Citation Nr: 1753897 Decision Date: 11/24/17 Archive Date: 12/01/17 DOCKET NO. 10-47 449 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity associated with degenerative disc disease of the lumbar spine with herniated discs at L4-L5 and L5-S1 due to low back strain. 2. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity associated with degenerative disease of the lumbar spine with herniated discs at L4-L5 and L5-S1 due to low back strain. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Katz, Counsel INTRODUCTION The Veteran served on active duty from July 1986 to May 1990. These matters come before the Board of Veterans' Appeals (Board) on appeal from April 2009, July 2014, and May 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). Jurisdiction of the Veteran's claims file rests with the RO in Sioux Falls, South Dakota. The Veteran testified at a hearing before the undersigned Veterans Law Judge in June 2013. A transcript of that hearing is associated with the claims file. Service connection for radiculopathy of the left lower extremity as secondary to a service-connected lumbar spine disability was granted in a July 2014 rating decision, and a 10 percent initial rating was assigned under 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). A May 2017 rating decision awarded an initial rating of 20 percent for radiculopathy of the left lower extremity under Diagnostic Code 8520 and also granted service connection for radiculopathy of the right lower extremity as secondary to a service-connected lumbar spine disability. A 10 percent rating for right lower extremity radiculopathy was assigned under Diagnostic Code 8520, effective December 18, 2008. At the time of the November 2016 Board decision, the issue of entitlement to an increased rating for degenerative disc disease of the lumbar spine with herniated discs at L4-L5 and L5-S1 due to low back strain was before the Board. In its November 2016 decision, the Board noted that, although the Veteran did not specifically disagree with the initial 10 percent rating assigned in the July 2014 rating decision for left lower extremity radiculopathy, the issue of entitlement to an increased rating for radiculopathy of the left lower extremity was part and parcel of the increased rating claim for the Veteran's lumbar spine disability. The Board also found that the issue of entitlement to a separate rating for right lower extremity radiculopathy was properly before the Board. Accordingly, although the Veteran has not filed notices of disagreement with the July 2014 rating decision which granted a separate 10 percent rating for left lower extremity radiculopathy or the May 2017 rating decision which granted a 20 percent initial disability rating for left lower extremity radiculopathy and granted a separate 10 percent rating for right lower extremity radiculopathy, these issues are properly before the Board as stemming from the properly appealed issue of entitlement to an increased rating for a lumbar spine disability which was adjudicated by the Board in November 2016. See Tyrues v. Shinseki, 23 Vet. App. 166, 178-79 (2009), aff'd, 631 F.3d 1380 (Fed. Cir. 2011) (VA is free to dismember a claim and adjudicate it in separate pieces); see also Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion). FINDINGS OF FACT 1. Since the initial grant of service connection, the Veteran's left lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. 2. Since the initial grant of service connection, the Veteran's right lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 20 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for an initial rating of 20 percent, but no greater, for right lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2017). Prior to the initial adjudication of the Veteran's claims, letters dated in February 2009, March 2009, and April 2010 satisfied the duty to notify provisions. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, the purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. Simmons v. Nicholson, 487 F.3d 892, 896 (Fed. Cir. 2007); Sanders v. Nicholson, 487 F.3d. 881, 887 (Fed. Circ. 2007), rev'd on other grounds, Sanders v. Shinseki, 556 U.S. 396 (2009). Thus, the Board finds that the content requirements of the notice VA is to provide have been met. See Pelegrini v. Principi, 18 Vet. App. 112, 120 (2004). The duty to assist the Veteran has also been satisfied in this case. The Veteran's service treatment records, VA medical treatment records, and identified private treatment records have been obtained. 38 U.S.C. § 5103A, 38 C.F.R. § 3.159. The record does not reflect that the Veteran is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159(c)(2); Golz v. Shinseki, 590 F.3d 1317, 1320-21 (Fed. Cir. 2010). In addition, the Veteran was most recently provided with a VA examination addressing the severity of his right and left lower extremity radiculopathy in January 2017. Review of the examination report reflects that it is adequate in this case, as it was based on a review of the claims file, clinical examination, and interview of the Veteran. 38 C.F.R. § 3.159(c)(4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examination provided was adequate in this case, as it provides subjective and objective findings sufficient to rate the severity of the Veteran's right and left lower extremity radiculopathy under the appropriate rating criteria. 38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran's representative contends in an October 2017 Informal Hearing Presentation that the January 2017 VA examination is not adequate because the VA examiner who conducted the examination was a primary care physician and not a specialist in neurology. However, the Board is entitled to presume the competence of a VA examiner. Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011). The Court has specifically upheld the adequacy of VA examinations completed by nurse practitioners. Cox v. Nicholson, 20 Vet. App. 563, 569 (2007). If a nurse practitioner is competent to perform a neurological examination, a generalist physician must logically also be competent, absent specific argument to the contrary. The Veteran's representative has not identified any inadequacies in the January 2017 examination, and the argument that the examination is inadequate merely because the examiner was not a neurological specialist is not persuasive. For the reasons cited above, the Board finds the January 2017 VA examination to be adequate. VA has fulfilled its duty to assist with regard to providing an adequate medical examination. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veterans Law Judge who conducts a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. During the Veteran's Board hearing, the Veteran was assisted at the hearing by an accredited representative. The representative and the Veterans Law Judge (VLJ) solicited information regarding any outstanding evidence pertinent to the claims on appeal. The hearing focused on the evidence necessary to substantiate the Veteran's claims. No pertinent evidence that might have been overlooked and that might substantiate the claims decided herein was identified by the Veteran or the representative. Therefore, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Accordingly, any error in notice or assistance by the VLJ at the June 2013 Board hearing constitutes harmless error. Finally, there is no indication in the record that additional evidence relevant to the issues being decided herein is available and not part of the record. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Disability ratings are determined by the application of the VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4 (2017). Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017); see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where the Rating Schedule does not provide for a noncompensable evaluation for a diagnostic code, a noncompensable evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2017). The primary concern in a claim for an increased evaluation for service-connected disability is the present level of disability. Although the overall history of the disability is to be considered, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. VA has a duty to consider the possibility of assigning staged ratings in all claims for increase. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In a July 2014 rating decision, the RO awarded a separate 10 percent disability rating for radiculopathy of the left lower extremity, effective February 19, 2009, under the provisions of 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). In a May 2017 rating decision, the RO awarded an initial disability rating of 20 percent for the left lower extremity radiculopathy, effective January 27, 2009, and also granted a separate 10 percent rating for right lower extremity radiculopathy, effective December 18, 2008, under Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). A 20 percent rating is warranted for moderate incomplete paralysis of the sciatic nerve. Id. A 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve. Id. A 60 percent rating is warranted for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. Id. A maximum 80 percent rating is warranted for complete paralysis of the sciatic nerve where the foot dangles and drops with no active movement possible of the muscles below the knee and with weakened or (very rarely) lost flexion of the knee. Id. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6 (2017). Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104 (2012); 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. VA treatment records from 2008 through 2010 show neurological and chiropractic treatment for low back pain with reports of pain radiating down the back of the legs to the midthigh and occasionally to the lateral calf. A December 2008 record reveals that the Veteran denied incontinence of stool and urine. In January 2009, he denied numbness and weakness. There was normal motor strength with decreased sensation to pinprick and temperature from the feet to the ankles. Deep tendon reflexes were 2+ and positive. The diagnosis was low back pain with radicular symptoms secondary to degenerative changes. Another January 2009 record reflects that the Veteran reported that his low back pain radiated to both hips but only went further down on the right side into his thigh and occasionally his right calf. He denied numbness except for a numb spot near a surgical site on his right foot. A sensory examination was normal in the lower extremities. A straight leg raise test was negative for radicular symptoms, bilaterally. In January 2010, the Veteran denied radiation of low back pain as well as bowel or bladder problems. In March 2009, the Veteran underwent a VA examination. The Veteran reported that his low back pain radiated to his beltline, then to his hips, and then down the left leg to just above the knee. The pain was aggravated with standing greater than 30 to 45 minutes or from going up and down steps. He also indicated that jumping while playing basketball aggravated the pain. He stated that he was working as a mail carrier and that the pain did not seem to affect his range of motion. Physical examination showed that gait was unremarkable and that the Veteran could stand on his heels and toes without difficulty. He appeared in no apparent distress and was able to sit and lean forward with his elbows on his knees and sit back with no subjective or objective evidence of pain. He was able to dress and undress without difficulty and brought his legs to 90 degrees multiple times. Sensation to light touch, pinprick, and vibratory sense were intact. Dorsalis pedis and posterior tibial were 2+ out of 4. Straight leg raising was negative to 70 degrees on the right with hamstring tightness and to 65 degrees on the left with some tenderness in the low back. Palpation of the hip revealed no pain or discomfort and there were no abnormalities or instability of the left knee or ankle. In May 2010, the Veteran underwent another VA examination. He stated that his back pain radiated down the left buttocks to the back of the thigh. He explained that the pain came and went but that it occurred daily. He denied numbness and tingling. He noted that certain things would cause shooting pain, such as turning just the exact wrong way, especially while working. The examiner noted that the Veteran's radiculopathy appeared to be in the L5-S1 area but stopped midway down the upper leg area in the back. The Veteran reported that steps caused radiating pain at times. He indicated that the pain was present daily, but not consistently throughout the day. He reported that he has not been able to find anything that relieves the pain, and that sitting bothered him. Physical examination showed fairly stable gait. Lower extremity strength was full and equal, bilaterally. Gross sensation and vibratory sensation were intact and equal, bilaterally. Monofilament testing was intact to the lower extremities except on the right great toe. The examiner remarked that the Veteran had a prior surgery to the proximal portion of that joint and had numbness ever since the surgery. There were calluses on the medial portion of the prominent joints on the medial bilateral feet. Leg length was equal. A Babinski test was downgoing, bilaterally, and reflexes were 2+. A straight leg raising test showed that the Veteran could raise his right leg up to 80 degrees without pain. On the left, he could raise his leg to 80 degrees with some discomfort. There was tenderness over the paraspinal and spinal areas in the lumbar region. Hips were equal and stable. There was piriformis tenderness in the standing position with no sacroiliac tenderness. There was discomfort with deeper palpation over the paraspinal and spinal areas. The Veteran was okay rolling up under the toes and was a little unstable on the heels. When in the standing position, there was radiating pain down the left buttocks and into the posterior left thigh, about half-way between his buttocks and the knee area. VA treatment records from 2010 through 2014 reflect complaints of and treatment for low back pain that radiated to both lower extremities. A July 2012 record reveals that there was tenderness over the lower lumbar area and musculature on the right greater than the left. There was right sciatic tenderness as well with no obvious muscle spasms. A straight leg raising test was negative, bilaterally, although it did cause pain in the lower back on the right side. Strength was 5/5 and symmetric in the upper and lower extremities. Sensation was normal to light touch and equal, bilaterally. Reflexes were 2/4 and symmetric. A February 2013 record reflects that examination showed no spinal tenderness or paraspinal spasm. A straight leg raising test was negative and muscle strength was 4-5/5. Patellar reflex was 2/4, bilaterally. In March 2013, the Veteran complained of an exacerbation of right-sided pain. He noted that his back pain was longstanding, but that the pain in the right buttock was unusual. Activity, bending, and lifting aggravated the pain. Examination revealed tenderness over the lower lumbar area in the musculature on both sides. There was also mild sciatic tenderness, bilaterally, and no obvious muscle spasms. A straight leg raising test was negative, bilaterally. Strength was 5/5 and symmetric in the lower extremities. Sensation was normal to light touch and equal, bilaterally. Reflexes were 2/4, and symmetric, bilaterally. Gait appeared normal and the Veteran was able to heel and toe walk. A January 2014 record notes that a straight leg raising test was negative and muscle strength was 5/5. Patellar reflex was 1-2/4, bilaterally. Gait was normal. The Veteran denied numbness and falls due to weak muscles. In August 2014, the Veteran underwent another VA examination. On physical examination, muscle strength in the lower extremities was 5/5. Reflexes were 2+ and symmetric. A sensory examination was normal in the lower extremities. A straight leg raising test was negative, bilaterally. The examiner remarked that the Veteran did not have any radicular pain or other signs or symptoms due to radiculopathy. Private chiropractic records from March 2014 through September 2014 do not show complaints of or treatment for pain radiating to the right or left lower extremity. VA treatment records from 2015 through 2017 show complaints of and treatment for right and left radiculopathy. A February 2017 record notes that the Veteran had 4/5 strength in the left lower extremity. A straight leg raising test was negative, bilaterally. Gait was normal. A February 2017 electromyography (EMG)/nerve conduction test notes the Veteran's symptoms of left lower extremity pain and tingling extending from the lumbar spine to behind the left knee. There was right-sided posterior thigh pain with no numbness or tingling. Motor examination was normal in the lower extremities and a straight leg raising test was negative. Reflexes were 2+ and symmetric. There was tenderness over the L4-L5 levels with normal gait and a negative Romberg test. The eletrodiagnostic study revealed the presence of bilateral chronic L4, L5, and S1 radiculopathy. In January 2015 and January 2016, the Veteran reported that he worked as a mail carrier. He reported back pain radiating to the bilateral lower extremities. In January 2017, the Veteran underwent another VA examination. The Veteran reported chronic left-sided pain coming from his left sacroiliac area down to the back of his knee. He reported mild to moderate numbing and tingling sensations in the posterior left extremity. He indicated that he had right posterior thigh pain coming from his back to the lower buttocks and upper posterior thigh. He denied numbness and tingling in the right lower extremity. The Veteran stated that he worked as a letter carrier at the post office. He indicated that he was able to walk five to six miles per day, stand for one hour, and climb three flights of stairs. He also noted that he was able to drive for three hours. Physical examination showed mild constant pain in the bilateral lower extremities; no intermittent pain; moderate paresthesias and/or dysthesias in the left lower extremity and none in the right lower extremity; and moderate numbness in the left lower extremity and none in the right lower extremity. Muscle strength was 5/5 in the bilateral lower extremities. There was no evidence of muscle atrophy. Reflexes were 2+ in the bilateral lower extremities. A sensory examination was normal in both lower extremities. There were no trophic changes attributable to peripheral neuropathy, and the Veteran's gait was normal. The examiner concluded that the Veteran's right and left sciatic nerve, external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerve were all normal. An EMG study was performed which showed moderate chronic L4, L5, and S1 radiculopathy in both lower extremities. The diagnosis was bilateral chronic L4, L5, and S1 radiculopathy. The examiner concluded that the Veteran's peripheral nerve condition did not impact his ability to work. After thorough consideration of the evidence of record, the Board concludes that an initial disability rating of 20 percent, but no greater, is warranted for the Veteran's right lower extremity radiculopathy. In that regard, the January 2017 VA examination stated that February 2017 EMG testing showed moderate chronic L4, L5, and S1 radiculopathy in both lower extremities. As this demonstrates that the Veteran's right lower extremity radiculopathy was moderate in severity, an initial disability rating of 20 percent is warranted under Diagnostic Code 8520. However, initial disability ratings greater than 20 percent are not warranted for right or left lower extremity radiculopathy. The evidence reflects that the Veteran's experienced symptoms including radiating pain and tenderness in both extremities and some tingling and numbness in the left lower extremity. The January 2017 VA examiner concluded that the Veteran's radiculopathy resulted in moderate chronic radiculopathy of the bilateral lower extremities. Additionally, sensation was consistently intact throughout the appeal period, as evidenced by the consistent findings that sensation, monofilament testing, and vibration sense were intact in the bilateral lower extremities. Also, muscle strength has remained consistently normal throughout the appeal period, and there was no evidence of muscle atrophy. There is no indication in the record that the Veteran's right or left radiculopathy was moderately severe, severe, or complete in severity at any time during the appeal period. In summary, the Board concludes that the evidence of record supports an initial disability rating of 20 percent, but no greater, for right lower extremity radiculopathy. The evidence does not support initial disability ratings greater than 20 percent for the Veteran's right or left radiculopathy, as the weight of the probative evidence does not show that the Veteran experienced moderately severe, or severe incomplete paralysis of the right or left sciatic nerve, or that there was complete paralysis of the sciatic nerve. Accordingly, an initial disability rating of 20 percent, but no greater, is warranted for the Veteran's right lower extremity radiculopathy. Initial disability ratings greater than 20 percent for radiculopathy of the right or left lower extremity are not warranted. See Fenderson, 12 Vet. App. 119. The Board has considered whether the Veteran's claims should be referred for an extraschedular rating. See 38 C.F.R. § 3.321(b) (2017); Thun v. Peake, 22 Vet. App. 111, 114 (2008). Because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual Veteran's circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability. Thun, 22 Vet. App. at 114. However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration. Id. The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). In this case, the Board finds that referral for extraschedular consideration is not warranted. As shown in the above discussion, the symptoms of the Veteran's right and left lower extremity radiculopathy are contemplated by the rating criteria. See Thun, 22 Vet. App. at 115. A comparison of the Veteran's symptoms and functional impairment with the schedular criteria does not show that the Veteran's right and left lower extremity radiculopathy present "such an exceptional or unusual disability picture . . . as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b). Consequently, the Board finds that the schedular evaluations are adequate to rate these disabilities. In the absence of this threshold finding, there is no need to consider whether there are "related factors" such as marked interference with employment or frequent periods of hospitalization. See Thun, 22 Vet. App. at 118-19 (holding that the Board's finding that the rating criteria were adequate to evaluate the claimant's disability was a sufficient basis for denying extraschedular consideration without regard to whether there was marked interference with employment). Therefore, referral for extraschedular consideration is not warranted. Under Johnson v. McDonald, 762 F.3d 1362 (2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional symptoms of record that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. Johnson, 762 F.3d 1362. Last, in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for entitlement to a total disability rating based on individual unemployability is part of an increased rating claim when such claim is raised by the record. However, the issue of entitlement to a TDIU has not been raised by the record. The Veteran reported regularly throughout the appeal period that he was working as a mail carrier. He has not alleged, and the evidence does not suggest, that he is unemployable due to his service-connected right and left lower extremity radiculopathy disabilities. As the preponderance of the evidence is against ratings in excess of 20 percent for the Veteran's right and left lower extremity radiculopathy, the benefit of the doubt rule is not for application in resolution of the matter on appeal. See generally Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Entitlement to an initial rating of 20 percent, but no greater, is warranted for right lower extremity radiculopathy, subject to the rules and regulations governing the payment of monetary benefits. Entitlement to an initial rating greater than 20 percent for left lower extremity radiculopathy is denied. ____________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs