Citation Nr: 18143769 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 02-15 826 DATE: October 22, 2018 ORDER From November 11, 2004, a 60 percent rating for a low back disability is granted. An increased rating in excess of 40 percent for a low back disability for the period prior to November 11, 2004, is denied. An initial rating in excess of 20 percent for right lumbosacral radiculopathy is denied. FINDINGS OF FACT 1. Prior to November 11, 2004, the Veteran’s service-connected back disability more nearly approximated severe limitation of motion of the lumbar spine; it did not more nearly approximate ankylosis or pronounced intervertebral disc syndrome (IVDS) with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of the diseased disc, with little intermittent relief; or that the Veteran experienced incapacitating episodes of IVDS having a total duration of at least 6 weeks during a 12-month period. 2. From November 11, 2004, the Veteran’s back disability more nearly approximates IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of the diseased disc, with little intermittent relief. 3. The Veteran’s service-connected right lumbosacral radiculopathy is manifested by no worse than moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. For the period of the appeal prior to November 11, 2004, the criteria for an increased rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Codes 5292, 5293, 5295 (2002 & 2003). 2. For the period of the appeal from November 11, 2004, onward, the criteria for a 60 percent rating for a low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002 & 2003); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.21, 4.71a, General Rating Formula for Diseases and Injuries of the Spine (2018). 3. The criteria for an initial rating in excess of 20 percent for right lumbosacral radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.118, Diagnostic Code 8520 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1974 to March 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from July 2000 and April 2005 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey. In September 2007, the Veteran testified at a Board hearing before a Veterans Law Judge who has since left the Board. The Veteran was provided an opportunity to appear before a different Veterans Law Judge or have the Board proceed to adjudicate his claims, and he selected the latter. This case has been the subject of prior remands and, in March 2016, the Board referred this case for a medical expert opinion from a Veterans Health Administration (VHA) expert. In July 2016, a VHA expert issued an opinion. In May 2018, the Board received the VHA opinion and sent the Veteran a letter informing him that he had 60 days to respond to the Board’s letter. The letter explained that if the Board did not hear from him by the end of the 60-day period, the Board would proceed with the appeal. In response, the Veteran returned the form with his signature, but did not select an option (i.e., the boxes were left blank on the form). As no additional evidence or argument was submitted in the 60-day window, the Board will proceed to adjudicate the claims. The Board has limited the discussion below to the evidence relevant to its finding of facts and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which assigns ratings based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The standard of proof to be applied in decisions on claims for veterans’ benefits is set forth in 38 U.S.C. § 5107. A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 C.F.R. § 3.102. When a claimant seeks benefits and the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must be against the claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). When evaluating musculoskeletal disabilities, VA may, in addition to applying schedular criteria, consider granting a higher rating in cases in which the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Moreover, although pain may cause a functional loss, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 38 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Mitchell, 25 Vet. App. at 43, quoting 38 C.F.R. § 4.40. 1. Increased rating in excess of 40 percent for a low back disability The Veteran submitted a claim in January 2000 seeking a rating higher than his current 40 percent rating for his service-connected low back disability. “The relevant temporal focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart, 21 Vet. App. at 509 (2007). “Old” and “New” Regulations – Changes to Diagnostic Codes During the course of this appeal, VA promulgated new regulations for the evaluation of disabilities of the spine twice, effective September 23, 2002 and September 26, 2003. See 67 Fed. Reg. 54,345-54,349 (August 22, 2002), 68 Fed. Reg. 51,454 (Aug. 27, 2003) (codified at 38 C.F.R. part 4 ). The amendments renumber the Diagnostic Codes and create a General Rating Formula for Diseases and Injuries of the Spine and a Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); VAOPGCPREC 3-2000. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003); VAOPGCPREC 7-2003. Because the amendments discussed above have a specified effective date, without provision for retroactive application, they may not be applied prior to the effective date. As of that effective date, the Board must apply whichever version of the rating criteria is more favorable to the Veteran. Prior to September 23, 2002, limitation of motion of the lumbar spine which was slight, moderate, and severe, warranted a rating of 10, 20, and 40 percent, respectively. Diagnostic Code 5292. 38 C.F.R. § 4.71a (2002). Prior to September 23, 2002, a 40 percent evaluation for a lumbosacral strain was warranted when the disability was severe, with listing of the whole spine to the opposite side, positive Goldthwaite’s sign, marked limitation of forward bending in a standing position, loss of lateral motion with osteoarthritic changes, or narrowing or irregularity of joint space, or some of the above with abnormal mobility on forced motion. 38 C.F.R. § 4.71a, Diagnostic Code 5295 (2002). The words “slight,” “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. It should also be noted that use of terminology such as “severe” by VA examiners and others, although an element of evidence 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. Prior to September 23, 2002, under Diagnostic Code 5293, severe IVDS with recurring attacks and intermittent relief warranted a 40 percent rating. A 60 percent evaluation was warranted when there was pronounced IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to the site of the diseased disc, with little intermittent relief. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2002). The regulations regarding IVDS were revised effective September 23, 2002. Effective that date, IVDS (still rated under Diagnostic Code 5293) was to be evaluated by one of two alternative methods: on the basis of total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method resulted in the higher rating. Under these revised standards, IVDS warrants a 40 percent evaluation when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5293 (2003). An incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician. 38 C.F.R. § 4.71a, Diagnostic Code 5293, Note (1) (2003). Effective September 26, 2003, the Diagnostic Code for IVDS was renumbered as 5243; as a result of the revision effective September 26, 2003, the criteria for rating all spine disabilities, to include IVDS, are now set forth in a General Rating Formula for Diseases and Injuries of the Spine. The revised criteria provide that IVDS is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine (to include consideration of separate rating for orthopedic and neurological manifestations) or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The General Rating Formula for Diseases and Injuries of the Spine provides for assignment of a 40 percent rating for disability of the thoracolumbar spine either where forward flexion of the thoracolumbar spine is 30 degrees or less, or where there is favorable ankylosis of the thoracolumbar spine. A 50 percent rating is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The criteria under the General Rating Formula are to be applied with or without symptoms of pain (whether or not it radiates), aching, or stiffness in the area of the spine involved. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. 38 C.F.R. § 4.71a, General Rating Formula, Note 2, and Plate V. The rating schedule applied under the pre-September 2002 and September 2003 criteria does not define a normal range of motion for the lumbar spine; however, the supplementary information associated with the amended regulations state that the ranges of motion were based on medical guidelines in existence since 1984. See 67 Fed. Reg. 56,509 (Sept. 4, 2002). Therefore, the Board will apply the most recent September 2003 guidelines for ranges of motion of the lumbar spine to the old and new rating criteria. Period of Appeal Prior to November 11, 2004 Considering the pertinent evidence of record in light of the law, the Board will ultimately find that a 60 percent rating is warranted, effective November 11, 2004, as will be explained in depth below. However, a rating in excess of 40 percent is not warranted for the low back disability prior to this date, even when giving due consideration to pre-September 23, 2002 (“old”) and the post-September 23, 2002 (“new”) regulations for the spine. Prior to September 2002, the Veteran’s back was rated under Diagnostic Code 5292. His disability picture shows that he complained of low back pain with radiating pain to his right leg during this time, and motion in his back was limited, but he still retained movement in his back; it was not ankylosed. A March 2000 VA spine examination report shows complaints of back pain and limitations of motion of the spine. Flexion was from 0 to 45 degrees, with pain; right lateral flexion was to 20 degrees, and left lateral flexion was to 15 degrees. He used a back brace. There were no muscle spasms. There was slight narrowing of the disc space noted at L4-L5. An October 2001 VA treatment record shows that the Veteran had low back pain, was taking medications for it, and felt weakness of limbs. There were no incontinence issues. A March 2002 VA examination report revealed complaints of pain in the low back radiating down the right lower extremity to the calf; the pain was constant, and most of the time, the right leg felt numb. The report reflects that his right leg had given way about 3 times, causing the Veteran to fall down the stairs. There were no spasms of the spine. The Veteran’s flexion was limited to 20 degrees when he was standing; he was unable to extend his back. The examiner noted that the Veteran’s complaints were “functional.” A rating in excess of 40 percent, however, is not warranted during this period. Considering the rating criteria as in effect prior to September 26, 2003, there is no indication that the Veteran’s service-connected lumbosacral strain was manifested by residuals of vertebral fracture or ankylosis during this period. As shown above, the Veteran still retained movement in his spine, albeit limited. Therefore, an increased rating under the diagnostic codes evaluating these disabilities is not warranted. See 38 C.F.R. § 4.71a, Diagnostic Codes 5285, 5286, 5289 (2002). Furthermore, the evidence does not reflect pronounced IVDS, with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc, and little intermittent relief as required for a 60 percent rating under Diagnostic Code 5293. To this end, from approximately 1999 to 2004, the Veteran has described symptoms of having lower back pain with weakness in his lower extremities (see December 1999 Treatment Note), feelings of numbness down the right extremity with cramping resulting in falls (see March 2002 VA Examination Report), complaints of leg pain, “dragging legs” and radiating pain in his right calf (see August 2003 Treatment Note, July 2003 Treatment Note); he believes he has sciatic neuropathy described as pain, numbness, and muscle spasms (see October 2003 VA Form 9). To assist in determining whether he meets the 60 percent criteria under Diagnostic Code 5293, particularly during this early time period, the Board sought a medical opinion from a VHA expert. The VHA examiner was asked whether it was at least as likely as not that, at any time since January 2000, the Veteran’s low back disability had presented persistent symptoms compatible with sciatic neuropathy with little intermittent relief. He responded “no” and provided the following rationale: [T]hat the Veteran reported symptoms that were primarily of severe back pain (examination from 3/31/00 notes severe pain with extension, and notes no examination findings of ‘sciatic neuropathy’ or radiculopathy. Nerve pain is usually in the legs and worse with flexion than extension). Similarly, the examination from 3/1/02 calls into question the organic nature of his back symptoms. The examiner notes no findings consistent with radiculopathy. Similarly, the radiographs at these times showed only “slight narrowing of the intervertebral disk space at L4-L5”. Further, his 11/2/2004 note has an assessment of “chronic lower back pain... without any evidence of acute radiculopathy or myelopathy”. This further supports that he was not having significant nerve related symptoms at this time. His MRI from 5/4/04 shows a diffuse disk bulge at L5/S1 with lateral recess impingement/narrowing; however this can be seen often in a degenerative lumbar spine without radiculopathic symptoms. When asked to discuss the nature and severity of the Veteran’s right lumbosacral radiculopathy and whether it was as likely as not that this same disability existed prior to May 2004, the examiner responded that the Veteran’s back pain appeared to have been severe, but the radiculopathic pain appeared to have been a relatively small proportion of his pain. He referred to his answer from the first question for additional support. He explained that based on the 3/31/00 and 3/1/02 notes, his back pain certainly pre-dated 2004 and, per the Veteran’s report at the time, his symptoms actually started in the mid 1970’s. Thus, prior to September 2002, the Veteran’s back disability did not manifest as persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurological findings appropriate to site of diseased disc. Accordingly, a 60 percent rating under the rating criteria in effect prior to September 23, 2002, is not warranted under Diagnostic Code 5293, for this period of the appeal. While the Board has considered the Veteran’s statements throughout the record that his disability picture is worse than the assigned 40 percent, the medical opinion of the VHA physician/examiner and the findings by the medical professionals who have conducted examinations on the Veteran and recorded their findings is more probative than the Veteran’s lay assertions. In this regard, while the Veteran is certainly competent to report pain and limitations due to his back condition, he is a not a trained medical professional who is able to interpret radiological studies and opine on the underlying orthopedic and neurological pathologies of his condition. The VHA examiner performed a longitudinal review of the casefile, considered all of the evidence of record, and based on medical principles known to him, he provided a retrospective opinion. Based on his opinion, the Veteran experienced some nerve symptoms but they did not amount to sciatic neuropathy at the site of the diseased discs at the L4-5 level. For the same reasons, and relying on the same reasoning from the VHA examiner, a separate neurological rating during this period of the appeal (January 2000 to May 24, 2004 – the effective date of the grant of right lower extremity radiculopathy) is not warranted. This examiner has essentially stated that there was no underlying pathology as evidenced by the radiological studies at the time of any radiculopathy. While he acknowledged the pain that the Veteran may have felt with his right leg, it appears that the examiner finds that such pain can still be present without demonstrative medical evidence of nerve issues. From September 23, 2002, onward, the Board will apply both the “old” and the “new” rating criteria to see which results in a more favorable outcome for the Veteran. Ultimately, the Board concludes that as of November 11, 2004, the Veteran’s disability picture more nearly approximates the 60 percent Diagnostic Criteria under 5293 under the “old” rating criteria for IVDS. A July 2003 VA treatment report shows lower back pain after a twisting injury; pain radiated down the right leg to the calf. The Veteran denied any lower extremity weakness, numbness, or incontinence. He indicated that he took medication to relieve the pain. On the straight leg lift, there was non-radiating pain bilaterally at 30 degrees. There was normal muscle tone and mass; sensory was intact for the lower extremities. MRI studies from September 2003 showed at L4-5, moderate right paracentric herniated disc; mild to moderate central canal stenosis. At L5-S1, there was central herniated disc with mild to moderate central canal stenosis. The Veteran underwent X-ray studies on May 24, 2004, of his back, as he complained of back pain and right lower extremity radicular symptoms. The impression was degeneration of the L5-S1 disc, “a new finding since March 2000.” The Veteran underwent MRI studies in November 2004 (same MRI referenced by VHA expert). There was disc degeneration at L4-5 and L5-S1 with probable impingement of the origin of the right S1 nerve root sleeve secondary to a diffuse disc bulge. Upon further testing for reflexes, sensation, and motor, which were all normal aside from range of motion studies, the Veteran was assessed without any evidence of acute radiculopathy or myelopathy. He was prescribed one physical therapy session and was told to continue medications for pain. Period of Appeal From November 11, 2004 Based on the November 11, 2004, VA examination results, the Board finds that the Veteran’s disability picture had begun to more nearly approximates the 60 percent criteria under Diagnostic Code 5293. On examination, the Veteran complained of shooting pain down to his right leg, also radiating to his buttock and thigh. He also complained of numbness and weakness of the entire right leg, for which he took medication to get partial relief from pain. On palpation to the spine on L4-5, there was pain in the L5-S1 region and tenderness and spasm noted in that region. The motor strength was normal. Straight leg testing was positive to 45 degrees to the right. Knee jerks were normal but the ankle jerk had diminished sensation (+1). The sensation to pinprick was slightly diminished on the lateral aspect of the right leg and L4-L5 distribution. Heel to toe walk were difficult with both lower extremities, right more than left. Right lumbosacral radiculopathy was diagnosed. Importantly, the Veteran stated that he had tried undergoing physical therapy, chiropractic management, received pain injections, but there was always some level of pain even with medication. Upon examination, it was noted that he was standing up and sitting intermittently, appearing restless and agitated. Another VA examination a few days later demonstrated the same type of intense pain. He reported flare-ups and walking for a long time being a precipitating factor. He needed assistance with grooming, bathing, toileting, dressing, but he could feed himself. He was able to forward flex his spine to 70 degrees with pain. He had muscle spasms and slight sensory deficits as noted. The Veteran underwent a VA examination in November 2009. He complained of low back pain and pain radiating down his right leg. Any type of physical activity caused pain and discomfort. He was not working. He was undergoing physical therapy and tried epidural shots to help with the pain. No changes in bowel or bladder were noted. The Veteran complained of weakness in the right leg and sensation changes. On neurological examination, the Veteran’s deep tendon reflexes were at 2/4. Muscle tone was normal and motor strength was 5/5. Sensation was grossly intact to light touch. He had positive muscle spasms in his back. He refused to demonstrate range of motion because of pain, but it appeared that his spine still retained motion as he was able to flex and bend, albeit in a limited fashion. The examiner expressly noted that there was no evidence of a foot drop of the right lower extremity. At the June 2015 VA examination, the Veteran continued to complain about the same symptoms, but reported increased intensity. He flexed his spine to 10 degrees with 5 degrees of retained extension. Muscle strength was normal; there was no atrophy. He had hypoactive reflexes. He had decreased sensation in his lower right extremity and his straight leg test was positive. Radiculopathy was acknowledged and he had moderate intermittent pain and moderate paresthesias and/or dysesthesias. There was no numbness and no other sign of radiculopathy. He ambulated with a brace and a cane regularly. He was noted to have IVDS of the spine, but no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the last 12 months. A separate VA peripheral nerves examination in June 2015 showed that the physician assessed his right lower extremity radiculopathy as “mild” after a complete round of typical testing. He had mild intermitted pain, paresthesias, and numbness. Muscle strength and reflex tests were normal. Decreased sensation (versus absent) existed in the right lower extremity leg and toes/foot. An EMG test in June 2015 showed demyelinating neuropathy in both lower extremities, along with relatively preserved sural nerves. In sum, as the evidence shows, from the VA examination dated November 11, 2004, the Veteran’s disability picture worsened in that his right lumbosacral radiculopathy and low back disability were productive of symptoms such as chronic pain, limited motion, back spasms, decreased sensation in the right lower extremity, radiological findings of lumbosacral radiculopathy at the site of the diseased disc, and little intermittent relief despite having tried many rounds of medication, physical therapy, epidural shots, chiropractic treatment, and assistive devices for ambulation. As such, the Board finds that his low back disability more nearly approximates the 60 percent criteria under the “old” rating criteria under Diagnostic Code 5293. Generally, the effective date of an award of increased compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a). The facts, as demonstrated by the record, show that from the date of the VA examination (November 11, 2004), the Veteran’s disability warranted a 60 percent rating as he had IVDS with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, decreased ankle jerk, lumbar radiculopathy appropriate to site of diseased disc, and little intermittent relief as required under Diagnostic Code 5293. Prior to this examination, the record does not reflect a basis to award a higher rating as the evidence did not demonstrate the necessary symptomatology, as explained above. As for whether a higher evaluation is warranted in excess of 60 percent under either the “old” and “new” regulations, the Board notes that a 100 percent rating is not warranted. The Veteran does not have deformity of the spine or a fracture of the spine, thus a 100 percent rating under the available Diagnostic Codes of 5285 and 5286 cannot be awarded. As indicated, the September 23, 2002, and September 26, 2003 revisions to the criteria for rating disabilities of the spine provide that IVDS may be evaluated on the basis of total duration of incapacitating episodes over the previous 12 months, or, alternatively, by combining under 38 C.F.R. § 4.25 separate ratings for its chronic orthopedic and neurological manifestations along with evaluations for all other disabilities, whichever method results in the higher rating. The Veteran is currently in receipt of the highest rating under Diagnostic Code 5243 (“old” Code was 5293 for IVDS). Under the new criteria, the Veteran’s symptoms must more nearly approximate unfavorable ankylosis of the entire spine in order to receive a 100 percent rating. As he has been able to retain motion in his spine, meaning his spine is not immobile or in a fixed location, he does not have unfavorable ankylosis of his spine. As such, a 100 percent rating is not warranted under the “old” and the “new” regulations. The Board has considered all relevant Diagnostic Codes and all potentially applicable provisions of 38 C.F.R. Parts 3 and 4, whether or not they have been raised by the Veteran. The Board also considered whether staged ratings are necessary during the appeal period. Based on the facts found, the Board finds that the ratings assigned herein are appropriate for the specific period of the appeal indicated. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. An initial rating in excess of 20 percent for right lumbosacral radiculopathy By way of the June 2015 rating decision, the RO increased the rating from 10 percent to 20 percent for the service-connected right lumbosacral radiculopathy for the entire period of the appeal, effective May 24, 2004. Neurological conditions are rated pursuant to 38 C.F.R. § 4.124a. A rating is assigned based on the particular nerve involved and whether the disability is manifested by neuritis, neuralgia and/or incomplete or complete paralysis of the particular nerve involved. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. 38 C.F.R. § 4.123 provides that 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. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. 38 C.F.R. § 4.124 provides that neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. DC 8520 provides ratings for paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. Disability ratings of 10, 20 and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis of the relevant nerve; where the foot dangles and drops, with no active movement possible of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for a higher disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the 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. Neither the Rating Schedule nor the regulations provide definitions for words such as “moderately severe.” Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. As the Veteran’s disability picture has been demonstrated to be “moderate” for his right sided radiculopathy, a 20 percent rating is appropriate for the entire appeal period. A rating higher than 20 percent is not warranted at any point during the appeal period as “moderately severe” or “severe incomplete” paralysis was not shown. In fact, as mentioned above, during the entire appeal period, the Veteran’s numerous tests showed normal to slightly less than normal results in terms of strength and reflexes (the facts recited above are applicable to this issue). There was no muscular atrophy and no foot drop/dangle at any point. At no point was his right lumbosacral disability assessed as anything greater than “moderate.” There is no complete paralysis reflected in the record. (Continued on the next page)   The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). JEBBY RASPUTNIS Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Nichols, Counsel