Citation Nr: 18158817 Decision Date: 12/18/18 Archive Date: 12/17/18 DOCKET NO. 10-08 302 DATE: December 18, 2018 ORDER Entitlement to an initial compensable disability evaluation prior to February 18, 2015 for surgical scar of the lower back, residual of lumbar spine surgery, is denied. Entitlement to an initial evaluation in excess of 10 percent from February 18, 2015 for painful surgical scar of the lower back, residual of lumbar spine surgery, is denied. Entitlement to an initial rating in excess of 10 percent prior to February 21, 2015 for left leg radiculopathy, is denied. Entitlement to an initial 20 percent rating, but no higher, from February 21, 2015 for left leg radiculopathy, is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. Prior to February 18, 2015, the Veteran’s lumbar back surgical scar was not painful. 2. From February 18, 2015, the Veteran’s lower back surgical scar is shown to be painful but the scar is not deep, does not cause limited motion, and does not exceed 12 square inches (77 sq. cm.). 3. Prior to February 21, 2015, the radiculopathy of the Veteran’s left lower extremity was manifested by mild incomplete paralysis. 4. Between February 21, 2015 and September 7, 2016, the radiculopathy of the Veteran’s left lower extremity was manifested by moderate incomplete paralysis. 5. From September 8, 2016, there is an approximate balance of evidence for and against the claim as to whether the radiculopathy of the Veteran’s left lower extremity was manifested by mild or moderate incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to February 18, 2015, the criteria for an initial compensable rating for service-connected surgical scar, residual of lumbar spine surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804 (effective between August 30, 2002 and October 23, 2008). 2. From February 18, 2015, the criteria for an initial rating in excess of 10 percent for surgical scar, residual of lumbar spine surgery have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.118, Diagnostic Code 7804 (effective between August 30, 2002 and October 23, 2008). 3. Prior to February 21, 2015, the criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. 4. From February 21, 2015, the criteria for an initial 20 percent rating, but not higher, for service-connected radiculopathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the U.S. Army from May 1971 to May 1973. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an Agency of Original Jurisdiction (AOJ) decision dated November 2008. In the rating decision, the AOJ denied an increased rating for a left leg condition (radiculopathy), and continued a rating of 10 percent. The rating decision also denied an increased (compensable) rating for surgical scar of the lumbar spine, and continued a noncompensable rating. The Veteran perfected his appeal, and after a September 2014 Board remand and further development, in May 2018, the AOJ issued a supplemental statement of the case indicating that an increased rating of 20 percent for the surgical scar on the lumbar spine was granted, effective from February 18, 2015. The increased rating claim for radiculopathy remained denied, and continued at an evaluation of 10 percent. The Veteran elected to return his case to the Board for further appellate consideration. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. Separate diagnostic codes identify the various disabilities. The percentage ratings are based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is in equipoise, the claim will be granted. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. §§ 4.3, 4.7. Otherwise, the lower rating will be assigned. Id. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C. § 5107 (a). In its evaluation, the Board considers all information and lay and medical evidence of record. 38 U.S.C. § 5107 (b). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Back Scar, Residual of Lumbar Spine Surgery The Veteran filed his claim for service connection for a scar of the lumbar spine in November 2007. Therefore, in deciding this claim, the Board must apply the Diagnostic Code that was in effect at that time. The Diagnostic Codes, found at 38 C.F.R § 4.118 (2002), provided as follows: 10 percent ratings are assigned for scars not of the head, face, or neck that 1) are deep or cause limited motion and cover an area exceeding 6 square inches (39 sq. cm.) (a deep scar is one associated with underlying soft tissue damage) (Diagnostic Code 7801); or 2) are superficial and do not cause a limitation of motion and cover an area of 144 square inches (929 sq. cm.) or greater (a superficial scar is one not associated with underlying soft tissue damage) (Diagnostic Code 7802); 3) are superficial and unstable (an unstable scar is one where, for any reason, there is frequent loss of covering of skin over the scar) (Diagnostic Code 7803); or 4) are superficial and painful on examination (Diagnostic 7804). Under Diagnostic Code 7805, other scars should be rated on limitation of function of the affected part. 38 C.F.R § 4.118, Diagnostic Code 7805 (2002). Under 38 C.F.R § 4.118 (2002), the next highest rating for scars is 20 percent, which can be assigned to scars not of the face, head, or neck that are deep or cause limited motion, and exceed 12 square inches (77 sq. cm.) (Diagnostic Code 7801). The Veteran initially contended that his residual scar from his lumbar spine surgery warranted a compensable rating. The AOJ agreed and assigned a 10 percent rating; however, the effective assigned was February 18, 2015. The Veteran’s lumbar spine surgical scar is rated under Diagnostic Code 7804. The Board concludes that this is the appropriate Diagnostic Code for the Veteran’s lumbar spinal scar because the Veteran’s scar is superficial, stable, and covers an area less than 144 square inches. 38 C.F.R. § 4.118. Under Diagnostic Code 7804, there is no rating higher than 10 percent. 38 C.F.R § 4.118 (2002). The Board notes that the Diagnostic Codes for scars were revised on October 23, 2008. However, the 2008 version of 38 C.F.R. § 4.118 does not apply to the Veteran’s claim. The 2008 version applies to claims filed on or after October 23, 2008, or if the Veteran specifically requests that they apply. Here, the Veteran did not request consideration of his claim under the 2008 amendments. Therefore, the Board will not apply the 2008 version of 38 C.F.R. § 4.118. The Board also notes that the Diagnostic Codes for scars were again revised on August 13, 2018. However, the 2018 version of 38 C.F.R. § 4.118 does not apply to the Veteran’s claim. The 2018 version applies to claims filed on or after August 13, 2018, or if its application would result in a more favorable rating for the Veteran. As explained below, applying the 2018 version of Diagnostic Code 7804 does not result in a more favorable outcome for the Veteran. Therefore, in completing this analysis, the Board will apply the 2002 version of 38 C.F.R. § 4.118. The Board concludes that a compensable rating is not in order prior to February 18, 2015 and in excess of 10 percent from that date for the residual lumbar spine surgical scar based on the evidence of record. The Veteran underwent a VA examination in June 2008. The examiner found the low back scar to be stable and linear, with no tenderness, atrophy, scaling, inflammation, ulceration, breakdown, or underlying tissue loss. The scar was superficial with no irregularity. The scar measured 1.5cm x 1 cm. There was no restriction of movement caused by the scar. In his Form 9, received in January 2010, the Veteran reported that he felt numbness and sharp pains in the scar on his back. At a VA examination in July 2011, the Veteran reported itching of the lumbar back scar. However, itching is noncompensable under Diagnostic Code 7804. The findings from this examination were otherwise identical to those from the June 2008 examination: no tenderness, no tissue loss, no inflammation, and no restriction of movement. The scar was found to be “well-healed.” Similarly, at a VA examination in June 2013, the Veteran reported that the surgical scar on his lumbar spine was not painful. The scar was not greater than 39 square centimeters or 6 square inches. At a hearing in April 2014, the Veteran testified that his low back scar used to itch and irritate him. However, he reported that it did not irritate him anymore. He testified that the scar was not painful, and it did not hurt when touched. In February 2015, the Veteran underwent another VA examination for his low back scar. At that time, the Veteran reported that his scar was tender to touch and painful. The scar was not unstable, and there was no loss of covering of the skin. The scar measured 11 cm long. However, several days later, at a VA examination of the Veteran’s lumbar spine, the examiner noted that the low back scar was not painful. With one examination finding the Veteran’s lumbar back scar painful, and another finding it not painful, there is a relative balance of positive and negative evidence. Therefore, the Board concurs in the RO assessment that a compensable evaluation is warranted from the date of this examination, February 18, 2015 pursuant to Diagnostic Code 7804. From February 18, 2015, the Veteran’s medical records reflect that the lumbar spine scar was stable and not painful. A March 2016 outpatient VA treatment note reflects that the low back scar is “well-healed.” A March 2017 VA examination found that the Veteran’s scar was not painful. Based on the evidence, the Board concludes that prior to February 18, 2015, a compensable rating of the surgical lumbar spine scar is not warranted. At no point prior to February 18, 2015 did the Veteran make a credible report of his low back scar as being painful. The evidence shows that the scar has never been unstable, has never been deep (it is superficial), has never covered more than 6 square inches, and has never affected range of motion or caused limited function of the lumbar spine. While the Veteran’s Form 9 from January 2010 indicates that he felt “the same sharp pains” in his back scar as the radiculopathy in his leg, the Board does not find this report credible. First, the Veteran’s scar was not noted to be painful on examination at any time prior to this written report of pain. Second, the Veteran’s scar was not found to be painful at the next VA examination after the report, in July 2011. Third, the Veteran’s outpatient records are silent for any complaint or notation of any scar pain at any point in time. Had the Veteran experienced the same pain in his scar as he experienced in his leg, it stands to reason he would have sought treatment for it or at the least mentioned it, as he had been receiving treatment for the same symptoms in his leg. Fourth, and most significantly, the Veteran essentially denied currently having a painful low back scar. Because the weight of the evidence, which includes the Veteran’s own statements, contradicts the Veteran’s January 2010 claim of a painful scar, the Board finds that report not credible. During his testimony, the Veteran was given ample opportunity to report any pain, and continuously denied its occurrence. In addition, while the Veteran did report that the scar itched at the July 2011 VA examination and in his testimony in April 2014, itching does not warrant a compensable rating under 38 C.F.R. § 4.118 (2002). The Board has considered whether the Veteran is entitled to a compensable rating for itching under any other relevant alternative diagnostic codes. However, the Court of Appeals for Veterans Claims has held that it is error to rate by analogy when a condition is specifically listed in the rating schedule. Copeland v. McDonald, 27 Vet. App. 333, 337-38 (2015). Since scars are specifically listed in the rating schedule under Diagnostic Codes 7801-7805, they may not be rated by analogy. Suttman v. Brown, 5 Vet. App. 127, 134 (1993). While Diagnostic Codes 7801-7804 do not contemplate itching scars, 7805 provides that other scars (i.e., scars that are not painful, unstable, or otherwise ratable under 7801-7804) should be rated on limitation of function of the affected part. 38 C.F.R § 4.118, Diagnostic Code 7805 (2002). There is no evidence of record that the Veteran’s itching caused any limitation of function of the lumbar spine. Therefore, under either Diagnostic Code 7804 or 7805, the Veteran’s itching is noncompensable. Accordingly, the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating prior to February 18, 2015. The benefit-of-the-doubt rule does not apply and entitlement to a compensable rating for surgical scar of the lumbar spine prior to February 18, 2015 is denied. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). For the appellate period from February 18, 2015, the Board finds that an initial rating in excess of 10 percent is not warranted. As noted, under Diagnostic Code 7804, the maximum schedular rating is 10 percent. The next highest rating for any scar is 20 percent under Diagnostic Code 7801, which applies to scars not of the face, head, or neck that are deep or cause limited motion, and exceed 12 square inches (77 sq. cm.) 38 C.F.R. § 4.118, Diagnostic Code 7801 (2002). The Veteran’s scar is superficial, not deep, does not cause limited motion, and does not exceed 12 square inches. Therefore, preponderance of the evidence is against the claim for an initial higher rating for the low back scar in excess of 10 percent. Thus, the claim is denied. As noted above, the Board applied the 2002 version of Diagnostic Code 7804 to the entire appellate period. In this case, the 2018 version would have applied only if it would have resulted in a more favorable outcome for the Veteran, and could not have been applied prior to August 13, 2018. Under 38 C.F.R. § 4.118 (2018), Diagnostic Code 7804 was changed so that scars are now assessed based on the disabling effect(s) of the scar, and the rating depends upon the predominant disability. The evidence of record reflects that there is no disabling effect of the Veteran’s lumbar spine scar. Therefore, under the 2018 rating criteria, the Veteran’s scar would have been noncompensable for the entire appeal period, which is less favorable. 2. Left Leg Condition Associated with Lumbosacral Spine Injury (Radiculopathy) For the entire appeal period, the Veteran is assigned a 10 percent rating for his left lower extremity radiculopathy pursuant to Diagnostic Code 8520. 38 C.F.R. § 4.71(a). A 10 percent rating is assignable for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assignable for moderate incomplete paralysis. A 40 percent rating is assignable for moderately severe incomplete paralysis. A 60 percent rating is assignable for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is assignable for complete paralysis of the sciatic nerve, in which the foot dangles and drops and there is no active movement possible of muscles below the knee, with flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The terms “mild,” “moderate,” and “severe” are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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. The Board concludes that, prior to February 21, 2015, the rating shall remain at 10 percent. From February 21, 2015, the Veteran’s left lower extremity radiculopathy shall be increased to 20 percent. According to the record, an increase in excess of 20 percent is not warranted for any point of this appeal period. A). Prior to February 21, 2015 As noted, this appeal stems from the Veteran’s appeal of a November 2008 rating decision that, in pertinent part, granted service connection for left lower extremity radiculopathy and assigned a 10 percent rating, both effective from January 10, 2008. However, the Board finds that for reasons outlined below, from the time of the filing to February 2015, an initial rating higher than 10 percent is not warranted. A thorough review of the medical records reveals that, prior to February 2015, the Veteran’s radiculopathy was characterized by: intermittent tingling and numbness in his left lower extremity; intermittent pain in his left lower extremity; intermittent decreased sensation to the left lower extremity; and occasional decreased deep tendon reflexes in the left lower extremity. Between January 2008 and July 2008, the outpatient records reflect that the symptoms remained relatively unchanged, and that the Veteran experienced these symptoms on occasion, but not constantly. In July 2008, the Veteran underwent a VA examination of his spine. The Veteran complained of decreased sensation in his left lower extremities, and explained that he was only able to walk 2-3 blocks without pain. However, the examiner found that the muscle strength in the Veteran’s left leg was normal. The Veteran’s gait was normal, and he had reciprocal heel to toe use with a cane. The Veteran was able to walk on his heels and toes without difficulty. There was no unusual shoe wear pattern. The Veteran had bilateral lower extremity pain with forward bending. The straight leg raise test was negative bilaterally, but the Veteran complained of “soreness” in both lower extremities. The Veteran’s outpatient records from August 2008 specifically note that his radiculopathy was “mild.” The treatment providers found that he had no significant change in status. Then, in September and October 2008, records obtained from the Social Security Administration (SSA) show that the Veteran was occasionally able to climb stairs, kneel, and crouch. He still reported being able to walk 2-3 blocks without pain. During the SSA examination, the Veteran was able to get on and off the table without difficulty. He was not found to have had any limitation of range of motion in his hips, knees, or ankles. Throughout 2009 and 2010, the Veteran continued to receive outpatient treatment. The records note intermittent numbness, pins and needles, and pain. The Veteran’s outpatient records from 2011 show that the numbness in his left lower extremity seldom happened, and was not bothersome based on the Veteran’s self-reports. However, he continued to have pain in his left leg. At a VA examination in July 2011, the Veteran reported that his symptoms were the same: his left leg would get numb and tingle; he could walk about 2 blocks, and stand for about 10 minutes. The examiner noted that the Veteran had independent mobility with the aid of a cane, and could perform his activities of daily living independently, including bathing and dressing. The Veteran had normal strength in his legs, and could rise to and walk on heels and toes without difficulty or pain. Sensation was grossly intact bilaterally. The straight leg raise test was negative bilaterally, though the Veteran complained of tightness in his bilateral lower extremities. Throughout 2012 and 2013, the outpatient records reflect that the Veteran’s left lower extremity radiculopathy remained mostly unchanged. He occasionally had numbness and tingling. The Veteran had normal strength in his left leg. The Veteran’s pain, when rated, was a 5 out of 10. The Veteran’s daughters submitted statements regarding the effect of the Veteran’s radiculopathy in January 2013. Both stated that his mobility had declined, and he was using his cane more. Both of the Veteran’s daughters mentioned that the Veteran needed to stop for breaks when walking short distances, and that he had problems standing. The Veteran also submitted a statement in January 2013. In it, he described his history of back surgeries and the decline in his mobility. In June 2013, the Veteran underwent another VA examination. He reported having pain in his left leg with walking 3 blocks. The Veteran was able to do housework with breaks, and was independent in all his activities of daily living. The examiner found that the Veteran had normal muscle strength and sensation in his left lower extremity. He also had mild intermittent pain, but the pain was not constant. He had no numbness, paresthesias, or dysesthesias at the time. The straight leg raise test was negative bilaterally. At a hearing in April 2014, the Veteran testified that he could put weight on his left leg, but that he walked off-balance. He said that he could walk 2-3 blocks before his left leg would get numb or start tingling. The Veteran believed that his left lower extremity was in about the same condition as it was at the time of the July 2011 VA examination. The rest of the records from 2014 indicate that the Veteran’s radiculopathy remained about the same. For example, in May 2014, he reported that his numbness and pain was about the same. In December 2014, however, he suffered from leg pain, but no numbness or tingling. In addition, he reported no leg weakness around that time. In February 2015, the Veteran underwent two VA examinations. The first one, which was of peripheral nerves, found that the Veteran’s sensation, muscle strength, and reflexes were normal. The examiner noted that the Veteran’s gait was abnormal, but also noted that the Veteran has walked with a cane since his back surgery in 2008 and that he feels unsteady when he walks. The examination concluded that the Veteran has lumbar radiculopathy, which causes intermittent pain. The second VA examination in February 2015 was of the low back. The Veteran reported being unable to walk over 2 blocks, and rated his pain as ranging from 4 out of 10 to 8 out of 10, on average. The Veteran’s left knee was found to be hypoactive, and his straight leg raising test was positive for pain on the left side. The examiner noted that the intermittent pain and numbness in the Veteran’s left lower extremity was severe, while the paresthesias and/or dysesthesias were moderate. Overall, the examiner concluded that the radiculopathy of the left lower extremity was “moderate.” The question is whether the Veteran’s left lower extremity radiculopathy, or more accurately, paralysis of the sciatic nerve, is best described as mild, moderate, or moderately severe. As noted, 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. The medical evidence demonstrates that, for the time frame, the Veteran’s radiculopathy was sensory, as it did not affect his muscle strength or motor functioning. His gait was overall normal, and he was able to crouch, stand, bend, kneel, and walk, albeit for 2-3 blocks at a time. Moreover, given that the sensory symptoms, such as pain, numbness, and tingling, were intermittent, and there were times when the Veteran did not even experience some of the symptoms, or he did not find them bothersome, this condition is most appropriately rated as mild. Therefore, prior to February 21, 2015, the preponderance of the evidence is against a rating in excess of 10 percent for left lower extremity radiculopathy. The benefit-of-the-doubt rule does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102; 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In addition, at no point in time does the evidence support an increase above 20 percent, as there is no evidence of moderately severe paralysis of the sciatic nerve. The claim for increased rating of the left leg condition is denied prior to February 21, 2015. B). From February 21, 2015 to September 7, 2016 As noted, the earliest date that medical records document the Veteran experiencing a non-sensory radiculopathy symptom was the VA examination dated February 21, 2015. At that examination, the Veteran was found to have decreased reflexes in his left knee. The VA examiner found that, overall, the Veteran’s left lower extremity radiculopathy was “moderate.” After that date, the records reflect not only that the Veteran’s sensory subjective symptoms remained intermittent, but also that the Veteran’s objective symptoms occurred more frequently. For example, in April 2015, the Veteran underwent an electromyelogram test. The results showed abnormalities in the tibialis anterior and tibialis posterior muscles in his lower left leg. In July 2015, an outpatient medical record reflects that the Veteran’s gait was antalgic and he had limited left hip external and internal rotation. He was also experiencing sharp pain, numbness, and tingling in his left leg. Records from September and November 2015 show the Veteran’s gait was abnormal and unsteady. However, in November 2015, the Veteran denied experiencing any numbness or tingling in his left leg. In January 2016, his gait was observed to be normal again. Then, in March 2016, an outpatient medical record reflects that the Veteran’s left hip flexion, left knee flexion and extension, and left ankle dorsiflexion and plantar flexion were somewhat decreased. He was also experiencing pain in his left lower extremity. In June 2016, the Veteran received a steroid injection for pain in his left lower extremity. At a September 2016 outpatient neurology visit, the Veteran had a normal gait. His muscle strength was normal, and his reflexes were within normal limits. This neurology note was silent of any present objective problems related to the left lower extremity. The above evidence establishes that between February 2015 and September 2016, the Veteran’s left lower extremity radiculopathy was manifested by both sensory symptoms as well as non-sensory symptoms. For example, the Veteran experienced decreased reflexes and muscle strength, and had an unsteady gait, in addition to his intermittent pain, numbness, and tingling. The Board therefore concludes that the Veteran’s left lower extremity radiculopathy more nearly approximates moderate incomplete paralysis from February 21, 2015, the earliest date showing moderate incomplete paralysis of the left leg, to September 7, 2016, the date showing that the Veteran’s non-sensory symptoms had resolved. The preponderance of the evidence is in favor of a rating in excess of 10 percent for left lower extremity radiculopathy for this time period, and the claim is granted for an increase to 20 percent from February 21, 2015 to September 7, 2016. However, at no point in time does the evidence support an increase above 20 percent, as there is no evidence of moderately severe paralysis of the sciatic nerve. C). From September 8, 2016 For approximately one year after the September 7, 2016 visit, the medical records indicate that the Veteran experienced sensory symptoms of radiculopathy, but none of the objective symptoms he experienced after February 2015. Moreover, the sensory symptoms continued to be intermittent. For example, the Veteran denied any leg pain in December 2016. At a VA examination in March 2017, the overall severity of the Veteran’s radiculopathy was found to be “mild.” The Veteran’s muscle strength in his left lower extremity was within normal limits, including his left hip flexion, left knee extension, left ankle plantar extension, and left ankle dorsiflexion. The reflexes of the left knee and ankle were also within normal limits. The Veteran did have decreased sensation in the left lower leg and foot. The intermittent pain, numbness, and paresthesias and/or dysesthesias in the left lower extremity were all moderate. Throughout the rest of 2017, the Veteran reported intermittent pain in his left leg. However, his reflexes and muscle strength were always normal. In August 2017, the Veteran denied any numbness, weakness, or tingling. In September 2017, the Veteran reported that he fell the month before, but noted the pain in his leg had improved. In March 2018, the Veteran reported that that his symptoms were getting “worse,” but did not explain how. For instance, he did not say if he was experiencing muscle weakness, and there was no physical examination of his range of motion or reflexes, which would have indicated the presence of objective non-sensory symptoms. The Veteran denied any recent falls. He did explain his left knee “gave out,” but the Board notes that the Veteran has osteoarthritis in his left knee, for which he sees a rheumatologist. Based on the evidence for the time frame after September 2016, the Board finds that the evidence for the claim for increased rating is at least in equipoise. Therefore, the Board resolves all doubt in the Veteran’s favor and grants the claim for an increased rating of 20 percent, but not higher. On the one hand, at the March 2017 VA examination, the Veteran’s left lower extremity radiculopathy was found to be “mild.” Moreover, the Veteran did not experience any non-sensory symptoms, such as muscle weakness or decreased reflexes. On the other hand, the sensory symptoms the Veteran experienced were all found to be of “moderate” severity. Additionally, the Veteran reported that his symptoms were getting “worse,” which he is competent to report and the Board finds credible. The Veteran also experienced a fall in approximately August 2017. In weighing all the evidence, the Board finds that there is a balance of positive and negative evidence. Therefore, the reasonable doubt on this question is resolved in the Veteran’s favor, and the higher rating shall be assigned. 38 U.S.C. §§ 5107; 38 C.F.R. §§ 3.102, 4.3. Therefore, the Veteran’s left lower extremity radiculopathy shall be rated at 20 percent after September 2016. (Continued on the next page)   However, at no point in time does the evidence support an increase in excess of 20 percent, as there is no evidence of moderately severe paralysis of the sciatic nerve. Therefore, the preponderance of the evidence is against the claim for increased rating in excess of 20 percent throughout the rating period on appeal. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Smith, Associate Counsel