Citation Nr: 22009013 Decision Date: 02/16/22 Archive Date: 02/16/22 DOCKET NO. 15-01 155 DATE: February 16, 2022 ORDER Entitlement to an initial disability rating higher than 20 percent for service-connected sciatic nerve radiculopathy of the right lower extremity is denied. Entitlement to an initial disability rating higher than 20 percent for service-connected sciatic nerve radiculopathy of the left lower extremity is denied. Entitlement to an initial disability rating higher than 20 percent for service-connected femoral nerve radiculopathy of the right lower extremity is denied. Entitlement to an initial disability rating higher than 20 percent for service-connected femoral nerve radiculopathy of the left lower extremity is denied. Entitlement to special monthly pension (SMP) based on the need for aid and attendance (A&A), prior to June 24, 2016, is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities prior to October 29, 2008, is remanded. FINDINGS OF FACT 1. The evidence indicates that, during the entire relevant pertinent appeal period, the Veteran had no more than moderate, incomplete sciatic nerve paralysis of the right and left lower extremities. 2. The evidence indicates that, during the entire relevant appeal period, the Veteran had no more than moderate, incomplete femoral nerve paralysis of the right and left lower extremities. 3. The evidence of record persuasively weighs against finding that prior to June 24, 2016, the Veteran was blind, a patient in a nursing home, or had a factual need for the regular aid and attendance of another person or was housebound due to his medical conditions. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 20 percent for service-connected sciatic nerve radiculopathy of the 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 (DC) 8520. 2. The criteria for an initial disability rating higher than 20 percent for service-connected sciatic nerve radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for an initial disability rating higher than 20 percent for service-connected femoral nerve radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 4. The criteria for an initial disability rating higher than 20 percent for service-connected femoral nerve radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8526. 5. The criteria for SMP based on the need for the regular aid and attendance of another person have not been met. 38 U.S.C. §§ 1502, 1521, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1968 to May 1970. The current appeal before the Board of Veterans' Appeals (Board) arose from a March 2010 rating decision, in which a Department of Veterans Affairs (VA) Regional Office (RO), inter alia, continued a 10 percent rating for service-connected lumbar spine DDD and denied entitlement to special monthly pension. During the pendency of the Veteran's appeal, in an August 2016 rating decision, the RO granted SMP based on the need for A&A, effective June 24, 2016. In April 2018, the Board, inter alia, remanded the higher rating claim for the lumbar spine disability and the issue of entitlement to SMP based on the need for A&A prior to June 24, 2016, to the Agency of Original Jurisdiction (AOJ) for further evidentiary development. The Board also determined that the issue of entitlement to a TDIU had been raised by the record, as part and parcel of the underlying higher rating claim for lumbar spine DDD, and also remanded that issue to the AOJ for further development. Thereafter, in a July 2019 rating decision, the RO granted service connection for left lower extremity sciatic nerve radiculopathy, and assigned a 20 percent rating, effective July 26, 2016. Also, in a September 2020 rating decision, the RO granted service connection for right lower extremity sciatic nerve radiculopathy, and left and right lower extremity femoral nerve radiculopathy, each rated as 20 percent disabling, effective August 28, 2020. The RO also granted entitlement to a TDIU, effective October 29, 2008. In February 2021, the Board disposed of the Veteran's higher rating claim for the lumbar spine DDD and determined that the ratings assigned for the lower extremity sciatic and femoral nerve radiculopathy, which consisted of neurological manifestations of the underlying lumbar spine disability, were part and parcel of the claim for a higher rating for that disability, pursuant to the rating criteria. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 1. The Board remanded those claims together with the issues of entitlement to SMP based on the need for A&A prior to June 24, 2016, and entitlement to a TDIU prior to October 29, 2008, to the AOJ for further development. Following the Board's February 2021 remand, in a May 2021 rating decision, the AOJ made the assignment of the 20 percent ratings for the right and left lower extremity sciatic nerve radiculopathy effective October 9, 2008. The Board again remanded the claims on appeal to the AOJ in August 2021. Increased Ratings The Board is satisfied that all notification and development actions needed to fairly adjudicate the higher rating claims and the claim for entitlement to SMP prior to June 24, 2016, herein decided, have been accomplished, to the extent possible. The Veteran has been notified of what is needed to substantiate the claims, and relevant VA examination and opinion reports and VA and private treatment records have been associated with the claims file. These reports also document the Veteran's lay assertions regarding the claims decided herein. Further, the AOJ substantially complied with the Board's August 2021 remand insofar as it obtained opinions from a VA-contracted examiner with respect to the severity of his lower extremity neuropathy during the relevant appeal periods. There is no other identified evidence for which the Veteran has provided appropriate authorization to obtain, or other existing, relevant outstanding evidence with respect to these claims, and the Veteran has not otherwise alleged any error or omission in the assistance provided. Hence, he is not prejudiced by the Board proceeding to a decision on these claims at this juncture. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity resulting from disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two ratings 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. Reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to a claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant). When the evidence supports the claim or is in relative equipoise, the claim will be granted. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). If the preponderance of the evidence weighs against the claim, it is denied. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Board will consider entitlement to staged ratings to compensate for times since filing of a claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Bilateral Sciatic Nerve and Femoral Nerve Radiculopathy The Veteran is currently assigned 20 percent disability ratings for sciatic nerve radiculopathy of the right and left lower extremities, pursuant to DC 8520, effective October 9, 2008; and he is currently assigned 20 percent disability ratings for anterior crural (femoral) nerve radiculopathy of the right and left lower extremities, pursuant to DC 8526, effective August 28, 2020. Pursuant to DC 8520, a 20 percent rating is warranted for moderate incomplete paralysis of either lower extremity; a 40 percent rating is warranted for moderately severe incomplete paralysis of either lower extremity; a 60 percent rating is warranted for severe incomplete paralysis of either lower extremity; and an 80 percent rating is warranted for complete paralysis of the sciatic nerve of either lower extremity, in which the foot dangles and drops, no active movement is possible of muscles below the knee, flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Pursuant to DC 8526, a 20 percent rating is warranted for moderate incomplete paralysis of either lower extremity; a 30 percent rating is warranted for severe incomplete paralysis of either lower extremity; a 40 percent rating is warranted for complete paralysis of the femoral nerve of either lower extremity, resulting in paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. The terms "mild," "moderate," "moderately severe," and "severe" are not defined in the regulations. Thus, rather than applying a mechanical formula, the Board must evaluate all evidence. 38 C.F.R. § 4.6. An October 2008 report provided with the Veteran's Social Security Administration (SSA) records noted that the Veteran had positive straight leg testing results for both legs. A March 2009 VA examination report noted that the Veteran complained of lumbosacral spine pain radiation to the right lower extremity. The report noted that he had mild to moderate weakness of the right leg due to his spine disability. In a March 2011 VA examination report, the Veteran was noted to have some right-sided sciatic pain, with occasional pain on the left, and some paresthesias in both feet. VA clinical treatment records indicated that he was admitted to the hospital for one day in June 2012 for sciatica. A November 2013 report noted his complaint of low back pain shooting down the entire left lower extremity. Ongoing VA and private clinical treatment records continued to note the Veteran's lumbar radiculopathy. A May 2016 report, from Texas Terrace Care, noted that the Veteran had left sciatic nerve pain, and general radiculopathy was noted in a July 2016 report. In the report of a June 2019 VA examination, the Veteran was noted to have moderate, intermittent radicular pain and numbness of the left lower extremity. The examiner assessed moderate, incomplete paralysis of the sciatic nerve of the left lower extremity. An August 2020 VA examination report noted that the Veteran had mild, incomplete paralysis of the sciatic and femoral nerves of each lower extremity. In subsequent opinions provided by a VA-contracted examiner in April 2021, the examiner indicate that the Veteran had moderate, incomplete radiculopathy of the sciatic and femoral nerves of the left lower extremity, and that he had severe, incomplete radiculopathy of the sciatic and femoral nerves of the right lower extremity. Notably, however, as rationale for these opinions, the examiner indicated that findings of severe radiculopathy symptoms involving the lower extremities were based on the August 2020 VA examination results. As noted, however, findings from that examination indicated that the Veteran had only mild radicular symptoms of the femoral and sciatic nerves of each lower extremity. Following the Board's August 2021 remand of these claims, opinions as to the historical severity of the Veteran's lower extremity radiculopathy was obtained from a VA-contracted examiner in November 2021. Based on the evidence of record, including examination reports and medical records, the examiner opined that the Veteran had objective findings of moderate, incomplete paralysis of the sciatic nerves of the bilateral lower extremities since October 9, 2008, and moderate, incomplete paralysis of the femoral nerves of the bilateral lower extremities since August 28, 2020. The examiner clearly noted that the objective examination and medical findings, together with the Veteran's subjective reports during examinations, indicated continued significant neuropathy, equating to moderate, incomplete paralysis of each service-connected nerve. Based on the evidence of record, to include the multiple examination reports and opinions, the Board cannot make a finding that a disability rating higher than 20 percent is warranted for either of the femoral or sciatic nerves of either lower extremity. There is simply no competent evidence of record indicating that the Veteran has had any more severe radiculopathy symptoms than the noted moderate symptoms from the multiple examination reports. Such findings are consistent with the previous evidence of record dating back to March 2011, where the examination report indicated that the Veteran had some right-sided sciatic pain, with occasional pain on the left, and some paresthesias in both feet. While the April 2021 opining examiner noted that the Veteran had severe radiculopathy symptoms of the sciatic and femoral nerves of the right lower extremity, the examiner clearly noted that he derived these findings from the August 2020 VA examination report. Thus, where the August 2020 VA examination clearly concluded that the Veteran had only mild radicular symptoms of the sciatic and femoral nerves of the right lower extremity, the April 2021 examiner's findings were clearly erroneous, and therefore, of no probative value. In reaching this decision, the Board has considered the general lay assertions of record that higher ratings are warranted for sciatic and femoral nerve radiculopathy of the lower extremities. To the extent, however, that the Veteran may believe that higher ratings are warranted for these disabilities, the Board concludes that the VA examination findings are more probative than are his bare lay assertions. In reaching the conclusion that higher disability ratings are not warranted for the Veteran's sciatic and femoral nerve radiculopathy of the bilateral lower extremities, although the Board has considered the general lay assertions of record, the Board has relied primarily on the VA examination reports and other medical evidence of record which fails to show that the Veteran has met the criteria for a disability rating higher than 20 percent for either the sciatic or femoral nerves of either lower extremity at any point. Accordingly, the evidence persuasively weighs against the claims for disability ratings higher than 20 percent for femoral and sciatic nerve radiculopathy of the bilateral lower extremities; thus, the claims must be denied. SMP prior to June 24, 2016 While the Veteran was granted SMP based on the need for A&A effective June 24, 2016, review of the record reveals that he is in receipt of a 70 percent combined disability rating as of October 29, 2008. The compensation rate for a 70 percent rating for 2008 is higher than the allowable amount for nonservice-connected pension at the aid and attendance rate. Nonetheless, after a careful review of the evidence of record, the Board finds that the Veteran is not entitled to SMP benefits based on the need for the A&A of another person prior to June 2016. Relevant laws and regulations provide that when an otherwise eligible veteran is in need of the regular A&A of another person, an increased rate of pension shall be payable. 38 U.S.C. § 1521(d); 38 C.F.R. § 3.351(a)(1). A Veteran will be considered to be in need of regular A&A if he or she: (1) is blind or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less; or (2) is a patient in a nursing home because of mental or physical incapacity; or (3) establishes a factual need for A&A under the criteria set forth in 38 C.F.R. § 3.352(a). 38 C.F.R. § 3.351(c). As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular A&A of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 38 C.F.R. § 3.352(a). Additionally, "bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. §§ 3.352(a). It is not required that all of the disabling conditions enumerated in 38 C.F.R. §§ 3.352 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 A&A, not that there be a constant need. Determinations that a veteran is so helpless, as to be in need of regular A&A will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present"). As an initial matter, the evidence of record prior to June 24, 2016, does not demonstrate that the Veteran was blind, or so nearly blind as to have corrected visual acuity of 5/200 or less, in both eyes, or concentric contraction of the visual field to 5 degrees or less bedridden, or a patient in a nursing home. Additionally, the record does not indicate that he is bedridden. Turning to the evidence, an August 2008 medical statement for consideration of A&A, completed by a private clinician, noted that the Veteran's diagnosis of a cerebrovascular accident (CVA) resulted in left-sided weakness and chronic low back pain. The report noted that while he needed to use a cane for ambulation, he was able to feed himself, care for the needs of nature, and that he did not need assistance in bathing or tending to other hygiene needs. He was noted to be able to perform activities of daily living, but that he needed assistance with cleaning and doing laundry. The clinician that completed the report provided the bare opinion that the Veteran's chronic low back pain and weakness from the previous CVA showed his need for A&A; however, the clinician did not provide reasons for the opinion or indicate that he need regular A&A with any of his activities of daily living, only that he required a cane to leave his home, and needed assistance with cleaning and doing laundry. A subsequent VA A&A examination was performed in March 2009. The examiner noted that the Veteran walks about two blocks with a cane on flat ground, but that he has to stop due to weakness of his leg. While he would dress and undress himself, sometimes his fiancée had to help him undress. She also would have to scrub his back for his shower, and would prepare him dinner. The examiner concluded that while he would walk with a cane, with a limp, he could perform his activities of daily living, like brushing his teeth, shaving; but that he reported needing help buttoning and unbuttoning his shirt and pants. Although the Veteran's fiancée reportedly assisted him in multiple activities, the report did not indicate that the Veteran was at least as likely as not in need of the regular A&A of another person. Based on the foregoing, the Board finds that the evidence does not support a finding that the Veteran needed the A&A of another person prior to June 2016, as a result of blindness, of being a patient in a nursing home, or because he had a factual need for regular A&A. While the record clearly indicates that he uses a cane for ambulation, that he needed assistance when dressing, using clothing with buttons, and that he needed assistance with washing his back, the evidence otherwise shows that he was able to perform practically all of his activities of daily living unassisted during the time period in question. Thus, the evidence prior to June 2016 did not indicate that he was at least as likely as not unable to dress himself or to keep himself ordinarily clean and presentable; that he needed assistance with the frequent adjustment of a special prosthetic or orthopedic appliance, that he was unable to feed himself, that he was unable to attend to the wants of nature, or that he had physical incapacity that required care and assistance on a regular basis to protect him from the hazards or dangers incident to his daily environment. Thus, he was not shown to need the regular A&A of another person on a factual basis, as contemplated in 38 C.F.R. § 3.352(a). Accordingly, the Board finds that the evidence of record persuasively weighs against the Veteran's claim of entitlement to SMP based on the need for A&A prior to June 26, 2016; thus, the Veteran's claim must be denied. REASONS FOR REMAND Entitlement to a TDIU prior to October 29, 2008 Initially, the Board notes that the appeal period for the Veteran's TDIU claim extends back to October 29, 2007, one year prior to the receipt of the higher rating claim for the underlying disability upon which the TDIU claim was based. At this juncture, for the period prior to October 29, 2008, the Veteran does not meet the disability rating criteria to qualify for TDIU on a schedular basis, and the Board is prohibited from awarding an extraschedular TDIU in the first instance. Nonetheless, with the Veteran's contentions that he could not work prior to October 2008, including as a result of service-connected back disability, the Board finds that remand of the claim for a TDIU prior to October 29, 2008, is warranted to refer the claim to VA's Director of Compensation Service for extraschedular consideration. See Ray v. Wilkie, 31 Vet. App. 58 (2019) (holding that the initial extraschedular referral decision under § 4.16(b) addresses whether there's sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of service-connected disability). Accordingly, this matter is hereby REMANDED for the following actions: 1. Following any indicated development of the claim for a TDIU prior to October 29, 2008, where the Veteran does not meet the schedular criteria for a TDIU under 38 C.F.R. § 4.16(a), refer this issue to VA's Director of Compensation Service for extraschedular consideration. 2. After completing the above, and any other development as may be indicated, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case (SSOC). An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. Stephanie M. Owen Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Michael Wilson, 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.