Citation Nr: 25003897 Decision Date: 03/21/25 Archive Date: 03/21/25 DOCKET NO. 16-12 735 DATE: March 21, 2025 ORDER Entitlement to an increased rating from 20 percent to 40 percent for degenerative disc disease with spondylosis during the period prior to September 10, 2018, is granted. Entitlement to a rating in excess of 40 percent for degenerative disc disease with spondylosis of the thoracolumbar spine during the period of September 10, 2018, to October 29, 2018, is denied. Entitlement to a rating in excess of 40 percent for degenerative disc disease with spondylosis, status post laminectomy, of the thoracolumbar spine during the period beginning January 1, 2019, is denied. Entitlement to a rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy is denied. Entitlement to a rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy is denied. Entitlement to an increased rating from 20 percent to 40 percent for right lower extremity sciatic and peroneal nerve radiculopathy is granted. Entitlement to an increased rating from 20 percent to 40 percent for left lower extremity sciatic and peroneal nerve radiculopathy is granted. Entitlement to special monthly compensation (SMC) based on aid and attendance is denied. FINDINGS OF FACT 1. The Veteran's thoracolumbar spine disability was manifested by forward flexion of 30 degrees or less during the period prior to September 10, 2018. 2. The Veteran's thoracolumbar spine disability was manifested by favorable ankylosis of the thoracolumbar spine and forward flexion of 30 degrees or less during the period of September 10, 2018, to October 29, 2018. 3. The Veteran's thoracolumbar spine disability has been manifested by favorable ankylosis of the thoracolumbar spine and forward flexion of 30 degrees or less during the period beginning January 1, 2019. 4. The Veteran's right lower extremity femoral nerve radiculopathy is manifested by no more than moderate incomplete paralysis. 5. The Veteran's left lower extremity femoral nerve radiculopathy is manifested by no more than moderate incomplete paralysis. 6. The Veteran's right lower extremity sciatic and peroneal nerve radiculopathy is manifested by no more than moderately severe incomplete paralysis. 7. The Veteran's left lower extremity sciatic and peroneal nerve radiculopathy is manifested by no more than moderately severe incomplete paralysis. 8. The evidence of record is persuasively against a finding that the Veteran has lost the use of his extremities, or is permanently bedridden, or so helpless as to be in need of regular aid and attendance, or housebound. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent for a thoracolumbar spine disability during the period prior to September 10, 2018, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 2. The criteria for a rating in excess of 40 percent for a thoracolumbar spine disability during the period of September 10, 2018, to October 29, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 3. The criteria for a rating in excess of 40 percent for a thoracolumbar spine disability during the period beginning January 1, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242. 4. The criteria for a disability rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 5. The criteria for a disability rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 6. The criteria for a disability rating of 40 percent for right lower extremity sciatic and peroneal nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 7. The criteria for a disability rating of 40 percent for left lower extremity sciatic and peroneal nerve radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 8. The criteria for an award of SMC benefits based on the need for regular aid and attendance for the Veteran have not been met. 38 U.S.C. §§ 1114, 1115, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.352. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1971 to July 1974 and February 2003 to December 2003. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision by the Regional Office (RO) of the Department of Veterans Affairs (VA). This case was last before the Board in May 2024, on which occasion the claims were remanded. In the May 2024 decision, the Board remanded the claims for new VA examinations to determine the current severity of the claimed disabilities. The Board specifically requested that a VA examiner should address whether the Veteran's back symptoms are the functional equivalent of ankylosis. The requested examinations were provided in June and October 2024 and included an analysis addressing whether the Veteran's back symptoms are the functional equivalent of ankylosis, as the Board requested. Given these facts, the Board finds that there was substantial compliance with the Board's May 2024 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. Entitlement to an increased rating from 20 percent to 40 percent for degenerative disc disease with spondylosis during the period prior to September 10, 2018. 2. Entitlement to a rating in excess of 40 percent for degenerative disc disease with spondylosis of the thoracolumbar spine during the period of September 10, 2018, to October 29, 2018. 3. Entitlement to a rating in excess of 40 percent for degenerative disc disease with spondylosis, status post laminectomy, of the thoracolumbar spine during the period beginning January 1, 2019. The Veteran is seeking an increased rating for his service connected thoracolumbar spine disability. The thoracolumbar spine disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Board notes that the Veteran was in receipt of a 100 percent rating in accordance with 38 C.F.R. § 4.30 for his thoracolumbar spine disability during the period from October 30, 2018, to January 1, 2019. As the Veteran is already in receipt of the highest available rating during the period of October 30, 2018, to January 1, 2019, the Board will not address that period of time herein. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, 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 abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Unfavorable ankylosis is defined as "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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id When evaluating a disability under VA's General Rating Formula, the criteria for a rating based on ankylosis may be met by evidence demonstrating the functional equivalent of ankylosis.? Chavis v. McDonough,?34?Vet. App.?1?(2021). Therefore, ankylosis can be shown via functional loss consistent with that contemplated by ankylosis. See?38?C.F.R. §§?4.40, 4.45; Mitchell v. Shinseki,?25?Vet. App.?32?(2011); DeLuca v. Brown,?8?Vet. App.?202?(1995). When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of 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. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court of Appeals for Veterans Claims (Court) held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. The Board finds that the evidence of record supports a finding that the Veteran's thoracolumbar spine disability symptoms most closely approximate those contemplated by a 40 percent rating throughout the period on appeal. In this regard, the Veteran was afforded a VA back disabilities examination in June 2015. Initial range of motion (ROM) testing revealed forward flexion to 70 degrees with objective evidence of painful motion at 70 degrees. Extension was to 15 degrees, his right and left lateral flexion was to 15 degrees, and his right and left lateral rotation was to 15 degrees. There was no change of ROM after repetitive-use testing. The examiner found that repeated use over time caused pain, weakness, and fatigability, it was noted that there was no additional loss of ROM. Further, while the examiner noted that the Veteran experiences flare-ups that impacted the function of his back, the examiner stated that there was no additional loss of ROM measurements during flare-ups. Neither tenderness of the back nor muscle spasms of the back were noted. (6/23/2015, C&P Exam). A March 2016 VA pain management consultation report revealed flexion to 30 degrees with pain and extension to 5 degrees with pain. While specific measurements where not provided for lateral flexion or lateral rotation, the examiner did indicate that the Veteran's ROM during these movements was "diminished with pain." (10/8/2019, CAPRI, p. 338). An October 2018 VA back examination revealed initial flexion of 20 degrees to 30 degrees, extension of -20 to -10 degrees, right and left lateral flexion to 10 degrees, right and left lateral rotation to 5 degrees. There was no change of ROM after repetitive-use testing. The examiner estimated that the Veteran's ROM after repeated use over time would be limited to flexion of 20 degrees to 25 degrees, extension of -20 degrees to -10 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. The examiner indicated that the Veteran did not report flare-ups. No guarding or muscle spasms of the back were noted. Actual ankylosis of the spine was not noted. (10/2/2018, C&P Exam, p. 2-6, 9). An October 2019 VA back examination revealed initial flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 5 degrees. The Veteran was unable to perform repetitive use testing due to pain. The examiner did not provide specific estimations of the Veteran's ROM after repeated use over time but did generally indicate that he would experience an additional loss of ROM of 5-10 degrees. The examiner indicated that the Veteran did not report flare-ups of back symptoms. No guarding or muscle spasms of the back were noted. Actual ankylosis of the spine was not noted. (10/29/2019, C&P Exam, p. 2-3, 6). An April 2021 back disabilities examination revealed initial flexion to 40 degrees, extension to 30 degrees, right and left lateral flexion to 5 degrees, and right and left rotation to 5 degrees. The Veteran was unable to perform repetitive use testing due to pain. The examiner estimated that the Veteran's ROM after repeated use over time would be limited to flexion to 5 degrees, extension to 30 degrees, right and left lateral flexion to 5 degrees, and right and left lateral rotation to 5 degrees. The examiner indicated that the Veteran did not report flare-ups of back symptoms. No tenderness, guarding, or muscle spasms of the back were noted. Actual ankylosis of the spine was not noted. (4/13/2021, C&P Exam, p. 3-8, 12). A September 2022 VA back examination revealed initial flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. The Veteran was able to perform repetitive use testing with no additional loss of ROM. The examiner estimated that after repeated use over time the Veteran's ROM would be limited to flexion of 25 degrees, extension to 10 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. The examiner indicated that the Veteran did not report flare-ups of back symptoms. No tenderness, guarding, or muscle spasms of the back were noted. Actual ankylosis of the spine was not noted. (9/28/2022, C&P Exam, p. 3-8, 12). A September 2023 VA back examination revealed initial flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 20 degrees. The Veteran was able to perform repetitive use testing with no additional loss of ROM. The examiner indicated that the Veteran's symptoms did not significantly limit his functional ability with repeated use over time. The Veteran did not report flare-ups of back symptoms. Localized tenderness of the back that did not result in abnormal gait or abnormal spinal contour was noted. Neither muscle spasms nor guarding of the back were noted. Actual ankylosis of the spine was not noted. (9/29/2023, C&P Exam, p. 3-8, 12). A June 2024 VA back examination revealed initial flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees. Repetitive use testing was not completed due to pain. The examiner estimated that after repeated use over time the Veteran's ROM would be limited to flexion to 30 degrees, extension to 5 degrees, right lateral flexion to 25 degrees, left lateral flexion to 20 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 15 degrees. The examiner indicated that the Veteran did not report flare-ups of back symptoms. The examiner noted localized tenderness of the back that did not result in abnormal gait or abnormal spinal contour. Neither muscle spasms nor guarding of the back were noted. Actual ankylosis of the spine was not noted. (6/26/2024, C&P Exam, p. 3-8, 14). The June 2024 examiner later proffered an addendum opinion regarding the issue of functional ankylosis. The examiner opined that the Veteran's symptoms result in favorable ankylosis of the entire thoracolumbar spine. The Veteran's symptoms were not consistent with unfavorable ankylosis as he did not have difficulty walking due to limited line of vision. (8/29/2024, CAPRI, p. 18). An October 2024 VA back examination revealed initial flexion to 40 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. Repetitive use testing was not completed due to pain. The examiner estimated that after repeated use over time the Veteran's ROM would be limited to flexion to 35 degrees, extension to 5 degrees, right and left lateral flexion to 20 degrees, and right and left lateral rotation to 30 degrees. The examiner indicated that the Veteran did not report flare-ups of back symptoms. The examiner noted localized tenderness of the back that did not result in abnormal gait or abnormal spinal contour. Neither muscle spasms nor guarding of the back were noted. Actual ankylosis of the spine was not noted. (6/26/2024, C&P Exam, p. 3-8, 14). The examiner later provided an addendum opinion indicating that the Veteran does not have the functional equivalent of ankylosis. (11/2/2024, VAMC Other Output, p. 34). The examiner explained that the Veteran does not have difficulty walking due to a limited line of vision, which is the definition of unfavorable ankylosis. His difficulty walking was due to pain, not the 40 degrees of forward flexion. Adding flexion and extension, the Veteran had 45 degrees of movement. He had no problems eating or breathing and was able to drive a car. (6/26/2024, C&P Exam, p. 15). Given the above, the Board finds that for the period prior to September 10, 2018, the Veteran's back disability was manifested by forward flexion of 30 degrees or less. In reaching this conclusion, the Board acknowledges that the June 2015 examination revealed flexion to 70 degrees. However, this examination did not address the Veteran's ROM after repeated use over time or during a flare-up. Moreover, the ROM findings during the June 2015 examination are inconsistent with the other examinations of record, whereas the March 2016 pain management consultation report provided ROM testing results consistent with the other evidence of record. Accordingly, the Board affords a higher degree of probative value to the March 2016 pain management consultation report's finding that the Veteran's forward flexion was limited to 30 degrees. These symptoms most closely approximate a 40 percent rating. For the period of September 10, 2018, to October 29, 2018, and the period beginning January 1, 2019, the Board finds that the Veteran's back disability was manifested by forward flexion of 30 degrees or less and the functional equivalent of favorable ankylosis of the entire thoracolumbar spine. These symptoms most closely approximate a 40 percent rating. A rating in excess of 40 percent is not warranted as the Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine, or the functional equivalent thereof. In this regard, the June and October 2024 VA examinations indicated the Veteran's back symptoms do not result in difficulty walking due to limited line of vision, restricted opening of the mouth and chewing, or breathing limited due to diaphragmatic respiration. As such, the Board finds that the Veteran's symptoms are not consistent with unfavorable ankylosis or its functional equivalent. In conclusion, the Board finds that the evidence of record supports a finding that the Veteran's back symptoms most closely approximate a 40 percent rating throughout the period on appeal. A rating in excess of 40 percent is not warranted as the Veteran does not have unfavorable ankylosis or its functional equivalent. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38?C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 4. Entitlement to a rating in excess of 20 percent for right lower extremity femoral nerve radiculopathy. 5. Entitlement to a rating in excess of 20 percent for left lower extremity femoral nerve radiculopathy. 6. Entitlement to an increased rating from 20 percent to 40 percent for right lower extremity sciatic and peroneal nerve radiculopathy. 7. Entitlement to an increased rating from 20 percent to 40 percent for left lower extremity sciatic and peroneal nerve radiculopathy. The Veteran is seeking increased ratings for his service connected bilateral lower extremity radiculopathy. He is currently in receipt of bilateral 20 percent ratings for the femoral nerves and bilateral 20 percent ratings for the sciatic/peroneal nerves. The Veteran is rated as 20 percent disabled for each lower extremity in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8526 for paralysis of the femoral nerve. Under Diagnostic Code 8526, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis with paralysis of the quadriceps extensor muscles is rated as 40 percent disabling. 38 C.F.R. § 4.124a. He is also rated as 20 percent disabled for each lower extremity in accordance with 38 C.F.R. § 4.124a, Diagnostic Code 8520 for paralysis of the sciatic nerve. Under Diagnostic Code 8520, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38?C.F.R § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38?C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28?Vet. App.?376 (2017). Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," "moderately severe," and "severe." Spellers v. Wilkie,?30?Vet. App.?211, 219?(2018) ("[Diagnostic Code] 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms"). Although the Board has at times attempted to define these terms using dictionary definitions, those definitions are problematic because they "do little to explain the Board's understanding of these terms and do not 'disclos[e] that benchmark it employed to reach [its] conclusion.'" Casey v. McDonough, No. 21-7569, slip op. at 3 (Vet. App. Jan. 24, 2023) (mem dec) (Falvey, J.) (quoting Johnson v. Wilkie,?30?Vet. App.?245, 255?(2018) (discussing the Board's attempt to define the terms slight, mild, moderate, and severe in Diagnostic Code 8515); see also Bethea v. Derwinski,?2?Vet. App.?252, 254?(1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Although?38 C.F.R. § 4.120, 4.123, and 4.124 are "helpful in framing the analysis, [they] are not alone sufficient to explain the Board's decision absent an articulated connection to specific evidence." LeMon v. McDonough, No. 21-3949,?2022 U.S. App. Vet. Claims LEXIS 1998, *7?(Dec. 16, 2022) (mem dec) (Toth, J.). As explained in Lemon, these regulations leave gaps in defining the relevant terms that are filled by VA's Adjudication Manual, M21-1 The Board acknowledges that the M21-1 contains provisions regarding rating peripheral nerve disabilities.? The United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that the Board is not bound by the provisions of the M21-1 and the manual does not "carry the force of law."? DAV v. Sec'y of Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017).? It is "an internal manual used to convey guidance to VA adjudicators.? It is not intended to establish substantive rules beyond those contained in statute and regulation."? Id. The M21-1 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion.? Id.; see also 38?U.S.C. §?7104(c).? The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues."? 38?C.F.R. §?20.105.? Nevertheless, the Court in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision."? Overton v. Wilkie, 30?Vet. App.?257, 264 (2018).? More recently, in Wilson v. McDonough, the Court elaborated that, in the context of relevant guidance documents, the Board can "neither merely invoke nor ignore a relevant guidance provision to support its decision but must provide an independent rationale relating its decision to the relevant guidance document."? Wilson v. McDonough, 35?Vet. App.?75, 80 (2021).? Pursuant to Wilson, the Board finds that the M21-1 does contain guidance relevant to the adjudication of the issues currently on appeal.? Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," "moderately severe," and "severe" in the context of evaluating incomplete paralysis of upper and lower peripheral nerves.? Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however, slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment.? Generally, "mild" is limited to a disability limited to sensory deficits that are lower graded, less persistent, and affecting a small area and/or a very minimal reflex or motor abnormality.? "Moderate" in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment.? The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.? The M21-1 provides that "moderately severe" is only applicable for involvement of the sciatic nerve and is described as motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected.? Atrophy may be present with moderately severe peripheral neuropathy.? "Severe" in general, is expected to include motor and/or reflex impairment (for example atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability.? Trophic changes may be seen with severe longstanding neuropathy. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve.? With consideration of the above, the Board finds that the evidence of record supports a finding that the Veteran's bilateral femoral nerve radiculopathy most closely approximates moderate incomplete paralysis throughout the rating period on appeal. The Board additionally finds that the Veteran's bilateral sciatic nerve radiculopathy symptoms most closely approximates moderately severe incomplete paralysis throughout the rating period on appeal. In this regard, the Veteran was afforded a VA back examination in October 2018. The examination noted radicular symptoms in the left lower extremity, which included moderate constant pain, severe intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness. No symptoms were noted in the right lower extremity. Muscle strength testing noted slightly reduced strength (4/5) during hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, bilaterally. Reflex examination revealed hypoactive (1+) reflexes in the bilateral knee and ankle. Sensory examination revealed normal sensation bilaterally. (10/2/2018, C&P Exam, p. 7-8). Straight leg testing was positive on the left. In October 2019 the Veteran was afforded a VA peripheral nerves disabilities examination. This examination noted radicular symptoms in the left and right lower extremities, which included mild intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. Muscle strength testing revealed slightly reduced strength (4/5) during knee extension and ankle dorsiflexion, bilaterally. There was no atrophy. Reflex testing revealed absent reflexes (0) in the right knee and hypoactive reflexes (1+) in the left knee. Ankle reflex testing revealed hypoactive reflexes (1+) in the right ankle and absent reflexes (0) in the left ankle. Sensory examination revealed decreased sensation to light touch in the foot/toes, bilaterally. (10/29/2019, C&P Exam, p. 2-3). An April 2021 VA back examination revealed radicular symptoms in the left and right lower extremity, which included mild constant pain, mild intermittent pain, and mild numbness. Muscle strength testing revealed reduced strength (2/5) during hip flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension, bilaterally. No muscle atrophy was noted. Reflex examination revealed hypoactive reflexes (1+) in the knee and ankle, bilaterally. Sensory examination revealed decreased sensation to light touch in the upper thigh and thigh/knee, bilaterally. Sensation in the lower leg/ankle and foot/toes was absent. (4/13/2021, C&P Exam, p. 9-11). A September 2022 VA back examination revealed radicular symptoms in the left and right lower extremity, which included moderate constant pain, moderate paresthesias and/or dysesthesias, and mild numbness in the left lower extremity. Severe constant pain, severe paresthesias and/or dysesthesias, and mild numbness in the right lower extremity were noted. Strength testing revealed normal strength bilaterally. There was no muscle atrophy. Reflex examination revealed normal reflexes bilaterally. Sensation examination revealed decreased sensation to light touch in the upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes, bilaterally. Straight leg testing was positive bilaterally. A September 2023 VA back examination revealed radicular symptoms in the left and right lower extremity, which included moderate numbness. Constant pain, intermittent pain, and paresthesias and/or dysesthesias were not noted. Muscle strength testing revealed slightly reduced strength (4/5) during ankle plantar flexion, ankle dorsiflexion, and great toe extension. No muscle atrophy was noted. Reflex examination revealed hypoactive (1+) reflexes in the knee and ankle, bilaterally. Sensory examination revealed decreased sensation in the thigh/knee, lower leg/ankle, and foot/toes. Straight leg raise was positive bilaterally. (9/29/2023, C&P Exam, p. 9-11). A June 2024 peripheral nerves disabilities examination revealed radicular symptoms in the left and right lower extremity, which included mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing revealed normal strength in the lower extremities. There was no atrophy. Reflex examination revealed hypoactive reflexes (1+) in the right knee and absent reflexes (0) in the left knee and bilateral ankles. Sensory examination revealed decreased sensation for light touch in the thigh/knee, lower leg/ankle, and foot/toes. Straight leg raise was positive bilaterally. (6/26/2024, C&P Exam, p. 2-5). Finally, an October 2024 back disabilities examination revealed radicular symptoms in the left and right lower extremity, which included mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness. Muscle strength testing revealed normal strength in the bilateral lower extremities. There was no atrophy. Reflex examination revealed hypoactive reflexes (1+) in the right knee and absent reflexes (0) in the left knee and bilateral ankles. Sensory examination revealed decreased sensation to light touch in the thigh/knee, lower leg/ankle, and foot/toes. Straight leg raise was positive bilaterally. (10/2/2024, C&P Exam, p. 10-13). Given the above information, the Board finds that the Veteran's radiculopathy symptoms predominately include moderate symptoms of intermittent pain, paresthesias and/or dysesthesias, and numbness with slightly reduced strength (4/5), hypoactive reflexes (1+) in the right knee, absent reflexes in the left knee and bilateral ankles, and decreased sensation to light touch. The Board finds that these symptoms most closely approximate a finding of moderate incomplete paralysis of the femoral nerves and moderately severe incomplete paralysis of the sciatic nerves. The Board concludes that a finding of severe incomplete paralysis of the femoral nerves is not warranted as the evidence of record does not demonstrate paralysis of the quadriceps extensor muscles. In this regard, while the Veteran experienced decreased sensation of the thigh muscle, he retained some degree of sensation in the thigh. Moreover, the Veteran was able to actively move his knee against some resistance. While this reflects a slight degree of muscle weakness (4/5), no muscle atrophy was noted of the quadriceps muscles. Given these facts, the Board finds that the Veteran's femoral nerve symptoms do not reflect a very high level of limitation or disability. Likewise, the Board concludes that a finding of severe incomplete paralysis of the sciatic nerves is not warranted as the evidence of record does not demonstrate "marked muscular atrophy." Indeed, despite findings of reduced strength during the period on appeal, no muscle atrophy was noted. Further, trophic changes were not noted. Given these facts, the Board finds that the Veteran's sciatic nerve symptoms do not reflect a very high level of limitation or disability. In reaching this conclusion, the Board notes that an April 2021 VA examination found that the Veteran's lower extremity strength was significantly reduced at 2/5, reflecting that his active movement with gravity was eliminated. However, other examinations of record, both before and after the April 2021 examination, concluded that the Veteran's strength was either normal or slightly reduced at 4/5, reflecting active movement against some resistance. Given that the April 2021 examination was the only examination that rated the Veteran's lower extremity strength at 2/5, and all other examinations found his strength to be normal or 4/5, the Board finds that the evidence is persuasively against a finding that the Veteran's strength was significantly reduced at 2/5. Instead, the Board finds that the Veteran's strength was slightly reduced at 4/5. The Board additionally notes reports of left drop foot in the Veteran's VA medical records in June and July 2022. (8/23/2022, CAPRI, p. 61, 67, 70). Despite these reports the Board finds that the evidence of record is persuasively against a finding that the Veteran's symptoms include left drop foot. In this regard, a January 2021 pain management consultation report indicates that the Veteran was negative for drop foot bilaterally. (8/23/2022, CAPRI, p. 193). Further, medical records after July 2022 do not note left drop foot. Generally, the absence of evidence does not constitute substantive negative evidence. See Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). However, in this case the record indicates that the Veteran was referred to podiatry for his foot symptoms, but drop foot was not noted in his podiatry records. Instead, his podiatry records indicate that he was diagnosed with onychocryptosis, onychodystrophy, pes planus, and pain. There is no indication in his podiatry records that he has a diagnosis of left drop foot. In this case, the Board finds that the absence of a diagnosis of left drop foot in the Veteran's podiatry records tends to disprove that his symptoms include left drop foot. Based on the above, the Board finds that the evidence of record persuasively weighs against a finding that the Veteran has left drop foot. In conclusion, the Board finds that the evidence of record supports a finding that the Veteran's lower extremity radiculopathy symptoms most closely approximate moderate incomplete paralysis of the femoral nerves and moderately severe incomplete paralysis of the sciatic nerves. As such, ratings of 20 percent are warranted for left lower extremity femoral nerve radiculopathy and for right lower extremity femoral nerve radiculopathy, while ratings of 40 percent for left lower extremity sciatic nerve radiculopathy and for right lower extremity sciatic nerve radiculopathy are warranted. As the evidence of record persuasively weighs against higher ratings, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38?C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 8. Entitlement to SMC based on aid and attendance. The Veteran asserts that he is entitled to SMC based on aid and attendance. SMC is available when "as the result of service-connected disability," a veteran suffers additional hardships above and beyond those contemplated by the schedule for rating disabilities. 38 U.S.C. § 1114. SMC based on the need for aid and attendance is appropriate when a veteran has suffered the anatomical loss or loss of use of both feet or one hand and one foot, is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance as a result of service-connected disability. 38 C.F.R. § 3.350(b). A determination as to whether a veteran is entitled to SMC is a finding of fact subject to review under the clearly erroneous standard. Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: inability of the Veteran to dress or undress him or herself, or to keep him or 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 him or 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. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. The Board finds that SMC based on aid and attendance is not warranted here. In this regard, the Veteran was afforded a VA aid and attendance examination in September 2023. He did not require an attendant for the examination and reportedly drove himself to the appointment. He was able to ambulate independently with the assistance of a cane. There was no indication the Veteran was restricted to his home or its immediate vicinity nor was he permanently bedridden. The examiner answered "n/a" when prompted to describe any "self-care skills," that the Veteran was unable to perform, which the Board understands to mean that he was able to perform self-care skills. (9/29/2023, C&P Exam, p. 1-5). The September 2023 examiner proffered a medical opinion addressing whether the Veteran is bedridden or housebound. The examiner opined that the Veteran was not bedridden or housebound, as he drove independently and reported that he completes his activities of daily living independently. (9/29/2023, C&P Exam, p. 5). Likewise, during the June 2024 and October 2024 VA back examinations the Veteran reported that he was able to drive and ambulated independently with a cane. (10/2/2024, C&P Exam, p. 2). The Veteran's VA medical records support the findings of the aforementioned VA examinations. In this regard, VA medical records from January 2021, July 2021, and May 2024 indicate that the Veteran is able to perform his own activities of daily living. (8/23/2022, CAPRI, p. 133); (8/23/2022, CAPRI, p. 121, 181, 188); (8/29/2024, CAPRI, p. 100). Finally, while the Veteran has disabilities of both feet, the evidence of record does not support a finding that he has lost the use of both feet. To this point, a VA examiner opined that the Veteran has retained a greater degree of function in his lower extremities than that which would be equally well served by an amputation with prosthesis. (6/26/2024, C&P Exam, p. 8). (Continued on the next page) ? Based on the aforementioned evidence, the Board finds that SMC for aid and attendance is not warranted as the evidence of record indicates that the Veteran is able to attend medical appointments independently, drive independently, perform activities of daily living independently, and has not lost the use of both feet. As such, entitlement to SMC based on the need for aid and attendance is denied. As the evidence of record persuasively weighs against a grant of entitlement to SMC, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38?C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Glenn, Robert 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.