Citation Nr: 22013352 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 14-28 757 DATE: March 9, 2022 ORDER Entitlement to a disability evaluation in excess of 10 percent for left lower extremity radiculopathy is denied. Entitlement to a disability evaluation in excess of 10 percent for right lower extremity radiculopathy is denied. Entitlement to special monthly compensation (SMC) based on housebound criteria is denied. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's left lower extremity radiculopathy has been manifested by no worse than mild incomplete paralysis of the femoral nerve. 2. Throughout the period on appeal, the Veteran's right lower extremity radiculopathy has been manifested by no worse than mild incomplete paralysis of the femoral nerve 3. The Veteran does not have a single service-connected disability rated as totally disabling, and the grant of TDIU entitlement does not contemplate a single disability, but rather the combined effects of multiple disabilities. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, Diagnostic Code (DC) 8526. 2. The criteria for a disability evaluation in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.7, 4.130, DC 8526. 3. The criteria for the award of SMC based on the housebound criteria have not been met. 38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1985 to August 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before a Veterans Law Judge at a Board hearing in June 2015. The transcript is of record. The Judge before whom the Veteran's June 2015 hearing was held has left the Board. The Veteran was afforded the opportunity for a new hearing and declined. The Board denied the claims for increase in March 2020, which decision the Veteran appealed to the Court of Appeals for Veterans' Claims (Court) which, pursuant to a Joint Motion for Partial Remand (JMPR), vacated the Board's decision and returned the matter to the Board. The Court also noted the Board's failure to address the issue of SMC entitlement. In August 2021, the Board remanded all three claims for development. They return now for appellate review. The claimant has not raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an evaluation in excess of 10 percent for radiculopathies of the lower extremities Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate compensable evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. The Veteran's radiculopathies have been evaluated under DC 8526. Per that DC, a 10 percent rating requires mild incomplete paralysis of the anterior crural (femoral) nerve; a 20 percent rating requires moderate incomplete paralysis of the nerve; and a 30 percent rating requires moderately severe incomplete paralysis of the nerve. Diagnostic Codes 8626 and 8726 address the criteria for evaluating neuritis and neuralgia of the femoral nerve, respectively. The criteria are consistent with the criteria for evaluating degrees of paralysis as set forth above. 38 C.F.R. § 4.124a , DC's 8626, 8726. The term "incomplete paralysis" with 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 nerve lesion or to partial regeneration. When the neural involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Words such as "mild," "slight," "moderate," "marked," and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. "Slight," as an adjective, is defined as "small of its kind or in amount." Slight, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2 (last visited Oct. 16, 2021). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last visited Oct. 16, 2021). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last visited Oct. 16, 2021). A review of the evidence in this matter convinces the Board that the Veteran's radiculopathies have not been of more than mild severity during the appeal period. An April 2014 VA examiner with whom the Veteran met characterized the radiculopathy as mild based on symptoms including mild intermittent pain and mild paresthesias. A June 2017 VA examiner agreed, finding similar symptomatology and assessing mild overall severity. An October 2021 VA examiner again concluded the Veteran's radicular symptoms were mild bilaterally, finding her intermittent pain and paresthesias mild, noting decreased sensation in the lower legs and ankles bilaterally, with no trophic changes and essentially normal gait. The Board notes that three qualified VA examiners have unanimously assessed the Veteran's radicular condition as "mild," based on review of the medical file and thorough in-person examination. In contrast, no treating provider has explicitly characterized the condition as more than mild. The Board acknowledges the Veteran's symptoms are limiting. For instance, a January 2021 SSA examiner noted a slow, stiff gait secondary to radicular pain. November 2017 VA treatment records characterize the Veteran's radicular symptoms as "worsening," and productive of pain, numbness, and tingling. With respect specifically to the Veteran's gait, the Board observes that the rating criteria associated with DC 8526 does not make explicit reference to gait. Further, none of the three VA examiners with whom the Veteran has met (during the appeal period and in connection with the instant claim, in contrast with the aforementioned SSA examiner,) have assessed the Veteran with gait abnormalities. In addition, no treating or examining provider, including the aforementioned SSA examiner or VA treating providers, have explicitly characterized the Veteran's radicular symptoms as "moderate," "severe," or in similar terms. Thus, in sum, the Board affords the greatest probative value in this matter to the combined assessments of the VA examiners, who have been unanimous that while the Veteran's radicular symptoms are limiting, their overall severity is no worse than mild. There is no more probative evidence in the record suggesting the Veteran's disability has been manifested by moderate or severe incomplete paralysis of the femoral nerve at any time during the appeal period, and thus, there is no basis in the record for assignment of a rating in excess of 10 percent for radiculopathy of either lower extremity. 2. Entitlement to SMC SMC at the housebound rate may be paid if a Veteran has a single service-connected disability rated 100 percent and either: (1) has an additional service-connected disability or disabilities 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 a service-connected disability or disabilities. Permanently housebound means the Veteran is substantially confined, as a direct result of a service-connected disability or disabilities, to his dwelling or the immediate premises (or, if institutionalized, to the ward or clinical areas), and it is reasonably certain that the service-connected disability or disabilities and resultant confinement will continue throughout his lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Even where a Veteran does not have a single service-connected disability rated as totally disabling, if TDIU entitlement is granted based on the effects of a single disability, that may satisfy the requirements of the provision. In this case, the Veteran is service-connected for a lumbar condition, rated as 40 percent disabling, the above-discussed radiculopathies, an acquired psychiatric disorder rated to 70 percent, and she is in receipt of noncompensable evaluations for anemia and allergic rhinitis. Thus, as she is not in receipt of a 100 percent evaluation for any single disability, the Board must consider whether her TDIU entitlement is predicated on the disabling effects of a single disability alone. It is not. In its March 2020 decision, the Board explained that while the Veteran's lumbar symptoms conferred significant limitations including to her ability to sit for prolonged periods, and to her mobility, her psychiatric disability caused a range of symptoms affecting her occupational capacity including sleep impairment, memory loss, disturbance of motivation and mood, difficulty in adapting to stressful circumstances, including in a work-like setting, and intermittent inability to perform activities of daily living. See March 10, 2020 BVA Decision [at 13]. In its conclusion, the Board confirmed that "[g]iven the combined effects of the Veteran's major depression and back disability...the probative evidence...shows that [she] is unable to secure or follow substantially gainful employment due solely to her service-connected disabilities." This language unambiguously predicates TDIU entitlement on the combined effects of the Veteran's service-connected disabilities, rather than to physical limitations flowing from her lumbar condition alone, and is, as explained above, supported by a rationale that discusses the evidence of record. Thus, the Board does not find the criteria for entitlement to SMC at the housebound rate satisfied in this case, as the Veteran neither has a single disability rated as 100 percent disabling, nor has been granted TDIU entitlement based entirely on the effects of a single condition alone. Accordingly, the Board need proceed no further with its analysis, and finds that SMC is not warranted. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Z. Sahraie, 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.