Citation Nr: 22067674
Decision Date: 12/08/22	Archive Date: 12/08/22

DOCKET NO. 04-28 398A
DATE: December 8, 2022

ORDER

An initial rating in excess of 40 percent for degenerative osteoarthritis of the lumbar spine with degenerative disc disease (DDD) and spinal stenosis from May 19, 1999, to February 14, 2018, and from April 1, 2018, is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, an effective date of June 5, 2000, but no earlier, for service connection for left lower extremity (LLE) radiculopathy of the sciatic nerve is granted.

Subject to the laws and regulations governing the award of VA monetary benefits, an effective date of June 5, 2000, but no earlier, for service connection for right lower extremity (RLE) radiculopathy of the sciatic nerve is granted.

An effective date prior to November 15, 2008, for service connection for LLE radiculopathy of the femoral nerve is denied.

An effective date prior to November 15, 2008, for service connection for RLE radiculopathy of the femoral nerve is denied.

A rating in excess of 10 percent for LLE radiculopathy of the sciatic nerve from June 5, 2000, to September 6, 2016, and in excess of 20 percent thereafter is denied.

A rating in excess of 10 percent for RLE radiculopathy of the sciatic nerve from June 5, 2000, to September 6, 2016, and in excess of 20 percent thereafter is denied.

A rating in excess of 10 percent for LLE radiculopathy of the femoral nerve from November 15, 2008, to September 6, 2016, and in excess of 20 percent thereafter is denied.

A rating in excess of 10 percent for RLE radiculopathy of the femoral nerve from November 15, 2008, to September 6, 2016, and in excess of 20 percent thereafter is denied.

A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied.

Special monthly compensation (SMC) based on housebound status prior to November 15, 2008, is denied.

Subject to the laws and regulations governing the award of VA monetary benefits, SMC based on the need for regular aid and attendance from September 6, 2016, is granted.

FINDINGS OF FACT

1. Throughout the entire appeal period, the Veteran's back disability has manifested in severe limitation of motion, including to 30 degrees or less in forward flexion, but has not resulted in unfavorable ankylosis or the functional equivalent thereof, nor incapacitating episodes requiring at least 6 weeks of prescribed bedrest.

2. The Veteran's bilateral lower extremity lumbar radiculopathy involving the sciatic nerve was first factually ascertainable on June 5, 2000.

3. The Veteran's bilateral lower extremity lumbar radiculopathy involving the femoral nerve was first factually ascertainable on November 15, 2008.

4. Prior to September 6, 2016, the Veteran's bilateral lower extremity lumbar radiculopathy involving the sciatic nerve was mild in severity; from September 6, 2016, it was moderate in severity.

5. Prior to September 6, 2016, the Veteran's bilateral lower extremity lumbar radiculopathy involving the femoral nerve was mild in severity; from September 6, 2016, it was moderate in severity.

6. Prior to May 31, 2002, there is insufficient evidence to substantiate a reasonable possibility that the Veteran was unemployable due to his service-connected disabilities alone such that referral for extraschedular consideration is warranted, and the evidence does not support that his service-connected disabilities alone rendered him unemployable.

7. From May 31, 2002, to November 15, 2008, the Veteran's service-connected back disability and bilateral lower extremity sciatic radiculopathy alone did not render him unable to obtain or maintain substantially gainful employment consistent with his education, work history, skills, and training.

8. From May 31, 2002, to November 15, 2008, the Veteran was in receipt of a 100 percent disability rating for major depressive disorder; however, his service-connected disabilities alone did not render him permanently housebound during that timeframe warranting SMC benefits.

9. Prior to September 6, 2016, the Veteran's service-connected disabilities alone did not render him in need of the aid and attendance of another.

10. From September 6, 2016, the combination of the Veteran's service-connected disabilities alone rendered him in need of the aid and attendance of another.

CONCLUSIONS OF LAW

1. The criteria for an initial rating in excess of 40 percent for degenerative osteoarthritis of the lumbar spine with DDD and spinal stenosis from May 19, 1999, to February 14, 2018, and from April 1, 2018, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.59, 4.71a, Diagnostic Code (DC) 5010-5292 (Prior to September 26, 2003), 5010-5242.

2. The criteria for an effective date of June 5, 2000, but no earlier, for service connection for LLE radiculopathy involving the sciatic nerve have been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.400(o).

3. The criteria for an effective date of June 5, 2000, but no earlier, for service connection for RLE radiculopathy involving the sciatic nerve have been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.400(o).

4. The criteria for an effective date prior to November 15, 2008, for service connection for LLE radiculopathy involving the femoral nerve have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.400(o).

5. The criteria for an effective date prior to November 15, 2008, for service connection for RLE radiculopathy involving the femoral nerve have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. § 3.400(o).

6. The criteria for a rating in excess of 10 percent for LLE radiculopathy of the sciatic nerve from June 5, 2000, to September 6, 2016, and in excess of 20 percent thereafter have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520.

7. The criteria for a rating in excess of 10 percent for RLE radiculopathy of the sciatic nerve from June 5, 2000, to September 6, 2016, and in excess of 20 percent thereafter have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520.

8. The criteria for a rating in excess of 10 percent for LLE radiculopathy of the femoral nerve from November 15, 2008, to September 6, 2016, and in excess of 20 percent thereafter have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8526.

9. The criteria for a rating in excess of 10 percent for RLE radiculopathy of the femoral nerve from November 15, 2008, to September 6, 2016, and in excess of 20 percent thereafter have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8526.

10. Referral for extraschedular consideration of a TDIU prior to May 31, 2002, is not appropriate and the criteria for a TDIU on an extraschedular basis prior to May 31, 2002, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25.

11. The criteria for entitlement to a schedular TDIU from May 31, 2002, to November 15, 2008, have not been met.  38 U.S.C. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.341, 4.16, 4.25.

12. The criteria for SMC based on housebound status from May 31, 2002, to November 15, 2008, have not been met.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

13. The criteria for SMC based on the need for regular aid and attendance prior to September 6, 2016, have not been met.  38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.102, 3.350 (b), 3.352(a).

14. The criteria for SMC based on the need for regular aid and attendance from September 6, 2016, have been met.  38 U.S.C. §§ 1114(l), 5107(b); 38 C.F.R. §§ 3.102, 3.350 (b), 3.352(a).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty in the United States Army from July 1972 to July 1975.

These matters come before the Board of Veterans Appeals (Board) on appeal from November 2004, February 2015, February 2017, January 2022, and June 2022 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).  

In August 2021 and November 2021, the claims on appeal were most recently remanded by the Board for further evidentiary development.  Substantial compliance with the remand requests having been achieved, the Board may proceed to consider the claims.  See Stegall v. West, 11 Vet. App. 268 (1998).  

The Board has limited the discussion below to the relevant evidence required to support its finding of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Duty to Assist

The Board notes that the Veteran's representative has submitted many repeated Privacy Act/Freedom of Information Act (FOIA) requests for specific documents, to include copies of VA examinations conducted pursuant to remand instructions, the requests for those examinations ("letters of engagement"), and the curricula vitae of the examining medical professionals.  The entirety of the claims file was submitted to the representative on several occasions.  Most recently, all documents added to the claims file since the most recent remand were provided in August 2022.  

As to the requests for VA examiners' credentials, the Board need not affirmatively establish a medical examiner's competency.  See Francway v. Wilkie, 940 F.3d 1304, 1307-08 (Fed. Cir. 2019).  The Court of Appeals for Veterans Claims (Court) and United States Court of Appeals for the Federal Circuit (Federal Circuit) have been clear that a claimant must "expressly challenge VA's selection of a medical examiner before the Board" unless there are facially obvious issues of competence.  See Fears v. Wilkie, 31 Vet. App. 308, 317-18 (2019).  However, when a veteran requests information on an examiner's competency, the veteran has the right, absent unusual circumstances to information about the qualifications of a medical examiner.  Francway, 940 F.3d at 1307-08.

The Veteran's representative expressly requested information about the examiners from September 2016, July 2019, December 2021, and February 2022 VA examinations and opinions.  Regarding the September 2016 examiner, her licensing and specialty information is in the claims file.  Regarding the July 2019 examiner, those examinations were conducted regarding issues not currently before the Board (service connection for Parkinson's disease and hypertension).  Nevertheless, the examiner's curriculum vitae was sent to the Veteran in January 2022.  Regarding the December 2021 examiner and January 2022 examiner, the examination requests included the licensing, specialty, education, and Compensation and Pension training information for each examiner which were provided to the Veteran in August 2022.  At that time, the prior Privacy Act requests were fulfilled and the RO Director communicated to the Veteran that no additional information regarding the examiners could be provided based on FOIA Exemption 6 under 5 U.S.C. § 552(b)(6).  This exemption permits VA to withhold information if disclosure would constitute a clearly unwarranted invasion of a living individual's personal privacy without contributing significantly to the public's understanding of the activities of the federal government.  As such, further information other than that already provided was withheld based on FOIA Exemption 6.  

The Veteran was given instructions to appeal the FOIA denial and, as of today, has not done so.  With respect to Francway, the Board is not the custodian of the documents in question nor handles such FOIA requests, and therefore may proceed with adjudication in light of the steps already taken as outlined above.  

The only specific challenge made to the competency of any examiner was made regarding the September 2016 examiner in a March 2018 brief.  That challenge is discussed below in the context of the examination report itself.

At no point has any specific challenge to any of the other examiners' competency been raised by the Veteran or his representative.  Even if a request for examiners' curricula vitae is read as a broad challenge to examiner competency, the Board finds that the licensing, specialty, education, and training information of these examiners and the lack of any irregularities or medical knowledge deficiencies on the face of the examination reports support that the examiners of record are competent to conduct the requested evaluations and provide the requested opinions.  As such, no further action is needed and the Board may proceed to adjudication.

As a final note, the Veteran's representative also requested a copy of a March 2017 examination report, letter of engagement, and examiner's curriculum vitae.  However, the examination conducted in March 2017 was an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance conducted and filled out by the Veteran's private treating clinician.  A copy of the examination report was included in the fulfillment of several Privacy Act requests.  As the report was submitted to VA by a private clinician, there is no associated letter of engagement; further, VA does not have access to the examiner's credentials.  As such, the request has been fulfilled to the extent possible and no further action is warranted.  

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991); Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  Whether the issue is one of an initial rating or an increased rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

In making all determinations, the Board must fully consider the lay assertions of record.  A layperson is competent to report on the onset and recurrence of his symptoms.  Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge).  

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

Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided.  See 38 C.F.R. § 4.14.  Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition.  See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).

The Court, in Correia v. McDonald, 28 Vet. App. 158 (2016), held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  Thus, the Court's holding in Correia establishes additional requirements that must be met prior to finding that a VA examination is adequate.

Further, in evaluating joint disabilities, 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 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. at 592.  Additionally, the Court has stated that flare-ups must be factored into an examiner's assessment of functional loss.  Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017).

1. Back Disability 

Service connection for the Veteran's back disability was granted at 40 percent disabling, effective May 21, 2001, in a November 2004 rating decision under 38 C.F.R. § 4.71a, DC 5010-5292.  He timely appealed.  An earlier effective date of May 19, 1999, was later awarded and the diagnostic code was adjusted to 38 C.F.R. § 4.71a, DC 5010-5242.  Subsequently, a temporary total 100 percent evaluation was granted from February 14, 2018, to April 1, 2018.  Accordingly, the Board will consider entitlement to a rating in excess of 40 percent from May 19, 1999, to February 14, 2018, and from April 1, 2018.  

Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating.  38 C.F.R. § 4.27.  Here, the hyphenated diagnostic codes indicate that the Veteran's back disability is rated, by analogy, under the criteria for traumatic/post-traumatic arthritis (DC 5010) and limitation of motion of the spine (DC 5292) and degenerative arthritis/DDD (DC 5242).

Multiple revisions to the criteria for evaluating spinal disorders occurred over the pendency of the appeal.  If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question.  38 U.S.C. § 5110(g);  VAOPGCPREC 3-2000.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003.  Because the revisions to the spine disability rating criteria pertinent to this case have a specified effective date without provision for retroactive application, they may not be applied prior to the effective date.  As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the veteran.  As such, the Board will consider the Veteran's increased rating claim under the three sets of regulatory criteria in effect throughout different times in the appeal period.

Under the rating criteria in effect prior to September 23, 2002, under DC 5292, pertaining to spine, limitation of motion of, lumbar, a 10 percent rating was warranted for slight limitation of motion; a 20 percent rating for moderate limitation of motion; and a 40 percent maximum rating for severe limitation of motion.

Effective September 23, 2002, DC 5293, pertaining to intervertebral disc syndrome (IVDS), was amended to provide a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with 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.  

Effective September 26, 2003, disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for DC 5235 to 5243, unless 5243 is evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease.

Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders.  See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269).  Those amendments revised DC 5242 from referring to degenerative arthritis of the spine to degenerative arthritis, DDD other than IVDS.  DC 5243 was edited to be assigned only when there was disc herniation with compression and/or irritation of the adjacent nerve root.  

The General Rating Formula provides for assignment of a 10 percent rating when forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height.  A 20 percent rating requires forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine.  A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine.  See 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine.

For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees.  The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation.  The normal combined range of motion of the thoracolumbar spine is 240 degrees.  The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.  See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V.

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

Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code.  Note (1).

Under the Formula for Rating IVDS Based on Incapacitating Episodes, the formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  38 C.F.R. § 4.71a. 

Turning to the relevant evidence of record, private treatment records at the onset of the appeal period demonstrated a long-standing history of chronic low back pain.  Magnetic resonance imaging (MRI) of the Veteran's lumbar spine conducted in October 2000 revealed some lumbar lateral recess stenosis due to osteophytes, particularly at L5-S1 on the right.  There was also some hypertrophy of the facet at L4-L5 on the left, but the pain was primarily down the right leg.  An x-ray demonstrated mild DDD with bony overgrowth and slight narrowing of the right and left neuroforamen at L5-S1, slightly more prominent on the right side where there appeared to be some slight impression onto the exiting L5 nerve root.  

A November 2000 record reflected the Veteran's report that his low back pain was aggravated by getting up and down, stooping, and walking.  In December 2000, he stated that he had a "good bit of pain" across his back and that almost any kind of activity caused an exacerbation.  He noted that when he tried to walk any distance at all he had fairly profound back pain.  A private clinician found that he was basically becoming homebound because of this pain.  Epidural injections had helped a little but did not provide lasting relief.  In October 2001, the Veteran stated that he had continued back pain and leg pain when walking, but it was "tolerable."  

A VA general medical examination was conducted in February 2003.  The Veteran described current constant pain in his low back in the range of 3 at its best and 10 at its worst.  He had a difficult time sitting still, standing, and walking or sitting in one position for prolonged periods.  Lifting also made his pain worse and sometimes he had flare-ups lasting 3 or 4 days.  Upon observation, there was mild tenderness in the lumbar region.  Straight leg raising did not cause low back pain at 60 degrees bilaterally.  Range of motion included forward flexion to 75 degrees, extension to 25 degrees, lateral rotation to 25 degrees on the right and 30 degrees on the left, and bilateral rotation to 20 degrees.  The examiner noted that the Veteran had a very difficult time extending after flexing due to significant pain.

In April 2003, a private treatment record reflected poor posture and lumbar range of motion decreased by 50 percent.  The clinician noted that this was secondary to balance problems, as well.  

The Veteran underwent a VA spine examination in August 2004.  He described current dull to sharp constant daily pain in his lumbar spine region which lasted for approximately one minute and occurred one to two times per day.  The pain was a 5 out of 10 in severity.  He currently received no treatment for his back pain.  He experienced flare-ups where pain reached a 10 out of 10 in severity, lasted 3 to 4 hours, and occurred once per month.  Flare-ups were usually precipitated by activity, bending over, and standing still.  Alleviating factors included lying down for approximately one hour.  He described flare-ups as causing decreased limitation of motion of about 50 percent.  The Veteran did not require use of a cane or crutches for walking, but he ambulated with a motorized wheelchair at his home most of the time.  He stated that he did walk at times and could walk approximately 50 to 100 feet in about 10 minutes.  He described his back disability as affecting his ability to walk, eat, bathe, dress, and engage in recreational activities.  It did not interfere with his driving, toileting, or grooming (or occupation since he was on disability benefits).  

Upon observation, the Veteran had a severe spasm of the paraspinal muscles and there was moderate to severe tenderness of the L5 vertebral region bilaterally.  There was loss of the normal lordotic curvature of the spine present.  There was no noted kyphoscoliosis.  Active and passive range of motion included forward flexion from 0 to 34 degrees with pain; extension from 0 to 15 degrees with pain; left lateral flexion was from 0 to 20 degrees with pain; right lateral flexion was from 0 to 15 degrees with pain; left rotation was from 0 to 20 degrees with pain; and right rotation was from 0 to 14 degrees with pain.  With repetitive use, there was limitation of function due to pain, weakness, fatigue, and lack of endurance with pain causing the major functional impact by about 25 percent.  Computed tomography (CT) demonstrated degenerative osteoarthritis in the lumbar spine manifested by facet joint hypertrophy along with some thickening of the ligamentum flavum and cystic changes at the facet joints at L5.  There was no evidence of spinal stenosis.  

A private clinician stated in September 2004 that the Veteran's lower back hurt him tremendously.  It was so difficult for him to walk around that the evaluation was conducted in his vehicle.  He had had a ramp built in his house to be able to get around.  

In a February 2005 VA treatment record, continued chronic low back pain was noted.  The Veteran ambulated mainly with the use of a motorized wheelchair.  He reported that he could only walk a short distance before his back and legs gave out.  

Another VA spine examination was conducted in November 2008.  The examiner indicated that the Veteran had a history of fatigue, decreased motion, stiffness, weakness, and pain but no spasms.  Pain was described as an ache which was moderate and constant, occurring daily.  The Veteran did not have flare-ups.  He was unable to walk more than a few yards and used a wheelchair.  There was no spasm, atrophy, guarding, pain with motion, tenderness, or weakness in the thoracic sacrospinalis.  The examiner noted that there was no muscle spasm, localized tenderness, or guarding severe enough to cause abnormal gait or spinal contour.  He had an abnormal posture but the examiner noted that his gait and stance likely resulted from Parkinson's disease.  Spinal curvatures were normal.  Active and passive range of motion included forward flexion from 0 to 50 degrees with pain at 45 degrees.  The Veteran had full extension, left and right lateral rotation, and left and right lateral flexion.  There was pain with repetitive use but no additional loss of motion.  There was no thoracolumbar spine ankylosis.  An x-ray demonstrated multilevel spondylosis and possible mild wedge compression of L3 which was age indeterminant.  

The Veteran underwent a VA examination in May 2011.  He denied any significant bedbound episodes related to his lumbar spine over the last 12 months.  He described low back pain of a 7 out of 10 in severity constantly.  The Veteran reported flare-ups of pain increasing to a 9 or 10 out of 10 several times per month.  Precipitating factors included walking, bending, and stooping.  His symptoms were better with the use of Tylenol #3 (Acetaminophen with Codeine).  He described additional limitation of motion and function of 25 percent during a flare-up.  Associated symptoms included stiffness, fatigue, weakness, and decreased range of motion.  He could stand for 5 to 10 minutes, walk up to 5 to 10 steps, and had had unsteadiness and fallen once over the last year.  The examiner noted that the Veteran could not stand or walk for extended periods of time; was unable to perform any repetitive bending or stooping; was not able to engage in heavy labor; was unable to perform any mechanical labor; and could not engage in any repetitive light duty labor within the home.  He had no significant bedbound episodes over the last year.  Straight leg raise was negative.  Range of motion included forward flexion from 0 to 20 degrees with pain at 20 degrees and extension from 0 to 5 degrees with pain at 5 degrees.  Lateral flexion and rotation were not able to be obtained due to the Veteran's unsteadiness secondary to an RLE tremor.  Repetitive motion testing could not be performed.  He appeared to have moderate fatigue, weakness, and lack of endurance with initial range of motion, as well as mild to moderate incoordination.  He walked with an ataxic gait and wore a custom brace prior to the examination.  Imaging demonstrated mild to moderate DDD from L5 to S1, mild changes of spondylosis from L2 to L5, and minimal subluxation of the L5 over S1.  

A VA opinion obtained in February 2015 found that the Veteran's back disability and associated radiculopathy would limit him to bending and lifting greater than 25 pounds and would severely limit the ability to engage in prolonged standing and walking.  The examiner concluded that the Veteran could gain and sustain strictly sedentary employment with avoidance of such tasks.

Imaging of the Veteran's lumbosacral spine conducted in July 2015 demonstrated severe degenerative changes at L5 to S1 with spondylosis and spondylolisthesis.  An MRI done in July 2016 revealed L4-L5 moderate spinal stenosis.  It was noted that the Veteran's neural foraminal narrowing bilaterally at L4-L5 and L5-S1 had worsened since previous imaging.  

The Veteran underwent a VA back examination in September 2016.  His current lower back pain was treated by medications, physical therapy, and epidural blocks.  He described flare-ups of lower back pain radiating down both legs, occurring daily, and resulting in constant moderate to severe pain.  The examiner was unable to test the Veteran's initial range of motion due to his unsteadiness from Parkinson's disease.  In the testing that could be conducted, pain was noted on forward flexion and extension, causing functional loss and pain with weight-bearing.  Localized pain was present in the lower L5-S1 spine that was moderate.  Repetitive-use testing also could not be conducted due to Parkinson's tremors.  Without objective testing results, the examiner was unable to determine additional loss of function/motion with repeated use over time or during flare-ups without speculation.  Muscle spasm, localized tenderness, and guarding were present, resulting in abnormal gait or spine contour.  Muscle strength testing was 3 out of 5 in both lower extremities.  There was no muscle atrophy.  DTRs were hypoactive and sensation to light touch was decreased in the BLE.  Straight leg raise testing was unable to be performed.  The Veteran had radiculopathy in the LLE and RLE which resulted in moderate constant pain, intermittent pain, paresthesias/dysesthesias, and numbness.  Involvement of the sciatic and femoral nerves was moderate bilaterally.  There were no other signs or symptoms of radiculopathy or other neurologic abnormalities.  The examiner indicated that the Veteran did not have ankylosis of the spine.  He also did not have IVDS with incapacitating episodes.  He required constant use of a cane for lower back pain and unsteadiness.  The examiner determined that the functional impact of the Veteran's disability included an inability to sit, stand, stoop, and climb stairs for periods of time.  Imaging demonstrated moderate to severe degenerative joint disease (DJD) throughout the lumbosacral spine.  

In a May 2017 private treatment record, the Veteran reported pain in his lower back radiating into his right leg.  He stated that the pain was always there and got worse at times even when laying down.  If he stood or walked for a prolonged period, he had significant pain.  He had not fallen but had experienced a stinging pain in the right buttocks.  A lumbar spine MRI conducted in June 2017 demonstrated spinal and bilateral foraminal stenosis at the L4-L5 and L5-S1 level and diffuse mild facet hypertrophy at the other levels without spinal or foraminal stenosis.  Another MRI in December 2017 reflected extensive multilevel degenerative changes, most pronounced at L4-L5 and L5-S1, similar in appearance to the previous study.  

As noted above, the Veteran underwent lumbar spine surgery in February 2018.  A partial hemilaminectomy and partial medial facetectomy with foraminotomy at L3, L4-L5, and L5-S1, right, was performed.  Findings at surgery were severe foraminal stenosis due to facet hypertrophy.  There were no complications.  He thereafter underwent several weeks of physical rehabilitation.  

The Veteran's wife submitted a statement in March 2018.  She noted that he was unable to stand for more than 5 minutes at a time due to his back disability, BLE radiculopathy, and Parkinson's disease.  He needed her assistance to take a shower or even to lean over a bathtub to wash his hair.  Around 2007, he started having difficulty walking in their house due to his back and leg disabilities.  He was subsequently issued several wheelchairs and a cane from VA for his disabilities, as well.  The Veteran was unable to sit in a car for more than 20 minutes at a time without having to stop, get out, and stretch.  The few times they had traveled 60 to 100 miles away to visit family, he was in so much pain by the time that they arrived that he could hardly enjoy the visit.  

Another VA back examination was conducted in March 2019.  The Veteran reported functional impairments of limited range of motion, difficulty with heavy lifting, bending, prolonged walking, or climbing stairs.  He described flare-ups of sharp pain and stiffness.  Range of motion testing included forward flexion from 0 to 50 degrees; extension from 0 to 20 degrees; and right and left lateral flexion and rotation were from 0 to 20 degrees.  Pain was noted on all planes of motion and caused functional loss.  There was additional evidence of pain with passive motion, weight-bearing, and nonweight-bearing.  The Veteran was able to perform repetitive use testing with additional loss of range of motion, including forward flexion limited to 45 degrees; extension to 15 degrees; and right and left lateral flexion and rotation to 15 degrees.  Pain and lack of endurance were noted to result in functional loss.  

The examiner concluded that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time.  Pain and lack of endurance would result in further limitation of range of motion, including forward flexion limited to 40 degrees; extension to 10 degrees; and right and left lateral flexion and rotation to 10 degrees.  The examiner concluded that the examination was medically consistent with the Veteran's statements describing functional loss during flare-ups.  Pain and lack of endurance would result in further limitation of range of motion, including forward flexion limited to 35 degrees; extension to 5 degrees; and right and left lateral flexion and rotation to 5 degrees.  Guarding and muscle spasm were not present.  Additional factors contributing to disability included less movement than normal and interference with standing.  Muscle strength, reflex, and sensory testing yielded normal results and there was no muscle atrophy.  The examiner indicated that the Veteran had no ankylosis of the spine.  Straight leg raising was negative.  There was no radiculopathy or any other neurological abnormalities.  The Veteran did not have IVDS with incapacitating episodes requiring bedrest.  He required occasional use of a wheelchair for support of his back disability.  

The Veteran underwent another VA back examination in December 2021.  He stated that his disability had worsened over the years with current symptoms described as back pain and stiffness.  He described flare-ups that occurred several times throughout the month that were moderate to severe; lasted 1 day to 1 week; were precipitated by taking a shower, bending over, prolonged walking, laying down, and car rides; and were alleviated by rest, heating pad, and Gabapentin.  Active and passive range of motion included forward flexion to 30 degrees; extension to 15 degrees; and right and left lateral flexion and rotation to 15 degrees.  Pain was exhibited on all planes of motion with both active and passive motion, nonweight-bearing, and on rest/non-movement.  Functional loss included difficulty with heavy lifting more than 20 pounds, bending, prolonged walking, and climbing stairs.  There was no crepitus or localized tenderness.  The Veteran was able to perform repetitive-use testing with additional limitation of range of motion, including forward flexion limited to 25 degrees; extension to 15 degrees; and right and left lateral rotation to 15 degrees.  Pain and lack of endurance resulted.  The examiner concluded that pain and lack of endurance would result with repeated use over time and during flare-ups.  With repeated use over time, range of motion would be further limited to 20 degrees in forward flexion; 10 degrees in extension; and 10 degrees in right and left lateral flexion and rotation.  During flare-ups, range of motion would be further limited to 15 degrees in forward flexion; 5 degrees in extension; and 5 degrees in right and left lateral flexion and rotation.  There was no evidence of localized tenderness, guarding, or muscle spasm.  Muscle strength testing was normal with no atrophy.  A reflex test yielded normal results.  Sensation to light touch was decreased in the BLE.  Straight leg raising was positive.  Radiculopathy was present in the BLE with involvement of the sciatic and femoral nerves resulting in no constant pain, and moderate intermittent pain, paresthesias/dysesthesias, and numbness.  There were no other signs or symptoms of radiculopathy or other neurologic abnormalities.  The examiner indicated that the Veteran had no ankylosis of the spine and no IVDS with incapacitating episodes.  He constantly used a rollator walker.  

In an April 2022 VA treatment record, it was noted that the only time the Veteran ambulated was in his home moving from his recliner to the bathroom where he held on to walls and furniture.  Otherwise he used his powerchair most of the time.  

VA and private treatment records throughout the appeal period reflected continued reports of chronic low back pain treated with medication, therapy, epidural injections, and surgery.  

A.	An initial rating in excess of 40 percent for degenerative osteoarthritis of the lumbar spine with DDD and spinal stenosis from May 19, 1999, to February 14, 2018, and from April 1, 2018, is denied.

Based on the foregoing, the Board finds that a rating in excess of 40 percent is not warranted at any point during the appeal period.  

Regarding the Veteran's March 2018 challenge to the competency of the September 2016 examiner, the Board finds that any deficiencies in the examination report have been cured by subsequent development.  The Veteran's representative asserted that because the examiner's specific qualifications to express professional conclusions regarding diverse medical fields were not available, she lacked the ability to provide adequate medical opinions.  Although her specific qualifications are not of record, those of subsequent examiners are in the claims file.  The examiner stated that she could not provide an opinion without speculation as to increased limitation with repeated use over time and during flare-ups.  The representative argued that there was no legitimate basis for avoiding those issues.  However, the Veteran was unable to perform much of the initial range of motion testing or any repetitive-use testing due to unsteadiness from Parkinson's disease tremors.  Without being able to observe the Veteran's motion, the Board finds that her conclusion that there was no empirical basis to offer an opinion to not be a probative challenge to competency.  Further, other discrepancies noted did not affect the overall result of the examination findings when taken in conjunction with the entirety of the record.  As such, the Board finds that the September 2016 examiner was competent to conduct the evaluation and that any deficiencies in the examination report have been cured by subsequent development.    

Further, the Board finds that the other VA examinations of record, when taken in conjunction with the VA treatment records, private medical records, and lay statements, provide an adequate basis upon which to determine the claim.  Although not every VA examination conducted range of motion testing with nonweight-bearing and passive motion, the most recent examiner did conduct such testing.  The examiner indicated that the lumbar spine disability had worsened over time and the Veteran himself has not contended that his symptoms have improved.  As such, the most recent examination reflects the most severe limitations caused by the disability on those additional planes of motion.  Further, although several examiners could not quantify additional limitation with flare-ups or repeated use over time, it was noted at the August 2004 examination that the Veteran's range of motion was reduced by 50 percent during flare-ups and both the March 2019 and December 2021 examiners were able to quantify additional limitation in terms of degrees of range of motion during flare-ups and with repeated use over time.  Additionally, the Veteran himself has provided statements regarding the limitation of his activities from which to extrapolate the extent and severity of his lumbar spine disability.  His own depictions of the symptomology and practical effects of his condition throughout the appeal period provide an adequate basis upon which to evaluate the disability.  Given the totality of the information, including the Veteran's own descriptions of his limitations, the Board finds that the requirements of DeLuca, Sharp, and Correia have been adequately addressed.  DeLuca v. Brown, 8 Vet. App. at 202; Sharp v. Shulkin, 29 Vet. App. at 32; Correia v. McDonald, 28 Vet. App. at 158.

Prior to September 23, 2002, a 40 percent rating is the highest evaluation available under 38 C.F.R. § 4.71a, DC 5010-5292, for the Veteran's back disability.  A 40 percent rating encompasses the severe limitation of motion caused by his condition.  The manifestations of his disability as exhibited upon examination and described by the Veteran himself, particularly to include chronic low back pain exacerbated upon motion, are reasonably contemplated by that rating.  As such, there is no indication that an exceptional disability picture exists such that consideration beyond the schedular criteria is warranted.  See Thun v. Peake, 22 Vet. App. 111 (2008).  Further, the Veteran's particular disability is not more appropriately rated under other diagnostic codes pertaining to the lumbar spine: he did not have a vertebral fracture (DC 5285), complete bony fixation at a favorable angle (DC 5286), or unfavorable ankylosis, or the functional equivalent thereof, of the lumbar spine (DC 5289).

The Board also finds that the rating schedule changes effective September 23, 2002, do not affect the Veteran's disability rating.  At no point from that date was he diagnosed with IVDS and there is no indication that he was prescribed bedrest for at least 6 weeks.  As such, a rating in excess of 40 percent is not warranted based on IVDS from September 23, 2002.

Following the rating schedule changes effective September 26, 2003, the Board finds that a rating in excess of 40 percent is not warranted under the new diagnostic criteria.  To merit a rating in excess of 40 percent under DC 5010-5242, the Veteran's lumbar spine disability would need to demonstrate unfavorable ankylosis of the entire thoracolumbar spine or IVDS resulting in incapacitating episodes requiring bed rest of at least 6 weeks in a 12-month period.  The Board finds that at no point during the appeal period have these criteria been met.

Ankylosis is defined as the "immobility and consolidation of a joint due to disease, injury, or surgical procedure."  See Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007).  In Chavis v. McDonough, 34 Vet. App. 1 (2021), the Court held that "application of [38 C.F.R.] §§ 4.40 and 4.45 permits consideration under the General Rating Formula of an evaluation based on ankylosis if a claimant's functional loss is consistent with that contemplated by ankylosis, in other words, if it is the functional equivalent of ankylosis."

All of the VA examiners indicated that the Veteran did not have ankylosis in his lumbar spine.  VA and private treatment records did not reflect any diagnosis of unfavorable ankylosis, nor any indication of immobility.  

The Board acknowledges several notations in the claims file, highlighted in a June 2020 Court order pursuant to a Joint Motion for Remand (JMR).  A May 2011 examiner noted that the Veteran could not stand or walk for extended periods; was unable to perform any repetitive bending or stooping; and was unable to engage in heavy labor, mechanical labor, or repetitive light duty labor.  A February 2015 examiner found that the Veteran experienced severe implications on his ability to engage in prolonged standing and walking.  A September 2016 examiner determined that the Veteran was unable to sit, stand, stoop, or climb stairs for periods of time.  However, throughout this entire timeframe, the Veteran had motion of the lumbar spine upon examination.  While his movement was significantly limited, he was by no means immobile nor his spine fixed in flexion or extension.  The examiners specifically focused on the fact that he could not engage in repetitive or prolonged activities, not that he was unable to engage in motion at all.  Indeed, the February 2015 examiner stated he could bend and lift up to 25 pounds and the most recent December 2021 examination demonstrated initial active motion to 30 degrees in forward flexion.  The reduced range of motion with repetition and prolonged use further supports the examiners' conclusions that he was restricted in his ability to engage in repetitive and prolonged movement.  As such, the Board finds that these comments highlighted by the Court do not demonstrate that the Veteran had the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine.

Also noted by the Court was a December 2000 statement by a private clinician that the Veteran was basically "becoming homebound."  However, this statement was made following a description of how his back pain limited his ability to walk distances.  The clinician did not suggest that the Veteran's spine was fixed in flexion or extension or that his spine had become immobile in any way due to his service-connected back disability.  Indeed, he subsequently demonstrated range of motion, though significantly limited, on multiple occasions.  As such, the Board finds that this comment also does not demonstrate the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine.  

Additionally, at no point was the Veteran diagnosed with IVDS.  Further, in the voluminous VA and private treatment records, there are no indications of incapacitating episodes caused by the back disability requiring prescribed bedrest.  As such, a rating in excess of 40 percent is not warranted based on IVDS with incapacitating episodes.

The Board also notes that, other than the service-connected BLE radiculopathy discussed below, there have been no other neurologic abnormalities associated with the Veteran's back disability.  Therefore, no additional ratings are warranted based on other neurologic manifestations.  

Accordingly, the persuasive evidence of record supports a finding against a rating in excess of 40 percent for the Veteran's back disability prior to February 14, 2018, and from April 1, 2018.  The Board determines that the Veteran's disability is fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant a higher rating in this case.

2. Radiculopathy 

Service connection for LLE and RLE radiculopathy involving the sciatic nerve secondary to the Veteran's back disability was granted at 10 percent each under 38 C.F.R. § 4.124a, DC 8520, effective May 9, 2011, in a February 2015 rating decision.  The Veteran timely appealed the ratings and effective date assigned.  Subsequently, 20 percent ratings were awarded for each extremity, effective September 6, 2016.  In a June 2022 rating decision, the RO granted an October 12, 2000, earlier effective date for the award of service connection.  As part and parcel of the Veteran's initial increased rating claim for his service-connected back disability, the Board will consider whether service connection for bilateral lower extremity (BLE) radiculopathy involving the sciatic nerve is warranted from that date of claim, May 19, 1999, and will consider entitlement to ratings in excess of 10 percent prior to September 6, 2016, and in excess of 20 percent thereafter.

Service connection for LLE and RLE radiculopathy involving the femoral nerve secondary to the Veteran's back disability was granted at 20 percent each under 38 C.F.R. § 4.124a, DC 8526, effective September 6, 2016, in a February 2017 rating decision.  The Veteran timely appealed the ratings and the effective date assigned.  In a June 2022 rating decision, 10 percent ratings for BLE radiculopathy involving the femoral nerve were granted, effective November 15, 2008.  As part and parcel of the Veteran's initial increased rating claim for his service-connected back disability, the Board will consider whether service connection for BLE radiculopathy involving the femoral nerve is warranted from that date of claim, May 19, 1999, and will consider entitlement to ratings in excess of 10 percent prior to September 6, 2016, and in excess of 20 percent thereafter.

Under DC 8520, complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost is rated 80 percent.  Severe incomplete paralysis with marked muscular atrophy is rated 60 percent; moderately severe incomplete paralysis is rated 40 percent; moderate incomplete paralysis is rated 20 percent; and mild incomplete paralysis is rated 10 percent.  

Under DC 8526, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating contemplates moderate incomplete paralysis, while a 30 percent disability rating contemplates severe incomplete paralysis.  A maximum disability rating of 40 percent contemplates complete paralysis as evidenced by paralysis of the quadriceps extensor muscles.

The term "incomplete paralysis" with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree.  See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a).

Descriptive words such as "mild," "moderate," "moderately severe" 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.  According to Merriam Webster's Collegiate Dictionary 999 (11th Ed. 2007), "mild" means gentle in nature or temperate.  "Moderate" means limited in scope or effect.  "Severe" means very painful or harmful or of a great degree.  Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue.  The Board must evaluate all evidence in arriving at a decision regarding an increased rating.  38 C.F.R. §§ 4.2, 4.6.

Turning to the relevant evidence of record, in a June 5, 2000, private treatment record, the Veteran's treating clinician made a reference to "lumbar radiculopathy" but included no other information.  Later in June 2000, the Veteran endorsed pain in his right leg, radiating down to his ankle, numbness, and weakness.  It limited his ability to walk distances.  

An MRI of the Veteran's lumbar spine conducted in October 2000 revealed some lumbar lateral recess stenosis due to osteophytes, particularly at L5-S1 on the right.  There was also some hypertrophy of the facet at L4-L5 on the left, but the pain was primarily down the right leg.  An x-ray demonstrated mild DDD with bony overgrowth and slight narrowing of the right and left neuroforamen at L5-S1, slightly more prominent on the right side where there appeared to be some slight impression onto the exiting L5 nerve root.  

In November 2000 private treatment records, the Veteran reported low back pain radiating into his hips and right buttocks and down the posterior of his right leg to his ankle.  He experienced tingling and numbness in the right leg, as well.  Aggravating factors included getting up and down, stooping, or walking.  

The Veteran described right leg pain radiating down, weakness, numbness, tingling, and pain on walking to private clinicians in May 2001.  His symptoms limited his ability to walk distances.  In October 2001, he stated that he had some back pain and occasional leg pain when walking.  However, he stated that the pain was tolerable.  

A VA general medical examination was conducted in February 2003.  The Veteran described sometimes having pain down into his RLE.  A coarse tremor was observed in the RLE.  Deep tendon reflexes (DTRs) were 2+ bilaterally.  Straight leg raising did not cause low back pain bilaterally.  He was unable to heel walk or toe walk and was very unstable in gait due to his Parkinson's disease.  

In April 2003, sensation was grossly decreased to pinprick in the BLE.  Muscle strength was 5 out of 5 in the lower extremities.  

The Veteran underwent a VA spine examination in August 2004.  He described numbness and weakness in his legs with the right leg being more affected than the left.  He did not require a cane or crutches for walking but ambulated with a motorized wheelchair at his home most of the time.  He was often unsteady on his feet and had a history of falls.  There was decreased sensation of pinprick and vibratory sense in the RLE and normal sensation in the LLE.  DTRs were 2 out of 4 in the BLE.  Coordination was poor in the RLE and good in the LLE.  There was no observed muscle atrophy.  Involuntary tremors were present in the RLE but absent in the LLE.  Strength was 2 out of 5 in the RLE and 5 out of 5 in the LLE.  

In February 2005, the Veteran told treating clinicians that he ambulated mainly with the use of a motorized wheelchair.  He could only walk a short distance before his back and legs gave out.  

An October 2008 private review of systems noted no paralysis or paresthesias.  

Another VA spine examination was conducted in November 2008.  It was noted that the Veteran had numbness, paresthesias, leg/foot weakness, and unsteadiness.  The examiner indicated that these symptoms were unrelated to his back disability but did not explain this statement.  The Veteran had radiation of his back pain going down both of his legs that was sharp.  He was unable to walk more than a few yards.  A detailed motor examination yielded normal results in all extremities.  Muscle tone was normal and there was no atrophy.  Sensory testing with vibration, pinprick, light touch, and position sense and a reflex examination yielded normal results in the BLE.  The examiner diagnosed mild peripheral neuropathy in the lower extremities.  

The Veteran also underwent a private electromyogram (EMG)/nerve conduction velocity (NCV) test in November 2008 that was suggestive of but not diagnostic of a mild peripheral neuropathy in the lower extremities.  EMG findings showed increased activity in the right L5-S1 paraspinal muscle, but no denervation changes.  

In January 2011, the Veteran reported back pain radiating down both legs that caused numbness and weakness.

The Veteran underwent a VA examination in May 2011.  He described numbness and tingling in his BLE on a constant basis.  He noted that he usually used a wheelchair and was fearful about using a walker.  He could stand for 5 to 10 minutes, walk up to 5 to 10 steps, and had had unsteadiness with one fall over the past year.  The Veteran was able to walk approximately 5 steps with mild ataxia noted.  He developed an increasing tremor in his RLE during lumbar spine range of motion testing.  Distal sensation was intact in the BLE with no muscle atrophy or fasciculations.  Leg strength was normal but reflexes were reduced in the BLE.  Straight leg raise was negative.  He walked with an ataxic gait.  EMG/NCV testing were suggestive of but not diagnostic of a mild peripheral neuropathy in the lower extremities.  

A June 2011 VA treatment record noted the Veteran's long history of low back pain sometimes radiating into both legs.  He was experiencing numbness, more in his left leg.  Strength in the BLE was 5 out of 5.  Sensation was decreased in patchy distribution in the left leg but intact in the right leg.  A needle test was conducted but was inconclusive due to his Parkinson's tremors.  NCV testing in the lower extremities yielded results within normal limits.  

The Veteran described burning and tingling in the bottoms of his feet that was slowly getting worse to clinicians in September 2012.  Upon evaluation, his epicritic sensations were diminished, DTRs were symmetrical, muscle strength was 5 out of 5, and range of motion was within normal limits.  

In March 2013, the Veteran again reported having numbness and weakness in his right leg.  In December 2013, a prominent tremor was noted in the BLE but there was no focal motor or sensory deficit.

A private MRI was conducted of the lumbar spine in July 2016.  It demonstrated L4-L5 moderate spinal stenosis and neural foraminal narrowing bilaterally at L4-L5 and L5-S1 that had worsened since previous imaging.

A September 2016 VA back examination demonstrated muscle strength at 3 out of 5 in both extremities.  There was no muscle atrophy.  DTRs were hypoactive bilaterally.  Sensation to light touch was decreased in the BLE.  Straight leg raise testing could not be tested due to Parkinsonian tremors.  The Veteran had radiculopathy in both extremities that resulted in moderate constant pain, intermittent pain, paresthesias/dysesthesias, and numbness.  Involvement of the sciatic nerve and femoral nerve was moderate bilaterally.  There were no other signs or symptoms of radiculopathy or other neurologic abnormalities.  

In March 2017, generalized weakness was observed in both of the Veteran's legs.  He had no sensation up to his knees.  He described bilateral leg weakness in April 2017.  The Veteran reported pain in his low back that radiated down his right leg in May 2017.  

The Veteran described right leg pain that was so severe he could barely walk in June 2017.  Another MRI of the lumbar spine was conducted which demonstrated spinal and bilateral foraminal stenosis at the L4-L5 and L5-S1 levels along with diffuse mild facet hypertrophy at the other levels without spinal or foraminal stenosis.  In September 2017, he reported constant pain in his bilateral legs for the past two months.  He stated that his right leg pain was worse in December 2017.  His wife confirmed that he was walking less due to pain.  Another MRI was ordered which was similar in appearance to the previous study.

As noted above, the Veteran underwent back surgery in February 2018.  Findings at surgery were severe foraminal stenosis due to facet hypertrophy.  

In April 2018, the Veteran told treating clinicians that he still had leg pain, but it was improving since his surgery.  He still experienced right leg numbness but it was more of a nuisance.  He had some discomfort, but it was nothing like it was.  

Another VA back examination was conducted in March 2019.  Muscle strength, reflex, and sensory testing yielded normal results in the BLE with no evidence of atrophy.  Straight leg raise testing yielded negative results.  The Veteran did not have radiculopathy, any signs or symptoms due to radiculopathy, or other neurologic abnormalities.

The Veteran underwent another VA back examination in December 2021.  Muscle strength and reflex testing yielded normal results and there was no muscle atrophy.  Sensation to light touch was decreased in the BLE.  Straight leg raise was positive bilaterally.  Radiculopathy was present in both extremities resulting in no constant pain and moderate intermittent pain, paresthesias/dysesthesias, and numbness.  The examiner indicated that there was involvement of the sciatic and femoral nerves bilaterally.  There were no other signs or symptoms of radiculopathy or other neurologic abnormalities.  

A VA peripheral nerves examination was also conducted in December 2021.  The Veteran stated that his BLE radiculopathy had gotten worse over the years.  Associated symptoms included no constant pain and moderate bilateral intermittent pain, paresthesias/dysesthesias, and numbness.  Muscle strength testing yielded normal results with no muscle atrophy.  Reflexes were normal bilaterally.  Sensation testing by light touch was decreased in the BLE.  There were no trophic changes and gait was normal.  The Veteran had moderate incomplete paralysis in the RLE and BLE involving both the sciatic and femoral nerves.  The examiner determined that the functional impact of the disabilities included lower leg pain, tingling, numbness, and difficulty with prolonged walking.  

A VA medical opinion was obtained in February 2022.  The examiner determined, after a review of the claims file, that the Veteran's bilateral sciatic radiculopathy was present in 2000.  His weakness and symptoms in the 1990s were not supported by imaging findings or objective findings on physical examination.  In 2000, an MRI demonstrated DDD with symptoms that corresponded to lumbar radiculopathy.  A straight leg raise was also positive with exacerbated back pain which also confirmed a lumbar nerve impingement.  The examiner also concluded that bilateral femoral neuropathy was present in 2008.  Imaging studies from 2008 noted progression of the lumbar spine disease to now include a slight wedge angulation of the L3 vertebral body that might reflect a minor endplate compression fracture, and spondylosis at L1-L2 and L2-L3.  Previously, imaging studies only noted disease at L5-S1.  In 2008, the right and left femoral neuropathy was diagnosed due to a progression of the lumbar spine disease.  

A VA addendum opinion was obtained in April 2022.  The VA clinician clarified that the MRI referred to in her earlier opinion regarding sciatic radiculopathy occurred in October 2000.  She further clarified that the imaging referred to in her earlier opinion regarding femoral radiculopathy occurred in November 2008.  

A.	An effective date of June 5, 2000, but no earlier, for service connection for LLE radiculopathy of the sciatic nerve is granted.

B.	An effective date of June 5, 2000, but no earlier, for service connection for RLE radiculopathy of the sciatic nerve is granted.

Based on the foregoing, the Board finds that service connection for the Veteran's BLE sciatic radiculopathy is warranted effective June 5, 2000.  His treating private clinician listed a diagnosis of "lumbar radiculopathy" as of that date.  An October 2000 MRI confirmed his sciatic radiculopathy.  As such, the Board finds that an earlier effective date of June 5, 2000, is warranted for service connection for LLE and RLE radiculopathy of the sciatic nerve as it was first factually ascertainable as of that date.  See 38 C.F.R. § 3.400(o).  Service connection is not warranted prior to that date.  As noted by the VA examiner in the February 2022 medical opinion, imaging did not support a finding of lumbar radiculopathy prior to 2000.  Although the Veteran reported symptomology in his lower extremities, it was found by treating clinicians at the time to be associated with his nonservice-connected Parkinson's disease.  Accordingly, an effective date of June 5, 2000, but no earlier, for service connection for LLE and RLE sciatic radiculopathy is warranted.

C.	An effective date prior to November 15, 2008, for service connection for LLE radiculopathy of the femoral nerve is denied.

D.	An effective date prior to November 15, 2008, for service connection for RLE radiculopathy of the femoral nerve is denied.

The Board finds that an effective date prior to November 15, 2008, for service connection for the Veteran's BLE radiculopathy of the femoral nerve is not warranted.  As noted by the VA examiner in the February 2022 medical opinion, imaging did not demonstrate involvement of the femoral nerve prior to that date.  A progression of his BLE radiculopathy was demonstrated in November 2008 with imaging then reflecting involvement of L1-L2 and L2-L3.  With no evidence of femoral nerve involvement prior to that date, earlier effective dates for service connection for LLE and RLE femoral radiculopathy are not warranted.  

E.	A rating in excess of 10 percent for LLE radiculopathy of the sciatic nerve from June 5, 2000, to September 6, 2016, and in excess of 20 percent thereafter is denied.

F.	A rating in excess of 10 percent for RLE radiculopathy of the sciatic nerve from June 5, 2000, to September 6, 2016, and in excess of 20 percent thereafter is denied.

The Board finds that the Veteran's BLE sciatic radiculopathy does not warrant ratings in excess of 10 percent prior to September 6, 2016, or ratings in excess of 20 percent thereafter.  Prior to September 6, 2016, clinicians described the Veteran's radiculopathy as mild in severity.  DTRs were normal, muscle strength was 5 out of 5 in the BLE, and the impression onto the L5 nerve root was "slight."  The Board finds that this disability picture most closely approximates mild involvement of the sciatic nerve bilaterally, warranting a 10 percent rating under DC 8520 prior to September 6, 2016.

At the September 6, 2016, VA examination, muscle strength was reduced, DTRs were hypoactive, sensation was decreased, and the examiner found that the Veteran's BLE sciatic radiculopathy was moderate in severity.  Imaging demonstrated a progression of his condition.  Accordingly, the Board finds that this disability picture most closely approximates moderate involvement of the sciatic nerve bilaterally, warranting a 20 percent rating as of that date under DC 8520.

The Board finds that at no point during the appeal period did the Veteran's BLE radiculopathy result in moderately severe involvement of the sciatic nerve.  Indeed, following the February 2018 back surgery, the Veteran's radiculopathy improved significantly.  However, the Board finds that no reduction in the BLE radiculopathy ratings are merited, as the Veteran clearly continues to have relevant symptomology in both extremities.  Accordingly, ratings in excess of 10 percent prior to September 6, 2016, and in excess of 20 percent thereafter are not warranted.  

The Veteran's representative stated in August 2017 correspondence that he sought an evaluation greater than 20 percent for LLE radiculopathy involving the sciatic nerve on a schedular or extraschedular basis.  It is unclear why only the LLE sciatic radiculopathy rating was sought on an extraschedular basis as no argument in support of this contention was made.  However, the Board finds that the manifestations of this disability as exhibited upon examination and described by the Veteran himself, particularly to include pain, numbness, tingling, and weakness, are reasonably contemplated by the schedular rating.  As such, there is no indication that an exceptional disability picture exists such that consideration beyond the schedular criteria is warranted.  See Thun v. Peake, 22 Vet. App. at 111.  The Board finds that there is no indication of an exceptional disability picture for LLE sciatic radiculopathy, nor any of the Veteran's other radiculopathy disabilities.  The Board determines that his disabilities are fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant higher ratings in this case, including on an extraschedular basis.

G.	A rating in excess of 10 percent for LLE radiculopathy of the femoral nerve from November 15, 2008, to September 6, 2016, and in excess of 20 percent thereafter is denied.

H.	A rating in excess of 10 percent for RLE radiculopathy of the femoral nerve from November 15, 2008, to September 6, 2016, and in excess of 20 percent thereafter is denied.

The Board finds that the Veteran's BLE femoral radiculopathy does not warrant ratings in excess of 10 percent prior to September 6, 2016, or ratings in excess of 20 percent thereafter.  Prior to September 6, 2016, clinicians described the Veteran's radiculopathy as mild in severity.  DTRs were normal, muscle strength was 5 out of 5 in the BLE, and EMG/NCV testing demonstrated "mild" peripheral neuropathy.  The Board finds that this disability picture most closely approximates mild involvement of the femoral nerve bilaterally, warranting a 10 percent rating under DC 8526 prior to September 6, 2016.

At the September 6, 2016, VA examination, muscle strength was reduced, DTRs were hypoactive, sensation was decreased, and the examiner found that the Veteran's BLE femoral radiculopathy was moderate in severity.  Imaging demonstrated a progression of his condition.  Accordingly, the Board finds that this disability picture most closely approximates moderate involvement of the femoral nerve bilaterally, warranting a 20 percent rating as of that date under DC 8526.

The Board finds that at no point during the appeal period did the Veteran's BLE radiculopathy result in severe involvement of the femoral nerve.  Indeed, following the February 2018 back surgery, the Veteran's radiculopathy improved significantly.  However, the Board finds that no reduction in the BLE radiculopathy ratings are merited, as the Veteran clearly continues to have relevant symptomology in both extremities.  Accordingly, ratings in excess of 10 percent prior to September 6, 2016, and in excess of 20 percent thereafter are not warranted.  The Board determines that the Veteran's disabilities are fully capable of evaluation under the rating schedule.  There is no applicable provision that would warrant higher ratings in this case.

TDIU

The Veteran has contended that his service-connected disabilities render him unemployable.  The Board will consider entitlement to TDIU on an extraschedular basis from May 19, 1999, to May 31, 2002, and entitlement to TDIU for service-connected disabilities other than a 100 percent-rated psychiatric disability from May 31, 2002, to November 15, 2008, as outlined below.

A total disability rating for compensation purposes may be assigned where the schedular rating is less than total and where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more.  38 C.F.R. § 4.16(a).  Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities.  See 38 C.F.R. §§ 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993).

To meet the requirement of "one 60 percent disability" or "one 40 percent disability," the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war.  Id.  

Substantially gainful employment is defined as work which is more than marginal and which permits the individual to earn a living wage.  Moore v. Derwinski, 1 Vet. App. 356 (1991).  Marginal employment may also be held to exist, on a facts-found basis (including, but not limited to, employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold.  38 C.F.R. § 4.16.

The term "substantially gainful occupation" is not defined in the rating schedule.  Rather, the Court in Ray v. Wilkie, found the phrase has two components: an economic one and a noneconomic one.  31 Vet. App. 58 (2019).  In assessing a veteran's ability to secure and follow a substantially gainful occupation, the Board is to consider the veteran's history, education, skill, and training as well as physical abilities and mental abilities required by the occupation at issue.  Id.  Such specific physical ability factors include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  Id.  Specific mental ability factors include memory, concentration, ability to adapt to change, handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.

If a claimant does not meet the threshold criteria, a total disability evaluation may still be assigned, but on a different basis.  It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled.  38 C.F.R. § 4.16(b).  The rating boards are required to submit all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards, to the Director of Compensation Service (Director) for extraschedular consideration.  Id.  

The Board does not have the authority to assign an extraschedular total disability rating for compensation purposes based on individual unemployability in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). 

Rather, the Board's sole inquiry is whether referral for extraschedular consideration is warranted in light of the evidence.  If the Board finds "sufficient evidence" to substantiate a "reasonable possibility" that a veteran may be unemployable because of service-connected disabilities, then the proper course of action is to remand the claim for referral to the Director for an advisory opinion for extraschedular consideration.  See 38 C.F.R. § 4.16(b).   

In contrast, if the Board determines that a referral is not appropriate, a different analysis must be made.  In particular, the Court in Snider v. McDonough, 35 Vet. App. 1 (2021), held that if the Board denies a referral, it must make two determinations:  (1) that a referral for extraschedular TDIU consideration is not warranted because there is insufficient evidence to substantiate a reasonable possibility that a veteran is unemployable because of service-connected disabilities; and (2) that TDIU benefits are not warranted because service-connected disabilities did not render the veteran unemployable.  The first inquiry, the question of the referral, is a factual finding based on a lower evidentiary threshold than for a grant of an extraschedular TDIU.  See Ray v. Wilkie, 31 Vet. App. at 58.

When a veteran is awarded a 100 percent disability rating or has a combined disability of 100 percent, the issue of entitlement to TDIU is not rendered moot.  This is because entitlement to TDIU may implicate SMC benefits based on housebound status.  

SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated under the Rating Schedule.  SMC is payable at the housebound rate where a veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a 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.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

The Court has determined that 38 U.S.C. § 1114(s) does not limit "a service-connected disability rated as total" to only a schedular rating of 100 percent.  See Bradley v. Peake, 22 Vet. App. 280, 293 (2008).  However, because TDIU is merely a rating, not an actual disability, and because it can be assigned based upon multiple service-connected disabilities, it does not always satisfy that element.  Rather, to qualify as a single disability rated as total, the Court held that an award of TDIU must be based on one service-connected disability standing alone.  See Buie v. Shinseki, 24 Vet. App. 242 (2010).  If any one of the service-connected conditions could warrant an award of TDIU standing alone, then the 100 percent rating for SMC is satisfied.  Id. at 250.  With respect to SMC(s) and TDIU, this means that the Board is obligated under Buie to assess whether a TDIU could be supported by any one of a veteran's service-connected disabilities standing alone.  

Although the total disability requirement must be met by a single disability, the 60 percent requirement may be met by applying the combined rating of the veteran's remaining disabilities.  Bradley v. Peake, 22 Vet. App. at 280 

As noted above, the appeal period for the Veteran's back disability began May 19, 1999.  He is in receipt of a combined disability rating of 40 percent from that date.  Effective June 5, 2000, (as per this decision) he has a combined disability rating of 50 percent.  From May 31, 2002, he is in receipt of a 100 percent disability rating for major depressive disorder (MDD) in addition to his other service-connected disabilities.  Accordingly, the schedular criteria for TDIU have not been met prior to May 31, 2002.  Therefore, the Board will consider entitlement to TDIU on an extraschedular basis from May 19, 1999, to May 31, 2002.  

SMC based on housebound status was granted effective November 15, 2008, when the Veteran's MDD was rated at 100 percent and he initially had additional, separate service-connected disabilities rated at 60 percent (back disability and radiculopathy disabilities).  As such, the Board will consider whether TDIU is warranted from May 31, 2002, to November 15, 2008, based on service-connected disabilities other than MDD such that SMC based on housebound status is merited.  As the Veteran is already in receipt of a 100 percent combined evaluation and SMC housebound benefits from November 15, 2008, the issue of entitlement to TDIU is moot from that date.

The Board finds that referral for extraschedular TDIU is not warranted and further, that TDIU benefits are not warranted prior to May 31, 2002.  Additionally, the Board finds that a schedular TDIU is not warranted from May 31, 2002, to November 15, 2008.

Regarding the economic component, the Veteran attended school through the seventh grade.  During his Navy service, he worked as an automotive repair parts specialist.  After discharge, he worked at manufacturing, construction, and lumber companies.  He held positions of maintenance specialist, laborer, and pallet builder, last working on January 1, 1994.  He stated that he was laid off at the end of 1993 because he could not continue to do his job at a lumber company due to his physical condition.    

Regarding the noneconomic component, in addition to his service-connected back disability, BLE radiculopathy, and MDD, the Veteran has significant nonservice-connected disabilities including Parkinson's disease, coronary artery disease, chronic obstructive pulmonary disease (COPD)/emphysema, gastroesophageal reflux disease (GERD), hypertension, hyperlipidemia, diabetes mellitus, cervical spondylosis, bilateral upper extremity radiculopathy, obstructive sleep apnea (OSA), and bilateral rotator cuff injuries.  

The Veteran was granted Social Security Administration (SSA) disability benefits effective January 1, 1994, due to Parkinson's disease manifested by tremors and shaking on the right side, hypertension, and depression.   In a statement made in connection with his SSA disability benefits claim, the Veteran noted that constant shaking made it hard to control the lumber that he had to handle and his blood pressure problems made him too dizzy and sick to perform his job.  An SSA capacity assessment concluded that he was limited to occasionally lift/carry no more than 50 pounds and frequently no more than 25 pounds; and limited to standing/walking/sitting about 6 hours in an 8-hour workday.  In a November 1997 statement, the Veteran said that he felt that his main hindrance to employability was his physical condition, especially the physical limitations posed by his Parkinson's disease and arthritis.  An SSA disability benefits evaluator stated that it would certainly appear that the Veteran's medical condition, including his motor tremors, physical discomfort, balance problems, and low energy level, would pose significant limitations on his being able to carry out the work duties involved in labor-related jobs.  

In June 2000, a VA treatment record noted that the Veteran was a metal worker and may have been exposed to metal in his eye.  In November 2001, an SSA disability benefits evaluator determined that the Veteran had some restrictions and was not able to perform the work that he had done in the past, but based on his age, education, and past work experience, he was still able to perform other work.  

A VA examiner concluded in February 2003 that the Veteran was clearly unemployable due to his Parkinson's disease and his limited education.  The examiner stated that ignoring those deficits, he would still be unemployable because of depression which robbed him of sleep and the ability to sustain concentration and maintain appropriate mood control in social situations.  

In April 2003, it was noted that the Veteran's pain prevented him from lifting heavy weights but that he could manage light to medium weights if conveniently positioned.  Pain prevented him from sitting or standing more than 10 minutes.  He was restricted to his home and journeys lasting less than 30 minutes due to his back and BLE radiculopathy disabilities, cervical spine and associated upper extremity radiculopathy, and Parkinson's disease.  

A private psychiatric examiner determined in September 2004 that the Veteran had severe chronic medical and psychiatric problems and there was no doubt that his chronic depression was related to his chronic pain.  That pain is why he was unemployable and needed to be supervised.  

Lay statements from the Veteran's friends and family in September 2004 indicated that he had difficulty taking care of his activities of daily living (ADLs) by himself and needed his family.  His physical and emotional problems made him restricted as to what he could do.  He had wanted to stay on his job but was afraid for his safety.  He currently had to use a wheelchair if he had to walk more than 25 yards, was restricted by his medication regimen, and he had difficulty holding a fork or drinking a cup of coffee due to Parkinsonian tremors and weakness.  

A May 2011 VA opinion regarding employability concluded that from a medical standpoint, the Veteran's Parkinson's disease was the major contributor to his unemployability.  

A VA opinion obtained in February 2015 regarding employability determined that the Veteran could gain and sustain strictly sedentary employment with the avoidance of bending and lifting more than 25 pounds, prolonged standing, and prolonged walking.  Another examiner in September 2016 found that he could engage in sedentary work involving sitting most of the time, exerting up to 10 pounds of force, and only occasional walking and standing.

In a March 2018 statement, the Veteran noted that he had to quit working as a laborer making pallets at a lumber mill due to his tremors, back and leg pain, and depression.  He stated that over 10 years ago, he started having difficulty walking from one room to another due to back and leg problems.  He contended that he had not been able to work since January 1994 due solely to his back disability since he could sit only 20 minutes at a time and 2.5 hours total in an 8-hour workday.  He could stand in place for only 5 minutes at a time and for only 1 hour total in an 8-hour workday.  He stated that he could only walk continuously for 3 minutes at a time and for only 30 minutes total in an 8-hour workday.  He asserted that he could lift 20 pounds up to one-third of an 8-hour workday and lift 10 pounds up to two-thirds of an 8-hour workday.  

1. A TDIU is denied.

From an economic perspective, the Veteran has the education, skills, work history, and training to perform work in automotive repair and general laborer duties.  

From a noneconomic perspective, the Board considered the physical ability factors noted in Ray, to include lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory, and visual.  See Ray v. Wilkie, 31 Vet. App. at 58.  From May 19, 1999, the Veteran's back disability affected his ability to lift/carry, bend/twist, sit, stand, walk, climb, and reach, as well as his ability to engage in any activity for prolonged periods.  From June 5, 2000, his bilateral lower extremity radiculopathy further limited his ability to engage in prolonged standing, sitting, and walking.  The Board also considered the mental ability factors noted in Ray, to include memory, concentration, ability to adapt to change and handle workplace stress, getting along with coworkers, and demonstrating reliability and productivity.  Id.  From May 31, 2002, the Veteran's MDD resulted in impairments in memory, concentration, ability to adapt to change and handle stress, and reliability and productivity.

Based on the foregoing, the Board finds that, prior to May 31, 2002, the evidence does not substantiate a reasonable possibility that the Veteran was unemployable because of his service-connected disabilities alone such that referral to the Director for extraschedular consideration is warranted.  It is clear that he was likely unemployable throughout the entire appeal period.  But the evidence does not demonstrate that this resulted from his service-connected disabilities alone.  Indeed, several evaluators contemporaneously found that his Parkinson's disease was his largest impediment to employment.  The Veteran's back disability and BLE sciatic radiculopathy would certainly cause some functional impairments.  However, the impairing effects caused by his service-connected disabilities are contemplated and compensated by the disability ratings afforded those conditions.  While the Veteran may not have been able to continue building pallets due to his service-connected disabilities, as noted by SSA disability benefits examiners, he had the ability to engage in limited lifting, carrying, and additional movements that would not preclude other positions consistent with his education, skills, and work history.  As such, entitlement to referral and entitlement to TDIU itself prior to May 31, 2002, are not warranted.  See Snider v. McDonough, 35 Vet. App. at 1.

As noted above, the Veteran is in receipt of a 100 percent schedular rating from May 31, 2002, for MDD.  For a TDIU to afford any additional benefit, it must be based on his service-connected disabilities other than MDD such that SMC based on housebound status is warranted.  However, from May 31, 2002, to November 15, 2008, the Board finds that a TDIU based only on the Veteran's service-connected back disability and BLE sciatic radiculopathy is not warranted.  Again, it is clear that those disabilities would affect his ability to engage in prolonged standing, sitting, and walking and would limit how much he could lift and carry.  That impairment is specifically contemplated and compensated by the ratings afforded those disabilities.  However, the persuasive evidence of record does not support that those disabilities alone would prohibit him from engaging in employment consistent with his education, training, and work history.  Although the Veteran described significant limitations in a March 2018 statement, that level of impairment was inconsistent with the limitations noted within evaluations conducted during the appeal period.  It appears that during this timeframe, the Veteran's nonservice-connected Parkinson's disease was the most severe impediment to maintaining employment.  Further, his MDD resulted in additional deficits.  As such, the evidence does not support an award of a TDIU based only on the Veteran's back disability and BLE sciatic radiculopathy from May 31, 2002, to November 15, 2008.

Accordingly, a TDIU is not warranted at any point during the appeal period.  

SMC

The Veteran has contended that his service-connected disabilities render him housebound or in need of the aid and attendance of another person such that SMC benefits are warranted during the entire appeal period.  

As noted above, SMC is available when, as the result of service-connected disability, a veteran suffers additional hardships above and beyond those contemplated under the Rating Schedule.  SMC is payable at the housebound rate where a veteran has a single service-connected disability rated as 100 percent and, in addition: (1) has a 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.  38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i).

The Veteran was granted a single service-connected disability rating of 100 percent effective May 31, 2002, for MDD.  He was awarded SMC housebound benefits from November 15, 2008, based on having separate independent disabilities rated at 60 percent from that date.  As such, the Board will consider whether the Veteran was rendered permanently housebound from May 31, 2002, to November 15, 2008.  

The permanently housebound requirement is met when a veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises, or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime.  38 C.F.R. § 3.350(i)(2).

Additionally, the Veteran has contended that his service-connected disabilities render him in need of the regular aid and attendance of another person to attend to ADLs.

As noted above, the Veteran is in receipt of SMC based on housebound status from November 15, 2008.  However, the issue of SMC for aid and attendance is a greater benefit than SMC based on housebound status and entitlement to each SMC is based on distinct criteria.  See 38 C.F.R. § 3.350.  Therefore, entitlement to SMC based on aid and attendance from May 19, 1999, to November 15, 2008, and in lieu of SMC based on housebound status thereafter is considered herein.   

SMC based on the need for aid and attendance of another is payable when the veteran, due to service-connected disability, has suffered the anatomical loss or loss of use of both feet or one hand and one foot, or is blind in both eyes, or is permanently bedridden or so helpless as to be in need of regular aid and attendance.  See 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b).  The Veteran has not suffered the anatomical loss or loss of use of both feet or one hand and one foot, nor blindness in both eyes, and he has not been shown to be bedridden.  As such, entitlement to the benefit rests on whether he is so helpless as to be in need of regular aid and attendance.

As directed by 38 C.F.R. § 3.352(a), the following criteria are to be considered for determining whether a claimant is in need of the regular aid and attendance of another person: (1) the inability of the claimant to dress himself or herself or to keep himself or herself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliance which, by reason of the particular disability, cannot be done without aid (not to include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); (3) the inability of the claimant to feed himself or herself through the loss of coordination of the upper extremities or through extreme weakness; (4) the inability to attend to the wants of nature; or, (5) a physical or mental incapacity that requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his or her daily environment. 

"Bedridden," which is a proper basis for the determination, is defined as that condition which, through its essential character, actually requires that the claimant remain in bed.  The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice.  38 C.F.R. §§ 3.350(b)(4), 3.352(a). 

It is not required that all of the disabling conditions enumerated in this paragraph be found to exist before a favorable rating may be made.  The particular personal functions which the veteran is unable to perform should be considered in connection with his or her condition as a whole.  It is only necessary that the evidence establish that the veteran is so helpless as to need regular aid and attendance, not that there be a constant need.  Determinations that the veteran is so helpless, as to be in need of regular aid and attendance, will not be based solely upon an opinion that the claimant's condition is such as would require him or her to be in bed.  They must be based on the actual requirement of personal assistance from others.  38 C.F.R. § 3.352(a); Turco v. Brown, 9 Vet. App. 222, 224 (1996) (it is logical to infer there is a threshold requirement that "at least one of the enumerated factors be present").

Turning to the relevant evidence of record, just prior to the appeal period, SSA disability benefits evaluators found that his motor tremors, physical discomfort, balance problems, and low energy level would pose significant limitations on the Veteran.  He reported to private clinicians in December 2000 that when he tried to walk any distance at all, he had fairly profound back pain.  The clinician noted that "He basically is becoming homebound because of this."  

A February 2003 VA examiner found that the Veteran was clearly unemployable due to his Parkinson's disease, but also that he had additional deficits caused by his MDD including lack of sleep and difficulties sustaining concentration and appropriate mood control.  Parkinson's disease with tremors of the head and bilateral upper and lower extremities resulted in "severe disability."  Additional disabilities included the service-connected back disability causing moderate functional loss and nonservice-connected cervical disc disease with moderate functional loss, right shoulder status post tendon repair with residual moderate functional loss, chronic strain of the right hip and right knee with moderate functional loss, hypertension, arteriosclerotic heart disease, COPD, GERD, hyperlipidemia, and OSA.   

In April 2003, a private clinician indicated that the Veteran had poor posture and his lumbar spine range of motion was limited by 50 percent, however, this was secondary to his balance problems from Parkinson's disease. 

An April 2003 treatment record noted that the Veteran needed help every day in most aspects of his personal care.  Pain prevented him from lifting heavy weights but he could manage light to medium weights if conveniently positioned.  He was in a wheelchair most of the time, but pain prevented him from sitting or standing more than 10 minutes at a time.  He was restricted to his home and to journeys less than 30 minutes, due to his Parkinson's disease, back and leg disabilities, and cervical spine and arm disabilities.  

In September 2004, it was noted that the Veteran had a ramp installed in his home to be able to get around.  Lay statements from friends and family noted that pain in his back and legs and depression affected his daily living to the point of not being able to take care of himself or his family.  His current activities consisted of going from one doctor to another.  He had to use a wheelchair if he had to walk more than 25 yards, his medication regimen restricted his activities, and he could not hold a fork or a cup of coffee due to tremors.  

A September 2004 private psychiatric evaluation report reflected the clinician's finding that due to the Veteran's chronic pain and depression he was reminded of the patients he cared for in nursing homes.  His wife was caretaker and caregiver and without her, he would be in a nursing home.  In February 2005, the Veteran reported that he ambulated mainly with the use of a motorized wheelchair due to safety concerns.  

A VA back examination conducted in November 2008 determined that the effect of the disability on the Veteran's ability to perform ADLs included mild effects on shopping, recreation, traveling, and bathing; moderate effects on chores, exercise, and sports; and no effects on feeding, dressing, toileting, and grooming.  

In February 2012, a private clinician stated that due to his cervical and lumbar spinal stenosis, continued weakness in his arms and legs, and arthropathy of his shoulders limiting his range of motion and ability to manipulate objects with his hands, the Veteran was essentially homebound and depended greatly on his friends and family for ADLs.  

A VA examiner determined in February 2015 that the Veteran's back disability and BLE radiculopathy caused moderate effects on dressing, bathing, meal preparation, and transfers.  There were no effects on grooming and toileting.  

In September 2016, a VA examiner determined that the Veteran back disability resulted in an inability to sit, stand, stoop, and climb stairs for periods of time.  

A private clinician completed an Examination for Housebound Status or Permanent Need for Regular Aid and Attendance report in March 2017.  The clinician determined that spinal stenosis, Parkinson's disease, coronary artery disease, and COPD restricted his activities and functions.  The Veteran was not confined to bed, was able to feed himself, had the ability to manage his finances, and did not require nursing home care.  He was not able to prepare his own meals and needed assistance in bathing and tending to other hygiene needs.  He also required medication management, with the clinician noting that his wife assisted in obtaining and dispensing medications.  Regarding his upper extremities, the Veteran had good grip and good mobility of the arms.  Regarding his lower extremities, he had strength that was 4 out of 5, muscle atrophy of the legs, and decreased sensation in the legs.  He also had decreased range of motion of the lumbar spine.  Additional pathology included ataxic gait, unsteadiness in his legs, using the wall and furniture for walking in his home, and using a wheelchair outside for long distances.  Regarding the ability to leave his home, he was able to leave 2 to 3 times a week to visit his doctors and his church.  Ambulation aids were needed for distances longer than 50 feet.  

In a March 2018 statement, the Veteran noted that he was unable to do many things that he used to enjoy (i.e., hunting, fishing, playing ball) due to his back pain.  Because of his chronic pain and limitations, his depression had gotten worse.  Over 10 years previously, he started having difficulty walking from one room to another and began using wheelchairs that were prescribed to him by VA.  He described difficulties with balance and falling and that he now stood or walked very little.  He contended that he could sit only 20 minutes at a time and 2.5 hours total in an 8-hour workday.  He could stand in place for only 5 minutes at a time and for only 1 hour total in an 8-hour workday.  He stated that he could only walk continuously for 3 minutes at a time and for only 30 minutes total in an 8-hour workday.  He asserted that he could lift 20 pounds up to one-third of an 8-hour workday and lift 10 pounds up to two-thirds of an 8-hour workday.  

After a VA back examination conducted in March 2019, the examiner determined that the functional impact of his disability was back pain, stiffness, limited range of motion, difficulty with heavy lifting, bending, prolonged walking, and climbing stairs.  

A December 2021 VA examiner concluded that the Veteran's back disability caused difficulty with heavy lifting more than 20 pounds, bending, prolonged walking, and climbing stairs.  She determined that his BLE radiculopathy caused lower leg pain, tingling, numbness, and difficulty with prolonged walking.  

1.	SMC based on housebound status prior to November 15, 2008, is denied.

Based on the foregoing, the Board finds that SMC based on housebound status is not warranted from May 31, 2002, to November 15, 2008.  The Board acknowledges a December 2000 private clinician's statement that the Veteran was basically "becoming homebound" due to his back disability and inability to engage in prolonged walking.  However, when examining the entirety of the Veteran's disability picture, the persuasive evidence suggests that although he may have been rendered housebound during this period, it was not his service-connected disabilities causing this impairment.  Instead, it is clear from private and VA clinicians' notations that his nonservice-connected Parkinson's disease and difficulties due to COPD and coronary artery disease largely caused him to be substantially confined to his dwelling from May 31, 2002, to November 15, 2008.  As such, SMC benefits based on housebound status due to being permanently housebound are not warranted during this period.  

2.	SMC based on the need for regular aid and attendance from September 6, 2016, is granted.  

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The Board finds that entitlement to SMC based on the need for aid and attendance of another person is not warranted prior to September 6, 2016.  Prior to that date, it is clear that the Veteran required assistance from his wife and others to perform ADLs; however, his Parkinson's disease caused the most significant impairment to his ability to function, according to contemporaneous determinations by treating and examining clinicians.  His tremors caused difficulty with walking, balance, and manipulating objects, affecting his ability to perform ADLs independently.  

As reflected in VA examinations conducted that date, from September 6, 2016, it is evident that the Veteran's decreased mobility and strength due to his service-connected back disability and BLE radiculopathy resulted in significant limitations.  As outlined above, the examinations reflected reduced muscle strength, sensation, and control, an inability to engage in initial range of motion testing, and an inability to perform repetitive motion.  Imaging also demonstrated a progression of his disabilities.  Further, his service-connected MDD resulted in a need for assistance with medication management.  The Veteran's nonservice-connected Parkinson's disease continued to cause significant deficits in his ability to perform ADLs.  However, the increase in severity in his overall disability picture from his back disability, BLE radiculopathy, and MDD indicates that due to those service-connected disabilities alone, the Veteran was rendered in need of the aid and attendance of another.  This was first factually ascertainable at the September 6, 2016, VA examinations.  Accordingly, SMC based on the need for aid and attendance is warranted effective September 6, 2016.

 

 

SHEREEN M. MARCUS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Rachel E. Jensen, 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.