Citation Nr: 1756983 Decision Date: 12/08/17 Archive Date: 12/15/17 DOCKET NO. 11-20 048 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to an increased rating for degenerative arthritis, L5-S1, rated as 40 percent disabling prior to May 20, 2010, and from September 1, 2010. 2. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine. 3. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity. 4. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right upper extremity. 5. Entitlement to a higher initial rating for radiculopathy of the left lower extremity, rated as 10 percent disabling prior to January 15, 2016, and as 20 percent disabling thereafter. 6. Entitlement to a higher initial rating for radiculopathy of the right lower extremity, rated as 10 percent disabling prior to January 15, 2016, and as 20 percent disabling thereafter. 7. Entitlement to an initial rating in excess of 20 percent for urinary frequency. 8. Entitlement to a compensable initial rating for a posterior trunk scar. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. Marenna, Counsel INTRODUCTION The Veteran served on active duty from August 1974 to November 1994. These matters are before the Board of Veterans' Appeals (Board) on appeal from February 2010 and December 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in February 2016 and remanded for additional development. In a December 2016 rating decision, the RO granted service connection for radiculopathy of the right and left lower extremities, and right and left upper extremities. Service connection for urinary frequency and a posterior trunk scar was also granted. As service connection for urinary frequency was granted, the claim for service connection for a bladder condition was granted in full and is no longer before the Board. Although the Veteran has not specifically disagreed with these ratings, the Board finds that radiculopathy of the upper and lower extremities, urinary frequency, and the scar are part and parcel of the increased rating claim for the Veteran's lumbar spine and cervical spine disabilities. See 38 C.F.R. § 4.71a, General Rating Formula, Note 1. The issues on appeal have been recharacterized as listed on the title page of this decision, to take account of the fact that the orthopedic and neurologic manifestations of the service-connected lumbar spine and cervical disabilities warrant separate ratings pursuant to different rating criteria. Regarding the lumbar spine disability, the February 2010 rating decision continued a 20 percent rating. The December 2016 rating decision awarded an increased 40 percent rating, effective June 19, 2009. An earlier April 2011 rating decision had awarded a temporary total rating due to convalescence for the lumbar spine condition effective from May 20, 2010 to August 31, 2010. As the Veteran has a total rating for his lumbar spine disability during that time period, the issue has been characterized accordingly to reflect that such period is not a part of the appeal for a higher rating. Because a claimant is presumed to be seeking the maximum available rating for a service-connected disability, the appeals for higher ratings for the lumbar spine and cervical spine disabilities (with associated radiculopathy, urinary frequency, and scar) as reflected on the title page, remain in appellate status. AB v. Brown, 6 Vet. App. 35, 38 (1993). FINDINGS OF FACT 1. Prior to May 20, 2010, the Veteran's degenerative arthritis, L5-S1, was manifested by pain, and limitation of motion with flexion limited to 30 degrees, ankylosis of the thoracolumbar spine and incapacitating episodes were not shown. 2. From September 1, 2010, the Veteran's degenerative arthritis, L5-S1, was manifested by pain, and limitation of motion of the spine; ankylosis of the thoracolumbar spine and incapacitating episodes were not shown. 3. The Veteran's degenerative disc disease of the cervical spine is manifested by pain, and a combined range of motion of the cervical spine of greater than 170 degrees, forward flexion greater than 30 degrees, without muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour; incapacitating episodes were not shown. 4. The Veteran's radiculopathy of the left upper extremity is manifested by no more than mild incomplete paralysis. 5. The Veteran's radiculopathy of the right upper extremity is manifested by no more than mild incomplete paralysis. 6. Prior to January 15, 2016, the Veteran's radiculopathy of the left lower extremity was manifested by no more than mild incomplete paralysis. 7. From January 15, 2016, the Veteran's radiculopathy of the left lower extremity was manifested by no more than moderate incomplete paralysis. 8. Prior to January 15, 2016, the Veteran's radiculopathy of the right lower extremity was manifested by no more than mild incomplete paralysis. 9. From January 15, 2016, the Veteran's radiculopathy of the right lower extremity was manifested by no more than moderate incomplete paralysis. 10. From June 19, 2009 to prior to December 7, 2016, the Veteran's urinary frequency was manifested by awakening to void five times per night. 11. From December 7, 2016, the Veteran's urinary frequency has been manifested by daytime voiding interval of no more than between one and two hours, or awakening to void no more than three to four times per night; and no symptoms of voiding dysfunction requiring the wearing of absorbent materials. 12. The Veteran's posterior trunk scar is superficial and linear, does not cover an area of 144 square inches (929 square centimeters) or greater, does not adversely affect any function, and is not unstable or painful. CONCLUSIONS OF LAW 1. Prior to May 20, 2010, the criteria for a rating in excess of 40 percent for the Veteran's service-connected degenerative arthritis, L5-S1, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5242 (2017). 2. From September 1, 2010, the criteria for a rating in excess of 40 percent for the Veteran's service-connected degenerative arthritis, L5-S1, are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243 (2017). 3. The criteria for a rating in excess of 10 percent for the Veteran's service-connected degenerative disc disease of the cervical spine are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5243 (2017). 4. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left upper extremity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2017). 5. The criteria for an initial rating in excess of 20 percent for radiculopathy of the left upper extremity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8512 (2017). 6. Prior to January 15, 2016, the criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 7. From January 15, 2016, the criteria for an initial rating in excess of 20 percent for radiculopathy of the left lower extremity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 8. Prior to January 15, 2016, the criteria for an initial rating in excess of 10 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 9. From January 15, 2016, the criteria for an initial rating in excess of 20 percent for radiculopathy of the right lower extremity are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). 10. From June 19, 2009 to prior to December 7, 2016, the criteria for an initial 40 percent, but no higher, rating for urinary frequency are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.116, Diagnostic Code 7542 (2017). 11. From December 7, 2016, the criteria for an initial rating in excess of 20 percent for urinary frequency are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.116, Diagnostic Code 7542 (2017). 12. The criteria for a compensable initial rating for the posterior trunk scar are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.118, Diagnostic Code 7805 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating- General Legal Criteria 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. The Rating Schedule is primarily a guide in the evaluation of disability 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. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. See 38 C.F.R. § 4.10. Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance. See 38 C.F.R. § 4.40. Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. See 38 C.F.R. § 4.45. Degenerative Arthritis L5-S1 The Veteran's service-connected degenerative arthritis, L5-S1, is rated as 40 percent disabling prior to May 20, 2010. As noted in the Introduction, a temporary rating of 100 percent was assigned for surgery requiring convalescence from May 20, 2010, to August 31, 2010. From September 1, 2010, a 40 percent rating was assigned. The Veteran's degenerative arthritis L5-S1 is rated under Diagnostic Code 5242. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine. Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be evaluated separately, under an appropriate diagnostic code. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS), the rating criteria provide that a 40 percent rating is warranted if the total duration is at least four weeks but less than six weeks during the past 12 months; and a 60 percent rating is warranted if the total duration is at least six weeks during the past 12 months. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, DC 5243, Note (1). Prior to May 20, 2010 The Veteran filed a claim for an increased rating for his service-connected low back disability on June 19, 2009. For the reasons that follow, the Board finds that a rating in excess of 40 percent is not warranted prior to May 20, 2010. The competent and probative evidence of record does not show that there was unfavorable ankylosis of the entire thoracolumbar spine, prior to May 20, 2010. Lumbar range of motion was normal without evidence of pain. After repetitive use, there was evidence of pain, fatigue, and lack of endurance without evidence of weakness or incoordination. An August 2009 VA examination report indicates the Veteran's thoracolumbar spine had flexion to 90 degrees with no additional limitation of degrees of motion following repetitive use. The lumbar spine was not in any fixed position or ankylosis. A March 2010 Atlantic Orthopedics private treatment record indicated the back had a range of motion of 30 degrees and extension of 10 degrees. The evidence reflects that the Veteran consistently reported having pain in his low back. Upon examination in August 2009, there was no evidence of radiation of pain, spasms, or tenderness. There was muscle guarding or weakness. Muscle tone was normal. There was no intervertebral disc syndrome with nerve root involvement noted on examination. The examiner noted the Veteran reported difficulty with prolonged sitting, standing, walking, lying down, or driving as a result of his lumbar and cervical spine disabilities. A June 2009 X-ray report of the lumbar spine indicates the Veteran had complained of low back pain for five days with right and left sciatica. The X-ray showed transitional level with L5-S1 grade 1 anterolisthesis. Lower lumbar facet arthrosis was also present. In a July 2009 statement, the Veteran stated towards the end of May 2009, he started having severe pain in his lumbar area to the point where he had trouble getting out of bed. He stated that pain was very painful with every step. He reported having numbness in his right leg and tingling in his right foot. In evaluating the Veteran's increased rating claim, the Board must also address the provisions of 38 C.F.R. §§ 4.40 and 4.45. The Board recognizes the Veteran's complaints of pain and functional loss as a result of his low back disability, notably his difficulty with prolonged sitting and walking. However, the competent and probative evidence of record does not indicate significant functional loss due to the Veteran's low back. The evidence from prior to May 20, 2010, does not indicate the Veteran's low back had symptoms equivalent to unfavorable ankylosis of the entire thoracolumbar spine due to pain or functional loss. As noted above, the August 2009 VA examination report indicates the Veteran did not have intervertebral disc syndrome in the lumbar spine. Additionally, there is no evidence of required bed rest, prior to May 20, 2010, due to the lumbar spine. A June 2009 Work Status Statement reflects that the Veteran was able to work with restrictions, including no prolonged sitting and no heavy lifting. As there is no evidence of a diagnosis of IVDS or required bed rest, a higher rating is not warranted under the rating criteria for intervertebral disc syndrome, prior to May 20, 2010. In sum, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 40 percent for the lumbar spine disability is warranted, prior to May 20, 2010. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). From September 1, 2010 The Board finds that a rating in excess of 40 percent is also not warranted for the service-connected lumbar spine disability from September 1, 2010. As noted above, the Veteran was awarded a temporary 100 percent rating for his lumbar spine disability from May 20, 2010, to August 31, 2010, under 38 C.F.R. § 4.30, for treatment requiring convalescence following back surgery. The evidence does not show that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine from September 1, 2010. A January 2016 VA examination report reflects that the Veteran's spine had forward flexion of 0 to 20 degrees. The examination report noted that an inadequate range of motion limited the stability and integrity of the spine and adjacent joint. There was objective evidence of pain with weight bearing and marked pain on palpation of paralumbar muscles. The Veteran was able to perform repetitive use testing with at least three repetitions that caused reduced forward flexion of 0 to 5 degrees due to pain, fatigue, weakness, and lack of endurance. The Veteran reported regular use of a brace and cane. A December 2016 VA examination report reflects that the spine had forward flexion of 0 to 55 degrees. No pain was noted on examination. There was no evidence of pain with weight bearing. The Veteran was able to perform repetitive use testing with at least three repetitions with forward flexion reduced to 0 to 50 degrees. The examiner noted that it was not evident why the Veteran did not forward flex as far on the third repetition as he did on the first repetition and indicated that there were no objective findings of pain noted. The VA examiner noted that the Veteran's distracted forward flexion prior to measured testing of range of motion was greater than his measured forward flexion, therefore, his forward flexion range of motion could be considered invalid. The examiner noted malingering could not be ruled out. There was no ankylosis of the spine. In regard to functional impact, the January 2016 VA examination report indicates the spine disability impacted the Veteran's ability to work. The Veteran was unable to squat, kneel, stand for more than 10 to 15 minutes without pain, walk for greater than 20 to 30 minutes without pain, lift/carry 25 pounds without pain, or climb a ladder or one flight of stairs without pain. Social and family activities were severely limited secondary to pain and diminished function. The January 2016 VA examination noted the Veteran's posture was abnormal due to spasm and tenderness. The December 2016 VA examination report reflects that the Veteran reported occasionally using a cane. The Board recognizes the Veteran's complaints of pain and functional loss as a result of his low back disability, notably his difficulty with walking and climbing stairs and reduced limitation of motion. However, the evidence does not indicate the Veteran's low back symptoms were equivalent to unfavorable ankylosis of the entire thoracolumbar spine due to pain or functional loss, from September 1, 2010. The January 2016 and December 2016 VA examination report indicated the Veteran had IVDS. The January 2016 examiner found the Veteran had intervertebral disc syndrome that was a progression of the degenerative arthritis of the spine. The January 2016 and December 2016 VA examination reports indicated the Veteran had not had any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. Therefore, the Board finds that a higher rating is not warranted under the criteria for rating IVDS. In sum, the Board finds that a rating in excess of 40 percent is not warranted for the Veteran's low back disability from September 1, 2010. Accordingly, the Board finds that the preponderance of the evidence is against the appellant's claim. Consequently, the benefit-of-the-doubt rule is not applicable, and the claim must be denied. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Cervical Spine The Veteran's service-connected degenerative disc disease of the cervical spine is rated as 10 percent disabling under Diagnostic Code 5243, for IVDS. 38 C.F.R. § 4.71a. The Veteran's IVDS can be evaluated either under the General Rating Formula for Disease and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height under the General Rating Formula for Diseases and Injuries of the Spine. A 20 percent rating is assigned for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). For VA compensation purposes, normal forward flexion of the cervical spine is 0 to 45 degrees; extension is 0 to 45 degrees; left and right lateral flexion are 0 to 45 degrees; and left and right lateral rotation are zero to 80 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note 2. The Board finds the preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted for the cervical spine. The August 2009 VA examination report indicates the cervical spine had flexion of 45 degrees, extension of 45 degrees, right lateral flexion of 45 degrees, left lateral flexion of 45 degrees, right rotation of 80 degrees, and left rotation of 80 degrees. Repetitive use was possible with no additional imitation of degrees of range of motion on flexion, extension, right lateral flexion, left lateral flexion, right rotation, or left rotation. The VA examiner noted that upon examination of the cervical spine, there was no evidence of radiation of pain, spasms or tenderness. There was no muscle guarding or weakness noted. Muscle tone was normal. The cervical spine was not in any fixed position or ankylosis. The VA examiner stated cervical range of motion was normal without evidence of pain. At the VA examination, the Veteran denied any hospitalization, surgery, or incapacitation. In an April 2010 statement the Veteran reported that he had difficulty moving his neck due to stiffness and pain. In his July 2011 VA Form 9, Substantive Appeal, the Veteran further reported that he had great difficulty turning his head from left to right or moving it up and down. He noted that he was extremely careful regarding how he moved his neck, because a quick move could put him in pain for several days. An August 2011 private physical therapy record indicates the Veteran had severe difficulty moving his neck, and was able to move it 45 percent of normal. The record does not specify any exact degrees of range of motion of the neck, other than indicating extension, flexion, left rotation, left side bending, right rotation and right side bending were all limited. Another August 2011 private physical therapy record indicated the Veteran had full rotation of the neck after manual therapy. Another August 2011 private physical therapy record indicated the neck had active range of motion of left and right rotation to 60 degrees. In a March 2013 statement, the Veteran reported that his orthopedic doctor had ordered epidural injections for the pain in his neck. A December 2016 VA examination report reflects that the Veteran reported episodic flare ups of stiffness in the neck which occurred approximately every two months with unknown cause and would last three to four days until the neck loosened up again. He indicated the pain during these episodes was sharp and throbbing, rated as 8 on a 10 pain scale. The Veteran's cervical spine had forward flexion of 0 to 35 degrees, extension to 30 degrees, right lateral flexion of to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 40 degrees, and left lateral rotation to 40 degrees, with no pain noted during testing. The examiner noted the Veteran could not look over his shoulder well in order to perform lane changes while driving. The examiner indicated that the Veteran exhibited greater range of motion when looking at his phone and putting on his shoes during the visit than during measured testing. Right lateral rotation gained on the third repetition to 50 degrees. There was no evidence of pain on weight bearing. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. The Veteran was able to perform repetitive use testing with at least three repetitions; forward flexion was 0 to 50 degrees following repetitive use. The Veteran did not have guarding, or muscle spasm of the cervical spine. The December 2016 VA examiner found the Veteran did not have IVDS of the cervical spine. The VA examiner also found the Veteran did not have ankylosis of the cervical spine. The VA examiner noted that the Veteran's observed distracted cervical forward flexion before and after measured forward flexion was greater than the range of motion measured forward flexion, rendering the forward flexion during range of motion testing invalid. The examiner indicated that the Veteran reported that neck pain flares caused him to leave work twice in the last year and that he otherwise would take breaks at work during flares of the neck condition. The Board finds the preponderance of the evidence is against a finding that a rating in excess of 10 percent is warranted for the cervical spine. The August 2009 VA examination report indicates the cervical spine had a normal range of motion. The August 2011 private physical therapy record indicated the Veteran was able to move his neck 45 percent of normal, but did not specify what range of motion was 45 percent of normal, such as flexion. Another August 2011 private physical therapy record indicated the Veteran had full rotation of the neck. A December 2016 VA examination report showed a reduced range of motion of the cervical spine, but the evidence showed a combined range of motion of 205, greater than the 170 degree or less which would warrant a higher rating of 20 percent under the General Rating Formula. The overall evidence, including the August 2009 VA examination and December 2016 VA examination, indicates the Veteran was able to move his cervical spine more than a combined range of motion of 170 degrees. Additionally, forward flexion of the cervical spine was full to 45 degrees on August 2009 VA examination and to 35 degrees on December 2016 VA examination. Therefore, the evidence also does not show forward flexion that was greater than 15 degrees but not greater than 30 degrees. Even with consideration of functional loss as shown by objective evidence on examination and the Veteran's reports of pain and stiffness, including during flare ups, the evidence does not show the Veteran's cervical spine was limited to a range of motion equivalent to a combined range of motion of the cervical spine of not greater than 170 degrees; forward flexion greater than 15 degrees but not greater than 30 degrees, or muscle spasm or guarding severe enough result in an abnormal gait or abnormal spinal contour. The August 2009 VA examination report indicated the Veteran's range of motion of the spine was normal, including following repetitive use. The December 2016 VA examination report shows the Veteran's forward flexion of the cervical spine improved following repetitive use. There was no objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine. Although the Veteran reported pain in his cervical spine, the overall evidence does not show it was the equivalent of a combined range of motion of 170 degrees or less, forward flexion greater than 15 degrees but not greater than 30 degrees, or ankylosis of the entire cervical spine. The Board has considered whether the Veteran is entitled to a higher rating under the rating criteria for IVDS. However, the evidence does not show that the Veteran had any episode of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The December 2016 VA examiner found the Veteran did not have IVDS in the cervical spine. Therefore, a rating in excess of 10 percent for the cervical spine is not warranted under the rating criteria for IVDS. In sum, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected cervical spine is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Radiculopathy of the Left and Right Upper Extremities The Veteran's radiculopathy of the left and right upper extremities is rated under Diagnostic Code 8512. Diagnostic Code 8512 provides a 20 percent rating for mild incomplete paralysis of the major or minor extremity, a 30 percent rating for moderate incomplete paralysis of the minor extremity, a 40 percent rating for moderate incomplete paralysis of the major extremity or severe incomplete paralysis of the minor extremity, a 50 percent rating for severe incomplete paralysis of the major extremity. Where there is complete paralysis, as manifested by all intrinsic muscles of the hand and some or all of flexors of the wrist and fingers, paralyzed (substantial loss of use of hand), a 60 percent rating is assigned for the minor extremity and a 70 percent rating is assigned for the major extremity. 38 C.F.R. § 4.124a. The rating code provides that the term "incomplete paralysis," with this and other peripheral nerve injuries, 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. See Miller v. Shulkin, 28 Vet. App. 376 (2017) (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations). Radiculopathy of the Left Upper Extremity A December 2016 VA examination report indicates the Veteran is left hand dominant. Therefore, the left upper extremity is rated under the criteria for the major extremity. The Veteran's radiculopathy of the left upper extremity is rated as 20 percent disabling from July 21, 2011. The Board finds that a rating in excess of 20 percent is not warranted. On the Veteran's July 2011 VA Form 9, he reported experiencing tingling and numbness in his upper extremities. An August 2011 private physical therapy record indicated the Veteran had normal upper limb/nerve mobility. There was normal sensation in the upper quarter, with no radicular symptoms present. A January 2013 North Carolina Diagnostic Imaging record indicates the Veteran reported having numbness and tingling in both hands. The December 2016 VA examination report of the cervical spine indicated the left shoulder, left inner/outer forearm, and left hand/fingers had normal sensation to light touch. Muscle strength testing was normal and there was no muscle atrophy. Deep tendon reflex testing was normal. The VA examination report indicated the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. As the evidence shows the Veteran experienced numbness and tingling, but normal sensation was shown during testing in August 2011 and December 2016, the Board finds that the overall evidence indicates the Veteran had symptoms of no more than mild incomplete paralysis. Therefore, a rating in excess of 20 percent is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Radiculopathy of the Right Upper Extremity The Veteran's right upper extremity radiculopathy is rated as 20 percent disabling from July 21, 2011. The Board finds that a rating in excess of 20 percent is not warranted. The evidence shows the Veteran's right upper extremity radiculopathy symptoms are no more than mild. An August 2012 shoulder VA examination report indicates the Veteran's cervical disk disease pressing on the C5 and C6 nerve may cause the Veteran to experience pain in the right shoulder. The December 2016 VA examination report of the cervical spine indicated the right shoulder, right inner/outer forearm, and right hand/fingers had normal sensation to light touch. The VA examination report indicated the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. The evidence supports a finding that the Veteran's right upper extremity radiculopathy is no more than mild. As noted in the analysis for the left upper extremity, the Veteran has reported experiencing numbness and tingling in the upper extremities. The August 2012 record indicated the Veteran experienced pain in his right shoulder, and the December 2016 VA examination indicated the Veteran had normal sensation in the right upper extremity with no radicular pain. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted, as these symptoms reflect no more than mild incomplete paralysis. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Radiculopathy of the Lower Extremities The Veteran's radiculopathy of the lower extremities is rated under Diagnostic Code 8520. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. An 80 percent rating is assigned where complete paralysis is shown. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, for incomplete paralysis, a 10 percent disability rating is assigned for mild incomplete paralysis. If the condition is considered "moderate," a 20 percent disability rating is provided. If the condition is considered "moderately severe," a 40 percent disability rating is provided, and a 60 percent rating is warranted for conditions considered "severe, with marked muscular atrophy." The Board observes that the words "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Radiculopathy of the Left Lower Extremity Prior to January 15, 2016 The Veteran's radiculopathy of the left lower extremity is rated as 10 percent disabling prior to January 15, 2016. There is no evidence of record indicating the Veteran had more than mild symptoms of left lower extremity radiculopathy prior to January 15, 2016. A July 2009 VA treatment record indicated there were no obvious focal deficits noted at that time. Sensory tests were normal. On August 2009 VA examination, the examiner found the Veteran had normal motor and sensory function of both lower extremities. Deep tendon reflexes were normal bilaterally. Neurological examination of the bilateral lower extremities was normal. There were no non-organic physical signs noted. The Veteran reported pain in his lower extremities, but there is no indication he had symptoms that more nearly approximated moderate incomplete paralysis. Accordingly, the Board finds that a rating in excess of 10 percent for radiculopathy of the left lower extremity is not warranted, prior to January 15, 2016. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. From January 15, 2016 The Veteran's radiculopathy of the left lower extremity is rated as 20 percent disabling from January 15, 2016. The Board finds the evidence is against a finding that a rating in excess of 20 percent is warranted. The evidence does not show moderately severe incomplete paralysis of the sciatic nerve, which would warrant a higher rating of 40 percent. The January 2016 VA examination report indicates the Veteran had moderate constant pain, intermittent pain, paresthesias and/or dysesthesias and numbness of the left lower extremity. The VA examination report reflects that the severity of the radiculopathy on the left side was moderate. The December 2016 VA examination report reflects that there was no constant pain, intermittent pain, paresthesias and/or dysthesias or numbness of the left lower extremity. The VA examiner noted the left side was "not affected" by radiculopathy. The overall evidence does not show the Veteran had more than moderate symptoms of left lower extremity radiculopathy from January 15, 2016. Therefore, a rating of 20 percent, under Diagnostic Code 8520, for moderate incomplete paralysis is appropriate. The Board finds that a rating in excess of 20 percent is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Radiculopathy of the Right Lower Extremity Prior to January 15, 2016 The Veteran's radiculopathy of the right lower extremity is rated as 10 percent disabling prior to January 15, 2016. The evidence does not show the Veteran had more than mild radiculopathy of the right lower extremity, prior to January 15, 2016. The August 2009 VA examination report indicates the Veteran had normal motor and sensory function in the lower extremities. An April 2010 private treatment record indicates the Veteran reported having low back pain with right leg numbness and tingling to the foot. Mild incomplete radiculopathy warrants a 10 percent rating under Diagnostic Code 8520. As the evidence does not show the Veteran had more than mild sensory symptoms of radiculopathy of the right lower extremity prior to January 15, 2016, the Board finds that a rating in excess of 10 percent is not warranted prior to the date. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. From January 15, 2016 The Veteran's radiculopathy of the right lower extremity is rated as 20 percent disabling from January 15, 2016. The Board finds that a rating in excess of 20 percent is not warranted for radiculopathy of the right lower extremity from January 15, 2016. The January 2016 VA examination report indicates there was severe constant pain, intermittent pain, and paresthesias and/or dysesthesias of the right lower extremity. There was moderate numbness of the right lower extremity. The severity of the radiculopathy on the right side was noted as moderate. The December 2016 VA examination report indicated the Veteran did not have constant pain, paresthesias and/or dysesthesias or numbness of the right lower extremity. There was mild intermittent pain in the right lower extremity. The VA examiner indicated there was mild radiculopathy of the right side. Although the January 2016 VA examination report indicated the Veteran had severe constant pain, intermittent pain, and paresthesias and/or dysesthesias of the right lower extremity, the Veteran's incomplete paralysis is manifested by wholly sensory involvement. See Miller, 28 Vet. App. at 380 (holding that a rating higher than 20 percent may not be awarded for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations). As such, the criteria for a rating higher than 20 percent are not met. In addition, the December 2016 VA examination indicates the Veteran had only mild symptoms, and the January 2016 VA examiner found the Veteran's overall symptoms were moderate. Therefore, the Board finds a rating in excess of 20 percent for radiculopathy of the right lower extremity from January 15, 2016, is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Urinary Frequency Service connection for the Veteran's urinary frequency was established secondary to his service-connected low back disability, effective May 20, 2010. As a result, the Board will also address whether a higher rating is warranted for urinary frequency as part and parcel of the claim for an increased rating for his back disability. The Veteran's urinary frequency is rated as 20 percent disabling under Diagnostic Code 7542 for neurogenic bladder, which provides the symptoms should be rated as voiding dysfunction. See 38 C.F.R. § 4.116. For voiding dysfunction, a 20 percent rating is assigned when the wearing of absorbent materials is required and when the absorbent materials must be changed less than two times per day. Urinary incontinence or leakage requiring the wearing of absorbent materials that must be changed two to four times per day is assigned a 40 percent rating. Urinary incontinence or leakage requiring the use of an appliance of the wearing of absorbent materials that must be changed more than four times per day is assigned a 60 percent rating. 38 C.F.R. § 4.115a. Voiding dysfunction could also be evaluated under the criteria for urinary frequency. Urinary frequency with a daytime voiding interval between one and two hours, or; awakening to void three to four times per night warrants a 20 percent evaluation. Urinary frequency with a daytime voiding interval less than one hour, or; awakening to void five or more times per night warrants a 40 percent evaluation. 38 C.F.R. § 4.115a. Voiding dysfunction could also be evaluated under the criteria for obstructed voiding. Urinary retention requiring intermittent or continuous catheterization warrants a 30 percent rating. A July 2009 VA treatment record and statement from the Veteran indicated that he reported he was up nightly every 90 minutes for urination. A December 2009 VA examination report indicates the Veteran reported that he urinated 3 to 4 times a day, and got up about 4 times at night. He stated there was only an hour in between going when he felt like he had to go again. He reported having problems with some incontinence. He did not use any pads or appliances. He complained of having urgency. He denied any urinary catheterizations, dilatations, or drainage procedures. The VA examiner opined the Veteran's symptoms at that time were not related to his service-connected back disability. In an April 2010 statement, the Veteran reported getting up 4 to 5 times a night due to urinary frequency. The January 2016 VA examination report indicates the Veteran had difficulty holding urine since back surgery and had episodes of incontinence, which the examiner found was a neurologic abnormality related to the thoracolumbar spine condition. A December 2016 VA examination report indicated the Veteran reported symptoms of urinary hesitancy and intermittently slowed urine stream. The voiding dysfunction caused urine leakage that did not require the wearing of absorbent material. The voiding dysfunction did not require the use of an appliance. The voiding dysfunction caused increased urinary frequency of daytime voiding with intervals between 2 and 3 hours, and nighttime awakening to void 2 times. The voiding dysfunction caused symptoms of hesitancy and slow stream that were not marked. The December 2016 VA examiner could not determine a baseline level of severity based upon the medical evidence available. The Veteran has consistently reported having symptoms of urinary frequency. Resolving any doubt in favor of the Veteran, the Board concludes that the evidence more nearly approximates urinary frequency symptoms of awakening to void five or more times per night, the criteria for a 40 percent rating, from an earlier effective date of June 19, 2009, the date of the Veteran's claim for an increased rating for the lumbar spine disability, to prior to December 7, 2016, the date of the VA examination that shows the Veteran's symptoms of urinary frequency had improved. Evidence from July 2009 indicates the Veteran woke to void about every 90 minutes. The December 2009 VA examination report noted the Veteran got up about 4 times at night, and felt he had only an hour in between going. In an April 2010 statement, the Veteran reported waking up to void 4 or 5 times a night. As this evidence indicates the Veteran awakened about 5 times a night to void, the Board concludes that a higher 40 percent rating is warranted from June 19, 2009 to prior to December 7, 2016. There is no indication the Veteran required the use of an appliance or the wearing of absorbent materials that had to be changed more than 4 times a day during this time period. Therefore, a higher 60 percent rating is not warranted. At the December 7, 2016 VA examination, the Veteran reported awakening to void 2 times a night, and daytime voiding of between one and two hours. This evidence reflects symptoms that most nearly approximate the criteria for the assigned 20 percent rating and reflect improvement of the Veteran's symptoms from what was shown prior to that time. Further, the evidence does not show the Veteran had symptoms of obstructed voiding or a need for catheterization from December 7, 2016. Therefore, a higher 30 percent rating is not warranted for urinary retention requiring intermittent or continuous catheterization. In sum, the Board finds that an initial 40 percent, but no higher, rating is warranted from an effective date of June 19, 2009 to prior to December 7, 2016, the date of the VA examination that reflected the Veteran's urinary frequency symptoms had decreased in severity. From December 7, 2016, a rating in excess of 20 percent for urinary frequency is not warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 55. Scar The Veteran has been granted service connection for a posterior trunk scar associated with degenerative arthritis, L5-S1. As the scar is part and parcel of the rating for degenerative arthritis, L5-S1, the Board will address whether a higher rating is warranted. The Veteran's scar is rated as noncompensable under Diagnostic Code 7805. 38 C.F.R. § 4.118. Under 7805, scars, other (including linear scars) and other effects of scars are evaluated under diagnostic codes 7800, 801, 7802, and 7804. Any disabling effect not considered in a rating provided under diagnostic codes 7800-04 is to be considered under an appropriate diagnostic code. Id. The January 2016 and December 2016 VA examination reports noted that the Veteran had a midline lumbar scar that was 16 cm in length and 0.2 cm in width. The scar was not painful or unstable and did not have a total area equal to or greater than 39 square cm. The Board finds that the Veteran's service-connected scar does not warrant a compensable rating under Diagnostic Code 7805 at any time during the appeal period. The December and January 2016 VA examination reports indicated the scar was not painful or unstable. Therefore, the Veteran is not entitled to a higher rating under Diagnostic Code 7804 for an unstable or painful scar. 38 C.F.R. § 4.118. As the Veteran's scar is not shown to be deep and nonlinear, Diagnostic Code 7801 is not applicable. Id. The Veteran's scar does not cover an area or areas of 144 square inches or greater. The Veteran's scar was noted to be 16 cm in length and 0.2 cm wide. Therefore, a higher rating is not warranted under Diagnostic Code 7802. Id. The evidence also shows that the scar does not cause any other disabling effects or limitations of function that may be rated under any diagnostic codes other than Diagnostic Codes 7800 through 7804. The Veteran has not asserted that he has any disabling effects due to the scar. Therefore, the Board finds that the surgical scar does not meet the criteria for a compensable rating under the rating criteria. Consequently, a compensable initial rating for the scar is denied. ORDER Entitlement to an increased rating for degenerative arthritis, L5-S1, rated as 40 percent disabling prior to May 20, 2010, and from September 1, 2010, is denied. Entitlement to a rating in excess of 10 percent for degenerative disc disease of the cervical spine is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left upper extremity is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the left lower extremity, prior to January 15, 2016, is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the left lower extremity, from January 15, 2016, is denied. Entitlement to an initial rating in excess of 10 percent for radiculopathy of the right lower extremity, prior to January 15, 2016, is denied. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity, from January 15, 2016, is denied. Entitlement to an initial 40 percent, but no higher, rating from June 19, 2009 to prior to December 7, 2016 for urinary frequency is granted, subject to the regulations governing the payment of monetary awards. Entitlement to a rating in excess of 20 percent for urinary frequency from December 7, 2016, is denied. Entitlement to a compensable initial rating for a posterior trunk scar, is denied. ____________________________________________ M. SORISIO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs