SPINAL COMPRESSION FRACTURES

NATHANIEL DOAN · 2026 · Case ID: 26003739

MIXED

Summary

The veteran appeals decisions regarding increased ratings for spinal compression fractures and right lower extremity radiculopathy, service connection for headaches and an oral disability, and entitlement to TDIU. The Board granted an increased rating for spinal compression fractures to 40% effective February 4, 2010, finding the veteran's limitation of forward flexion met the criteria. Service connection for headaches and an oral disability (tongue and mouth bleeding) were granted on a secondary basis, linked to the veteran's service-connected idiopathic generalized tonic-clonic epilepsy. The Board denied an increased rating for right lower extremity radiculopathy, finding the veteran's condition did not meet the criteria for more than moderate incomplete paralysis. The claim for TDIU was dismissed as moot because the veteran was already receiving a 100% rating for epilepsy and was eligible for housebound benefits, making the TDIU claim no longer relevant for the appeal period. The Board noted that the grants of increased ratings and service connection would be reviewed by the AOJ to determine if they provided an earlier period of special monthly compensation at the housebound rate.

Rationale

Resolving doubt in Veteran's favor; Forward flexion limited to 30 degrees or less; Met criteria for 40% rating

Special Benefit

TDIU

Docket No.

14-08 701

Full Decision Text

Citation Nr: 26003739
Decision Date: 03/24/26 Archive Date: 03/24/26

DOCKET NO. 14-08 701
DATE: March 24, 2026

ORDER

From February 4, 2010, a rating of 40 percent, but no higher, for spinal compression fractures is granted.

From February 4, 2010, a rating of 100 percent, but no higher, for idiopathic generalized tonic-clonic epilepsy is granted.

Service connection for headaches is granted on a secondary basis.

Service connection for an oral disability, manifested as oral bleeding of the tongue and mouth, is granted on a secondary basis.

A rating in excess of 20 percent for right lower extremity radiculopathy, involving the femoral nerve, is denied.

Entitlement to a total disability rating based on individual unemployability (TDIU) during the appeal period is dismissed as moot.

FINDINGS OF FACT

1. Resolving doubt in the Veteran's favor, from February 4, 2010, his spinal compression fractures more nearly approximate forward flexion limited to 30 degrees or less; and there is no evidence of unfavorable ankylosis of the entire thoracolumbar spine.

2. Resolving doubt in the Veteran's favor, from February 4, 2010, the Veteran's idiopathic generalized tonic-clonic epilepsy more nearly approximated on average, at least 1 major seizure monthly over the last year.

3. The Veteran's headaches are due to his service-connected idiopathic generalized tonic-clonic epilepsy.

4. The Veteran's oral disability, manifested as oral bleeding of the tongue and mouth, is due to his service-connected idiopathic generalized tonic-clonic epilepsy.

5. Throughout the appeal period, the Veteran's right lower extremity radiculopathy was manifested by no more than moderate incomplete paralysis.

6. For the entire appeal period, the Veteran has been in receipt of a 100 percent rating for a single disability; however, prior to January 31, 2017, he does not have additional disabilities independently ratable at 60 percent. From January 31, 2017, he is in receipt of special monthly compensation (SMC) at the housebound rate pursuant to 38 U.S.C. § 1114(s). Pursuant to the grants of service connection contained herein, the AOJ will assign initial ratings which may provide an earlier period of SMC at the housebound rating.

CONCLUSIONS OF LAW

1. From February 4, 2010, the criteria for an initial rating of 40 percent, but no higher, for spinal compression fractures have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5237.

2. The criteria for a rating of 100 percent from February 4, 2010, for the Veteran's epilepsy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8910.

3. The criteria for service connection for headaches, secondary to idiopathic generalized tonic-clonic epilepsy, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310.

4. The criteria for service connection for an oral disability, secondary to idiopathic generalized tonic-clonic epilepsy, have been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.310.

5. The criteria for a rating in excess of 20 percent rating for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8526.

6. The claim for entitlement to a TDIU is moot and the issue is dismissed. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

This matter originally came before the Board of Veterans' Appeals (Board) from July 2010 and October 2010 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office, the agency of original jurisdiction (AOJ
, 4.1, 4.3, 4.7, 4.124a, DC 8526.

6. The claim for entitlement to a TDIU is moot and the issue is dismissed. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran testified at a May 2017 Board video-conference hearing before a Veterans Law Judge (VLJ) who is no longer with the Board. A copy of the hearing transcript is associated with the claims file. In October 2021, the Veteran was informed that the VLJ who conducted the Board hearing was no longer with the Board and the Veteran was offered an opportunity to request a new Board hearing but did not respond.

The Board remanded this matter in February 2018, March 2021, December 2021, and November 2023. The Board finds that additional development is not required in light of the grants provided herein, specifically the grant of a 100 percent rating for epilepsy, the increased ratings for the back disability throughout the appeal period, and the grants of service connection for headaches and oral disability. Accordingly, the Board finds that additional remand will only provide further delay with no additional benefit flowing to the Veteran.

In October 2024, the Veteran was again informed that the VLJ who conducted the Board hearing was no longer with the Board and was offered an opportunity to request a new Board hearing. In December 2024, the Veteran indicated that he does not wish to have another Board hearing.

Increased Ratings

Disability ratings are determined by applying a schedule of ratings that 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. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7.

When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion and in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016).

VA exam
v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria.").

VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990); 38 C.F.R. § 3.102.

1. Entitlement to increased ratings for spinal compression fractures from February 4, 2010.

The Veteran contends he is entitled to increased ratings for his service-connected compression fractures (hereafter "back disability").

The Veteran has been service-connected for his back disability from February 4, 2010. During such period, the Veteran's back disability has been rated noncompensably disabling from February 4, 2010; 20 percent disabling from March 15, 2016; and 40 percent disabling from June 13, 2023, pursuant to DC 5237. 38 C.F.R. § 4.71a.

Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or a combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine.

Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd ed. 2012). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note 5.

Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5.

Turning to the evidence, the May 2010 VA examination report indicates the Veteran's forward flexion is limited to 90 degrees; however, the examiner did not address range of motion during flare-ups or after repeated use over time. The examiner indicated that the
or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5.

In an August 2010 written statement, the Veteran stated that his back pain affects his ability to sleep, even with the use of pain medications. He also stated that he has to wait a while before he can move and that he is unable to play with his granddaughter due to the pain.

In his March 2014 Form 9, the Veteran stated that he has continual pain in his lower back and that the VA examiner focused on his vertebral height and not his pain and the effect it has on him.

The January 2017 VA examination report reflects the Veteran's report that his back pain is constant; has worsened; limits his range of motion; and his physical activity. The report reflects that the Veteran's range of motion on forward flexion is 20 to 40 degrees; and his combined thoracolumbar range of motion is 70 degrees. The Veteran exhibited pain on all motions; and was not able to complete repetitive use testing. The examiner did not provide estimated ranges of motion during flare-ups and after repeated use over time, explaining that such could not be provided without resorting to mere speculation. However, the Veteran reported that during flare-ups, he has "extremely limited range of motion." The Veteran was indicated to have muscle spasm, localized tenderness, and guarding of the thoracolumbar spine that result in abnormal gait or abnormal spinal contour; as well as less movement than normal, instability of station, disturbance of locomotion, interference with sitting, and interference with standing. However, the examiner indicated that the Veteran does not have ankylosis of the spine. The report reflects the Veteran's constant use of a brace and cane; and the examiner's indication that the Veteran has pain on non-weight bearing, specifically midline back pain upon sitting and laying down due to positioning.

At his May 2017 Board hearing, the Veteran stated that when he tries to walk, he has severe pain that "makes me want to fall down to my knees." After sitting for a prolonged period, the pain is severe in his mid and lower back.

The October 2017 VA examination report reflects the Veteran's report of low back pain that prevents him from prolonged sitting, standing, walking, driving, bending, climbing, crawling, or stretching. He also reported daily flare-ups of moderately severe pain. His active range of motion on forward flexion was limited to 45 degrees; and his combined range of motion was 95 degrees. The examiner indicated "very poor ROM due to spasm and pain." The Veteran was unable to complete repetitive use testing; and the examiner did not provide estimated ranges of motion during flare-ups and after repeated use over time, explaining that such could not be provided without resorting to mere speculation. The Veteran was indicated to have muscle spasm, localized tenderness, and guarding of the thoracolumbar spine that result in abnormal gait or abnormal spinal contour but no other additional factors contributing to disability. The Veteran did not have ankylosis of the spine.

The December 2017 VA examination reflects the Veteran's consistent report of constant back pain. The Veteran's back was limited to 50 degrees on forward flexion, and his combined range of motion was 140 degrees. The examiner did not provide estimated ranges of motion during flare-ups and after repeated use over time, explaining that such could not be provided without resorting to mere speculation. The Veteran was indicated to have muscle spasm, localized tenderness, and guarding of the thoracolumbar spine that result in abnormal gait or abnormal spinal contour; as well as disturbance of locomotion. The report reflects the Veteran's constant use of a brace and cane.

In a June 2020 written statement, the Veteran explained that his condition has been constant and his back disability should be rated the same from service connection.

In March 2021, December 2021, and November 2023, the Board remanded these matters for examinations to address the inadequacies of the prior VA examinations, including obtaining retrospective opinions.

The April 2022 VA examination report reflects the Veteran's consistent
ing to mere speculation. The Veteran was indicated to have muscle spasm, localized tenderness, and guarding of the thoracolumbar spine that result in abnormal gait or abnormal spinal contour; as well as disturbance of locomotion. The report reflects the Veteran's constant use of a brace and cane.

In a June 2020 written statement, the Veteran explained that his condition has been constant and his back disability should be rated the same from service connection.

The April 2022 VA examination report reflects the Veteran's consistent report of constant lower back pain. The examiner was unable to test the Veteran's range of motion due to pain or risk of further injury and indicated that the Veteran's disability causes interference with standing, disturbance of locomotion, and less movement than normal due to constant pain due to difficulty bending over, lifting items, prolonged walking, and prolonged standing. However, the examiner indicated that there is no ankylosis. The Veteran's constant use of brace and cane was noted.

In May 2023, a VA examiner explained that based on the examinations of record, clinical judgement, available records, and the Veteran's lay statements, the Veteran's use of medications does not improve his range of motion as he still experiences constant pain to his lower back, despite the use of medications. The May 2023 VA examiner also opined that the Veteran does not have functional ankylosis based on the current examination, clinical judgment, available records, and Veteran's lay statements. In support of such, the examiner indicated the Veteran's range of motion on April 2023 examination. The Board observes that the record does not contain the April 2023 back examination report; but the addendum opinion indicates that the Veteran's forward flexion was limited to 30 degrees; and his combined range of motion was 80 degrees.

The June 2023 VA examination report reflects the Veteran's consistent report of constant back pain with severe flare-ups. His forward flexion was limited to 40 degrees; and his combined range of motion was 140 degrees. Passive motion testing was not conducted as such could aggravate the Veteran's underlying pathology and cause more significant pain due to the Veteran's history of compression fractures with severe spinal pain. During flare-ups, the Veteran's forward flexion was limited to 25 degrees, and his combined range of motion was 75 degrees. The Veteran was indicated to have muscle spasm, localized tenderness, and guarding of the thoracolumbar spine that result in abnormal gait or abnormal spinal contour; as well as less movement than normal, disturbance of locomotion, interference with standing; and difficulty prolonged walking, standing, bending over, and lifting items. The examiner indicated there was no ankylosis and the Veteran constantly used a brace and cane.

In June 2023, a VA examiner opined that it is impossible to provide range of motion estimates without the effects of medication, during flare-ups, and after repeated use over time throughout the appeal period as such would be pure speculation, particularly as there are variations between the examinations.

The January 2024 VA examination report reflects the Veteran's consistent report of constant back pain with severe flare-ups. The examiner was unable to conduct range of motion testing due the Veteran's severe pain. The examination was conducted during a flare-up; however, the examiner did not provide estimated range of motion measurements for such or after repeated use over time. The examiner indicated that the Veteran's disability causes less movement than normal (reflected in limited range of motion), weakened movement (due to increased pain), interference with standing (standing longer than 5 to 10 minutes causes pain); and interference with sitting (sitting for long periods causes pain). The examiner indicated there was no ankylosis and the Veteran constantly used a brace and cane.

The January 2024 VA examiner was asked to provide estimated ranges of motion during flare-ups and after repeated use over time; however, such were not provided as it was indicated that such would be mere speculation.

Based on the foregoing, the Board will resolve doubt in the Veteran's favor and find that he is entitled to a rating of 40 percent, but no higher, for his back disability from the date of service connection, February 4, 2010. In this regard, as the record does not contain consistent adequate range of motion measurements throughout the appeal period during flare-ups or after repeated use over time, the Board finds that during the entire period, the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less. However, a rating in excess of 40 percent is not supported by the evidence of record at any point in the appeal period as
it was indicated that such would be mere speculation.

Based on the foregoing, the Board will resolve doubt in the Veteran's favor and find that he is entitled to a rating of 40 percent, but no higher, for his back disability from the date of service connection, February 4, 2010. In this regard, as the record does not contain consistent adequate range of motion measurements throughout the appeal period during flare-ups or after repeated use over time, the Board finds that during the entire period, the Veteran's forward flexion of the thoracolumbar spine is limited to 30 degrees or less. However, a rating in excess of 40 percent is not supported by the evidence of record at any point in the appeal period as there is no indication that the Veteran has unfavorable ankylosis of the spine.

In this regard, every examination reflects a finding of no ankylosis and there is no indication, evidence, or assertion that the Veteran's spine is not in a neutral position at rest. The Board has considered functional ankylosis under Chavis; however, the Veteran is able to sit, stand, and a VA examiner opined that the Veteran does not have the functional equivalent of ankylosis based on his range of motion measurements throughout the appeal period. Even if the Board were to concede that the Veteran has ankylosis, there is no evidence or assertion of unfavorable ankylosis. Further, the Board observes even if the Board were to concede such, 40 percent rating is the proper rating for favorable ankylosis and is being granted for the entire appeal period based on forward flexion limited to 30 degrees of less.

Accordingly, the Board resolves doubt in the Veteran's favor, and finds that a 40 percent rating, but no higher, is warranted from February 4, 2010. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

2. Entitlement to increased ratings for epilepsy from February 4, 2010.

3. Entitlement to service connection for headaches.

4. Entitlement to service connection for an oral disability, manifested as oral bleeding of the tongue and mouth.

The Veteran contends he is entitled to increased ratings for his service-connected idiopathic generalized tonic-clonic epilepsy (hereafter "epilepsy").

The Veteran has been service-connected for his epilepsy disability from October 27, 1999. During the appeal period, beginning February 4, 2010, the Veteran's epilepsy disability has been rated 80 percent disabling (from July 19, 2005); 40 percent disabling form January 1, 2011; 80 percent from November 20, 2017; and 100 percent disabling form April 5, 2022, under DC 8910.

Under DC 8910, a 10 percent rating is warranted for a confirmed diagnosis of epilepsy with a history of seizures. A 20 percent rating is warranted for at least 1 major seizure in the last 2 years; or at least 2 minor seizures in the last 6 months. A 40 percent rating is warranted for at least 1 major seizure in the last 6 months or 2 in the last year; or averaging at least 5 to 8 minor seizures weekly. A 60 percent rating is warranted with, on average, at least 1 major seizure in 4 months over the last year; or 9 to 10 minor seizures per week. An 80 percent rating is warranted with, on average, at least 1 major seizure in 3 months over the last year; or more than 10 minor seizures weekly. A 100 percent rating is warranted with, on average, at least 1 major seizure monthly over the last year. See 38 C.F.R. § 4.124a.

A major seizure is characterized by generalized tonic-clonic convulsion with unconsciousness. A minor seizure consists of a brief interruption in consciousness or conscious control associated with staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, DC 8910, Note (1), (2). The General Rating Formula provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Note (3) to DC 8910. When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating
staring or rhythmic blinking of the eyes or nodding of the head (pure petit mal), or sudden jerking movements of the arms, trunk, or head (myoclonic type) or sudden loss of postural control (akinetic type). 38 C.F.R. § 4.124a, DC 8910, Note (1), (2). The General Rating Formula provides that there will be no distinction between diurnal and nocturnal major seizures. 38 C.F.R. § 4.124a, Note (3) to DC 8910. When continuous medication is shown necessary for the control of epilepsy, the minimum evaluation will be 10 percent. This rating will not be combined with any other rating for epilepsy. See id. At Note (1). In the presence of major and minor seizures, VA rates the predominating type. See id. at Note (2).

Turning to the evidence, May 2009 VA treatment records reflect the clinician's report that the Veteran's seizures are incompletely controlled, despite consistent medication. The clinician also noted the Veteran's report of headaches and cognitive changes.

The February 2010 VA examination report reflects that the Veteran experienced a seizure in August 2008, October 2008, and February or March 2009. The Veteran then experienced a seizure while driving in January 2010 which led to a motor vehicle accident and his service-connected back disability. The Veteran was taking continuous medication to manage his seizure condition.

In August 2010, the Veteran submitted private treatment records reflecting emergency department care for seizures, despite taking medication for such condition.

September 2012 private treatment records reflect that the Veteran experiences two to three seizures in the prior month and was actively experiencing an episode during the present treatment. The clinician indicated that such seizures are grand mal. The clinician also indicated that associated symptoms with the epilepsy include headaches.

October 2012 VA treatment records reflect the Veteran's report that he was having a seizure, and he was monitored via EEG. Such monitoring captured multiple episodes of generalized irregular multi-spike and slow wave complexes that are most consistent with seizure disorder.

October 2012 private treatment records reflect the Veteran's report that he has breakthrough seizures every few weeks. That same month, the Veteran presented to the emergency department with a headache and his primary symptoms were indicated to be headache and seizures. The Veteran reported that he was having a seizure, and such was noted to be a grande mal seizure.

December 2012 VA treatment records reflect the Veteran's report that he experiences "staring episodes" that occur three times per month; his wife reported that the Veteran is unresponsive for up to 30 minutes during such episodes. After these episodes, the Veteran is confused and tired. He also explained that his seizures are typically preceded by hot flashes, headaches, and dizziness. The Veteran also reported that he experiences two to three headaches per week that are an "intense pressure" sensation, usually focused on the right occipital, sometimes radiating to his eye. To resolve the headache, he typically takes medication and goes to sleep.

January 2013 VA treatment records reflect a neurologist's finding following an EEG study that the Veteran is experiencing a single diffuse spike which is most consistent with the expression of a seizure.

November 2013 private treatment records reflect the Veteran's ongoing presentation to the emergency department for dizziness and the clinician indicated that the Veteran likely experienced a seizure. The treatment records reflect that the Veteran report he had the "onset of an occipital headache" which is "what he normally feels after he has a seizure."

In March 2014, the Veteran asserted that he has at least two seizures per month during which he has a blank stare, confusion about where he is, has to lay down, and feels intense heat. He further asserted that he experiences seizures more frequently than documented in his medical records. Specifically, the Veteran asserted that a sleep study he completed indicated that he was experiencing seizures in his sleep that lead him to wake up with confused and with vertigo.

December 2014 private neurology treatment records reflect the documentation of break-through seizures resulting in spine fracture and tongue bite after a seizure occurred at a gas station. The Veteran reported that he had been experiencing absent seizures the prior five months but that his seizures were relatively well-controlled with medication. Such records indicate that the Veteran's seizure type is grand mal.

February 2016 VA treatment records reflect a neurologist's documentation of the Veteran's history of seizures including the Veteran's report of nocturnal seizures.

In December 2016, the Veteran's ex-wife of 16 years shared her observations of the Veteran's seizures. She explained that he tried various medications; experienced back to back seizures; has stopped him from falling on cement during a seizure; has lost jobs due to caring for the Veteran; and has witnessed
-through seizures resulting in spine fracture and tongue bite after a seizure occurred at a gas station. The Veteran reported that he had been experiencing absent seizures the prior five months but that his seizures were relatively well-controlled with medication. Such records indicate that the Veteran's seizure type is grand mal.

February 2016 VA treatment records reflect a neurologist's documentation of the Veteran's history of seizures including the Veteran's report of nocturnal seizures.

Multiple other lay statements from family members and coworkers were submitting attesting to the observing seizures throughout the appeal period (both at work and in his person life) and the effect such have had on the Veteran and his ability to function. Notably, the Veteran submitted a written statement from his mother who explained that his headaches are a precursor for the seizures.

In May 2017, the Veteran submitted a disability benefits questionnaire completed by a private neurologist, D.B. D.B. indicated that the Veteran experienced two or more minor seizures in the prior six months, specifically, zero to four per week; and at least one major seizure in the prior two years. D.B. explained that the Veteran's seizures remain poorly controlled despite multiple medication regimens.

At his May 2017 Board hearing, the Veteran reported that he has experienced at least 16 or 18 seizures since he was last rated, eight of which required hospitalization or emergency room visits. He explained that most months he has two to three major seizures. He also reported that the medications do not help limit his seizures. His sister reported that they have to watch him constantly for seizures to ensure his safety, including at night, and that such has been going on for years.

The Veteran stated that prior to having a seizure, he has an aura. The Veteran reported that when he has seizures, "I bang my head so much that I have headaches." He and his sister also both testified that he consistently bites his tongue during his seizures.

The December 2017 VA examination report reflects that the Veteran experienced eight episodes of loss of awareness during the prior six months; and nine generalized seizures in the prior year. The Veteran required continuous medication for his seizure disorder. The report reflects that the Veteran experiences two or more minor seizures in the prior six months, specifically, zero to four per week; and at least one major seizure in three months over the past year.

The April 2022 VA examination report reflects that the Veteran has two to three seizures per month that last five to ten minutes and cause him to bite his tongue and lose control of his bladder. The Veteran has seizures with convulsions as well as seizures during which he "stares into space." The Veteran's most recent seizure occurred in March 2022. The report reflects that the Veteran experiences two or more minor seizures in the prior six months, specifically, zero to four per week; and at least two major seizures in the past year, specifically at least 1 per month over the prior year.

The April 2022 examiner explained that from February 2010, the Veteran "still" has seizures weekly; that headaches are common with seizures, and that his mouth, and tongue bleeding are a result of having seizures. The examiner explained that during the entire appeal period, the Veteran experiences headaches before and after his seizures and sometimes bites his tongue which causes bleeding; the Veteran's headaches cause him difficulty sleeping.

An addendum opinion provided by a VA examiner in October 2022 reflects that the Veteran has two to three seizures per month and is unable to drive or work.

The Veteran presented for another VA examination in April 2023; however, such appears to be primarily a compilation of prior treatment records. The April 2023 examiner opined that the Veteran is not experiencing frequent seizures. The Board affords such finding low probative value as it does not address the voluminous treatment records throughout the appeal period.

The Board finds that the April 2022 VA examination report and addendum opinions are the most competent evidence of record. In this regard, such findings reflect the consistent lay statements put forth by the Veteran, his family members, and his coworkers regarding the severity and frequency of his seizures and the effect of such throughout the appeal period. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). Moreover, the other VA examination reports of record do not address the headaches, mouth and tongue bleeding consistently reported with and due to the Veteran's seizures.

Accordingly, based on the April 2022 VA examiner's findings
address the voluminous treatment records throughout the appeal period.

Accordingly, based on the April 2022 VA examiner's findings; the private and VA treatment records; and the lay evidence, the Board finds that the Veteran is entitled a 100 percent rating for his epilepsy from February 4, 2010.

In Wilson v. McDonough, the Court held that VA is obligated to identify, develop, and adjudicate claims for secondary service connection that are reasonably raised during the processing of a properly initiated claim as to the primary service-connected disability's evaluation level, which may include complications of the primary service-connected disability and claims that logically relate to the pending claim. 35 Vet. App. 103 (2022).

In this regard, the Board finds that service connection for headaches and an oral disability on a secondary basis are warranted as such are due to the Veteran's service-connected epilepsy. The record contains consistent reporting of such symptoms throughout the appeal period including in both private and VA treatment records and as well as sworn statements made by the Veteran at his May 2017 Board hearing. Moreover, the April 2022 VA examiner opined that such are consistent with and due to his seizures throughout the entire appeal period, from February 4, 2010. Accordingly, service connection for headaches and service connection for oral disability, manifested as tongue and mouth bleeding are warranted. 38 C.F.R. § 3.310.

5. Entitlement to a rating in excess of 20 percent for right lower extremity radiculopathy, involving the femoral nerve, from March 15, 2016.

The Veteran contends he is entitled to an increased rating for right lower extremity radiculopathy (hereafter "radiculopathy").

From March 15, 2016, the Veteran's radiculopathy has been rated 20 percent disabling under DC 8526.

Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8526. Under DC 8526 a 10 percent rating is warranted for mild incomplete paralysis of the femoral nerve. A 20 percent rating is warranted when moderate, and a 30 percent rating when severe. Complete paralysis of the quadriceps extensor muscles warrants a maximum evaluation of 40 percent. 38 C.F.R. § 4.124a.

Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124.

The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of 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. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017).

Neither the Rating Schedule nor the regulations provide definitions for descriptive words such as "mild," "moderate," and "severe." The Board notes that it should consider and discuss relevant provisions from VA's Adjudications Procedures Manual (M21-1) as part of its duty to provide adequate reasons and bases. Overton v. Shinseki, 30 Vet. App. 257, 264 (2018). Here, 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 will consider. Specifically, 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
"severe." The Board notes that it should consider and discuss relevant provisions from VA's Adjudications Procedures Manual (M21-1) as part of its duty to provide adequate reasons and bases. Overton v. Shinseki, 30 Vet. App. 257, 264 (2018). Here, 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 will consider. Specifically, 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. 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.

Considering the evidence of record, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran's radiculopathy as there is no competent evidence to support a finding that the Veteran has had worse than moderate, incomplete paralysis.

The January 2017 VA examination report reflects lumbar radiculopathy; specifically, right lower extremity moderate intermittent pain; mild paresthesias and/or dysesthesias; and mild numbness. The examiner indicated that the Veteran's right side radiculopathy severity is "moderate."

The December 2017 VA examination report reflects right lower extremity moderate intermittent pain; mild paresthesias and/or dysesthesias; and mild numbness. The examiner indicated that the Veteran's femoral nerve is involved and the severity of the Veteran's right side radiculopathy is "mild."

The April 2022 VA examination report reflects right lower extremity moderate constant pain; moderate paresthesias and/or dysesthesias; and moderate numbness. The examiner indicated that the femoral nerve is involved on both sides.

The January 2024 VA examination report reflects right lower extremity moderate constant pain; moderate intermittent pain; moderate paresthesias and/or dysesthesias; and moderate numbness. All strength testing revealed normal strength; all reflexes were normal; and all light touch testing results were normal. The Veteran had no muscle atrophy or trophic changes. The examiner indicated that the Veteran's radiculopathy is moderate.

The Veteran has not provided any specific argument or assertion supporting the contention that a rating in excess of 20 percent is warranted for his radiculopathy. Moreover, the Board finds that the all of the VA examinations across the appeal period noted that the severity of the radiculopathy is moderate. In this regard, while the Veteran is competent to report symptoms related to his radiculopathy, such as increased pain, see Layno v. Brown, 6 Vet. App. 465, 469 (1994), he is not competent to determine the severity of such or link any subjective symptoms to a specific level of incomplete paralysis of the affected nerve, as such a finding requires medical expertise and training to make the appropriate determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).

Accordingly, based on the foregoing, the Board finds that a rating in excess of 20 percent is not warranted for the right lower extremity radiculopathy. As the weight of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102.

6. Entitlement to a TDIU prior to January 31, 2017.

Entitlement to a TDIU from February 4, 2010, to January 30, 2017, is before the Board in this appeal as part of the claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). However, based on the grant provided herein, during the appeal period, starting February 4, 2010, the Veteran is in receipt of a 100 percent rating for his epilepsy.

Nevertheless, a 100 percent disability rating does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC pursuant to 38 C.F
to a TDIU from February 4, 2010, to January 30, 2017, is before the Board in this appeal as part of the claims for increased ratings. Rice v. Shinseki, 22 Vet. App. 447, 454-55 (2009). However, based on the grant provided herein, during the appeal period, starting February 4, 2010, the Veteran is in receipt of a 100 percent rating for his epilepsy.

Nevertheless, a 100 percent disability rating does not always render the issue of a TDIU moot. VA's duty to maximize a claimant's benefits includes consideration of whether his disabilities establish entitlement to SMC pursuant to 38 C.F.R. § 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011). That statute provides for additional compensation if the Veteran is in receipt of a 100 percent rating and has additional disabilities independently ratable at 60 percent or higher. The United States Court of Appeals for Veterans Claims has held that a 100 percent schedular rating does not render TDIU moot if the TDIU is predicated on one service-connected disability, and as such, would assist the Veteran in obtaining SMC pursuant to 38 U.S.C. § 1114(s). See Bradley v. Peake, 22 Vet. App. 280, 294 (2008); Buie, 24 Vet. App. at 250-51. Here, the Veteran is in receipt of SMC pursuant to 38 U.S.C. § 1114(s) from January 31, 2017, forward.

Based on the current ratings, the Veteran is not entitled to SMC (s) prior to January 31, 2017, as his other disabilities are not independently ratable at 60 percent or higher. Prior to January 31, 2017, the Veteran is service-connected for compression fractures, rated 40 percent disabling, from February 4, 2010; and right lower extremity radiculopathy, involving the femoral nerve, rated 20 percent disabling from March 15, 2016. The combined rating for such disabilities is 50 percent. Entitlement to SMC (s) requires additional disabilities independently ratable at 60 percent.

The Board observes that in implementing the awards of service connection for headaches and oral disability, the Veteran's combined rating throughout the appeal period may change. However, such is a downstream issue, and the rating of such disabilities is not before the Board at this time. Accordingly, entitlement to TDIU throughout the appeal period is dismissed as moot and the Veteran is not entitled to additional SMC(s) at this time.

Nathaniel Doan

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board N. M. Younan

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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