Citation Nr: 20049903 Decision Date: 07/27/20 Archive Date: 07/27/20 DOCKET NO. 11-15 241A DATE: July 27, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for a low back strain for the period prior to June 8, 2017 and the period beginning on August 1, 2017 is denied. For the period prior to October 2, 2019, entitlement to an initial separate rating not to exceed 10 percent for associated lumbar radiculopathy, right lower extremity (RLE), effective April 11, 2018 is granted. For the period prior to October 2, 2019, entitlement to an initial separate rating not to exceed 10 percent for associated lumbar radiculopathy, LLE, effective April 11, 2018 is granted. FINDINGS OF FACT Throughout the period on appeal, the weight of the evidence is against a finding that the Veteran’s low back strain has manifested with range of motion (ROM) on forward flexion of 0 to 60 degrees or less, or with guarding or muscle spasms severe enough to cause abnormal curvature or abnormal gait. The evidence is at least in equipoise as to whether the Veteran’s lumbosacral strain manifested with associated radiculopathy of the LEs as of April 11, 2018. CONCLUSIONS OF LAW The criteria for entitlement to an initial rating in excess of 10 percent for a lumbosacral strain for the period prior to June 8, 2017 and the period beginning on August 1, 2017 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, General Formula for Diseases and Injuries of the Spine (General Formula), Diagnostic Code (DC) 5237. The criteria for entitlement to an initial separate rating not to exceed 10 percent for associated lumbar radiculopathy, RLE, have been met, effective April 11, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.71a, General Formula, Note (1), 4.124a, DC 8520. The criteria for entitlement to an initial separate rating not to exceed 10 percent for associated lumbar radiculopathy, LLE, have been met, effective April 11, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.400, 4.1, 4.3, 4.71a, General Formula, Note (1), 4.124a, DC 8520. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran perfected this appeal from a December 2010 rating decision that granted service connection for the low back disability and assigned an initial 0 percent (noncompensable) rating, effective in July 2010. Upon prior reviews the Board twice remanded the case for additional development. See 01/06/2016 Remand BVA; 01/25/2019 BVA Decision. As discussed in detail below, the Board finds that the Agency of Original Jurisdiction (AOJ) substantially complied with the 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). General Requirements, Increased Ratings Disability ratings are intended to compensate for impairment in earning capacity due to a service-connected disorder. 38 U.S.C. § 1155. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, see 38 C.F.R. §§ 4.1, 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran’s favor. 38 C.F.R. § 4.3. Evaluations are based on functional impairments which impact a veteran’s ability to pursue gainful employment. 38 C.F.R. § 4.10. If there is a question as to which disability rating to apply to the Veteran’s disability, the higher rating will be assigned if the disability picture more nearly approximates the criteria for that rating, otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; see Peyton v. Derwinski, 1 Vet. App. 282 (1991). In general, the degree of impairment resulting from a disability is a factual determination and generally 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). Nonetheless, separate, or staged, ratings can be assigned for separate periods during the initial rating period on appeal based on the facts found. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a higher initial rating in excess of 10 percent for a low back strain for the period prior to June 8, 2017 and the period beginning on August 1, 2017 is denied. Applicable Regulatory Requirements Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination and endurance. The functional loss may be due to absence of part or all of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or may be due to pain, supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as disabled. See DeLuca v. Brown, 8 Vet. App. 202, 205-08 (1995); 38 C.F.R. §§ 4.40, 4.45. In DeLuca, the Court of Appeals for Veterans Claims stated that increased symptomatology due to weakness, fatigue, etc., where possible, should be, where possible stated by examiners in terms of additional loss of range of motion. DeLuca, 8 Vet. App. at 205. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. As noted earlier, service connection was granted in December 2010, and the AOJ rated the Veteran’s low back disability under the designation of lumbosacral strain. See 12/17/2010 Rating Decision – Codesheet. Current Rating Criteria All spine disabilities, regardless of the diagnostic code assigned, are evaluated under the General Formula. 38 C.F.R. § 4.71a. For the thoracolumbar spine, normal ROM on forward flexion is 0 to 90 degrees; backward extension, 0 to 30 degrees; and, lateral flexion and lateral rotation, 0 to 30 degrees. See 38 C.F.R. § 4.71a, Plate V. Regarding the lumbar spine, with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 40 percent rating applies if forward flexion of the thoracolumbar spine is 0 to 30 degrees or less. A 20 percent rating applies if forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, if the combined ROM (CROM) of the thoracolumbar spine is not greater than 120 degrees; or if the disability is manifested by 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, General Formula. Associated objective neurological abnormalities are rated separately under the appropriate diagnostic code. Id., at Note (1). Discussion In an August 2013 rating decision, the AOJ granted an increased initial rating from 0 to 10 percent, effective July 15, 2013. In a September 2018 rating decision, the AOJ granted an earlier effective date for the 10 percent rating of July 30, 2010, the date VA received the low back claim. See 12/17/2010, 09/19/2018 Rating Decisions – Narratives. The July 2010 examination was a general medical examination that addressed all of the Veteran’s claimed disabilities at the time of his discharge from active service. The report (07/02/2010 VA Examination, P. 12, 28, 31-32, 38) reflects the Veteran’s complaints of intermittent low back pain (LBP), for which he took Ibuprofen for relief. Objectively, lumbar spine range of motion (ROM) on examination was normal in all planes, without evidence of pain. Exam Report, P. 28-29. Repetitive-use testing did not reveal any additional loss of ROM. The examiner diagnosed a lumbosacral strain. Exam Report, P. 38. The Veteran appealed the initial noncompensable rating, and he asserted in his NOD that he did not have a low back examination in July 2010. See 01/26/2011 VA 21-4138. Concerning that assertion, the Veteran was clearly incorrect, for his low back was in fact part of the July 2010 examination as set forth above. The AOJ arranged another examination as part of the appeal process. At his January 2011 examination (01/25/2011 VA Examination) the Veteran complained of an intermittent aching pain, which was aggravated by prolonged driving, sitting in one position for too long, heavy lifting, repetitive lifting, or stooping. He had been prescribed medications for relief. The Veteran reported weekly flare-ups of LBP that lasted for 2 hours. During those flare-ups he had increased pain, decreased mobility, and an increase in functional impairment. He denied any history of decreased motion, limitations on walking, and use of any assistive devices. Exam Report, P. 2-3. Examination of ROM revealed normal ROM in all planes, with evidence of pain noted but with no additional limitation shown on 3 repetitions. Regarding work impact, due to low back symptoms repetitive bending and stooping was to be avoided. Exam Report, P. 9. The x-rays the examiner ordered did not reveal any abnormality. See 05/31/2011 Medical Treatment-Government Facility, P. 32. The Board notes the examiner’s finding of pain on motion. Since neither a specific plane or at what point in the motion that pain started was mentioned, the Board infers that there was pain on motion in all planes, and that it was throughout the motion. Where there is painful motion, even if ROM is full, the minimum compensable rating is approximated. See Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see also 38 C.F.R. § 4.59. The September 2018 rating decision addressed this finding, as it assigned an effective date in July 2010 for the 10 percent rating, compensating the Veteran for his painful motion. The Board finds that a higher rating was not met or approximated, as the examination report reflects that there was no evidence of guarding or muscle spasm. Moreover, while there was pain on repetitive-use testing, there was no additional loss of ROM. Hence, there is no factual basis for a higher rating on that basis. See 38 C.F.R. §§ 4.40, 4.45. VA outpatient records dated in October 2012 note the Veteran’s complaints of low back pain times one week, which was relieved by bending forward. On examination he could touch his toes, but he could not extend backwards. There was increased pain on right lateral flexion but left lateral flexion and lateral rotation were performed without any problems. Since the Veteran could touch his toes, forward flexion was normal. See 38 C.F.R. § 4.71a, Plate V. The absence of backward extension still leaves CROM of 210 degrees. Hence, a higher, 20 percent rating, was not met or approximated, since CROM was greater than 120 degrees. 38 C.F.R. § 4.71a, General Formula. The entry notes that the examiner assessed the Veteran’s increased pain as due to a muscle spasm, but the entry does not indicate that the spasm caused abnormal spinal curvature or that it altered the Veteran’s gait. See 10/25/2012 CAPRI, 2nd Entry. Hence, the Board finds that a higher rating is not indicated on that basis. A February 2013 examination report (02/05/2013 VA Examination, P. 49-62) reflects that the Veteran complained of constant pain with knots at his left lower back, and that a regimen of physical therapy had not resulted in any improvement. He reported further that there were days when he could not straighten up, and that heat and massage provided some relief. He did not report any flare-ups, as he stated that nothing makes it worse. Exam Report, P. 51. ROM in all planes was normal, without evidence of pain on motion in any plane. Exam Report, P. 61-53. The examiner noted that there was no evidence of localized tenderness or pain on palpation, or of guarding or muscle spasm. Further, repetitive-use testing did not reveal any loss of ROM. The examiner did not indicate that the Veteran had any functional loss due to his low back disability. Exam Report, P. 54. The objective findings on clinical examination, as set forth above, fail to show that a rating in excess of 10 percent was met or approximated. 38 C.F.R. §§ 4.40, 4.45, 4.71a, General Formula. At the Board hearing the Veteran testified that since the February 2013 examination he had experienced more episodes of increased pain, his pain was constant, he had difficulty standing up, and that he had started having pain just sitting. See 01/06/2015 Hearing Testimony. The Board remanded for a current examination. See 01/06/2016 Remand BVA. The examination report (02/25/2016 VA Examination, P. 13-24) reflects the Veteran’s reported current symptoms of LBP on bending and when carrying more than 20 pounds. He did not report any flare-ups or functional loss. Exam Report, P. 15. ROM was normal in all planes with pain noted on forward flexion, which the examiner noted did not cause any functional loss. The examiner noted objective evidence of mild to moderate localized tenderness or pain on palpation at the L4-5 area, and there also was pain on weight bearing. See Correia v. McDonald, 28 Vet. App. 158 (2016). The objective findings on clinical examination show that the Veteran’s low back did not more nearly approximate a rating in excess of 10 percent, as his ROM was normal in all planes. Further, the examiner noted that while there was evidence of guarding or muscle spasm, it did not cause abnormal curvature or an altered gait. Exam Report, P. 18. Repetitive-use testing did not reveal any additional loss of ROM, so there is no factual basis for a higher rating on that basis. See 38 C.F.R. §§ 4.40, 4.45. The examiner opined that there were not any additional factors that contributed to the low back disability, and he confirmed the diagnosis of record of lumbosacral strain. The examiner opined that the Veteran’s ability to work would be impacted by activity that entailed repetitive bending and carrying weights of more than 20 pounds. Exam Report, P. 24. The examiner specifically noted that the Veteran did not have any functional loss due to flare-ups, as the Veteran did not report any, or due to repeat use over time. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). The 2016 Board remand directed that an examiner review the January 2011 examination report and opine on a Sharp assessment based on the flare-ups that the Veteran reported at that examination. The AOJ included that remand directive in the examination request. The examiner noted in the examination report that he could not provide the assessment because the Veteran did not report or exhibit any flare-ups during the 2016 examination. 02/25/2016 VA Examination, P. 24. Upon receipt of the examination report the AOJ returned it to obtain the Sharp assessment as the Board directed. See 05/02/2016 Deferred Rating. A different examiner conducted a comprehensive review of the claims file but did not provide the requested Sharp assessment. See 12/13/2016 VA Examination, 2nd Entry. In June 2017 the Veteran underwent a procedure that implanted a lumbar spinal cord stimulator to address his pain. Pursuant to his claim, see 07/18/2018 VA 21-526EZ, the AOJ granted a temporary total rating based on the need for convalescence, effective June 8, 2017; the 10 percent rating resumed as of September 1, 2017. See 09/28/2017 Rating Decision – Narrative. The AOJ arranged another examination after the expiration of the total rating. The February 2018 examination report (02/09/2018 C&P Exam, 7th Entry) reflects the Veteran’s complaints of a constant deep ache that ran from his central lower back to his left lower back. He reported increased pain with prolonged standing, walking, and bending; and, at times when bending forward his back “catches” and “locks up,” and it was hard to straighten up. (Quotes in original). He reported further that he experienced flare-ups 1 to 2 times a week, during which he could not do too much. He described his functional loss as decreased ability to stand or walk for any prolonged period. ROM on forward flexion was to 80 degrees; backward extension 30 degrees; and lateral flexion and rotation to 25 degrees bilaterally, all without evidence of pain. The examiner noted that the decreased ROM on forward flexion, lateral flexion, and lateral rotation did not contribute to functional loss. There was no evidence of localized tenderness or pain on palpation, guarding or muscle spasm, or pain on weightbearing. The examiner noted that the Veteran’s functional loss was disturbance of locomotion that interfered with standing. Exam Report, P. 5. The examiner noted that the motion tests required by Correia were not pertinent to the Veteran’s spine examination. Exam Report, P. 9. The examiner confirmed the diagnosis of record. The x-ray examination report noted that there was no arthritis shown. As with the prior examinations, the objective findings did not show the low back to more nearly approximate a rating in excess of 10 percent. 38 C.F.R. § 4.71a, General Formula. Further, the examiner noted that repetitive-use testing did not reveal any additional loss of ROM. The Board notes, however, that the examiner did not provide a Sharp assessment or provide an explanation why it was not done. The January 2019 Board remand noted the absence of the Sharp assessment in the prior examinations and remanded for another current examination with instructions that the examiner provide the assessment and, if not, to provide a full explanation why it cannot be done. See 01/25/2019 BVA Decision, P. 148. At the October 2019 examination (10/02/2019 C&P Exam, 1st Entry) the Veteran reported that his low back pain had worsened over the prior 18 months and had become constant. He also complained of occasional spasms and stiffness, and he assessed his pain on average as 3/10 in severity. The Veteran did not report any flare-ups. Regarding functional loss, he reported that he avoided heavy lifting. ROM was normal in all planes with pain noted on forward flexion and backward extension. The examiner noted that it did not contribute to functional loss. There was no evidence of pain on weightbearing. The examiner noted positive localized tenderness or pain on palpation of mild severity at the paraspinal or paraspinous processes. There was no spasm, but there was muscle guarding which the examiner noted did not cause abnormal spinal curvature or an abnormal gait. Exam Report, P. 7. Repetitive-use testing did not reveal any additional loss of ROM. The examination results did not show the Veteran’s low back to warrant a rating in excess of 10 percent for the orthopedic symptoms. 38 C.F.R. §§ 4.40, 4.45, 4.71a, General Formula. Further, the examiner opined that pain and weakness, etc., did not significantly limit the Veteran’s functional ability with repeat use over time, or due to flare-ups. Exam Report, P. 7. In compliance with the Board remand, the examiner noted that he was unable to state the degree of any additional loss of ROM with repeat use over time, as he had no basis on which to base an assessment. Exam Report, P. 6. Nonetheless, the Board finds that this was not a failure to comply with the Board remand or Sharp, as the examiner had noted that the Veteran’s pain and weakness, etc., did not significantly limit his functional ability with repeat use over time.. Hence, the Board finds that there was substantial compliance with the January 2019 remand directives. See Stegall, 11 Vet. App. at 271. Further, the examiner noted that testing of the spine on passive ROM was not done because it was not feasible to do it in a safe and reasonable manner, and that there was no evidence of pain when the Veteran’s spine was in a non-weight bearing posture. Exam Report, P. 17. Hence, the Board also finds compliance with the requirements of Correia, 28 Vet. App. 158. The Board notes that, based on the x-rays ordered, the examiner added degenerative arthritis to the Veteran’s diagnosed disability. This does not affect the analysis of his claim or the Board’s findings, as arthritis is also rated on the basis of limitation of motion of the joint involved. 38 C.F.R. § 4.71a., DC 5003. Based on the evidence set forth and discussed above, the Board finds that the preponderance of the evidence shows that the orthopedic symptoms of the Veteran’s lumbosacral strain has manifested at the 10 percent rate throughout the rating period on appeal, and that there is no evidence to support a staged rating for any part of the period. 38 C.F.R. §§ 4.1, 4.40, 4.45, 4.59, 4.71a, DC 5237. The Board acknowledges the Veteran’s complaints of pain over the years and the examination findings to that effect. Nonetheless, the General Formula states that pain is an inherent part of spine disabilities. Since the preponderance of the evidence is against the claim, there is no reasonable doubt to resolve. 2. Entitlement to an initial separate rating not to exceed 10 percent for associated lumbar radiculopathy, RLE, is granted, effective August 10, 2016. Rating Criteria The General Formula requires that associated objective neurologic abnormality be rated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Formula Note (1). An April 2020 rating decision granted a separate rating of 10 percent for each LE for associated lumbar radiculopathy, effective October 2, 2019, the date of the 2019 examination. See 04/30/2020 Rating Decision – Codesheet. The AOJ rated the Veteran’s radiculopathy as incomplete paralysis of the sciatic nerve. Id. Peripheral neuropathy is rated as paralysis and incomplete paralysis of peripheral nerve pathology. See 38 C.F.R. § 4.124a. Under these criteria, the term “incomplete paralysis” 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. Id., Diseases of the Peripheral Nerves. Under these criteria, an 80 percent rating is assigned for complete paralysis of the sciatic nerve, demonstrated by foot drop, no active movement possible of the muscles below the knee, and knee flexion that is weakened or (very rarely) lost. Lower disability ratings are provided for incomplete paralysis, defined by the Rating Schedule as “a degree of lost or impaired function substantially less than the type picture for complete paralysis given.” A 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A 40 percent rating is assigned for moderately severe incomplete paralysis; and, a 20 percent rating is assigned for moderate incomplete paralysis. 38 C.F.R. § 4.124a, DC 8520. The words “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. It should also be noted that use of such terminology by VA examiners or other physicians, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran is fully competent to report the symptoms of his disability that he has experienced. 38 C.F.R. § 3.159(a)(2). Discussion The July 2010 examination report reflects that the neurological part of the examination revealed negative straight leg raising (SLR) bilaterally; deep tendon reflexes (DTRs) normal at 2+; and normal plantar flexion. Sensation to vibration was decreased at the RLEs (knee and ankle) but otherwise normal; and, motor strength was normal 5/5 throughout the LEs. 07/02/2010 VA Examination, P. 28-29, 30-32. The Board notes the decreased vibratory sense of the RLE, but the examiner did not include radiculopathy in the diagnosis. The Board notes further that the Veteran did not complain of radiating low back pain. At the January 2011 examination the Veteran complained that his hips went numb during his weekly flare-ups. Neurological examination revealed normal DTRs, muscle strength and tone, and normal sensation and position sense. 01/25/2011 VA Examination, P. 6-7. Hence, the Board finds no factual basis for a separate rating for lumbar radiculopathy as of the January 2011 examination. The Veteran’s VA outpatient records dated in 2012 note that his complaints of LBP did not include complaints of radiating pain, and examination revealed negative SLR and intact sensation. See 05/22/2012 CAPRI, 2nd Entry, P. 5, 7. The February 2013 examination report reflects that the Veteran’s complaints of increased orthopedic symptoms notwithstanding, he did not report LE complaints, and he denied any bowel or bladder involvement. The neurological part of the examination was normal; the examiner noted that there was no evidence of radiculopathy or intervertebral disc syndrome (IVDS). 02/05/2013 VA Examination, P. 18-19, 19-20. The neurological findings were essentially the same at the February 2016 examination. 02/25/2016 VA Examination, P. 19-21. At the February 2018 examination the Veteran denied any pain radiating to his LEs or bowel or bladder involvement. Neurological examination revealed normal strength and tone, normal sensation, and negative SLR. DTRs were 2+ at the knees but 1+ at the ankles. Notwithstanding the diminished reflexes, the examiner opined that there was no lumbar radiculopathy. 02/09/2018 C&P Exam, 7th Entry, P. 7. The AOJ granted the separate rating for LE radiculopathy based on the findings at the October 2019 examination. The examination report reflects that the Veteran complained of pain that radiated with numbness and tingling into his thighs. The objective findings on clinical examination were normal muscle strength and DTRs, and negative SLR bilaterally. Sensation was normal at the upper anterior thighs, the left lower leg and ankle, and feet and toes, but diminished at the thighs/knees and right lower leg/ankle. 10/2/2019 C&P Exam, 1st Entry, P. 9. Generally, the effective date for compensation is the date a claimant’s claim is received or when entitlement arose, whichever is the latest. 38 C.F.R. § 3.400. As noted earlier, the AOJ assigned an effective date of October 2, 2019 for the separate rating, which was the date of the examination that revealed the findings. The Veteran’s VA outpatient records, however, note his complaints of low back pain with RLE radiculopathy in August 2016. The entry requested evaluation and treatment. See 08/07/2018 CAPRI, P. 327. The Board finds no subsequent entry that indicates an actual assessment and diagnostic impression of lumbar radiculopathy by a clinician. There are findings of cervical radiculopathy noted. In April 2018, however, there is an entry that notes that the Veteran would continue with pain management for lumbar radiculopathy, and it is signed by an osteopath. Id., at P. 30, 32. Hence, resolving any doubt in the Veteran’s favor, the Board finds that a separate rating for associated radiculopathy of mild severity of the LEs was more nearly approximated on April 11, 2018. 38 C.F.R. §§ 3.400, 4.3. The Board finds that the weight of the evidence is against a finding that the LEs have manifested with radiculopathy of moderate severity at any time during the rating period. The examination reports have consistently noted normal muscle strength and tone, predominantly normal DTRs, and negative SLR. Hence, when compared with complete paralysis of the sciatic nerve, the Board finds that moderate severity has not been met or approximated. 38 C.F.R. § 4.124a, DC 8520. The Board also notes that the examination reports, to include the 2019 examination report, note that the Veteran does not have IVDS. Hence, a rating on the basis of incapacitating episodes is not indicated. See 38 C.F.R. § 4.71a, General Formula, DC 5243. Thus, the Board finds that 10 percent reasonably compensates the Veteran for his earning impairment to the extent practical due to his radiculopathy. 38 C.F.R. §§ 4.1, 4.124a, DC 8520. 3. Entitlement to an initial separate rating not to exceed 10 percent for associated lumbar radiculopathy, LLE, is granted, effective April 11, 2018. The discussion in 2 above is incorporated here by reference. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. T. Snyder The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.