Citation Nr: 22048827 Decision Date: 08/26/22 Archive Date: 08/26/22 DOCKET NO. 19-36 078A DATE: August 26, 2022 ORDER The termination of special monthly compensation (SMC) based on housebound status, effective May 1, 2018, was proper, and restoration of that award is denied. A higher initial rating in excess of 20 percent for right lower extremity radiculopathy is denied. A higher initial rating in excess of 20 percent for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Beginning May 1, 2018, the Veteran does not have a single service-connected disability rated at 100 percent and additional service-connected disabilities ratable at 60 percent. 2. The Veteran is not permanently housebound by reason of service-connected disabilities. 3. A February 2018 rating decision terminating SMC effective May 1, 2018 followed the procedural due process requirements under 38 C.F.R. § 3.105(e), (i)(2)(i). 4. For the entire initial rating period on appeal from September 29, 2014, the right lower extremity radiculopathy has manifested moderate incomplete paralysis of the sciatic nerve without symptoms of moderately severe incomplete paralysis of the sciatic nerve. 5. For the entire initial rating period on appeal from September 29, 2014, the left lower extremity radiculopathy has manifested moderate incomplete paralysis of the sciatic nerve without symptoms of moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The termination of an award of special monthly compensation based on housebound status, effective May 1, 2018, was proper. 38 U.S.C. §§ 1114(s), 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.105, 3.159, 3.350(i), 4.16, 4.25. 2. For the entire initial rating period on appeal from September 29, 2014, the criteria for a higher initial disability rating in excess of 20 percent for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 3. For the entire initial rating period on appeal from September 29, 2014, the criteria for a higher initial disability rating in excess of 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from August 1979 to August 1982. 1. Special monthly compensation based on housebound status SMC benefits by reason of being housebound are payable under 38 U.S.C. § 1114(s) if the Veteran has a single disability rated as 100 percent disabling, and has either: (1) additional service-connected disability or disabilities independently ratable at 60 percent or more, or (2) is "permanently housebound" by reason of service-connected disability or disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). Housebound benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling. Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011). In addition, the disabilities independently ratable at 60 percent or more must be separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). In a March 2011 rating decision, the RO awarded the Veteran SMC based on the housebound rate due to having one disability rated at 100 percent disabling and other service-connected disabilities combined to 60 percent disabling effective from March 13, 2006 to April 30, 2006. SMC was to be terminated on May 1, 2006 because the other service-connected disabilities no longer combined to 60 percent disabling as of that date. Specifically, the Veteran was in receipt of a temporary total (100 percent) disability rating for chronic lower back pain syndrome with degenerative joint disease (lumbar spine disability) under 38 C.F.R. § 4.29 from March 13, 2006 to May 1, 2006, and a 20 percent disability rating thereafter. In a June 2017 letter and May 2017 rating decision, the RO informed the Veteran that an administrative error had occurred and, as a result, she continued to receive SMC based on the housebound rate after May 1, 2006. The letter informed the Veteran that the SMC benefit would not be reduced until September 1, 2017. No further action was taken by the RO until it issued a February 2018 rating decision terminating SMC effective May 1, 2018, sixty days after notification of the February 2018 rating decision. Under 38 C.F.R. § 3.105(e), where the reduction in evaluation of a service-connected disability or employability is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance must be prepared setting forth all material facts and reasons. The beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefor and will be given 60 days for the presentation of additional evidence to show that compensation benefits should be continued at their present level. Unless otherwise provided in paragraph (i) of 38 C.F.R. § 3.105, if additional evidence is not received within that period, final rating action will be taken and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. § 3.105(f). At the outset, the Board finds that the RO satisfied the due process notification requirements under 38 C.F.R. § 3.105(f). Specifically, after the proposed discontinuance of SMC at the housebound rate in the February 2018 rating decision, the Veteran was given 60 days to present additional evidence and was notified at her address of record. While the Veteran called VA and submitted additional evidence pertaining to the proposed reduction of a total disability rating based on individual unemployability (TDIU), the Veteran did not submit additional evidence pertaining to entitlement to SMC. The effective date of the discontinuance, May 1, 2018, was proper as it followed the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expired. See 38 C.F.R. § 3.105(f), (i)(2). Thus, all procedural requirements were met here pursuant to 38 C.F.R. § 3.105(f) and (i). As a result of the reduction of the lumbar spine disability from 100 percent to 20 percent, effective May 1, 2006, the Veteran did not meet the schedular rating criteria for SMC at the housebound rate, based on one service-connected disability rated as 100 percent disabling and a separate disability rated at 60 percent or higher. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). That is, effective from March 13, 2006 to April 30, 2006, the service-connected disabilities were: a lumbar spine disability (rated as 100 percent disabling), posttraumatic stress disorder (PTSD) (rated as 50 percent disabling), and post-operative chronic pelvic inflammatory disease (rated as 10 percent disabling). Beginning May 1, 2006, the Veteran did not have a single disability rated as 100 percent disabling with additional service-connected disability or disabilities independently ratable at 60 percent or more. As of May 1, 2006, the lumbar spine disability was rated as 20 percent disabling, PTSD was rated as 50 percent disabling, and post operative chronic pelvic inflammatory disease was rated as 10 percent disabling; therefore, the Veteran did not meet the statutory requirements for the payment of special monthly compensation at the housebound rate beginning May 1, 2006. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Board has also considered whether SMC based on housebound status is warranted for the period from March 16, 2007 when the Veteran is in receipt of a TDIU. For purposes of satisfying the requirements of 38 U.S.C. § 1114(s), a TDIU may be considered a "total" rating (equivalent to 100 percent rating), and any disabilities that do not form the basis for the TDIU may satisfy the requirement for additional service-connected disability or disabilities independently ratable at 60 percent or more under § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 291-93 (2008). However, multiple disabilities, even if able to be combined and considered as a single disability for purposes of 38 C.F.R. § 4.16(a), do not meet the criteria for a "service-connected disability rated as total" for SMC under 38 U.S.C. § 1114(s). Id. at 290-91. See Buie v. Shinseki, 24 Vet. App. 242, 249-250 (2010) (recognizing that a TDIU rating that is based on a single service-connected disability could satisfy the section 1114(s) requirements). For the period from March 16, 2007, the Veteran is in receipt of a TDIU based on service-connected physical and mental disabilities. See May 2008 rating decision. Although on the June 2006 VA Form 21-8940 applying for a TDIU the Veteran stated that chronic low back pain syndrome alone rendered her unable to obtain or maintain substantially gainful employment, the May 2008 rating decision specifically found that both mental and physical service-connected disabilities contributed to the award of a TDIU; the RO cited a March 2008 VA examination report wherein the VA examiner opined the Veteran is unable to be gainfully employed and cannot handle the responsibilities and accountability factor of employment. The March 2008 VA examiner also noted the Veteran could not tolerate being around people and that depression symptoms would prevent her from holding a job. Accordingly, as the Veteran's TDIU is based on multiple service-connected disabilities, the requirements of 38 U.S.C. § 1114(s) have not been met based on a TDIU based on a single service-connected disability. Finally, the Board has considered whether, beginning May 1, 2006, the Veteran met the alternative housebound in fact criteria with regard to being "permanently housebound" as the result of his service-connected disabilities. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). A veteran is permanently housebound when he or she is substantially confined to his or her house (ward or clinical areas, if institutionalized) or immediate premises as a direct result of his or her service-connected permanent disability or disabilities, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. Upon review of the evidence with regard to the factual housebound criteria, the Board finds that the persuasive weight of the evidence demonstrates she was not "permanently housebound" by reason of service-connected disability or disabilities. The evidence in the record does not show the Veteran being permanently housebound or substantially confined to her house or immediate premises as a direct result of service-connected permanent disability or disabilities, let alone evidence showing it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout her lifetime. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i)(2). VA treatment records reflect the Veteran has been able to independently attend her VA medical appointments, See e.g., October 2013 VA treatment record; September 2018 VA treatment record (noted to be ambulating well without assistive walking device); July 2020 VA treatment record (arrived in a wheelchair). Based on the foregoing, the Board finds that the termination of the award of SMC based on the housebound rate, effective May 1, 2018, was proper. 38 U.S.C. §§ 1114(s), 5107(b); 38 C.F.R. § 3.350(i). Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 2. Rating right lower extremity radiculopathy 3. Rating left lower extremity radiculopathy For the entire initial rating period on appeal from September 29, 2014, the Veteran is in receipt of initial 20 percent disability ratings each for right and left lower extremity radiculopathy under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. § § 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After review of all the lay and medical evidence of record, the Board finds that the persuasive weight of the evidence is against finding that the right and left lower extremity radiculopathies more nearly approximate moderately severe incomplete paralysis of the sciatic nerve, so as to warrant higher 40 percent ratings for the rating period from September 29, 2014. Throughout the rating period from September 29, 2014, the right and left lower extremity radiculopathies have, at worst, manifested in symptoms or findings of moderate constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the right and left lower extremities involving the sciatic nerve, more nearly approximating moderate incomplete paralysis of the sciatic nerve. The Veteran underwent a VA examination for in February 2015, the examination report for which reflects the VA examiner assessed the right and left lower extremity radiculopathies have manifested in symptoms of moderate constant pain, moderate intermittent pain, mild paresthesias/dysesthesias, and mild numbness involving the sciatic nerve in the right and left lower extremities. Neurologic examination of the lower extremities revealed normal muscle strength and negative findings for muscle atrophy. Reflexes were found to be hypoactive in the right and left knees. A light touch sensory examination found decreased responses in the right lower leg/ankle and foot/toes. The VA examiner assessed moderate incomplete paralysis of the sciatic nerve in the right and left lower extremities. The Veteran underwent another VA examination in October 2015, the examination report for which reflects the VA examiner assessed the right and left lower extremity radiculopathies have manifested in symptoms of moderate constant pain, moderate paresthesias/dysesthesias, and moderate numbness involving the sciatic nerve. Neurologic examination of the lower extremities revealed active movement against some resistance in right and left ankle plantar flexion and ankle dorsiflexion. The October 2015 VA examiner noted negative findings for muscle atrophy, and reflexes were normal in the right and left knees and were hypoactive in the right and left ankles. A light touch sensory examination found decreased responses in the right and left lower leg/ankle and foot/toes. The VA examiner assessed moderate incomplete paralysis of the sciatic nerve in the right and left lower extremities. The Veteran underwent a VA examination for back conditions in April 2017, the examination report for which shows the VA examiner assessed the right and left lower extremity radiculopathies have manifested in symptoms of moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness involving the sciatic nerve. Neurologic examination of the lower extremities revealed normal strength in all planes tested in the lower extremities. The April 2017 VA examiner noted negative findings for muscle atrophy, and reflexes were normal in the right and left knees and ankles. A light touch sensory examination was also normal in all planes tested in the lower extremities. No other signs or symptoms of radiculopathy were found. The VA examiner assessed moderate radiculopathy in the right and left lower extremities. VA and private treatment records throughout the initial rating period from September 29, 2014 reflect complaints of leg and foot pain, weakness, and burning, without evidence of moderately severe incomplete paralysis of the sciatic nerve. See e.g., July 2012 VA treatment record; January 2014 VA treatment record; February 2014 VA treatment record; May 2014 VA treatment record; March 2017 VA treatment record; February 2018 VA treatment record; January 2019 VA treatment record (examination of the right and left lower extremities revealed full strength, range of motion, and intact sensation). Although the Veteran testified during the March 2021 Board hearing that she recently fell and broke her kneecap due to weakness in the legs, presumably due to the right and/or left lower extremity radiculopathy, VA treatment records reflect that the fall was attributed to the left knee giving out, rather than weakness resulting from the right and/or left lower extremity radiculopathy. See July 2020 VA treatment record. Based on the foregoing, the Board finds that the persuasive weight of the lay and medical evidence of record demonstrates that the Veteran's right and left lower extremity radiculopathies have not more nearly approximated the criteria for higher initial 40 percent ratings under Diagnostic Code 8520 for symptoms of moderately severe incomplete paralysis of the sciatic nerve for the initial rating period from September 29, 2014; therefore, higher initial disability ratings in excess of 20 percent are not warranted under Diagnostic Code 8520 for the right and left lower extremity radiculopathies. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.