Citation Nr: 22014098 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 13-24 606 DATE: March 11, 2022 ORDER A 40 percent rating, but no higher, for degenerative joint disease of the lumbar spine (low back disability), from July 10, 2013, is granted. A separate 10 percent rating, but no higher, for right lower extremity radiculopathy in the femoral nerve, from October 15, 2021, is granted. A separate 10 percent rating, but no higher, for left lower extremity radiculopathy in the femoral nerve, from October 15, 2021, is granted. A separate 10 percent rating, but no higher, for right lower extremity radiculopathy in the sciatic nerve, from October 15, 2021, is granted. A separate 10 percent rating, but no higher, for left lower extremity radiculopathy in the sciatic nerve, from October 15, 2021, is granted. Special monthly compensation (SMC) under 38 U.S.C. § 1114 (s) from October 15, 2021, is granted. A total disability rating based on individual unemployability (TDIU) from October 15, 2021, is dismissed. REMANDED The issue of a TDIU, prior to October 15, 2021, is remanded. FINDINGS OF FACT 1. From July 10, 2013, the Veteran's low back disability more nearly approximates forward flexion to 30 degrees or less when considering pain, functional loss and impairment and, the degree of additional limitation during flare ups; the Veteran's low back disability did not result in spinal ankylosis or the functional equivalent of spinal ankylosis, and she did not experience incapacitating episodes due to intervertebral disc syndrome (IVDS) having a total duration of at least 6 weeks during the past 12 months. 2. From October 15, 2021, the Veteran had right and left lower extremity radiculopathy, associated with his low back disability, which manifested by no more than mild incomplete paralysis of the femoral and sciatic nerves. 3. From October 15, 2021, the Veteran is in receipt of a 100 percent rating for a major depressive disorder; he has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily system. Prior to that date, the Veteran's other service-connected disabilities were not independently rated as 60 percent disabling. 4. As the Veteran has a 100 percent rating for major depressive disorder and has been awarded SMC pursuant to 38 U.S.C. § 1114 (s), from October 15, 2021, the issue of entitlement to a TDIU from October 15, 2021, is rendered moot. CONCLUSIONS OF LAW 1. The criteria for a 40 percent disability rating, but no higher, for the low back disability, from July 10, 2013, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a separate 10 percent rating, but no higher, for right lower extremity radiculopathy in the femoral nerve, from October 15, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, DC 8526. 3. The criteria for a separate 10 percent rating, but no higher, for left lower extremity radiculopathy in the femoral nerve, from October 15, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, DC 8526. 4. The criteria for a separate 10 percent rating, but no higher, for right lower extremity radiculopathy in the sciatic nerve, from October 15, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, DC 8520. 5. The criteria for a separate 10 percent rating, but no higher, for left lower extremity radiculopathy in the sciatic nerve, from October 15, 2021, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.20, 4.21, 4.123, 4.124, 4.124A, DC 8520. 6. The criteria for SMC under 38 U.S.C. § 1114 (s) from October 15, 2021, to present, have been met. 38 U.S.C. §§ 1114 (s), 5107; 38 C.F.R. § 3.350. 7. The question of whether the Veteran is entitled to a TDIU from October 15, 2021, is rendered moot by his receipt of a 100 percent rating and SMC pursuant to 38 U.S.C. § 1114 (s) from October 15, 2021, leaving no question of law or fact to decide regarding the TDIU issue during this period. §§ 7104, 7105; 38 C.F.R. §§ 3.340, 3.341, 4.14, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1987 to September 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In December 2017, the Veteran presented testimony before a Veterans Law Judge. In a May 2021 letter, the Veteran was notified that the VLJ who conducted the December 2017 hearing is no longer employed by the Board, and offered another opportunity for a hearing before a current VLJ who would participate in the decision in her appeal, consistent with 38 C.F.R. §§ 20.707 and 20.717 (2017). The Veteran was also notified that if she did not respond within 30 days from the date of the May 2021 letter, the Board will assume that she does do not want another Board hearing and will proceed accordingly. The Veteran did not respond to the May 2021 letter, and therefore, it is assumed that she does not want a hearing before a different VLJ and will proceed accordingly. In September 2019, the Board, in pertinent part, denied ratings higher than 10 percent for a low back disability before May 7, 2012, and higher than 20 percent from July 10, 2013. The Veteran appealed the portion of the September 2019 Board decision that denied ratings higher than 10 percent for a low back disability before May 7, 2012, and higher than 20 percent from July 10, 2013, to the United States Court of Appeals for Veterans Claims (Court). In an October 2020 Order, the Court granted a Joint Motion for Partial Remand (Joint Motion), vacating the portion of the September 2019 Board decision that denied ratings higher than 10 percent for a low back disability before May 7, 2012, and higher than 20 percent from July 10, 2013, and remanding it for action consistent with the terms of the Joint Motion. In July 2021, the Board granted a 40 percent rating, but no higher, for a low back disability prior to May 7, 2012, and remanded a rating higher than 20 percent for the low back disability, from July 10, 2013. Also, in July 2021, the Board found that the issue of a TDIU was raised as part and parcel of the increased rating claim for a low back disability and remanded that issue, as it was intertwined the increased rating claim for the low back disability. In particular, as to the increased rating claim for the low back disability, in July 2021, the Board remanded the appeal to schedule the Veteran for a VA examination to determine the current severity of his low back disability, as a September 2018 VA examiner was unable to describe the Veteran's functional loss during flare ups in terms of range of motion, and did not specify whether it was due to a lack of medical knowledge among the medical community at large or due to her own insufficient knowledge. Pursuant to the July 2021 remand, the Veteran was afforded a VA examination in October 2021 that assessed the severity of her low back disability and a November 2021 VA addendum opinion was obtained that addressed the Veteran's flare ups, duration, frequency and estimated range of motion measurements during periods of flareups. The October 2021 VA back examination and the November 2021 addendum opinion provided sufficient details to adequately decide the appeal, as the examiner rendered findings responsive to the rating criteria. Also, as will be discussed below, the October 2021 VA back examination and the November 2021 addendum opinion, the examiner provided estimated range of motion measurements during periods when the Veteran experiences symptoms such as flare ups. Therefore, the agency of original jurisdiction (AOJ) complied with the remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). Higher Initial Ratings Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. When the appeal arises from an initial assigned rating, consideration must be given to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). A rating higher than 20 percent for a low back disability, from July 10, 2013. The Veteran's low back disability is rated as 20 percent disabling under 38 C.F.R. § 4.71a, DC 5242, form July 10, 2013. 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). DC 5242 rating criteria was not amended, other than revising the title to "degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome". 38 C.F.R. § 4.71A, DC 5242. Limitation of motion of the thoracolumbar spine is rated under the Diseases and Injuries of the Spine (General Rating Formula). Under the General Rating Formula both prior to and since the regulatory change, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings apply: A 40 percent rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Id. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Each range of motion measurement is to be rounded to the nearest five degrees. The rating criteria provide that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The Court has held that a veteran may be entitled to a rating higher than 40 percent under the General Rating Formula if he experiences the functional equivalent of ankylosis when considering the provisions of 38 C.F.R. §§ 4.40 and 4.45. Chavis v. McDonough, No. 18-2928, 2021 U.S. App. Vet. Claims LEXIS 660 (Vet. App. Apr. 16, 2021). Under DC 5243 both prior to and since the regulatory change, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71A, DC 5243. Under the criteria for rating IVDS, the following ratings apply: a 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71A, DC 5243. For purposes of ratings under DC 5243, an incapacitating episode is 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, DC 5243, Note (1). Disabilities evaluated on the basis of limitation of motion require VA to apply the provisions of 38 C.F.R. §§ 4.40, 4.45, pertaining to functional impairment. The United States Court of Appeals for Veterans Claims (Court) has instructed that in applying these regulations VA should obtain examinations in which the examiner determines whether the disability is manifested by weakened movement, excess fatigability, incoordination, pain, or flare-ups. Such inquiry is not to be limited to muscles or nerves. These determinations, if feasible, are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. The examiner should also determine the point at which such factors cause functional impairment. Moreover, the joints involved should be tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016); DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.59. Further, in claims for higher ratings for musculoskeletal disabilities, where a veteran has a noncompensable rating and complaints of pain on motion, the veteran may be entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; Burton v. Shinseki, 25 Vet. App. 1 (2011). In Petitti v. McDonald, 27 Vet. App. 415 (2015), the Court held that under 38 C.F.R. § 4.59, "the trigger for a minimum disability rating is an actually painful, unstable, or malaligned joint," and it explained that 38 C.F.R. § 4.59 speaks to both painful motion of joints and actually painful joints. Id. at 425. Moreover, the Court held that 38 C.F.R. § 4.59 does not require "objective" evidence but can be satisfied with lay and other nonmedical evidence. Id. at 429. The provisions of 38 C.F.R. § 4.59 are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Id. Moreover, the plain language of § 4.59 indicates that it is applicable to the evaluation of musculoskeletal disabilities involving actually painful, unstable, or malaligned joints or periarticular regions, regardless of whether the DC under which the disability is being evaluated is predicated on range of motion measurements. Southall-Norman v. McDonald, 28 Vet. App. 346, 354 (2016). For the following reasons, a 40 percent rating for a low back disability is warranted. The evidence includes September 2018 and October 2021 VA examinations, treatment records, and the Veteran's statements. During VA examinations, treatment visits, and in the Veteran's statements, she reported low back pain, flare ups, and functional impairment. Specifically, she stated that her low back pain limited her ability to sit, stand, or walk for prolonged periods. See VA examination reports (September 2018; October 2021). Specifically, as to flare ups, the Veteran described flare-ups occurring with prolonged sitting, standing, walking, bending and lifting due to pain. See VA examination reports (September 2018). Upon physical examination, the Veteran had low back pain upon weight bearing and active range of motion testing that resulted in functional loss, such as difficulty with prolonged bending, lifting and twisting. See VA examination report (October 2021). Forward flexion of the lumbar spine was, at worst, limited to 40 degrees. See VA examination report (November 2021). As early in the appeal period as July 2013, the Veteran's forward flexion of the lumbar spine was limited to 42 degrees. See VA chiropractic progress note (July 2013). Although at the September 2018 examination forward flexion was recorded to 60 degrees, the examiner did not provide estimated range of motion measurements during periods of pain, weakness, fatigability, flare ups, or repeated use over a period of time. Notably, the October 2021 VA examiner was the only examiner who provided estimated range of motion measurements during periods when the Veteran experiences symptoms such as low back pain and flare ups. See addendum opinion (November 2021). The examiner noted that that although the Veteran denied experiencing flare ups at the October 2021 examination, the evidence of record indicated that she experienced low back flare ups during the appeal period, as she indicated that she had low back flare ups upon prolonged sitting, standing, walking, bending, and lifting. See addendum opinion. Based on the evidence of record, the examiner indicated that during periods of pain and flare ups, the Veteran's forward flexion would be limited to 40 degrees. Id. At the October 2021 VA examination, the examiner indicated that passive range of motion was not performed, as it was not medically advisable for the spine. As such, the evidence shows that the Veteran's forward flexion was limited to, at worst, 40 degrees. Although the Veteran's forward flexion was not limited to 30 degrees or less, she consistently reported low back flare ups, pain, difficulty with bending and prolonged standing, and functional impairment. Also, the Veteran's forward flexion was limited to nearly 40 degrees throughout the appeal period, which is a few degrees from meeting the next higher rating, a 40 percent rating. To this extent, the Veteran's low back disability more nearly approximates limitation of flexion to 30 degrees, considering the type and extent, frequency, and/or severity of her low back disability symptoms. For the following reasons, a rating higher than 40 percent for the low back disability is not warranted. The evidence of record shows that the Veteran did not have spinal ankylosis. See, e.g., VA examination report (October 2021). Neither the VA examination reports nor treatment records indicate that there was unfavorable ankylosis of the entire thoracolumbar spine or the entire spine. Despite the significantly limited ranges of spinal motion, the Board finds that even considering back pain, flare ups, and other functional factors, the Veteran did not experience actual ankylosis or the functional equivalent of spinal ankylosis (as defined above) during the appeal period. In other words, the evidence shows that even considering pain, flare ups, and other functional factors, the Veteran's back symptoms were not shown to have been so disabling to actually or effectively result in fixation of the entire thoracolumbar spine in flexion or extension with any of the additional symptoms or limitations listed in Note (5) of the General Rating Formula. Moreover, the Board acknowledges that during the appeal period, namely at the November 2021 examination, the Veteran was diagnosed as having IVDS. However, the Veteran's VA treatment records and examination reports illustrate that she had not experienced incapacitating episodes of IVDS having a total duration of at least 6 weeks during any 12-month period at any time during the claim period. See VA examination report (November 2021) (where the examiner indicated that the Veteran had IVDS that did not require bed rest prescribed by a physician and treatment by a physician in the past 12 months). Therefore, a higher rating is not warranted on the basis of IVDS at any time during the appeal period. Also, throughout the appeal period, the Veteran did not have muscle atrophy. In sum, a 40 percent rating, but no higher, for the Veteran's low back disability from July 10, 2013, is warranted. The benefit-of-the-doubt doctrine is therefore not for application. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. Entitlement to separate compensable ratings for right and left lower extremity radiculopathy The General Rating Formula provides that objective neurologic abnormalities associated with service-connected back disability (including, but not limited to, bowel or bladder impairment) are to be evaluated separately, under an appropriate diagnostic code. See 38 C.F.R. § 4.71A, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In this case, at the October 2021 VA examination, the examiner indicated that the Veteran had radiculopathy in the right and left lower extremities affecting the sciatic and femoral nerves due to her low back disability. Under DC 8520, the following ratings apply to paralysis of the sciatic nerve: a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124A, DC 8520. Under DC 8526, the following ratings apply to paralysis of the anterior crural (femoral) nerve: mild incomplete paralysis warrants a 10 percent, moderate incomplete paralysis warrants 20 percent; and severe incomplete paralysis warrants 30 percent. With complete paralysis of the femoral nerve which warrants a 40 percent rating, there is paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124A, DC 8526. The rating schedule provides guidance for rating neurological disabilities. With regard to rating neurological disabilities, cranial or peripheral neuritis, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The term "incomplete paralysis" 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 involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124A. The Court held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the 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. In Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018), the Court noted that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms." One possible source for such definitions would be the dictionary. Webster's II New College Dictionary defines "mild" as "not severe." Id. at 694 (1995). A synonym for "mild" is "slight," and definitions for "slight" includes "small in size, degree, or amount." Id. at 1038. The definitions for "moderate" include "of average or medium quantity, quality, or extent." Id. at 704. Finally, definitions for "severe" include "extremely intense." Id. at 1012. "[M]oderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." At the October 2021 examination, the examiner indicated that the Veteran reported mild constant pain, mild paresthesias and/or dysesthesias, mild numbness, and moderate intermittent pain in the right and left lower extremities. She stated that he had tingling and numbness in legs. Upon physical examination, reflexes were normal, (2+) and lower extremity muscle strength was normal (5/5) bilaterally. There was no muscle atrophy. Sensation to light to touch was decreased in the right and left lower extremities. As indicated above, at the October 2021 VA examination, the examiner indicated that the Veteran had radiculopathy in the right and left lower extremities affecting the sciatic and femoral nerves. For the following reasons, separate 10 percent ratings for radiculopathy in the right and left lower extremities affecting the femoral nerve, from October 15, 2021, under DC 8526 is warranted. Also, separate 10 percent ratings for radiculopathy in the right and left lower extremities affecting the sciatic nerve, from October 15, 2021, under DC 8520 is warranted. From July 10, 2013 (the period that is on appeal regarding a higher rating for the Veteran's low back disability) and prior to the October 2021 examination, the Veteran was not diagnosed as having radiculopathy in the right and left lower extremities. Notably, the evidence shows that prior to October 2021 examination, neurological testing of the lower extremities was normal. See VA examination report (September 2018) (where sensation to light to touch testing, muscle strength testing, and reflexes were normal). The Board finds that the Veteran's radiculopathy in the right and left lower extremities, affecting the femoral and sciatic nerves, more nearly approximates mild incomplete paralysis as listed under DC 8526 and DC 8520, and "slight," as defined by Webster's II New College Dictionary, as her radiculopathy in the right and left lower extremities symptoms were wholly sensory, that she described most of her radiculopathy symptoms as mild, and that sensory examination was decreased in the lower extremities. For the following reasons, ratings higher than 10 percent for radiculopathy in the right and left lower extremities affecting the femoral and sciatic nerves under DC 8526 and DC 8520 is not warranted. The Board defines moderate incomplete paralysis, as listed under DC 8526 and DC 8520, as manifestations beyond wholly sensory impairment such as drop reflex, diminished reflexes, or strength deficits. In this case, although sensory examination was decreased in the lower extremities, the Veteran's muscle strength of the lower extremities was normal (5+) and deep tendon reflexes were normal (+2). Also, there was no muscle atrophy. In other words, the Veteran's symptoms have been wholly sensory. Therefore, the Veteran's radiculopathy in the right and left lower extremities affecting the femoral and sciatic nerves symptoms were not moderate, as defined by the Board herein. Similarly, the Board finds that the Veteran's symptoms are not moderate as defined by Webster's II New College Dictionary. As stated above, Webster's II New College Dictionary defines "moderate" as of average or medium quantity, quality, or extent." Although the Veteran indicated that she had moderate intermittent pain in the right and left lower extremities, she described her radiculopathy in the right and left lower extremities symptoms, at worst, as mild. Here, the Veteran's symptoms were not more than "moderate" or average, as she described his symptoms as mostly mild. Overall, the Veteran has experienced at most mild incomplete paralysis of the right and left femoral and sciatic nerves. Therefore, 10 percent ratings, but no higher, are warranted for right and left lower extremity radiculopathy under DC 8520 and 10 percent ratings, but no higher, for right and left lower extremity radiculopathy under DC 8526 from October 15, 2021. See 38 U.S.C. §§ 1155, 5107 (b); 38 C.F.R. § 4.7, 4.124A, DCs 8520, 8526. SMC Under 38 U.S.C. § 1114 (s), SMC is payable at the housebound rate if a veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. 1114 (s). SMC under 38 U.S.C. § 1114 (s) from October 15, 2021. For the following reasons, SMC under 38 U.S.C. § 1114 (s) from October 15, 2021, is granted. The Veteran is in receipt of a 100 percent for a major depressive disorder from, at least, October 15, 2021. Thus, since October 15, 2021, the Veteran has a single, permanent service-connected disability rated as 100 percent disabling. As a result of the Board's decision herein, from October 15, 2021, the Veteran's low back disability is, now, rated as 40 percent disabling; his right lower extremity radiculopathy in the femoral nerve is rated as 10 percent disabling; left lower extremity radiculopathy in the femoral nerve is rated as 10 percent disabling; right lower extremity radiculopathy in the sciatic nerve is rated as 10 percent disabling; and left lower extremity radiculopathy in the sciatic nerve is rated as 10 percent disabling. Also, the Veteran is in receipt of a 20 percent rating from, at least October 15, 2021, for fibromyalgia. From October 15, 2021, the Veteran's combined rating (separate from the 100 percent rating for the major depressive disorder) is 70 percent. As such, the Veteran has additional service-connected disability or disabilities independently evaluated as 60 percent or more disabling which are separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. Accordingly, SMC under 38 U.S.C. § 1114 (s) from October 15, 2021, is granted. Prior to October 15, 2021, the Veteran did not have a separate 60 percent distinct from the 100 percent service-connected major depressive disorder. Specifically, prior to October 15, 2021, the Veteran's low back disability (was rated as 40 percent disabling) and fibromyalgia (was rated as 20 percent disabling) resulting in a combined 52 percent rating, which rounds down to 50. See 38 C.F.R. § 4.25(a) ("This combined value will then be converted to the nearest number divisible by 10, and combined values ending in 5 will be adjusted upward. Thus, with a 50 percent disability and a 30 percent disability, the combined value will be found to be 65 percent, but the 65 percent must be converted to 70 percent to represent the final degree of disability. Similarly, with a disability of 40 percent, and another disability of 20 percent, the combined value is found to be 52 percent, but the 52 percent must be converted to the nearest degree divisible by 10, which is 50 percent."). TDIU A TDIU may be assigned "where the schedular rating is less than total" and the evidence shows that a veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16 (a). TDIU since October 15, 2021. The Veteran is in receipt of a 100 percent rating from October 15, 2021. Hence, there remains no time during this period where the schedular rating is "less than total," as required for a TDIU. See 38 C.F.R. § 4.16 (a). The Board is cognizant of the fact that the receipt of a 100 percent schedular disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU because a TDIU rating may still form the basis for assignment of SMC pursuant to 38 U.S.C. § 1114 (s). See Bradley, 22 Vet. App. at 280. Here, however, the Board is already awarding SMC pursuant to 38 U.S.C.§ 1114(s) from October 15, 2021; and thus, for this reason, the issue of entitlement to a TDIU from October 15, 2021, is now rendered moot, leaving no question of law or fact to decide regarding the TDIU issue during this period. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 4.14, 4.16. In consideration thereof, the issue of entitlement to a TDIU, from October 15, 2021, must be dismissed as moot. REASONS FOR REMAND The issue of a TDIU prior to October 15, 2021, is remanded. As indicated, in July 2021, the Board found that the issue of a TDIU was raised as part and parcel of the increased rating claim for a low back disability, as the Security Administration (SSA), in March 2014, found that the Veteran was disabled for SSA purposes, due to her spine disability. The Board remanded the issue of a TDIU, as it was intertwined with the increased rating claim for the low back disability. Notably, although the Veteran has a combined schedular 100 percent rating, a grant of a 100 percent rating does not always render the issue of a TDIU moot. See Bradley, 22 Vet. App. 280 (analyzing 38 U.S.C. § 1114 (s)); see also 75 Fed. Reg. 11, 229-04 (March 10, 2010) (withdrawing VAOPGCPREC 6-1999). In this case, the Veteran has not submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability and the AOJ has not adjudicated this matter. In light of the decision above awarding a higher rating for the low back disability and awarding radiculopathy, the AOJ should consider the issue of a TDIU in the first instance, after implementing the Board's grants herein and requesting that the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. The matter is REMANDED for the following action: 1. Request that the Veteran complete VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability. Afford the Veteran a reasonable opportunity for response. 2. Adjudicate the issue of entitlement to a TDIU. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.