Citation Nr: 22014587
Decision Date: 03/14/22	Archive Date: 03/14/22

DOCKET NO. 18-22 289
DATE: March 14, 2022

ORDER

A rating in excess of 40 percent from May 1, 2015, for service-connected spondylosis and degenerative disc disease (DDD) of the lumbar spine is denied.

A compensable rating for the award of service connection for a lumbar spine scar associated with DDD of the lumbar spine prior to October 28, 2019, is denied.

An effective date prior to February 5, 2015, for the award of service connection for a lumbar spine scar associated with DDD of the lumbar spine is denied.  

Subject to the laws and regulations governing the award of VA monetary benefits, an effective date of February 24, 2014, but no earlier, for the award of service connection for lumbar radiculopathy of the left lower extremity is granted.

Subject to the laws and regulations governing the award of VA monetary benefits, an effective date of February 24, 2014, but no earlier, for the award of service connection for lumbar radiculopathy of the right lower extremity is granted. 

An effective date prior to August 21, 2017, for the award of a 20 percent rating for spondylosis and DDD of the cervical spine is denied. 

Subject to the laws and regulations governing the award of VA monetary benefits, from May 1, 2015, but no earlier, entitlement to a total disability rating based on individual unemployability (TDIU) is granted. 

Subject to the laws and regulations governing the award of VA monetary benefits, from May 1, 2015, but no earlier, entitlement to educational assistance benefits under Chapter 35, Title 38 U.S.C., also known as the dependents' educational assistance (DEA) benefits is granted. 

Entitlement to statutory special monthly compensation (SMC) pursuant to 38 U.S.C. § 1114(s) is denied. 

Entitlement to SMC pursuant to 38 U.S.C. § 1114(l), on the basis of regular need for aid and attendance, is denied. 

REMANDED

An initial rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity is remanded.  

An initial rating in excess of 10 percent for lumbar radiculopathy of the right lower extremity is remanded.  

A rating in excess of 20 percent for spondylosis and DDD of the cervical spine is remanded.

Entitlement to SMC pursuant to 38 U.S.C. § 1114(k), on the basis of the loss of use of the creative organ, is remanded. 

 

FINDINGS OF FACT

1. From May 1, 2015, the Veteran's lumbar spine condition has not manifested in unfavorable ankylosis of the entire thoracolumbar spine or the functional equivalent thereof or incapacitating episodes having a total duration of at least six weeks during the past 12 months.

2. Prior to October 28, 2019, the Veteran's scar of the lumbar spine was neither painful nor unstable.  

3. There is no earlier claim of service connection for a lumbar spine scar prior to the February 5, 2015, increased rating claim for the Veteran's back surgery. 

4. The Veteran's lumbar radiculopathy of the left lower extremity had manifested within one year prior to the February 24, 2015, claim for increase for a lumbar spine disability.   

5. The Veteran's lumbar radiculopathy of the right lower extremity had manifested within one year prior to the February 24, 2015, claim for increase for a lumbar spine disability.   

6. There was no factually ascertainable increase in the Veteran's cervical spine disability during the one-year look-back period prior to the August 21, 2017, date of claim for increase.  

7. From May 1, 2015, but not earlier, the Veteran's service-connected disabilities have precluded him from securing or following substantially gainful employment consistent with his education, skills, training, and work history.

8. From May 1, 2015, the Veteran has been found to have a permanent and total evaluation due to service-connected disabilities; accordingly, entitlement to DEA benefits under Chapter 35 is established from that date.

9. The Veteran does not have a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent, nor is he shown by the facts to be substantially confined as a direct result of his service-connected disabilities to his dwelling and the immediate premises.

10. The Veteran is not in need of regular aid and attendance in performing his activities of daily living as a result of his service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for a rating in excess of 40 percent from May 1, 2015, for a lumbar spine condition have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5242.

2. The criteria for a compensable rating prior to October 28, 2019, for the award of service connection for a lumbar spine scar associated with DDD of the lumbar spine have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.118, DC 7804. 

3. The criteria for an effective date prior to February 5, 2015, for the award of service connection for a lumbar spine scar associated with DDD of the lumbar spine have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400. 

4. The criteria for an effective date of February 24, 2014, but no earlier, for the award of service connection for lumbar radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 

5. The criteria for an effective date of February 24, 2014, but no earlier, for the award of service connection for lumbar radiculopathy of the right lower extremity have been met.  38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400. 

6. The criteria for an effective date prior to August 21, 2017, for the award of a 20 percent rating for spondylosis and DDD of the cervical spine, have not been met.  38 U.S.C. § 5110; 38 C.F.R. § 3.400, 20.302(a).

7. From May 1, 2015, but no earlier, the criteria for a TDIU have been met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.16, 20.302.

8. From May 1, 2015, but no earlier, the criteria for entitlement to DEA benefits under Chapter 35 have been met.  38 U.S.C. §§ 3500, 3501, 3510, 5113; 38 C.F.R. § 3.807.

9. The criteria for SMC at the housebound rate have not been met.  38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350.

10. The criteria for SMC based on aid and attendance of another person have not been met.  38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. 

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from September 1977 to October 1986, and from February 2003 to December 2004.  The Veteran had additional service with the Alabama National Guard.  

These matters come before the Board of Veterans Appeals (Board) on appeal from October 2015, November 2017, and March 2018 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).

The case was before the Board in May 2019.  At that time, the Board remanded the issue of a higher rating in excess of 40 percent for spondylosis and DDD of the lumbar spine for further development, to include consideration of whether the Veteran was entitled to separate compensable ratings for lumbar radiculopathy of the lower extremities and a lumbar spine scar.  

When in remand status, in an October 2019 rating decision, the RO increased the lumbar spine scar from a noncompensable rating to a 10 percent rating effective October 28, 2019, the maximum rating allowed under the rating schedule for a single scar.  The foregoing action is a partial grant of the benefits sought on appeal and the Board will further discuss whether a compensable rating is warranted at any time prior to October 28, 2019.  

Additionally, in a subsequent January 2020 rating decision under the Legacy system, the RO granted service connection for bilateral radiculopathy of the lower extremities and assigned separate ratings pursuant to Note 1 to DC 5242 (2020).  Thereafter, the Veteran filed a timely Notice of Disagreement (NOD), specifically appealing the ratings and effective dates assigned for his bilateral radiculopathy and opted into the Appeals Modernizations Act (AMA) by choosing a Review by a Veterans Law Judge under the Evidence Submission Lane.  See 38 C.F.R. §§ 20.202(b)(3), 3.2500(a)(1)(ii).  Nevertheless, as the claims of bilateral lower extremities radiculopathy are downstream issues stemming from the increased rating claim for his low back disability, the issues remain on appeal under the Legacy system as part of the increased rating claim for a back disability and the request for a review of those issues under the AMA system is not valid.  

In a March 2018 rating decision, the RO established entitlement to a TDIU and DEA benefits effective June 19, 2017, the date a claim for a TDIU was received.  Nonetheless, as the issue of a TDIU is part and parcel of the February 2015 lumbar spine increased rating claim, the issue remains on appeal with respect to the period prior to June 19, 2017.  See Harper v. Wilkie, 30 Vet. App. 356, 359 (2018).  

The Board also notes that the issues of entitlement to statutory SMC (38 U.S.C. § 1114(s)), SMC on the basis of regular aid and attendance (38 U.S.C. § 1114(l)), and based on the loss of use of a creative organ (38 U.S.C. § 1114(k)), have all been raised by the Veteran's attorney as part of the increased rating claim on appeal.  See January 2021 attorney's brief.   A separate claim is not needed for this type of ancillary benefits when raised by the claimant or reasonably raised by the record as part of the underlying claim for benefits.  See Payne v. Wilkie, 31 Vet. App. 373, 381, 385-87 (2019).  

Additional evidence was received subsequent to the most recent supplemental statement of the case issued in January 2020.  As the evidence is not pertinent to the claims decided herein, a remand for RO consideration of the evidence is not necessary.  See 38 C.F.R. § 20.1304(c).

The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Although the Board is remanding other claims for additional development, remand is not necessary for the issues decided herein, as there is no reasonable possibility that further assistance would substantiate these claims.  See 38 C.F.R. § 3.159(d).

Increased Ratings and Effective Dates

General Legal Criteria 

Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries.  The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations.  38 U.S.C. § 1155.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall 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.  When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant.  38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3.

The effective date of an award is the date after separation from service or date entitlement arose, whichever is later, for claims filed within one year of separation; or the date the claim was received by VA or the date entitlement arose, whichever is later, for claims filed more than one year after separation from service.  See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400; see also Rodriguez v. West, 189 F.3d 1351, 1354 (Fed. Cir. 1999).

An effective date for increased disability compensation shall be the earliest date as of which it is factually ascertainable that an increase in disability occurred if application is received within one year from such date.  38 U.S.C. § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).  "[A]n increase in a veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim in order to receive the benefit of an earlier effective date." Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2)).  If the increase in disability is shown to have occurred after the date of claim, the effective date is the date of increase.  See 38 U.S.C. § 5110 (b)(2); Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1); VAOPGCPREC 12-98 (1998).

1. A rating in excess of 40 percent from May 1, 2015, for service-connected spondylosis and DDD of the lumbar spine is denied.

Specific Legal Criteria

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes).  Ratings under the General Rating Formula are made 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.

The General Rating Formula for Diseases and Injuries of the Spine provides for a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; 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 disability rating is assigned for 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 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 disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine.  Ultimately, a 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  See 38 C.F.R. § 4.71a, DCs 5237-5242.

Following the rating criteria, Note (1) states: evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate DC.

Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months; 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.

Following the rating criteria, Note (1) states: For purposes of evaluations under diagnostic code 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.

Effective February 7, 2021, VA's Schedule, 38 C.F.R. Part 4, was amended with regard to rating musculoskeletal disorders.  Fed. Reg. 76453 (November 30, 2020) (codified at 38 C.F.R. § 4.71a).

When 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.  VAOPGCPREC 3-2000; Kuzma v. Principi, 341 F.3d 1327(Fed. Cir. 2003).  The revised musculoskeletal regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, February 7, 2021.  Hence, VA has made clear that its intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied.  For applications filed on or after the effective date, only the new criteria will be applied.  Here, as the Veteran's claim was pending prior to February 7, 2021, the Board will consider entitlement under the prior regulations as well as the updated regulations from February 7, 2021, forward, applying the most favorable criteria for the Veteran.

The changes effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242.  As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010)"; DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses."  As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021, regulations is not required.

Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  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 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 disabled.  See DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. § 4.40; see also 38 C.F.R. §§ 4.45, 4.59.  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).

The Court of Appeals for Veterans Claims (Court), in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.  Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss.  Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

Procedural Background

In February 2015, the Veteran filed a claim for an increased rating for his lumbar spine disability, to include a convalescence rating period due to back surgery.  In an October 2015 rating decision, the RO granted a temporary 100 percent rating for the period between February 5, 2015, to May 1, 2015, pursuant to 38 C.F.R. § 4.30, and a 10 percent rating thereafter.  The Veteran submitted a timely notice of disagreement (NOD) in April 2016.  In a March 2018 rating decision, the RO increased the Veteran's disability from a 10 percent rating to a 40 percent rating effective May 1, 2015.  A statement of the case (SOC) was issued accordingly.  In April 2018, the Veteran perfected his appeal by submitting a timely VA Form 9.  In a May 2019 decision, the Board remanded the claim to a higher rating in excess of 40 percent for the lumbar spine disability, to include consideration of separate ratings for bilateral lumbar radiculopathy.  Subsequently, an SOC was issued in November 2019.  A VA Form 9 was received in December 2019 and the case was returned to the Board.

Accordingly, the Board will consider entitlement to a rating in excess of 40 percent from May 1, 2015.     

Analysis 

Pursuant to the May 2019 Board's remand, the Veteran was afforded a VA examination in October 2019.  The examination report confirms the Veteran's diagnosis of degenerative arthritis of the spine, spinal fusion, lumbar spondylosis and DDD with abnormal or outside of normal range limitation of motion.   The Veteran reported severe discomfort and problems with prolonged sitting, riding in a car, heavy lifting, and pain with any repetitive bending and stooping.  The examination report further reflects that the Veteran has IVDS that required bed rest with a total duration of one week but less than two weeks during the past 12 months.  The report also reflects that the Veteran requires the use of a cane regularly and the use of a brace occasionally.  

Notwithstanding, the Board finds that the evidence is against a rating in excess of 40 percent for the Veteran's lumbar spine condition for the rating period beginning on May 1, 2015.  The 40 percent rating is the highest rating legally permitted for limitation of motion.  A higher rating of 50 percent requires ankylosis to be shown, or the functional equivalent thereof.  See Chavis v. McDonough, 34 Vet. App. 1 (2021).  "Ankylosis" is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  See Dorland's Illustrated Medical Dictionary, p. 94 (32nd ed. 2012).  

In this case, ankylosis is not shown during the October 2017 or October 2019 VA examinations.  Further, the Veteran's spine demonstrated mobility upon all ranges of motion.  In that regard, the most recent October 2019 VA examination report shows that even after repeated use over time, the Veteran was still able to perform flexion, extension, lateral flexion, and lateral rotation.  The foregoing cannot be construed as complete limitation of motion equivalent to ankylosis.  In addition, evidence of ankylosis is absent from the Veteran's VA treatment records.  The Board finds this evidence persuasive as to the possible existence of ankylosis or the functional equivalent thereof.  Without a showing of ankylosis or its functional equivalent, a rating in excess of 40 percent is not warranted and additional consideration of functional loss is also not warranted.  See Spencer v. West, 13 Vet. App. 376, 382 (2000); Johnston v. Brown, 10 Vet. App. 80, 84-85 (1997).

The Board acknowledges the Veteran's lay reports of symptoms of functional loss due to pain, severe discomfort, and interference with prolonged sitting, riding in a car, heavy lifting, and pain with any repetitive bending or stooping.  See October 2019 VA examination report.  However, the current 40 percent rating fully contemplates all functional loss, including during flare-ups of pain, weakness, fatigability, lack of endurance, or incoordination in accordance with 38 C.F.R. §§ 4.40, 4.45, and 4.59.  In addition, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine or functional loss equivalent to ankylosis.  See Chavis v. McDonough, 34 Vet. App. at 1.  

Furthermore, there is no basis to assign a disability rating higher than 40 percent. Even though the VA examinations may not contain all the necessary findings to evaluate the Veteran's loss of function, including on weight-bearing and during flare-ups, a higher rating cannot be assigned regardless of these findings absent ankylosis.  See 38 C.F.R. § 4.71a, DC 5237; see also Spencer, 13 Vet. App. at 382; Johnston, 10 Vet. App. at 84-85.  Accordingly, remand for a new VA examination is not needed pursuant to Sharp v. Shulkin, 29 Vet. App. at 35-36, and Correia v. McDonald, 28 Vet. App. at 168.  Additionally, a new VA examination is not warranted as there is no indication that the disability has subsequently worsened to the point of ankylosis.  The necessary evidence to determine applicability of a higher rating is of record and sufficient to decide the claim.

Consideration has also been given to assigning a rating under the Formula for Rating IVDS, as the October 2019 VA examination shows that the Veteran has IVDS.  However, the evidence reflects that the Veteran's IVDS required bed rest prescribed by a physician with a total duration of at least one week but less than two weeks within the past 12 months.  Treatment records in the claims file do not demonstrate additional incapacitating episodes.  Such findings actually correspond to a 10 percent rating under the foregoing alternate criteria.  See 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes.

To conclude, the Board finds that the Veteran's disability picture and symptomatology, taken as a whole and in combination with the subjective and objective evidence, has not more nearly approximated the criteria for a higher rating at any time during the appeal period.  See 38 C.F.R. § 4.7.  The evidence supports a finding against an increased rating and, therefore, there is no benefit of the doubt to resolve in the Veteran's favor.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Lynch v. McDonough, 999 F.3d 1391 (Fed. Cir. 2021), affirmed en banc 2021 U.S. App. LEXIS 37307 (Dec. 17, 2021).  Therefore, a rating higher than 40 percent is not warranted for the service-connected spondylosis and DDD of the lumbar spine disability from May 1, 2015.

The Board has also considered additional neurological manifestations of the service-connected lumbar spine disability.  See Chavis v. McDonough, 34 Vet. App. at 1.  However, the Veteran is already service connected for bilateral lower extremity radiculopathy and the evaluation of those ratings is remanded herein.  There is no other evidence of neurological abnormalities in the record warranting consideration.  Accordingly, additional ratings based on neurological manifestations are not warranted. 

Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim.  See 38 C.F.R. § 3.159(d).

2. A compensable rating for the award of service connection for a lumbar spine scar associated with DDD of the lumbar spine prior to October 28, 2019, is denied.

Scars Legal Criteria 

Effective August 13, 2018, a new General Rating Formula for the skin applies to DCs 7806, 7809, 7813 to 7816, 7820 to 7822, and 7824.  See 38 C.F.R. § 4.118 (2018).  The Veteran's scars are not rated under any of these DCs; in any event, he does not use systemic treatment and his scars do not take up large portions of his body amounting to at least five percent of exposed areas.  Accordingly, consideration of the amendments is not needed herein.  

Service connection for the Veteran's lumbar spine scar was originally granted under DC 7805, pertaining to other disabling effects of scars not considered under diagnostic codes 7800-7804.  DC 7805 directs that other disabling effects to be evaluated under an appropriate diagnostic code.  38 C.F.R. § 4.118, DC 7805.  A noncompensable rating was awarded due to the scar not meeting the compensable criteria of the other appropriate diagnostic codes.  Effective October 28, 2019, the rating was increased to 10 percent disabling, under the criteria of DC 7804, pertaining to unstable and painful scars.  Unstable or painful scars warrant a 10 percent rating for one or two scars that are unstable or painful; a 20 percent rating for three or four scars that are unstable or painful; and a 30 percent rating for five or more scars that are unstable or painful.  38 C.F.R. § 4.118, DC 7804.  

Notes (1)-(3) to DC 7804 indicate that an unstable scar is one where for any reason there is frequent loss of covering of skin over the scar; that if one or more scars are both unstable and painful, 10 percent should be added to the evaluation that is based on the total number of unstable or painful scars; and that scars evaluated under diagnostic codes 7800, 7801, 7802, and 7804 may also receive an evaluation under this diagnostic code when applicable.  38 C.F.R. § 4.118, DC 7804, Notes (1)-(3). 

Analysis

The Veteran is seeking a compensable rating prior to October 28, 2019, for service-connected lumbar spine scar associated with the lumbar spine spondylosis and DDD.  

By way of background, the Veteran's award of service-connection for a lumbar spine scar has been in effect since February 5, 2015, the date on which the Veteran underwent a lumbar spine surgery.  

As previously noted, in an October 2019 rating decision, the RO increased the Veteran's lumbar spine scar from a noncompensable rating to a 10 percent rating effective October 28, 2019, the maximum rating allowed under the rating schedule for a single unstable or painful scar.  As such, because neither the Veteran nor his representative have provided evidence reflecting extraordinary circumstances, further consideration on an extraschedular basis is not warranted from October 28, 2019.  Thus, the question for the Board is whether a compensable rating for service-connected lumbar spine scar is warranted at any time prior to that date. 

Here, the Board finds that a compensable rating for the Veteran's lumbar spine scar prior to October 28, 2019, is not warranted.  

VA treatment records dated from February 5, 2015, to October 28, 2019, do not show that the Veteran sought treatment for, or complained of a painful or unstable lumbar spine scar.  

Private treatment records received on June 4, 2015, and August 31, 2017; June 6, 2015, and August 29, 2017; and June 10, 2015, and September 1, 2017, do not show or reflect treatment for, or complaints of painful or unstable scars.    

The Veteran was afforded a VA thoracolumbar spine examination in October 2017.  The examination report notes a lumbar spine scar which measured 17 cm long and 0.2 cm wide.  The VA examiner noted that the scar was neither painful nor unstable.  

Pursuant to the May 2019 Board remand, the Veteran was afforded a new VA examination in November 2019.  At that time, the VA examiner examined the Veteran's scar and determined that while not unstable, his scar is now tender to palpation and painful.  In light of the foregoing, in its October 2019 rating decision, the RO increased the Veteran's scar from a noncompensable rating to a 10 percent rating effective November 28, 2019.  The Board determined, and the Board agrees, that that is the date on which it is factually ascertainable that an increase in severity occurred.  The foregoing is supported by the remaining medical evidence of record which is silent for complaints or treatment sought for a painful or unstable scar.  See Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (an increased rating should not be assigned mechanically based on the date of a diagnosis.  Rather, all of the facts should be examined to determine the date that the disability first manifested).     

The Board has considered the Veteran's statements; however, the medical evidence of record reflects that prior to October 28, 2019, the Veteran's service-connected lumbar spine scar was neither painful nor unstable.  Solely on the basis of one scar, the evidence does not meet the criteria for a compensable disability rating under DC 7804 prior to October 28, 2019.  There is no indication that the scar in question is deep, or that it is poorly nourished with repeated ulcerations, unstable, or with frequent loss of skin. 

Accordingly, the evidence is persuasively against the claim.  As there is not an approximate balance of positive and negative evidence, the benefit-of-the-doubt doctrine is not applicable and a compensable rating prior to October 28, 2019, for a service-connected lumbar spine scar is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

3. An effective date prior to February 5, 2015, for the award of service connection for a lumbar spine scar associated with DDD of the lumbar spine is denied.  

Analysis

By way of background, in a September 2011 rating decision, the RO confirmed and continued the Veteran 10 percent disability rating for spondylosis and DDD of the thoracolumbar spine.  The evidence of record does not show that the Veteran had a lumbar spine scar at that time.  See August 4, 2011, VA examination report.   

In February 2015, the Veteran underwent a lumbar spine fusion associated with his service-connected lumbar spine disability.  See private treatment records dated on February 5, 2015.  Shortly thereafter, the Veteran filed an increase rating claim seeking a temporary total evaluation following the aforementioned surgery.  See February 24, 2015, informal claim (VA Form 21-0820).  In a March 2018 rating decision, the RO established, in pertinent part, an award of service connection for a lumbar spine scar as raised by the record and effective February 5, 2015, the day the Veteran underwent his lower back surgery.  

First, the Board notes that pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400(b)(2), any new disabilities raised by the record as associated with his February 24, 2015, increased rating claim, as it is the case here, and for which the Veteran had been found eligible for VA compensation benefits, were to be granted effective the day on which the claim was received.  Additionally, and as previously noted, the record lacks competent evidence indicating the existence of a lumbar spine scar prior to the February 5, 2015, lower back surgery, or that a claim of service connection for a lumbar spine scar was received prior to that date.  On the contrary, the competent and probative medical evidence of record substantially shows that the veteran's lumbar spine scar is the direct result of his February 5, 2015, surgery.   

As the effective date for the award of service connection for a lumbar spine scar has already been assigned to the earliest possible date, the Board finds that the benefit sought has been granted in full.  There is no possible earlier effective date that may be granted, and the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Thus, an effective date prior to February 5, 2015, is not warranted.      

4. An effective date of February 24, 2014, but no earlier, for the award of service connection for lumbar radiculopathy of the left lower extremity is granted. 

5. An effective date of February 24, 2014, but no earlier, for the award of service connection for lumbar radiculopathy of the right lower extremity is granted. 

Analysis

The Veteran is claiming an effective date prior to November 1, 2014, for the awards of service connection for bilateral radiculopathy of the lower extremities which have been granted pursuant to 38 C.F.R. § 4.71a, DC 5242, Note (1), as part of his increase rating claim for a lumbar spine disability. 

By way of background, in a January 2020 rating decision, the RO granted service connection for bilateral lumbar radiculopathy of the lower extremities effective November 1, 2014, the date an official diagnosis was issued by VA providers.  However, the Board notes that an effective date for an increased rating, as in essence it is the matter in this case, should not be assigned mechanically based on the date of a diagnosis.  Rather, all of the facts should be examined to determine the date that the disability first manifested.  See Swain v. McDonald, 27 Vet. App. 219, 224 (2015).  

As a preliminary matter, the Board notes that prior to the February 2015 increased rating claim on appeal, in May 2011, the Veteran filed an increase rating claim for his lower back disability.  In a September 2011 rating decision, the RO confirmed and continued the Veteran's rating assigned at the time.  Nothing further was received within one year from the September 2011 rating decision until a new claim for increase was received in February 2015.  As the Veteran did not appeal the decision nor submitted any medical evidence in support of his claim for a higher rating of his back disability, or consideration of any associated manifestations, within one year from the September 2011 rating decision, the decision became final.   

That being clarified, the question for the Board is, therefore, whether the evidence shows that the Veteran's increase in severity of his service-connected back disability manifested by neurological abnormalities of the lower extremities, to include within the on-year-period from the February 24, 2015, increased rating claim (i.e., February 24, 2014).  See Gaston, 605 F.3d at 984; see also 38 C.F.R. § 3.400(o)(2).  See 38 U.S.C. § 5110(b)(2).  

In that regard, the Board notes that the Veteran was afforded a VA lumbosacral spine examination in August 2011.  While the opinion does not include a diagnosis of bilateral radiculopathy of the lower extremities, the Veteran reported throbbing pain in his low back which radiates towards his ankles.  The VA examiner noted that on examination, the Veteran's deep tendon reflexes at the knee and ankle were absent "bilaterally." 

Private treatment records reflect that in December 2013, the Veteran's sought emergency treatment for leg pain.  The private provider assessed his symptoms as back pain with sciatica.  See December 24, 2013, progress notes.  Sciatica is a syndrome characterized by pain radiating from the back into the buttock and the lower extremity along its posterior or lateral aspect, and most commonly caused by the protrusion of a low lumbar intervertebral disc.  See Dorland's Illustrated Medical Dictionary p. 1678 (32nd ed. 2012).     

VA treatment records show that the Veteran continued to seek treatment for leg and foot pain.  See May 15, 2014, progress notes.  See also September 4, 2014, progress notes (chronic low back pain and swelling to bilateral lower extremities); September 17, 2014, progress notes (severe lower back pain radiating down to legs; and September 18, 2014, progress notes (the Veteran no longer drives due to pain in his legs).  The Veteran underwent an MRI later that month.  The MRI results prompted his VA primary care provider to refer him to a VA neurosurgeon.  See September 19, 2014, progress notes.  Shortly thereafter, the Veteran underwent a VA-contracted MRI.  See November 11, 2014, progress notes.  While the MRI results seem to be missing from the claims file, the Veteran's VA provider officially diagnosed his symptoms as lumbar radiculopathy.  See November 14, 2014, progress notes.  

The evidence discussed above reflects that while the Veteran was officially diagnosed with lumbar radiculopathy of the lower extremities in November 2014, his symptoms began to manifest at least since August 2011 as noted by the Veteran during his August 2011 VA examination.  This is also supported by the December 2013 emergency care provider who assessed his symptoms as back pain with bilateral sciatica, which in turn was later confirmed by VA as lumbar radiculopathy of the lower extremities.   

In light of the above, the Board finds that the competing evidence is in approximate balance with respect to the manifestation of symptoms within the one-year period prior to the February 24, 2015, increased rating claim.  Thus, after resolving all reasonable doubt in the Veteran's favor, the Board finds from February 25, 2014, but not earlier, entitlement to a separate rating for bilateral radiculopathy of the lower extremities pursuant to Note (1) to DC 5242 is warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  That is the earliest possible date upon consideration of the applicable law and regulations and the one-year look-back period.  See Gaston, 605 F.3d at 984; see also 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2).  Therefore, from February 24, 2014, but no earlier, entitlement to separate ratings for bilateral lumbar radiculopathy of the lower extremities is warranted.  

Although the Board is remanding another claim for additional development, remand is not necessary for this issue, as there is no reasonable possibility that further assistance would substantiate the claim.  See 38 C.F.R. § 3.159(d).  

6. An effective date prior to August 21, 2017, for the award of a 20 percent rating for spondylosis and DDD of the cervical spine is denied.  

Analysis

By way of background, in a September 2011 rating decision, the RO confirmed and continued the assigned 10 percent disability rating for spondylosis and DDD of the cervical spine.  The Veteran was notified later that month to his then address of record.  The Veteran did not subsequently perfect an appeal.  Thereafter, nothing was received by the Veteran until the August 21, 2017, claim for increase for his cervical spine disability on the basis of a TDIU.  In a November 2017 rating decision, the RO increased the Veteran's cervical spine disability rating from 10 percent to 20 percent, effective on the date his claim for a TDIU was received.  As such, pursuant to 38 U.S.C. § 5110(a) and 38 C.F.R. § 3.400, the 20 percent rating increase was assigned effective August 21, 2017, the earliest possible day the benefit was sought.  

The Board has further considered whether an ever earlier date is warranted pursuant to the one-year look back period in light of Gaston, 605 F.3d at 984.  To that effect, private treatment records reflect that the Veteran underwent an MRI on July 13, 2016, due to complains of neck pain.  The results revealed mild degenerative disc disease without evidence of significant stenosis.  Radiographs of the neck were obtained in May 2017.  The results revealed no fracture or dislocation, advanced multilevel spondylosis unchanged from November 2015, an no acute abnormalities noted.  See May 23, 2017, progress notes.  

VA treatment records for the one-year period discussed herein are silent for complains or reports of neck or cervical complications other than pain.  Additionally, neither private or VA treatment records contain information regarding limitation of motion due to neck pain.   

Upon review of the entire claims file, the Board finds that the 20 percent rating increase was properly assigned effective August 21, 2017, as there was no factually ascertainable increase in the cervical spine disability in the one-year look-back period prior to the claim. 

Accordingly, the effective date for the award of a 20 percent increase rating has already been assigned to the earliest possible date, and there is no possible earlier effective date that may be granted.  Thus, the benefit-of-the-doubt doctrine is not applicable.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  As such, an effective date prior to August 21, 2017, is not warranted.       

7. From May 1, 2015, but no earlier, entitlement to TDIU is granted. 

TDIU Legal Criteria 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that if there is only one such disability, such disability shall be ratable as 60 percent or more, and if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16.

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: 

	The veteran's history, education, skill, and training;

	Whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and

	Whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.

Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).

Analysis 

As previously noted, in a March 2018 rating decision, the RO granted the Veteran a TDIU, effective June 19, 2017.  The RO explained that the effective date was based on the date the Veteran met the schedular criteria for a TDIU pursuant to 38 C.F.R. § 4.16(a).  See June 5, 2017, rating decision.  Accordingly, the RO determined that from that date the Veteran's service-connected disabilities rendered him unable to follow a substantially gainful occupation.  Thus, there is no dispute that the Veteran's service-connected disabilities have precluded him from following or maintaining substantially gainful employment.  Thereafter, subsequent rating actions by the RO have resulted in increased ratings.  A review of the record shows that the Veteran now meets the schedular criteria set forth in 38 C.F.R. § 4.16(a), but only from May 1, 2015.  As such, the question for the Board is whether the Veteran has been unable to maintain or secure substantially gainful employment at any time prior to June 19, 2017.  

The Board also notes that the issue of a TDIU had been previously raised by the Veteran as part of his lumbar spine rating appeal while the issue was pending before the RO.  See August 2017 VA Form 21-8940 (the Veteran asserts that his lumbar and cervical spine disabilities prevent him from securing or following substantially gainful employment).  See also October 2017 VA lumbar spine examination (the Veteran is unable to work due to limited mobility and unable to stand or ambulate).  The TDIU issue is part of the lumbar spine rating appeal and remains on appeal for the period prior to June 19, 2017.  See Harper, 30 Vet. App. 356, 363.  

Now, with particular relevance to the present appeal, the Board notes that the present increase rating claim stems from a February 24, 2015, claim for a temporary total evaluation due to convalescence following a surgery of the lumbar spine.  As such, that is the beginning period of the present appeal.  Nevertheless, in an October 2015 rating decision, the RO granted a temporary total evaluation (100 percent) due to a convalescence period from February 24, 2015, to May 1, 2015.  The Board notes that a 100 percent schedular evaluation does not render entitlement to TDIU moot, as entitlement to special monthly compensation may be raised.  See Bradley v. Peake, 22 Vet. App. 280 (2008).  However, as a temporary total evaluation is deemed by nature a temporary benefit, it is not appropriate to consider the implications of a 100 percent schedular evaluation in the context of entitlement to TDIU for such a period of convalescence.

Thus, the Board will address whether a TDIU is warranted, but only from May 1, 2015, which is the last date the Veteran was in receipt of a temporary total evaluation due to convalescence for his lumbar spine, the date that the Veteran first met the schedular criteria under 38 C.F.R. § 4.16(a), and the date the Veteran's attorney specifically asserts entitlement to a TDIU is warranted.       

That having been clarified, for the appeal period from May 1, 2015, but prior to June 19, 2017, the Veteran's service-connected disabilities included lumbar spine spondylosis rated at 40 percent; cervical spine spondylosis rated at 10 percent; left lower extremity radiculopathy secondary to lumbar spine spondylosis rated at 10 percent; right lower extremity radiculopathy secondary to lumbar spine spondylosis rated at 10 percent, tinnitus rated at 10 percent, and non-compensable ratings for bilateral hearing loss and a lumbar spine area scar for a combined rating evaluation of 60 percent for disabilities affecting a single body system (i.e., orthopedic).  As such, for the appeal period in question, the criteria for a TDIU on a schedular basis have been met.  See 38 C.F.R. § 4.16(a).  

In his August 2017 claim for a TDIU, the Veteran indicated that prior to his last period of active duty service, he last worked full-time on December 31, 2002, as a cook.  Following his release from active duty in December 2004, he indicates that his lumbar and cervical spine disabilities and associated complications became severe enough to render him unable to return to, and consequently unable to secure, his occupation as a cook, a position he held for close to 11 years.  

A TDIU requires evidence that a Veteran is unable to pursue a substantially gainful occupation due to his service-connected disabilities.  The Board has reviewed the evidence of record and for the reasons set forth below finds that from May 1, 2015, but not earlier, his service-connected cervical spine, lumbar spine and associated bilateral radiculopathy of the lower extremities and complications precluded him from securing or following substantially gainful employment.   Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Ferraro v. Derwinski, 1 Vet. App. 326, 332 (1991). (In adjudicating a TDIU claim, VA must take into account the individual Veteran's education, training, and work history).   

The evidence of record shows that in September 2005, the Veteran applied for VA Vocational Rehabilitation and Employment (VR&E) benefits.  At that time, the Veteran indicated that his service-connected hearing loss, cervical spine, and lumbar spine disabilities interfered with his ability to work.  He further noted that he could not drive or stand for long periods, could not lift anything over 2 to 5 lbs., and that he had difficulty hearing.  See September 28, 2005, Rehabilitation Needs Inventory (VA Form 28-1902w).  The Veteran also indicated that besides his experience as a Missile Crewman in the Army National Guard, his occupational history was limited to work as a cook and as a truck driver.  

Private medical records show that in February 2015, the Veteran underwent a laminectomy due to spinal stenosis and lumbosacral spondylosis.  Thereafter, radiography reports revealed that the Veteran continued to experience postoperative changes, to include posterior decompression at the L3 level, spanning to the S1 level.  See March 2, 2016, MRI results; see also July 13, 2016, CT scan and MRI (lateral disc protrusions at several levels and a finding of discitis).  The Veteran reported significant amount of back pain for which he continued to seek emergency care treatment.  See December 28, 2015, ER notes (complains of back pain after falling one week ago); June 3, 2016, ER notes (complains of severe chronic low back pain); June 16, 2016, ER notes (the Veteran was brought by EMS due to chronic back pain exacerbated by general movement); and July 10, 2016, ER notes (constant and worsening back pain exacerbated by movement, standing, walking, and changing position).                 

A Vocational Assessment was received in August 2017.  A Board-Certified Vocational Expert listed the Veteran's highest level of education as a high school graduate.  With respect to his work history, the vocational expert noted that from the early 1980s to the early 1990s, and during his active duty service, the Veteran worked as a truck driver.  The reviewer stated that as a truck driver, the Veteran "was responsible for the safe operation of a motor vehicle to transport freight," a semiskilled job that was performed at the medium level of physical demand.  It was further noted that the skills acquired through the performance of this position do not transfer to jobs performed at lighter levels of physical demand.  The vocational expert also noted that from 1992 to 2000, on a full-time basis, and from 2000 to 2002, on a part-time basis, the Veteran worked as a cook, a position which required the preparation of meals.  Similarly, the reviewer indicated that this semiskilled job was performed at the light level of physical demand and that the cooking skills acquired through the performance of this position do not transfer to jobs performed at lighter levels of physical demand.  The reviewer opined that after review of the Veteran's medical history, occupational history, education, and the limitations imposed by his service-connected disabilities, he has been unable to secure or follow a substantially gainful occupation since 2004, when he last worked as a truck driver on active duty.  In support of his opinion, the reviewer indicated that the Veteran's cervical and lumbar spine disabilities and associated complications have a major functional impact as the Veteran has limitations with prolonged standing and sitting.  These in turn preclude his capacity to perform not only his former occupations as a truck driver or as a cook, but any kind of competitive employment in the economy given the Veteran's physical restrictions regardless of whether the employment is sedentary, which was described as employment requiring the ability to sit for 6 hours in an eight-hour day, or light, medium, or heavy physical employment, which was described as employment requiring the ability to stand for 6 hours in an eight-hour day.   

The Veteran was afforded a VA examination in connection with his thoracolumbar spine disability in October 2017.  While the examination was not retrospective in nature, the VA examiner made reference to the Veteran's lower back surgery two years prior (i.e., 2015) and noted that he has not felt any better since as he is not able to stand for even 5 minutes, to ambulate for long distances, and cannot drive.  The examination report further suggests that ever since the Veteran's back surgery, he has lost his strength and endurance, is weak and unsteady without a cane, has to rest frequently, is unable to ambulate for long distances or stand for periods longer that 5 minutes or less, and is unable to put socks and shoes by himself.  Lastly, the examiner indicated that the Veteran is unable to work due to limited mobility and unable to stand or ambulate, with decreased range of motion. 

Social Security Administration (SSA) records show that the Veteran has been in receipt of Disability Insurance Benefits (SSDI) ever since December 2004.  While SSA records do not list the Veteran's back disability as the underlying cause of his disability determination, at that time the Veteran reported that he cannot stand on his feet for long and that he experienced a great amount of back pain that interfered with his standing, walking, and lifting which required multiple breaks.  See July 2007 Daily Activities Questionnaire.  The Veteran also noted that his mental health disorders (service-connected only from June 19, 2017) substantially interfered with his ability to work.            

Here, the record shows that the Veteran's work history prior to his last period of active duty service in 2004 appears to be limited to employment either as a truck driver, or as a cook.  There is no other indication in the record that the Veteran has any experience in, or the potential for, any other non-physical job, or, as stated by the August 2017 vocational expert, that the skills acquired through the performance of these positions could transfer to jobs performed at lighter levels of physical demand.  The record further reflects that prior to June 19, 2017, the Veteran's service-connected cervical and lumbar spine disabilities, and his bilateral lower extremities radiculopathy and associated complications continued to progress and substantially interfered with general movements such as ambulation, standing, sitting, and lifting as noted not only by the August 2017 vocational expert, but confirmed by the October 2017 VA examiner who noted, in essence, that since his surgery in 2015 the Veteran has not felt any better, is not able to stand for even 5 minutes, to ambulate for long distances, and cannot drive.  The foregoing is also supported by the ER progress notes indicating that the Veteran continuously sought emergency care treatment for severe chronic pain for the period between May 2015 to June 2017.  The Board notes that the foregoing objective and subjective reports, when considered along with his education and work history, are against an indication that he could work in an unskilled or semi-skilled sedentary or physical position that allows him to adapt his limitations to the position, including with reasonable accommodations.  See Ray, 31 Vet. App. 73; see also Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017).  In conclusion, the Board notes that the overall impact of the Veteran's service-connected disabilities could reasonably result in poor focus and poor task completion in any type of work environment. The Board finds that the August 2017 Vocational Assessment and the October 2017 VA examination report as to the effect of his service-connected cervical spine, lumbar spine, and bilateral lower extremity radiculopathy on his employment, when considered as a whole, are sufficient and probative to determine that their aggregate effect rendered him unable to work at least since May 1, 2015.   

In sum, the issue of employability is not a medical issue but a legal one.  See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013).  Therefore, and after consideration of the Veteran's individual circumstances, to include his education, training, and work history, the Board finds that the evidence is in approximate balance to support the Veteran's eligibility for TDIU on a schedular basis from May 1, 2015, but not earlier, as provided in 38 C.F.R. § 4.16; see also Ray, 31 Vet. App. at 73.  The severity of the Veteran's cervical spine, lumbar spine, and bilateral lower extremity radiculopathy precluded him from securing or following a substantially gainful occupation for the period prior to June 19, 2017.  This is particularly so when reasonable doubt is resolved in his favor.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.  Thus, from May 1, 2015, and exclusive of the period from February 3, 2016, to April 19, 2018, per the provisions set forth in 38 C.F.R. § 3.666(e)(2)(ii), a TDIU is warranted.

8.  DEA benefits prior to June 19, 2017.

Basic eligibility for Chapter 35 benefits for the child or surviving spouse of a veteran may be established if: (1) the veteran was discharged from service under conditions other than dishonorable or died in service; and (2) the veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the veteran's death; or (4) the veteran died as a result of a service-connected disability.  38 U.S.C. §§ 3500, 3501, 3510; 38 C.F.R. § 3.807. 

The Veteran contends that entitlement to DEA benefits under Chapter 35 is warranted.  See March 2019 NOD.  As the Board has determined that the Veteran is entitled to a TDIU from May 1, 2015, and subject to the applicable exclusions per 38 C.F.R. § 38 C.F.R. § 3.666(e)(2)(ii), entitlement to DEA benefits is warranted as well.  Accordingly, DEA benefits are granted.

9. Entitlement to SMC pursuant to 38 U.S.C. § 1114(s) is denied. 

10. Entitlement to SMC pursuant to 38 U.S.C. § 1114(l), on the basis of regular need for aid and attendance, is denied. 

SMC Legal Criteria

SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).

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 aid and attendance 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.

"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 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. §§ 3.350(b)(4), 3.352(a).

It is not required that all of the disabling conditions enumerated in this paragraph 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 be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance 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").

Furthermore, the performance of the necessary aid and attendance service by a relative of the beneficiary or other member of his or her household will not prevent the granting of the additional allowance. 38 C.F.R. § 3.352(c).

SMC at the housebound rate is payable where a veteran has a single service-connected disability rated as 100 percent, and, in addition has either: (1) a 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) is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i).  The permanently housebound criteria is met when the Veteran is substantially confined as a result of his or her service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. 38 U.S.C. § 1114 (s); 38 C.F.R. § 3.350 (i). Leaving one's house for medical purposes cannot, by itself, serve as the basis for finding that one is not substantially confined for purposes of housebound benefits.  Howell v. Nicholson, 19 Vet. App. 535, 540 (2006).

Analysis 

In a January 2021 brief, the Veteran's attorney argued that because the Veteran is entitled to a TDIU based upon his lumbar spine disability alone, and because the Veteran's non-lumbar spine disabilities attained a combined 60 percent at least since June 19, 2017, the criteria for SMC under § 1114(s) is met from that date.  As such, the issue of entitlement to SMC under 38 U.S.C. § 1114(s) has been raised by the record and is part and parcel of the increased rating claim for a lumbar spine disability.   See January 2021 attorney's brief; see also Payne, 31 Vet. App. 373, 386; Bradley, 22 Vet. App. At 293-294.  Additionally, the Veteran's attorney states that the Veteran is entitled to SMC on the basis of aid and attendance as he in need of help from another person to dress himself, such as putting on his socks and shoes.  See Brief at p.2.

The January 2021 brief does not contain arguments suggesting that the Veteran is "housebound" (i.e., that he is substantially confined as a result of his or her service-connected disabilities to his or her dwelling and the immediate premises and will continue throughout his lifetime).  While the January 2021 brief's contention appears to be solely based on a theory of entitlement due to statutory eligibility, the Board will further consider whether entitlement to SMC on an actual housebound basis is warranted.      

For the reasons set forth below, the Board finds that entitlement to statutory SMC pursuant 38 U.S.C. § 1114(s), or under 38 U.S.C. § 1114(l) on the basis of aid and attendance, are not warranted. 

As previously noted, the requirement for SMC under § 1114(s) is satisfied when a Veteran is in receipt of a TDIU solely based on a single disability.  See Bradley.  Whether or not TDIU was granted based on one disability or multiple disabilities does not render the issue moot; indeed, it must be determined whether any one of the Veteran's service-connected disabilities standing alone would warrant an award of TDIU.  Prior to June 19, 2017, if TDIU were warranted for the Veteran's lumbar spine disability alone, his remaining service-connected disabilities would not have combined to 60 percent.  Further, the record does not support that the Veteran's cervical spine disability, left lower extremity radiculopathy, right lower extremity radiculopathy, or tinnitus would have, standing alone, rendered him unemployable.  As such, the Board need not engage in further analysis regarding statutory SMC prior to that date.  

From June 19, 2017, regarding the Veteran's lumbar spine disability, he would have been unable to engage in prolonged sitting and standing, impairing work such as his prior truck driver position.  However, it is not apparent that that disability alone would preclude all positions for which he is qualified.  Indeed, he previously worked as a cook, which in many positions, might be possible to do with alternating periods of standing and sitting.  As such, the Board finds that the Veteran's lumbar spine disability alone would not have supported an award of TDIU.  This is supported by the vocational expert's findings that it was not only his lumbar spine disability but also his cervical spine disability that precluded gainful employment and the October 2017 VA examiner's findings that the Veteran was unable to turn his head in sudden movements, preventing many types of gainful employment.  It is also supported by the Veteran's own claim for TDIU, which identified that both his lumbar spine disability and cervical spine disability rendered him unemployable.

Regarding the Veteran's other service-connected disabilities, his PTSD was determined to only result in occupational and social impairment with reduced reliability and productivity, rather than total occupational impairment in an August 2017 VA examination.  Further, VA treatment records do not support a finding that the Veteran would be rendered unable to maintain employment in positions consistent with his education, skills, and work history.  Regarding his cervical spine disability, it is apparent that he would have difficulty turning his head in sudden movements, likely precluding truck driving, but the evidence does not support a finding that that disability alone would prohibit all employment for which he is qualified.  Finally, radiculopathy, tinnitus, and hearing loss would each, standing alone, have a functional impact on any type of employment, there is no evidence in the claims file that the condition itself would prevent employment for which the Veteran is qualified.  As such, SMC based on TDIU for a single disability is not warranted.  

Otherwise, the evidence does not show that the Veteran is housebound on a facts found basis.  During an October 2017 VA thoracolumbar spine examination, the Veteran indicated that he gets dropped off in front of stores and gets a motorized "buggy" to drive around while shopping.  See October 30, 2017, VA examination report.  During a subsequent October 2019 VA thoracolumbar spine examination, the Veteran acknowledged that he is able to walk about 100 yards (approximately 300 feet) which suggests that although there is some difficulty with his ambulation, the Veteran is not permanently or substantially confined to his dwelling and the immediate premises by reason of his service-connected disabilities.  See Howell, 19 Vet. App. at 540.   

The evidence also shows that he is not in need of the regular aid and attendance of another person.  While the evidence, indeed, reflects that the Veteran requires some assistance with putting on his socks and shoes by reason of the chronic low back pain and associated lower extremities radiculopathy (see October 2017 VA examination report), during the same referenced October 2017 VA cervical spine examination, the Veteran indicated that only during neck pain flare-ups he is "unable to go about his daily activities and stays at home."  Thereafter, in November 2017, VA treatment records show that the Veteran was able to perform self-care training as part of his musculoskeletal pain treatment.  See VA physical therapy progress notes.  In February 2018, he reported that he was able to perform his activities of daily living (ADLs) independently.  The Veteran further denied memory problems.  See February 6, 2018, VA progress notes.  This evidence indicates that he is not in need of regular aid and attendance.

Collectively, this evidence shows that the Veteran has not been housebound or in the need of aid and attendance of another person.  To the contrary, it shows that while there are significant symptoms that interfere with his functional capacity, he is still entirely independent in his capacities to perform ADLs to the extent he is able to leave home alone and perform additional ADLs independently. 

In short, the Board finds that the Veteran is not in need of regular aid and attendance in performing his activities of daily living as a result of his service-connected disabilities.  Nor does he have a single service-connected disability rated as 100 percent and additional service-connected disability or disabilities independently ratable at 60 percent, and he is not shown by the facts to be substantially confined as a direct result of service-connected disabilities to his dwelling and the immediate premises.  Thus, the eligibility requirements for SMC at the aid and attendance or housebound rates are not met.

As the evidence supports a finding against the claims, the benefit-of-the-doubt doctrine is not applicable, and SMC based on aid and attendance or being housebound is not warranted.  See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102.

REASONS FOR REMAND

1. An initial rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity is remanded.  

2. An initial rating in excess of 10 percent for lumbar radiculopathy of the right lower extremity is remanded.  

The Veteran contends that the currently assigned 10 percent ratings for his bilateral radiculopathy of the lower extremities do not compensate for the severity of his disabilities. 

As previously noted, the Veteran's bilateral radiculopathy ratings have been in effect since February 25, 2014.  A September 17, 2014, VA progress note shows that the Veteran complained of severe lower back pain radiating to his legs.  The next day, the Veteran reported that he no longer drives due to pain issues in his legs.  In February 2015, the Veteran underwent a laminectomy for decompression of the spinal cord.  See February 5, 2015, private progress notes.  However, he continued to report similar symptoms thereafter.  See May 24, 2015, private progress notes (still complains of back pain which radiates and described as moderate); see also September 30, 2017, progress notes (the Veteran is unable to stand for at least 5 minutes and is unable to ambulate long distances).  

The Board notes that the Veteran was afforded a VA examination in connection with his increased rating claim for a lumbar spine disability in October 2017. The examiner indicated that the Veteran did not have radiculopathy. 

A subsequent VA examination was conducted in October 2019.  The examiner noted radiculopathy manifested by mild intermittent pain, and mild paresthesias and numbness.  In its January 2020 rating decision, the RO seems to have relied on the foregoing findings to assign the current 10 percent ratings for each lower extremity and for the entire appeal period.   

As the only VA examination which addressed the Veteran's radiculopathy was aimed at ascertaining the level of severity of his service-connected low back disability, and given the additional medical evidence of record suggesting a higher level of severity throughout the entire appeal period beginning on February 25, 2014, the Board finds that further development is still necessary prior to adjudicating the claim on the merits. 

For the reasons set forth above, a remand is warranted for a VA peripheral nerves examination and opinion to ascertain the level of severity of the Veteran's bilateral radiculopathy of the lower extremities, to include a retrospective opinion to that effect.

3. A rating in excess of 20 percent for spondylosis and DDD of the cervical spine is remanded.  

The Veteran is seeking a rating in excess of 20 percent for his cervical spine disability.  In an August 2017 claim for a TDIU, the Veteran asserted that his cervical spine disability contributes to his inability to secure or follow substantially gainful employment.  

In October 2017, the Veteran was afforded a VA cervical spine examination.  He reported inability to rest his neck and constant pain and stiffness which interferes with his sleep.  He further noted that during flare-ups he stays at home and is unable to go out to perform activities of daily living, to include activity that "jars or jerks" his head.   The examiner reported cervical spine ranges of motion of forward flexion to 20 degrees, extension to 15 degrees, right and left lateral flexion to 10 degrees, and right and lateral rotation to 40 degrees.  The examiner noted that the Veteran was not able to perform repetitive use testing or repeated use over time out of fear of pain.  The report also reflects that despite the Veteran's reports of flare-ups and endorsement of symptoms such as stiffness and avoidance of activities that require movement of the head, the VA examiner failed to provide estimates for the Veteran's lost range of motion during such flares pursuant to Sharp v. Shulkin, 29 Vet. App. at 26.  

In Sharp, the Court noted that for a joint examination to be adequate, the VA examiner "must express an opinion on whether pain could significantly limit" a Veteran's functional ability, and that determination "should, if feasible, be portrayed in terms of the degree of additional range of motion loss due to pain on use or during flare-ups."  Id, at 34.  In addition, the Board notes that per the Court's ruling in Sharp, the examiner must also "offer flare opinions based on estimates derived from information procured from relevant sources, including the lay statements of Veterans," and that the examiner's determination "should, if feasible, be portrayed in terms of the degree of additional range-of-motion loss due to pain on use or during flare-ups."   

For the reasons set forth above, the Board finds that the October 2017 VA examination is not adequate to decide the Veteran's appeal at this time.  

Given the deficiencies of the October 2017 VA examination, particularly in light of the Veteran's report of symptoms such as stiffness and inability to rotate his head during flare-ups, and the fact that the last VA examination was afforded a little over 4 years ago, the Board finds that a new VA examination is warranted to comment on the severity and extent of the Veteran's cervical spine disability, to include a retrospective opinion for the entire appeal period beginning in August 2017.  See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 

4. Entitlement to SMC pursuant to 38 U.S.C. § 1114(k).

As previously noted, ancillary benefits such as SMC, are part of an increase rating claim if raised by the record without the need of a separate claim.  See Payne, Buie, and Bradley.  

The January 2021 attorney's brief raised the issue herein remanded.  The Veteran's attorney specifically argues that the Veteran is precluded from sexual intimacy as his lumbar spine disability results in painful sexual intercourse.  In other words, the Veteran's attorney contends that the inability to perform sexual intercourse due to spine pain following a lumbar spine surgery in 2015 entitles him to SMC on the basis of loss of use of the creative organ.  

Section 1114(k) provides that a higher level of monthly compensationSMC(k)may be paid to any veteran who, "as the result of service-connected disability, has suffered the anatomical loss or loss of use of one or more creative organs."  See Payne.  In Bria v. Wilkie, Court provided that the text and structure of 38 U.S.C. § 1114(k) make clear that the ability of the creative organ to function must be diminished due to a service-connected disability in order to constitute a loss of use.  In other words, SMC based on loss of use of a creative organ is only warranted where there is an actual functional impairment of the creative organ.  See 33 Vet. App. 228 (2021). 

Besides the Veteran's attorney's arguments accounting for the loss of use of the creative organ due to painful intercourse associated with his lumbar spine disability, there is no other evidence in the record neither in support or against the claim.  The additional medical evidence of record is not sufficient to decide the Veteran's claim at this time.  Therefore, the Veteran's theory of entitlement to SMC under 38 U.S.C. § 1114(k), stating that the loss of use of his creative organ is causally related to the pain stemming from his service-connected lumbar spine disability warrants further medical analysis.  VA is to fully and sympathetically develop the veteran's claim to its optimum before deciding it on the merits.  Hodge v. West, 155 F.3d 1356, 1362-63 (Fed. Cir. 1998).

For the reasons set forth above, the Board finds that a remand is warranted to afford the Veteran a VA genitourinary examination by a qualified medical professional to comment on the etiology, extent, and nature of the claimed loss of use of the creative organ per 38 U.S.C. § 1114(k). 

In light of the remand, updated VA treatment records should be obtained. 

The matters are REMANDED for the following action:

1. Obtained any updated VA treatment records dated since January 2021 and associate them with the claims file. 

2. Thereafter, schedule the Veteran for a VA examination by an appropriate medical professional to comment on the severity of the Veteran's service-connected radiculopathy of the lower extremities.

The examiner is also asked to provide, to the extent possible, a retrospective opinion with respect to the level of severity of the Veteran's bilateral lower extremity radiculopathy for the entire period on appeal beginning on February 25, 2014.  

Consideration should be given to: (1) The September 2014 VA progress note showing severe lower back pain radiating to his legs and that he no longer drives due to pain issues in his legs; and (2) the post laminectomy progress notes suggesting little to no improvement of his disability.      

A complete rationale should be provided for any opinion reached. 

3. Thereafter, schedule the Veteran for a VA examination to determine the current severity of his cervical spine disability.  The claims file should be made available to and reviewed by the examiner. 

The examiner should provide a full description of the disability and report all signs and symptoms for evaluating the Veteran's disability under the applicable rating criteria.  

This should include an assessment in compliance with Sharp.  If the functional loss during a flare-up cannot be estimated in terms of range of motion in degrees, it should be explained why this is so, e.g., deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training).

The examiner is also asked, to the extent possible, to provide a retrospective assessment with respect to the severity of the Veteran's cervical spine disability for the entire appeal period beginning on August 21, 2017.  If not feasible, the examiner should explain why this is so. 

Consideration should be given to the Veteran's reports of stiffness and difficulty rotating his head during his October 2017 VA examination.  

4. Thereafter, schedule the Veteran for a VA genitourinary examination by a qualified medical professional with respect to his claim for entitlement to SMC benefits on the basis of the loss of use of the creative organ. 

The examiner should first identify whether the Veteran has a diagnosis of erectile dysfunction, or any other diminished ability of the creative organ to function that would constitute a loss of use.  

The examiner is then asked to provide an opinion as to whether it is at least as likely as not that any identified erectile dysfunction, or loss of use of the Veteran's creative organ is proximately due to, or is otherwise aggravated by, his service-connected lumbar spine disability and associated symptoms. 

The VA examiner is cautioned that the term "aggravated," as used in 38 C.F.R. § 3.310(b), does not require that there be "permanent worsening" of the nonservice-connected disability.  Instead, secondary service connection is warranted for "any incremental increase in disability and any additional impairment of earning capacity in nonservice-connected disabilities resulting from service-connected conditions, above the degree of disability existing before the increase regardless of its permanence."  See Ward v. Wilkie, 31 Vet. App. 233, 239 (2019). 

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports should be acknowledged and considered in formulating any opinion. 

If medical literature is relied upon, the examiner should identify and specifically cite each reference material used. 

All opinions should be accompanied by supporting rationale explaining how the examiner arrived at the conclusions expressed. 

If the examiner determines that s/he cannot provide an opinion without resorting to speculation, the examiner should explain the inability to provide an opinion, identifying precisely what facts could not be determined.  In particular, he/she should comment on whether an opinion could not be provided because the limits of medical knowledge have been exhausted or whether additional testing or information could be obtained that would lead to a conclusive opinion.

5. After completing the above, and any additionally indicated development, readjudicate the claims.

	 

 

RACHEL E. JENSEN

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	William Pagan, 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.