Citation Nr: 22017137 Decision Date: 03/24/22 Archive Date: 03/24/22 DOCKET NO. 15-43 072 DATE: March 24, 2022 ORDER Entitlement to a rating higher than 20 percent for a low back disability, prior to September 16, 2019, is denied. Entitlement to a rating higher than 40 percent for a low back disability, as of January 1, 2020, is denied. Entitlement to a rating higher than 10 percent for right lower extremity radiculopathy, prior to November 14, 2017, is denied. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy, prior to November 19, 2019, is denied. Entitlement to a rating higher than 20 percent for right lower extremity radiculopathy, as of November 14, 2017, is denied. Entitlement to a rating higher than 40 percent for left lower extremity radiculopathy, as of November 19, 2019, is denied. Entitlement to service connection for a urinary disability, claimed as secondary to a low back disability, is denied. Entitlement to service connection for a bowel disability, claimed as secondary to a low back disability, is denied. Entitlement to special monthly compensation based on the need for aid and attendance of another person (SMC) is granted. REMANDED Entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence, as of October 1, 2018, is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 1, 2020, is remanded. FINDINGS OF FACT 1. Prior to September 16, 2019, a lumbar spine disability was not manifested, overall, by thoracolumbar spine flexion limited to 30 degrees or less; no ankylosis or incapacitating episodes requiring bed rest prescribed by a physician for a total duration of at least four weeks during any 12-month period were shown. 2. As of September 16, 2019, a lumbar spine disability has been manifested by thoracolumbar spine flexion limited to, at worst, 20 degrees and painful motion; no ankylosis or incapacitating episodes requiring bed rest prescribed by a physician were shown. 3. Prior to November 14, 2017, the Veteran experienced no more than mild incomplete paralysis of the right sciatic nerve. 4. Prior to November 19, 2019, the Veteran experienced no more than mild incomplete paralysis of the left sciatic nerve. 5. From November 14, 2017, the Veteran experienced no more than moderate incomplete paralysis of the right sciatic nerve. 6. From November 19, 2019, the Veteran experienced no more than moderately severe incomplete paralysis of the left sciatic nerve. 7. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a urinary disability attributable to either service or service-connected disability. 8. The preponderance of the evidence is against a finding that the Veteran has a current diagnosis of a bowel disability attributable to either service or service-connected disability. 9. The Veteran's service-connected disabilities require the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating higher than 20 percent for a low back disability, prior to September 16, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243. 2. The criteria for entitlement to a rating higher than 40 percent for a low back disability, as of January 1, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.45, 4.59, 4.71a, Diagnostic Codes 5237-5243. 3. The criteria for entitlement to a rating higher than 10 percent for right lower extremity radiculopathy, prior to November 14, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for entitlement to a rating higher than 10 percent for left lower extremity radiculopathy, prior to November 19, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for entitlement to a rating higher than 20 percent for right lower extremity radiculopathy, from November 14, 2017, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to a rating higher than 40 percent for left lower extremity radiculopathy, from November 19, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 7. The criteria for entitlement to service connection for a urinary disability, claimed as secondary to a low back disability, have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 8. The criteria for entitlement to service connection for a bowel disability, claimed as secondary to a low back disability, have not been met. 38 U.S.C. §§ 1110, 1131, 1132, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.310. 9. Resolving reasonable doubt in the Veteran's favor, the criteria for special monthly compensation based on the need for the regular aid and attendance of another person have been met. 38 U.S.C. §§ 1114, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1973 to December 1975. In December 2018, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. In June 2019 and December 2020, the Board remanded these claims for further development. In light of the treatment records that have been obtained and associated with the record, the obtaining of the requested VA medical opinions, and the further adjudicatory actions taken, the Board finds that there has been substantial compliance with the remand requests concerning the issues of entitlement to higher ratings for a low back disability, radiculopathy of the bilateral lower extremities, and service connection for urinary and bowel disabilities. Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999). Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, that does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). When rating musculoskeletal disabilities based on limitation of motion, the Board must consider functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.40. The Board must also consider whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. 38 C.F.R. § 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Nonetheless, even when the background factors listed in 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 are relevant when rating a disability, the rating is assigned based on the extent to which motion is limited. A separate or higher rating under 38 C.F.R. § 4.40 or 38 C.F.R. § 4.45 is not appropriate. Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Higher Ratings 1. Entitlement to a rating higher than 20 percent for a low back disability, prior to September 16, 2019 Disabilities of the spine are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome is rated under the General Formula for Rating Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under the General Rating Formula for Rating Diseases and Injuries of the Spine, with or without symptoms such as pain (whether or not it radiates), stiffness or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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. 38 C.F.R. § 4.71a. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine of 30 degrees or less; or, unfavorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 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 ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, Plate V, General Rating Formula for Diseases and Injuries of the Spine, Note (2). The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (4). In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (3). 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 (0 degrees) always represents favorable ankylosis. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. The rater is to round each range of motion measurement to the nearest five degrees. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (6). Diagnostic Code 5243 provides that intervertebral disc syndrome is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that a 10 percent rating is warranted for intervertebral disc syndrome with incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted with 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 with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. 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, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). If intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment is to be rated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (2). From June 25, 2018, to October 1, 2018, and from September 16, 2019, through January 1, 2020, the Veteran was assigned a temporary 100 percent rating based on the need for convalescence following lumbar spine surgery. Therefore, no higher rating is available for those periods, and those periods will not be discussed further. VA outpatient records for the time on appeal show generally that the Veteran has been treated for ongoing low back pain. An MRI taken at a private facility in September 2010 found disc degeneration, spondylosis, a small far lateral left-sided herniated nucleus pulposus, degenerative retrolisthesis, and mild rotatory scoliosis. At a July 2012 VA examination, the examiner diagnosed degenerative disc disease of the lumbar spine. The Veteran reported experiencing lower back pain and spasms if he stood for long periods of time. He experienced back pain every day. The examiner measured forward flexion of the thoracolumbar spine to 75 degrees with objective evidence of pain at 75 degrees. Extension was to 25 degrees with objective evidence of pain at 25 degrees. Right lateral flexion was to 25 degrees with objective evidence of pain at 25 degrees. Left lateral flexion was to 20 degrees with objective evidence of pain at 20 degrees. Right lateral rotation was to 20 degrees with objective evidence of pain at 20 degrees. Left lateral rotation was to 10 degrees with objective evidence of pain at 10 degrees. Following repetitive use, forward flexion was to 55 degrees; extension was to 10 degrees; right and left lateral flexion were each to 25 degrees; and right and left lateral rotation were each to 20 degrees. The examiner noted that repetitive use resulted in less movement than normal and pain on movement. The Veteran did not have localized tenderness or pain to palpation for the joints or soft tissue of the thoracolumbar spine. There was no guarding or muscle spasm of the thoracolumbar spine. There was no muscle atrophy. The examiner specified that the Veteran did not have any other neurologic abnormalities or findings, such as bowel or bladder problems, due to his thoracolumbar spine disability. The examiner specified that the Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The Veteran did not use any assistive devices for locomotion. The Veteran did not have a vertebral fracture. In a July 2013 statement, the Veteran remarked that he had undergone spinal surgery on December 5, 2012. According to VA treatment records, the December 2012 surgery was for the cervical spine. At a November 2015 VA examination, the examiner diagnosed degenerative disc disease of the lumbar spine. The Veteran reported that his back hurt when he got out of bed in the morning, and the pain would get better with back movement over time. Bending, raking, shoveling, and lifting heavy objects aggravated the low back pain. No flare-ups were reported. The examiner observed the following ranges of motion of the thoracolumbar spine: forward flexion to 60 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Pain was noted on forward flexion, extension, and left lateral rotation. There was no evidence of pain with weight bearing. There was no additional loss of range of motion following repetitive use. There was no muscle spasm. There was localized tenderness and guarding which did not result in abnormal gait or abnormal spinal contour. The examiner found that the Veteran did not have any signs or symptoms due to radiculopathy. There was no ankylosis of the spine. The examiner specified that the Veteran did not have any other neurologic abnormalities or findings, such as bowel or bladder problems, due to his thoracolumbar spine disability. The examiner specified that the Veteran did not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The Veteran did not use any assistive devices for locomotion. The Veteran did not have a vertebral fracture. On June 25, 2018, the Veteran underwent a lumbar laminectomy. At a December 2018 Board hearing, the Veteran stated that he had not been prescribed bedrest at any time. He mentioned that he had three months of convalescence following a recent surgery. On September 16, 2019, the Veteran underwent a lumbar diskectomy. On review of all the evidence of record, both lay and medical, the Board finds that the Veteran's back disability has not more nearly approximated a rating higher than 20 percent at any time prior to September 16, 2019. No ankylosis, either favorable or unfavorable, has been shown. Moreover, at no time has the evidence found forward flexion of the lumbar spine limited to 30 degrees or less. The VA examinations showed forward flexion, at worst, limited to 55 degrees with pain after repetitive motion. Therefore, the Board finds that flexion was not limited to 30 degrees of less. The other treatment records show continuing complaints of pain and flare-ups. However, the treatment records do not show functional impairment that more nearly approximates the range of motion criteria to support a higher rating under the General Rating Formula, even considering the Veteran's subjective complaints. The Board has also considered the Veteran's reported impairment of function and has considered additional limitations of motion due to pain, incoordination, fatigability, excess motion, weakened motion, or on flare up. Even considering additional limitation of motion or function of the spine due to pain or other symptoms such as weakness, fatigability, pain, or incoordination the evidence still does not show that the back disability more nearly approximates the criteria for a higher rating. On repetitive use testing, range of motion of the spine did not show flexion of the thoracolumbar spine limited to 30 degrees or less, and while the Veteran experienced pain during flare-ups, overall he remained able to function. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The factors that may additionally limit motion and function were considered and assessed by the examination reports. The VA examiners noted less movement than normal, pain on movement, and interference with sitting, standing, and weight-bearing. The Veteran described flare-ups were manifested by increased pain but continued ability to function. The Board finds that pain and reduced range of motion is fully contemplated in the current 20 percent rating assigned. The evidence does not show that any additional factors approximate thoracolumbar flexion to 30 degrees or less. The Board has also considered whether a higher rating could be assigned under the IVDS formula based on incapacitating episodes. The VA examiners specified that the Veteran does not have IVDS. However, although the Veteran rests following flare-ups, the evidence shows that throughout the period of appeal, the Veteran was never prescribed bed rest by a physician as due to IVDS. Therefore, he has not been shown to have incapacitating episodes requiring bed rest prescribed by a physician and treatment by a physician of a total duration of at least four weeks. The Veteran's radiculopathy of the right and left lower extremities and claimed bladder and bowel disabilities will be discussed below. There are no other neurological disabilities which have been attributed to the lumbar spine disability by a medical professional. The competent evidence does not show any other objective neurologic abnormalities associated with the low back disability so as to warrant any separate rating. The Board finds that the evidence does not more nearly approximate the criteria for a higher rating. There is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim for increase must be denied. 2. Entitlement to a rating higher than 40 percent for a low back disability, from January 1, 2020 At a May 2021 VA examination, the Veteran reported experiencing pain that he rated as a 5 on a 0 (low) to 10 (high) pain scale. The report indicates that the Veteran did not report flare-ups of the thoracolumbar spine. The examiner measured the following ranges of motion for the thoracolumbar spine: forward flexion to 20 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. Pain was noted on examination for all ranges of motion. Passive range of motion testing was not performed because it was not medically advisable to conduct passive range of motion testing. The examiner indicated that there was pain on active motion that did not result in functional loss. There was no additional loss of function or range of motion after repetitive use testing. There was no localized tenderness, guarding, or muscle spasm of the thoracolumbar spine. There was no muscle atrophy. There was no ankylosis. The examiner specified that other than radiculopathy, the Veteran did not have any other neurologic abnormalities related to a thoracolumbar spine condition. The examiner stated that the Veteran did not have IVDS. The examiner stated that there were no further pertinent findings. Based on the evidence of record the Board finds that the Veteran's lumbar spine disability does not warrant a rating in excess of 40 percent. Specifically, range of motion testing performed did not show any occasion where the Veteran's lumbar spine was limited to any less than 20 degrees, even when considering the impact of pain and other factors limiting the range of motion. In order for the Veteran's symptomatology to warrant a higher rating than 40 percent, unfavorable ankylosis would have to be shown affecting the entire thoracolumbar spine. Objective medical examination by the VA examiner found no ankylosis of the entire lumbosacral spine. While the medical evidence shows pain and limited range of motion due to pain, ankylosis of the entire thoracolumbar spine is not shown. Joint pain alone, including pain throughout the entire range of motion, but without evidence of decreased functioning ability, does not warrant a higher rating. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The Board notes that the Veteran did not have incapacitating episodes of at least six weeks during any 12 month period which is required for a rating in excess of 40 percent as reported in the VA examination report. Therefore, the Board finds that the claim for a rating higher than 40 percent for his lumbar spine disability must be denied. The Board has also considered the statements submitted by the Veteran in support of the claim. The Board finds that the Veteran is a lay person and is competent to report observable symptoms he experiences through his senses such pain and stiffness. Layno v. Brown, 6 Vet. App. 465 (1994). However, he is not competent to identify a specific level of disability according to the appropriate diagnostic codes. The identification of a spinal disability and the determination of the range of motion of the spine and the prescription for bed rest require medical expertise that the Veteran has not shown he possesses. Determining whether the Veteran meets some of the criteria for a higher rating requires medical diagnostic testing. Competent evidence concerning the nature and extent of the Veteran's lumbar spine disability has been provided by the medical personnel who have examined him during the current appeal and who have made pertinent clinical findings in conjunction with the examination. The medical findings, as provided in the examination reports, directly address the criteria under which his disability is rated. The Board finds that evidence is the most persuasive and outweighs the Veteran's statements in support of his claim. Concerning neurological symptoms attributable to the service-connected lumbar spine disability, radiculopathy of the right and left lower extremities and claimed bladder and bowel disabilities will be discussed below. As directly reviewed above, the evidence does not show that the Veteran experienced any further neurological symptoms attributable to the lumbar spine disability throughout the period of appeal. The competent evidence does not show any other objective neurologic abnormalities associated with the low back disability so as to warrant any separate rating. Accordingly, the Board finds that a rating higher than 40 percent for a lumbar spine disability from January 1, 2020, is not warranted. The Board finds that the evidence does not more nearly approximate the criteria for a higher rating. There is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim for increase must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. 3. Entitlement to a rating higher than 10 percent for right lower extremity radiculopathy prior to November 14, 2017 4. Entitlement to a rating higher than 10 percent for left lower extremity radiculopathy, prior to November 14, 2017 Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10 percent, 20 percent, 40 percent, and 60 percent are assigned for incomplete paralysis that is mild, moderate, moderately severe, or severe. Complete paralysis of the sciatic nerve is rated 80 percent and contemplates no active movement possible of muscles below the knee. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis 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. The rating schedule does not define the terms mild, moderate, or severe as used in the diagnostic codes. Instead, adjudicators must evaluate all of the evidence and make a decision that is equitable and just. 38 C.F.R. § 4.6. At a July 2012 VA examination, the examiner diagnosed lumbar radiculopathy. Sensory examination was normal bilaterally for the upper anterior thigh, knee, lower leg, and feet. The examiner specified that while there was involvement ot the sciatic nerve bilaterally in terms of radiculopathy, the Veteran did not have radicular pain. At a November 2015 VA examination, the sensory examination was normal bilaterally for the upper anterior thigh, knee, lower leg, and feet. For the period prior to November 14, 2017, the Board finds that the objective evidence shows no more than mild incomplete paralysis of the right and left side sciatic nerve. The July 2012 VA examiner indicated that radiculopathy was present, but there was no radicular pain. The November 2015 VA examiner specified that sensory examination was normal bilaterally. Both examiners considered the Veteran's subjective reports in offering their objective observations, and as the VA examiners were objective medical professionals who had the training necessary to make competent and credible medical statements, the Board finds the opinions of the VA examiners to be the most probative evidence of record. As the evidence shows that the Veteran experienced no more than mild incomplete paralysis of the sciatic nerve bilaterally prior to November 14, 2017, the currently assigned 10 percent ratings assigned for radiculopathy of the right and left lower extremities are proper. The Board finds that the evidence does not more nearly approximate the criteria for any higher ratings. There is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim for increase must be denied. 5. Entitlement to a rating higher than 20 percent for right lower extremity radiculopathy, from November 14, 2017 6. Entitlement to a rating higher than 40 percent for left lower extremity radiculopathy, from November 14, 2017 At a November 2017 VA examination, the Veteran reported experiencing radiating pain to both lower extremities. He walked with a cane. There was decreased sensation ot light touch to the lower right leg; sensation to light touch of the upper thigh, lower leg, and feet was otherwise normal bilaterally. The examiner noted that the Veteran experienced moderate constant pain of the right lower extremity, moderate intermittent pain of the lower left extremity, and moderate paresthesias and/or dysesthesias of both lower extremities. The nerve involved was the sciatic nerve bilaterally. The examiner said that the severity of the radiculopathy was moderate on the right and mild on the left. At a November 2019 VA examination, the examiner diagnosed bilateral lumbar radiculopathy. The examiner indicated that the Veteran experienced mild constant pain and mild intermittent pain of the right lower extremity. The Veteran experienced moderate constant pain and severe intermittent pain of the left lower extremity. The examiner noted mild paresthesias and/or dysesthesias of the right lower extremity and severe paresthesias and/or dysesthesias of the left lower extremity. There was mild numbness of the right lower extremity and severe numbness of the left lower extremity. There were no trophic changes of either lower extremity. The examiner stated that there was mild incomplete paralysis of the right sciatic nerve and moderately severe incomplete paralysis of the left sciatic nerve. A November 2019 private treatment record shows that the Veteran had persistent left lower extremity radiculopathy since a September 2019 back surgery. The note indicates that the Veteran had no right leg symptoms. At a May 2021 VA examination, the examiner noted involvement of the sciatic nerve bilaterally. There was mild intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias bilaterally. In a July 2021 addendum, the examiner stated that there was mild incomplete paralysis of the sciatic nerve. On VA examination in July 2021, the examiner found that there was moderate constant pain of both of lower extremities. There was also moderate numbness of the bilateral lower extremities. Both lower legs and feet had decreased sensation to light touch. There were no trophic changes. The examiner stated that there was mild incomplete paralysis of the sciatic nerve bilaterally. For the period as of November 14, 2017, the Board finds that the objective evidence shows no more than moderate incomplete paralysis of the right sciatic nerve and moderately severe incomplete paralysis of the left sciatic nerve. The November 2019 VA examiner specified that there was mild incomplete paralysis of the right sciatic nerve and moderately severe incomplete paralysis of the left sciatic nerve. That examiner noted severe intermittent pain, severe paresthesias and/or dysesthesias, and severe numbness for the left lower extremity. However, the examiner found that while those sensory symptoms were severe, there were no trophic changes. There were also no additional findings that warranted a finding of more than moderately severe incomplete paralysis. None of the VA examiners, and none of the medical treatment records, found moderately severe incomplete paralysis of the right sciatic nerve or severe incomplete paralysis of the left sciatic nerve. The VA examiners considered the Veteran's subjective reports in offering objective observations, and as the VA examiners were objective medical professionals who had the training necessary to make competent and credible medical statements, the Board finds the opinions of the VA examiners to be the most probative evidence of record. As the evidence shows that the Veteran experienced no more than moderate incomplete paralysis of the right sciatic nerve and no more than moderately severe incomplete paralysis of the left side sciatic nerve for the period from November 14, 2017, the currently assigned 20 and 40 percent ratings assigned for radiculopathy of the right and left lower extremities respectively are proper. Accordingly, the Board finds that The Board finds that the evidence does not more nearly approximate the criteria for a higher rating. There is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claim for increase must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Service Connection In general, service connection may be established for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be established for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a),(b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A disability that is proximately due to or the result of a service connected disability shall be service connected. When service connection is established for a secondary disability, the secondary disability shall be considered a part of the original disability. 38 C.F.R. § 3.310(a). Secondary service connection may also be established for a non-service connected disability, which is aggravated by a service-connected disability. In such an instance, the Veteran is compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. 38 C.F.R. § 3.310(b); Allen v. Brown, 7 Vet. App. 439 (1995). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 7. Entitlement to service connection for a urinary disability, claimed as secondary to a low back disability 8. Entitlement to service connection for a bowel disability, claimed as secondary to a low back disability The service medical records do not show any signs, symptoms, or diagnoses of any urinary or bowel disability. At a July 2012 VA examination, the examiner specified that the Veteran did not have any other neurologic abnormalities or findings, such as bowel or bladder problems, due to a thoracolumbar spine disability. At a November 2015 VA examination, the examiner specified that the Veteran did not have any other neurologic abnormalities or findings, such as bowel or bladder problems, due to a thoracolumbar spine disability. At a November 2019 VA examination, the Veteran reported that he experienced some urgency and had at least two urinary incontinence episodes since a September 2019 back surgery. He was not wearing any pads. The examiner noted that the Veteran experienced intermittent loss of bladder control since a September 2019 spinal surgery. However, the Veteran was not wearing pads or diapers. At a May 2021 VA examination, the examiner specified that the Veteran did not have any other neurologic abnormalities or findings, such as bowel or bladder problems, due to a thoracolumbar spine disability. At a May 2021 VA examination, the examiner indicated that the Veteran had a voiding dysfunction and urinary frequency. The examiner attributed the voiding dysfunction and urinary frequency to an enlarged prostate. The examiner specified that the Veteran did not have urinary incontinence, and there was no objective evidence to make a diagnosis. In an addendum, the examiner recognized that a November 2019 VA examination report stated that the Veteran had at least two urinary incontinence episodes since a back surgery. The examiner stated that it was not unusual to develop urinary incontinence right after a surgery, but there was no evidence that the Veteran's urinary or bowel incontinence was an ongoing condition. The Board finds that the evidence of record does not provide any medical basis for finding that the Veteran is currently diagnosed with a urinary or bowel disability attributable to service or service-connected disability. The Board finds the opinion of the May 2021 VA examiner to be the most persuasive evidence in this case. The VA examiner had the medical training and education necessary to offer a competent opinion. While the Veteran has experienced voiding dysfunction and urinary frequency, those symptoms have been attributed by a competent medical professional to a non-service-connected disability, an enlarged prostate. The weight of the evidence is against finding that any urinary disability is related to service, or caused, due to, the result of, or aggravated by a service-connected disability. Under applicable regulations, the term disability means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Hunt v. Derwinski, 1 Vet. App. 292 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. In the absence of proof of a present disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223 (1992). Notably, none of the competent evidence of record demonstrates that the Veteran is currently diagnosed with any bowel incontinence disability attributable either to service or service-connected disability. Service connection may not be granted for symptoms unaccompanied by a diagnosed disability. Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001); Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). In the absence of a diagnosis of a current disability, or any abnormality which is attributable to some identifiable disease or injury during service or to service-connected disability, an award of service connection is not warranted. The presence of a chronic disability at any time during the claim process can justify a grant of service connection, even where the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). Because there was no actual disability diagnosed at any time since the claim was filed or contemporary to the filing of the claim, and there remains no current evidence of the claimed disability attributable either ot service or to service-connected disability, no valid claim for service connection for urinary and bowel disabilities exists. The Board finds that the weight of the evidence is against a finding that any urinary or bowel disability is related to service or any event, injury, or disease during service. The finds that the weight of the evidence is against a finding that any urinary or bowel disability is due to, the result of, caused by, or aggravated by a service-connected disability. The Board finds that the evidence is not in relative equipoise and there is no reasonable doubt to resolve in favor of the Veteran. Therefore, the claims must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). SMC 9. Entitlement to special monthly compensation based on the need for aid and attendance of another person (SMC) If a veteran, as the result of service-connected disability, is so helpless as to be in need of regular aid and attendance, an increased rate of compensation (special monthly compensation) is payable. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). The following will be considered in determining the need for regular aid and attendance: Inability of claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, and etc.); inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, requiring care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 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 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 to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a). In adjudicating claims for special monthly compensation, VA must consider all of the enumerated factors listed in the regulation and, if at least one of the factors is present, special monthly compensation should be awarded. Prejan v. West, 13 Vet. App. 444 (2000); Turco v. Brown, 9 Vet. App. 222 (1996). Service connection is established for a low back disability, rated 40 percent; left lower extremity radiculopathy, rated 40 percent; right lower extremity radiculopathy, rated 20 percent; a cervical spine disability, rated 10 percent; gastroesophageal reflux disease with hiatal hernia, rated 10 percent; and scars, rated 0 percent. The total combined service-connected disability rating is 80 percent. The Veteran has also established entitlement to TDIU. At an April 2021 VA aid and attendance examination, the examiner stated that the Veteran required an attendant in reporting for the examination. The examiner stated that the Veteran's spouse helped with dressing, feeding, showering, and going to the bathroom. The Veteran was not permanently bedridden. The Veteran used an orthopedic appliance that consisted of a cervical hard collar. The collar was only removed at bedtime. There were no complaints of dizziness or loss of memory. The examiner stated that the Veteran used a cane and needed assistance from his spouse. The examiner specified that the Veteran was unable to perform feeding, dressing, and grooming. He was unable to lift his right arm above shoulder level since his cervical spine surgery. The Veteran walked with an unsteady and slow gait and used his wife for assistance ambulating. The examiner reiterated that the Veteran was unable to walk without the assistance of another person. The Veteran was only able to leave his home for doctor's appointments. The diagnosis listed with cervical degenerative disc disease with recent surgery. While the Veteran had not been shown to meet all the criteria listed in the above cited regulation, he had been shown to need assistance to dress and undress himself. The April 2021 aid and attendance examination report indicates that the Veteran requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment due to the Veteran's inability to perform feeding, dressing, and grooming. According to the April 2021 VA examiner, the Veteran was unable to walk without the assistance of another person. If at least one of the factors listed in 38 C.F.R. § 3.352(a) is present, special monthly compensation should be awarded. Prejan v. West, 13 Vet. App. 444 (2000); Turco v. Brown, 9 Vet. App. 222 (1996). Incapacity, physical or mental, requiring care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment is one of the listed factors. 38 C.F.R. § 3.352(a). Resolving reasonable doubt in the Veteran's favor, the Board finds that the objective medical evidence of record demonstrates that the service-connected disabilities make the Veteran so helpless as to be in need of regular aid and attendance of another person. Therefore, the claim for SMC for aid and attendance is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence, as of October 1, 2018, is remanded. An October 2018 Agency of Original Jurisdiction (AOJ) decision assigned a temporary evaluation based on surgical or other treatment necessitating convalescence, effective June 26, 2018, to October 1, 2018. In September 2019, the Veteran filed a timely notice of disagreement concerning the termination of the temporary total rating on October 1, 2018. According to the record before the Board, no statement of the case has been issued addressing the issue of entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence as of October 1, 2018. Manlicon v. West, 12 Vet. App. 238 (1999). Consequently, remand is required for issuance of a statement of the case. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), prior to January 1, 2020, is remanded. A February 2020 rating decision assigned TDIU, effective January 1, 2020. However, as TDIU was not assigned for the entire period on appeal, and the Veteran is presumed to seek the maximum available benefit for a disability, the claim for TDIU prior to January 1, 2020, remains on appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007), Fenderson v. West, 12 Vet. App. 119 (1999); AB v. Brown, 6 Vet. App. 35 (1993). Prior to January 1, 2020, the Veteran did not satisfy the threshold minimum rating requirements of § 4.16(a) for consideration of the assignment of TDIU. When a claimant does not meet those percentage requirements, TDIU may still be assigned if the claimant is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. In such a case, the rating board is to submit the case to the Director, Compensation and Pension Service, for extraschedular consideration. 38 C.F.R. § 4.16(b). The Board itself cannot assign TDIU under 38 C.F.R. § 4.16(b) in the first instance. Bagwell v. Brown, 9 Vet. App. 337 (1996); Floyd v. Brown, 9 Vet. App. 88 (1996); Stanton v. Brown, 5 Vet. App. 563 (1993); Fanning v. Brown, 4 Vet. App. 225 (1993). Because the Board itself cannot assign TDIU under 38 C.F.R. § 4.16(b) in the first instance, the Board must specifically adjudicate whether to refer a case to the Director of the Compensation and Pension Service for consideration of the assignment of TDIU under 38 C.F.R. § 4.16(b) when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If the Director determines that TDIU under 38 C.F.R. § 4.16(b)is not warranted, then the Board has jurisdiction to adjudicate and appeal on the claim for TDIU under 38 C.F.R. § 4.16(b). Although the Board is precluded from initially assigning TDIU under 38 C.F.R. § 4.16(b), there is no restriction on the Board's ability to review the adjudication of decision once the Director determines that TDIU under 38 C.F.R. § 4.16(b) is not warranted. Anderson v. Shinseki, 22 Vet. App. 423 (2009); Floyd v. Brown, 9 Vet. App. 88 (1996); 38 U.S.C. §§ 511 (a), 7104(a). In this case, the Board finds that the case should be referred to the Director of the Compensation and Pension Service for consideration of the assignment of an TDIU under 38 C.F.R. § 4.16(b) prior to January 1, 2020. Evidence of record shows that the Veteran was unemployed prior to January 1, 2020. October 2018 and October 2021 private vocational assessments collectively suggest that the symptoms and functional impairments caused by the Veteran's service-connected disabilities may have made the Veteran unable to obtain or maintain a substantially gainful occupation prior to January 2020. The matters are REMANDED for the following action: 1. Refer the matter of entitlement to TDIU under 38 C.F.R. § 4.16(b) to the Director of Compensation Services for consideration of entitlement to TDIU prior to January 1, 2020. 2. Issue a statement of the case addressing the issue of entitlement to a temporary total rating based on surgical or other treatment necessitating convalescence from October 1, 2018. Notify the Veteran of his appeal rights and that a timely appeal must be submitted if he wants appellate review of that claim. If a timely appeal is received, return that claim to the Board. Harvey P. Roberts Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Layton, 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.