Citation Nr: 18149939 Decision Date: 11/14/18 Archive Date: 11/14/18 DOCKET NO. 15-07 864 DATE: November 14, 2018 ORDER Entitlement to a disability rating in excess of 10 percent prior to February 17, 2015, for a service-connected lumbar spine disorder is denied. Entitlement to a disability rating in excess of 20 percent from February 17, 2015, for a service-connected lumbar spine disorder is denied. Entitlement to an initial disability rating of 20 percent, but no higher, for service-connected radiculopathy of the right lower extremity is granted. Entitlement to an initial disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity is denied. FINDINGS OF FACT 1. Prior to February 17, 2015, the Veteran’s service-connected lumbar spine disorder resulted in flexion greater than 60 degrees but less than 85 degrees. 2. From February 17, 2015, the Veteran’s service-connected lumbar spine disorder resulted in flexion greater than 30 degrees but less than 60 degrees. 3. The Veteran’s service-connected radiculopathy of the right lower extremity is moderate in severity. 4. The Veteran’s service-connected radiculopathy of the left lower extremity is no greater than mild in severity. CONCLUSIONS OF LAW 1. Prior to February 17, 2015, the criteria for a disability rating in excess of 10 percent for a service-connected lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5010-5243. 2. From February 17, 2015, the criteria for a disability rating in excess of 20 percent for a service-connected lumbar spine disorder have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code 5010-5243. 3. The criteria for an initial disability rating of 20 percent, but no higher, for service-connected radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial disability rating in excess of 10 percent for service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from May 1999 to October 1999, January 2003 to August 2003, and September 2004 to December 2005. This case is on appeal before the Board of Veterans’ Appeals (Board) from an August 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska. In April 2018, the Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the claims file. A review of the record reflects additional medical evidence was added subsequent to the February 2015 Statement of the Case (SOC). However, the Veteran waived RO consideration of this new evidence. As such, no further action is required. Neither the Veteran nor his representative has raised any specific issues with the duty to notify or the 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.”); see also Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Also, neither the Veteran nor his representative has raised any issues concerning the hearing held before the undersigned. Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). The Veteran seeks increased disability ratings for his service-connected lumbar spine disorder and radiculopathy of the bilateral lower extremities. He alleges that these conditions have worsened throughout the appeal period. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran’s condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). In rendering a decision on appeal, the Board must analyze the credibility and probative value of all medical and lay evidence of record, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. 38 U.S.C. § 1154(a); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board must resolve reasonable doubt in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. 49. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). The evidence of record supports the application of a 20 percent evaluation for the Veteran’s service-connected radiculopathy of the right lower extremity. Thus, that appeal is granted. However, the evidence of record is inconsistent with the assignment of higher disability ratings for the Veteran’s service-connected lumbar spine disorder and radiculopathy of the left lower extremity. Accordingly, those appeals are both denied. I. Lumbar Spine Disorder The Veteran claims that his service-connected lumbar spine disorder has worsened throughout the appeal period, which began up to one year prior to December 30, 2013, the date the current claim was received. The Veteran’s lumbar spine disorder was originally rated at 10 percent disabling; however, this evaluation was later raised to 20 percent, effective February 17, 2015, the date of an examination that confirmed worsening. As such, the Veteran’s claim has been characterized as entitlement to a disability rating in excess of 10 percent prior to February 17, 2015, and entitlement to an evaluation in excess of 20 percent from that date. 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. 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 or atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing. 38 C.F.R. § 4.45. The VA must consider such “functional losses” of a musculoskeletal disability; “functional loss” may occur as a result of weakness, fatigability, incoordination or pain on motion and should be equated to loss of motion. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202 (1995). Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. The Veteran is currently rated under Diagnostic Code 5010-5243, for traumatic arthritis and intervertebral disc syndrome. Hyphenated diagnostic codes are used when a disability rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.71a. Traumatic arthritis is rated under the same diagnostic criteria as degenerative arthritis. 38 C.F.R. § 4.71a, Diagnostic Code 5010. Degenerative arthritis established by X-ray findings will be rated on the basis of limitation of motion under the appropriate codes for the specific joint or joints involved. If the limitation of motion is noncompensable, a rating of 10 percent will be applied for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 20 percent rating is merited for X-ray evidence of involvement of two or more major joints or two or more minor joint groups, with occasional incapacitating exacerbations. A 10 percent rating is warranted for X-ray evidence of involvement of two or more major joints or two or more minor joint groups. 38 C.F.R. § 4.71a, Diagnostic Code 5003. For the purposes of this evaluation, the lumbar vertebrae are considered a single group of minor joints. 38 C.F.R. § 4.45. Under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243 unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes), a disability rating of 10 percent is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but less than 85 degrees; or, when the combined range of motion of the thoracolumbar spine is greater than 120 degrees but less than 235 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. 38 C.F.R. § 4.71a. A 20 percent disability rating is assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees but less than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 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 is present. A 40 percent disability rating is warranted for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The 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 thoracolumbar spine is 240 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 Formula, Note (2); see also Plate V. Unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, General Formula, Note (5). Intervertebral disc syndrome (IVDS) is rated either under the General Rating Formula or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in a higher disability rating. The Formula for Rating IVDS Based on Incapacitating Episodes provides for a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent disability rating is awarded for a disability with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. With incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, a 40 percent evaluation is in order. Finally, a maximum schedular rating of 60 percent is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). An October 2013 MRI of the Veteran’s lumbar spine revealed a large diffuse posterior protrusion at the L5-S1 level, causing mild central canal stenosis with loss of lateral recess and mass effect on the S1 nerve roots, right greater than left. There was also mild to moderate compromise to the left neuroforaminal and mild central canal stenosis secondary to a posterior central disc protrusion at the L4-L5 level. The Veteran began receiving epidural steroid injections in his lumbar spine in December 2013. The attending physician opined that if this treatment was not successful, then surgical consultation would be appropriate. The Veteran underwent a VA examination in May 2014. The examiner reviewed the claims file and conducted an in-person evaluation, noting a previous diagnosis of lumbosacral strain. The Veteran claimed that his condition had worsened since his previous examination, alleging that his pain was so severe that he has to stop all activities and rest in bed at times. He also stated that epidural steroid injections provided only minor relief, and that his lower back pain interfered with his work and activities of daily living. The Veteran also reported flare-ups once or twice per month, typically lasting 4 to 9 days. Upon examination, flexion was measured at 70 degrees, with evidence of painful motion at 20 degrees. Extension ended at 15 degrees, with evidence of painful motion at 15 degrees. There was no evidence of loss of range of motion with 3 repetitions, but the examiner noted that the Veteran’s lumbar spine disorder results in functional loss due to pain and limitation of range of motion. Muscle spasms were present, but they did not result in abnormal gait or spinal contour. There was also no evidence of guarding, muscle atrophy, or ankylosis of the spine. However, the Veteran did require a cane occasionally. The examiner opined that the Veteran’s condition affected his ability to work, citing to his inability to hold a construction job due to back pain. Lastly, because the examination did not take place during flare-up, the examiner was unable to opine whether pain, weakness, fatigability, or incoordination could significantly limit functional ability during flare-ups, or when the spine is used repeatedly over a period of time. During his December 2014 hearing with the Decision Review Officer (DRO), the Veteran stated that, due to his lower back pain, he was never comfortable. He indicated that he used prescription pain killers, but that these were only for short term use. Although the Veteran had discussed the possibility of surgery with his doctors, he did not want to do it because they could not guarantee that it would result in any tangible benefit. On February 17, 2015, the Veteran was afforded a second VA examination. The examiner conducted an in-person evaluation and reviewed the claims file, noting diagnoses of lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran endorsed lower back pain, stiffness, decreased range of motion, and spasming, stating that Advil provided only minimal benefit and the epidural injections provided only short-term, temporary benefit. His last epidural injection was only 4 weeks prior to the examination. The Veteran stated that flare-ups occurred every two weeks and lasted 4 or 5 days, resulting in antalgic gait, decreased range of motion, increased pain, and difficulty weightbearing. Upon examination, flexion was measured at 45 degrees, extension at 15 degrees. After 3 repetitions, flexion was 40 degrees while extension was 10 degrees. However, the examiner was unable to say if pain, weakness, fatiguability or incoordination significantly limited functional ability after repeated use because the Veteran was not experiencing a flare-up. There was evidence of guarding, tenderness, and muscle spasm resulting in abnormal gait or spinal contour. The examination report also notes interference of locomotion, sitting, and standing. Although there was full muscle strength and no ankylosis of the spine, the Veteran did use a cane regularly. An X-ray revealed the L5-S1 interspaces to be narrowed and indistinct, especially the inferior endplate of L5 in its middle and posterior portion. There was also a small marginal osteophytosis anteriorly at this level. The remainder of the interspaces were unremarkable. The L1-L4 vertebral body heights were preserved, but the lumbar spine otherwise unremarkable. Lastly, the examiner opined that the Veteran’s lumbar spine condition did not affect his ability to work. In a December 2017 treatment record, the Veteran’s chiropractor confirmed the existence of muscle spasms, which were characterized as moderate to severe. Although the Veteran endorsed pain and tenderness in his lower back, his range of motion was only mildly reduced due to pain. By March 2018, the Veteran’s chiropractor stated that he felt better and has experienced an increase in range of motion and muscle strength, with a decrease in pain, since care began. Although pain and tenderness were still present, the Veteran’s muscle spasms were characterized as moderate. At the Board hearing in April 2018, the Veteran alleged that his lower back condition had worsened since his last examination. He stated that he used a cane periodically, and that when he is on his feet more than 4 hours per day, he may need a cane for the next 2 or 3 days to walk normally. This happens roughly twice per month. The Veteran asserted that his pain ebbed and flowed, but was not always related to his activities. He used to work as a contractor, but can no longer do that. Instead, the Veteran indicated that he currently worked a home inspector, and had hired someone else to carry the ladder and climb into awkward places. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the application of a 10 percent disability rating for the period prior to February 17, 2015. Similarly, the preponderance of the evidence is against the application of a disability rating in excess of 20 percent for the period from February 17, 2015. During the May 2014 VA examination, which is the only comprehensive evaluation of the Veteran’s lumbar spine disorder within the appeal period dating prior to February 17, 2015, flexion was measured at 70 degrees despite evidence of painful motion at 20 degrees. Additionally, the examination report revealed evidence of muscle spasms, but these were not severe enough to result in abnormal gait or spinal contour. Although the Veteran complained that his lumbar spine disorder affected his ability to perform his activities of daily living, and the examiner opined that this condition affects the Veteran’s ability to work, the Board notes that difficulties such as these are contemplated by the 10 percent evaluation. Accordingly, the Board finds that the evidence of record does not support the assignment of a disability rating in excess of 10 percent for the Veteran’s service-connected lumbar spine disorder for the period prior to February 17, 2015. Moreover, the evidence of record is inconsistent with the application of an evaluation in excess of 20 percent for the Veteran’s service-connected lumbar spine disorder for the period from February 17, 2015. During the February 17, 2015 examination, flexion was measured at 45 degrees; after 3 repetitions, it was still measured at 40 degrees. There was also evidence of guarding, tenderness, and muscle spasm resulting in abnormal gait, but no indication of ankylosis. The examiner also opined that the Veteran’s lumbar spine condition did not affect his ability to work. This assessment is consistent with the progress notes from the Veteran’s chiropractic treatment, which indicate that he was improving and that the range of motion in his lumbar spine was only mildly reduced by pain. None of this evidence supports the application of a disability rating in excess of 20 percent for the period from February 17, 2015. Lastly, due to the Veteran’s diagnoses of IVDS and degenerative arthritis of the spine, the Board has considered whether he may be entitled to compensation under the Formula for Rating IVDS Based on Incapacitating Episodes found in Diagnostic Code 5243. Although the Veteran alleged that he must often stay in bed due to his lower back pain, there is no evidence that he has ever been prescribed bedrest by any of his treating physicians. Since physician-prescribed bedrest serves as the basis for compensation under Diagnostic Code 5243, the Veteran is not entitled to a separate rating under these criteria. Thus, the Board finds that the weight of the evidence is against the finding of an initial disability rating in excess of 10 percent under Diagnostic Code 5010-5243 for the Veteran’s service-connected lumbar spine disorder for the period prior to February 17, 2015. Likewise, the weight of the evidence is against the finding of a disability rating in excess of 20 percent for the period from February 17, 2015. To the extent that any higher level of compensation is sought, the preponderance of the evidence is against this claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the claim is denied. II. Radiculopathy of the Bilateral Lower Extremities The Veteran alleges that his service-connected radiculopathy of the right and left lower extremities warrants initial disability ratings in excess of 10 percent throughout the entire appeal period, which began on the date service connection was established. Service connection was established for radiculopathy of the right lower extremity on October 9, 2013, while the Veteran’s radiculopathy of the left lower extremity has been service-connected since December 30, 2013. Given that these two conditions are subject to the same ratings criteria, they will be referred to together as “radiculopathy of the bilateral lower extremities” where convenient. The Veteran’s radiculopathy of the bilateral lower extremities is currently rated under Diagnostic Code 8520, which addresses paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. Id. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. Id. The term “incomplete paralysis,” with respect to 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 lesion or to partial regeneration. Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology. 38 C.F.R. § 4.124a. An October 2013 MRI of the Veteran’s lumbar spine revealed a large diffuse posterior protrusion at the L5-S1 level, causing mild central canal stenosis with loss of lateral recess and mass effect on the S1 nerve roots, right greater than left. There was also mild to moderate compromise to the left neuroforaminal and mild central canal stenosis secondary to a posterior central disc protrusion at the L4-L5 level. A private treatment record from December 2013 reveals that the Veteran was experiencing right posterior leg pain, which he claimed began 3 months earlier. There was no precipitating event, and the attending physician stated that his complaints were consistent with radiculopathy. The Veteran was afforded a VA examination in May 2014. The examiner reviewed the claims file and conducted an in-person evaluation, noting the Veteran’s complaint of mild pain in his left leg. The examination report states that straight leg raising tests were positive on the right and negative on the left. The Veteran endorsed mild numbness in both lower extremities but denied paresthesias in either leg. However, he claimed moderate intermittent pain in his right lower extremity, mild intermittent pain in his left lower extremity, moderate constant pain in his right lower extremity, and no constant pain in his left lower extremity. Testing revealed both sciatic nerves were involved, with radiculopathy being characterized as moderate in the Veteran’s right leg and mild in the left. During his December 2014 DRO hearing, the Veteran claimed that his radiculopathy was more severe in his right lower extremity but was starting to worsen in his left. In February 2015, the Veteran underwent a second VA examination. The examiner reviewed the claims file and conducted an in-person evaluation, noting the Veteran’s complaint of bilateral sciatica, more severe on the right than the left. The examination report states that straight leg raising tests were positive bilaterally. The Veteran endorsed mild paresthesias and numbness in both lower extremities, with moderate intermittent pain in his left lower extremity, severe intermittent pain in his right lower extremity, mild constant pain in his left lower extremity, and moderate constant pain in his right lower extremity. Testing revealed both sciatic nerves were involved, with radiculopathy being characterized as moderate in the Veteran’s right leg and mild in the left. In a December 2017 appointment with his chiropractor, the Veteran reported no radiation of pain to his extremities. The Veteran indicated the same thing in February 2018. During the April 2018 Board hearing, the Veteran stated that he will usually use a cane when his radiculopathy flares. Though his pain ebbs and flows, he claimed that it never subsides completely. After careful consideration of the claims file, the Board concludes that the preponderance of the evidence is against the finding that the Veteran’s radiculopathy of the left lower extremity warrants a disability rating in excess of 10 percent at any point during the appeal period. However, the Board determines that the Veteran is entitled to a 20 percent evaluation for his radiculopathy of the right lower extremity throughout the appeal period. In order to warrant a 20 percent disability rating under Diagnostic Code 8520, it must be shown that the Veteran’s radiculopathy is moderate in severity. Here, the Board notes that the Veteran’s radiculopathy of the right lower extremity was characterized as moderate during both the May 2014 and February 2015 VA examinations. These assessments are consistent with the Veteran’s complaints indicating more significant symptoms in his right lower extremity, as well as the MRI from October 2013, which revealed stenosis affecting the S1 nerve roots to a greater degree on the right. Although the Veteran did not report pain radiating to his extremities during any of the appointments with his chiropractor, the Board recognizes the Veteran’s statements that his radicular pain will ebb and flow. Therefore, the Board finds that the evidence of record is supports the application of a 20 percent rating under Diagnostic Code 8520 throughout the entire period on appeal. However, the Board declines to assign a higher rating because there is no evidence of muscle atrophy or anything else in the claims file to indicate that the radiculopathy affecting the Veteran’s right lower extremity is severe or even moderately severe. Similarly, the evidence of record does not suggest that the radiculopathy affecting the Veteran’s left lower extremity is any greater than mild in severity. Indeed, the Veteran’s radiculopathy of the left lower extremity was characterized as mild during both the May 2014 and February 2015 VA examinations. Moreover, a review of the Veteran’s complaints indicates that the radicular symptoms affecting his left lower extremity were generally less severe than those affecting his right. As such, the Board finds that the evidence of record does not support the assignment of an evaluation in excess of 10 percent for the Veteran’s radiculopathy of the left lower extremity under Diagnostic Code 8520. In conclusion, the Board finds that the evidence of record warrants the application of a 20 percent disability rating for the Veteran’s service-connected radiculopathy of the right lower extremity for the entire period on appeal. However, the evidence of record is inconsistent with the assignment of an evaluation in excess of 10 percent for the Veteran’s service-connected radiculopathy of the left lower extremity. To the extent that any higher level of compensation is sought for this issue, the preponderance of the evidence is against the claim. Hence the benefit of the doubt rule does not apply. Gilbert, 1 Vet. App. 49; 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Accordingly, the Veteran’s claim for an initial disability rating in excess of 10 percent for his radiculopathy of the left lower extremity is denied, while his claim for an initial disability rating in excess of 10 percent for his radiculopathy of the right lower extremity is granted. (Continued on the next page) JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD MJS, Associate Counsel