Citation Nr: 0001930 Decision Date: 01/24/00 Archive Date: 02/02/00 DOCKET NO. 93-22 145 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUES 1. Entitlement to an increased rating for residuals of surgery of the lumbosacral spine, to include arachnoiditis, currently rated as 60 percent disabling. 2. Entitlement to a rating in excess of 40 percent for a neurogenic bladder for the period from January 23, 1979, to August 19, 1987. 3. Entitlement to a rating in excess of 60 percent for a neurogenic bladder for the period beginning August 20, 1987. 4. Entitlement to an increased rating for weakness of the right lower extremity, currently rated as 20 percent disabling. 5. Entitlement to an increased rating for weakness of the left lower extremity, currently rated as 20 percent disabling. 6. Entitlement to additional special monthly compensation pursuant to 38 U.S.C.A. § 1114(r)(2). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARINGS ON APPEAL Appellant and her sister ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Counsel INTRODUCTION The veteran served on active duty for training from September 1973 to January 1974 and from August 2, 1975, to August 16, 1975. This case was previously before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse action by the Nashville, Tennessee, Regional Office. The development conducted subsequent to the January 1996 Board remand was accomplished by the Los Angeles, California, Regional Office (hereinafter RO). Sufficient development has been accomplished by the RO to equitably adjudicate the claims on appeal. The development conducted by the RO subsequent to the January 1996 Board remand resulted in a grant of the claim for entitlement to special monthly compensation based on the need for the regular aid and attendance of another person addressed by the Board in the January 1996 remand. Also granted by the RO in an October 1996 rating decision was another issue discussed in the remand, entitlement to service connection for a psychiatric disorder. This rating decision also granted an increased rating for the veteran's neurogenic bladder to 60 percent effective from August 20, 1987; remaining for consideration by the Board, however, and as listed on the title page, are the issues of entitlement to a rating in excess of 40 percent for a neurogenic bladder for the pertinent period before August 20, 1987, and entitlement to a rating in excess of 60 for the period on and after this date. It is also noted that while special monthly compensation based of the need for the regular aid and attendance of another person was granted by the RO, this is not the maximum benefit provided under the law and regulations pertaining to special monthly compensation. Therefore, the Board is acknowledging jurisdiction over the issue of entitlement to additional special monthly compensation benefits and the issue is listed on the title page. See AB v. Brown, 6 Vet. App. 35 (1993). With regard to the issue of entitlement to additional special monthly compensation, the Board is aware that the veteran has not been provided, in the statement of the case or the subsequent supplemental statements of the case, the law and regulations pertaining to the criteria for levels of special monthly compensation above that based on the need for the regular aid and attendance of another person. However, her representative has presented argument that she is entitled to compensation at the level of 38 U.S.C.A. § 1114(r)(2), and it is apparent that the veteran and her representative are aware of the pertinent law and regulations. With this in mind and particularly given that our decision below grants the maximum benefit, the Board concludes that the issue need not be remanded for further procedural development as there is no prejudice to the veteran in our rendering this decision. See Bernard v. Brown, 4 Vet. App. 384 (1993). Another matter addressed by the Board in the January 1996 remand was the issue of entitlement to service connection for arachnoiditis. In its July 1998 rating decision, the RO concluded that to the extent that a June 1978 rating decision denied an increased rating for the veteran's service- connected low back disability on the basis that treatment for arachnoid cysts in May/June 1978 was not for a service- connected disability because the cysts were in the thoracic spine, rather than the service-connected low back, this was a "final" rating action with respect to the issue of entitlement to service connection for arachnoiditis. Thus, the RO concluded that "new" and "material" evidence was required to reopen this claim. See 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156. The Board has evaluated this conclusion, but after carefully reviewing the evidence of record, it has, as noted on the title page and explained below, concluded that the service-connected residuals of surgery of the lumbar spine include arachnoiditis involving the lumbar area. The Board also notes that service connection for arachnoid cysts of the thoracic and cervical spine secondary to service- connected lumbosacral spine disability was denied in an October 1996 rating decision and the veteran did not submit a notice of disagreement within one year of notification of that action. The veteran was afforded a hearing before Board members in December 1993 and July 1999 who were designated by the Chairman to conduct the hearings pursuant to 38 U.S.C.A. § 7102(b) (West 1991 & Supp. 1999). At the most recent hearing, as well as in the July 1999 "Appellant's Brief," several additional issues felt to be "intertwined" with those on appeal were raised, and the veteran's representative has requested a Board "remand" for initial review of these issue by the RO. See July 1999 Hearing Transcript, Page 3. These issues, as construed by the Board in light of a review of the testimony and argument presented by and on behalf of the veteran and the adjudication by the RO in its July 1998 rating decision, include entitlement to an increased rating for major depression, entitlement to an increased rating for a hypotensive anal sphincter, service connection for weakness in the upper extremities, service connection for arachnoiditis involving the cervical/thoracic spine (including a determination as to the finality of any prior rating action and, if appropriate, whether new and material evidence to reopen the claim has been submitted) and additional special monthly compensation (hereinafter SMC) at the rates prescribed by 38 U.S.C.A. § 1114(o) and (r)(1-2). Accordingly, with the exception of the claim for additional SMC, which the Board finds to be inextricably intertwined with the increased rating claims on appeal and is thus included in its adjudication below, the RO is directed to conduct the appropriate development with respect to these additional issues, and any other issue identified by the veteran or her representative that are not currently on appeal. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. It is at least as likely as not that residuals of surgery of the lumbosacral spine include lumbosacral arachnoiditis; the disability associated with arachnoiditis is contemplated by the rating currently assigned for the lumbosacral spine. 3. The disability associated with the lumbosacral spine is pronounced, but there are no extraordinary factors associated with the lumbosacral spine productive of an unusual disability picture so as to warrant consideration of an extraschedular rating. 4. It is as least as likely as not that the veteran had bladder incontinence such that she required the use of an appliance for the period beginning January 23, 1979. 5. While severe, the disability associated with the veteran's neurogenic bladder does not involve extraordinary factors productive of an unusual disability picture so as to warrant consideration of an extraschedular rating. 6. The neurologic disability associated with weakness in both lower extremities is moderately severe, but is not manifested by marked muscular atrophy or pathology indicative of "severe" disability. 7. There are no extraordinary factors associated with the service-connected weakness in the lower extremities productive of an unusual disability picture so as to warrant consideration of an extraschedular rating. 8. It is at least as likely as not that veteran has service- connected disability that is the equivalent of paraplegia in both lower extremities with loss of anal and bladder sphincter control; it is also at least as likely as not that service-connected disability necessitates personal health- care services in the veteran's home on a daily basis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent for residuals of surgery of the lumbosacral spine, to include arachnoiditis involving the lumbar spine, are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.71a, Diagnostic Code (DC) 5293 (1998). 2. Resolving all reasonable doubt in favor of the veteran, the criteria for a 60 percent rating for a neurogenic bladder effective from January 23, 1979, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.115a, DC 7512 (1978)(1998). 3. The criteria for a rating in excess of 60 percent for a neurogenic bladder are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.115a, DC 7512 (1978) (1998). 4. The criteria for a 40 percent rating, but no more, for weakness in the left lower extremity, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.124a, DC 8520 (1998). 5. The criteria for a 40 percent rating, but no more, for weakness in the right lower extremity, are met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, Part 4, 4.124a, DC 8520 (1998). 6. Resolving all reasonable doubt in the veteran's favor, the criteria for additional special monthly compensation under the provisions of 38 U.S.C.A. § 1114(o) and (r)(2) have been met. 38 U.S.C.A. §§ 1114, 5107 (West 1991); 38 C.F.R. §§ 3.350, 3.352 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that her claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The credibility of the veteran's evidentiary assertions is presumed for making the initial well-grounded determination. The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as there is no indication that there are other records available that would be pertinent to the veteran's appeal. I. Legal Criteria In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) whether the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim. The appellant prevails in either event. However, if the weight of the evidence is against the appellant's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The highest assignable rating for intervertebral disc disease under 38 C.F.R. § 4.71a, DC 5293 is 60 percent for "pronounced" disability. Under 38 C.F.R. § 3.321(b)(1), when the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for her service-connected disabilities, an extraschedular evaluation will be assigned. Prior to regulatory changes which became effective February 17, 1994, disability resulting from cystitis (the disorder chosen to rate the disability associated with the service- connected neurogenic bladder) was rated as 40 percent disabling if the disability was "severe," manifested by urination at intervals of one hour or less with a contracted bladder. 38 C.F.R. § 4.115, DC 7512 (1978). A 60 percent rating, the highest assignable rating for cystitis under the old criteria, required incontinence necessitating the constant wearing of an appliance. Id. A rating of 60 percent is the highest assignable rating under the revised criteria for rating disability due to cystitis as well. 38 C.F.R. § 4.115a, DC 7512 (1998). "Moderate" incomplete paralysis of the sciatic nerve warrants a 20 percent disability rating and "moderately severe" incomplete paralysis of the sciatic nerve warrants a 40 percent disability rating. "Severe" incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent disability rating. 38 C.F.R. § 4.124a, DC 8520. Entitlement to benefits provided by 38 U.S.C.A. § 1114(o) is met when there is paraplegia of both lower extremities together with the loss of anal and bladder sphincter control. 38 C.F.R. § 3.350(e)(2) (1998). The requirement of loss of anal and bladder sphincter control is met even though incontinence has been overcome under a strict regimen of rehabilitation of bowel and bladder training and other auxiliary measures. Id. The regulations also provide that a veteran receiving the maximum rate under § 1114(o) or § 1114(p) who is in need of regular aid and attendance or a higher level of care is entitled to an additional allowance during periods he or she is not hospitalized at United States Government expense. 38 U.S.C.A. § 1114(r) (West 1991 & Supp. 1998); 38 C.F.R. §§ 3.350(h). In addition, this higher level of aid and attendance allowance is payable whether or not the need for regular aid and attendance or a higher level of care was a partial basis for entitlement to the maximum rate under 1114(o) or 1114(p), or was based on an independent factual determination. Determination of the factual need for aid and attendance is subject to the criteria of 38 C.F.R. § 3.352(b) (1998), which provide that the need for a higher level of care shall be considered to be the need for personal health-care services provided on a daily basis in the veteran's home by a person who is licensed to provide such services or who provides such services under the regular supervision of a licensed health- care professional. Personal health-care services include (but are not limited to) such services as physical therapy, administration of injections, placement of indwelling catheters, and the changing of sterile dressings, or like functions which require professional health-care training or the regular supervision of a trained health-care professional to perform. A licensed health-care professional includes (but is not limited to) a doctor of medicine or osteopathy, a registered nurse, a licensed practical nurse, or a physical therapist licensed to practice by a State or official subdivision thereof. 38 U.S.C.A. § 1114(r) (West 1991 & Supp. 1998); 38 C.F.R. § 3.352(b)(2) (1998). The veteran's representative contends that the criteria for a higher rate of special monthly compensation, specifically, entitlement to a higher rate of aid and attendance allowance on the basis of need for aid and attendance, pursuant to the criteria of 38 U.S.C.A. §§ 1114(o) and (r), are met. (See July 1999 hearing transcript, page 20). As indicated in the introduction, the Board finds this issue to be inextricably intertwined with the increased rating claims on appeal, and it will thus be adjudicated below. Harris v Derwinski, 1 Vet. App. 80 (1991). II. Analysis Applying the legal criteria outlined above to the issues on appeal, it is noted initially that the pertinent facts and clinical history were discussed in the January 1996 Board decision/remand. In summary, these pertinent facts include service medical records reflecting treatment for back strain after the veteran lifted a desk, with service connection being granted initially for mild low back muscle pain by an October 1977 rating decision. The back pain continued thereafter, and the veteran underwent a myelography and cervical laminectomy with excision of arachnoid cysts in the thoracic spine at T1-T7 in May/June 1978. She also developed what was described as chronic traumatic lumbar myofascitis in January 1978. In December 1980, a laminectomy at L5-S1 with excision of herniated nucleus pulposus was performed, and the service connected low back disability was characterized thereafter as postoperative residuals of a herniated nucleus pulposus, L4-L5, by rating decisions dated from January 1982 to February 1996. Thereafter, the service-connected back disability was characterized more broadly by the RO as "disability of the lumbosacral spine." In the rating actions dated from January 1982 to the present time, the service connected low back disability has been rated under the diagnostic code pertaining to the rating of intervertebral disc disease, 38 C.F.R. § 4.71a, DC 5293. Service connection for a neurogenic bladder (rated under DC 7512 as indicated above) and weakness in the right and left lower extremity (rated separately under DC 8520) was granted as "secondary" to the service-connected low back disability under the provisions of 38 C.F.R. § 3.310 by a December 1990 rating decision. An October 1996 rating decision, as discussed in the introduction, granted service connected for major depression secondary to the service-connected low back disability, and a July 1998 rating decision granted service connection for a hypotensive anal sphincter secondary to the low back disability. The veteran has also been awarded special monthly compensation under the provisions of 38 U.S.C.A. § 1114(l) based on the need for the regular aid and attendance by another person. Lumbosacral spine rating/Additional special monthly compensation A review of the evidence of record reveals multiple surgical procedures for disc disease in the lumbar spine, most recently in March 1999 at which time the veteran underwent surgery that included a revision and decompression lumbar laminectomy and bilateral foraminotomy at L4-L5 and L5-S1 and spinal fusion of L4 to S1. Prior surgeries also include the aforementioned excision of arachnoid cysts at T1-T7 in 1978, which were essentially felt by a private physician in October 1978 to be etiologically related to the service-connected low back disability at that time. Pantopaque-induced arachnoiditis was listed as a possible cause of back pain on reports from VA inpatient treatment in 1979, and additional clinical records refer to the existence of arachnoid cysts/arachnoiditis (see eg. reports from November 1991 VA inpatient treatment, January 1993 private inpatient treatment reports, and March 1996 and April 1998 VA examination reports). While the evidence is not definitive as to whether the veteran's arachnoiditis is etiologically related to the service-connected lumbar disability or is instead associated with a distinct disability in the thoracic or cervical spine, in addition to the conclusion of the private physician in October 1978 discussed above essentially linking the arachnoiditis to the veteran's service-connected low back disability, the physician who conducted the March 1996 peripheral nerves examination stated that the veteran's back disability "could" include arachnoiditis of the lumbar region. Moreover, the physician who conducted the April 1998 VA peripheral nerves examination noted the presence of arachnoiditis involving the "lumbosacral cord and root areas" and remarked that arachnoiditis would occur with multiple radiculopathy problems and associated surgeries. Given this "positive" evidence, the Board will resolve all reasonable doubt in favor of the veteran and conclude that the service-connected residuals of the surgery to the lumbosacral spine include arachnoiditis involving the lumbosacral area. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. In making this determination, the veteran has also been afforded the benefit of the holding in Allen v. Brown, 7 Vet. App. 439, 448 (1995), which held that service connection may be established for that portion of a disability resulting from aggravation by a service- connected disability, as it is possible that the veteran's service connected low-back disability aggravated disability associated with arachnoiditis in the lumbar area. In finding that the service-connected disability includes arachnoiditis, (thickening and adhesions of the leptomeninges in the spinal cord, Dorland's Illustrated Medical Dictionary, Twenty-fifth edition, page 126), the principles against pyramiding, or employing the Ratings Schedule as a vehicle for compensating a claimant twice for the same symptomatology, preclude an award of increased compensation for disability attributable to the arachnoiditis, as such action would overcompensate the veteran for her actual impairment. Brady v. Brown, 4 Vet. App. 203, 206 (1993); 38 C.F.R. § 4.14 (1998). The clinical evidence does not demonstrate that there is any disability in the low back resulting from the arachnoiditis, to include pain or neuropathy, that is not reflected by the 60 percent rating currently assigned under 38 C.F.R. § 4.71a, DC 5293. In addition, there is no basis for, as asserted by the veteran's representative in the July 1999 "Appellant's Brief," entitlement to increased compensation under VAOPGCPREC 36-97, as the veteran is currently in receipt of the maximum award provided by DC 5293. In light of the fact that the 60 percent rating is the highest assignable rating under DC 5293, or any other diagnostic code potentially applicable to the veteran's back disability contained in the Ratings Schedule, the Board has considered the assignment of an extraschedular rating under the provisions of 38 C.F.R. § 3.321(b)(1) and finds no error in the RO's failure to refer it to the Under Secretary for Benefits or the Director, Compensation and Pension Service. It is concluded that the veteran's disability picture is not so exceptional as to render the Ratings Schedule impractical so as to warrant an extraschedular rating. It is also noted that lower extremity radicular symptoms resulting from the lumbar spine disability have been separately rated under Diagnostic Code 8520. However, the Board does conclude that given the evidence that the veteran is confined to a wheelchair and was found to be unable to walk "at all" at the time of the February 1998 VA examination, in combination with the fact that she has incontinence of her bowel and bladder, the criteria for entitlement to benefits provided by 38 U.S.C.A. § 1114(o) are met on the basis of paraplegia of the lower extremities together with the loss of anal and bladder sphincter control. 38 C.F.R. § 3.350(e)(2). Moreover, as the veteran is also so disabled as to require the regular aid and attendance of another person, entitlement to benefits provided by 38 U.S.C.A. § 1114(r)(1) are also met. 38 C.F.R. § 3.350(h). Pertinent regulations also provide that the placement of an indwelling catheter is considered one of the criteria establishing the need for "personal health-care services," necessitating a higher level of care and thereby warranting a higher level of special monthly compensation. 38 C.F.R. § 3.352(b)(2). The Board concludes that the evidence pertaining to her entitlement to the higher level of special monthly compensation is at least in equipoise, thereby raising a reasonable doubt to be decided in her favor. 38 C.F.R. § 3.102. In determining that the veteran is entitled to the special monthly compensation benefits provided by 38 U.S.C.A. § 1114(r)(2), the Board acknowledges that the regulatory provisions regarding this benefit are to be "strictly construed," and that these benefits are only to be provided when the veteran's need is "clearly established and the amount of services required by the veteran on a daily basis is substantial." 38 C.F.R. § 3.352(b)(5). While the evidence as to the level of care required by the veteran is not definitive, it was indicated at the time of the February 1998 VA "Aid and Attendance or Housebound Examination" that she has a "live-in aide" whose duties each day appear to include medical services. It is also unclear whether or not she requires help with regard to her self catheterization which, as indicated of the February 1998 report, is performed every three or four hours. On an April 1991 VA aid and attendance examination, the examiner certified, by checking the appropriate box, that the veteran required the daily personal health care services of a skilled provider without which she would require hospital, nursing home or other institutional care. Such need was not indicated on subsequent aid and attendance examination. However, given the nature of the veteran's disability and the indications in the record that she has a need for a higher level of care, the Board resolves all reasonable doubt and concludes that the veteran has established entitlement to a higher level of aid and attendance pursuant to 38 U.S.C.A. 1114(r)(2). 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 3.352(b)(2); Gilbert, 1 Vet. App. at 49. The Board has considered the fact that some of the recent objective clinical findings of record do not describe a level of disability, particularly with regard to the remaining strength and sensation in the lower extremities, as severe as is required for the benefits granted above, as well as the fact that some of the clinical evidence suggests there may be significant psychiatric overlay associated with the veteran's disability. However, such psychiatric overlay, to the extent that it is considered to be part of the service-connected "major depression," may appropriately be considered in determining the veteran's overall service-connected disability. Also of probative value to the Board in this regard was the veteran's sworn testimony asserting that she has lost the use of her lower extremities such that she is confined to her wheelchair and cannot walk without the assistance of others. Neurogenic bladder Summarizing briefly the pertinent facts, service connection for a neurogenic bladder was, as indicated above, granted as "secondary" to the service-connected low back disability by a December 1990 rating decision. A 40 percent rating under 38 C.F.R. § 4.115b, DC 7512 (1990) was initially assigned effective from September 14, 1990. After a June 1991 rating decision established the earlier effective date of February 5, 1990, for the grant of service connection for the veteran's neurogenic bladder at the rate of 40 percent disabling, the January 1996 Board decision granted an earlier effective date of January 23, 1979, for the award of service connection for this disability. The RO implemented this decision by way of a February 1996 rating decision, and assigned January 23, 1979, as the effective date for the 40 percent rating for a neurogenic bladder. The disability rating for the veteran's neurogenic bladder was increased to 60 percent effective from August 20, 1987, by way of an October 1996 rating decision. As a result of an October 1996 rating decision, the adjudication of the claim for an increased rating for the veteran's neurogenic bladder must include consideration of two periods of time. First, the issue of entitlement to a rating in excess of 40 percent for the period from January 23, 1979, to August 19, 1987 must be addressed. The second issue for consideration is whether the criteria for a rating in excess of 60 percent for the period beginning August 20, 1987, are met. With regard to the "first" issue, it was indicated by a private physician in a November 1987 statement that the veteran was voiding reasonably well when last seen in his office in August 1986. Moreover, thorough examinations conducted in conjunction with a visit to a VA outpatient treatment clinic in March 1987 did not reveal any significant urologic findings or complaints, and the veteran reported no genitourinary problems at the time of inpatient treatment at a private medical facility in November 1985. Contradicting this evidence, however, are reports from VA examinations conducted in March 1985 indicating that the veteran had flaccid bladder incontinence with overflow necessitating self-catheterization. As that time, the veteran reported having to self-catheterize for urine since 1978. A January 1980 VA examination also indicated that the veteran had to be catheterized for urination, with the veteran reporting at that time that this procedure had been necessary since June 1979. Analyzing the evidence summarized above, it is the conclusion of the Board that the "positive" and "negative" evidence as to whether the veteran's neurogenic bladder resulted in the veteran having incontinence requiring the constant wearing of an appliance (the criteria for a 60 percent rating under the provisions of 38 C.F.R. § 4.115b, DC 7512 in effect during that period of time) for the period from January 23, 1979, to August 19, 1987, is in relative balance. Accordingly, all reasonable doubt in this regard must be construed in favor of the veteran, and the Board concludes that entitlement to a 60 percent rating for a neurogenic bladder for the period from January 23, 1979, to August 19, 1987, is warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. Turning to the issue of entitlement to rating in excess of 60 percent for the veteran's neurogenic bladder at any time following January 23, 1979, a 60 percent rating is the highest schedular rating for a neurogenic bladder under the old and revised criteria for rating cystitis under DC 7812. In addition, no other potentially applicable diagnostic code under the old or revised criteria codified at 38 C.F.R. § 4.115a provides for a schedular rating in excess of 60 percent. As for an "extraschedular" evaluation under 38 C.F.R. § 3.321(b)(1), the disability picture associated with the veteran's neurogenic bladder is not so exceptional as to render the provisions of the Ratings Schedule impractical; rather, it appears that the rating schedule contemplates the nature and extent of the urinary dysfunction. Moreover, the Board concludes that the disability associated with the neurogenic bladder is adequately compensated by the award of additional special monthly compensation discussed in the previous section. Lower Extremity Weakness As indicated previously, service connection for bilateral lower extremity weakness was granted as secondary to the service connected low back disability by a December 1990 rating decision. Separate 20 percent ratings were assigned for each lower extremity, and these ratings have been continued until the present time. Turning to an analysis of the claim for increased ratings for the lower extremity weakness, the Board notes that all pertinent evidence for the appeal period has been considered, including, in addition to the most recent clinical evidence, the clinical evidence from the initial determination of entitlement to service connection for these disabilities. See Fenderson v. West, 12 Vet. App. 119 (1999). A review of the most recent pertinent evidence, contained in reports from the April 1998 VA peripheral nerves and February 1998 VA "Housebound" examinations discussed above, reveals "moderately severe" neurological disability in each lower extremity such that entitlement to a 40 percent rating is warranted for each lower extremity under the provisions of 38 C.F.R. § 4.124a, DC 8520. Particularly pertinent to the Board in making this determination was the April 1998 VA examination finding of "anesthesia" in the veteran's legs. As for entitlement to ratings in excess of 40 percent, a 60 percent rating under DC 8520 requires "severe" disability with marked muscular atrophy. This level of disability is not shown by the record, and the Board thus concludes that ratings in excess of 40 percent for the lower extremity weakness are not warranted. For example, VA examination in May 1988 reflected normal motor examination, and VA examination in October 1992 revealed no significant atrophy of the lower extremities and 4/5 strength in the lower extremities. On hospitalization in August and September 1995 motor strength was 2/5 in the left lower extremity and 1-2/5 in the right lower extremity. Ankle reflexes were 1+ in the right lower extremity and 2+ in the left lower extremity. As further support for the Board's conclusion, on VA examinations conducted in 1996 and 1998 , there also appears to be some remaining strength in the lower extremities, as weakness was noted to be 2/5 at the March 1996 and February 1998 examinations and motor strength was said to be intact in the lower extremities at the April 1998 VA examination. Moreover, reflexes were noted to be present, albeit moderately increased, in the lower extremities upon examination in April 1998. Marked muscular atrophy has not been clinically described. The Board has also considered the assignment of extraschedular ratings, but concludes that the disability picture associated with the lower extremity weakness is not so unusual to render the Ratings Schedule impractical; and, as noted in the previous section, the Board concludes the disability in the lower extremities is adequately compensated by the additional special monthly compensation granted by this decision. ORDER Entitlement to a higher rate of special monthly compensation on the basis of need for a higher level of aid and attendance, pursuant to the criteria of 38 U.S.C.A. 1114(r)(2), is granted. Entitlement to a rating in excess of 60 percent for residuals of surgery of the lumbosacral spine, to include arachnoiditis, are not met. Entitlement to a 60 percent rating for a neurogenic bladder effective from January 23, 1979, is granted. Entitlement to a rating in excess of 60 percent for a neurogenic bladder is denied. Entitlement to a 40 percent rating for weakness of the right lower extremity is granted. Entitlement to a rating in excess of 40 percent for weakness of the right lower extremity is denied. Entitlement to a 40 percent rating for weakness of the left lower extremity is granted. Entitlement to a rating in excess of 40 percent for weakness of the left lower extremity is denied. MICHAEL D. LYON NANCY I. PHILLIPS Member, Board of Veterans' Appeals Member, Board of Veterans' Appeals HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals