PARALYSIS OF SCIATIC NERVE

V. CHIAPPETTA · 2024 · Case ID: 24028712

GRANTED

Summary

The veteran, who served in the U.S. Navy from December 1976 to December 1980, appeals the denial of increased ratings for right and left lower extremity radiculopathy and lumbar spine disability, as well as entitlement to Total Disability based on Individual Unemployability (TDIU) and Special Monthly Compensation (SMC) for aid and attendance. The Board found that the evidence persuasively demonstrated moderate incomplete paralysis for both lower extremities, warranting a 20 percent rating each, and that the lumbar spine disability functionally approximated ankylosis, warranting a 50 percent rating. The Board also found that the combination of these service-connected disabilities rendered the veteran unable to secure or follow substantially gainful employment since November 20, 2012, thus granting TDIU. Furthermore, the evidence was found to be in approximate equipoise regarding the need for aid and attendance due to service-connected disabilities, and resolving doubt in the veteran's favor, the Board granted SMC for aid and attendance. The Board noted substantial compliance with prior remand directives for development and examinations, ultimately granting the appealed increases and benefits.

Rationale

Evidence demonstrates moderate incomplete paralysis.; Resolving doubt in veteran's favor.; Rating is 20 percent, not higher.

Service Branch

NAVY

Special Benefit

SMC - AID & ATTENDANCE; TDIU

Docket No.

17-17 252

Full Decision Text

Citation Nr: 24028712
Decision Date: 08/09/24 Archive Date: 08/09/24

DOCKET NO. 17-17 252
DATE: August 9, 2024

ORDER

From November 20, 2012, an initial 20 percent rating, but no higher, for right lower extremity radiculopathy is granted.

From November 20, 2012, an initial 20 percent rating, but no higher, for left lower extremity radiculopathy is granted.

From November 20, 2012, an initial 50 percent rating, but no higher, for service-connected degenerative joint disease of the lumbar spine with left L4-L5 disc herniation and lumbar sprain (lumbar spine disability) is granted.

From November 20, 2012, a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted.

From November 20, 2012, entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another is granted.

FINDINGS OF FACT

1. From November 20, 2012, the entire period on appeal, it is at least as likely as not that the Veteran's right lower extremity radiculopathy has been manifested by moderate incomplete paralysis; the evidence is persuasively against a finding that it has ever been manifested by more severe incomplete paralysis, or by complete paralysis.

2. From November 20, 2012, the entire period on appeal, it is at least as likely as not that the Veteran's left lower extremity radiculopathy has been manifested by moderate incomplete paralysis; the evidence is persuasively against a finding that it has ever been manifested by more severe incomplete paralysis, or by complete paralysis.

3. From November 20, 2012, the entire period on appeal, the Veteran's lumbar spine disability manifested in symptoms most nearly approximating the functional equivalent of unfavorable ankylosis during flare-ups or after repetitive use.

4. From November 20, 2012, the entire period on appeal, the Veteran has been schedularly eligible for an award of a TDIU.

5. The Veteran's service-connected lumbar spine disability and lower extremity radiculopathy, in combination, have rendered him unable to maintain substantially gainful employment since November 20, 2012.

6. The evidence is at least in approximate equipoise as to whether the Veteran's service-connected spine and radiculopathy disabilities rendered him in need of aid and attendance of another person.

CONCLUSIONS OF LAW

1. Resolving reasonable doubt in the Veteran's favor, from November 20, 2012, the criteria for an initial 20 percent rating, but no higher, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8520.

2. Resolving reasonable doubt in the Veteran's favor, from November 20, 2012, the criteria for an initial 20 percent rating, but no higher, for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.124a, DC 8520.

3. Resolving reasonable doubt in the Veteran's favor, from November 20, 2012, the criteria an initial 50 percent rating, but no higher, for the Veteran's lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

4. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met as of November 20, 2012. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

5. Resolving reasonable doubt in the Veteran's favor, the criteria for entitlement to SMC based on the need for aid and attendance, as a result of service-connected disabilities have been met as of November 20, 2012.
3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5242.

4. Resolving reasonable doubt in the Veteran's favor, the criteria for a TDIU have been met as of November 20, 2012. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the U.S. Navy from December 1976 to December 1980.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). By that decision, the AOJ granted service connection for a lumbar spine disability and assigned an initial 40 percent rating, effective November 20, 2012, which is the date he submitted his application for service connection.

Regarding lower extremity radiculopathy, the Board notes that in a March 2014 rating decision, the agency of original jurisdiction (AOJ) granted service connection for right lower extremity radiculopathy and assigned an initial 10 percent rating, effective January 2, 2014. In a November 2020 rating decision, it granted service connection for left lower extremity radiculopathy and assigned an initial 10 percent rating, effective September 4, 2020. In an August 2021 rating decision, the AOJ increased the ratings for the Veteran's lower extremity radiculopathy from 10 to 20 percent each, effective June 30, 2021. In its March 2014 rating decision, the AOJ found that the effective date of the award for service connection for right lower extremity radiculopathy was January 2, 2014, based on the fact that the Veteran filed a claim for an increased rating for his lumbar spine disability on that date. In its November 2020 rating decision, it found that the effective date of the award for service connection for left lower extremity radiculopathy was September 4, 2020, based on the fact that the Veteran submitted an intent to file form that on that date. That stated, the Veteran's lower extremity radiculopathy disabilities have been determined to be directly related to his service-connected lumbar spine disability, and the propriety of the radiculopathy ratings has been incorporated in this appeal in prior Board decisions. As such, given the manner in which VA developed and adjudicated the spine and related radiculopathy matters in this particular case, the Board finds that the period on appeal concerning higher or separate ratings for all of these disabilities runs from November 20, 2012, the date of his claim for service connection for a lumbar spine disability. See Chavis v. McDonough, 34 Vet. App. 1 (2021).

In June 2015, August 2015, April 2017, and September 2020, the Veteran submitted separate applications for a TDIU, indicating in each of them that his back and lower extremity radiculopathy prevented him from securing and following a substantial gainful occupation. The United States Court of Appeals of Veterans Claims (Court) has held that if a claimant or the record reasonably raises the question of whether a veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU is warranted as a result of that disability. Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus the question of whether a TDIU can be granted as of November 20, 2012 is also at issue.

In March 2020, the Veteran testified at a Board hearing before the undersigned. A transcript of that hearing has been associated with the record.

This case has been remanded by the Board to the AOJ for additional development multiple times. With respect to records development, the Board notes that in its January 2022 and August 2022 remands, it directed the AOJ to obtain updated VA treatment records. In its March 2023 remand, it specifically directed the AOJ to obtain updated VA treatment records from the Baltimore, Maryland, and Washington, D.C., VA Medical Centers (VAMCs). The AOJ obtained updated VA treatment records following the Board's January 2022 remand in January 2022 and March 2022, and again following the Board's August 2022 remand in August 2022 and October 2022. The AOJ obtained updated VA treatment records specifically from the Baltimore and Washington, D.C. VAMCs following the Board's remand in March 2023. In light of the above, the Board finds that the AOJ has at least substantially complied with all of its prior remand directives regarding records development. Stegall v. West, 11 Vet. App. 268, 271 (1998).

With respect to VA examinations and opinions, the Board notes that in its prior remands, it directed the AOJ to afford the Veteran new VA examinations to assess the severity of his lumbar spine disability. Specifically, the Board directed a VA examiner to indicate whether it was at least as likely as not that on repeated use over time and/or during flare-ups the Veteran experienced the functional equivalent of ankylosis. In its May 2021 remand, the Board also directed the VA examiner to discuss the progression and current severity of the Veteran's right lower extremity radiculopathy, as the right lower extremity was the only extremity that was service-connected for radiculopathy at that time. In each of its subsequent remands (January 2022, August 2022, and March 2023), the Board found that the Veteran's claims for increased ratings for lower extremity radiculopathy were inextricably intertwined with the development requested for resolution of the appeal for an increased rating for a lumbar spine disability, insofar as updated spine examinations might also contain information relevant to the radiculopathy ratings.

Upon review of the evidence, the Board finds that the AOJ has at least substantially complied with all of its prior remand directives with respect to the Veteran's claims for increased ratings for lower extremity radiculopathy. See Stegall, supra. Insofar as the medical opinion evidence of record still does not adequately address whether Veteran experiences the functional equivalent of unfavorable ankylosis of the thoracolumbar spine, the Board believes another remand to obtain additional development on that matter would be an exercise in futility, with no additional benefit afforded to the Veteran. As will be explained below, upon further review of the record as a whole, the Board will resolve all doubt in the Veteran's favor and award the higher 50 percent rating based on ankylosis at this time.

In addition, whether entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another due to service-connected disability has been raised by the record, and is part of this appeal. See Akles v. Derwinski, 1 Vet. App. 118, 121 (1991).

As a final introductory matter, the Board notes that the AOJ furnished the Veteran a supplemental statement of the case relative to the matters addressed in the present appeal in September 2023. Although some VA-generated records have been added to the claims file since that time, none of them bear meaningfully on the outcome of the issues that are currently being decided. As such, there is no need to return the case to the AOJ for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1305(c).

Increased Ratings

Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities.

The law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question
for consideration of the new evidence or, alternatively, to solicit a waiver of AOJ review from the Veteran. See 38 C.F.R. §§ 19.31, 20.1305(c).

Increased Ratings

The law mandates resolving any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. If there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.

If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). In the present case, the AOJ has assigned staged ratings for the Veteran's lower extremity radiculopathy.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. An approximate balance of the evidence includes, but is not limited to, equipoise. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). Evidence is not in "approximate balance" or "nearly equal" when the evidence persuasively favors one side or the other. Id.

1. Entitlement to a compensable rating for right lower extremity radiculopathy prior to January 2, 2014, in excess of 10 percent prior to June 30, 2021, and in excess of 20 percent thereafter

2. Entitlement to a compensable rating for left lower extremity radiculopathy prior to September 4, 2020, in excess of 10 percent prior to June 30, 2021, and in excess of 20 percent thereafter

As noted, in its March 2014 rating decision, the AOJ granted service connection for right lower extremity radiculopathy and assigned an initial 10 percent rating, effective January 2, 2014. In a November 2020 rating decision, the AOJ granted service connection for left lower extremity radiculopathy and assigned an initial 10 percent rating, effective September 4, 2020. In an August 2021 rating decision, the AOJ increased the ratings for the Veteran's lower extremity radiculopathy from 10 to 20 percent each, effective June 30, 2021. The Veteran contends that higher ratings are warranted. Specifically, in a November 2023 Post-Remand Brief, he contended that at least the next higher rating was warranted for all of the increased rating claims that remained pending on appeal.

The Veteran's right lower extremity radiculopathy has been rated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under that diagnostic code, complete paralysis of the sciatic nerve, which is rated 80 percent disabling, contemplates the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy; a 40 percent evaluation if it is moderately severe; a 20 percent evaluation if it is moderate; or a 10 percent evaluation if it is mild.

The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations do provide that ratings for peripheral neuropathy 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 a 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 picture for complete paralysis given with each nerve, whether
a 10 percent evaluation if it is mild.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree.

Although not binding on the Board, VA's Adjudication Manual (the M21-1) contains general guidelines for distinguishing between "mild," "moderate," "moderately severe," and "severe" levels of incomplete paralysis of the lower extremities, which the Board finds helpful. See M21-1, Part V, Subpart iii, Chapter 12, Section A.

Indeed, the M21-1 provisions reflect that mild incomplete paralysis is generally limited to sensory deficits that are lower graded, less persistent, or affecting a small area, with very minimal reflex or motor abnormality. Moderate is the maximum evaluation reserved for the most significant cases of sensory only impairment. Symptoms will likely be described by the claimants and medically graded as significantly disabling. The M21-1 indicates that such does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness, or muscle atrophy, the disability must be evaluated as greater than moderate. Indeed, other signs or symptoms that may fall into the "moderate" category include motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The moderately severe evaluation level is only applicable for involvement of the sciatic nerve, with motor and/or reflex impairment at a grade reflecting a high level of limitation or disability. For the severe level, motor and/or reflex impairment would be expected at a grade reflecting a very high level of limitation or disability.

As noted, the Veteran filed his claim for service connection for a lumbar spine disability in November 2012. A December 2012 VA treatment record shows that he had very mild left lower extremity weakness. An MRI of the lumbar spine in March 2013 showed multilevel degenerative changes within the lower lumbar spine, most pronounced at L4-L5 with significant encroachment on the left subarticular recess. The interpreting provider also noted that correlation with left L5 radicular symptoms would be helpful and indicated that the Veteran had bilateral moderate to severe neural foraminal encroachment. An October 2013 VA treatment record shows a diagnosis of lumbar radiculopathy.

The Veteran was afforded a VA examination in connection with his claim in November 2013. The examiner diagnosed degenerative joint disease, disc herniation, and a lumbar sprain, noting the Veteran's report that he had had constant severe low back pain since he initially injured his back. On examination, in pertinent part, his strength was full and there was no atrophy, and while reflexes were decreased in the right knee and left ankle, sensory examination was normal. The examiner indicated that he did not have radicular pain and/or signs or symptoms of radiculopathy. He did, however, cite to the March 2013 MRI results.

In his May 2014 notice of disagreement (NOD), the Veteran stated that he continued to have pain in both his back "and legs." In a June 2015 VA treatment record, the Veteran reported that he had pain in the bilateral thighs, right greater than left, and that it originated in his back and radiated down the posterior aspect of both thighs. He also reported that the pain became worse following amputation of his right lower extremity (below the knee). He described the pain as intermittent and indicated that sitting and wearing a prosthetic leg made his symptoms worse, especially when seated. In a May 2017 VA treatment record, the Veteran reported that his radicular pain was worse in the left leg compared to the right.

The Veteran was afforded a VA examination in connection with his claim in May 2017. The examiner indicated that he had a diagnosis of bilateral lower extremity radiculopathy. Initial range of motion testing was unable to be performed due to significant levels of pain, but the examiner noted that there was no atrophy. Strength was decreased and
aspect of both thighs. He also reported that the pain became worse following amputation of his right lower extremity (below the knee). He described the pain as intermittent and indicated that sitting and wearing a prosthetic leg made his symptoms worse, especially when seated. In a May 2017 VA treatment record, the Veteran reported that his radicular pain was worse in the left leg compared to the right.

The Veteran was afforded a VA examination in connection with his claim in May 2017. The examiner indicated that he had a diagnosis of bilateral lower extremity radiculopathy. Initial range of motion testing was unable to be performed due to significant levels of pain, but the examiner noted that there was no atrophy. Strength was decreased and reflexes were decreased or absent. The examiner indicated that the Veteran had radicular pain and/or signs or symptoms of radiculopathy, indicating that he had constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness, all of which she rated as mild bilaterally. However, she later indicated that radiculopathy was of moderate severity bilaterally. The examiner indicated further that left lower extremity radiculopathy was a new diagnosis since the time of the prior VA examination, and that it was a progression of a previous diagnosis.

In a February 2019 VA treatment record, the Veteran again complained of left leg weakness.

The Veteran was afforded a VA examination in connection with his claim in November 2020. The examiner again was unable to perform initial range of motion testing and many other tests due to significant pain levels in the spine. The examiner noted that strength was very decreased but there was no atrophy, and reflexes were again either decreased or absent. As to radiculopathy, the examiner indicated that the Veteran had constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness, all of which he rated as mild. He also rated the overall severity of radiculopathy as mild.

At a June 2021 VA examination, the examiner noted that radiculopathy had progressed since onset, and the Veteran now complained of left sided radiculopathy as well. On examination, there was decreased strength but no atrophy, and reflexes and sensation were indicated to be normal. The examiner indicated that the Veteran had intermittent pain, paresthesias/dysesthesias, and numbness bilaterally, indicating further that each of them were moderate in severity. He indicated that overall, the Veteran had moderate incomplete paralysis.

At a February 2022 VA examination, the Veteran reported that he had constant pain in his low back and intermittent pain and numbness going down both legs, and that it was worse in the left leg. On examination, strength was only slightly decreased (4/5) in areas that could be tested, but there was no atrophy. Reflexes and sensation were also both decreased in some areas. The examiner indicated that the Veteran had constant pain, paresthesias/dysesthesias, and numbness to a moderate degree bilaterally.

Upon examination in October 2022, as to radiculopathy, the examiner noted that strength was decreased, but there was again no atrophy, and sensation was decreased or absent in many areas. The examiner then indicated that the Veteran did not have radicular pain or other signs/symptoms of radiculopathy.

Upon review of the evidence, the Board finds that it is at least as likely as not that the Veteran's lower extremity radiculopathy has been manifested by moderate incomplete paralysis for the entire period on appeal. While the November 2013 and October 2022 VA examiners indicated that the Veteran did not have radicular pain or other signs or symptoms of radiculopathy, that finding is inconsistent with the other evidence of record, including the March 2013 MRI showing nerve encroachment and the October 2013 VA treatment record shows a diagnosis of lumbar radiculopathy. In this regard, the Board finds that the November 2013 and October 2022 VA examinations insofar as they address radiculopathy are of limited probative value. While the November 2020 VA examiner indicated that the severity of radiculopathy was only mild, the Board notes that the May 2017 and February 2022 VA examination reports both indicate that the severity was moderate, and the June 2021 VA examiner indicated that he had moderate incomplete paralysis. Overall, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence demonstrates that the Veteran's lower extremity radiculopathy has been manifested by moderate incomplete paralysis for the entire period on appeal.

In this connection, the evidence is at least in approximate equipoise as to whether the Veteran's lower extremity radicul
VA examinations insofar as they address radiculopathy are of limited probative value. While the November 2020 VA examiner indicated that the severity of radiculopathy was only mild, the Board notes that the May 2017 and February 2022 VA examination reports both indicate that the severity was moderate, and the June 2021 VA examiner indicated that he had moderate incomplete paralysis. Overall, and resolving reasonable doubt in the Veteran's favor, the Board finds that the evidence demonstrates that the Veteran's lower extremity radiculopathy has been manifested by moderate incomplete paralysis for the entire period on appeal.

In this connection, the evidence is at least in approximate equipoise as to whether the Veteran's lower extremity radiculopathy has been present, and of moderate severity for the entire appeal period, from November 20, 2012. Of note, he reported left lower extremity weakness to VA providers as early as December 2012. The March 2013 MRI clearly demonstrates encroachment of the nerve root, and by October 2013, which is still within a year of the submission of his application for service connection, a VA treatment record shows a diagnosis of lumbar radiculopathy. In his May 2014 NOD, the Veteran reported that he had pain radiating into both of his legs. The first VA examination which adequately addresses the severity of lower extremity radiculopathy is the May 2017 VA examination, which indicates that his radiculopathy is moderate bilaterally. While acknowledging that some VA examiners have stated that the Veteran's radiculopathy progressed over the course of the appeal period, the Board finds that the May 2017 VA examination indicating that his radiculopathy was moderate in nature by that time is probative as to the question of its severity. As noted, the evidence also demonstrates the presence of bilateral lower extremity radiculopathy for the entire course of the appeal period. In this regard, and again resolving all reasonable doubt in the Veteran's favor, the Board finds that 20 percent awards for radiculopathy of each lower extremity are warranted for the entire period on appeal.

The Board finds further that the evidence is persuasively against a rating in excess of 20 percent for radiculopathy of either lower extremity for any portion of the appeal period. None of the VA examiners of record have indicated that the Veteran's lower extremity radiculopathy has ever been more than moderate, or manifested by more than moderate incomplete paralysis. Nor have any of them indicated that it has been manifested by complete paralysis. The Board has considered the fact that the March 2013 MRI notes "moderate to severe" neural foraminal encroachment. However, that finding addresses the severity of encroachment, not the severity of the Veteran's overall functional impairment as to his radiculopathy. Although the evidence shows that the Veteran's radiculopathy has manifested in some weakness and diminished reflexes, such has not been identified by medical professionals to be so severe as to cause significant functional impairment or a high degree of disability. In fact, taken as a whole, the Veteran's symptoms have, at worst, been described by medical professionals to manifest in moderate incomplete paralysis. The Board does not observe evidence in the file that contradicts or calls into question the overall assessments by the medical professionals of record.

As will be explained in more detail below, in combination, the Veteran's spine and radiculopathy disabilities are in fact severe, warranting separate TDIU and SMC awards. However, when focusing exclusively on the functional impairment caused by the radiculopathy alone for each lower extremity, the impairment most closely approximates a moderate level of severity.

Although assignment of a paralysis rating under section 4.124a does not preclude, as a matter of law, separate evaluations for neuritis or neuralgia of the same nerve under the provisions of 38 C.F.R. § 4.123 and § 4.124, the Board has contemplated the Veteran's symptoms of pain, weakness, diminished reflexes and numbness in its award of higher individual ratings for each extremity dating back to the date of the Veteran's claim. Therefore, additional ratings for the same symptoms would, in this case, amount to impermissible pyramiding.

In light of the above, the Board finds that from November 20, 2012, the criteria for initial 20 percent ratings, but no higher, for right and left lower extremity radiculopathy, respectively, have been met. To that extent, the appeal of these issues is granted.

3. Entitlement to an initial rating greater than 40 percent for the Veteran's service-connected lumbar spine disability

The Veteran's lumbar spine disability has been rated 40 percent disabling pursuant to DC
in its award of higher individual ratings for each extremity dating back to the date of the Veteran's claim. Therefore, additional ratings for the same symptoms would, in this case, amount to impermissible pyramiding.

3. Entitlement to an initial rating greater than 40 percent for the Veteran's service-connected lumbar spine disability

The Veteran's lumbar spine disability has been rated 40 percent disabling pursuant to DC 5242 and the General Rating Formula for Diseases and Injuries to the Spine for all times since November 20, 2012. As discussed below, an increased initial rating from 40 to 50 percent is granted.

The Board initially notes that a rating higher than 50 percent under the provisions of the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes is not warranted, as the Veteran has not been assessed with IVDS, nor has the Veteran undergone six weeks of doctor-prescribed bed rest in a given year due to his lumbar spine alone. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Note (1).

A 40 precent rating is the maximum allowable rating under the General Rating Formula based on limitation of motion. The Board notes that the assignment of a rating in excess of 40 percent under the General Rating Formula requires evidence of unfavorable ankylosis, as opposed to a specifically limited range of motion. 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.

Note (1) to the General Rating Formula indicates that 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.

At present, actual observation of ankylosis has not been identified upon examination. However, the Court clarified in Chavis v. McDonough, 34 Vet. App. 1 (2021), that a higher rating may be assigned on the basis of evidence demonstrating the functional equivalent of ankylosis (i.e., functional loss consistent with that contemplated by ankylosis) during flare-ups, or after repetitive use.

In its prior remands, the Board requested that a VA examiner provide an opinion as to whether it was at least as likely as not that after repeated use over time or during flare-ups, the Veteran experienced the functional equivalent of ankylosis. As noted above, after careful review of the record, the VA opinions of record do not adequately address that question. Providing an adequate opinion has been complicated by the fact that, aside from the initial November 2013 VA examiner, subsequent VA examiners in May 2017, November 2020, June 2021, February 2022, and October 2022 have been unable to test even initial range of motion, as the Veteran reported at each examination that his pain was too significant. The Veteran has frequently reported that he is unable to stand up from his wheelchair without significant pain, and cannot remain standing long enough for range of motion testing to be performed.

At the November 2020 examination, the Veteran reported that he cannot do anything himself, and when he has pain he cannot move. Previously, a January 13, 2014 VA treatment report noted that the Veteran had minimal ability to arch or slump his spine when sitting, with poor reach forward for lumbar flexion. On his May 2014 Notice of Disagreement, the Veteran reported that it was nearly impossible for him to bend very far without extreme pain, and that he can tilt a little forward but cannot bend. A February 2020 VA Aid and Attendance examination specifically included a notation that the Veteran had a "non-flexible" lower back.

The Veteran has described flare-ups of 10/10 on the pain scale lasting hours to days. He requires a wheelchair and experiences these flares with no movement both in the sitting position or
Previously, a January 13, 2014 VA treatment report noted that the Veteran had minimal ability to arch or slump his spine when sitting, with poor reach forward for lumbar flexion. On his May 2014 Notice of Disagreement, the Veteran reported that it was nearly impossible for him to bend very far without extreme pain, and that he can tilt a little forward but cannot bend. A February 2020 VA Aid and Attendance examination specifically included a notation that the Veteran had a "non-flexible" lower back.

The Veteran has described flare-ups of 10/10 on the pain scale lasting hours to days. He requires a wheelchair and experiences these flares with no movement both in the sitting position or when standing. He is competent to report being unable to move his lumbar spine during flares and after repetitive use, and no examiner has adequately explained why or how the Veteran does not experience the functional equivalent of unfavorable ankylosis after repetitive use or during flare-ups. As noted above, the Veteran's spine disability has also manifested in nerve root impairment.

After considering the fact that (1) the Veteran has not been able to demonstrate any lumbar spine range of motion upon testing during five previous examinations due to extreme pain; (2) that even prior to those examinations, in statements submitted with his 2014 Notice of Disagreement, he has competently described an inability to move his lumbar spine due to pain; (3) he has consistently reported the same symptomatology throughout the appeal period; and (4) a February 2020 Aid and Attendance examiner specifically observed a "non-flexible" lower back, and when eliminating consideration of any ameliorating effects of the pain medications the Veteran must take, however ineffective, the Board will find the evidence to be at least in approximate equipoise as to whether the Veteran's lumbar spine disability manifests in the functional equivalent of unfavorable ankylosis of the thoracolumbar spine during flares or after repetitive use. As such, an increased initial rating from 40 to 50 percent is granted under the General Ratings Formula.

A 100 percent rating is not warranted, as unfavorable ankylosis of the entire spine (to include the cervical spine) has not been shown by the evidence of record, nor has the Veteran himself asserted such symptomatology exists, to include during flares or after repetitive use.

The Veteran's representative asked the Board to consider assigning an extraschedular rating for the Veteran's spine disability at the March 2020 hearing, but the Board finds that the Veteran's symptoms are adequately contemplated by the rating criteria applied in this case. Indeed, his symptoms of limitation of motion, with pain manifesting in fixation of the lumbar spine during flares is contemplated by the 50 percent rating now assigned. Associated neurological complications have also been separately recognized as service-connected, and assigned separate ratings reflecting their own symptomatology and functional impairment. Insofar as the Veteran has recently indicated his back pain has negatively impacted sleep, the Board notes that sleep impairment has been separately recognized and compensated as part of the 70 percent rating in effect for his service-connected depression, and his 50 percent rating for sleep apnea, and therefore another separate rating based on sleep impairment would require impermissible pyramiding.

In sum, for the reasons discussed above, entitlement to an increased initial rating, effective November 20, 2012 from 40 to 50 percent, but no higher, for the Veteran's lumbar spine disability is granted.

4. Entitlement to a TDIU

The Veteran contends that his service-connected disabilities render him unable to secure or follow a substantially gainful occupation. As noted, he has submitted four separate applications for a TDIU during the course of the appeal period. He submitted the applications in June 2015, August 2015, April 2017, and September 2020. In his June 2015 application, he stated that his lumbar spine disability and all other claimed conditions precluded his ability to work. He indicated that he last worked full-time in 2008, that he became too disabled to work in January 2013, and noted that his past work was as a bus driver and that he completed high school. In his August 2015 application, he stated that his "back" prevented him securing and following a substantial gainful occupation. He indicated that he last worked full-time in 2009, and that he became too disabled to work in 2009. He again noted that his past work was as a bus driver, indicating that he worked in that job until around 2010. He added that he had attempted to complete barbering training in 2013 but that he was unable to complete it. In his April 2017 application, he stated that his "back injury" prevented him from securing and following a
work in January 2013, and noted that his past work was as a bus driver and that he completed high school. In his August 2015 application, he stated that his "back" prevented him securing and following a substantial gainful occupation. He indicated that he last worked full-time in 2009, and that he became too disabled to work in 2009. He again noted that his past work was as a bus driver, indicating that he worked in that job until around 2010. He added that he had attempted to complete barbering training in 2013 but that he was unable to complete it. In his April 2017 application, he stated that his "back injury" prevented him from securing and following a substantial gainful occupation, stating further that he last worked full-time in 2010, but that the date he became too disabled to work was in June 2006. Finally, in his September 2020 application, he stated that his back and depression prevented him from securing and following a substantial gainful occupation but did not fill out any other information in that application.

While the Veteran has made somewhat inconsistent statements as to which service-connected disabilities prevent him from securing and following a substantial gainful occupation, when he last worked full-time, and when he became too disabled to work, the Board notes that in an April 2017 Request for Employment In Connection with a Claim for Disability Benefits (VA Form 21-4192), the Veteran's former employer stated that he last worked full-time in August 2010, and that the reason he was terminated was due to a back injury. Given this evidence, the Board finds as an initial matter that the Veteran has not worked in any occupation since August 2010. In each of his applications for a TDIU except for the one submitted in June 2015, he stated that he became too disabled to work prior to August 2010, which is not consistent with when his former employer reported that he stopped working. As noted, in his June 2015 application, he stated he became too disabled to work in January 2013. In this regard, the Board notes again that the Veteran filed his claim for service connection for a lumbar spine disability on November 20, 2012. As such, his current claim for an increased rating for that disability was pending at the time he filed each of his applications for a TDIU. The issue of entitlement to a TDIU therefore became part of the appeal of his claim for an increased rating. Accordingly, the period under consideration for his TDIU claim runs concurrently with the period under consideration for his increased rating claim, i.e., beginning November 20, 2012. While the Veteran stated that he became too disabled to work as a result of his service-connected disabilities in January 2013 in his June 2015 application for a TDIU, he stated in other applications that he became too disabled to work prior to that date. In this regard, the Board resolves all reasonable doubt in his favor and will consider whether the evidence demonstrates that his service-connected disabilities have prevented him from securing or following a substantial gainful occupation from November 20, 2012. The question for the Board's consideration is whether the Veteran met the criteria for a TDIU as of that date.

Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. If the total rating is based on a disability or combination of disabilities for which the Schedule for Rating Disabilities provides an evaluation of less than 100 percent, it must be determined that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age. 38 C.F.R. § 3.341.

A total disability rating may be assigned where the combined rating for the Veteran's service-connected disabilities is less than total if the disabled Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Specifically, if there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Id.

In determining whether unemployability exists, consideration may be given to the Veteran's level of education, special training, and previous work experience, but not to his age or to
be ratable at 60 percent or more; if there are two or more disabilities, there shall be at least one ratable at 40 percent or more and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the purpose of determining whether a Veteran meets the criteria for assigning a schedular TDIU, disabilities resulting from a common etiology and disabilities affecting a single body system are considered to be one disability. Id.

As an initial matter, after incorporating the awards of increased ratings as outlined in the previous portions of this decision, the Veteran's disability ratings as of November 20, 2012 include a 50 percent rating for his lumbar spine disability, and two 20 percent ratings for his right and left lower extremity radiculopathy, respectively, and a low back scar, rated as 0 (zero) percent disabling. These ratings combine to 70 percent. See 38 C.F.R. § 4.25. The Board therefore finds that the Veteran has met the schedular criteria for a TDIU from November 20, 2012.

Regarding the question of whether the Veteran was unable to follow or secure a substantial gainful occupation due to his service-connected disabilities from November 20, 2012, the Board finds that the evidence supports the claim.

In his November 2013 VA examination report, the VA examiner indicated that the impact of the Veteran's lumbar spine disability on his ability to work was that it affected his ability to stand, walk, and sit for a long time.

In his May 2014 NOD, the Veteran stated that he could tilt a little forward but that he could not bend and that he could not stand for long periods of time. He added that because of other conditions, including diabetes, he could not take many pain medications, so he was in constant pain. He noted that he had had his right leg removed due to an infection in the bones, and that he was constantly off balance and walked with a cane. He stated that back pain interfered with his work because the pain became so intense that sitting as a bus driver became very difficult, adding that the pain was even worse now when sitting for long periods of time. A March 2017 VA treatment record showed that the Veteran reported low back pain and that he used a cane or walker even in the home due to an inability to stand for long periods of time.

As noted, in an April 2017 submission, the Veteran's former employer stated that the reason for termination was a back injury.

In her May 2017 VA examination report, the VA examiner stated that the Veteran's lumbar spine disability and lower extremity radiculopathy caused the Veteran to be unable to stand without assistance. She noted that he used a wheelchair and wore a back brace, and that he was in constant pain. She added that he also had a right below the knee amputation.

In a 2019 statement, the Veteran's spouse stated that his "low back disorder" caused him to bound to a wheelchair and that she had to constantly help him with activities of daily living. At his March 2020 hearing, the Veteran testified that he left his previous employment due to his back, that he was in a wheelchair, and that he could only walk with a lot of pain and hunched over.

In his November 2020 VA examination report, the examiner stated that the impact of the Veteran's lumbar spine disability and radiculopathy caused the Veteran to be unable to lift or carry over 20 pounds without help.

Also in November 2020, the Veteran submitted a statement from A.N., C.R.N.P.-F.N.P. She noted that the Veteran had major depressive disorder and degenerative joint disease and a herniation in his back. She stated that these problems greatly affected completion of daily activities and employment, and that his pain was chronic. She stated that he had reduced range of motion in the lower legs, an abnormal gait, weakness, and fatigue, and that he had significant assistance from his wife. Ms. N. opined that it was her opinion that he was permanently and totally disabled and unemployable due to major depressive disorder and degenerative joint disease.

In his June 2021 VA examination report, the VA examiner opined that the Veteran was unable to work due to his low back disability with sciatica and radiculopathy. In
. She noted that the Veteran had major depressive disorder and degenerative joint disease and a herniation in his back. She stated that these problems greatly affected completion of daily activities and employment, and that his pain was chronic. She stated that he had reduced range of motion in the lower legs, an abnormal gait, weakness, and fatigue, and that he had significant assistance from his wife. Ms. N. opined that it was her opinion that he was permanently and totally disabled and unemployable due to major depressive disorder and degenerative joint disease.

In his June 2021 VA examination report, the VA examiner opined that the Veteran was unable to work due to his low back disability with sciatica and radiculopathy. In a separate report of the same date, he stated that the Veteran's back condition prevented him from driving, walking, and standing, and that he used a motorized wheelchair most of the time.

In his February 2022 VA examination report, the VA examiner found that the Veteran would have difficulty with prolonged sitting, standing, and walking.

Finally, in his October 2022 VA examination report, a VA examiner found that the Veteran's lumbar spine disability and lower extremity radiculopathy would cause him to have difficulty standing and walking, that he could not tolerate sitting, and that these disabilities affected his sleep.

In light of all of the above, the Board is persuaded that the criteria for a TDIU have been met since November 20, 2012. While the Veteran has indicated that he became too disabled to work, at least on some occasions, prior to that time, the Board emphasizes that he was not service-connected for any disabilities prior to that time. An award of a TDIU on any basis prior to that date is therefore not warranted, or even available. The evidence supports a finding that he has been unable to perform his past work as a bus driver from at least November 20, 2012, due to a combination of his service-connected lumbar spine disability and lower extremity radiculopathy. The Veteran's lumbar spine disability and lower extremity radiculopathy impact his ability to lift weight, to stand and walk, and even to sit for prolonged periods of time. Additionally, the June 2021 VA examiner opined that the Veteran was unable to work due to his low back disability with sciatica and radiculopathy. Taken as a whole, the Board finds that the evidence supports a finding that the Veteran's lumbar spine disability and lower extremity radiculopathy, in combination, would preclude him from performing even sedentary work on a full-time, consistent basis.

The Board finds that the Veteran's contentions and statements with regard to his inability to secure or follow substantial gainful employment since at least November 20, 2012, are credible. There is nothing in the record to indicate that he has worked since that time, and his service-connected lumbar spine disability and lower extremity radiculopathy have been shown to cause significant occupational limitations.

The Board notes that it has also considered other evidence of record in the adjudication of the Veteran's claim for a TDIU. For example, evidence of record indicates that the Veteran has been found disabled by the Social Security Administration (SSA), primarily due to mental impairments. As noted, Ms. N. also indicated in her November 2020 statement that major depressive disorder, in part, caused the Veteran to be permanently disabled. Another treating provider, J.C.-C., M.D., stated in a May 2014 letter that the Veteran had end-stage renal disease, severe osteoarthritis, diabetes, obesity, and was status/post amputation of his right leg. He opined that given these multiple chronic conditions, the Veteran was unemployable. In a second, May 2015 statement, Dr. C.-C. stated that the Veteran was totally disabled from residuals of a stroke, diabetes, and kidney problems. While the Board has considered this evidence, it notes that the Veteran is not service-connected for many of the conditions noted by Dr. C.-C. While he is service-connected for major depressive disorder, recurrent, with anxious distress, the effective date of that award is December 13, 2016. In this regard, the Board has considered the totality of the evidence in the light that is most favorable to the Veteran. That is, it finds that his lumbar spine disability and lower extremity radiculopathy, in combination, have precluded him from securing or following a substantial gainful occupation since November 20, 2012, as that is the earliest date for which an award of a TDIU is available. The appeal of this issue is granted.

5. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of
While he is service-connected for major depressive disorder, recurrent, with anxious distress, the effective date of that award is December 13, 2016. In this regard, the Board has considered the totality of the evidence in the light that is most favorable to the Veteran. That is, it finds that his lumbar spine disability and lower extremity radiculopathy, in combination, have precluded him from securing or following a substantial gainful occupation since November 20, 2012, as that is the earliest date for which an award of a TDIU is available. The appeal of this issue is granted.

5. Entitlement to special monthly compensation (SMC) based on the need for the aid and attendance of another

During the pendency of this appeal, both the Veteran and his spouse have indicated that due to service-connected disabilities, including the spine and radiculopathy disabilities, the Veteran requires assistance in performing daily activities warranting an SMC award. Such claims are considered components of any increased rating claim and must be addressed where the evidence demonstrates potential entitlement. Akles v. Derwinski, 1 Vet. App. 118 (1991) (holding that entitlement to SMC is to be inferred as part of an increased rating claim when applicable).

SMC is available when, as the result of service-connected disability, a Veteran suffers additional hardships above and beyond those contemplated by VA's schedule for rating disabilities. See 38 U.S.C. § 1114 ; 38 C.F.R. §§ 3.350, 3.352.

SMC based on a need for the aid and attendance of another is warranted if there is a factual finding that service-connected disabilities render a Veteran in need of the regular assistance of another person to attend to the activities of daily living (dressing and undressing, hygiene, toileting, etc.) or to protect himself from the normal daily hazards and dangers of his environment. 38 U.S.C. § 1114(l); 38 C.F.R. §§ 3.350 (b)(3), 3.352(a).

It is not required that all of the disabling conditions enumerated above be found to exist before a favorable rating may be made. The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole. It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that the veteran is so helpless, as to be in need of regular aid and attendance will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. 38 C.F.R. § 3.352(a).

Here, the evidence is in approximate equipoise as to whether the Veteran's spine and radiculopathy disabilities have necessitated the need for the aid and attendance of another. While the Veteran has several nonservice-connected disabilities that contribute to his need for aid and attendance, the inquiry before the Board is whether such can be established due to contributions of his service-connected disabilities.

Upon examination in November 2013, the Veteran's spine and radicular pain was noted to impair his ability to stand, sit or walk for a long period of time. On his February 2014 Notice of Disagreement, the Veteran reported balance problems due to an inability to bend over due to spine pain, coupled with a nonservice-connected amputation below the knee. The Veteran also submitted a statement from his son, who indicated that he must go to his father's house 3 to 5 days a week to help him out of bed and get dressed.

In an August 2014 statement, the Veteran reported that he can no longer care for himself. A May 12, 2015 VA treatment report indicated that the Veteran was in need of assistance with bed mobility, transferring, dressing, toileting, bathing, meal preparation, housework and transportation. VA referred the Veteran for homemaker/home health aide services at that time.

A June 2015 VA Aid and Attendance examination indicated that the Veteran was unable to prepare his own meals due to disability, and needed help bathing and tending to hygiene needs. The Veteran was noted to be very sedentary. The examiner indicated that the Veteran does some walking but is quite limited due to left leg weakness and back pain. Leg weakness was attributed to a nonservice-connected stroke and his radiating back pain.

A July 23, 2015 VA treatment report noted that the Veteran's wife and home health aide often had to help with transferring the Veteran out of his wheelchair, given his pain starting in his back and buttocks and running down his lower extremity.

At
health aide services at that time.

At the May 2017 VA examination, the Veteran reported back and sciatic pain that impaired his ability to put on his prosthetics. It was noted that the Veteran was unable to stand without assistance. When he stood up at the examination with the assistance of his aide, he was unable to move due to excruciating spine pain and had to be assisted back to a sitting position in less than 15 seconds.

A February 2020 Aid and Attendance examination noted a need for assistance in preparing meals, bathing, and medication management. Among other disabilities, the Veteran's "non-flexible" lumbar spine was listed as a contributing factor to his need for assistance. Notably, the examiner also noted that poor bladder control was a factor. The AOJ has separately acknowledged that incontinence is condition related to the Veteran's service-connected back disability, and it assigned a separate award and rating for incontinence in an unappealed November 2022 rating decision. The Veteran's spouse previously reported in an October 2019 affidavit, that the Veteran sometimes cannot make it to the bathroom in time due to his back and leg disabilities. She indicated that she must help the Veteran all the time due to his back.

Based on the evidence listed above, the Board finds that the Veteran's service-connected spine and radiculopathy disabilities at least as likely as not rendered him in need of the regular assistance of another person to attend to the activities of his daily living for the time period pertinent to this appeal. As such, entitlement to SMC based on the Veteran's need for aid and attendance is granted, effective November 20, 2012.

V. Chiappetta

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board R. Oldroyd, 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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