Citation Nr: 18148580 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 17-38 419 DATE: November 7, 2018 ORDER An effective date earlier than May 23, 2018, for the assignment of a 20 percent rating for a service-connected right lower extremity radiculopathy, femoral nerve, is denied. An effective date earlier than January 2, 2018, for the assignment of a 20 percent rating for service-connected radiculopathy of the left lower extremity, sciatic nerve, is denied. Prior to January 4, 2017, entitlement to a rating in excess of 20 percent for the Veteran’s lumbar spine disability is denied. From January 4, 2017, entitlement to a rating in excess of 40 percent for the Veteran’s lumbar spine disability is denied. An initial disability rating in excess of 20 percent for radiculopathy of the right lower extremity, femoral nerve, is denied. An initial disability rating in excess of 20 percent prior for radiculopathy of the right lower extremity, sciatic nerve, is denied. FINDINGS OF FACT 1. In a June 2013 rating decision, the Agency of Original Jurisdiction (AOJ) service connected the Veteran’s right lower extremity radiculopathy, femoral nerve, at 20 percent, effective May 23, 2018. 2. Prior to May 23, 2018, the right lower extremity radiculopathy, femoral nerve, was not factually ascertainable. 3. In a January 2018 rating decision, the AOJ service connected the Veteran’s left lower extremity radiculopathy, sciatic nerve, at 20 percent, effective January 2, 2018. 4. Prior to January 2, 2018, the left lower extremity radiculopathy, sciatic nerve, was not factually ascertainable. 5. Prior to January 4, 2017, the Veteran’s thoracolumbar spine disability was manifested by forward flexion of 40 degrees at worst. 6. From January 4, 2017, the Veteran’s lumbar spine disability is manifested by favorable ankylosis of the entire thoracolumbar spine. 7. The Veteran’s right lower extremity radiculopathy femoral nerve is manifested by moderate incomplete paralysis. 8. The Veteran’s right lower extremity radiculopathy sciatic nerve is manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for entitlement to an effective date earlier than May 23, 2018, for the assignment of a 20 percent rating for service-connected right lower extremity radiculopathy, femoral nerve have not been met. 38 U.S.C. §§ 5110, 7105 (2014); 38 C.F.R. §§ 3.400(o)(2), 20.204, 20.302, 20.1103 (2018); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2018); 38 C.F.R. §§ 3.155, 3.157 (prior to March 24, 2015). 2. The criteria for entitlement to an effective date earlier than January 2, 2018, for the assignment of a 20 percent rating for service-connected left lower extremity radiculopathy, sciatic nerve, have not been met. 38 U.S.C. §§ 5110, 7105 (2014); 38 C.F.R. §§ 3.400(o)(2), 20.204, 20.302, 20.1103 (2018); 38 C.F.R. § 4.114, Diagnostic Code 7336 (2018); 38 C.F.R. §§ 3.155, 3.157 (prior to March 24, 2015). 3. The criteria for an initial evaluation in excess of 20 percent for the Veteran’s right lower extremity radiculopathy, femoral nerve, have not been met. 38 U.S.C. § § 1155, 5107 (2014); 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8526 (2018). 4. Prior to January 4, 2017, the criteria for an evaluation in excess of 20 percent for the Veteran’s back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5237 (2018). 5. From January 4, 2017, the criteria for an evaluation in excess of 40 percent for the Veteran’s back disability have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 3.321, 4.1-4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242, 5237 (2018). 6. The criteria for an initial evaluation in excess of 20 percent for the Veteran’s right lower extremity radiculopathy, sciatic nerve, have not been met. 38 U.S.C. § § 1155, 5107 (2014); 38 C.F.R. § § 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8620 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2015, the AOJ increased the rating for the Veteran’s service-connected lumbar spine disability from 10 to 20 percent, effective July 22, 2014. In May 2017, the AOJ granted service connection and a 20 percent rating for radiculopathy of the right lower extremity, sciatic nerve, effective July 22, 2014. The Veteran filed a timely Notice of Disagreement (NOD) with respect to the effective date and the rating assigned. In January 2018, the AOJ granted an effective date of January 31, 2008, which is the date the Veteran filed the back claim on appeal. The Veteran filed a timely NOD with respect to the rating assigned only. In January 2018, the AOJ also granted service connection and a 20 percent rating for radiculopathy of the left lower extremity, sciatic nerve, effective January 31, 2008, and granted a separate noncompensable rating for a lower back scar, effective July 22, 2014. The Veteran filed a timely NOD with respect to the effective date for the left lower extremity radiculopathy. In August 2018, the AOJ granted service connection and a 20 percent rating for radiculopathy of the right lower extremity, femoral nerve, effective May 23, 2018. The Veteran filed a timely NOD with respect to the effective date and the rating assigned. The Board has characterized the issues on appeal to reflect jurisdiction of the left lower extremity sciatic nerve (effective date), right lower extremity sciatic nerve (increased rating), and right lower extremity femoral nerve (effective date and increased rating) as part and parcel of the lumbar spine disability rating on appeal. See 38 C.F.R. § 4.71 (a), General Rating Formula for Disease and Injuries of the Spine, Note (1). Additionally, the Veteran’s service-connected disabilities have not been shown to render him unemployable. See, e.g., May 2018 VA Examination. Therefore, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In November 2017 and March 2018, the Board remanded the back claim so that another VA examination could be obtained. The Veteran received a new VA examination in May 2018. Accordingly, the Board finds there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative have 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). Earlier Effective Date The effective date of an award “shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.” 38 U.S.C. § 5110(a). However, in a claim for increased compensation, the effective date may date back as much as one year before the date of the application for increase if it is factually “ascertainable that an increase in disability had occurred” within that one year. 38 U.S.C. § 5110 (b)(3); 38 C.F.R. §3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979, 983 (Fed. Cir. 2010). In determining when an increase is “factually ascertainable,” the Board will look to all the evidence including testimonial evidence and expert medical opinions regarding when the increase took place. If the increase occurred more than one year prior to the claim, the increase is effective the date of claim. 38 C.F.R. § 3.400(o)(2); see Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). If the increase occurred after the date of claim, the effective date is the date of increase. 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 158 (1997). 1. Right Lower Extremity, Femoral Nerve 2. Left Lower Extremity, Sciatic Nerve In January 2018, the AOJ granted service connection for left lower extremity radiculopathy, sciatic nerve, and assigned a 20 percent rating, effective January 2, 2018. In August 2018, the AOJ granted service connection for right lower extremity radiculopathy, femoral nerve, and assigned a 20 percent rating, effective May 23, 2018. In trying to find the earliest increased rating claim, the Board acknowledges the Veteran filed a claim in January 2008 requesting service connection for back pain that radiated down his legs. The Board concedes this request was a formal claim. See 38 C.F.R.§ 3.155 (in effect prior to Mar. 23, 2015). However, the Board notes the evidence fails to show that his specific femoral and sciatic nerve disabilities were factually ascertainable on the date of claim. An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating-as well as for an initial rating or for staged ratings-is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is “factually ascertainable,” all of the evidence must be looked to, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, “it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). The Veteran contends that April and May 2016 private treatment records contain evidence of femoral and sciatic nerve involvement. See October 2018 Statements. The medical evidence documents treatment for the Veteran’s lumbar spine disability and resulting bilateral lower extremity radiculopathy. However, the evidence does not show the Veteran had radiculopathy in his right femoral nerve until May 2018. In addition, the evidence does not show the Veteran had radiculopathy in his left sciatic nerve until January 2018. The Board notes the Veteran was examined specifically for radiculopathy in multiple VA and private examinations, but there is no finding or diagnosis of right femoral nerve radiculopathy prior to May 2018 or left sciatic nerve radiculopathy prior to January 2018. Accordingly, the preponderance of the evidence is against the claim, and an award of an effective date earlier than May 23, 2018, for right femoral nerve radiculopathy and an effective date earlier than January 2, 2018, for left sciatic nerve radiculopathy is denied. Increased Rating Disability ratings are determined by applying the criteria established in VA’s Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2018). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). 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 claimant. 38 C.F.R. § 4.3 (2018). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 3. Lumbar Spine The Veteran’s lumbar disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under which a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 38 C.F.R. § 4.71a (2018). A 40 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine, and 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. 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. Id. at Plate V. 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 (2015). Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under an appropriate Diagnostic Code. Id. at Note (1). Based on the Veteran’s disability the Board will also consider ratings under Diagnostic Code 5243, Intervertebral Disc Syndrome (IVDS). 38 C.F.R. § 4.71a (2018). Intervertebral disc syndrome (preoperatively or postoperatively) is evaluated either on the total duration of incapacitating episodes over the past 12 months or by combining under 38 C.F.R. § 4.25 (the combined rating table) separate evaluations of its chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities, whichever method results in the higher evaluation. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. For purposes of assigning evaluations under Code 5243, 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, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1 (2018). When an evaluation of a disability is based upon limitation of motion, the Board must also consider, in conjunction with the otherwise applicable Diagnostic Code, any additional functional loss the Veteran may have sustained by virtue of other factors as described in 38 C.F.R. §§ 4.40 and 4.45. DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Such factors include more or less movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, and deformity or atrophy from disuse. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the Veteran. 38 C.F.R. § 4.40 (2017); Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59 establish that the Veteran is entitled to at least the minimum compensable evaluation for motion that is accompanied by pain. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Prior to January 4, 2017 The Veteran received a VA examination in March 2015. The Veteran reported he could not walk more than a block without his back hurting and felt pain radiate to his right lower extremity. The pain level in his back was a constant 9 out of 10 and worsened when he got up from a seated position. He experienced flare ups consisting of increased pain after prolonged walking. The Veteran’s range of motion was as follows: forward flexion to 45 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 15 degrees. His abnormal range of motion caused pain on movement, pain with weight-bearing-testing, and functional loss with repeated use over time. The Veteran was unable to perform repetitive testing, so the examiner estimated his range of motion as follows: forward flexion to 40 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 5 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees. While the examiner could not say without speculation if pain, weakness, fatigability, or incoordination significantly limited his functional ability, the Veteran’s statements about functional loss during flare ups was consistent with the evidence at the examination. The Veteran did not have ankylosis nor IVDS requiring bed rest by a doctor with in the past year. The Veteran regularly used a cane. The examiner noted any further comments on repetitive motion such as fatigue, weakness, increased pain, change in range of motion, lack of endurance, or incoordination would be speculation. The Veteran received treatment for his back at a private center. The records documented his continued complaints of pain and problems with prolonged sitting and standing. The Board finds the Veteran’s disability picture is best captured by a 20 percent rating. His forward flexion was at worst was 40 degrees, which is captured by a 20 percent rating as it was greater than 30 degrees but less than 60 degrees. The evidence fails to show the Veteran suffers from forward flexion that was 30 degrees or less, and he did he have favorable ankylosis of the spine. Furthermore, the Board notes a 40 percent rating is not warranted under Diagnostic Code 5243, as he does not suffer from incapacitating episodes requiring bed rest. Id. Thus, the Board finds the 20 percent rating adequately captures the Veteran’s disability. In addition to considering the Veteran’s range of motion measurements and the other medical evidence of record, the Board also considers the Veteran’s lay statements and the evidence of functional loss due to pain. The March 2015 VA examiner refused to speculate with respect to functional loss during flare-ups. he Board notes the Veteran’s lay statements that he experiences pain on motion in his back are competent and credible. The Board also acknowledges the Veteran’s subjective statement that he felt diminished strength in his back, which impacted his ability to walk and stand for prolonged periods. He also reported difficulty dressing, sleeping, and doing chores. Even considering the Veteran’s lay statements about functional loss, the Board concludes the preponderance of the evidence shows the Veteran’s disability picture is best captured by the 20 percent. Here, there is no evidence the functional loss or flare ups more nearly approximate to forward flexion of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. The provisions set forth in 38 C.F.R. §§ 4.40 and 4.45 do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). From January 4, 2017 In a private record, the Veteran’s range of motion was recorded as limited to 5 degrees when bending forward. Additionally, his right and left rotation was to 5 degrees. The Veteran continued to experience constant pain, and increased pain with prolonged standing, sitting, and walking. The Veteran submitted a DBQ in July 2017. The Veteran stated he experienced flare ups that limited his ability to walk more than 50 feet without rest. He was unable to lift anything over 10 pounds, stand more than 10 minutes, or ambulate more than 7 minutes. His range of motion was as follows: forward flexion to 42 degrees, extension was at -2 degrees, he was unable to reach a neutral spine position, his right lateral flexion was to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 22 degrees. His abnormal range of motion caused functional loss in the form of less movement than normal, weakened movement, pain on movement, and interference with standing. This functional loss impacted his range of motion such that his forward flexion was limited to 20 degrees and his extension to -5 degrees. He experienced pain with passive, active, weight-bearing, and non-weight-bearing testing. He had muscle atrophy in his lower extremities, and his abnormal gait and spinal contour caused guarding. He had IVDS, but no incapacitating episodes in past year requiring bed rest. The Veteran’s next VA examination was in January 2018. He reported experienced constant back pain rated at 7 out of 10. In addition, when his pain went up to a 10, he could not walk or stand for more than 5 minutes. His range of motion was noted as: flexion to 70 degrees, extension to -5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees, left lateral rotation to 5 degrees. His abnormal range of motion caused pain on movement. The Veteran experienced pain with weight-bearing and repetitive testing. Also, the Veteran experienced some change after repetitive testing; his right and left lateral flexion was limited to 5 degrees. This limited range of motion also happened during flare ups. The VA examiner stated the Veteran did not have IVDS or ankylosis. The Veteran occasionally used a brace and regularly used a cane. The examiner could not provide an opinion on how the Veteran’s flare ups impacted his functional ability. The examiner stated because the Veteran was not experiencing a flare up during the examination all he had to consider was the Veteran’s reports of increased, constant pain during flare ups. Accordingly, the examiner concluded that to say more than the Veteran had increased pain with flare ups and certain activities would be speculative. In May 2018, the Veteran received another VA examination. The Veteran stated his pain worsened when walking and standing; his pain level was at a 9 out of 10. He continued to have pain when seated for a long he would need to get up and change positions. During flare ups, he experienced pain when trying to walk and with prolonged walking and standing. The examiner reported his range of motion as: forward flexion as 5 degrees to 45 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 5 degrees. He experienced pain with weight-bearing testing. After repetition, his right and left lateral flexion was limited to 5 degrees. Because the Veteran was not experiencing a flare up, providing his range of motion during a flare up would require speculation. However, the examiner noted the Veteran described his experience during a flare up and reported pain on movement and a similar limitation in range of motions as experienced after repetitive testing. The Veteran did not have IVDS or ankylosis. The Veteran submitted a DBQ from May 2018. He continued to report pain and difficulty walking. The Veteran’s range of motion was forward flexion to 25 degrees, extension was at -5 degrees, left lateral flexion to 5 degrees, right lateral flexion to 5 degrees, right lateral rotation to 8 degrees, and left lateral rotation to 3 degrees. He had pain with weight-bearing, non-weight-bearing, active, and passive range of motion testing. He experienced spinal contour with guarding, muscle spasms, and an abnormal gait. He also experienced less movement than normal, pain on movement, swelling, deformity, instability, and interference with standing. The Veteran state he was sometimes unable to get out of bed due to pain and falls when having a flare up. He had no atrophy, but favorable ankylosis of the entire spine. Last, the examiner noted the Veteran’s IVDS caused him to have an incapacitating episode requiring bed rest, but it was less than 1 week over the past year. The Board acknowledges the Veteran’s condition has worsened over the course of the appeal period. However, at no point during the appeal period has the Veteran had unfavorable ankylosis of the entire spine, as required by the 50 percent rating. Furthermore, while the Veteran has IVDS, it has not caused incapacitating episodes lasting at least 6 months, as required by the 60 percent rating. Accordingly, the Board finds the 40 percent rating adequately captures the Veteran’s disability. The Board must also consider the Veteran’s functional loss due to pain. See 38 C.F.R. §§ 4.40, 4.45. The medical evidence shows the Veteran experienced flare ups with prolonged walking, prolonged standing, and lifting objects. The Veteran experienced weakness due to pain, and some functional loss in the form of less movement than normal, weakened movement, and instability. The Board also acknowledges the Veteran’s limited functional ability during flare ups that impact his ability to walk, stand, and sit for prolonged periods. Even considering the Veteran’s flare ups and functional loss, the Board concludes the Veteran’s back disability does not equate to more than the disability picture contemplated by the 40 percent rating already assigned. 38 C.F.R. § 4.71a. The DeLuca provisions do not require the assignment of a higher schedular disability rating where the functional limitation due to pain does not result in limitation of motion sufficient to meet the requirements of the next higher disability rating. Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). Here, there is no evidence the functional loss or flare ups led to the Veteran having unfavorable ankylosis of the entire spine. Last, the Board acknowledges the Veteran’s contention that the back disability schedular rating assigned for his disability is inadequate. See Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). However, the Board finds the evidence fails to show the Veteran suffers from symptoms that are not contemplated by the schedular criteria. The Board concedes the Veteran experiences numbness and tingling in his lower extremities; however, the Veteran is separately rated for bilateral lower extremity radiculopathy. The other symptoms reported by the Veteran, such as interference with prolonged standing, sitting and walking; difficulty dressing and doing chores; trouble sleeping; and the occasional need for an assistive device are considered when considering the impact of the Veteran’s disability on his functional ability. See 38 C.F.R. §§ 4.40, 4.45. Therefore, the Board finds a remand for referral to the Director of the Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b) is not necessary. 4. Right Lower Extremity Radiculopathy Femoral Nerve The Veteran’s right lower extremity radiculopathy, femoral nerve, is rated at 20 percent under Diagnostic Code 8526. 38 C.F.R. § 4.124a (2018). A 10 percent rating is warranted with mild paralysis. A 20 percent rating is warranted with moderate paralysis. A 40 percent rating is warranted with moderately severe paralysis. A 60 percent rating is warranted with severe paralysis marked with muscular atrophy. An 80 percent rating is warranted with complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee weakened for (very rarely) lost. The term “incomplete paralysis” with this and other peripheral nerve injuries indicates a degree of lost or impaired function substantially less than the type pictured 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 (2018). As stated above, the Veteran’s femoral nerve radiculopathy was first noted in May 2018, at a private examination. The examiner reported the Veteran had severe intermittent pain, moderate paresthesias, and mild numbness. Overall the examiner rated the Veteran’s radiculopathy as moderate. Therefore, based on the evidence of record, the Board finds a disability rating in excess of 20 percent is not warranted. The examiner rated the Veteran’s disability as moderate, and while he reported severe pain, the other symptoms of paresthesias and numbness were rated as mild and moderate. Accordingly, the Veteran’s disability is best captured at 20 percent as his symptoms are not more accurately described as moderately severe incomplete paralysis. Therefore, the Board concludes a disability rating in excess of 20 percent is not warranted. See 38 C.F.R. § 4.71a (2018). 5. Radiculopathy of the Right Sciatic Nerve The Veteran’s right lower extremity radiculopathy, sciatic nerve, is rated at 20 percent under Diagnostic Code 8620. 38 C.F.R. § 4.124a (2018). A 10 percent rating is warranted with mild paralysis. A 20 percent rating is warranted with moderate paralysis. A 40 percent rating is warranted with moderately severe paralysis. A 60 percent rating is warranted with severe paralysis marked with muscular atrophy. An 80 percent rating is warranted with complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee weakened for (very rarely) lost. A May 2008 private record noted evidence of pain and stiffness in his lumbar spine and concluded the Veteran also suffered from right lower extremity radiculopathy. The Veteran’s VA records and private records note the Veteran’s continued complaints of lower back pain that radiates down to his legs. He has also complained of numbness and tingling in his right leg. The Veteran received a VA examination in March 2015. The examiner noted moderate, intermittent pain in his right lower extremities. The Veteran also suffered from paresthesias and numbness which was rated as moderate. The VA examiner concluded the Veteran suffered from moderate right sciatic nerve radiculopathy. The Veteran also received VA examinations in January 2018 and May 2018, where the subsequent examiners concluded similar results. (Continued on the next page)   The Veteran also submitted a May 2018 DBQ from a private examiner. The private examiner noted severe right lower extremity intermittent pain. The remainder of the objective findings were not rated as severe. The Veteran’s paresthesia was rated as moderate and numbness rated as mild. The private examiner rated the Veteran’s right lower extremity radiculopathy as moderate. The Board finds the evidence of record is against a disability rating in excess of 20 percent. The medical evidence of record consistently shows the Veteran suffers from moderate paralysis, as concluded by each examiner. While the more recent VA examinations show the Veteran has muscle atrophy, which is required for a 60 percent rating, the preponderance of the evidence fails to show he has severe paralysis in combination with muscle atrophy. His symptoms are not more accurately described as moderately severe incomplete paralysis. Therefore, the Board concludes a disability rating in excess of 20 percent is not warranted. 38 C.F.R. § 4.71a (2018). REBECCA N. POULSON Acting Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel