Citation Nr: 22019380 Decision Date: 04/01/22 Archive Date: 04/01/22 DOCKET NO. 12-23 470 DATE: April 1, 2022 ORDER A 40 percent rating (but not higher) for service-connected postoperative lumbar spine spondylosis with residual degeneration (low back disability) is granted prior to May 14, 2009. A 60 percent rating (but not higher) for service-connected postoperative lumbar spine spondylosis with residual degeneration (low back disability) is granted from May 14, 2009. A 40 percent rating (but not higher) for service-connected right lower extremity sciatic radiculopathy throughout the appeal period is granted. A separate 20 percent rating (but not higher) for service-connected right lower extremity femoral radiculopathy from May 25, 2012 is granted. A 40 percent rating (but not higher) for service-connected left lower extremity sciatic radiculopathy from July 19, 2014 is granted. A separate, noncompensable rating for urinary retention associated with service-connected low back disability from February 6, 2017 is granted. A higher 30 percent rating for urinary retention associated with service-connected low back disability from May 22, 2017 to July 25, 2017 is granted. Special monthly compensation (SMC) based on the need for regular aid and attendance is granted. FINDINGS OF FACT 1. The evidence reasonably shows the Veteran's low back disability has been productive of intervertebral disc syndrome (IVDS) with a history of incapacitating episodes with a total duration of at least four but less than six weeks annually prior to May 14, 2009. However, the persuasive evidence of record is against finding any objective signs or subjective reports consistent with unfavorable ankylosis of any part of the spine, or its functional equivalent, during this period. 2. The evidence reasonably shows the Veteran's low back disability has been productive of IVDS with a consistent history of incapacitating episodes lasting six or more weeks per year from May 14, 2009. However, the persuasive evidence of record is against finding any objective signs or subjective reports consistent with unfavorable ankylosis of any part of the spine or its functional equivalent at any time on appeal. 3. The evidence reasonably shows that the Veteran's right lower extremity sciatic radiculopathy was productive of moderately-severe symptoms and impairment, at least intermittently, throughout the appeal period. 4. The evidence also reasonably shows the Veteran's right lower extremity sciatic radiculopathy was productive of additional moderate femoral nerve involvement from May 25, 2012. However, the persuasive evidence of record is against finding such condition produced more than moderate, incomplete right-sided paralysis of the femoral nerve. 5. The evidence reasonably shows the Veteran's left lower extremity sciatic radiculopathy produced impairment consistent with moderately-severe, incomplete paralysis from January 20, 2017. 6. The persuasive evidence of record is against finding the Veteran's right or left lumbar spine radiculopathy produced impairment consistent with more than moderately-severe, incomplete paralysis; otherwise involved symptoms (like muscular atrophy, loss of active motion, foot dangle or drop, etc.) suggesting severe, incomplete paralysis or complete paralysis; or produced impairment suggesting involvement of any other nerves or nerve groups at any time on appeal. 7. The evidence reasonably shows the Veteran had urinary retention issues associated with low back disability from February 6, 2017. 8. The evidence reasonably shows the Veteran had postoperative urinary retention issues associated with a lumbar spine surgery that required intermittent or continuous catheterization from April 26, 2017 to July 25, 2017. 9. Before April 26, 2017 or since July 25, 2017, the persuasive evidence of record is against finding the Veteran's urinary retention issues were productive of any clinically significant symptoms, impairment, or other findings allowing for assignment of a compensable rating. 10. The evidence reasonably shows that back flare-ups (where his back "gives out")which are consistent with incapacitating episodes of IVDS and impair activities of daily living (e.g., transfers, showers, etc.) such that he needs care and assistance on a regular basisare documented in the record since within months of him filing the underlying increased rating claim. Therefore, the approximate balance of the evidence shows he has had impairment throughout the appeal period consistent with requiring the regular aid and attendance of another person. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating (but not higher) for service-connected low back disability prior to May 14, 2009 are met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5243. 2. The criteria for a 60 percent rating (but not higher) for service-connected low back disability from May 14, 2009 have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Code 5243 (2021). 3. The criteria for a 40 percent rating (but not higher) for service-connected right lower extremity sciatic radiculopathy throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Code 8520 (2021). 4. The criteria for a separate 20 percent rating (but not higher) for service-connected right lower extremity femoral radiculopathy from May 25, 2012 have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Code 8526 (2021). 5. The criteria for a 40 percent rating (but not higher) for service-connected left lower extremity sciatic radiculopathy from January 20, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.124a, Code 8520 (2021). 6. The criteria for a separate, noncompensable rating for urinary retention associated with service-connected low back disability from February 6, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.115a (2021). 7. The criteria for a higher 30 percent rating for urinary retention associated with service-connected low back disability from April 26, 2017 to July 25, 2017 have been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.115a (2021). 8. The criteria for a compensable rating for urinary retention associated with low back disability at any time prior to April 26, 2017 and since July 25, 2017 have not been met. 38 U.S.C. §§ 1155, 5107(b) (2018); 38 C.F.R. §§ 4.3, 4.7, 4.115a. 9. The criteria for SMC based on the need for regular aid and attendance have been met throughout the appeal period. 38 U.S.C. §§ 1114, 1155, 5107(b) (2018); 38 C.F.R. §§ 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from April 1978 to September 1999. These matters are before the Board of Veterans' Appeals (Board) on appeal from an August 2008 rating decision. In February 2017, a hearing was held before the undersigned; a transcript is of record. The Board remanded these issues in September 2017, September 2019, and August 2021. VA's duty to notify in this matter was satisfied by an April 2008 letter and in the subsequent July 2012 statement of the case (SOC) and January 2018 and April 2021 supplemental SOCs (SSOCs). VA has obtained the Veteran's service treatment records (STRs) and pertinent post-service treatment records. The Veteran has been afforded multiple examinations in conjunction with these appeals. Together, those examination reports and the other lay and medical evidence of record paints a sufficiently clear disability picture to support an adjudication on the merits and application of the pertinent rating criteria (discussed further below). The Board's last remand asked for an opinion clarifying a number of matters related to the scope, history, and severity of his low back disability, and the November 2021 VA opinion received in response (from a Doctor of Osteopathic Medicine) adequately resolves those questions, with sufficient clarity to allow the Board to make a well-informed determination in these matters. Crucially, the Veteran has had ample opportunity to respond and has not alleged that notice or development was inadequate. See 38 U.S.C. §§ 5102, 5103, 5103A (West 2014); 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). In so finding, the Board acknowledges that the Veteran's most recent brief vaguely alleges that a nonspecific VA examiner impermissibly diminished the value of lay testimony regarding functioning during flare-ups without identifying a specific examination the Veteran believes to be inadequate. Notably, the most recent examination report obtained explicitly concedes that there would be additional functional loss during flare-ups based on the Veteran's own descriptions of such impairment. Finally, given the Board's findings here, the absence of lay or medical evidence suggesting either clinically confirmed unfavorable ankylosis of the spine or its functional equivalent (discussed further in the below analysis) renders the presence or absence of additional limitation of motion during flare-ups (short of total immobility) immaterial to this analysis. The Veteran's low back disability is currently rated 10 percent prior to January 16, 2008, 20 percent from that date to May 25, 2012, and 40 percent thereafter. He seeks higher ratings throughout the appeal period. Disability ratings are assigned in accordance with VA's Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from a disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. When a question arises as to which of two ratings shall be applied under a particular diagnostic code, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Spinal disability is generally rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), which assigns a 20 percent rating for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, 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 to 30 or fewer degrees or favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine; and a maximum 100 percent rating is assigned for unfavorable ankylosis of the entire spine. Id. In a claim for increase the present level of disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The relevant temporal focus for adjudicating the level of disability of an increased rating claim begins one year before the claim was filed. Thus, here, the period under consideration begins from January 15, 2007. In determining the degree of limitation of motion, the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45 are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995). Disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints, in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The medical evidence of record also shows a long history of symptoms consistent with the definition of intervertebral disc syndrome (IVDS) under Code 5243 (i.e., "disc herniation with compression and/or irritation of the adjacent nerve root"), which can be rated under either the General Rating Formula or the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula), whichever results in a higher rating. Under the IVDS Formula, a 20 percent rating is assigned for incapacitating episodes with a total duration of at least two but less than four weeks in a 12-month period; a 40 percent rating is assigned for episodes with a total duration of at least four but less than six weeks during a 12-month period; and a maximum 60 percent rating is assigned for episodes with a total duration of at least six weeks during a 12-month period. Id. For purposes of applying the IVDS Formula, the rating criteria defines "incapacitating episode" as "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." Id. Although the spinal rating criteria were amended in February 2021, the pertinent changes added specificity to the definition of IVDS, differentiated Code 5243 from other disc conditions that do not involve herniation and nerve root compression or irritation, and added Code 5244 for traumatic paralysis, without changing the substantive criteria for rating IVDS based on incapacitating episodes or the General Rating Formula. As the Veteran also does not allege (and the evidence does not otherwise suggest) traumatic paralysis as a result of low back disability, the changes effective in February 2021 do not materially alter the present analysis and there is no need to discuss Code 5244 in detail here, as it does not apply to this case. At the outset, the Board notes that the medical evidence shows the Veteran has scoliosis in addition to his service-connected low back disability, but that there is no clear evidence allowing the Board to distinguish between the symptomatology attributable to either, even after remanding for a medical opinion specifically addressing whether the two are intertwined or separate. The November 2021 opinion obtained on remand indicates only that back pain is solely due to the service-connected back disability, but does not comment on any other symptomatology (such as the Veteran's reports that he leans to the side or as a hunched back and cannot straighten his spine full). Under the circumstances, the Board will consider the totality of the Veteran's spinal disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (barring the Board from differentiating between service-connected and nonservice-connected conditions absent clear evidence allowing for such distinction). Private April 2008 records show the Veteran complained of low back pain that occurred intermittently and lasted for two weeks at a time without any associated precipitating events. Although an April 2008 VA examination indicated no evidence of IVDS with "chronic and permanent nerve root involvement," subsequent private records that same month note a history of herniated intervertebral disc status post repair. In September 2008, the Veteran said he continued to have episodes of low back pain twice annually "where his back gives out" and he is "unable to stand straight and has severe spasms and pain." The most recent episode was in July 2008. May 2009 treatment records note reports that his back would typically "go out" two or three times a year, forcing him to miss work for approximately two weeks per episode. In June 2009, he estimated his back went out roughly three or four times a year, resulting in incapacitation for two weeks. These reports continued over the years fairly consistently. On August 2013 VA examination, the examiner explicitly diagnosed IVDS and the Veteran specifically reported a history of incapacitating episodes of back ache, pain, and strain every five to six months after a 1991 diskectomy and that his spine had progressively worsened since. Although the examiner at the time only noted incapacitating episodes for between two and four weeks in the prior year, the Veteran at that time actually reported incapacitating episodes of back disability every two months, lasting one week each time. He also said he had frequent episodes of chronic fatigue and dyspnea with occasional weakness from the waist down "to the point of collapse." He said his incapacitating episodes also left him "laid-up in bed or at the [emergency room]." In February 2017, he testified that he had gone through five or six incapacitating episodes since December 2016, when he was admitted to several hospitals due to inability to move his legs, with even more incapacitating episodes requiring emergency treatment and hospitalization in the preceding year. On November 2017 VA examination, the examiner noted pain during flare-ups during which the Veteran "must stop any activity and wait for flare[s] to subside." In March 2021, he reported flare-ups of back disability where his back would "give out" for anywhere from a few days to a few weeks that were previously alleviated by prior surgeries. A November 2021 VA opinion specifically found the Veteran's reports of his back "giving out" over the years is "completely consistent with periods of [incapacitation] as defined by the pertinent [statutes], and although, by history, in most cases [he] was not prescribed bed rest, that prescription would be entirely appropriate." Moreover, the examiner also specifically noted that the December 2016 episode where the Veteran was unable to move his legs was an incapacitating episode of IVDS. 1. A 40 percent rating for service-connected low back disability prior to May 14, 2009 In light of the November 2021 opinion, the Board finds the evidence summarized above certainly reasonably shows the Veteran has IVDS and characteristic incapacitating episodes throughout the period on appeal. Thus, the substantive question here is whether such episodes are sufficiently frequent to warrant higher ratings during the appeal period. To that end, the evidence shows he has consistently reported (both in clinical and VA claims settings) episodes of his back "giving out" in a manner consistent with incapacitating episodes of IVDS since September 2008 (the same year he filed this claim). Although that report did not specify the duration of such episodes, he did indicate they happened twice annually and later May 2009 records describe similar episodes (where his back "gives out") two or three times a year and lasting two weeks each time. Based on this available information, the Board finds the evidence reasonably shows the Veteran has had incapacitating episodes of IVDS with a total duration of four weeks annually since the year he filed his claim. Consequently, the approximate balance of the evidence supports awarding a higher 40 percent rating under Code 5243 from the beginning of the appeal period. 2. A 60 percent rating for service-connected low back disability from May 14, 2009 Based on the evidence of record (discussed above), the Board also finds a higher 60 percent rating is warranted from May 14, 2009 for the service-connected low back disability because, from that date onwards, there are consistent reports throughout the remainder of the appeal period indicating low back disability was productive of incapacitating episodes of IVDS with a total duration of six or more weeks annually. May 14, 2009 is the date of the first such report, noting his back would "go out" two or three times a year and result in two weeks of missed work per episode (i.e., six weeks a year). In June 2009, however, he estimated these episodes were more frequent (three or four times a year) with the same duration (resulting in roughly six to eight weeks of incapacitation a year). The August 2013 examination report indicates he had incapacitating episodes every two months that lasted one week each time (i.e., roughly six weeks of incapacitation per year). Between July 2014 and December 2016, records show multiple episodes involving a total inability to use his legs that the November 2021 examiner deemed consistent with incapacitating episodes of IVDS. His February 2017 testimony indicates he had many more of these episodes between 2015 and 2016. Even after a May 2017 laminectomy, he reported on November 2017 VA examination that he continued to have flare-ups of low back disability of unknown frequency and duration, but nonetheless left him unable to bend, lift, or move well and required he stop any activities until they subsided, which appears substantively consistent with incapacitation. The March 2021 VA examination also indicates he still experiences intermittent flare-ups where his back "gives out" for anywhere from a few days to a few weeks. Accordingly, the Board finds the approximate balance of the evidence indicates he has had extremely disabling and more frequent episodes consistent with incapacitation due to IVDS at least six weeks annually since May 14, 2009 and, therefore, supports awarding a higher 60 percent rating under Code 5243 from that date. 3. Higher ratings for service-connected low back disability at any time on appeal However, the persuasive evidence of record is against finding more serious low back symptomatology warranting a still higher rating at any time on appeal. Prior to May 14, 2009, the lay and medical evidence of record does not suggest, nor does the Veteran allege, that his back "gave out" or otherwise produced episodes consistent with IVDS and incapacitation at a frequency warranting more than a 40 percent rating under Code 5243 and the IVDS Formula. The Board's award above is based on the most favorable interpretation of the available evidence relating to the frequency of such episodes. As noted above, May 14, 2009 is the date of the first documented report that equates to six or more weeks of incapacitation due to such episodes or flares. Therefore, the persuasive evidence of record is against finding more than a 40 percent is warranted for low back disability prior to May 14, 2009 based on incapacitating episodes of IVDS. Given the above finding and the fact that the Board awarded the maximum 60 percent rating under Code 5243 and the IVDS Formula from May 14, 2009 onwards, the only remaining way to establish entitlement to higher ratings before or after May 14, 2009 for low back disability would be under the General Rating Formula. However, at a minimum, that would require evidence of unfavorable ankylosis of the thoracolumbar or entire spine. Here, despite the Veteran's statements of record alleging he has unfavorable ankylosis of the entire spine, the persuasive evidence of record is against finding such symptomatology (or its functional equivalent). In so finding, the Board does not doubt the Veteran's beliefs, or that his spinal disability does present severe impairment. In fact, as noted by the remainder of this decision, the evidence clearly shows he has dealt with an extremely disabling lumbar spine condition during the appeal period. However, the Veteran's own lay allegations of unfavorable ankylosis are based on the fact that he cannot stand up straight while standing (or is hunched over) and that he is stuck in a "bent position leaning to the left" and, for various reasons, this is not consistent with the kind of impairment contemplated by unfavorable ankylosis under the General Rating Formula. Crucially, while he is competent to describe observable symptoms and there is clinical confirmation of positional abnormalities, the General Rating Formula specifically provides that "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" and that it requires the relevant spinal segment be fixed in a non-neutral position (i.e., not zero degrees). Notably, the Veteran does not allege that he can't move his spine at all, but rather than he can't move it past a certain point. In other words, his reports indicate that he can't fully straighten his spine, but not that it is fixed in any given position (much less a non-neutral position). Similarly, his own February 2017 sworn testimony (in which he also claimed unfavorable ankylosis) indicates he has to tilt himself back in the car to avoid nerve pain, which itself suggests spinal motion is still possible. Indeed, while the medical evidence of record clearly shows he has dealt with marked limitation of spinal motion, it does not suggest any spinal segment has ever been fixed in one position. Likewise, there does not appear to be any explicit diagnosis or other indication of ankylosis, favorable or otherwise, or other functionally equivalent impairment. Therefore, the Board finds the persuasive evidence of record is against awarding still higher ratings for low back disability at any time on appeal. 4. A 40 percent rating for service-connected right lower extremity sciatic radiculopathy throughout the appeal period The General Rating Formula also directs that all neurological manifestations of low back disability be evaluated separately under the appropriate Codes. Here, there is certainly evidence of radicular symptoms associated with low back disability affecting the sciatic nerve during the appeal period. 38 C.F.R. § 4.124a, Code 8520 assigns a 10 percent rating for mild, incomplete paralysis of the sciatic nerve; a 20 percent rating for moderate, incomplete paralysis; a 40 percent rating for moderately severe, incomplete paralysis; a 60 percent rating for severe, incomplete paralysis with marked muscular atrophy; and a maximum 80 percent rating for complete paralysis (where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost). Evidence as early as September 2008 private treatment records shows the Veteran reported a severe flare-up of back pain radiating to the right ankle that continued intermittently afterwards at varying intensities. The first such episode was in July 2008 with another in early September 2008 that caused "severe pain especially in the right lower side," aggravated by sitting, laying, or walking. An October 2008 motor nerve conduction study of the right and left posterior tibial nerve showed "features of mild to moderate degree of peripheral neuropathy" (rather than lumbar radiculopathy) and an electromyographical study of both lower extremities and the right and left lumbar paraspinal muscles was normal. In December 2008, he reported "severe back pain and discomfort, nerve pain, and spasming" associated with the July 2008 episode and said these episodes had increased since then. On May 2012 VA examination, the examiner noted decreased sensation on the right side at multiple levels, moderate constant pain, moderate intermittent pain, moderate paresthesias (or dysesthesias), and moderate numbness in the right lower extremity that they felt was consistent with moderate involvement of the right sciatic nerve. In May 2013, the Veteran complained of right L4 radiculopathy with tingling and pain in the right lower extremity. On August 2013 VA examination, the Veteran said he sometimes feels weak from the waist down to the point of collapse. A neurological review at the time showed decreased sensation in the right upper anterior thigh, right thigh and knee, right lower leg and ankle, and right foot and toes. There was also mild constant and intermittent pain and moderate paresthesias and numbness on that side. The examiner felt this was consistent with mild right sciatic radiculopathy (but does not reconcile this with the moderate symptomatology noted on examination). A January 2014 private record indicates an electromyography of the right lower extremity found moderate severity subacute to chronic denervation in the right lumbosacral area that was most consistent with right lumbosacral polyradiculopathy and spinal stenosis. In July 2014, he again said his lower extremity radiculopathy symptoms were sometimes subject to "episodes of sudden weakness in both legs from the waist down, to the point of collapse." In December 2016, he had another such episode. In January 2017, records note chronic, intermittent back pain rated "6/10" (suggesting moderate to moderately-severe pain) that radiated into both lower extremities and caused numbness bilaterally. February 2017 records show "5/10" back pain (suggesting moderate pain) and bilateral sciatica with "burning electrical pain and proximal muscle weakness of [both] lower extremities." March 2017 records show severe back and lower extremity pain on December 9, 2016 with numbness in the toes and feet and inability to move his legs for two to three days that had "waxed and waned" since. In April 2017, records note residual bilateral mild lower extremity weakness with reduced vibration sense in the toes and "absent ankle [deep tendon reflexes]" suggesting peripheral neuropathy (rather than lumbar radiculopathy). In July 2017, the Veteran said his leg pain associated with back disability had improved and that he only had "residual numbness/tingling in [both] feet." A November 2018 VA examination noted "marked improvement" in his low back and sciatica symptoms since a recent lumbar laminectomy and specifically notes his sciatic had resolved with only "minimal residual...weakness subjectively." A March 2018 private record shows the Veteran reported marked improvement in radiation and pain. In February 2020, he again said his lumbar surgery "helped with his nerve pain and urinary symptoms," but still used a cane for balance and said his "legs get tired and weak after walking a couple blocks." On March 2021 VA examination, he indicated his prior incapacitating episodes of back disability and associated lower extremity numbness and tingling had resumed despite prior alleviation following surgery. When asked to rate his severity, he indicated his symptoms were "moderately severe." Muscle strength was reduced (4/5) in the hips and knees with no sign of atrophy, reflexes were normal, and sensation was decreased in both feet and toes. There was also mild paresthesias and numbness in both lower extremities that was deemed consistent with bilateral involvement of the sciatic nerve due to radiculopathy. On November 2021 VA examination, the Veteran said his May 2017 laminectomy had helped his radicular pain a lot, but still left his feet feeling numb on the soles. Muscle strength remained reduced (4/5) in the hips without atrophy, and reflexes were hypoactive (1+) in both ankles. Sensation was also decreased in both feet and toes. A straight leg raising test was not possible because it caused too much pain, but the examiner nonetheless felt he had bilateral sciatic radiculopathy. The Veteran reported mild intermittent pain, paresthesias, and numbness bilaterally. Based on the evidence of record, the Board finds the evidence reasonably shows a long history of low back radicular symptoms that have fluctuated in severity since at least September 2008, the year he filed this claim. The earliest reports in 2008 describe his back and associated nerve pain as "severe," and subsequent reports predominantly describe his reported and observed lower extremity radicular symptoms as involving the sciatic nerve and of more moderate severity. It is worth noting, however, that the Veteran does intermittently continue to report symptoms that appear more severe or moderately-severe. Moreover, while it does appear that his symptoms were alleviated following a May 2017 laminectomy, subsequent records suggest any resolution was neither complete nor permanent, as he continued to have numbness and weakness issues afterwards and the two most recent VA examination reports suggest the severity of his radicular symptoms continues to fluctuate, ranging from mild (in November 2021) to "moderately severe" (in March 2021). Given the Veteran's competence to describe the severity of his symptoms, the initial reports of "severe" back and right lower extremity symptoms, the fact that subsequent records predominantly characterize right lower extremity symptoms as moderate, and the more recent evidence indicating symptoms ranged between mild and "moderately severe" even after a May 2017 laminectomy, the Board finds the approximate balance of the evidence certainly supports awarding a higher 40 percent rating under Code 8520 based on "[m]oderately severe," incomplete paralysis of the right lower extremity throughout the appeal period. However, a higher rating based on "severe," incomplete paralysis under Code 8520 is not warranted at any time on appeal because that rating also requires "marked muscular atrophy" and, here, the persuasive evidence of record is against finding any such symptomatology. In fact, all clinical evidence addressing muscle strength specifically indicates no evidence of atrophy. Absent such evidence, the Board cannot award a higher 60 percent rating based on those reports. Similarly, the Board has considered whether the Veteran's right lower extremity radiculopathy might warrant a still higher 80 percent rating based on complete paralysis, particularly given records showing exacerbations in August 2013, July 2014, and December 2016 that involved a sense of weakness from the waist down and, at times, paralysis of the legs. However, given the November 2021 VA medical opinion's characterization of these episodes as incapacitating episodes of IVDS and the Board's award in the preceding low back analysis of ratings based explicitly on such episodes, the Board cannot assign additional, separate ratings for symptoms associated with those episodes under neurological Codes without violating the rule against pyramiding. See 38 C.F.R. § 4.14 (prohibiting doubly compensating the same impairment or symptoms). Consequently, the persuasive evidence of record is against assigning a still higher rating for right lower extremity sciatic radiculopathy at any time on appeal. 5. A separate 20 percent rating (but not higher) for service-connected right lower extremity femoral radiculopathy from May 25, 2012 In addition to the evidence described above, the Board notes that a May 25, 2012 VA examination report also indicates that moderate constant pain, moderate intermittent pain, moderate paresthesias or dysesthesias, and moderate numbness in the right lower extremity noted at the time was consistent with moderate involvement of the right femoral nerve as well as the right sciatic nerve. Code 8526 rates impairment of the femoral nerve and provides for a 10 percent rating for mild, incomplete paralysis; a 20 percent rating for moderate, incomplete paralysis; a 30 percent rating for severe, incomplete paralysis; and a maximum 40 percent rating for complete paralysis, with paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124a. Given the findings on May 25, 2012 VA examination and absent any convincing medical evidence to the contrary, the Board finds the approximate balance of the evidence supports awarding a separate 20 percent rating under Code 8526 for moderate, incomplete paralysis of the femoral nerve. However, the persuasive evidence of record is against finding any indication of more severe femoral nerve involvement. In so finding, the Board notes that there does not appear to be any other evidence describing the severity of femoral nerve involvement as a result of radiculopathy in the record. 6. A 40 percent rating (but not higher) for service-connected left lower extremity sciatic radiculopathy from January 20, 2017. The Veteran is currently rated 10 percent for left lower extremity sciatic radiculopathy under Code 8520. Notably, while most of the records during the period on appeal (including lay reports) only identified right lower extremity radicular symptoms, a July 19, 2014 statement describes, for the first time, radiculopathy symptoms affecting both lower extremities. As noted above, the Veteran at the time reported episodes of sudden weakness in both legs from the waist down to the point of collapse. In December 2016, records confirm that this degree of lower extremity impairment affected both sides. A January 20, 2017 record notes reports of chronic, intermittent back pain rated "6/10" (indicating moderate to moderately-severe symptoms) and radiating into both lower extremities with associated numbness bilaterally. February 2017 records show chronic back pain rated "5/10" in severity (suggesting moderate pain) with bilateral sciatica and "burning electrical pain and proximal muscle weakness of [both] lower extremities." April 2017 records show a history of lower extremity paralysis and residual mild lower extremity weakness. Subsequent records following a May 2017 laminectomy continue to note radicular symptoms (like numbness, pain, and tingling) in both feet that had improved postoperatively. January 2018 records show "bilateral sciatica [and] diffuse lower extremity weakness" with "marked improvement" since a lumbar laminectomy. February 2020 records show the Veteran still endorsed both legs suffering from fatigue and weakness after walking a couple blocks, despite improved nerve pain postoperatively. The March 2021 VA examination described above specifically diagnosed bilateral lower extremity radiculopathy. The Veteran on examination specifically reported lower extremity and back flare-ups with symptoms that were "moderately severe" and, while the examiner only observed mild to moderate lower extremity symptoms consistent with sciatic involvement, they admitted that they did not evaluate the Veteran during a flare-up and did not reconcile their neurological findings with the Veteran's own, competent descriptions of "moderately severe" symptoms. The most recent November 2021 VA examination report continues to describe bilateral radicular symptoms, albeit of milder severity than in March 2021. Although the July 2014 record signals a shift in the scope of his lumbar radicular symptoms, as discussed in detail above, that record and subsequent December 2016 records describe a presentation associated with incapacitating episodes of IVDS (based on the November 2021 VA opinion) and, therefore, the Board may not assign a separate rating for left lower extremity symptoms based on the apparent paralysis noted in those records without violating the rule in 38 C.F.R. § 4.14. However, the January 20, 2017 record immediately after treatment for the December 2016 IVDS episode continues to note "6/10" back pain that radiated into both lower extremities. Moreover, as previously noted, although a May 2017 laminectomy appears to have temporarily improved many of his symptoms (including bilateral sciatica symptoms), subsequent March and November 2021 VA examination reports suggest his bilateral sciatic radiculopathy symptoms continued to fluctuate between mild and "moderately severe." Given the January 2017 record appears to be the first documented evidence describing the severity of left lower extremity radicular symptoms following the December 2016 IVDS episodes, the Board finds the approximate balance of the evidence supports awarding a 40 percent rating for left lower extremity sciatic radiculopathy under Code 8520 (for moderately severe, incomplete paralysis of the sciatic nerve) from January 20, 2017. However, the persuasive evidence of record is against finding the Veteran's left lower extremity sciatic radiculopathy symptoms were, at any time on appeal, consistent with severe, incomplete paralysis with marked muscular atrophy for the same reasons as in the above right sciatic radiculopathy analysis. In short, the evidence does not suggest, and the Veteran does not allege, that he has ever had any muscular atrophy associated with his left sciatic radiculopathy symptoms. Therefore, the persuasive evidence of record is against awarding more than a 40 percent rating at any time on appeal, including prior to January 20, 2017 (due to the rule against pyramiding as discussed above). 7. A separate, noncompensable rating for urinary retention associated with service-connected low back disability from February 6, 2017; a higher 30 percent rating for urinary retention from May 22, 2017 to July 25, 2017 For most of appeal period, the Board can find no specific descriptions or endorsements of bowel or bladder impairment associated with low back disability. However, February 6, 2017 records note, for the first time in the record, possible mild urinary retention related to the Veteran's low back disability. In April 2017, low back treatment records note a diagnosis for impaired urination with reports of voiding difficulty without a clear etiology. An April 26, 2017 urology consultation shows the Veteran was previously hospitalized and had an "indwelling Foley [catheter]" with "home visits for straight catheterization" twice weekly between January and February 2017. A review of earlier records associated with that hospitalization indicate the catheter was placed due to benign prostatic hypertrophy (BPH) rather than neurogenic bladder dysfunction due to low back disability. By March 2017, providers felt that, from a genitourinary perspective, the Veteran was able to void on his own. However, May 22, 2017 records show the Veteran had an in-dwelling Foley catheter placed in the operating room during a lumbar laminectomy. On May 30, 2017, the Veteran denied any bowel incontinence or change in urine output, but the record does note he had a Foley catheter in place. A separate note indicates the catheter left in place due to postoperative urinary retention. June 9, 2017 records show he was doing well postoperatively but still had a Foley catheter in place, though he was hoping to have it removed. On July 25, 2017, the Veteran indicated that voiding had been easier since having his Foley catheter removed. Voiding dysfunction is rated under 38 C.F.R. § 4.115a, which provides for rating based on either urinary tract infections, obstructed voiding, urinary frequency, or urine leakage. Given the evidence here (including the Veteran's lay reports) appears silent for bladder or bowel dysfunction outside obstructed voiding (or urinary retention), the Board will only discuss those criteria. 38 C.F.R. § 4.115a assigns a noncompensable rating for obstructive symptomatology with or without stricture disease requiring dilatation one to two times per year; a 10 percent rating for marked obstructive symptomatology (hesitancy, slow or weak stream, decreased force of stream) with any one or combination of: (1) post-void residuals greater than 150 cc, (2) markedly diminished peak flow rate (less than 10 cc/sec), (3) recurrent urinary tract infections secondary to obstruction, or (4) stricture disease requiring periodic dilatation every two to three months; and a maximum 30 percent rating for urinary retention requiring intermittent or continuous catheterization. Here, the first specific date on which the Veteran has documented urinary difficulties associated with low back treatment or complaints is February 6, 2017. At that time, the problem was described as mild and did not appear to require any treatment. Therefore, a noncompensable (0 percent) rating is warranted under § 4.115a from that date. While the Board does acknowledge that prior December 2016 records indicate he was catheterized upon admission to the hospital and subsequent April 2017 records confirm that fact, that instance of catheterization was related to benign prostatic hypertrophy, with no indication that a relationship to his back disability was suspected. Notably, April 2017 records (before his May 2017 laminectomy) noting a prior period of intermittent catheterization appear to be associated with this prior stint of catheterization. Therefore, the Board does not find the notations of intermittent catheterization between January and February 2017 probative in this rating analysis. However, the May 2017 records indicating an indwelling urinary catheter was placed in the operating room during back surgery coupled with postoperative records showing it was left in place due to postoperative urinary retention certainly satisfy the criteria for a maximum 30 percent rating based on urinary retention requiring intermittent or continuous catheterization under § 4.115a from May 22, 2017 (the date of the surgery). Thereafter, a July 25, 2017 record first indicates the catheter had been removed and the Veteran was voiding easier without it. From there on, the lay and medical evidence of record does not suggest any continued or resurfaced bowel or bladder issues. Consequently, the Board finds the approximate balance of the evidence supports awarding a 30 percent rating based on urinary retention requiring intermittent or continuous catheterization under § 4.115a from May 22, 2017 to July 25, 2017. However, the persuasive evidence of record is against finding any symptomatology associated with low back disability to support a compensable rating based on any bowel or bladder dysfunction outside that time frame. 8. Special monthly compensation (SMC) based on the need for regular aid and attendance The Veteran argues that SMC based on the need for regular aid and attendance is warranted prior to October 11, 2016 or, alternatively, that he should receive SMC based on housebound status prior to June 13, 2013. 38 U.S.C. § 1114(l) awards SMC if a Veteran is permanently bedridden or has such significant service-connected disabilities as to be in need of regular aid and attendance. 38 C.F.R. § 3.352 further clarifies that, in determining the need for regular aid and attendance, the Board shoulder consider the following factors: inability of claimant to dress or undress himself (herself), or to keep himself (herself) ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances 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, etc.); inability of claimant to feed himself (herself) through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his or her daily environment. That section also provides that "[i]t is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made" and that "[i]t 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." Id. Here, the Board has already conceded in the low back rating analysis that the Veteran has had characteristic incapacitating episodes of IVDS since the year he filed his initial claim and granted higher ratings throughout the appeal period because of said episodes, which specifically involve his back "going out," incapacitating him for long periods of time. Notably, the Veteran described his flare-ups of back disability to the March 2021 VA examiner in those same terms, and that examiner opined that such flare-ups "can also lead [the] Veteran to have more limitations in doing [activities of daily living] such as transfers and showers needing assistance from a caregiver." That opinion aligns closely with other evidence of record, including (but not limited to) the fact that July 2014 and December 2016 descriptions of two such incapacitating episodes indicate they involved wholesale paralysis of the lower extremities. Moreover, December 2016 records also indicate the Veteran "needed set up for [activities of daily living] like feeding, and needed more assistance with showering" as a result of his clinical presentation that the provider attributed to his lumbar spine disability. Given the evidence associating the Veteran's incapacitating episodes with a need for assistance with basic activities, the evidence indicating these incapacitating episodes have been recurrent throughout the appeal period, the facial inconsistency of regular incapacitation with competently navigating the hazards of his daily environment independently, and the absence of compelling medical or other evidence to the contrary, the Board finds the approximate balance of the evidence supports an award of SMC based on the need for regular aid and attendance throughout the appeal period. In light of this award, the Board finds the question of entitlement to SMC based on housebound status prior to June 13, 2013 moot because the award here is a greater benefit. In granting the benefits awarded here, the Board resolves any reasonable doubt in the Veteran's favor. Likewise, to the extent that the Board denies any additional or separate ratings or benefits sought, it finds the persuasive evidence of record against substantiating the pertinent claims and the benefit of the doubt rule does not apply. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Yuan, 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.