Citation Nr: 20052918 Decision Date: 08/10/20 Archive Date: 08/10/20 DOCKET NO. 15-07 724 DATE: August 10, 2020 ORDER Entitlement to an initial disability rating in excess of 40 percent for the service-connected lumbar disc disease is denied. Entitlement to an initial disability rating in excess of 10 percent prior to July 18, 2019 for the service-connected radiculopathy of the left lower extremity is denied. Entitlement to a disability rating in excess of 20 percent since July 18, 2019 for the service-connected radiculopathy of the left lower extremity is denied. Entitlement to an initial disability rating in excess of 10 percent prior to July 18, 2019 for the service-connected radiculopathy of the right lower extremity is denied. Entitlement to a disability rating in excess of 20 percent since July 18, 2019 for the service-connected radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. During the entire period on appeal, the Veteran’s service-connected lumbar disc disease was manifested by no worse than limitation of flexion to 30 degrees or less; ankylosis or incapacitating having a total duration of at least six weeks during the past 12 months have not been demonstrated. 2. Prior to July 18, 2019, the Veteran’s right and left lower extremity radiculopathy has been manifested by no more than mild incomplete paralysis. 3. Since July 18, 2019, the Veteran’s right and left lower extremity radiculopathy has been manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 40 percent for the service-connected lumbar disc disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5242. 2. The criteria for an initial disability rating in excess of 10 percent prior to July 18, 2019 and in excess of 20 percent thereafter for the service-connected radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8720. 3. The criteria for an initial disability rating in excess of 10 percent prior to July 18, 2019 and in excess of 20 percent thereafter for the service-connected radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8720. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1991 to November 1994. These matters come before the Board of Veterans’ Appeals (Board) on appeal from January 2012 and December 2014 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). The January 2012 rating decision granted service connection for the Veteran’s lumbar spine disability and assigned a 10 percent disability rating, effective from June 16, 2011. The December 2014 rating decision granted service connection for bilateral lower extremity radiculopathy and assigned a 10 percent disability rating for each lower extremity, effective from June 16, 2011. Thereafter, per an April 2020 rating decision, the RO assigned an initial 40 percent disability rating for the service-connected lumbar disc disease, effective from June 16, 2011 and an increased 20 percent disability rating for radiculopathy of each lower extremity, effective from July 18, 2019. As the increase in ratings does not constitute a full grant of the benefits sought, the issues of entitlement to an increased rating for the service-connected lumbar disc disease and for the radiculopathy of each lower extremity remain on appeal. AB v. Brown, 6 Vet. App. 35, 39 (1993). These matters were previously remanded by the Board in July 2018 and April 2019. At the time of the prior remands, the issue of entitlement to service connection for a cervical spine disability was also remanded. However, entitlement to service connection for a cervical spine disability was granted by the April 2020 rating decision, and therefore, is no longer before the Board. See generally Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (because appellant’s first appeal concerned rejection of logically up-stream element of service connection, appeal could not concern logically down-stream element of disability rating). Last, in this case, the Veteran does not assert unemployability as a result of his service-connected disabilities, and the record contains evidence that the Veteran is currently employed. As such, the issue of entitlement to a total disability rating based on individual unemployability (TDIU) is not raised. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history; reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found—a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (1995); 38 C.F.R. §§ 4.40, 4.45, 4.59. Although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to an initial disability rating in excess of 40 percent for the service-connected lumbar disc disease is denied. Service connection for lumbar disc disease was established in a January 2012 rating decision, which is the subject of this appeal, and the RO assigned a 10 percent evaluation, effective from June 16, 2011. The Veteran disagreed with the initial disability evaluation for his lumbar disc disease and per the April 2020 rating decision, an initial 40 percent rating was assigned for the lumbar disc disease under Diagnostic Code 5242 pursuant to the General Rating Formula for Diseases and Injuries of the Spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. In rating the lumbar spine disability, either of two sets of criteria may be applied. The disc disease may be rated based on the cumulative amount of time in which the condition was incapacitating over the prior 12 months or based upon the degree of limitation of motion. 38 C.F.R. § 4.71a. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, intervertebral disc syndrome with incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months is assigned a 40 percent rating. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a. An “incapacitating episode” is defined as a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. See 38 C.F.R. § 4.71a, Note (1). While VA examinations of record do note intervertebral disc syndrome of the thoracolumbar spine, the Veteran has not reported being incapacitated and there is no record of any order or directive from a doctor requiring bed rest prior to the November 2019 VA examination. In this regard, the November 2019 VA examiner did report the Veteran’s intervertebral disc syndrome of the thoracolumbar spine with incapacitating episodes. However, the VA examiner noted that the affirmative response as to the question of whether the Veteran experiences incapacitating episodes was based on the medical history provided by the Veteran, without documentation, and described as occasional neck and back pain flare-up, requiring strict bed rest for days with the last episode occurring last week. The examiner further reported that there have been episodes of bed rest over the past 12 months having a total duration of less than one week. Post-service treatment records reflect no periods of bed rest or total incapacitation. As there is no evidence of record showing the Veteran having incapacitating episodes with a total duration of at least six weeks during the past 12 months such that the criteria for a 60 percent rating would be warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, evaluation under these criteria is therefore not appropriate. Instead, evaluation under the General Rating Formula for Diseases and Injuries of the Spine is proper. Under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula), the disability is evaluated 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, and they “are meant to encompass and take into account the presence of pain, stiffness, or aching, which are generally present when there is a disability of the spine.” 68 Fed. Reg. 51,454 (Aug. 27, 2003). Any associated objective neurologic abnormalities including, but not limited to, bowel or bladder impairment, are to be rated separately from orthopedic manifestations under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). The General Rating Formula provides a 40 percent evaluation requires either that forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or that favorable ankylosis of the entire thoracolumbar spine is shown. Unfavorable ankylosis of the thoracolumbar spine warrants a 50 percent evaluation, and unfavorable ankylosis of the entire spine is rated 100 percent disabling. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, normal left and right lateral rotation is zero to 30 degrees, and normal combined range of motion of the thoracolumbar spine is 240 degrees. 38 C.F.R. § 4.71a, Note (2). Further, all measured ranges of motion should be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Note (4). Ankylosis is a condition in which an entire spinal segment is immobile and fixed in position. Unfavorable ankylosis exists where the fixation is 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; and/or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) is considered favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). VA treatment records indicate that the Veteran has reported chronic low back pain and treatment has included various medications and manipulations. Upon VA examination in December 2011, the Veteran reported that he has pain in his lower back, made worse bending and stooping and better with rest. He reported taking Aleve, but it does not help him. As far as activities of daily living, he stated that normally he has no problems, but during a flare-up he needs help with dressing himself and reported periodic flare-ups, generally lasting one week, with a variety of causes, including bending. He also stated that during a flare-up, he must diminish the amount of movement he does. Range of motion testing reflected forward flexion to 70 degrees with pain, extension to 20 degrees with pain, right lateral rotation to 25 degrees with pain, left lateral rotation to 30 degrees, and right and left lateral flexion to 25 degrees with pain. The combined range of motion was equivalent to 195 degrees. The examiner noted that there were no limiting factors at the end range of left lateral rotation. The examiner also stated that there was no change with repetition and the Veteran was able to perform repetitive testing with at least three repetitions. The examiner reported the Veteran with functional loss secondary to pain and slightly diminished range of motion, without any area of palpable tenderness nor guarding or muscle spasm. Muscle strength testing and gait were normal. There was no history of bowel or bladder incontinence. The Veteran was noted to use a cane on an occasional basis for his condition since 1994. X-rays of the lumbar spine revealed mild osteophytic spurring and degenerative disc disease at L4 to S1. The functional impact on his ability to work as a result of his disability was reported by the Veteran as an inability to perform his occupational duties as a correctional officer and pastor during a flare-up and stated that he had to be transferred to the mail room as he was unable to perform his duties on the floor while working as a detention officer secondary to his back. The Veteran also reported difficulty lifting without a flare-up and difficulty with prolonged sitting. The examiner diagnosed lumbar disc disease. Upon VA examination in October 2018, the Veteran reported daily lower back pain which interferes with sleep. He reported flare-ups about once to twice per month which are so bad that he has to crawl and stay in bed for up to a week. The examiner noted that the Veteran has never been prescribed bed rest. The Veteran also reported functional impairment of his lumbar spine, described as decreased range of motion. Range of motion testing reflected forward flexion to 40 degrees, extension to 20 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 30 degrees. The combined range of motion was equivalent to 145 degrees. The examiner reported that the abnormal range of motion itself contributed to functional loss evidenced by decreased range of motion. Pain was noted on range of motion testing for forward flexion, extension and right and left lateral flexion with evidence of pain on weight-bearing. The examiner also observed localized tenderness/pain on palpation, as a small bilateral paravertebral spasm was noted. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion after three repetitions. The examiner reported that the Veteran was being examined immediately after repetitive use over time, but pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over time. The examiner stated that the examination was not being conducted during a flare-up and the examination is neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner was unable to say without mere speculation whether pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups and explained that the reason he is unable to say without mere speculation was because one would have to be present to formally evaluate this question; however, the examiner noted that the Veteran’s statements are medically possible. No guarding of the thoracolumbar spine was noted; however, muscle spasm not resulting in abnormal gait or abnormal spine contour was noted. There were no additional factors contributing to the disability nor was there muscle atrophy noted. There was no ankylosis of the spine. The Veteran was noted as using a brace on occasion for his back. Arthritis was noted as having been documented on imaging studies. He did not have a thoracic vertebral fracture with loss of 50 percent or more of height. No other pertinent physical findings, complications, conditions, signs, symptoms or scars were reported on examination. The functional impact on his ability to work as a result of his disability included limited excessive bending, heavy lifting, bending and stooping. The Veteran also reported working in corrections for over 15 years and stated that he has missed three to four days of work per month due to his back. He also stated that he had been working in the warehouse department but decreased capacity to search under vehicles resulted in him being given reasonable accommodations and moved to the education department. The examiner was asked to determine if there was evidence of pain on passive range of motion testing, but he was unable to provide an answer and stated that it was not safe for the provider to attempt. The examiner reported no evidence of pain when the joint is used in non-weight bearing. The examiner diagnosed the Veteran with degenerative arthritis of the spine. Upon VA examination in July 2019, the Veteran reported constant pain all the time and stated that his treatment regime includes pain medication. He reported difficulty walking and standing for too long, is embarrassed by his condition and cannot pick anything up. He reported severe flare-ups occur once per month which last three to four days, alleviated by pain medication, muscle relaxers and getting off his feet as he is unable to anything during a flare-up. Range of motion testing reflected forward flexion to 25 degrees, extension to 0 degrees, right lateral flexion to 10 degrees, left lateral flexion to 20 degrees, and right and left lateral rotation to 10 degrees. The combined range of motion was equivalent to 75 degrees. The examiner reported that the abnormal range of motion itself did not contribute to functional loss. Pain, which causes functional loss was noted on range of motion testing for forward flexion, extension, right and left lateral flexion and right and left lateral rotation with evidence of pain on weight-bearing. The examiner also observed localized tenderness/pain on palpation, located on the lumbar spine and bilateral paravertebral muscle, of severe severity and with a direct relationship to the lumbar spine condition. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion after three repetitions. The examiner reported that the Veteran was not being examined immediately after repetitive use over time nor during a flare-up and the examination was neither medically consistent nor inconsistent with the Veteran’s statement describing functional loss with repetitive use over time or during flare-up. The examiner stated that pain significantly limited functional ability with repeated use over time and during flare-up. Following repeated use over time, the examiner determined that forward flexion would be to 20 degrees, extension to 0 degrees, right lateral flexion to 5 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 5 degrees. The combined range of motion would be equivalent to 50 degrees. During a flare-up, the examiner determined that forward flexion would be to 10 degrees, extension to 0 degrees, right and left lateral flexion to 0 degrees, and right and left lateral rotation to 0 degrees. The combined range of motion would be equivalent to 10 degrees. No guarding of the thoracolumbar spine was noted; however, muscle spasm not resulting in abnormal gait or abnormal spine contour was noted. There were no additional factors contributing to the disability nor was there muscle atrophy or ankylosis of the spine. The examiner reported the Veteran did not use any assistive device. Neither muscle atrophy nor ankylosis of the spine were found on examination. The Veteran was noted as using a brace on occasion for his back. Imaging studies of the lumbar spine included findings of good alignment throughout the lumbar spine with disc spaces preserved, vertebral body height maintained and SI joints unremarkable. The impression was negative lumbar spine and no degenerative changes. The examiner reported arthritis was not documented on imaging studies. The examiner also reported the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. No other pertinent physical findings, complications, conditions, signs, symptoms or scars were reported on examination. The functional impact on his ability to work as a result of his disability included difficulty picking up more than 10 pounds, standing or walking more than 30 minutes and having to miss work about three days per month due to back pain. The examiner was asked to determine if there was evidence of pain on both active and passive and in weight bearing and non-weight bearing range of motion testing. The examiner reported active weight bearing was documented under the range of motion section, active non-weight bearing cannot be performed since the lumbar spine continuously bears the weight of the vertebrae and torso above the lumbar spine, passive weight bearing range of motion is not performed on the back because it is not technically possible to perform that examination on this joint, and objective evidence of pain on passive non-weight bearing as such was guarded by the Veteran since he was very hesitant to allow the examiner to maneuver his back. The examiner diagnosed the Veteran with intervertebral disc syndrome. The examiner noted that the Veteran has lumbar disc disease and an updated diagnosis of intervertebral disc syndrome has been added fr consistency, updated from lumbar disc disease. Pursuant to the April 2019 Board remand, because the July 2019 VA lumbar spine examination was completed by a physician’s assistant rather than by a medical doctor, the Veteran underwent VA lumbar spine examination in November 2019. At that time, the Veteran reported constant back pain with limitation of movement treated with over-the-counter pain medication and muscle relaxers. He also reported severe flare-ups which occur periodically, lasting from days to weeks and alleviated by medication and rest. The Veteran reported functional impairment of the lumbar spine as reduced recreational activities and activities of daily living. Range of motion testing reflected forward flexion to 30 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 10 degrees. The combined range of motion was equivalent to 80 degrees. Pain, noted on examination on rest/non-movement, was reported with evidence of pain on weight-bearing. The examiner reported no localized tenderness or pain on palpation. The Veteran was able to perform repetitive-use testing without any additional loss of function or range of motion after three repetitions. The examiner reported that the Veteran was being examined immediately after repetitive use over time and during a flare-up. The examiner reported pain and lack of endurance significantly limited functional ability with repeated use over time, while only pain significantly limited functional ability with flare-ups. Following repeated use over time, the examiner determined that range of motion testing would be unchanged from initial range of motion testing performed on examination. No muscle spasm of the thoracolumbar spine was noted; however, guarding not resulting in abnormal gait or abnormal spine contour was noted. Additional factors contributing to the disability included less movement than normal, disturbance of locomotion and interference with sitting and standing. Neither muscle atrophy nor ankylosis of the spine were found on examination. The Veteran was noted as using a brace on occasion for his back. Arthritis was noted as having been documented on imaging studies. The examiner reported the Veteran did not have a thoracic vertebral fracture with loss of 50 percent or more of height. No other pertinent physical findings, complications, conditions, signs, symptoms or scars were reported on examination. The functional impact on his ability to work as a result of his disability included having to be on modified desk duty due to back pain. The examiner was asked to determine if there was evidence of pain on both active and passive and in weight bearing and non-weight bearing range of motion testing. The examiner reported reduced range of motion due to pain and guarding secondary to the Veteran’s lumbar spine disability during active weight bearing range of motion, objective evidence of pain on active non-weight bearing and passive weight bearing range of motion testing, and pain noted on examination on rest/non-movement on passive non-weight bearing. The examiner noted that regarding repeated use over time and flare-ups for the back, although the Veteran’s range of motion was unchanged, functional ability was limited due to pain and guarding secondary to the back condition. The examiner diagnosed the Veteran with lumbosacral strain, degenerative arthritis of the spine, and intervertebral disc syndrome. The examiner stated that for the Veteran’s VA established diagnosis of lumbar disc disease, the diagnosis is changed, and it is a progression of the previous diagnosis with more back pain and increased limitations of movement. Upon review of the evidence of record, the Board finds that during the entire period on appeal, forward flexion is demonstrated to be limited to 30 degrees or less. These findings are consistent with a 40 percent disability rating, not a rating in excess of 40 percent. Even considering the provisions of 38 C.F.R. § 4.40, 4.45, and 4.59, and the holdings in DeLuca and Mitchell, an increased evaluation for the Veteran’s service-connected lumbar disc disease is not warranted on the basis of functional loss due to pain or weakness, as the Veteran is evaluated at the highest rating available based on limitation of motion. For a higher rating, the evidence would need to show the Veteran with ankylosis; however, such has not been demonstrated. Nor is a higher rating warranted under the IVDS Formula as there is no evidence of record showing the Veteran having incapacitating episodes with a total duration of at least six weeks during the past 12 months such that the criteria for a 60 percent rating would be warranted. In this regard, while VA examinations of record do note intervertebral disc syndrome of the thoracolumbar spine, the Veteran has not reported being incapacitated and there is no record of any order or directive from a doctor requiring bed rest prior to the November 2019 VA examination. As mentioned above, the November 2019 VA examiner did report the Veteran’s intervertebral disc syndrome of the thoracolumbar spine with incapacitating episodes. However, the VA examiner noted that the affirmative response as to the question of whether the Veteran experiences incapacitating episodes was based on the medical history provided by the Veteran, without documentation, and described as occasional neck and back pain flare-up, requiring strict bed rest for days with the last episode occurring last week. The examiner further reported that there have been episodes of bed rest over the past 12 months having a total duration of less than one week. In addition, post-service treatment records do not reflect periods of total incapacitation or that any bed rest was prescribed. Thus, a rating in excess of 40 percent is not warranted during the entire period on appeal. As a final matter, the Board notes that the Veteran is already separately rated for radiculopathy of the left upper extremity and bilateral lower extremities associated with his service-connected lumbar disc disease. The Veteran’s service-connected radiculopathy of the left upper extremity is not presently before the Board and whether an increased rating is warranted for the service-connected radiculopathy of the left and right lower extremities is discussed below. No other neurological disabilities associated with his lumbar spine disability have been shown. In sum, the most probative evidence does not reach the level of equipoise to warrant the assignment of a disability rating in excess of 40 percent for the service-connected lumbar disc disease. 2. Entitlement to an initial disability rating in excess of 10 percent prior to July 18, 2019 and in excess of 20 percent thereafter for the service-connected radiculopathy of the left lower extremity is denied. 3. Entitlement to an initial disability rating in excess of 10 percent prior to July 18, 2019 and in excess of 20 percent thereafter for the service-connected radiculopathy of the right lower extremity is denied. The Veteran’s right and left lower extremity radiculopathy are each rated as 10 percent disabling prior to July 18, 2019 and from 20 percent disabling since that time. His radiculopathy of the right and left lower extremities, associated with lumbar disc disease of the lumbar spine, is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8720 for neuralgia. Such code is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520 which provides for rating paralysis of the sciatic nerve. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. A. Prior to July 18, 2019 VA treatment records indicate that the Veteran has reported radiculopathy symptoms of his bilateral lower extremities and treatment has included various medications and manipulations. Upon VA lumbar spine examination in December 2011, the examiner reported deep tendon reflexes were normal, sensation was intact and straight leg raise was negative bilaterally. The examiner stated that the Veteran has symptoms that may be secondary to radiculopathy in that he has pain that radiates to his left knee on a constant basis, which is sharp. The Veteran reported lower extremity weakness more on the left than the right. Nerve root involvement for his radiating pain would be the L2 through L4 nerve roots on the left. The examiner stated that severity rating was mild. Upon VA lumbar spine examination in October 2018, the Veteran reported daily back pain with radiation down the left leg and occasionally, the right. Muscle strength was normal for the bilateral hips, knees, ankles and great toes. Reflex examination was normal for the bilateral knees and ankles. Sensory examination was normal for the bilateral upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1) and foot/toes (L5). Straight leg raising test was also negative bilaterally. The examiner reported the Veteran does have radiculopathy with mild constant pain of the left lower extremity and mild intermittent pain (usually dull) of the right lower extremity. There was no constant pain of the right lower extremity, intermittent pain of the left lower extremity, paresthesias and/or dysesthesias of the bilateral lower extremities, or numbness of the bilateral lower extremities. The examiner reported there was involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) for both lower extremities and the severity of the radiculopathy was mild bilaterally. There were no other neurologic abnormalities findings. After careful review of the record, the Board finds that the most probative evidence does not warrant increased ratings in excess of 10 percent for the Veteran’s bilateral lower extremity radiculopathy. Prior to July 18, 2019, the Veteran’s radiculopathy of the right and left lower extremities manifested functional impairment equivalent to mild incomplete paralysis, which is contemplated by the 10 percent rating assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Specifically, the findings of the December 2011 and October 2018 VA examiners indicate that the Veteran manifested mild right and left lower extremity radiculopathy. The Veteran’s VA treatment records also indicate no more than mild severity of the bilateral lower extremity radiculopathy. Considering the foregoing, and the entirety of the record, the most probative evidence does not reflect functional impairment equivalent to moderate incomplete paralysis during the period prior to July 18, 2019. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted prior to July 18, 2019. B. Since July 18, 2019 Upon VA lumbar spine examination on July 18, 2019, muscle strength was normal for the bilateral hips, knees, ankles and great toes. Reflex examination was absent for the bilateral knees and normal for the bilateral ankles. Sensory examination was normal for the bilateral upper anterior thigh (L2), thigh/knee (L3/4), lower leg/ankle (L4/L5/S1) and foot/toes (L5). Straight leg raising test was positive bilaterally. The examiner reported the Veteran does have radiculopathy with moderate intermittent pain, mild paresthesias/dysesthesias and moderate numbness of the bilateral lower extremities. The examiner reported no constant pain of the bilateral lower extremities. The examiner reported there was involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) for both lower extremities and the severity of the radiculopathy was moderate bilaterally. There were no other neurologic abnormalities findings. Upon VA peripheral nerve examination on July 18, 2019, in addition to the findings of the July 2019 VA lumbar spine examination, the examiner reported the Veteran did not have any trophic changes. The examiner reported the Veteran with abnormal gait, described as slow, cane-dependent, unsteady and antalgic and determined the etiology of the abnormal gait was due to the lumbar disc disease and radiculopathy. Median nerve testing for Phalen’s sign and Tinel’s sign were performed and both were negative. The examiner determined the sciatic nerve was involved with mild incomplete paralysis of the bilateral lower extremities. The examiner remarked that the Veteran has radiculopathy issues about every other month which are usually in his leg and only mild severity when his back is severe. The examiner diagnosed radiculopathy of the bilateral lower extremities. Upon VA lumbar spine examination in November 2019, muscle strength testing was rated as 1 out of 5 (palpable or visible muscle contraction, but no joint involvement) for bilateral hip flexion, 3 out of 5 (active movement against gravity) for bilateral knee extension, 4 out of 5 (active movement against some resistance) for bilateral ankle plantar flexion and bilateral ankle dorsiflexion, and 5 out of 5 (normal) for bilateral great toe extension. Reflex examination was absent for the bilateral knees and ankles. Sensory examination was normal for the bilateral upper anterior thigh (L2) and thigh/knee (L3/4). However, there was decreased sensation for the bilateral lower leg/ankle (L4/L5/S1) and foot/toes (L5). Straight leg raising test was positive bilaterally. The examiner reported the Veteran does have radiculopathy with moderate intermittent pain and moderate numbness of the bilateral lower extremities. The examiner reported no constant pain or numbness of the bilateral lower extremities. The examiner reported there was involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerve) for both lower extremities and the severity of the radiculopathy was moderate bilaterally. There were no other neurologic abnormalities found. Upon VA peripheral nerve examination in November 2019, the Veteran reported constant numbness and weakness of lower extremities. The examiner reported mild paresthesias/dysesthesias and moderate numbness of the bilateral lower extremities. There was no constant or intermittent pain. Sensory examination was normal for the bilateral upper anterior thigh (L2), thigh/knee (L3/4) and foot/toes (L5). However, there was decreased sensation for the bilateral lower leg/ankle (L4/L5/S1). There were no trophic changes observed and the examiner reported the Veteran with abnormal gait, described as slow gait with legging due to lumbar radiculopathy. The examiner determined the sciatic nerve was involved with moderate incomplete paralysis of the bilateral lower extremities. The examiner diagnosed lumbago with radiculopathy. The examiner remarked that for the VA established diagnosis of radiculopathy of the bilateral lower extremities, the diagnosis is changed, and it is a progression of the previous diagnosis with progressive bilateral lower extremity weakness, pain and numbness. After careful review of the record, the Board finds that the most probative evidence does not warrant increased ratings for the Veteran’s bilateral lower extremity radiculopathy. Since July 18, 2019, the Veteran’s radiculopathy of the right and left lower extremities manifested functional impairment equivalent to a moderate incomplete paralysis, which is contemplated by the 20 percent rating assigned. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Specifically, the findings of the July 2019 and November 2019 VA examiners indicate that the Veteran manifested moderate right and left lower extremity radiculopathy. The Veteran’s VA treatment records also indicate no more than moderate severity of the bilateral lower extremity radiculopathy. Considering the foregoing, and the entirety of the record, the most probative evidence does not reflect functional impairment equivalent to moderately-severe incomplete paralysis during the period since July 18, 2019. Accordingly, the Board finds that a rating in excess of 20 percent is not warranted since July 18, 2019. (Continued on the next page)   In sum, the most probative evidence does not reach the level of equipoise as to whether the Veteran exhibited functional impairment to the extent that an initial disability rating in excess of 10 percent prior to July 18, 2019 for the bilateral lower extremity radiculopathy and in excess of 20 percent since that time, may be assigned. J. TUNIS Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Medina, Associate Counsel 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.