DEGENERATIVE ARTHRITIS

Summary

The veteran, who served in the United States Navy from October 1972 to May 1973, appeals the denial of an increased rating for his cervical spine disorder and the denial of TDIU. The Board granted entitlement to an initial rating of 40 percent for the cervical spine disorder throughout the appeal period, finding that the evidence supported unfavorable ankylosis of the entire cervical spine, despite the ameliorative effects of pain medication. The Board also granted TDIU throughout the appeal period, finding that the veteran's service-connected cervical spine disorder and associated bilateral upper extremity radiculopathy, alone, prevented him from securing or following a substantially gainful occupation. Furthermore, the Board granted special monthly compensation (SMC) based on housebound status effective February 22, 2016, noting the veteran's 100 percent rating for TDIU and an 80 percent rating for bilateral hearing loss. The Board remanded claims for increased ratings for right and left upper extremity radiculopathy due to inadequate VA examinations, requiring clarification on the extent of nerve involvement and the necessity of nerve conduction studies or EMG.

Rationale

Evidence reflects unfavorable ankylosis of the entire cervical spine.; Resolving reasonable doubt in the veteran's favor.; Pain and functional limitations considered.

Full Decision Text

Citation Nr: 25011319
Decision Date: 09/04/25	Archive Date: 09/04/25

DOCKET NO. 20-22 733
DATE: September 4, 2025

ORDER

Entitlement to an initial rating of 40 percent for a cervical spine disorder is granted throughout the appeal period.

Entitlement to a total disability rating based on individual unemployability (TDIU), due to service-connected cervical spine disorder alone, is granted throughout the appeal period.

Effective February 22, 2016, entitlement to special monthly compensation (SMC) based on housebound status is granted.

REMANDED

Entitlement to an initial rating in excess of 40 percent for right upper extremity radiculopathy is remanded.

Entitlement to an initial rating in excess of 30 percent for left upper extremity radiculopathy is remanded.

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FINDINGS OF FACT

1. Throughout the appeal period, the Veteran's cervical spine disorder has approximated the criteria for unfavorable ankylosis of the entire cervical spine.  

2. The Veteran's service-connected cervical spine disorder and associated bilateral upper extremity radiculopathy preclude him from securing or following a substantially gainful occupation. 

3. The Veteran has been granted a single service-connected disability rated at 100 percent and in addition, for the period from February 22, 2016, he has more than 60 percent combined in separate service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for an initial rating of 40 percent for cervical spine disorder throughout the appeal period have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 

2. The criteria for a grant of TDIU are met throughout the appeal period.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.  

3. The criteria to establish SMC pursuant to 38 U.S.C. § 1114(s) have been met from February 22, 2016.  38 U.S.C. §§ 1114, 5107; 38 C.F.R. §§ 3.102, 3.350, 3.351.  

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REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Navy from October 1972 to May 1973.  

These matters come before the Board of Veterans' Appeals (Board) on appeal from an August 2018 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO).  

The Veteran testified before the undersigned Veterans Law Judge in a December 2022 virtual hearing.  A transcript of the hearing is associated with the claims file.  

These matters were previously before the Board in May 2023 when, in pertinent part, they were remanded for additional development.

The Board notes that the May 2023 remand included the matter of entitlement to an initial compensable rating for a headache disorder.  During the pendency of the appeal, an August 2024 rating decision granted an increased (50 percent) rating for the Veteran's headache disorder, effective July 17, 2024.  In May 2025, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) and elected the Hearing Lane docket, regarding entitlement to an initial compensable rating for his service-connected headache disorder for the period prior to July 17, 2024.  Accordingly, such matter is no longer before the Board under the Legacy appeal system, and will be adjudicated pursuant to the Appeals Modernization Act (AMA).  

In March 2024, the Veteran raised a claim for TDIU due to his service-connected cervical spine disorder and associated right and left upper extremity radiculopathy, and this issue is part of the instant appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  See also Phillips v. McDonough, 37 Vet. App. 394 (2024) (stating that TDIU may be part of multiple claims before VA and generally must be adjudicated within each claim stream when the issue of employability has been raised).  

1. Entitlement to an initial rating in excess of 30 percent for a cervical spine disorder.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 
-connected cervical spine disorder and associated right and left upper extremity radiculopathy, and this issue is part of the instant appeal pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009).  See also Phillips v. McDonough, 37 Vet. App. 394 (2024) (stating that TDIU may be part of multiple claims before VA and generally must be adjudicated within each claim stream when the issue of employability has been raised).  

1. Entitlement to an initial rating in excess of 30 percent for a cervical spine disorder.  

Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity.  Separate diagnostic codes identify the various disabilities.  38 U.S.C. § 1155; 38 C.F.R. Part 4.  The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations.  38 C.F.R. § 4.1.  

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3.  

Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55 (1994).  However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999).  

When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria.  See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995).  The Court has clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded.  See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); cf. Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995); Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). 

Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing.  See 38 C.F.R. §§ 4.40, 4.45.  Thus, functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

In Chavis v. McDonough, 34 Vet. App. 1, 20 (2021), the Court held that a claimant may obtain "an evaluation based on ankylosis of a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."  

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or
 by any of the other factors cited above.  In evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. 

In Chavis v. McDonough, 34 Vet. App. 1, 20 (2021), the Court held that a claimant may obtain "an evaluation based on ankylosis of a claimant's functional loss is consistent with that contemplated by ankylosis in other words, if it is the functional equivalent of ankylosis."  

Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), 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 30 percent rating for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine.  A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical 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.

There are several notes following the General Rating Formula criteria, which provide: (1) Associated objective neurological abnormalities are to be rated separately under an appropriate diagnostic code.  (2) For purposes of VA compensation, normal forward flexion of the cervical spine is 0 to 45 degrees, extension is 0 to 45 degrees, left and right lateral flexion is 0 to 45 degrees, and left and right lateral rotation is 0 to 80 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 cervical spine is 340 degrees.  (3) In exceptional cases, an examiner may state that, because of age, range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion in the regulation.  (5) Unfavorable ankylosis is a condition in which the entire cervical spine, or the entire spine, is fixed in flexion or extension.  Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis.  38 C.F.R. § 4.71a.

The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides that incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months warrants a 40 percent rating.  A 60 percent rating is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.

An "incapacitating episode" is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.  38 C.F.R. § 4.71a, Note 1 following the Formula for Rating Based on Incapacitating Episodes.  

The rating criteria regarding the evaluation of spine disabilities were amended, effective February 7, 2021.  Under the amended regulations, application of Diagnostic 5243 is warranted if the disability is manifested by disc herniation with compression and/or irritation of the adjacent nerve root; for all other disabilities, only Diagnostic Code 5242 is for application.  

The Veteran's cervical spine disorder is rated 30 percent under Diagnostic Code 5242 (for degenerative arthritis) from July 24, 2009.  

As there is no evidence of incapacitating episodes based on the cervical spine, and intervertebral disc syndrome (IVDS) of the cervical spine has not been found during the appeal period that was prescribed or treatment by a physician, such criteria is not applicable to the Veteran's claim and will not be addressed further.  See, e.g., June 2014, January 2017 VA neck conditions examinations (finding IVDS but no reports of incapacitating episodes); see also July 2024 VA neck conditions examination (finding no IVDS of the cervical spine).  

After a review of the evidence of record, the Board find that the Veteran is entitled to an initial 40 percent rating, but no higher, throughout the appeal period.   

As highlighted by the Board in the May 2023 remand, all examinations prior to the July 2024 VA neck conditions examination were inadequate as no estimation of range of motion during a flare-up was
 treatment by a physician, such criteria is not applicable to the Veteran's claim and will not be addressed further.  See, e.g., June 2014, January 2017 VA neck conditions examinations (finding IVDS but no reports of incapacitating episodes); see also July 2024 VA neck conditions examination (finding no IVDS of the cervical spine).  

After a review of the evidence of record, the Board find that the Veteran is entitled to an initial 40 percent rating, but no higher, throughout the appeal period.   

As highlighted by the Board in the May 2023 remand, all examinations prior to the July 2024 VA neck conditions examination were inadequate as no estimation of range of motion during a flare-up was provided on any examination.  See Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017) (the examiner should "estimate the functional loss that would occur during flares."); see also DeLuca v. Brown, 8 Vet. App. 202 (1995).  Nonetheless, the VA examinations do provide relevant information as to the severity and functional limitations of the Veteran's cervical spine disorder.  

The evidence of record includes a July 2011 letter from the Veteran's private physical therapist that stated the Veteran had "no functional rotation" of his cervical spine.  

On June 2014 VA neck conditions examination, range of motion testing revealed forward flexion to 30 degrees and extension to 30 degrees.  The Veteran reported intermittent daily pain, and that his treatment included pain medications (i.e., Motrin and Vicodin).  Ankylosis of the spine was not found.  

On January 2017 VA neck conditions examination, range of motion testing revealed forward flexion to 10 degrees and extension to 10 degrees.  The Veteran reported daily pain and using Vicodin about every other day for management of neck and back pain.  He reported the pain was severe and unrelenting and did not describe any flare-ups as the disability at baseline is severe and constant.  While the examiner found the Veteran did not have ankylosis of the spine, the examiner also stated the Veteran had "nearly ankylotic restriction in flexion and extension."     

On July 2024 VA neck conditions examination, range of motion testing revealed forward flexion to 30 degrees and extension to 25 degrees.  No additional loss of function or range of motion was found after repetitive motion testing.  The Veteran denied flare-ups of his cervical spine.  The examiner found that the Veteran had unfavorable ankylosis of the entire cervical spine.  

On July 2024 VA peripheral nerves conditions examination, the Veteran stated that he took Ibuprofen and other pain medication for pain in his arms and cervical spine.  

In Jones v. Shinseki, the United States Court of Appeals for Veterans Claims (Court) held that "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria."  26 Vet. App. 56, 63 (2012).  More specifically, "if [a diagnostic code (DC)] does not specifically contemplate the effects of medication, the Board is required ... to discount the ameliorative effects of medication."  McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc) (citing Jones, 26 Vet. App. at 63).

Further, the Board acknowledges that VA is required "to discount beneficial medication effects when relevant rating criteria do not specifically contemplate medication use."  Ingram v. Collins, 38 Vet. App. 130 (2025).  Here, the beneficial effects of medication are not known and thus the Board has considered it in the adjudication of this matter, resolving all reasonable doubt in the Veteran's favor.  

As indicated above, a 40 percent rating is awarded for unfavorable ankylosis of the entire cervical spine.  Inasmuch as the evidence of record reflects that the Veteran has used pain medications for his cervical spine disorder throughout the appeal period, although the beneficial effects of medication are not known, and the June 2014, January 2017, and July 2024 VA neck conditions examinations are not reflective of the criteria for a 40 percent rating, resolving all reasonable doubt in the Veteran's favor, the Board has considered the beneficial effects of medication in warranting a 40 percent rating throughout the appeal period.  

To the extent the Veteran seeks a rating in excess of 40 percent for his service-connected cervical spine disorder, the Board notes that a higher rating of 50 percent or 100 percent are only warranted for unfavorable ankylosis of the thoracolumbar spine or the entire spine.  Inasmuch as the Veteran is only service-connected
 the appeal period, although the beneficial effects of medication are not known, and the June 2014, January 2017, and July 2024 VA neck conditions examinations are not reflective of the criteria for a 40 percent rating, resolving all reasonable doubt in the Veteran's favor, the Board has considered the beneficial effects of medication in warranting a 40 percent rating throughout the appeal period.  

To the extent the Veteran seeks a rating in excess of 40 percent for his service-connected cervical spine disorder, the Board notes that a higher rating of 50 percent or 100 percent are only warranted for unfavorable ankylosis of the thoracolumbar spine or the entire spine.  Inasmuch as the Veteran is only service-connected for the cervical spine, the criteria for a rating in excess of 40 percent are not applicable to the Veteran.

With regard to whether a separate rating is warranted for any neurological manifestations of the Veteran's cervical spine disorder, the record fails to reflect any neurologic impairment of the Veteran's upper extremities (other than his service-connected right and left upper extremity radiculopathy, addressed below).   Accordingly, a separate rating for any such cervical spine disorder related neurological impairment is not warranted.

For the above reasons, the Board finds that the Veteran's cervical spine disorder warrants an initial 40 percent rating throughout the appeal period, but no higher.  

2. Entitlement to TDIU due to service-connected cervical spine disorder alone.  

A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities.  See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16.  Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014).

To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent.  38 C.F.R. § 4.16(a).  For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability.  Id.  Disabilities that are not service connected cannot serve as a basis for a total disability rating.  38 C.F.R. §§ 3.341, 4.19.  

Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance."  Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86.  Therefore, in adjudicating a TDIU claim, VA must take into account the individual veteran's education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164, 168 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering veteran's experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional
 pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering veteran's 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering veteran's master's degree in education and his part-time work as a tutor).

In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to: the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and nonexertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue.  Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity.  Ray v. Wilkie, 31 Vet. App. 58, 73 (2019).  

At the outset, the Board notes that the Veteran meets the schedular criteria for TDIU effective from July 24, 2009, as his service-connected cervical spine and bilateral upper extremity radiculopathy result from a common etiology.  See 38 C.F.R. § 4.16(a)(2).  

After a review of the evidence of record, the Board finds that, when resolving any reasonable doubt in the Veteran's favor, and without considering any impact of his age or nonservice-connected disabilities, the evidence supports awarding TDIU throughout the appeal period.  

In reaching this determination, the Board emphasizes that the determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that is an adjudicative determination properly made by the Board or the RO.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  

In this regard, the Board notes that the Veteran's employment history since service has primarily involved working in carpentry and repairing motor homes.  See, e.g., December 2024 vocational assessment.  The Veteran's education consists of a high school degree and some college courses.  Id.

It is not clear when the Veteran was last gainfully employed, but it is evident from the evidence of record that he was last gainfully employed well before the underlying claim for an initial increased rating for his cervical spine disorder.  See January 2017 VA back conditions examination (wherein the Veteran reported he had not worked since 1993); cf. December 2024 vocational assessment (noting the Veteran last worked in full-time substantially gainful capacity in the late-1980s).  

Pertinent evidence of record includes a June 2014 VA neck conditions examination that found the Veteran's cervical spine disorder would impact his ability to work if required to perform lifting, pushing, pulling, or prolonged standing or walking.  On January 2017 VA neck conditions examination, the examiner stated that the limited range of motion of the Veteran's neck was severe and the reported complete numbness of both upper arms and forearms and decreased sensation of the hands "would limit adequate functioning in any occupational setting."  On July 2024 VA neck conditions examination, the examiner stated that the Veteran could not stand without a walker and could not lift greater than five pounds.  In a December 2024 vocational assessment, it was opined that it was more likely than not that the Veteran was unable to secure and follow a substantially gainful employment, including unskilled sedentary employment, as a result of his service-connected conditions since at least July 24, 2009.  

Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence of record persuasively weighs in favor of the Veteran whether the functional impairment associated with his service-connected cervical spine disorder and associated bilateral upper extremity radiculopathy, alone, are of such nature and severity as to prevent him from securing or following a substantially gainful employment.  It is significant that the Veteran's post-service employment history consists primarily working in physically demanding types of employment.  Given the evidence regarding the severity of the Veteran's service-connected cervical
 to secure and follow a substantially gainful employment, including unskilled sedentary employment, as a result of his service-connected conditions since at least July 24, 2009.  

Based on the evidence of record, including the evidence highlighted above, the Board finds that the evidence of record persuasively weighs in favor of the Veteran whether the functional impairment associated with his service-connected cervical spine disorder and associated bilateral upper extremity radiculopathy, alone, are of such nature and severity as to prevent him from securing or following a substantially gainful employment.  It is significant that the Veteran's post-service employment history consists primarily working in physically demanding types of employment.  Given the evidence regarding the severity of the Veteran's service-connected cervical spine disorder and associated bilateral upper extremity radiculopathy, and the evidence indicating the Veteran's functional limitations due to his disabilities, both physical and mental, and in light of his individual work experience, training and education, the Board finds that the evidence shows that he is entitled to an award of TDIU throughout the appeal period.  See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013).  

3. Entitlement to SMC based on housebound status.

In light of the above grant of TDIU based solely on the Veteran's service-connected cervical spine disorder and associated bilateral upper extremity radiculopathy, and pursuant to VA's "well-established" duty to maximize a claimant's benefits, the Board finds that the Veteran is entitled to an award of SMC effective from February 22, 2016.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2010); AB v. Brown, 6 Vet. App. 35, 38 (1993); Bradley v. Peake, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").  

Special monthly compensation is payable where the Veteran has a single service-connected disability rated as 100 percent and (1) has additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems, or (2) is permanently housebound by reason of service-connected disability or disabilities.

Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute.  Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling.

In this case, based on the above, the Veteran is in receipt of a 100 percent rating for his cervical spine disorder and associated bilateral upper extremity radiculopathy, throughout the appeal period, based on the grant of a TDIU due to the cervical spine disorder alone.  Additionally, for the period since February 22, 2016, the Veteran is in receipt of an 80 percent rating for his bilateral hearing loss. Thus, the criteria for SMC at the housebound rate are met effective from February 22, 2016. Accordingly, entitlement to SMC at the housebound rate under 38 U.S.C. § 1114(s) is granted, effective February 22, 2016.

REASONS FOR REMAND

4. Entitlement to an initial rating in excess of 40 percent for right upper extremity radiculopathy is remanded.

5. Entitlement to an initial rating in excess of 30 percent for left upper extremity radiculopathy is remanded.

These matters were remanded by the Board in May 2023 to determine the nature and severity of his right and left upper extremity radiculopathy.  

The Veteran was afforded a VA peripheral nerves conditions examination in July 2024.  The examiner indicated that the Veterans right and left upper extremity radiculopathy involved every upper extremity nerve.  

After a review of the July 2024 VA examination, the Board finds that these matters must be remanded for a clarifying opinion prior to adjudication.  It is unclear based on the examination report whether the examiner selected all listed upper extremity nerves because the Veteran's disability encompassed the right and left upper extremities, or whether the Veteran actually found all of the selected nerves were impacted and encompassed by the Veteran's bilateral upper extremity radiculopathy.  Moreover, the Board finds significant that the examiner did not perform a nerve conduction study or electromyography (EMG), and it is
.  The examiner indicated that the Veterans right and left upper extremity radiculopathy involved every upper extremity nerve.  

After a review of the July 2024 VA examination, the Board finds that these matters must be remanded for a clarifying opinion prior to adjudication.  It is unclear based on the examination report whether the examiner selected all listed upper extremity nerves because the Veteran's disability encompassed the right and left upper extremities, or whether the Veteran actually found all of the selected nerves were impacted and encompassed by the Veteran's bilateral upper extremity radiculopathy.  Moreover, the Board finds significant that the examiner did not perform a nerve conduction study or electromyography (EMG), and it is therefore unclear how the examiner determined which nerves were impacted.  These matters must be forwarded to the July 2024 VA examiner, if available, for a clarifying opinion as to how and why the examiner selected all of the upper extremity nerves were impacted by the Veteran's bilateral upper extremity radiculopathy.  

The matters are REMANDED for the following action:

Forward the Veteran's claims file to the July 2024 VA peripheral nerves conditions examiner for an addendum opinion regarding the nature and severity of his right and left upper extremity radiculopathy.  The examiner is asked to address the following: 

(a)	Please clarify the upper extremity nerve(s) associated with the Veteran's bilateral upper extremity radiculopathy.  If the selection of all upper extremity nerves was on accident, please indicate such. 

(b)	Please indicate whether any advanced testing, such as a nerve conduction study or EMG, was performed in determining the specific upper extremity nerves associated with the Veteran's bilateral upper extremity radiculopathy.  If such testing is necessary in order to find what specific nerves are associated with the Veteran's bilateral upper extremity radiculopathy, please indicate such.  

The examiner must provide a rationale for all opinions expressed.  Failure to provide a rationale will result in the opinion being found to be inadequate.  

If unable to provide a medical opinion, provide a statement as to whether there is any additional evidence that could enable an opinion to be provided, and whether the inability to provide the opinion is based on the limits of medical knowledge. 

 

 

Tracie N. Wesner

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	J. Marley, 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.