Citation Nr: 1753558 Decision Date: 11/22/17 Archive Date: 12/01/17 DOCKET NO. 14-04 311 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to a compensable initial rating prior to April 15, 2015, for radiculopathy of the bilateral lower extremities. 2. Entitlement to a rating in excess of 20 percent for discogenic degenerative changes, lumbosacral spine with intervertebral disc syndrome (hereafter a back disability). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD S. Mountford, Associate Counsel INTRODUCTION The Veteran had active service from December 1993 to February 1995. This matter comes before the Board of Veterans' Appeals (Board) from the October 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. Jurisdiction is now with the Houston, Texas RO. The issue of entitlement to service connection for an erectile dysfunction, to include on a secondary basis, has been raised by the record in a July 2010 VA examination, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2016). FINDINGS OF FACT 1. Prior to April 15, 2015, the Veteran's radiculopathy of the bilateral lower extremities was at most characterized by mild or moderate paralysis of the external cutaneous nerve of the thigh. 2. The Veteran's back disability is manifested by forward flexion greater than 30 degrees but not greater than 60 degrees. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for radiculopathy of the bilateral lower extremities, prior to April 15, 2015, have not been met. 38 U.S.C.A §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.124a (Diagnostic Code 8529). 2. The criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C.A §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.71a (Diagnostic Code 5243). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist Pursuant to the Veterans Claims Assistance Act of 2000 (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.159, 3.326 (2016); see also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Veteran's appeal for a back disability and radiculopathy arises from his disagreement with the initial rating awarded following the grant of service connection for that disability. Where the initial claim is one for service connection, once service connection has been granted, the claim has been substantiated. Therefore, the initial intended purpose of the notice has been fulfilled and additional VCAA notice under § 5103(a) is not required. Any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, once a notice of disagreement has been filed, for example, contesting a downstream issue such as the initial rating assigned to the disability, only the notice requirements for a rating decision and Statement of the Case described in 38 U.S.C.A. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision. 38 C.F.R. § 3.159(b)(3). Here, the RO provided the Veteran the required Statement of the Case in December 2013. The Statement of the Case cites the applicable statutes and regulations pertaining to his claim. As for the duty to assist, the Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The Veteran has not identified, and the record does not otherwise indicate, any additional relevant medical records that have not been obtained and associated with his file. Additionally, several VA examinations were scheduled in connection with the current claim. Therefore, VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on his claim at this time. II. Legal Criteria for Increased Ratings Generally Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4 (2016). The Rating Schedule is primarily a guide in the evaluation of disabilities resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 199 (1999). VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability shall be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. However, when an evaluation of a disability is based on limitation of motion, the Board must also consider, in conjunction with the otherwise applicable diagnostic code, any additional functional loss the veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45 (2016). DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy of disuse. The provisions of 38 C.F.R. § 4.40 state that disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40 (2016); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Although pain may cause functional loss, pain itself does not constitute functional loss. Rather, pain must affect some aspect of "the normal working movements of the body," such as "excursion, strength, speed, coordination, and endurance," in order to constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38-43 (2011) (quoting 38 C.F.R. § 4.40). III. Analysis The Board has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the medical and lay evidence for the issue on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzalez v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the claim. Back Disability The Veteran's back disability is currently evaluated as 20 percent disabling under diagnostic code 5243, which considers intervertebral disc syndrome (IVDS). Under the same diagnostic code, a higher evaluation of 40 percent is not warranted for IVDS unless the evidence shows IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, occurring during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Under diagnostic code 5242, which contemplates degenerative arthritis of the spine, a rating of 30 percent disabling is not warranted unless the evidence demonstrates forward flexion of the cervical spine 15 degrees or less or favorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a. A 40 percent rating is not warranted unless there is unfavorable ankylosis of the entire cervical spine, forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent rating is not warranted unless there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is only warranted for unfavorable ankylosis of the entire spine. Id. In April 2009, the Veteran underwent a VA examination. The examiner stated that intervertebral disc degenerative changes were seen at L5-S1 and discogenic vertebral body spurring at L5-S1. Additionally, the examiner noted that the broad-disc protrusions are seen at the L5-S1 causing impression on the anterior thecal sac and narrowing of bilateral neural foramina. Finally, the examiner stated that the Veteran has mild intervertebral disc space narrowing L5-S1. At this examination, the Veteran reported that his back pain is a seven to eight on a scale of 0-10. The Veteran also reported stiffness and weakness, with pain that distributed to his leg. The Veteran described his back pain as sharp and achy that is severe in intensity. During the examination, the Veteran reported that his functional impairment due to pain is limited movement. The Veteran did report weakness in his legs, but denied the need to use a cane, crutches, or a walker. The Veteran stated that he uses a back brace while working and that he can walk approximately one mile and for about one hour before he must stop. The Veteran reported difficulty getting dressed, taking a bath, and constantly driving long distances. Regarding his occupation, the Veteran noted that his employment is affected by his back disability as he has difficulty sitting in and moving in a chair all day. However, the Veteran denied incapacitating episodes within the past 12 months due to his IVDS. The Veteran's range of motion was noted as follows: forward flexion limited to 60 degrees; extension limited to 10 degrees; left lateral flexion limited to 15 degrees; and, right lateral flexion limited to 20 degrees. The examiner also stated that there was loss of motion after repetitious activity on forward flexion and that the Veteran was noted to be limited by pain on range of motion as evidence by the Veteran grunting. The Veteran was first limited by pain and secondly limited by weakens. However, the examiner noted that there was no additional limitation caused by lack of endurance or fatigue and no ankylosis or postural abnormalities were noted. Additionally, the examiner noted pain at 20 degrees on the right and left lower extremities during straight leg raises. In June 2009, the Veteran's back disability rating was increased from 10 to 20 percent, with an effective date of January 26, 2009. In July 2010, the Veteran underwent another VA spine examination. The examiner again diagnosed the Veteran with discogenic degenerative changes of the lumbosacral spine with IVDS. The examiner also stated that the most likely involved peripheral nerve is the external cutaneous nerve of the thigh nerve which affects both sides of the body. The Veteran reported that he has limitation in walking due to his back disability and back pain. The Veteran stated that, on average, he can walk 50 yards which takes 10 minutes to accomplish. The Veteran noted that he has experienced falls due to his back disability as well as stiffness, spasms, decreased motion, and paresthesia. However, the Veteran stated that he does not experience fatigue or numbness. Although, the Veteran reported weakness of his back and legs. The Veteran stated that his back pain carries to his buttock and right leg/thigh area and that his pain is exacerbated by physical activity and stress. During flare ups, the Veteran experiences functional impairment as described by his back 'locking up', the inability to tie his shoes, as well as limitation of motion. Although the Veteran reported not being hospitalized or having surgery for his back condition, over the previous 12 months, the Veteran reported experiencing an incapacitating episode from June 28, 2010 to July 15, 2010 and from July 9, 2010 to August 13, 2010. The Board notes that the record does reflect a June 28, 2010 VA emergency room note in which the Veteran complained of severe back pain. However, no recommendation of bed rest was included in the treatment note. Additionally, the record does not contain any recommendations of bed rest for the Veteran's claimed period of an incapacitating episode from July 9, 2010 to August 13, 2010. The Board acknowledges private treatment records during this time period that state that the Veteran could not work due to a work-related injury at that time. However, there are no physician-ordered bedrest instructions. Alternatively, the physician (Dr. M.) that the Veteran cited at his July 2010 VA examination that ordered the Veteran's claimed second period of incapacitation/bed rest instead recommended active and passive therapy. Additionally, an August 18, 2010 VA treatment note stated that the Veteran did not require any ambulatory aid, to include bed rest. Finally, the Veteran reported that he cannot sit, stand, or lie down for either short or long periods of time depending on his back pain and whether his back locks up. The Veteran stated that he has to work less physical jobs due to the pain. The examination revealed evidence of radiating pain on movement to the right lower extremity. Muscle spasms were absent. The examiner stated that there was tenderness noted on examination described as both thoracic and lumbar. No guarding of movment or weakness was noted. The Veteran's muscle tone was noted as normal and no atrophy was present in the limbs. Finally, no ankylosis of the thoracolumbar spine was noted. The Veteran's range of motion was noted as follows: forward flexion limited to 40 degrees; extension limited to 10 degrees; left lateral flexion limited to 10 degrees; right lateral flexion limited to 10 degrees; right rotation limited to 10 degrees; and, left rotation limited to 10 degrees. The examiner noted that the Veteran's joint function of the spine is not additionallhy limited by pain, fatigue, weakness, lack of endurance, or incoordination after repetitive use. The examination report noted that the Veteran's lumbar spine and sacral spine sensory function is impaired. However, no lumbosacral motor weakenss was noted. Additionally, the examination revealed normal cutaneous reflexes and no signs of pathologic reflexes of the lower extremities was noted. The functional limitations of the Veteran's back disaiblity were the inability to sit, stand, or bend for long periods of time, as well as the inability to carry, lift, push, or pull heavy objects. As a result of a work-related injury on June 26, 2010, the Veteran filed a workman's compensation claim. An undated initial report included the Veteran's range of motion as follows: flexion limited to 35 degrees; extension limited to 15 degrees; right lateral flexion limited to 20 degrees; and, left lateral flexion limited to 20 degrees. The physician stated that the Veteran had the following diagnosis: lumbar sprain/strain, lumbar disc herniation, muscle spasms, and segmental dysfunction. Additionally, in July 2010, the Veteran underwent another initial consultaiton in connection with his workman's compensation claim. The physician stated that the Veteran was experiencing moderate pain with frequent symptoms and the Veteran reported that medication offers very little relief from this pain. The Veteran reported being restricted to one hour of sitting, one hour of standing, and could not lift heavy weights due to his pain. However, the Veteran did note that he could lift light to medium weights at table height. The Veteran stated that he is restricted to walking a quarter of a mile and cannot travel more than one hour due to pain. Finally, the veteran reported abstaining from sexual activities, experiencing sleep impairment, and engaging in less activities outside of the home, all as a result of his back disability. The Veteran's range of motion was as follows at this examination: flexion limited to 31 degrees; extension limited to 19 degrees; left lateral felxion limited to 17 degrees; right lateral felxion limited to 16 degrees; left straight leg raise limited to 45 degrees; and, right straight leg raise limited to 35 degrees. The physician noted that the Veteran experienced an increase in symptomatology as a result of the range of motion testing. The Veteran's bilateral lower extremity motor strength was found to be normal and his bilateral lower extremity deep tendon reflexes were normal as well. The examination noted that x-ray findings revealed left lateral deviation at L3-5, narrowed disc space at L-5, and foraminal encroachment at L-5. Most recently, in April 2015, the Veteran underwent another VA spine examination. The Veteran reported that he continues to have chronic low back pain with radiculopathy of his bilateral lower extremities described as pain and tightness with an occasional "grabbing" sensation. The Veteran stated that he has flare-ups that occur after standing or walking for prolonged time and after bending over, squatting, or straining. The Veteran described his flare-ups as sudden worsening of low back pain that radiates down into his posterior thighs, to his knees. The Veteran stated that on a normal day, his low back pain is a 4-5 out of 10 and reaches 9 out of 10 during a flare-up. In order to obtain relief for this pain, the Veteran stated that he has to stop what he is doing, sit down to rest, and take pain medication. The Veteran reported that occasionally, his back will lock up and wake him up in the middle of the night; the Veteran also stated that he has to reposition himself at night and sometimes has trouble going back to sleep. The Veteran stated that he limits his time standing and walking to try and prevent flare-ups and has to reposition himself frequently when he sits for prolonged periods. The examiner noted that the Veteran does have functional loss or functional impairment of the thoracolumbar spine. The examiner stated that although the Veteran can do normal activities of daily living, he cannot walk fast, climb stairs, bend of squat, or carry heavy loads (groceries, work related, etc.) without increased pain and symptoms. The Veteran's limitation of motion was as follows: forward flexion limited to 70 degrees; extension limited to 15 degrees; right lateral flexion limited to 15 degrees; left lateral flexion limited to 20 degrees; right lateral rotation limited to 20 degrees; and, left lateral rotation limited to 25 degrees. The examiner stated the Veteran's range of motion itself contributes to a functional loss as the Veteran is limited in regard to ability to bend over to tie his shoes, pick things up off of the floor, etc. The Veteran specifically asked not to repeat movements due to increased pain. Regarding employment, the examiner stated that the veteran has had a hard time finding a job that does not require some form of physical activity, such as prolonged standing, walking, lifting, etc. The examiner noted that the Veteran does have pain with weight bearing. However, there is no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine. The examiner stated that he is unable to say without mere speculation whether or not pain, weakness, fatigability, or incoordination significantly limit functional ability with repeated use over a period of time. The examiner explained that the Veteran was not being examined after repetitive use over time, so he was unable to state an answer without speculating. The Veteran made a point to state that he cannot do any activity that requires prolonged walking, standing, sitting, etc. without modifications. Similarly, the examiner was unable to say without mere speculation whether or not pain, weakness, fatigability, or incoordination significantly limit functional ability with flare-ups as the Veteran was not being examined during a flare-up. However, again, the Veteran specifically stated that during flare-ups, he has to stop whatever he is doing and refrain from any prolonged walking, standing, or sitting. The Veteran was noted to not have any guarding or muscle spasms. Additionally, although the Veteran experiences localized tenderness of the thoracolumbar spine, it does not result in abnormal gait or abnormal spinal contour. The Veteran had normal muscle strength and no muscle atrophy was noted. The Veteran reported using a cane for balance due to his low back pain, radiculopathy, and a gunshot wound to his left knee in June 2014. The examiner stated that the Veteran has no ankylosis of the spine or any other neurologic abnormalities. The examiner noted that the Veteran does have IVDS of the thoracolumbar spine, but has not had any episodes of acute signs and symptoms due to IVDS that required best rest prescribed by a physician and treatment by a physician in the past 12 months. Finally, the examiner stated that the veteran's back disability does impact his ability to work as he needs modifications of work duties in order to avoid heavy lifting, twisting, and repetitive movements such as squatting, bending over, or climbing. Additionally, the Veteran would benefit from the use of a back support, brace, or corset and will probably require use of pain medication. The examiner concluded that the Veteran should avoid heavy work, but should have no restrictions with more of a sedentary, less physical job. Based on the evidence of record, to include the Veteran's private treatment records, the Board finds that a rating in excess of 20 percent for the Veteran's back disability is not warranted. In fact, at the Veteran's most recent VA examination, the Veteran's forward flexion was limited to 70 degrees. Under the general rating formula for diseases and injuries of the spine, forward flexion greater than 60 degrees but not greater than 85 degrees warrants a 10 percent rating. However, the Board will not disturb the Veteran's current evaluation of 20 percent. Additionally, a higher rating under diagnostic code 5243, which contemplates IVDS based on incapacitating episodes, is not warranted as the evidence of record does not demonstrate that the Veteran has had any incapacitating episodes in the past 12 months. In reaching these conclusions, the Board accepts that the Veteran has flare-ups that include pain. See DeLuca, supra. However, neither the lay nor medical evidence reflects the functional equivalent of symptoms required for a higher evaluation for his lumbar spine disability. Although the Board is sympathetic to the Veteran's report of flare-ups in the lumbar spine that include pain, pain alone does not constitute functional loss under VA regulations. See Mitchell, supra. The Board has also considered the applicability of principles set forth in a recent Court of Appeals for Veterans Claims (Court) case, Correia v. McDonald, 28 Vet. App. 158 (2016). The Board finds no basis under that case for remanding for a new examination. The Board notes that the Correia case involved a claim for an increased rating for knee disorders, as opposed to the current case which involves a spine disorder. In Correia, the Court provided a precedential interpretation of the final sentence of 38 C.F.R. § 4.59, which reads: "The joints involved should be tested for pain on both active and passive motion, in weight-bearing and non-weight bearing and, if possible, with the range of the opposite undamaged joint." Specifically, the CAVC held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." The CAVC also stated that "to be adequate, a VA examination of the joints must, wherever possible, include the results of the range of motion testing described in the final sentence of § 4.59." The CAVC provided two qualifications to this requirement. First, the CAVC "trust[ed] that its decision today will be taken as requiring the range of motion testing listed in the final sentence of § 4.59 in every case in which those tests can be conducted." The CAVC specifically found that it was not competent to determine "whether upper extremities are or can be weight-bearing," though it did find that knees were "undoubtedly weight-bearing." In a later footnote, the CAVC "le[ft] it to medical professionals to determine whether the listed range of motion testing can be performed on the joints at issue in a particular case." Second, the CAVC indicated that range of motion testing of the opposite joint does not apply "for joints that do not have an opposite or whose opposite is also damaged." While the CAVC did not define "damaged" for these purposes, they noted that both of the appellant's knees were "damaged." The record shows that the appellant in Correia had knee diagnoses that included both traumatic arthritis and degenerative joint disease. The Court in Correia held, in essence, that to be adequate, an examination of a joint must include range of motion testing of the joint in the following areas: active motion, passive motion, weight-bearing, and non-weight bearing. The Board initially notes, however, that the Correia case is less applicable in the case of a spine than in the knee. First, the Board notes that there can clearly not be an opposite undamaged joint in the case of a spine disorder as there can be in a knee disorder. Second, the Board notes that the July 2010 and April 2015 examinations noted the range of motion of the spine in all directions. Although the examinations in this case did not specify whether the examination was done with active motion or passive motion, or with weight bearing or non-weight bearing, the Board finds that this is inconsequential under the facts of this case. The Board takes notice that on VA examinations, the testing of the range of spine motions is generally done by assessing active motion rather than passive. The "active" motion is tested by having the Veteran stand and attempt to lean forward to test flexion, lean backward to test extension, and lean sideways to test lateral flexion, and twist the upper torso at the waist to test lateral rotation. This standing testing is considered to be testing on weight bearing as the Veteran must support the weight of his body while undergoing such testing. Although it may possible to test passive motion without weight bearing by having the Veteran lie down on a table and have the examiner move the spine by bending the Veterans body, such testing would be awkward and would not reveal useful information. In this regard, active range of motion testing produces range of motion produces test result figures which are more restricted than the results produced by passive range of motion testing in which the physician forces the joint through its motions. Similarly, testing on weight bearing would generally produce more restrictive results than testing done without weight bearing. Therefore, there is no prejudice to the Veteran in relying on the VA examinations that involved active range of motion testing on weight bearing because such results tend to produce the "worst case scenario" of impairment and thus would tend to support the highest possible rating. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The Board notes that in exceptional cases where evaluations provided by the Rating Schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the Veteran's back disability and referral for consideration of an extraschedular rating for either period of time discussed above is not warranted. Radiculopathy of the Bilateral Lower Extremities Prior to April 15, 2015 The Veteran is currently in receipt of service connection for his radiculopathy of his right lower extremity evaluated as noncompensable prior to April 15, 2015, and 20 percent thereafter. Additionally, the Veteran is currently in receipt of service connection for his radiculopathy of his left lower extremity evaluated as noncompensable prior to April 15, 2015, and 10 percent thereafter. The Veteran contends that his radiculopathy of the bilateral lower extremities warrants a compensable rating prior to April 15, 2015. Under diagnostic code 8529, a noncompensable rating is warranted for mild or moderate paralysis of the external cutaneous nerve of the thigh and a 10 percent rating is warranted for severe to complete paralysis of the same nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8529. There is no higher schedular rating under this diagnostic code. Under diagnostic code 8720 (neuralgia of the sciatic nerve), a 10 percent rating is warranted for mild paralysis of the sciatic nerve; a 20 percent rating is warranted for moderate paralysis of the sciatic nerve; a 40 percent rating is warranted for moderately severe paralysis of the sciatic nerve; a 60 percent rating is warranted for severe, with marked muscular atrophy, of the sciatic nerve; and, an 80 percent rating is warranted for complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. As discussed above, at the Veteran's July 2010 VA examination, the Veteran reported pain beginning in his low back that continues to his buttock and right leg and right thigh. The Veteran self-reported this pain as moderate. The examiner stated that the most likely peripheral nerve is the external cutaneous nerve of the thigh. Additionally, although the examiner stated that there is sensory deficit of the bilateral anterior lower thighs and bilateral inner knees, the examination revealed normal cutaneous reflexes and no signs of pathologic reflexes of the lower extremities. Furthermore, the evidence of record does not state that the Veteran has either neuritis or neuralgia. Additionally, at the Veteran's July 2010 workman's compensation examination, the Veteran's lower extremity deep tendon reflexes were reported as normal bilaterally. The examiner also stated that the Veteran was experiencing non-verifiable pain on the right as a result of the distribution of a nerve root that is not verifiable by accompanying neurological findings. Furthermore, at the Veteran's separate, undated spine examination in relation to his work-related injury, the physician stated that the Veteran's lower extremity reflexes were normal. The Board notes that the record contains complaints of pain radiating in the Veteran's legs prior to April 15, 2015. However, no such complaint indicated severe or complete paralysis of the external cutaneous nerve of the thigh. Additionally, the Board notes that the Veteran's radiculopathy of the bilateral lower extremities was always characterized as paralysis of the external cutaneous nerve of the thigh. The record does not reflect that it was the Veteran's sciatic nerve that was the cause of his radiculopathy until his April 2015 examination, thereby explaining the increase in disability rating for the Veteran's radiculopathy of his bilateral lower extremities beginning April 15, 2015. Therefore, as the evidence of record demonstrates that the Veteran's bilateral radiculopathy was at most mild to moderate, a compensable rating prior to April 15, 2015 is not warranted. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107 (b). ORDER Entitlement to a compensable initial rating for radiculopathy of the bilateral lower extremities, prior to April 15, 2015, is denied. Entitlement to a rating in excess of 20 percent for a back disability is denied. ____________________________________________ R. FEINBERG Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs