § 1151(a)(1); 38 C.F.R. § 3.361. In determining that an additional disability exists, VA compares the veteran’s condition immediately before the beginning of the hospital care, medical or surgical treatment, examination, training and rehabilitation services, or compensated work therapy program upon which the claim is based, to the veteran’s condition after such care, treatment, examination, services, or program has stopped. 38 C.F.R. § 3.361(b). If an additional disability is shown to exist, the next consideration is whether the causation requirements for a valid claim have been met. To establish causation, the evidence must show that the hospital care, medical or surgical treatment, or examination resulted in the veteran’s additional disability or death. Merely showing that the veteran received care, treatment, or examination and that the veteran has an additional disability or died does not establish cause. 38 C.F.R. § 3.361(c)(1). Hospital care, medical or surgical treatment, or examination cannot cause the continuance or natural progress of a disease or injury for which the care, treatment, or examination was furnished unless VA’s failure to timely diagnose and properly treat the disease or injury proximately caused the continuance or natural progress. 38 C.F.R. § 3.361(c)(2). Further, additional disability or death caused by a veteran’s failure to follow properly given medical instructions is not caused by hospital care, medical or surgical treatment, or examination. 38 C.F.R. § 3.361(c)(3). In addition, the proximate cause of the disability claimed must be the event that directly caused it, as distinguished from a remote contributing cause. 38 C.F.R. § 3.361(d). To establish that carelessness, negligence, lack of proper skill, error in judgment, or similar instance of fault on VA’s part in furnishing hospital care, medical or surgical treatment, or examination proximately caused a veteran’s additional disability or death, it must be shown that VA failed to exercise a degree of care that would be expected of a reasonable health care provider; or, that VA furnished the hospital care, medical or surgical treatment, or examination without the veteran’s informed consent. Id. Whether the proximate cause of a veteran’s additional disability or death was an event not reasonably foreseeable is in each claim to be determined based on what a reasonable health care provider would have foreseen. The event need not be completely unforeseeable or unimaginable but must be one that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided. 38 C.F.R. § 3.361(d)(2). Here, the Veteran contends that VA was negligent in prescribing heparin during the course of treatment he received during coronary artery bypass graft (CABG) surgery performed at VAMC Durham in January 2015 because he informed physicians of his family history of allergy to that particular medication. He testified that he had an allergic reaction to heparin, after which he experienced heparin-induced thrombocytopenia and developed clots in his lower legs, which resulted in him having bilateral below-the-knee amputations. In September 2015, VA obtained a medical opinion regarding the 1151 claim. Notably, the examiner did not identify the disability being claimed by the Veteran, any other additional disability that resulted from VA treatment, or the date of treatment at issue in this case. Nevertheless, the examiner noted there was no fault on VA’s part in treating the Veteran and provided an explanation in support of this conclusion. The examiner stated that the Veteran arrived in the operating room with new and unexpected evidence of cardiogenic shock as demonstrated by invasive monitoring and the response to induction of anesthesia. The duration of this state prior to surgery is uncertain, but was not appreciated by multiple physicians and monitoring in the CCU. All subsequent events relate to his pre-operative left ventricular dysfunction. The examiner stated that although the Veteran demonstrated increased severity of his coronary disease, presenting with increasing symptoms of ischemia, his preparation management and evaluation was consistent with a typical patient process, and it was not probable that he would develop clinically “occult” cardiogenic shock prior to surgery. The examiner explained that this unforeseen state underlies his prolonged period of cardiac functional insufficiency that required mechanical left ventricular support and resulted in a number of disabling complications that were all managed appropriately. See September 2015 VA medical opinion. In the prior remand, the Board noted that the September 2015 opinion would support a grant of benefits under section 1151 because the examiner stated that there were a number of disabling complications that resulted from an event that was not reasonably foreseeable. However, because the examiner did not identify the complications, the Board was unable to determine the scope of the opinion and requested additional development. In an October 2020 opinion, an examiner opined that VA diagnosis and treatment was appropriate and timely, accepted appropriate protocols were followed, and the standard of care was met in this case. The examiner opined that it is less likely as not that the claimed condition was caused by or became worse as a result of negligence on the part of VA. The examiner noted that a life-threatening myocardial infarction occurred in January 2015 followed by cardiopulmonary bypass surgery. Heparin-induced thrombocytopenia (HIT) occurred followed by acidosis and cardiogenic shock. The Veteran then developed vascular thrombosis resulting in amputations. The examiner explained that HIT is a life-threatening immune response complication of exposure to heparin that occurs in a “small” percentage of patients exposed, regardless of the dose, schedule or route of administration. HIT results from an autoantibody directed against endogenous platelet factor 4 (PF4) in complex with heparin. This antibody activates platelets and can cause catastrophic arterial and venous thrombosis. The examiner stated that the diagnosis of HIT in patients undergoing CABG surgery is challenging because these patients receive large amounts of heparin and normally have a decrease in the platelet count of approximately 40 to 50 percent during the first 72 hours following surgery. See October 2020 VA medical opinion. The October 2020 examiner’s opinion is unclear as to whether HIT was an event not reasonably foreseeable, as he emphasized that it occurs in only a “small” percentage of patients exposed. He does not explain why a reasonable healthcare provider would have considered HIT to be an ordinary risk of treatment if it only occurs in a small percentage of patients. The examiner also did not comment on the Veteran’s report that the physicians were notified of his drug allergy. Therefore, remand is necessary for a clarifying medical opinion. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound status is remanded SMC is payable if, as the result of service-connected disability, a veteran is permanently bedridden or with such significant disabilities as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following factors will be considered in determining whether a veteran is in need of regular aid and attendance of another person: inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme 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 claimant from hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). It is not required that all of the disabling conditions noted above be found to exist before a favorable rating may be made. The particular personal functions which the veteran 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 is a constant need. The SMC claim is based on the Section 1151 claim, as the Veteran has asserted he is in need of aid and attendance as a result of the functional limitations caused by the amputation of his bilateral lower legs below the knee, as well as his right thumb and a portion of his middle finger, which are the additional disabilities at issue in the 1151 claim. See January 2019 Board hearing transcript. Therefore, entitlement to SMC must be remanded as inextricably intertwined with the Section 1151 claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final Board decision on one issue cannot be rendered until the other issue has been considered). Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities is remanded The Veteran alleges that he was forced to retire after losing his legs. See January 2019 Board hearing transcript. Because the outcome of the section 1151 claim could affect the outcome of the TDIU claim, the claims are inextricably intertwined, and remand of the claim is appropriate. The Board also notes that the Veteran has failed to return a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran’s claim was denied because he had failed to complete and return a completed VA Form 21-8940. See December 2020 SSOC. Given that this case is being remanded, the Veteran should be afforded another opportunity to complete that form. The matters are REMANDED for the following action: 1. Update the claims file with any relevant VA treatment records since December 2020. 2. Request that the Veteran complete a VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. The Veteran must be informed that while this form is not jurisdictional, it contains information which may be helpful in resolution of his claim, and a failure to submit such may have an adverse impact on his appeal. 3. Arrange to have an appropriate physician review the claims file, including all relevant medical and lay evidence of record, and provide opinions that address the following: (a) Did the Veteran have an additional disability after the medical and surgical treatment he received at the Durham VAMC in conjunction with the CABG performed in January 2015? If so, identify the additional disabilities. Note: The Veteran has alleged that his additional disability heparin-induced thrombocytopenia (HIT), which resulted in amputations of his bilateral lower legs, right thumb, and a portion of his right middle finger. The evidence also suggests that he experienced increased coronary disease, including ischemic tissue loss in the bilateral lower extremities, following VA treatment. (b) After identifying any additional disability, please opine on whether any disability identified was caused by medical or surgical treatment, or examination furnished to the Veteran by the VA or in the VA facility? (c) After addressing the questions posed in parts (a) and (b), please address whether is it as likely as not (a probability of 50 percent) that the disability was proximately caused by carelessness, negligence, lack of proper skill, error in judgment or similar instance of fault on the part of VA? Note: The Veteran has alleged that VA was negligent in giving him heparin because he informed physicians of his family history of allergy to heparin. (d) Regardless of the answer to (c), is it at least as likely as not that the additional disability was proximately due to an event not reasonably foreseeable, or an event that a reasonable health care provider would not have considered to be an ordinary risk of the treatment provided? (e) A well-reasoned rationale must be provided for each opinion offered. 4. The AOJ should review the medical opinion to ensure that it is in compliance with this remand. If the report is deficient in any manner, the AOJ should implement corrective procedures. 5. The AOJ should then conduct any other development as may be indicated. M. Donohue Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D.S. Chilcote, 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.