Citation Nr: 21003733 Decision Date: 01/22/21 Archive Date: 01/22/21 DOCKET NO. 09-40 799 DATE: January 22, 2021 ORDER For the entire appeal period, a separate 20 percent evaluation for limitation of extension of the right knee is granted. From May 27, 2014 a rating in excess of 30 percent for right knee limitation of flexion is denied. Entitlement to a rating in excess of 20 percent for a low back disability prior to May 27, 2014 and in excess of 60 percent thereafter is denied. Entitlement to a rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity prior to May 27, 2014 and in excess of 20 percent thereafter is denied. FINDINGS OF FACT 1. For the entire appeal period, the Veteran’s right knee manifested in severe flare-ups resulting in limitation of extension. 2. From May 27, 2014, the Veteran’s manifested in no worse than flexion limited to 15 degrees. 3. Prior to May 27, 2014, the Veteran’s low back disability manifested in no worse than forward flexion limited to 60 degrees and 24 days of incapacitating episodes over a 12-month period. 4. From May 27, 2014, the Veteran’s low back disability manifested in no worse than incapacitating episodes lasting for a total of 6 weeks over a 12-month period. 5. Prior to May 27, 2014, the Veteran’s sciatic radiculopathy of the right lower extremity manifested in no worse than mild incomplete paralysis. 6. From May 27, 2014, the Veteran’s sciatic radiculopathy of the right lower extremity manifested in no worse than mild incomplete paralysis. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in the Veteran’s favor, for the entire appeal period the criteria for a 20 percent evaluation based on right knee limitation of extension are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5261. 2. From May 27, 2014, the criteria for a rating in excess of 30 percent for right knee limitation of flexion are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.7, 4.40, 4.45, 4.59, 4.71a, DC 5260. 3. The criteria for a rating in excess of 20 percent for a low back disability prior to May 27, 2014 and in excess of 60 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.71, Diagnostic Code (DC) 5243. 4. The criteria for a rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity prior to May 27, 2014 and in excess of 20 percent thereafter have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.3, 4.7, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty from July 1972 to June 1975 and November 1976 to November 1995. Increased Rating Disability evaluations are determined by comparing a Veteran’s symptoms with criteria set forth in VA’s Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). 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). In determining the degree of limitation of motion, the provisions of 38 C.F.R. § 4.40 concerning lack of normal endurance, functional loss due to pain, and pain on use and during flare-ups; the provisions of 38 C.F.R. § 4.45 concerning weakened movement, excess fatigability, and incoordination; and the provisions of 38 C.F.R. § 4.10 concerning the effects of the disability on the veteran's ordinary activity are for consideration. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The provisions of 38 C.F.R. § 4.40 state that the disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. According to this regulation, it is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to these elements. In addition, the regulations state that functional loss may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the veteran undertaking the motion. Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. The provisions of 38 C.F.R. § 4.45 state that when evaluating the joints, inquiry will be directed as to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Painful motion is an important factor of joint disability, which is entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. However, the evaluation of painful motion as limited motion only applies when the limitation of motion is noncompensable under the applicable diagnostic code. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 1. Entitlement to a rating in excess of 20 percent for a right knee disability prior to May 27, 2014, and in excess of 30 percent thereafter. The Veteran’s right knee disability was assigned a 20 percent rating pursuant to DC 5261 prior to May 27, 2014 and a 30 percent rating thereafter pursuant to DC 5260. Under DC 5261, a 10 percent rating applies for extension of the leg limited to 10 degrees. A 20 percent rating applies for extension of the leg limited to 15 degrees. A 30 percent rating applies for extension of the leg limited to 20 degrees. A 40 percent rating applies for extension of the leg limited to 30 degrees and a 50 percent rating applies for extension of the leg limited to 45 degrees. Under DC 5260, a noncompensable rating will be assigned for limitation of flexion of the leg to 60 degrees; a 10 percent rating will be assigned for limitation of flexion of the leg to 45 degrees; a 20 percent rating will be assigned for limitation of flexion of the leg to 30 degrees; and a 30 percent rating will be assigned for limitation of flexion of the leg to 15 degrees. See 38 C.F.R. § 4.71a, DC 5260. Normal range of motion of the knee is to zero degrees extension and to 140 degrees flexion. See 38 C.F.R. § 4.71a, Plate II. However, where the Veteran shows noncompensable limitation of motion, but painful motion and functional impairment are evident, the Veteran is entitled to a 10 percent rating. See DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995), Mitchell v. Shinseki, 25 Vet. App. 32 (2011); VAOPGCPREC 9-98. The Veteran asserts that his right knee disability is more disabling than reflected in his 20 percent rating prior to May 27, 2014 and in excess of 30 percent thereafter. An October 2008 rating decision continued the Veteran’s 20 percent evaluation for a right knee condition under Diagnostic Code 5261 for limitation of extension. A March 2015 rating decision assigned a 30 percent rating under Diagnostic Code 5260 based on limitation of flexion effective May 27, 2014. For reasons described below, the Board finds that from May 27, 2014 the Veteran was still entitled to a separate evaluation of 20 percent for limitation of extension under DC 5261. However, from May 27, 2014, a rating in excess of 30 percent for limitation of flexion is not warranted. The Veteran underwent several VA examinations during the appeal period. The Board acknowledges that the range of motion testing in the June 2008, May 2014, January 2015, and August 2015 examinations did not provide a complete picture of the Veteran’s disability. Specifically, they were not compliant with Correia v. McDonald, 28 Vet. App. 158 (2016), in that the examiner did not provide range of motion measurements for both passive and active range of motion. However, the Board finds the information obtained – while incomplete – is still probative in depicting the overall severity of the Veteran’s condition. During the June 2008 VA examination, the Veteran reported flare-ups with bending, lifting, and cold weather. He reported occasional swelling but denied locking. He also reported weakness of the knee with flareups without additional loss of motion. Functional restrictions include limitation with standing, walking, squatting, lifting, and limitation with recreational activities. He reported being incapacitated for 15 days over the past 12 months. On physical examination, the right knee showed no swelling, redness, heat, tenderness, or deformity. There was no evidence of laxity. Joint lines were nontender. Range of motion testing showed extension to -10 degrees and flexion to 95 degrees with pain at 90 degrees. There was no additional weakness, fatigability, discoordination, additional restricted range of motion, or functional impairment following repetitive use testing. A November 2008 private treatment note indicates the Veteran complained of pain with palpation in the medial joint line of the right knee. There was no effusion or obvious bony deformity. During the February 2010 Board Hearing, the Veteran reported that his knee pain was consistently at a severity level of 9 out of 10. He reported more severe pain in cold or rainy weather. He reported problems ascending and descending stairs. He reported using a knee brace and cane. A February 2012 private treatment note indicates that on physical examination the right knee was not tender to palpation. There was no swelling, ecchymosis, or effusion. The Veteran showed full (5/5) muscle strength. The evidence shows the Veteran showed worsening right knee symptoms during the May 2014 VA examination. During the examination the Veteran reported experiencing flare ups with lifting, walking, stair climbing, bending, running, and prolonged standing. Range of motion testing showed flexion to 15 degrees with pain and extension to 0 degrees with pain. Repetitive-use testing cased additional limitation of flexion to 10 degrees. There was tenderness to palpation. Muscle strength testing showed reduced (3/5) strength with knee flexion and knee extension. Joint stability tests were normal. There was no evidence of recurrent patellar subluxation/dislocation. There was no evidence of tibial and/or fibular impairment. Imaging studies showed degenerative arthritis. The examiner noted that pain weakness and fatigue are augmented by flairs of pain from the Veteran’s back and right knee. The knee is weakened by repetitive activity. The examiner further noted that the Veteran shows decreased range of motion with repetitive activity. During the January 2015 VA examination, the Veteran reported baseline pain at a severity of 8 out of 10. He reported flares with cold weather, rainy weather, and bending activities. He reported flare-ups occur at least once a week and last 4-5 hours. He reported flare-up also manifest in mild swelling lasting 2-3 days. He reported constant stiffness and frequent crepitus with knee movement. There no true locking of the knee. There was no subluxation of the patella or tibia/fibula region. There were no tibia or fibula symptoms. There was no history of lateral instability or meniscus dislocation. The Veteran also reported during flare-ups he must limit standing and walking. He reported pain, loss of motion, and weakness. Range of motion testing showed flexion to 105 degrees and extension to 0 degrees. It was noted that the loss of flexion limited his ability to climb and squat. Repetitive use testing showed the Veteran experienced increased pain but there was no additional limitation of motion. The examiner noted that the Veteran’s right knee was examined during a flare up. The Veteran showed full (5/5) muscle strength with forward flexion and extension. There was no evidence of muscle atrophy or ankylosis. Joint stability tests were normal. The Veteran had historically showed a meniscal tear resulting in frequent episodes of joint pain. There was no locking. There was mild swelling and only during flares which lasted 2 days. Regarding functional limitation, the Veteran reported that between flares he has no sedentary restrictions. His knee condition limits standing to 2 hours. He can walk half a mile. He avoids climbing, squatting, and lifting. During flares he can stand for 1.5 hours, walk 1 block but avoids climbing, squatting, and lifting. During the August 2015 VA examination the Veteran reported pain with walking, standing or squatting. He reported these challenges are exacerbated during a flareup. Notably, the examination was conducted during a flareup. Range of motion testing showed flexion to 100 degrees and extension to 0 degrees with pain. The Veteran could complete repetitive-use testing without additional limitation of motion. The Veteran showed full (5/5) muscle strength with extension and flexion. There was no evidence of muscle atrophy or ankylosis. There was no recurrent subluxation, recurrent effusion, or joint instability. In March 2020 the Veteran underwent an additional VA knee examination. He was experiencing a knee flare-up. He reported intermittent right knee pain only with weather changes and cold weather. He reported pain at a severity of 8 out of 10 pasting for 3 dates. He reported flares occur 3 times per month. He reported intermittent stiffness every morning lasting an hour. He reported frequent crepitus. He reported the knee gives way approximately 4 to 5 times per year. He reported swelling occurring 4 to 5 times a year and lasting a few weeks. With flares he noted nausea, dizziness, weakness, and polyarthralgia lasting a few days. Regarding flareups the Veteran further reported that he stays in bed and limits activity during flares. He limits standing to 30 minutes. He also reported pain, weakness, and limited motion. Regarding functional impact, the Veteran reported that on a good day he can stand one hour and walk a few blocks. He can climb but not squat. When mildly flared, he limits standing to 15 minutes and walking to one block. Range of motion testing showed active flexion to 95 degrees and extension to 0. After repetitive-use testing the Veteran showed additional limitation of motion with flexion to 90 degrees and extension to 0 degrees due to pain, fatigue, weakness, and lack of endurance. The Veteran showed full (5/5) muscle strength with flexion and extension. There was no muscle atrophy or ankylosis. Joint stability testing was negative for recurrent subluxation, lateral instability, and recurrent effusion. There was no impairment of the tibia/fibula. The Veteran reported experiencing additional limitation of motion with repetitive use over time and flare-ups. The Veteran reported flexion limited to 90 degrees and extension limited to 20 degrees after repetitive use over time and during flare-ups. The examiner noted that the examination was being conducted during a flare up and that the Veteran’s reports were neither medically consistent nor inconsistent with the Veteran’s reports of functional loss. The examiner further noted that the lack of referencing examinations in recent years limited his ability to determine actual range of motion during flares. The examiner also noted that the Veteran had pain on the examination without weakness, discoordination or excess fatigability. He noted that the Veteran does develop weakness, fatigability, and additional loss of motion during glares as described above with calculated range of motion per the Veteran history. The examiner noted that the range of motion for flare-ups were related to the Veteran’s reported severe flare-up as opposed to the milder flare-up he was experiencing during the examination. Based on the lay and objective medical evidence, the Board finds that throughout the appeal period, the Veteran was entitled to a separated 20 percent evaluation for limitation of extension under DC 5261. The Veteran’s right knee condition had been assigned a 20 percent rating based on limitation of extension from July 15, 2003. Although after the June 2008 VA examination there is no evidence of compensable limitation of extension of the right knee, the objective medical evidence consistently showed that the Veteran’s overall right knee disability had progressively worsened. The Veteran also consistently reported that he experienced flare-ups often that significantly limited his range of motion. Given that the May 2014, January 2015, and August 2015 VA examination did not provide range of motion testing for both active and passive motion, the Veteran’s disability picture was incomplete. During the March 2020 VA examination the Veteran asserted that severe flare-ups result in extension limited to as much as 20 degrees. Thus, resolving reasonable doubt in the Veteran’s favor, the Board finds that continuation of the 20 percent rating under DC 5261 for the entire appeal period is required. See also VAOPGCPREC 9-2004 (September 17, 2004). Furthermore, the Board finds that a rating in excess of 30 percent from May 27, 2014 for limitation of flexion is not warranted. From May 27, 2014 the Veteran’s right knee condition manifested in no worse than flexion limited to 15 degrees. As 30 percent is the highest evaluation allowable under DC 5260, a higher rating is not warranted. The Board has considered whether an effective date prior to May 27, 2014 is appropriate for the assignment of a 30 percent rating under DC 5260 based on limitation of flexion. However, there is no evidence of compensable limitation of flexion prior to the May 2014 VA examination. Thus May 27, 2014 – the date of the VA examination showing worsening symptoms – is the earliest date upon which it is factually ascertainable that the Veteran’s disability warranted a 30 percent rating. The Board has also considered whether a higher rating is warranted pursuant to an alternate rating code. As the evidence is silent for knee ankylosis, other impairment of the knee, dislocated semilunar cartilage, removal of semi lunar cartilage, impairment of the tibia and fibula, and genu recurvatum rating pursuant to DCs. 5256, 5257, 5258, 5259, 5262, and 5263 are not warranted. Regarding flare-ups, the Board notes that the January 2015, August 2015, and March 2020 VA examinations were all conducted during flare-ups. The objective medical evidence as well as the Veteran’s lay statements regarding the length of time flare-up’s last are contemplated in the 20 percent rating based on limitation of extension through the appeal period and the 30 percent rating for limitation of flexion from May 27, 2014. In sum, throughout the entire appeal period, the Veteran is entitled to a 20 percent evaluation under DC 5261 for limitation of extension. From May 27, 2014, a rating in excess of 30 percent for right knee limitation of flexion under DC 5260 is not warranted. 2. Entitlement to a rating in excess of 20 percent for a low back disability prior to May 27, 2014 and in excess of 60 percent thereafter. The Veteran’s lumbar spine disability is currently rated under Diagnostic Code (DC) 38 C.F.R. § 4.71a, DC 5243. The General Rating Formula for Diseases and Injuries of the Spine provides that, with or without symptoms such as pain (whether it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater that 85 degrees, the combined range of motion of the thoracolumbar spine greater that 120 degrees but not greater than 235 degrees, or muscle spasm, guarding or localized tenderness not resulting in abnormal gait or abnormal spinal contour, or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). The criteria also include the following provisions: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Note (3): In exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range of motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note (4): Round each range of motion measurement to the nearest five degrees. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months and 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, Diagnostic Code 5243. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. An evaluation can be had either on the total duration of incapacitating episodes over the past 12 months or by combining separate evaluations of the chronic orthopedic and neurologic manifestations along with evaluations for all other disabilities under 38 C.F.R. § 4.25, whichever method resulted in the higher evaluation. Where functional loss due to pain on motion is alleged, 38 C.F.R. §§ 4.40 and 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The provisions of 38 C.F.R. § 4.59, which relate to painful motion, are not limited to arthritis and must be considered when raised by the claimant or when reasonably raised by the record. Burton v. Shinseki, 25 Vet. App. 1 (2011). As required by 38 C.F.R. § 4.59, joints should be tested for pain on both active and passive motion, in weight bearing and non-weight bearing, and if possible, with the range of opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). The evaluation of the same disability under various diagnoses, known as “pyramiding,” is to be avoided. 38 C.F.R. § 4.14. The Veteran asserts that his lumbar spine disability is more disabling that reflected in his 20 percent rating prior to May 27, 2014 and in excess of 60 percent thereafter. The preponderance of the evidence is against the claim. The Veteran underwent several VA examinations during the appeal period. The Board acknowledges that the range of motion testing in the June 2008, March 2009, May 2014, January 2015, and August 2015 examinations did not provide a complete picture of the Veteran’s disability. Specifically, they were not compliant with Correia in that the examiners did not provide range of motion measurements both passive and active range of motion. However, the Board finds the information obtained – while incomplete – is still probative in depicting the overall severity of the Veteran’s condition. During the June 2008 VA examination, the Veteran reported experiencing flare-ups with cold weather changes, lifting, and prolonged ambulatory activities. He reported occasional weakness of the back during flareups. He also reported that external rotation is limited to 0 degrees bilaterally with flare-ups. He reported that he was incapacitated for 20 days over the past 12 months due to back pain. On physical examination there was moderate spasm and tenderness to palpation. Range of motion testing showed forward flexion to 60 degrees, extension to 5 degrees, right lateral flexion to 10 degrees, left lateral flexion to 10 degrees, right lateral rotation to 35 degrees, and left lateral rotation to 35 degrees. Combined range of motion was 155 degrees. During the March 2009 VA examination, the Veteran showed normal posture and a normal gait although it was noted that he held his back stiffly when he walks. Active range of motion testing showed extension to 20 degrees, forward flexion to 60 degrees, right lateral flexion to 30 degrees, left lateral flexion to 30 degrees, right lateral rotation to 30 degrees and left lateral rotation to 30 degrees. Combined range of motion was 200 degrees. After 3 repetitions, forward flexion was reduced to 45 degrees. Regarding incapacitating episodes, the Veteran reported having to take off about twice a month in the prior 12 months – for a total of approximately 24 days. During the February 2010 Board hearing, the Veteran reported severe pain and muscle spasms. He reported experiencing muscle spasms daily. He reported that his back condition causes problems with lifting, jumping, standing for extended periods, or sitting for extended periods. During the May 2014 VA examination, the Veteran reported pain while lifting things heavier than 20 pounds. He reported sitting, walking, standing, and climbing stairs also exacerbate his back pain. Range of motion testing showed flexion to 40 degrees, extension to 10 degrees, right later flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 15 degrees. Combined range of motion was 130 degrees. After repetitive use testing, the Veteran showed additional limitation of overall motion. He showed forward flexion to 30 degrees, extension to 5 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 10 degrees. Combined range of motion was 95 degrees. Factors contributing to the Veteran’s functional impairment included reduced limitation of motion, weakened movement, pain on movement, and lack of endurance. There was no evidence of guarding or muscle spasms resulting in abnormal gait or spinal contour. There was no evidence of muscle atrophy or ankylosis. Regarding IVDS, the Veteran reported experiencing incapacitating episodes that resulted in a total duration of 6 weeks over the prior 12 months. During the January 2015 spine examination, the Veteran reported that flare-ups manifest in stiffness. He further reported he must limit standing, walking, and lifting. He reported pain, weakness, and subjective loss of motion but no overt discoordination or excess fatigability. Range of motion testing showed forward flexion to 55 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 25 degrees. Combined range of motion was 155 degrees. There was pain with weight-bearing. The examiner was conducted during a flareup. The Veteran showed additional limitation of motion with repetitive-use testing. He showed forward flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. There was no evidence of guarding or muscle spasm that resulted in abnormal gait or spinal contour. There was no evidence of ankylosis of muscle atrophy. Regarding IVDS, the Veteran reported that episodes of bed rest had a total duration of at least four weeks but less than six weeks in the prior 12 months. During the August 2015 VA examination the Veteran reported he is unable to stand more than 10 to 15 minutes or sit for long periods of time. He reported experiencing sleep deprivation on occasion. Range of motion testing showed forward flexion to 30 degrees, extension to 25 degrees, right lateral flexion to 15 degrees, left lateral flexion to 15 degrees, right lateral rotation to 25 degrees, and left lateral rotation ot 25 degrees. The Veteran could complete repetitive-use testing without additional limitation of motion. There was no evidence of guarding or muscle spasm. During the March 2020 VA examination the Veteran reported his back condition was flared during the examination. He reported recently undergoing radiofrequency ablation for back pain. He reported pain at a severity of 8 out of 10. He reported intermittent back flares with weather changes and forward bending. He reported intermittent back spasms with lifting, twisting, and weather changes requiring daily Flexeril. He reported that flare-ups manifest in pain, weakness, and loss of motion. Regarding functional impact, the Veteran reported he can sit for 2 hours and stand for 40 minutes. He can walk two blocks and limits lifting to 20 pounds. Range of motion testing showed forward flexion to 45 degrees, extension to 15 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 30 degrees, and left lateral rotation to 30 degrees. Combined range of motion was 170 degrees. The Veteran showed muscle spasm not resulting in abnormal gait or spinal contour. There was no evidence of guarding. The Veteran showed a diagnosis of IVDS and reported that although bed rest was not ordered by a physician for his back symptoms on 5 separate days over the past 12 months his symptoms were incapacitating and required him to remain in bed on his own. The evidence shows that prior to May 27, 2014, the Veteran’s low back condition more nearly approximated the criteria for a 20 percent rating. The Veteran’s back condition manifested in no worse than pain and forward flexion to 60 degrees. The Board has acknowledged that the June 2008 and March 2009 VA examinations were not Correia compliant. However, imputation of the March 2020 VA examination results – the only Correia compliant examination – to the entire appeal period would not result in a higher evaluation. The March 2020 examination showed forward flexion limited to 45 degrees which would still warrant a 20 percent rating. Similarly, as the Veteran’s IVDS manifested in incapacitation for approximately 24 days over a 12-month period, a rating in excess of 20 percent based on incapacitating episodes is also not warranted. The Veteran presented with more severe back symptoms during the May 2014 VA examination. The Veteran showed forward flexion to 30 degrees and incapacitating episodes of at least 6 weeks over a 12-month period. Thus, from May 27, 2014 the Veteran’s back disability more nearly approximated the criteria for a 60 percent rating based on incapacitating episodes. As there is no evidence of unfavorable ankylosis of the entire spine, a higher evaluation under the General Rating Formula is not warranted. The Board has also considered the Veteran’s report of flare-ups. Notably the during the January 2015 and March 2020 VA examinations, the Veteran reported that his symptoms were flared and that the range of motion noted correlated directly with flares and repeated use. The Veteran’s objective medical symptoms during reported flares still indicate his back symptoms more nearly approximated the criteria for a 20 percent rating prior to May 27, 2014 and more nearly approximate the criteria for a 60 percent rating thereafter. Finally, the Board has considered whether an effective prior to May 27, 2014 for the assignment of a 60 percent rating is warranted. However, May 27, 2014 – the date of the VA examination showed worsening symptoms – is the earliest date upon which it is factually ascertainable that the Veteran’s condition met the criteria for a 60 percent rating. Entitlement to a rating in excess of 20 percent for a low back disability prior to May 27, 2014 and in excess of 60 percent thereafter is denied. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Entitlement to a rating in excess of 10 percent for sciatic radiculopathy of the right lower extremity prior to May 27, 2014 and in excess of 20 percent thereafter. The Veteran’s radiculopathy of the right lower extremity is rated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. 38 C.F.R. § 4.124a, Diagnostic Code 8520 provides the rating criteria for evaluation of paralysis of the sciatic nerve. Under this provision, moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Id. 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 terms “mild,” “moderate” and “severe” are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. The Veteran asserts that his right lower extremity radiculopathy is more disabling that reflected in his 10 percent rating prior to May 27, 2014 and his 20 percent rating thereafter. The preponderance of the evidence is against the claim. During the June 2008 VA spine examination, the Veteran denied any persistent neurologic deficit. The Veteran showed full 5/5 motor strength in the right lower extremity. Sensory and reflex examinations were normal. The Veteran denied radiculopathy symptoms but noted occasional global paresthesias below the knees which was non dermatomal. A November 2008 private treatment note indicates that straight leg raising caused pain in the back but was not positive for radicular pain. Deep tendon reflexes were normal. He reported decreased sensation in the leg mainly from the knee downward laterally and posteriorly. During a March 2009 VA spine examination, the Veteran showed minimal decrease in ability to distinguish pain and touch on the lateral side of the right ankle and foot. He reported that he will sometimes briefly lose sensation in his right leg and it will occasionally buckle but the sensation was very transient. The diagnostic impression was “equivocal but not definite radiculopathy in the right sciatic distribution.” During the February 2010 Board hearing, the Veteran reported experiencing numbness in his legs – from his ankle to his back. He reported he is sometimes unable to feel anything below his knee. He reported that sometime while driving he is unable to feel that he is pushing on the accelerator. A January 2011 private treatment note indicates the Veteran reported pain radiating into the right buttock, which was exacerbated by bending. The Veteran showed posterior tenderness. Private treatment records from 2011 to 2013 consistently show the Veteran had normal sensation, reflexes, and muscle strength in the right lower extremity. During the May 2014 VA examination, the Veteran showed normal reflexes in the right knee and ankle. A sensory examination showed decreased sensation throughout the right lower extremity. The Veteran’s right lower extremity radiculopathy manifested in moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner noted that the Veteran’s right lower extremity radiculopathy showed moderate symptoms. The January 2015 VA spine examination indicates the Veteran had full (5/5) muscle strength in the right lower extremity. The Veteran shoed normal reflexes. The Veteran shoed normal sensation in the right upper anterior thigh and decreased sensation in the right thigh/knee, lower leg/ankle, and foot/toes. The Veteran’s right lower extremity radiculopathy manifested in moderated intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The examiner concluded that the Veteran’s severity of the Veteran’s right lower extremity radiculopathy was mild. A June 2015 private treatment note indicates the Veteran reported pain radiating in the right lower extremity. The Veteran showed full motor strength. During the August 2015 VA examination, the Veteran showed full (5/5) muscle strength in the right lower extremity. A reflex examination was normal. The Veteran showed normal sensation in the right upper anterior thigh and the thigh/knee. Sensation was decreased in the right lower leg/ankle and the foot/toes. The Veteran’s right extremity radiculopathy manifested in mild intermittent pain and mild numbness. There was no paresthesias and/or dysesthesias shown. During the March 2020 VA examination, the Veteran showed reduced (4/5) muscle strength with right hip flexion. The Veteran otherwise had full (5/5) muscle strength with right knee extension, ankle plantar flexion, ankle dorsiflexion, and great toe extension. The Veteran showed normal sensation in the right upper thigh but showed decreased sensation in the right thigh/knee, lower leg/ankle, and foot/toes. The Veteran reported moderate intermittent radicular pain, moderate paresthesias and/or dysesthesias, and mild numbness in the right power extremity. The examiner concluded the Veteran’s right lower extremity radiculopathy symptoms were moderate. The Board finds that prior to May 27, 2014 the Veteran’s right lower extremity radiculopathy manifested in no worse than mild incomplete paralysis. VA examinations and private treatment records indicate the Veteran showed minor decrease in sensation in the right lower extremity. Although the Veteran’s February 2010 testimony that he was sometimes unable to feel his foot on the accelerator while driving suggests a more severe condition, a January 2011 private treatment note indicates the Veteran only described pain radiating in the right buttocks. In addition, private treatment records from 2011 to 2013 consistently show that he had full muscle strength, normal reflexes, and normal sensory examinations. Thus, the Board finds the preponderance of the evidence shows that the Veteran’s right lower extremity radiculopathy manifested in mild incomplete paralysis and more nearly approximated the criteria for a 10 percent rating prior to May 27, 2014. The May 2014 VA examination showed worsening radiculopathy symptoms. During the May 2014 and March 2020 examinations the Veteran showed decreased sensation throughout the right lower extremity. The Veteran’s right lower extremity radiculopathy manifested in moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. As such, the Board finds that from May 27, 2014, the Veteran’s condition manifested to no worse than moderate incomplete paralysis. The evidence is silent for evidence of moderately severe paralysis to warrant a rating in excess of 20 percent. The Veteran consistently showed normal reflexes and full (5/5) or slightly reduced (4/5) muscle strength. Thus, entitlement to a rating in excess of 20 percent from May 27, 2014 is denied. As the preponderance of the evidence is against the Veteran’s claim, the doctrine of reasonable doubt does not apply. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J.A. Williams, 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.