Citation Nr: 1756078 Decision Date: 12/05/17 Archive Date: 12/15/17 DOCKET NO. 11-12 626 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 40 percent for degenerative disc disease (DDD) of the lumbosacral spine and herniated nucleus pulposis. 2. Entitlement to an initial disability rating in excess of 10 percent for lumbar radiculopathy of the right lower extremity, from September 15, 2009 to September 25, 2014, and in excess of 20 percent since September 26, 2014. 3. Entitlement to an initial disability rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity, from September 15, 2009 to September 25, 2014, and in excess of 20 percent since September 26, 2014. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty in the U.S. Air Force from May 1974 to August 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in New York, New York. This issue was previously remanded by the Board for further development in August 2014 and January 2017 for additional development. Such development has been completed, and this matter is returned to the Board for further consideration. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. Without good cause, the Veteran failed to appear for a VA examination that had been scheduled for the purpose of assessing the current symptomatology of his service-connected DDD of the lumbosacral spine and herniated nucleus pulposis and lumbar radiculopathy of the left and right lower extremity 2. The evidence does not show that the Veteran's service-connected DDD of the lumbosacral spine and herniated nucleus pulposis manifests any unfavorable ankylosis or incapacitating episodes due to intervertebral disc syndrome having a total duration of at least six weeks during the past 12 months. 3. Prior to September 26, 2014, the Veteran's right lower extremity radiculopathy was manifested by some numbness and pain generally limited to the right foot/ankle, and mildly diminished muscle strength and reflex responsiveness but with generally normal motor functioning; incomplete paralysis to a "moderate" level has not been shown for this period. 4. From September 26, 2014, forward, the Veteran's right lower extremity radiculopathy has been manifested by diminished sensory functioning in the toes, moderate intermittent pain, paresthesias and/or dysesthesias, and numbness, and incomplete paralysis to a "moderate" level; incomplete paralysis to a "moderately severe" level has not been shown. 5. Prior to September 26, 2014, the Veteran's left lower extremity radiculopathy was manifested by some numbness and pain generally limited to the right foot/ankle, and mildly diminished muscle strength and reflex responsiveness but with generally normal motor functioning; incomplete paralysis to a "moderate" level has not been shown for this period. 6. From September 26, 2014, forward, the Veteran's left lower extremity radiculopathy has been manifested by diminished sensory functioning in the toes, moderate intermittent pain, paresthesias and/or dysesthesias, and numbness, and incomplete paralysis to a "moderate" level; incomplete paralysis to a "moderately severe" level has not been shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for DDD of the lumbosacral spine and herniated nucleus pulposis are not met. 38 U.S.C. § 1155, 5103(a), 5103A, 5107(b) (2012); 38 C.F.R. § 3.102, 3.159, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242 (2017). 2. The criteria for a rating in excess of 10 percent prior to September 26, 2014, for lumbar radiculopathy of the right lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8521 (2017). 4. The criteria for a rating in excess of 20 percent from September 26, 2014, forward for lumbar radiculopathy of the right lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for a rating in excess of 10 percent prior to September 26, 2014, for lumbar radiculopathy of the left lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8521 (2017). 6. The criteria for a rating in excess of 20 percent from September 26, 2014, forward for lumbar radiculopathy of the left lower extremity have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). Proper notice from VA must inform the veteran of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the Veteran is expected to provide in accordance with 38 C.F.R. § 3.159 (b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements apply to all five elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. Regarding the Veteran's claim for an increased initial disability evaluation, this claim arises from his disagreement with the initial evaluation following the grant of service connection. The United States Court of Appeals for Veterans Claims (Court) has held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and other pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A ; 38 C.F.R. § 3.159 . The Board finds that all necessary development has been accomplished, and therefore, appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, VA treatment records, and private treatment records. Additionally, the Veteran was provided with several VA examinations. With respect to VA examinations, the Board notes that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The most recent VA examination was provided in September 2014. The examination report is based on review of the claims file, taking a relevant history from the Veteran, and clinical evaluation of the Veteran. The examination report is adequate; the information provided by the VA examiner is supported by a thorough history, fully reasoned explanations and clinical findings. Following the January 2017 Board remand, he had a meaningful opportunity to participate effectively in the processing of his claims as he was afforded additional VA examination. The record indicates however, that he failed to appear for the examination. Neither he nor his representative offered good cause for the Veteran's failure to report for the scheduled VA examination. Hence, no prejudicial error has been committed in discharging VA's duties to notify and assist. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009); Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004); Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011); Vogan v. Shinseki, 24 Vet. App. 159, 163 (2010). As such, the Board finds there has been substantial compliance with its August 2014 and January 2017 remand directives. The Board points out that the Court has noted that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Based on the foregoing, the Board finds that the agency of original jurisdiction substantially complied with the mandates of its remands. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). Therefore, in light of the foregoing, the Board will proceed to review and decide the claims based on the evidence that is of record consistent with 38 C.F.R. § 3.655 (2017). Finally, the Board notes that neither the Veteran nor his representative has identified any additional existing evidence that is necessary for a fair adjudication of the claim that has not yet been obtained. The Board has also not identified any such evidence. The Board thus concludes that there are no additional records outstanding with respect to these claims. Consequently, the duty to notify and assist has been satisfied as to the claim now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). 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 Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims decided herein such that the essential fairness of the adjudication is not affected. II. The Merits of the Claims Disability ratings are determined by the application of VA's Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155 (2012); 38 C.F.R. § Part 4 (2017). When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board will also 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. Hart v. Mansfield, 21 Vet. App. 505 (2007). Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practicably can be determined, on average impairment in earning capacity. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § Part 4 (2017). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that time frame. 38 U.S.C. § 5110 (b)(2); Hart, 21 Vet. App. 505, 509 (2007). For the initial rating claims, the relevant periods begin on the effective dates of the grants of service connection. The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claims and what the evidence in the claims file shows, or fails to show, with respect to the claims. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). DDD of the lumbosacral spine and herniated nucleus pulposis Disability of the musculoskeletal system such as that involved in this case is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40. Consideration of a higher rating for flare ups or for functional loss due to weakness, excess fatigability, incoordination, or pain on movement is warranted for Diagnostic Codes predicated on limitation of motion. Id.; 38 C.F.R. §§ 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Veteran's service-connected back disability is currently evaluated under 38 C.F.R. § 4.71a, Diagnostic Codes 5242. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent evaluation is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). An incapacitating episode is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1) (2017). For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. When evaluating joint disabilities rated on the basis of limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59 (2017); DeLuca v. Brown, 8 Vet. App. 202 (1995). Recently, the Court clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Ankylosis is immobility and consolidation of a joint. See Dorland's Illustrated Medical Dictionary 94 (31st ed. 2007). Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis for VA purposes. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242, General Rating Formula, Note (5). For VA purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Id. Applying the facts in this case to the criteria set forth above, the Board finds that a rating in excess of 40 percent for the Veteran's service-connected DDD of the lumbar spine have not been met. The VA examination reports within the record, together with the remainder of the medical evidence of record, do not show ankylosis of the Veteran's thoracolumbar spine, much less unfavorable ankylosis, or a disability akin to an individual with ankylosis of the lumbar spine to warrant either a 50 or 100 percent rating under Diagnostic Code 5242. Also, the Board has considered DeLuca v. Brown, 8 Vet. App. 202 (1995), in reaching its conclusion in this case. It is not disputed that the Veteran has limitation of motion of the thoracolumbar segment of the spine and that there is pain on motion. However, neither the Veteran nor any examiner has established that pain or flare-ups result in functional loss that would equate to ankylosis of the lumbar spine. While range of motion is restricted, the Veteran retains a measurable range of motion of the lumbar spine of at least 30 degrees forward flexion. As such, the provisions of 38 C.F.R. §§ 4.40 and 4.45 have been considered, but they do not provide a basis for the assignment of a higher rating under these circumstances. Although the Board is required to consider the effect of the Veteran's pain when making a rating determination, and has done so in this case, the Rating Schedule does not provide for a separate rating for pain. Rather, it provides guidance for determining ratings under diagnostic codes assessing musculoskeletal function. Spurgeon v. Brown, 10 Vet. App. 194 (1997). In this case, the 40 percent disability rating adequately compensates him for any painful motion and functional loss. The Board has also considered whether an increased evaluation is in order in this case when separately evaluating and combining the orthopedic and neurologic manifestations of the Veteran's lumbosacral spine disability. Evidence of bowel and bladder dysfunction associated with the lumbosacral spine disability has not been shown. In addition, although the record does reflect evidence of DDD, a higher disability rating based on intervertebral disc syndrome under Diagnostic Code 5243 is not warranted. In this regard, the Board acknowledges the Veteran's accounts of chronic back pain there is no evidence the Veteran experienced incapacitating episodes. As such evidence does not illustrate doctor-prescribed bed rest due to incapacitating episodes having a total duration of at least 6 weeks during the past 12 months, the next higher rating of 60 percent for the service-connected low back disability is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Consideration has been given to "staged ratings" (i.e., different percentage ratings for different periods of time). See Hart, 21 Vet. App. at 505. However, there are no identifiable periods of time during which the lumbar spine disability was more disabling than reflected in the 40 percent rating assigned. Thus, "staged ratings" are not supported by the record in this case. Importantly, the Board notes that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination, and a claimant, without good cause, fails to report for such examination or re-examination, action shall be taken in accordance with paragraphs (b) or (c) of 38 C.F.R. § 3.655 (2017), as appropriate. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant and death of an immediate family member. 38 C.F.R. § 3.655 (a). When the examination was scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. Otherwise, when the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit that was previously disallowed, or a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (b). As discussed above, there is no medical evidence associated with the Veteran's claims file to support an increased rating for his DDD of the lumbosacral spine and herniated nucleus pulposis. Thus, a VA examination could have provided information and evidence needed to establish the Veteran's entitlement to a benefit, which the Board is otherwise unable to establish. Here, however, the Veteran failed to report for a scheduled June 2017 VA examination, no explanation was provided. In light of the above, the Board finds that the Veteran has failed to report to a scheduled VA examination without showing good cause for his failure to report. The Court has emphasized that "[t]he duty to assist in the development and adjudication of a claim is not a one-way street." Wamhoff v. Brown, 8 Vet. App. 517, 522 (1996); see also Kowalski v. Nicholson, 19 Vet. App. 171, 178 (2005). In this instance, the duty to assist has been frustrated by the Veteran's failure to report for a VA examination needed to produce evidence essential to his claim. If the Veteran believes he is entitled to a higher rating for his DDD of the lumbosacral spine and herniated nucleus pulposis, he must at least fulfill his minimal obligation of reporting for a VA medical examination when it is scheduled. For all the foregoing reasons, the Board finds that a disability rating higher than 40 percent for DDD of the lumbosacral spine and herniated nucleus pulposis is not warranted. 38 C.F.R. §§ 3.655, 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5242 (2017). This is so for the entirety of the claim period. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the Veteran's claim for a higher rating, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Radiculopathy of the left and right legs Diseases of the peripheral nerves are rated based on the degree of paralysis, neuritis, or neuralgia. The term "incomplete paralysis" indicates a degree of impaired function substantially less than the type of picture for "complete paralysis" given for each nerve, whether due to varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves, Note. When the involvement is wholly sensory, the rating for incomplete paralysis should be for the mild, or, at most, the moderate degree. Id. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. 38 C.F.R. § 4.123. The maximum rating which may be assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Tic douloureux may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. The terms "slight," "moderate," and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to arrive at a just and equitable decision. Additionally, the use of such terminology by VA examiners and others, although an element to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. As an initial matter, the Board notes that during the period on appeal the Veteran's left and right lower extremity radiculopathy has been rated under Diagnostic Code 8521, which governs external popliteal nerve (common peroneal), prior to September 26, 2014, and under Diagnostic Code 8520, governing the sciatic nerve, thereafter. The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). Furthermore, the selection of diagnostic codes or applicable rating criteria is not protected and may be appropriately revised if the action does not result in the reduction of compensation payments. 38 C.F.R. §§ 3.951, 3.957; see Butts, 5 Vet. App. 532; VAOPGCPREC71-91 (Nov. 7, 1991). While these two nerves are rated based largely on the same criteria, the percentages assigned to those criteria differ. Specifically, Diagnostic Code 8520, governing impairment of the sciatic nerve, allows for a higher ratings than the Diagnostic Code governing the anterior crural nerve. As the medical evidence clearly shows involvement of the sciatic nerve, and as that Diagnostic Code would allow higher ratings, the Board finds that it is more appropriate to rate the Veteran under Diagnostic Code 8520, for impairment of the sciatic nerve. As such, the Board will first evaluate the left and right lower extremity radiculopathy based on the criteria under Diagnostic Code 8520, and then will consider if increased or separate compensable ratings are warranted under any other Diagnostic Codes. The Veteran is currently assigned a 10 percent rating prior to September 26, 2014, and a 20 percent rating thereafter for his left and right lower extremity radiculopathy. Under Diagnostic Code 8520, a 10 percent rating is warranted for mild incomplete paralysis. Id. A 20 percent rating is warranted for moderate incomplete paralysis, a 40 percent rating is warranted for moderately severe incomplete paralysis, and a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Id. An 80 percent rating is warranted for complete paralysis where the foot dangles and drops, no active movement of muscles below the knee is possible, and flexion of the knee is weakened or lost. Id. The Veteran contends he is entitled to an increased rating in excess of 10 percent prior to September 26, 2014, and in excess of 20 percent thereafter for left and right lower extremity radiculopathy. As the symptoms have been substantially similar in both extremities the Board will address them together, beginning with the period prior to September 26, 2014, first and then discussing the period thereafter. Prior to September 26, 2014, the Veteran reported radiating pain from his low back into his lower extremities. These statements are competent as they concern lay-observable symptoms, and as there is no evidence that the statements are not credible they are entitled to probative weight. Jandreau v. Nicholson, 492 F.3d 1372 (Fed.Cir.2007). The Veteran was provided with a neurologic evaluation as part of his spine examination in April 2009 where the examiner reported the sensory system was intact but he had decreased bilateral lower extremities muscle power to full range of motion with decreased strength to normal strength, secondary to guarding. The Veteran had symmetrical reflexes. The Veteran underwent a VA neurological examination in September 2009 where it was noted the Veteran had multiple herniated nuclei pulposi with bilateral lower extremity radiation, impairing movement and sleep. A physical examination revealed giveway 4/5 proxmial weakness and 5/5 distally. The straight leg raising test was negative. He had an antalgic gait and used a cane. The touch and pin prick test was normal. The deep tendon reflex test showed knee and ankle jerk trace, bilaterally. According to a VA peripheral nerves examination in April 2010 where a physical examination demonstrated the straight leg raising test was positive at 80 degrees on the left and negative on the right. There was no atrophy but he wore a lumbo-sacral brace and walked with a cane with an antalgic gait. There was no evidence of spasms. The touch and pin prick test was normal . He had positive left L4-5, L5-S1 facetal pain on palpation. There were trace knee jerks and ankle jerks in the deep tendon reflexes. The power was 4/5 in the proximal lower extremity and 5/5 distally. Based on the lay and medical evidence of record, the Board finds that the Veteran's lumbar radiculopathy of the bilateral lower extremities is manifested by mild incomplete paralysis, warranting a disability rating of not more than 10 percent. Although the medical evidence during this period noted some weakness, medical records do not state any severe restrictions in the Veteran's movement, and the Veteran is still capable of active motion. There was no medical or lay evidence of muscle atrophy or loss of reflexes. In addition, the treatment records reflect on-going complaints of low back pain radiating into the bilateral lower extremities, but are silent for any evaluations of the type and severity of the Veteran's symptoms. Therefore, the Board finds that an increased rating in excess of 10 percent prior to September 26, 2014, is not warranted for the left or right lower extremity radiculopathy, as the Veteran's overall level of symptomatology does not more nearly approximate the level of severity contemplated by a 20 percent rating. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case during this period. There is no evidence of involvement of other nerves. 38 C.F.R. § 4.124a, Diagnostic Codes 8521-8530. Increased ratings based on neuralgia and neuritis, which are based on the rating schedule for disabilities of the peripheral nerves, are not also warranted in this case. 38 C.F.R. §§ 4.123, 4.124. Turning to the period from September 26, 2014, forward, the Veteran was afforded a VA examination of the spine on that date where he was provided with a neurologic evaluation. The Veteran was provided with a neurologic evaluation as part of his January 2016 spine examination. The examiner noted reports of weakness in the lower extremities which caused giving way and interfered with walking and standing. On examination the Veteran had 5/5 muscle strength on all muscles, bilaterally. No atrophy was present. Deep tendon reflexes were normal bilaterally, as well as sensation to light touch except for the foot/toes (L5) which was decreased. The examiner determined the Veteran did have radicular pain or any other signs or symptoms due to radiculopathy. The Veteran had bilateral moderate intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness. Overall, the examiner determined the Veteran's severity of his bilateral radiculopathy was moderate. There is no evidence the examiner was not competent and credible, and as the report is based on examination of the Veteran and a review of the medical evidence the Board finds it is entitled to significant probative weight. See Nieves-Rodriguez v. Peak, 22 Vet. App. 295, 302-05 (2008). VA and private treatment records during this period are silent for further complaints or evaluations of the bilateral lower extremity radiculopathy. Based on this evidence, the Board finds that an increased rating of 20 percent from September 26, 2014, forward is not warranted. The only evidence of record during this period is the September 2014 VA examination, which indicated the Veteran's symptoms resulted in moderate bilateral radiculopathy. Therefore, the Board finds that an increased rating in excess of 20 percent from September 26, 2014, is not warranted for the left or right lower extremity radiculopathy, as the Veteran's overall level of symptomatology does not more nearly approximate the level of severity contemplated by a 20 percent rating. 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. No additional higher or alternative ratings under different Diagnostic Codes can be applied in this case during this period. There is no evidence of involvement of other nerves. 38 C.F.R. § 4.124a , Diagnostic Codes 8521-8530. Increased ratings based on neuralgia and neuritis, which are based on the rating schedule for disabilities of the peripheral nerves, are not also warranted in this case. 38 C.F.R. §§ 4.123, 4.124. There is no evidence of tic douloureux. 38 C.F.R. § 4.124. All potentially applicable Diagnostic Codes have been considered. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The preponderance of the evidence is against an initial rating in excess of 10 percent prior to September 26, 2014, and in excess of 20 percent thereafter for the Veteran's bilateral lower extremity radiculopathy. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. For these reasons, the claims are denied. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial disability rating in excess of 40 percent for DDD of the lumbosacral spine and herniated nucleus pulposis is denied. Entitlement to an initial disability rating in excess of 10 percent for lumbar radiculopathy of the right lower extremity, from September 15, 2009 to September 25, 2014, and in excess of 20 percent since September 26, 2014, is denied. Entitlement to an initial disability rating in excess of 10 percent for lumbar radiculopathy of the left lower extremity, from September 15, 2009 to September 25, 2014, and in excess of 20 percent since September 26, 2014, is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs