DEGENERATIVE ARTHRITIS OF THE SPINE (SPONDYLOSIS)

KATHERINE KIEMLE BUCKLEY · 2022 · Case ID: 22017839

MIXED

Summary

The veteran, who served in the U.S. Army from September 1986 to May 1991, including active duty for training in the Army National Guard, appeals the Board of Veterans' Appeals (Board) decision regarding her service-connected disabilities. The veteran sought an increased rating for degenerative disc disease of the lumbar spine, left and right lower extremity radiculopathy of the sciatic nerve, and gastritis/gastroesophageal reflux disease (GERD) with diverticulosis. She also appealed the denial of separate ratings for femoral nerve involvement in her lower extremities and sought special monthly compensation (SMC) for aid and attendance. The Board granted a 20 percent rating for lumbar degenerative disc disease, finding it approximated the criteria for that rating throughout the period on appeal, but denied higher ratings due to lack of prescribed bed rest and absence of severe functional limitations. For radiculopathy, the Board found mild sciatic nerve involvement prior to August 11, 2015, and moderate involvement thereafter, warranting 10 percent and 20 percent ratings respectively, but denied separate ratings for femoral nerve involvement due to lack of competent evidence prior to December 29, 2020, and inconsistent findings. The claim for gastritis/GERD and diverticulosis was granted a 30 percent rating, but the Board found no entitlement to a higher rating as the criteria for severe impairment were not met. The SMC claim for aid and attendance was remanded for the VA to obtain a completed form.

Rationale

Forward flexion limited to 60 degrees prior to August 11, 2015, and 50 degrees thereafter.; Pain and functional impairment noted, but not meeting criteria for higher ratings.; Bed rest was not prescribed by a physician, a requirement for higher ratings under DC 5243.

Service Branch

ARMY

Special Benefit

SMC - AID & ATTENDANCE

Docket No.

10-19 394

Full Decision Text

Citation Nr: 22017839
Decision Date: 03/26/22 Archive Date: 03/26/22

DOCKET NO. 10-19 394
DATE: March 26, 2022

ORDER

Entitlement to an initial rating of 20 percent, and no higher, for degenerative disc disease of the lumbar spine is granted.

Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve prior to August 11, 2015, and in excess of 20 percent thereafter, is denied.

Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve prior to August 11, 2015, is denied.

Entitlement to an initial rating of 20 percent, and no higher, for right lower extremity radiculopathy of the sciatic nerve, effective August 11, 2015, is granted.

Entitlement to a separate compensable rating for left lower extremity radiculopathy of the femoral nerve prior to December 29, 2020, and a rating in excess of 20 percent thereafter, is denied.

Entitlement to a separate compensable rating for right lower extremity radiculopathy of the femoral nerve prior to December 29, 2020, and a rating in excess of 20 percent thereafter, is denied.

Entitlement to an initial rating in excess of 30 percent for gastritis/gastroesophageal reflux disease (GERD) and diverticulosis is denied.

REMANDED

Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person is remanded.

FINDINGS OF FACT

1. Throughout the appeal period, the appellant's service-connected degenerative disc disease of the lumbar spine more nearly approximated limitation of forward flexion of the thoracolumbar spine to greater than 30 degrees but less than 60 degrees, with no evidence of incapacitating episodes requiring prescribed bedrest.

2. Prior to August 11, 2015, the appellant's left lower extremity radiculopathy of the sciatic nerve was manifested by, at worst, mild incomplete paralysis. Since August 11, 2015, such has been manifested by, at worst, moderate incomplete paralysis.

3. Prior to August 11, 2015, the appellant's right lower extremity radiculopathy of the sciatic nerve was manifested by, at worst, mild incomplete paralysis.

4. Since August 11, 2015, the appellant's right lower extremity radiculopathy of the sciatic nerve has been manifested by, at worst, moderate incomplete paralysis.

5. Prior to December 29, 2020, there was no femoral nerve involvement in the appellant's left lower extremity radiculopathy. Since December 29, 2020, the appellant's left lower extremity radiculopathy of the femoral nerve has been manifested by, at worst, moderate incomplete paralysis.

6. Prior to December 29, 2020, there was no femoral nerve involvement in the appellant's right lower extremity radiculopathy. Since December 29, 2020, the appellant's right lower extremity radiculopathy of the femoral nerve has been manifested by, at worst, moderate incomplete paralysis.

7. Throughout the period on appeal, the appellant's service-connected gastritis/GERD and diverticulosis more closely reflects disability tantamount to persistently recurrent epigastric distress with symptoms of dysphagia, heartburn, regurgitation, nausea, vomiting, and bloody tarry stool productive of considerable impairment of health.

CONCLUSIONS OF LAW

1. The criteria for entitlement to an initial rating of 20 percent, and no higher, for service-connected degenerative disc disease of the lumbar spine have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, DC 5242.

2. The criteria for entitlement to an initial compensable rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve prior to August 11, 2015, and in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.

3. The criteria for entitlement to an initial compensable rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve prior to August 11, 2015, have not been met. 38 U.S.C. §§
DC 5242.

4. The criteria for entitlement to an initial rating of 20 percent, and no higher, for right lower extremity radiculopathy of the sciatic nerve effective August 11, 2015, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8520.

5. The criteria for entitlement to a separate compensable rating for left lower extremity radiculopathy of the femoral nerve prior to December 29, 2020, and a rating in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8526.

6. The criteria for entitlement to a separate compensable rating for right lower extremity radiculopathy of the femoral nerve prior to December 29, 2020, and a rating in excess of 20 percent thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, DC 8526.

7. The criteria for entitlement to an initial rating in excess of 30 percent for gastritis/GERD and diverticulosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.113, 4.114, DC 7399-7346.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The appellant served on active duty in the U.S. Army from September 1986 to October 1990 and November 1990 to May 1991. She had additional service in the Army National Guard and performed a period of active duty for training (ACDUTRA) from December 1991 to April 1992.

This matter comes before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, awarded entitlement to service connection for degenerative disc disease of the lumbar spine, left lower extremity radiculopathy of the sciatic nerve, and right lower extremity radiculopathy of the sciatic nerve, and assigned initial 10 percent ratings for each, effective October 10, 2007. Entitlement to service connection for gastritis/GERD and diverticulosis was also granted, and an initial noncompensable rating, effective October 10, 2007, was assigned.

The issue of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person was added by the Board in September 2020, as part and parcel of the initial increased rating claim for degenerative disc disease of the lumbar spine.

The initial rating for gastritis/GERD and diverticulosis was increased to 30 percent, effective October 10, 2007, in an April 2010 rating decision. Although a higher rating was granted, the issue remains in appellate status, as the maximum schedular rating was not assigned for the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The initial rating for lumbar degenerative disc disease was increased to 20 percent, effective August 11, 2015, in an August 2015 rating decision. Id. The initial rating for left lower extremity radiculopathy of the sciatic nerve was increased to 20 percent, effective August 11, 2015, in a December 2015 rating decision. Id.

The Board most recently remanded the matter in September 2020.

In August 2021, the RO, in pertinent part, awarded entitlement to a separate 20 percent rating for left
the entire period on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993).

The Board most recently remanded the matter in September 2020.

In August 2021, the RO, in pertinent part, awarded entitlement to a separate 20 percent rating for left lower extremity radiculopathy of the femoral nerve, effective December 29, 2020, and a separate 20 percent rating for right lower extremity radiculopathy of the femoral nerve, effective December 29, 2020. The RO also increased the initial rating for right lower extremity radiculopathy of the sciatic nerve to 20 percent, effective December 29, 2020. Id.

A Supplemental Statement of the Case (SSOC) was most recently issued in November 2021.

The appellant testified at a May 2011 Board hearing. A transcript of the hearing is of record. In March 2018, the appellant was notified of her right to request another Board hearing on the grounds that the Veterans Law Judge (VLJ) who conducted the May 2011 hearing is no longer employed by the Board. The appellant did not request another hearing, and the case has been assigned to the undersigned.

Finally, the Board observes that, in October 2021, the appellant submitted a VA Form 20-0995, Decision Review Request Supplemental Claim, following the issuance of an October 2021 SSOC, but before the November 2021 SSOC. The issue of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person was addressed in both. Although she did not check off the opt-in from SSOC box or identify the date of decision, the appellant listed "aid and attendance" on the VA Form 20-0995. In March 2022, the RO informed the appellant that no action would be taken on the VA Form 20-0995 because the appellant did not check off the opt-in from SSOC box or identify the date of decision. Rather, the issue of entitlement to special monthly compensation based on the need for the regular aid and attendance of another person would stay in the legacy appeals system. As such, the issue is addressed in the decision herein.

Initial Ratings

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if that disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. § 4.3.

In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).

Where a claimant appeals the initial rating assigned following an award of service connection, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.

Lumbar Spine and Radiculopathy Evidence

The appellant was afforded a VA examination in December 2008. The claims file was reviewed. The appellant complained of low back spasms, and dull to sharp pain, 7/10,
initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous. . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id.

Lumbar Spine and Radiculopathy Evidence

The appellant was afforded a VA examination in December 2008. The claims file was reviewed. The appellant complained of low back spasms, and dull to sharp pain, 7/10, occurring every day. This would radiate down the bilateral legs with movement, and with changing from sitting to standing, or vice versa. She can walk up to a quarter of a mile without a cane but must use a cane after that. She did not use braces, crutches, or wheelchair. The appellant endorsed two situations where she was bedridden and had to go to the doctor, where she was treated with Motrin and bedrest for two to three days in the last year. There was no reduction in range of motion or function with pain. She denied any bowel or bladder incontinence. She also denied numbness or weakness of the lower extremities. She denied dizziness, falling, fever, or malaise. There was no effect on activities of daily living, or sedentary occupational duties. She had been retired from the military and post office since 2000.

Lumbar lordosis was observed and there was lumbar vertebra discomfort on palpation. Paravertebral muscles are tense at the lumbar region. Range of motion testing revealed forward flexion to 90 degrees, extension to 20 degrees, and bilateral flexion and rotation to 30 degrees each. There was mild discomfort at the end of stiffness with forward flexion. Gait was normal, heel-to-toe walk was normal, and no ambulatory assistance was needed. Transfer from chair to examination table as adequate without any difficulty or assistance. Sensation to monofilament was intact bilaterally. Reflexes were normal bilaterally. Vibration sensation was decreased bilaterally. Balance and coordination were intact. There were no effects on activities of daily living or sedentary occupational duties.

In January 2009, the appellant reported that her forward flexion was more limited than had been reported by the December 2008 examiner.

An April 2010 VA pain management note states that the appellant reported pain radiating from the back to the bilateral lower extremities, moreso on the left side, but 8/10 without medication. She also endorsed weakness. Ibuprofen provided no relief, but Vicodin provided some relief. Physical examination revealed weakness and decreased sensation bilaterally, but moreso on the left side. There was tenderness to palpation over the lumbosacral spine and both sacroiliac joints. Range of motion was limited but measurements in degrees were not reported.

An August 2010 clinical note from Jefferson Medical Industrial Clinic states that lumbar spine range of motion was tested, revealing forward flexion to 60 degrees, extension to 10 degrees, and bilateral lateral flexion to 20 degrees. There were no spasms, but there was mild sacroiliac joint tenderness. Muscle strength, sensation, and deep tendon reflexes were normal bilaterally.

The appellant was afforded a VA examination in September 2010. The claims file was reviewed. The appellant reported that her low back pain has continued since her December 2008 examination. Her daily back pain was 9/10. Pain was worse with frequent bending, prolonged standing, sitting more than one half hour, walking more than 14 mile, handling weights greater than 10 pounds, during cold weather, and during rainy season. This pain radiates to the bilateral lower extremities, more severe on the left side. She denies any paresthesias, weakness, or paralysis. She had used a cane for her back problems since 2005. There was no restriction of daily, routine, simple activities. Flare-ups were endorsed in the form of increased low back pain and she must rest in bed and take more medications on an average of twice a week. These instances generally last about a day. She denied any other major incapacitating episodes requiring prolonged bedrest or hospitalization. Range of motion resting revealed forward flexion to 80 degrees, extension to 20 degrees, and bilateral later flexion and rotation to 25 degrees. There were no spasms.
lower extremities, more severe on the left side. She denies any paresthesias, weakness, or paralysis. She had used a cane for her back problems since 2005. There was no restriction of daily, routine, simple activities. Flare-ups were endorsed in the form of increased low back pain and she must rest in bed and take more medications on an average of twice a week. These instances generally last about a day. She denied any other major incapacitating episodes requiring prolonged bedrest or hospitalization. Range of motion resting revealed forward flexion to 80 degrees, extension to 20 degrees, and bilateral later flexion and rotation to 25 degrees. There were no spasms. Repetitive movements were normal and not painful. Coordination was normal. There was no atrophy and muscle strength was normal. Sensation was intact, as were deep tendon reflexes bilaterally. Gait was notable for minimal limping with the left lower extremity. The appellant did not bring her cane to the appointment. There were no objective clinical neurological signs upon current examination, although there were reports of subjective radicular symptoms.

Medical records from S.R., D.O., reveal that the appellant was seen for complaints of acute back pain, including in February 2011. Her medications had recently been adjusted. Examination revealed tenderness along the lumbosacral spine and gluteal regions, which was somewhat out of proportion to examination. The appellant was very jumpy just on light touching. Medications were adjusted again. A June 2010 clinical note states that the appellant reported neck pain and that she had been lying in her bed early before driving her grandchildren to school.

During her May 2011 hearing before a VLJ, the appellant testified that she was limited in being able to perform stooping, bending, prolonged walking, or prolonged sitting. She can only sit for about 20 minutes. Walking is very painful and she must take medication in order to walk. She also limps. She can walk from the bedroom to the kitchen but then her back is tired and painful and she must sit down if she has not taken medication. She explained that some days she was tired of taking medication so she would just stay in bed. The appellant also reported that she has to climb the stairs on all four limbs, like a dog. Difficulty sleeping and driving was also endorsed. Numbness and tingling of the feet was reported. The appellant reported that she had been prescribed bed rest by a physician, Dr. R., her private primary care physician.

The appellant was afforded a VA examination in April 2012. The claims file was reviewed. With respect to her back, the appellant reported that her pain was not getting any better. The pain was constant in the thoracic and lumbar regions down to the buttocks. Pain will also go down the bilateral legs to the feet. Legs were achy with occasionally sharp shooting pain. Such is present daily about 40 percent of the day, but worse with cold and rainy weather, sitting greater than 10 minutes, and walking. The most recent injection to the back was in 2007. She also reported that she had been "leaking stool" and felt urges. Flare-ups were reported and described in the form of constant back pain with flares into the legs, which are caused by sitting, walking, and standing.

Range of motion testing revealed forward flexion to 90 degrees, extension to 30 degrees, and bilateral lateral flexion and rotation to 30 degrees each. There was no additional limitation following repetitive use testing. Functional loss or impairment was present in the form of incoordination, impaired ability to execute skilled movements smoothly, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight-bearing. There was general lumbar and thoracic paraspinal tenderness to palpation, but no guarding or muscle spasm. Muscle strength was full and there was no atrophy. Reflex and sensory examinations were normal bilaterally and straight leg raise was negative bilaterally. Regarding radicular symptoms, there was mild intermittent pain bilaterally. The sciatic nerve was involved bilaterally and the examiner described the severity of the radiculopathy as mild bilaterally. There were no other neurologic abnormalities or findings such as bowel or bladder problems. The appellant did not have intervertebral disc syndrome (IVDS) and had not experienced any incapacitating episodes which required prescribed bed rest and treatment by a physician. The appellant made constant use of a cane due to her back disability. Regarding functional impact, the appellant was limited in sitting, standing, and stooping. Her back
Reflex and sensory examinations were normal bilaterally and straight leg raise was negative bilaterally. Regarding radicular symptoms, there was mild intermittent pain bilaterally. The sciatic nerve was involved bilaterally and the examiner described the severity of the radiculopathy as mild bilaterally. There were no other neurologic abnormalities or findings such as bowel or bladder problems. The appellant did not have intervertebral disc syndrome (IVDS) and had not experienced any incapacitating episodes which required prescribed bed rest and treatment by a physician. The appellant made constant use of a cane due to her back disability. Regarding functional impact, the appellant was limited in sitting, standing, and stooping. Her back disability also stops her from walking. The VA examiner also opined that the appellant's subjective reports of pain and objective examination findings were at least as likely as not consistent with the objectively documented lumbosacral disease pathology.

A January 2013 VA neurosurgery consult states that the appellant's main complaints were back pain and right lower extremity pain for the last four months, described as severe. No weakness was reported, but she had been using a walker for the past two years.

A March 2015 letter from Dr. K., a VA physician, states that Dr. K. had been the appellant's primary care provider since July 2012 and that the appellant was unable to sit for long periods of time due to arthritis.

The appellant was afforded a VA peripheral nerves examination on August 11, 2015. The claims file was reviewed. Symptoms included mild intermittent pain, paresthesias and/or dysesthesias, and numbness in the right lower extremity, and moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the left. However, in the August 2015 back examination report, the symptoms of the right lower extremity were described as moderate, while those of the left were described as mild. Muscle strength was full bilaterally and there was no atrophy. Right and left ankle reflexes were hypoactive, but all other reflexes were normal. Sensory examination was normal bilaterally. There were no trophic changes. Gait was stooped, as a result of the low back disability. The examiner opined that the appellant experienced mild incomplete paralysis of the right sciatic nerve and moderate incomplete paralysis of the left. However, in the August 2015 back examination report, the right lower extremity radiculopathy of the sciatic nerve was described as moderate, while that of the left was described as mild. Amputation with prosthesis would not equally serve the appellant. Functional impact was difficulty standing or walking for more than a few minutes.

The appellant was afforded a VA back examination on August 11, 2015. The claims file was reviewed. The appellant reported worsening pain since her last examination in 2012. The pain was constant, which increased with certain activities such as prolonged sitting or standing for more than a few minutes, bending, twisting, turning, or lifting movements, or any type of lifting or carrying. If she walks or stands greater than 10 minutes, the pain will be aggravated. Pain also increased with cold weather. The pain radiated intermittently to the bilateral lower extremities, moreso on the left. She endorsed numbness and tingling of the bilateral lower extremities, but denied any weakness or paresthesias. There were no attributable sphincter disturbances. Flare-ups occurred three to four times per month, and lasted one to two days. There had been no surgery, injections, or physical therapy since the last examination, although she had been to pain management and underwent yoga and acupuncture therapy. Functional impairment was present in the form of difficulty performing daily chores at home.

Range of motion testing revealed forward flexion to 70 degrees, extension to 20 degrees, bilateral lateral flexion to 20 degrees each, and bilateral lateral rotation to 15 degrees each. Range of motion itself contributed to a functional loss as she was unable to bend or twist completely. Pain caused functional loss. There was no evidence of pain with weight-bearing and there was no additional limitation of motion following repetitive use testing. Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. Pain and fatigue significantly limited functional ability with flare-ups. Described in terms of range of motion, the appellant's limitations during flare-ups and with repeated use over time resulted in flexion limited to 50 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation all limited to 15 degrees each. There was no guarding or muscle
. Range of motion itself contributed to a functional loss as she was unable to bend or twist completely. Pain caused functional loss. There was no evidence of pain with weight-bearing and there was no additional limitation of motion following repetitive use testing. Pain, fatigue, weakness, lack of endurance, and incoordination significantly limited functional ability with repeated use over a period of time. Pain and fatigue significantly limited functional ability with flare-ups. Described in terms of range of motion, the appellant's limitations during flare-ups and with repeated use over time resulted in flexion limited to 50 degrees, and extension, bilateral lateral flexion, and bilateral lateral rotation all limited to 15 degrees each. There was no guarding or muscle spasm. Additional factors contributing to disability included instability of station, disturbance of locomotion, interference with sitting, and interference with standing. There was no ankylosis. The appellant did not have IVDS. Constant use of a cane was used; and the appellant made use of a wheelchair for outside visits. There were significant effects on the appellant's ability to perform occupational tasks due to decreased mobility, difficulty lifting and carrying, and pain.

A back disability benefits questionnaire completed by a private clinician, A.K., D.O., in June 2016 is of record. Flare-ups were described as the appellant was unable to sit without difficulty, unable to stand without her walker, and unable to stand straight. Range of motion testing was not performed. No explanation was provided as to why not. There was no guarding or muscle spasm. Gait and spinal contour were normal. Contributing factors of disability included excess fatigability, pain on movement, deformity, atrophy of disuse, instability of station, and interference with sitting and standing. Dr. A.K. indicated that it was not feasible to estimate additional limitation in terms of range of motion but provided no explanation. Muscle strength was full bilaterally and there was no atrophy. Reflexes were normal bilaterally. Vibration sensation was decreased on the right side but normal on the left. Straight leg raise was positive bilaterally. The appellant was noted to have moderate constant pain, intermittent pain, and dull pain bilaterally. She had moderate paresthesias and/or dysesthesias on the right side and none on the left. There was moderate numbness on the right side and mild on the left. Dr. A.K. opined that the appellant experienced moderate radiculopathy of the right femoral and sciatic nerves, and that the appellant had mild radiculopathy of the left lower extremity, but did not identify which nerve root was affected. There were no other neurologic abnormalities and the appellant did not have IVDS. Assistive devices included occasional and constant use of wheelchair, walker, and scooter, and occasional use of a brace and cane. Regarding functional impact, the appellant was unable to walk or stand more than 10 minutes at a time, unable to sit for more than 20 minutes at a time, and unable to lift, push, or pull greater than 10 pounds.

A September 2016 clinical note from Rehabilitation Physicians, P.C., states that the appellant had a risk of fall and possible pathology regarding a sacrococcygeal disorder, which resulted in a medical necessity for a four-wheeled walker with seat. There was to be a trial of nerve blocks in the sacroiliac joints. It was noted that there was functional active and passive range of motion in all directions, but measurements were not provided.

A February 2019 VA Counseling Record Feasibility Determination states that the appellant took the LSAT and wanted to go to law school. However, over the past 12 months, her ability to ambulate had progressively worsened and the appellant was no longer able to walk independently. She was very dependent on her rollator walker. She could only walk about 50 feet with her walker, and could not stand or sit for more than 20 minutes.

A December 2019 VA medical opinion states that the only service-connected disability affecting the appellant's functional ability was her back disability with radiculopathy. The appellant reported that her hypertension and GERD were controlled.

The appellant was afforded a VA back examination in December 2019. The claims file was reviewed. It was noted that the appellant had lung cancer with a mass surgically removed in September 2019. No adjuvant treatment was needed as nodes were negative. She used oxygen as needed, which was currently most of the time, but she was weaning off of it. Current back symptoms included constant pain which is worsened with walking and standing. She can only stand for a few minutes. The appellant sleeps in a recliner and experiences intermittent radiation of pain into her legs and feet, unprovoked and unpredictable. The radiation seems worse at night. Flexion lessens her pain. Reaching with her arms also increases back pain. The appellant cannot lift more than 10 pounds without pain and she must use her walker at all times. The appellant was independent in dressing and toileting and she drives. She receives assistance with shower and cooking. She walks outside with her home care provider. She can walk with her walker to the store if someone goes with her. Flare-ups were described as intermittent, unpredictable increases in pain which last a few hours. She gets in bed during these flares.

Range of motion testing revealed flexion to 60 degrees, extension to zero degrees, and bilateral lateral flexion and rotation to 20 degrees each. Range of motion itself did not contribute to a functional loss. The examiner stated that because flexion is the position where less pressure is being applied to the nerves, rating by flexion would be inappropriate because extension is what causes pain. There was pain with weight bearing. Repetitive-use testing was not performed because the appellant was unsteady standing unaided. Pain, weakness, and lack of endurance would cause additional functional loss with repeated use over time. Range of motion would not change; rather, the appellant would need to stop and rest. Pain would significantly limit functional ability with flare-ups. The examiner stated that range of motion during flare-ups was not at issue because the appellant gets right in bed due to pain during flare-ups. There was no guarding or muscle spasm. There were no additional factors contributing to disability. Muscle strength was full bilaterally and there was no atrophy. Deep tendon reflexes and sensation were normal bilaterally. Straight leg raise was negative bilaterally. The appellant experienced moderate paresthesias and/or dysesthesias bilaterally but no other radicular symptoms. There was involvement of the sciatic nerve bilaterally. The examiner opined that the appellant's radiculopathy was mild bilaterally. There was no ankylosis and the appellant did not have IVDS. The appellant made constant use of a walker due to her back disability. The appellant walks hunched over, but reported that she was working on this in physical therapy. It was noted that pain with non-weightbearing and passive range of motion testing would be inappropriate due to pain and difficulty with standing.

The appellant was afforded a contracted back examination on December 29, 2020. The claims file was reviewed. The appellant endorsed back pain, stiffness, decreased range of motion, numbness and pain in the legs, and spasms. Flare-ups were endorsed in the form of increased pain and stiffness, which result in her needing to stay in bed for days. Functional loss was endorsed in the form of an inability to stand without a walker, instability to walk distances, inability to bend down, and the need to frequently adjust or change positions.

Range of motion testing revealed forward flexion to 70 degrees and extension, bilateral lateral flexion, and bilateral lateral rotation to 20 degrees each. Range of motion itself contributes to functional loss as the appellant is unable to bend over. There was pain on motion and with weight-bearing. There was no additional limitation of motion following repetitive-use testing. Following repeated use over time and with flare-ups, pain, fatigue, and lack of endurance would further limit range of motion to 60 degrees of flexion and 15 degrees of extension, bilateral lateral flexion, and bilateral lateral rotation each. There was muscle spasm which resulted in abnormal gait or abnormal spinal contour. She was unable to move during a spasm. There was no guarding. Additional factors contributing to disability included disturbance of locomotion, and interference with sitting and standing. Due to the severity of pain, spasms, and radiating pain, the appellant could not walk without a
There was pain on motion and with weight-bearing. There was no additional limitation of motion following repetitive-use testing. Following repeated use over time and with flare-ups, pain, fatigue, and lack of endurance would further limit range of motion to 60 degrees of flexion and 15 degrees of extension, bilateral lateral flexion, and bilateral lateral rotation each. There was muscle spasm which resulted in abnormal gait or abnormal spinal contour. She was unable to move during a spasm. There was no guarding. Additional factors contributing to disability included disturbance of locomotion, and interference with sitting and standing. Due to the severity of pain, spasms, and radiating pain, the appellant could not walk without a walker or wheelchair, needs assistance with most activities of daily living, and cannot sit, stand, or walk for periods of time. Muscle strength and reflexes were normal bilaterally. Sensory examination was decreased throughout the bilateral lower extremities. Straight leg raise was positive bilaterally. The appellant experienced mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness bilaterally. There was involvement of the femoral and sciatic nerves bilaterally. The examiner opined that the appellant's radiculopathy was mild bilaterally. There was no ankylosis and there were no other neurologic abnormalities. The appellant did not have IVDS. The appellant made occasional use of a wheelchair and constant use of a walker. Regarding functional impairment, the appellant had ongoing pain, spasms, radicular symptoms resulting in the need to use a walker and the need for help with many activities of daily living. Additionally, due to her symptoms, she could not function in an occupational environment.

A medical opinion was obtained in December 2020. Following examination of the appellant and review of the claims file, the contracted clinician opined that the appellant needed assistance to dress, shower, and groom, as those tasks were extremely difficult due to the appellant's severe back and radicular symptoms. Additionally, she would need help with food preparation at times, as she was unable to stand for periods. Notably, due to the severity of her back disability, the appellant experienced excruciating symptoms which can be triggered by even minimal movement. She presented in a wheelchair for the instant examination as she was unable to walk from the waiting room to the exam room.

A September 2021 VA clinical note states that the appellant complained about her back brace being too stiff to drive in. A new, more comfortable, brace was ordered.

1. Entitlement to an initial rating in excess of 10 percent for degenerative disc disease of the lumbar spine prior to August 11, 2015, and in excess of 20 percent thereafter.

For the reasons that follow, the Board finds that the evidence is in relative equipoise as to whether an initial rating of 20 percent, and no higher for degenerative disc disease of the lumbar spine is warranted for the entire period on appeal.

Under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. 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 is not greater than 120 degrees; or, muscle spasms 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 when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is
to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note 2. Range of motion measurement is rounded to the nearest five degrees. Id. Note 4.

For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note 5.

Associated objective neurologic abnormalities are evaluated separately, under an appropriate diagnostic code. Id. Note 1.

Recently, the U.S. Court of Appeals for Veterans Claims (Court) held that the requirement of ankylosis in the General Rating Formula for Injuries and Diseases of the Spine can be met with evidence of the functional equivalent of ankylosis (i.e. functional immobility of the joint) during a flare-up. Chavis v. McDonough, 34 Vet. App. 1 (2021).

In cases where rating criteria are amended during the course of the appeal, the Board must consider both the former and current schedular criteria. Should an increased rating be warranted under new, revised criteria, the award may not be made effective before the effective date of change. See Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003).

While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, such are not relevant to the claim being adjudicated at this time. Indeed, regarding the appellant's back disability, although he was diagnosed with intervertebral disc syndrome (IVDS) and the diagnostic code for such (5243) was changed, this change is not relevant to instant matter, as detailed below, the appellant was not prescribed bed rest by a physician during the period on appeal. All compensable ratings under DC 5243 under both the old and new rating criteria require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note 1.

Regarding the period prior to August 11, 2015, although the appellant's forward flexion was measured as full (90 degrees) in December 2008 and April 2012, and 80 degrees in September 2010, forward flexion was limited to 60 degrees in August 2010.

The appellant has competently and credibly reported symptoms of pain and limited motion, and functional impairment in the form of being unable to stay in one position for long periods, fatigability, and limited ability to lift and carry objects.

The Board finds that the functional impairment of the appellant's degenerative disc disease of the lumbar spine more nearly approximated the severity contemplated by a 20 percent rating for the period prior to August 11, 2015. As such, an initial rating of 20 percent is warranted for this period.

However, at no point during the period on appeal was forward flexion
and 80 degrees in September 2010, forward flexion was limited to 60 degrees in August 2010.

However, at no point during the period on appeal was forward flexion on the thoracolumbar spine limited to 30 degrees or less, or ankylosis of the thoracolumbar spine, or functional impairment more nearly approximating such, even during flare-ups or following repeated use over time. It is not contended otherwise. As such, an initial rating in excess of 20 percent is not warranted for any portion of the period on appeal.

Indeed, the appellant retained range of motion of the thoracolumbar spine throughout the period on appeal. At worst, forward flexion was limited to 50 degrees during flare-ups and following repeated use over time. See August 11, 2015, VA examination report.

The appellant's additional pain, limited motion, and limitation of functional ability during flare-ups and following repeated use over time have been contemplated in the initial 20 percent rating for the entire period on appeal.

The Board additionally notes that, as indicated above, Note 1 of the General Rating Formula for Disease and Injuries of the Spine instructs to evaluate any associated objective neurologic abnormalities separately, under an appropriate Diagnostic Code. To this end, as will be detailed below, the appellant's bilateral lower extremity radiculopathy has been assigned separate compensable ratings. She has not asserted, nor does the record indicate, that she suffers from any additional neurological impairment of her service-connected degenerative disc disease of the lumbar spine.

Although the appellant testified during the May 2011 Board hearing that she had been prescribed bed rest for her low back disability by her private primary care provider, S.R., D.O., the Board has thoroughly reviewed the medical records from Dr. S.R. and observes that at no time was bed rest prescribed.

While the Board does not dispute the appellant's genuine belief that she was indeed prescribed bed rest, the U.S. Court of Appeals for Veterans Claims (Court) has held that a claimant's lay statements relating what a medical professional told him or her, filtered as they are through a layperson's sensibilities, are too attenuated and inherently unreliable to constitute competent evidence to support a claim. See Warren v. Brown, 6 Vet. App. 4 (1993).

To the extent that the appellant self-treated her low back disability with bed rest, she is certainly competent to report that she did so. However, in order to warrant a higher rating under DC 5243 under the old or new rating criteria, bed rest must have been prescribed by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note 1.

Although it is contended that the appellant experiences incapacitating episodes at least one day a week, which would total greater than six weeks in a year, see e.g. December 2021 informal hearing presentation, again, a higher initial rating is not warranted under the old or new versions of DC 5243 because, crucially, the appellant was not prescribed bed rest by a physician during the period on appeal. All compensable ratings under DC 5243 under both the old and new rating criteria require bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, DC 5243, Note 1. While the appellant's representative references the September 2010 VA examination report in support of this contention, as discussed above, this report only discusses the appellant's reports of self-treating her back disability with bed rest. It does not state that she had been prescribed bed rest. Even assuming arguendo that the appellant's reports during the September 2010 examination were that she had been prescribed bed rest, mere transcription of lay history as reported by a veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Warren, supra.

As the evidence is not in approximate balance and is persuasively against the appellant's contentions, the benefit of the
only discusses the appellant's reports of self-treating her back disability with bed rest. It does not state that she had been prescribed bed rest. Even assuming arguendo that the appellant's reports during the September 2010 examination were that she had been prescribed bed rest, mere transcription of lay history as reported by a veteran, unenhanced by any additional comment by that examiner, does not become competent medical evidence merely because the transcriber is a medical professional. See LeShore v. Brown, 8 Vet. App. 406, 409 (1995); see also Warren, supra.

As the evidence is not in approximate balance and is persuasively against the appellant's contentions, the benefit of the doubt rule is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021).

2. Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve prior to August 11, 2015, and in excess of 20 percent thereafter.

3. Entitlement to an initial rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve prior to December 29, 2020, and a rating in excess of 20 percent thereafter.

4. Entitlement to a separate compensable rating for left lower extremity radiculopathy of the femoral nerve prior to December 29, 2020, and a rating in excess of 20 percent thereafter.

5. Entitlement to a separate compensable rating for right lower extremity radiculopathy of the femoral nerve prior to December 29, 2020, and a rating in excess of 20 percent thereafter.

For the reasons that follow, the Board finds that: (a) prior to August 11, 2015, the appellant's radiculopathy of the right and left lower extremities involved only the sciatic nerve and was no more than mild in severity bilaterally; (b) from August 11, 2015, and prior to December 29, 2020, the appellant's radiculopathy of the right and left lower extremities involved only the sciatic nerve and was no more than moderate in severity bilaterally; and (c) since December 29, 2020, the appellant's radiculopathy of the right and left lower extremities involved both the sciatic and femoral nerves, and that the involvement of the sciatic nerve was no more than moderate in severity bilaterally, and that the involvement of the femoral nerve was no more than moderate in severity bilaterally.

Section 4.124a provides a schedule of ratings for diseases of the peripheral nerves. There are five nerve branches in the lower extremities. Each branch has its separate and distinct functions. The sciatic branch includes the sciatic nerve, external popliteal nerve (common peroneal), musculocutaneous (superficial peroneal), anterior tibial nerve (deep peroneal), internal popliteal (tibial), and posterior tibial nerves. The femoral branch includes the anterior crural (femoral) and the internal saphenous nerves. The obturator, external cutaneous thigh, and illio-inguinal nerve branches only include one nerve each.

The appellant's right and left lower extremity radiculopathy of the sciatic nerve is evaluated under DC 8520, and right and left lower extremity radiculopathy of the femoral nerve is rated under DC 8526.

DC 8520 governs paralysis of the sciatic nerve. A 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy. A maximum schedular rating of 80 percent rating is warranted for complete paralysis; 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. 38 C.F.R. § 4.124a, DC 8520.

DC 8526 governs paralysis of the anterior crural (femoral) nerve. Under those criteria, a 10 percent rating is assigned for mild incomplete paralysis; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 30 percent rating is assigned when there is severe incomplete paralysis; and a maximum 40 percent rating is assigned when there is evidence
with marked muscular atrophy. A maximum schedular rating of 80 percent rating is warranted for complete paralysis; 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. 38 C.F.R. § 4.124a, DC 8520.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration and that, 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; see also 38 C.F.R. § 4.123 (indicating neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated with a maximum equal to severe, incomplete paralysis); 38 C.F.R. § 4.124 (indicating neuralgia characterized by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated with a maximum equal to moderate incomplete paralysis).

Words such as "severe," "moderately 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. See 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 a request for an increased disability rating. 38 C.F.R. §§ 4.2, 4.6. The Board observes in passing that "mild" is defined as "not very severe." See WEBSTER'S NEW WORLD DICTIONARY, SECOND COLLEGE EDITION (1999), 694. "Moderate" is defined as "of average or medium quantity, quality, or extent." Id. at 704. "Severe" is generally defined as "extremely intense." Id. at 1012; see Cantrell v. Shulkin, 28 Vet. App. 382, 392 (2017) ("VA's failure to define [a relevant term] or to otherwise specify the factors that adjudicators should consider in making that determination frustrates judicial review of that issue.").

Applying the facts to the criteria set forth above, prior to August 11, 2015, the appellant's bilateral lower extremity radiculopathy was manifested by, at worst, radiating pain and decreased vibration sensation. There was not numbness or weakness, sensation to monofilament was normal, reflexes were normal, and the appellant herself denied paresthesias, weakness, or paralysis. While the appellant is certainly competent to report that her left lower extremity radiating pain was more painful than that of the right, the Board finds that the appellant's right and left lower extremity sciatic nerve radiculopathy was manifested by symptoms more nearly approximating mild incomplete paralysis for the entire period prior to August 11, 2015. As such, initial ratings in excess of 10 percent are not warranted during this period.

Since August 11, 2015, the appellant's bilateral lower extremity radiculopathy was manifested by, at worst, pain, paresthesias and/or dysesthesias, numbness, decreased vibration sensation, and positive straight leg raise.

There was no reduction in muscle strength and there was no atrophy. Although right and left ankle reflexes were hypoactive in August 2015, all reflexes were otherwise normal bilaterally throughout the period on appeal. Additionally, sensation was normal bilaterally and there were no trophic changes. As such, the Board finds that the appellant's right and left lower extremity sciatic nerve radiculopathy was manifested by symptoms more nearly approximating moderate incomplete paralysis since August 11, 2015. Initial ratings in excess of 20 percent are not warranted during this period
pain, paresthesias and/or dysesthesias, numbness, decreased vibration sensation, and positive straight leg raise.

Regarding the apparent discrepancies in the August 11, 2015 VA back and peripheral nerves examination reports with respect to which lower extremity's symptoms were more severe, the Board observes that, effective August 11, 2015, the appellant is now in receipt of 20 percent ratings under DC 8520 for both the right and left lower extremities, which is the rating for moderate, incomplete paralysis. See August 26, 2015, VA Form 21-6789 (observing that the back examination report described the left sciatic nerve as moderate and the right as mild, while the peripheral nerves examination report described the left sciatic nerve as mild and the right as moderate).

With respect to the femoral nerve, there was not any involvement in the right or left lower extremity prior to December 29, 2020. As such, entitlement to separate compensable ratings prior to that date is not warranted.

Although the June 2016 back DBQ completed by Dr. A.K. states that there was moderate radiculopathy of both the right femoral and sciatic nerves, there is no other competent evidence of right femoral nerve involvement until December 29, 2020. Rather, there is competent evidence against the presence of right femoral nerve involvement since that time, and prior to December 29, 2020, in the form of the December 2019 VA back examination report. Indeed, the December 2019 VA examiner determined that there was only sciatic nerve involvement bilaterally. The competent evidence of record establishes that there was no femoral nerve involvement prior to June 2016 and it is not contended otherwise.

The Board affords minimal probative weight to the June 2016 back DBQ regarding the presence of right femoral nerve involvement because it is inconsistent with the remaining competent evidence of record, which is negative for femoral nerve involvement until December 29, 2020. Additionally, the Board also notes that, although Dr. A.K. reported that there was bilateral lower extremity radiculopathy, the affected nerve root(s) for the left lower extremity was not identified.

Further, even assuming arguendo that Dr. A.K. was correct that there was femoral nerve involvement at the time of the June 2016 DBQ completion, to assign a separate compensable rating for this discrete, limited period would violate the rule regarding stabilization of ratings. 38 C.F.R. § 3.344. In any event, all of the appellant's lower extremity radicular symptomatology prior to December 29, 2020, has been attributed to the sciatic nerve and has been contemplated in the initial ratings of 10 percent prior to August 11, 2015, and 20 percent thereafter. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (Where it is not possible to distinguish the symptoms of a service-connected disability from non-service connected manifestations, all the manifestations will be considered part of the service-connected disability).

As the appellant did not experience any reduction in muscle strength, atrophy, or reflexes in either extremity, and sensation was only decreased, the Board finds that the femoral nerve involvement does not more nearly approximate severe incomplete paralysis or complete paralysis. Additionally, no clinician described such as greater than moderate. Rather, the December 29, 2020, examiner described the femoral nerve involvement as mild bilaterally.

Again, 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).

As the appellant did not experience severe symptoms, or complete paralysis, related to the obturator, external cutaneous nerve of thigh, or ilio-inguinal nerve, she is not entitled to a separate rating for any of these nerve branches under DCs 8528,
moderate. Rather, the December 29, 2020, examiner described the femoral nerve involvement as mild bilaterally.

6. Entitlement to an initial rating in excess of 30 percent for gastritis/GERD and diverticulosis.

For the reasons that follow, the Board finds that a rating in excess of 30 percent for gastritis/GERD and diverticulosis is not warranted for any portion of the period on appeal.

Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.2. The rating schedule does not provide a specific diagnostic code for GERD.

The appellant's gastritis/GERD and diverticulosis has been rated by analogy under DC 7399-7346. DC 7346 contemplates hiatal hernias. Under the diagnostic criteria, a 10 percent rating is assigned when there are two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is assignable for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114, DC 7346.

Dysphagia is defined as difficulty in swallowing. Dorland's Illustrated Medical Dictionary, 587 (31st ed. 2007). Pyrosis is defined as heartburn. Id. at 1587. Hematemesis is defined as the vomiting of blood. Id. at 842. Melena is defined as the passage of dark-colored feces stained with blood pigments or with altered blood. Id. at 1142.

Pursuant to DC 7346, for hiatal hernia, a 10 percent disability rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent evaluation is warranted for persistently recurring epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A 60 percent rating is warranted under DC 7346 for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. 38 C.F.R. § 4.114.

Disability ratings assigned under Diagnostic Codes 7301 to 7329 (inclusive), 7331, 7342, and 7345 to 7348 (inclusive) will not be combined with each other. Instead, a single disability rating will be assigned under the diagnostic code which reflects the predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114.

The criteria under DC 7346 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive and in a statutory provision meant that all the conditions listed in the provision must be met). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the
. Instead, a single disability rating will be assigned under the diagnostic code which reflects the predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114.

The criteria under DC 7346 are conjunctive, not disjunctive; thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (use of the conjunctive and in a statutory provision meant that all the conditions listed in the provision must be met). A single evaluation will be assigned under the predominant disability picture, with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. See 38 C.F.R. § 4.114.

The terms severe impairment of health and considerable impairment of health are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6.

For purposes of evaluating conditions in 38 C.F.R. § 4.114, the term substantial weight loss means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term minor weight loss means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112. Baseline weight means the average weight for the two-year-period preceding onset of the disease.

DC 7327 instructs to rate diverticulosis as irritable colon syndrome (DC 7319), peritoneal adhesions (DC 7301), or ulcerative colitis (DC 7323), depending on the predominant disability picture. 38 C.F.R. § 4.114, DC 7327.

Under DC 7301, a 0 percent rating is warranted for mild adhesions of peritoneum. A 10 percent rating is warranted for moderate adhesions with pulling pain on attempting work or aggravated by movements of the body, or occasional episodes of colic pain, nausea, constipation (perhaps alternating with diarrhea) or abdominal distension. A 30 percent rating is warranted for moderately severe adhesions with partial obstruction manifested by delayed motility of barium meal and less frequent and less prolonged episodes of pain. A 50 percent rating is warranted for severe adhesions with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. 38 C.F.R. § 4.114, DC 7301.

Under DC 7319, a 0 percent rating is warranted for mild symptoms manifested by disturbances of bowel function with occasional episodes of abdominal distress. A 10 percent rating is warranted for moderate symptoms manifested by frequent episodes of bowel disturbance with abdominal distress. A 30 percent rating is warranted for severe symptoms manifested by diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress. 38 C.F.R. § 4.114, DC 7319.

Under DC 7323, a 10 percent rating is warranted for moderate symptoms with infrequent exacerbations. A 30 percent rating is warranted for moderately severe symptoms with frequent exacerbations. A 60 percent rating is warranted for severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions. A 100 percent rating is warranted for pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. 38 C.F.R. § 4.114, DC 7323.

Evaluation of the same disability or the same manifestations of disability under multiple diagnoses (i.e., pyramiding) is to be avoided. 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." Brady v. Brown, 4 Vet. App. 203, 206 (1993).

The appellant was afforded a VA examination in December 2008. The claims file was reviewed. The appellant reported that she was diagnosed with diverticulosis in 1996 and had undergone a colonoscopy in the summer of 2008. She also reported a diagnosis of gastroesophageal reflux disease (GERD) and complained of problems with stomach, epigastric burning pain constantly. Omeprazole sometimes helps but she mostly still has constant burning pain. Chest burning was present once every two to three months. She denied hemoptysis, melena, lower abdominal pain, or constipation. The appellant was on a high-fiber diet and denied any nausea or vomiting. There was intermittent regurgitation of "soury stuff." It is worse with fatty and spicy food. She tries to eat a bland diet as much as possible. She denied any dysphagia, painful swallowing, hemoptysis, or melena. There was no rectal bleeding or injury to the abdomen. She denied any weight change. Rather, she had stayed around 185 pounds for the past year. Examination revealed epigastric tenderness without rebound or visible peristalsis. No hernias were noted. Rectal examination was deferred. There were no effects on activities of daily living or sedentary occupational duties.

In January 2009, the appellant reported that, despite ongoing use of Omeprazole, she continued to experience epigastric burning, episodes of regurgitation, particularly after eating spicy or fatty foods, high-fiber diet, and near-continuous constipation.

The appellant was afforded a VA examination in September 2010. The claims file was reviewed. The appellant complained of chronic heartburn daily since her December 2008 examination, despite taking Omeprazole. Heartburn is worse after eating spicy food or drinking caffeinated drinks or soft drinks. She also was taking antacids over the counter with a little improvement. She endorsed intermittent abdominal pain, frequent nausea, and occasional vomiting. There was no hematemesis or dysphagia. She reported a history of pyrosis, and that she had a fairly good appetite. She had lost five pounds thanks to dieting. She was still following a diet for diverticulosis, with high fiber. She also took medication for such. Bowel movements were fairly regular and there was no diarrhea, constipation, bloody stool, or rectal bleeding.

Medical records from S.R., D.O., reveal that the appellant was seen for complaints of digestive symptoms, including in September 2010, when she reported an increase in burning of the esophagus. There had also been an increase in bowel movements and with burning during bowel movements and when sitting down. She was nauseous at times and indicated excessive bloating. There had been no changes regarding food. She was assessed with GERD with worsening abdominal pain and external hemorrhoids, no fissures.

A January 2011 clinical note from Michigan Endoscopy Center states that, following an upper GI endoscopy, the appellant was assessed with mild esophagitis, gastritis, and small hiatus hernia.

During her May 2011 hearing before a VLJ, the appellant reported that she was constantly vomiting despite taking Nexium. If she did not take medication, she experienced a burning sensation. Flare-up were in the form of stomach cramps and esophageal burning. Regarding diverticulosis, the appellant reported constipation and having to take Metamucil. She also endorsed pain. A recent colonoscopy resulted in the removal of four or five polyps. She went to the emergency room for diverticulosis about one year prior. Constipation was reported as occurring weekly. She also reported that she went to the hospital the week prior due to diarrhea and vomiting. She was released after about 24 hours.

The appellant was afforded a VA esophageal conditions examination in April 2012. The claims file was reviewed. The appellant reported that sometimes she experiences a burning sensation if she eats spicy or sour food. She occasionally gets up in the night from the burning sensation. There had been approximately three episodes of vomiting in the past year but each lasted less than a day. There was no blood. Frequent nausea was also endorsed. The treatment plan included taking continuous medication, Nexium. Signs and symptoms included
year prior. Constipation was reported as occurring weekly. She also reported that she went to the hospital the week prior due to diarrhea and vomiting. She was released after about 24 hours.

The appellant was afforded a VA esophageal conditions examination in April 2012. The claims file was reviewed. The appellant reported that sometimes she experiences a burning sensation if she eats spicy or sour food. She occasionally gets up in the night from the burning sensation. There had been approximately three episodes of vomiting in the past year but each lasted less than a day. There was no blood. Frequent nausea was also endorsed. The treatment plan included taking continuous medication, Nexium. Signs and symptoms included infrequent episodes of epigastric distress, reflux, substernal arm or shoulder pain, sleep disturbance from esophageal reflux four or more times per year but lasting less than one day at a time, recurrent nausea four or more times per year but lasting less than one day at a time, and mild vomiting three times per year but lasting less than one day at a time. There was no esophageal stricture, spasm, or acquired diverticulum or the esophagus. There was no functional impact.

The appellant was afforded a VA intestinal conditions examination in April 2012. The claims file was reviewed. The appellant reported that she took Metamucil daily to prevent constipation. About once per week, she experiences loose motion, but no blood. She gained about 10 pounds in one year. She complained of daily gaseous distention and occasional mild, colicky pain. In the past year there had been no severe diverticulitis attack which required antibiotics or hospitalization. Continuous medication, Metamucil, was required for control. Signs and symptoms included (1) episodes of mild diarrhea about once per week, semi-solid, no blood, no mucus, occurring three to four times that day, which last less than one day; (2) subjective, mild gaseous distention almost daily; (3) occasional nausea; and (4) subjective complaints of vomiting by history about two or three times per year, for which she does not go to the doctor but takes rest, without blood, and lasting less than one day. There were occasional episodes of bowel disturbance with abdominal distress; and there were three occasions of severe abdominal pain and diarrhea in the past year which lasted for one to two days. There had been no attributable weight loss, malnutrition, serious complications, or other general health effects. There was no functional impact.

The appellant was afforded a VA intestinal conditions examination in August 2015. The claims file was reviewed. The appellant reported that she had been using stool softeners and special dietary instructions from her GI specialist to prevent constipation. There had been one episode of bleeding per rectum for which she underwent a colonoscopy. There was occasional distension of the stomach and lower abdominal pain. Continuous medication, psyllium powder, was required for control. There had been no surgical treatment. There were no other signs or symptoms and there had been no episodes of bowel disturbance with abdominal distress, or exacerbations or attacks. There was no attributable weight loss, malnutrition, serious complication, or other general health effect. There was no functional impact.

The appellant was afforded a VA esophageal conditions examination in August 2015. The claims file was reviewed. The appellant reported continuing heartburn, but fairly good improvement in symptoms thanks to daily Omeprazole. She currently had heartburn a few times a month, mostly related to spicy and oily food. She occasionally gets up with heartburn symptoms at night. She underwent upper GI procedures with dilatation of the esophagus for stenosis. Sometimes she gets nausea and occasionally vomits. There was no dysphagia, but there was occasional pain in the upper abdomen. Signs and symptoms included infrequent episodes of epigastric distress, reflux, substernal pain, three episodes of sleep disturbance a year, four episodes of nausea per year lasting less than a day, and one episode of vomiting per year lasting less than one day. There was no esophageal stricture, spasm, or acquired diverticulum. There was no functional impact.

In a January 2018 VA medical opinion, a VA staff physician opined that the symptoms identified in the August 2015 digestive examinations were productive of considerable impairment of health.

The appellant was afforded a contracted intestinal conditions examination in December 2020. The claims file was reviewed. The appellant complained of belly pain, cramping, and on-and-off constipation. Continuous medication, Metamucil, was required. Symptoms included frequent bloating (abdominal distension), nausea a few times a week, and constipation a few times a week. Episodes of bowel disturbance with abdominal distress occurred frequently. Exacerbation and/or attacks occurred a few times a month, with severe abdominal discomfort. Such had occurred seven or more times in the past year. There was no attributable weight loss, malnutrition, or other effects. Regarding functional impact, it was noted that, due to frequency of abdominal discomfort and pain and episodes of incapacitation, the appellant would not be able to function in an occupational environment.

The appellant was afforded a contracted GERD examination in December 2020. The claims file was reviewed. The appellant endorsed a burning sensation in the chest, worse after meals. Continuous medication, Nexium, was required. Signs and symptoms included infrequent episodes of epigastric distress, reflux, regurgitation, substernal pain, four or more instances of sleep disturbance from esophageal reflux per year which last less than a day, and four or more instances of nausea per year which last less than a day. There was no esophageal stricture, spasm, or acquired diverticulum. Regarding functional impact, burning in the chest will keep the appellant up at night which results in often being fatigued during the day, which in turn results in concentration impairment.

The appellant was afforded a contracted stomach and duodenal conditions examination in December 2020. The claims file was reviewed. The appellant endorsed burning pain in the stomach. Continuous Nexium was required. The appellant experienced four or more recurring episodes of symptoms that were not severe per year, each lasting less than one day. She also experienced four or more recurring episodes of severe symptoms per year, each lasting less than one day. She also experienced abdominal pain at least monthly which was only partially relieved by standard ulcer therapy. Such was not pronounced, periodic, or continuous, however. Transient nausea occurred four or more times per year, each lasting less than one day. The appellant reported incapacitating episodes where she is buckled over in pain and cannot do anything the rest of the day, a few times per month. Due to the frequency of the incapacitating episodes, the examiner opined that the appellant was unable to function in an occupational environment.

An April 2021 VA clinical note states that the appellant's GERD was well-controlled.

Applying the facts to the criteria set forth above, the Board finds that, at worst, the appellant's gastritis/GERD and diverticulosis was manifested by symptoms to be productive of a considerable impairment of health throughout the period on appeal. As such, an initial rating in excess of 30 percent is not warranted.

The Board has considered whether the appellant is entitled to a higher initial evaluation under DC 7346. To this end, the evidence does not document hematemesis, melena, material weight loss, or anemia. Crucially, the evidence of record does not show that the appellant's gastritis/GERD and diverticulosis symptoms combine to produce of severe impairment of health at any time during the period on appeal. As such, the Board finds that a higher initial evaluation for the service-connected gastritis/GERD and diverticulosis is not warranted.

The Board has considered the applicability of alternative diagnostic codes, but finds that an initial rating in excess of 30 percent would not be warranted under any alternative diagnostic code.

The maximum rating available under DC 7319 is 30 percent rating. As such, rating the appellant's gastritis/GERD and diverticulosis under this diagnostic code instead would not avail her of a higher initial rating. As noted above, disability ratings assigned under Diagnostic Codes 7319 and 7346 will not be combined with each other; instead, a single disability rating will be assigned under the diagnostic code which reflects the predominant disability picture with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.114. As such,
but finds that an initial rating in excess of 30 percent would not be warranted under any alternative diagnostic code.

The appellant did not experience severe adhesions with definite partial obstruction shown by X-ray, with frequent and prolonged episodes of severe colic distension, nausea or vomiting, following severe peritonitis, ruptured appendix, perforated ulcer, or operation with drainage. As such, rating the appellant under DC 7301 would not avail her of a higher initial rating.

The appellant did not experience severe symptoms with numerous attacks a year and malnutrition, the health only fair during remissions, or pronounced symptoms resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess. As such, rating the appellant under DC 7323 would not avail her of a higher initial rating.

While mention was made of standard ulcer therapy in the December 2020 contracted stomach and duodenal conditions examination report in the context of providing partial relief for abdominal pain, there is no indication, nor is it contended, that the appellant has an ulcer. There is also no indication or contention that the appellant's symptomatology more nearly approximates that of an ulcer. As such, DC 7306, which pertains to ulcer, marginal (gastrojejunal), is not for application.

There is no documentation of esophageal spasm or stricture in the claims file. It is not contended otherwise. Moreover, the Board notes that, with regard to the schedule of ratings for the digestive system, section 4.114 expressly prohibits, in pertinent part, the combination of ratings under diagnostic codes 7301 to 7329, inclusive, 7331, 7342, and 7345 to 7348, which include the schedular criteria for esophageal spasm (DC 7204) and esophagus, stricture of (DC 7203). The Board additionally notes that rating the gastroesophageal disability under DC 7203 would not afford the Veteran as a rating in excess of 30 percent is warranted for severe esophageal stricture permitting liquids only. There is no evidence in this case showing that the Veteran's esophageal symptoms cause such impairment.

In sum, the Board finds that an initial rating in excess of 30 percent is not warranted for the appellant's gastritis/GERD and diverticulosis for any portion of the period on appeal.

REASONS FOR REMAND

1. Entitlement to special monthly compensation based on the need for the regular aid and attendance of another person.

An August 2021 nurse clinic note states that an Aid and Attendance form was completed by Dr. K. Per primary care provider, the social worker, Ms. R was to be informed that the form was completed. The VA Registered Nurse spoke with the social worker who will come and pick up the form from the front desk mailbox. A copy was to be sent to the front desk for scanning.

Although this form may have indeed been associated with the appellant's VA medical records in CPRS (Computerized Patient Record System), such is not part of the claims file at this time. Documents scanned into CPRS are not typically included in the CAPRI reports (Compensation and Pension Record Interchange), which consist primarily of VA clinical notes and test results, that are generated and associated with the claims file.

In any event, as the aforementioned Aid and Attendance form is in VA's constructive possession, remand is required in order to associate such with the appellant's claims file. See Bell v. Derwinski, 2 Vet. App. 611, 613 (1992).

The matter is REMANDED for the following action:

Take appropriate steps to obtain the Aid and Attendance form completed by Dr
records in CPRS (Computerized Patient Record System), such is not part of the claims file at this time. Documents scanned into CPRS are not typically included in the CAPRI reports (Compensation and Pension Record Interchange), which consist primarily of VA clinical notes and test results, that are generated and associated with the claims file.

The matter is REMANDED for the following action:

Take appropriate steps to obtain the Aid and Attendance form completed by Dr. K. and provided to VA for scanning into CPRS in or about August 2021. Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities.

Katherine Kiemle Buckley

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Behlen, 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.

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