DEPRESSION

DAVID GRATZ · 2025 · Case ID: A25111390

MIXED

Summary

The Veteran, an Army Veteran who served from October 1971 to November 1974, appeals a March 2020 rating decision. The appeal concerns entitlement to increased ratings for acquired psychiatric disorder, right and left upper extremity impairment, and right and left lower extremity impairment, as well as entitlement to Special Monthly Compensation (SMC) for aid and attendance. The Board granted a 70 percent rating for the acquired psychiatric disorder, finding the Veteran's symptoms, including passive suicidal ideation and hopelessness, met the criteria for this rating. The Board denied increased ratings for the upper extremities, finding the Veteran's severe tremor, rigidity, and slowed motion did not rise to the level of complete paralysis of the radial nerve. However, the Board granted a 60 percent rating for both the right and left lower extremity impairments, concluding that the Veteran's severe tremor, rigidity, slowed motion, and need for assistive devices like a walker and wheelchair met the criteria for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The Board also granted SMC for aid and attendance, finding the Veteran required regular assistance with basic activities of daily living due to his service-connected Parkinson's disease and its manifestations.

Rationale

Symptoms consistent with 70% rating criteria; Passive suicidal ideation present; Occupational and social impairment

Service Branch

ARMY

Special Benefit

SMC - AID & ATTENDANCE

Docket No.

230929-383147

Full Decision Text

Citation Nr: A25111390
Decision Date: 12/31/25 Archive Date: 12/31/25

DOCKET NO. 230929-383147
DATE: December 31, 2025

ORDER

Entitlement to an initial rating of 70 percent for depression and dementia with insomnia (hereinafter referred to as an acquired psychiatric disorder) is granted, effective July 29, 2016.

Entitlement to an initial rating in excess of 50 percent for right upper extremity impairment is denied.

Entitlement to an initial rating in excess of 40 percent for left upper extremity impairment is denied.

Entitlement to an initial rating of 60 percent for right lower extremity impairment is granted, effective July 29, 2016.

Entitlement to an initial rating of 60 percent for left lower extremity impairment is granted, effective July 29, 2016.

Entitlement to special monthly compensation (SMC) based on the need for aid and attendance is granted, effective July 29, 2016.

FINDINGS OF FACT

1. Effective from July 29, 2016, the evidence persuasively favors finding the Veteran's acquired psychiatric disorder has been productive of occupational and social impairment with deficiencies in most areas; total occupational and social impairment has not been shown.

2. Throughout the appeal period, the Veteran's right upper extremity impairment approximates no more than severe incomplete radial nerve paralysis.

3. Throughout the appeal period, the Veteran's left upper extremity impairment approximates no more than severe incomplete radial nerve paralysis.

4. Throughout the appeal period, the Veteran's right lower extremity impairment has more nearly approximated severe incomplete paralysis of the sciatic nerve.

5. Throughout the appeal period, the Veteran's left lower extremity impairment has more nearly approximated severe incomplete paralysis of the sciatic nerve.

6. Throughout the appeal period, it was factually ascertainable that the Veteran has needed the aid and attendance of another person to perform activities of daily living (ADL) due to his service-connected disabilities.

CONCLUSIONS OF LAW

1. Effective July 29, 2016, the criteria for an initial 70 percent rating, but no higher, for the Veteran's acquired psychiatric disorder are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Codes 8004-9434.

2. Throughout the appeal period, the criteria for an initial rating in excess of 50 percent for right upper extremity impairment have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Codes 8004-8514.

3. Throughout the appeal period, the criteria for an initial rating in excess of 40 percent for left upper extremity impairment have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8514.

4. Effective July 29, 2016, the criteria for an initial 60 percent rating, but no higher, for the Veteran's right lower extremity impairment are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8520.

5. Effective July 29, 2016, the criteria for an initial 60 percent rating, but no higher, for the Veteran's left lower extremity impairment are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.124a, Diagnostic Code 8520.

6. Throughout the appeal period, the criteria for SMC based upon the need for aid and attendance of another person have been met. 38 U.S.C. §§ 1114(l), 5107, 5110; 38 C.F.R. §§ 3.350(b), 3.352, 3.400, 3.401.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1971 to November 1974.

On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. 84 Fed. Reg. 138
the criteria for SMC based upon the need for aid and attendance of another person have been met. 38 U.S.C. §§ 1114(l), 5107, 5110; 38 C.F.R. §§ 3.350(b), 3.352, 3.400, 3.401.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from October 1971 to November 1974.

On August 23, 2017, the Veterans Appeals Improvement and Modernization Act, also known as the Appeals Modernization Act (AMA), was signed into law. 84 Fed. Reg. 138,171 (Jan. 18, 2019). This law creates a new framework for Veterans dissatisfied with the Department of Veterans Affairs (VA's) decision on their claim to seek review. The AMA became effective on February 19, 2019.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2023 decision by the Agency of Original Jurisdiction (AOJ). In September 2023, the Veteran submitted a VA Form 10182 (Decision Review Request: Board Appeal) and elected the Evidence Submission docket. The Board finds that consistent with 38 C.F.R. § 3.2500, the Veteran's claim is on appeal from a March 2020 rating decision, the rating decision from which the Veteran has continuously pursued his claim.

Increased Rating

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).

1. Entitlement to initial increases in the staged ratings (of 30 percent prior to September 30, 2021, and 70 percent since September 30, 2021) for depression and dementia with insomnia (hereinafter referred to as an acquired psychiatric disorder)

This appeal originated from a March 2020 rating decision that granted service connection for the Veteran's acquired psychiatric disorder, effective July 29, 2016 (secondary to his service-connected Parkinson's disease). Presently, the Veteran's acquired psychiatric disorder is rated 30 percent disabling effective from July 29, 2016, and 70 percent disabling effective from September 30, 2021. As the maximum rating has not been assigned, the Veteran has continued his appeal, and the claim has been characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran's acquired psychiatric disorder is rated under 38 C.F.R. § 4.130, Diagnostic Codes 8004-9434 (the General Rating Formula for Mental Disorders (General Formula)), which provides for a 30 percent rating is warranted when the evidence shows occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent
See AB v. Brown, 6 Vet. App. 35 (1993).

A 50 percent rating is warranted when the evidence shows occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is warranted when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id.

A maximum 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id.

Under the General Formula, the Board must conduct a "holistic analysis" that considers all associated symptoms, regardless of whether they are listed as criteria. Bankhead v. Shulkin, 29 Vet. App. 10, 22 (2017). The use of the term "such symptoms as" in 38 C.F.R. § 4.130 indicates that the list of symptoms that follows is non-exhaustive, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. See Vazquez-Claudio v. Shinseki, 713 F.3d 112, 115 (Fed. Cir. 2013); see also Sellers v. Principi, 372 F.3d 1318, 1326-27 (Fed. Cir. 2004); Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board's "primary consideration" is the Veteran's symptoms. Vazquez-Claudio, 713 F.3d at 118.

After a review of the evidence of record, the Board finds that the Veteran is entitled to an initial 70 percent rating throughout the appeal period (i.e., since July 29, 2016).

In reaching this finding, the Board acknowledges the Veteran's complaint of feeling sad and hopeless about the impact of his disease on his family in a June 2020 VA mental disorders examination. In a December 2020 Dr. M.C. private medical report, it was noted that the Veteran had passive suicidal ideation without plan or intent. It was further reported that the Veteran has had severe and classic signs and symptoms of depression since at least 2015, and has led to anhedonia, hopelessness, helplessness and despair.

As highlighted by the United States Court of Appeals for Veterans Claims (Court) in Bankhead v. Shulkin, suicidal ideation operates on a continuum, with passive suicidal ideation (i.e., wishing to go to sleep and not wake up) at one end of the continuum, and active suicidal ideation (i.e., thinking of killing oneself) at the other end of the continuum. 29 Vet. App. 10, 19-20 (2017).

The criteria for a 70 percent rating under the General
was further reported that the Veteran has had severe and classic signs and symptoms of depression since at least 2015, and has led to anhedonia, hopelessness, helplessness and despair.

The criteria for a 70 percent rating under the General Formula does not require suicidal intent, plan, or preparatory behavior. Id. at 20. The presence of suicidal ideation alone may cause occupational and social impairment in most areas. Based on his symptomatology, the Board finds the evidence persuasively favors finding the Veteran's service-connected acquired psychiatric disorder is consistent with and reflective of occupational and social impairment with deficiencies in most areas. The Board finds that the Veteran's report of hopelessness on June 2020 VA mental disorders examination is consistent with the same symptomatology reported in the December 2020 Dr. M.C. private medical report which found his severe symptomatology, including hopelessness and passive suicidal ideation, has been present since at least 2015. Accordingly, the Veteran is entitled to an initial increased rating of 70 percent for his acquired psychiatric disorder for the period prior to September 30, 2021. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc).

To the extent the Veteran seeks an initial rating in excess of 70 percent for his acquired psychiatric disorder, the Board does not find that the Veteran's symptoms are generally of similar severity, frequency, and duration as those described in the higher rating criteria for a 100 percent rating so as to be in approximate balance to warrant such a rating. In this case, the Veteran was afforded examinations in February 2020, June 2020, October 2021 and May 2023 during the period on appeal. No examiner found that the Veteran had symptoms such as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); or disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. While there is documented evidence of and reports of passive suicidal ideation, including feelings of hopelessness, the criteria for a 100 percent rating included persistent danger of hurting self or others, symptomatology which has not been present, or alleged to have been present, at any point during the appeal period. See also Bankhead, 29 Vet. App. at 21 (indicating that to the extent the risk of self-harm is expressly mentioned in § 4.130 at all, it is referenced in the criteria for a 100 percent evaluation).

The Board notes that the Veteran has indicated he has been happily married to his wife since 1973. See May 2023 VA mental disorders examination. Moreover, the evidence reflects that he has three adult children and six grandchildren, which he described the relationship as "a blessing." Id. Additionally, at the June 2020 VA mental disorders examination, the Veteran reported that he socially gets along with others and maintains friendships. Taken together, the evidence of record is not reflective, tantamount to, or approximate to total social impairment or the inability to establish and maintain effective relationships.

As a whole, the Board finds that the evidence is not consistent with or reflective of symptoms of a severity, frequency, and duration as those described in the higher rating criteria for a 100 percent rating so as to be in approximate balance to warrant such a rating. Accordingly, the Board finds that a 70 percent rating, but no higher, is warranted, effective from July 29, 2016, for the Veteran's service-connected acquired psychiatric disorder.

2. Entitlement to an initial rating in excess of 50 percent for right upper extremity impairment.

3. Entitlement to an initial rating in excess of 40 percent for left upper extremity impairment.

This appeal originated from a March 2020 rating decision that granted service connection for the Veteran's right and left upper extremity impairment, effective July 29, 2016 (secondary to his service-connected Parkinson's disease). Presently, the Veteran's right upper extremity impairment is rated 50
balance to warrant such a rating. Accordingly, the Board finds that a 70 percent rating, but no higher, is warranted, effective from July 29, 2016, for the Veteran's service-connected acquired psychiatric disorder.

2. Entitlement to an initial rating in excess of 50 percent for right upper extremity impairment.

3. Entitlement to an initial rating in excess of 40 percent for left upper extremity impairment.

This appeal originated from a March 2020 rating decision that granted service connection for the Veteran's right and left upper extremity impairment, effective July 29, 2016 (secondary to his service-connected Parkinson's disease). Presently, the Veteran's right upper extremity impairment is rated 50 percent disabling effective from July 29, 2016, and 40 percent disabling for the left upper extremity impairment. As the maximum rating has not been assigned, the Veteran has continued his appeal, and the claim has been characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran's right and left upper extremity impairment (secondary to his service-connected Parkinson's disease) is rated under Diagnostic Codes 8004-8514 (right upper extremity) and 8514 (left upper extremity), which provides a 50 percent rating for severe incomplete paralysis of the radial nerve of the major extremity, and 40 percent for the minor extremity. A rating of 70 percent is warranted for complete paralysis of the radial nerve of the major extremity, characterized by drop of hand and fingers, wrist and fingers perpetually flexed, the thumb adducted falling with the line of the outer border of the index finger; cannot extend hand at wrist, extend proximal phalanges of fingers, extend thumb, or make lateral movement of wrist; supination of hand, extension and flexion of elbow weakened, the loss of synergic motion of extensors impairs the hand grip seriously; total paralysis of the triceps occurs only as the greatest rarity. A rating of 60 percent is warranted for complete paralysis of the radial nerve of the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8514.

The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that 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.

The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6.

At the outset, the Board notes that the Veteran is right hand dominant, and thus his right upper extremity is referred to as the major extremity, and his left upper extremity is referred to as the minor extremity. See, e.g., October 2020 VA hand and finger conditions examination.

After a review of the evidence of record, the Board finds that the evidence is persuasively against a finding that an initial rating in excess of the currently assigned 50 and 40 percent ratings for the right and left upper extremity impairment is warranted. In reaching this finding, as provided above, in order for the Veteran to be warranted an initial increased rating in excess of his currently assigned ratings, the Veteran's disabilities must be manifested by complete paralysis of the radial nerve. At no time during the appeal period has the Veteran's right and left upper extremity impairment been reflective of, tantamount to, or approximated the criteria for complete paralysis of the radial nerve. In reaching this finding, the Board notes that throughout the appeal period, the Veteran's right and left upper extremity impairment has been manifested by symptoms such as severe tremor, severe muscle rigidity and stiffness, and moderate bradykinesia or slowed motion. See, e.g., February 2020 VA Parkinson's disease examination; January 2022 Parkinson's disease examination. The Board also acknowledges the Veteran's disability has caused functional impairment, including
, the Veteran's disabilities must be manifested by complete paralysis of the radial nerve. At no time during the appeal period has the Veteran's right and left upper extremity impairment been reflective of, tantamount to, or approximated the criteria for complete paralysis of the radial nerve. In reaching this finding, the Board notes that throughout the appeal period, the Veteran's right and left upper extremity impairment has been manifested by symptoms such as severe tremor, severe muscle rigidity and stiffness, and moderate bradykinesia or slowed motion. See, e.g., February 2020 VA Parkinson's disease examination; January 2022 Parkinson's disease examination. The Board also acknowledges the Veteran's disability has caused functional impairment, including incoordination of the hands, inability to perform fine motor activity (e.g., buttoning clothing, tying his shoes), inability to drive as well as his report of extreme weakness in his bilateral arms. See, e.g., October 2020 VA hand and finger conditions examination; October 2021 VA peripheral nerves conditions examination.

Nonetheless, the Veteran's right and left upper extremity impairment have not reflected the criteria for complete paralysis of the radial nerve, including during a flare-up. On October 2020 VA hand and finger conditions, range of motion testing revealed significant range of motion of the Veteran's individual fingers. At no time during the appeal period has an examiner found that the Veteran had ankylosis of either upper extremity, or that functional impairment was such that no effective function remained other than that which would be equally well served by an amputation with prosthesis. See, e.g., October 2020 VA hand and finger conditions examination; October 2021 VA peripheral nerves conditions examination. Significantly, on June 2023 VA Parkinson's disease examination, the Veteran reported that he needed assistance with preparing meals but that he was able to feed himself, and that while it was becoming more difficult for him to write and that his writing was becoming less legible, he was still able to write. The Board finds that such objective findings and reported functional impairment are not reflective of the criteria for complete paralysis of the radial nerve of the right or left upper extremity.

In reaching this determination, 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). Inasmuch as the treatment records reflect that the Veteran has used various medications for his Parkinson's disease throughout the appeal period, although the beneficial effects of medication are not known, the Board has considered the beneficial effects of medication in determining whether the Veteran's right and left upper extremity impairment warranted an initial increased rating.

The Board acknowledges evidence suggesting the Veteran has complete paralysis of the radial nerve. See, e.g., August 2021 Independent Pain Management Medical Examination. However, even where indicated, physical examination findings contradict such a finding. Id. (stating complete paralysis of the radial nerve, but also finding bilateral shoulder abduction to 180 degrees, bilateral elbow flexion to 150 degrees, and bilateral wrist/hand flexion to 60 degrees, and no findings reflective of the criteria for complete paralysis of the radial nerve). Hence, while the Board finds such evidence is significant as to the functional impairment caused by the Veteran's right and left upper extremity impairment, such is consistent with the current ratings of 50 and 40 percent for severe incomplete paralysis of the radial nerve.

In sum, the Board finds that the Veteran's right and left upper extremity impairment do not warrant initial ratings in excess of the currently assigned 50 and 40 percent ratings.

4. Entitlement to initial increases in the staged ratings (of 40 percent prior to February 24, 2020, and 60 percent since February 24, 2020) for right lower extremity impairment.

5. Entitlement to initial increases in the staged ratings (of 40 percent prior to February 24, 2020, and 60 percent since February 24, 2020) for left lower extremity impairment.

This appeal originated from a March 2020 rating decision that granted service connection for the Veteran's right and left lower extremity impairment, effective July 29, 2016 (secondary to his service-connected Parkinson's disease). Presently, the Veteran's right and left lower extremity impairment is rated 40 percent disabling effective from July 29, 2016, and 60 percent disabling effective from February 24, 2020. As the maximum rating has not been assigned, the Veteran has continued his appeal, and the claim has been characterized accordingly. See AB v. Brown, 6 Vet. App. 35 (1993).

The Veteran's right and left lower
) for left lower extremity impairment.

The Veteran's right and left lower extremity impairment is rated under Diagnostic Code 8520, which provides a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve, and 60 percent for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520.

After a review of the evidence of record, the Board finds that the Veteran is entitled to an initial 60 percent rating throughout the appeal period (i.e., since July 29, 2016) for his right and left lower extremity impairment.

As indicated above, a 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The Board notes that the evidence of record shows that the Veteran's disability is manifested by severe tremor and muscle rigidity and stiffness of the right and left lower extremity throughout the appeal period. See, e.g., February 2020 VA Parkinson's disease examination. Additionally, the evidence also shows that he has employed constant use of a walker and regular use of a motorized scooter throughout the appeal period, as well as use of a wheelchair. See, e.g., October 2020 VA peripheral nerves conditions examination; August 2021 Independent Pain Management Examination. The Veteran's spouse has also stated he constantly bumps into walls, cannot control his steps, has to hold on to pieces of furniture while ambulating within the house and has fallen several times. See January 2019 B.S. lay statement. The Board also 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). Inasmuch as the treatment records reflect that the Veteran has used various medications for his Parkinson's disease throughout the appeal period, although the beneficial effects of medication are not known, resolving all reasonable doubt in the Veteran's favor, the Board has considered the beneficial effects of medication in warranting an initial 60 percent rating throughout the appeal period for the Veteran's right and left lower extremity impairment.

To the extent the Veteran seeks an initial rating in excess of 60 percent for right and left lower extremity impairment, the Board finds the evidence persuasively against such a finding. As provided above, a rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. The Board acknowledges the Veteran's use of assistive devices during the appeal period, including a wheelchair, cane, walker and motor
has considered the beneficial effects of medication in warranting an initial 60 percent rating throughout the appeal period for the Veteran's right and left lower extremity impairment.

To the extent the Veteran seeks an initial rating in excess of 60 percent for right and left lower extremity impairment, the Board finds the evidence persuasively against such a finding. As provided above, a rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. The Board acknowledges the Veteran's use of assistive devices during the appeal period, including a wheelchair, cane, walker and motorized scooter. See, e.g., October 2021 VA peripheral nerves conditions examination. The Board also acknowledges the Veteran's complaints of extreme lower extremity weakness, and the need for his spouse to assist him with bathing. See June 2023 VA Parkinson's disease examination. As noted above, the Veteran's spouse has submitted lay statements as to the Veteran's need to hold on to pieces of furniture while ambulating within the house and has fallen several times. See January 2019 B.S. lay statement.

Nonetheless, the objective medical evidence of record is not reflective of, consistent with, or tantamount to complete paralysis of the sciatic nerve of the right or left lower extremity. The evidence includes findings showing diminished (1+) reflex examination findings at the bilateral knee and ankle, decreased (4/5) muscle strength testing on bilateral knee extension, ankle plantar flexion and ankle dorsiflexion, and decreased sensory examination findings at the feet and toes. See October 2020 VA peripheral nerves conditions examination; October 2021 VA peripheral nerves conditions examination. Notably, on June 2023 VA Parkinson's disease examination, the Veteran reported he could only walk maybe 100 yards. As a whole, the evidence reflects that the Veteran's right and left lower extremity impairment is severe in nature, but not severe enough to warrant an initial increased rating of 80 percent for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost.

In sum, the Board finds that the Veteran is entitled to an initial increased rating of 60 percent for his right and left lower extremity impairment effective from July 29, 2016, but no higher. The evidence persuasively weighs against entitlement to an initial rating in excess of 60 percent at any point during the appeal period.

6. Entitlement to SMC based on the need for aid and attendance.

At the outset, the Board notes that the Veteran has been awarded SMC based on the need for aid and attendance 38 U.S.C. § 1114(l) and 38 C.F.R. § 3.350(b) effective from February 11, 2020. See May 2024 Board decision; see also June 2024 rating decision (implementing the May 2024 Board decision).

VA has a duty to infer a claim for SMC when the evidence of record indicates potential entitlement. See Akles v. Derwinski, 1 Vet. App. 118 (1991). Pursuant to VA's "well-established" duty to maximize a claimant's benefits, the Board finds that the matter of entitlement to SMC based on the need for aid and attendance is before the Board. 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").

The Board notes that the May 2024 Board decision and June 2024 rating decision do not constitute evidence and are not subject to the evidentiary windows defined in 38 C.F.R. § 20.303. Therefore, the Board can consider actions taken by the Board after the August 2023 decision on appeal in making the decision presently before the Board. See Hime v. McDonald, 28 Vet. App. 1, 7 (2016) ("[A]lthough a Board decision represents the Board's determination as to the correct facts of a case and application of law to those facts, a Board decision is not, itself, evidence."), aff'd sub nom. Hime v. Shulkin, 681 F. App'x 976 (Fed. Cir
4 rating decision do not constitute evidence and are not subject to the evidentiary windows defined in 38 C.F.R. § 20.303. Therefore, the Board can consider actions taken by the Board after the August 2023 decision on appeal in making the decision presently before the Board. See Hime v. McDonald, 28 Vet. App. 1, 7 (2016) ("[A]lthough a Board decision represents the Board's determination as to the correct facts of a case and application of law to those facts, a Board decision is not, itself, evidence."), aff'd sub nom. Hime v. Shulkin, 681 F. App'x 976 (Fed. Cir. 2017); see also Green v. McDonough, 37 Vet. App. 127, 136 (2024).

Determinations as to need for aid and attendance must be based on actual requirements of personal assistance from others. In making such determinations, consideration is given to such conditions as the following: inability of claimant to dress or undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance which by reason of the particular disability cannot be done without aid; inability of claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352(a). It is not required that all the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made. The personal functions which the Veteran is unable to perform should be considered in connection with his 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. Id.

Although a veteran need not show all of the disabling conditions identified in 38 C.F.R. § 3.352(a) to establish entitlement to aid and attendance, the Court has held that it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present." Turco v. Brown, 9 Vet. App. 222, 224 (1996).

The particular personal functions which a 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 a veteran is so helpless as to need regular aid and attendance, not that there be a constant need. Determinations that a veteran is so helpless, as to be in need of regular aid and attendance will not be based solely on an opinion that a veteran's condition is such that it would require him or her to be in bed. They must be based on the actual requirements of personal assistance from others. 38 C.F.R. § 3.352(a); Turco, 9 Vet. App. at 224.

The pertinent evidence of record includes a January 2019 statement from the Veteran's spouse, B.S., stating that she has to help the Veteran cut up his food due to the risk of choking and help him get dressed, and that he has fallen several times.

A January 2020 Board decision granted service connection for Parkinson's disease.

On February 2020 VA Parkinson's disease examination, the examiner found moderate cognitive impairment or dementia, moderate bradykinesia or slowed motion, moderate loss of automatic movements, severe tremor of all extremities, and severe muscle rigidity and stiffness of all extremities. It was also noted the Veteran had severe difficulty with chewing and swallowing.

In April 2020, the Veteran was awarded service connection for various manifestations of his Parkinson's disease, to include right and left upper extremity impairment, right and left lower extremity impairment, difficulty chewing and swallowing, and loss of automatic movements. See April 2020 rating decision.

On October 2020 VA aid and attendance examination, it was noted that the Veteran's spouse drove him to the examination. It was indicated that he had sustained falls in his home because of poor balance. The examiner noted that the Veteran's wife prepares his meals, although he was able to feed himself with the exception of tough meats such as steak, which are cut for him by his wife. He required intermittent assistance with dressing, toileting, and grooming. He was unable to use buttons or zippers.

In a December 2020 Dr. M.C. private medical report, it was noted that the Veteran has required regular aid and assistance of his wife since at least 2015 to manage his basic
decision.

In a December 2020 Dr. M.C. private medical report, it was noted that the Veteran has required regular aid and assistance of his wife since at least 2015 to manage his basic activities of daily living. It was further noted that he consistently required assistance from his wife with managing medications, cooking, cleaning, feeding, dressing, driving, supervising showering and other hygienic maintenance.

After a review of the evidence of record, the Board finds that SMC based on aid and attendance is warranted effective from July 29, 2016. It was factually ascertainable that the Veteran's service-connected disabilities prevented him from performing most of his personal needs and activities of daily living without regular aid and attendance from another individual throughout the appeal period. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Accordingly, SMC based on aid and attendance is warranted effective from July 29, 2016.

David Gratz

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.

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