Citation Nr: 21004868 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 09-37 791 DATE: January 28, 2021 ORDER A rating of 20 percent, but no higher, for a lower back disorder is granted effective June 5, 2009. A rating of more than 10 percent from May 7, 2007 to June 5, 2009, and a rating of more than 20 percent since June 5, 2009 for a lower back disorder are denied. An initial rating of 20 percent, but no higher, since September 2, 2009 for right lower extremity radiculopathy is granted. An initial rating of more than 10 percent since September 2, 2009 for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. From May 7, 2007 to June 5, 2009, the Veteran’s lower back disorder manifested with normal ROM, albeit with pain on all ranges of motion; flare-ups; and difficulty lifting, sitting, standing and walking. 2. Since June 5, 2009, the Veteran’s lower back disorder manifested with additional symptoms including a combined ROM of less than 235 degrees but greater than 120 degrees; flexion greater than 60 degrees but less than 85 degrees; and increased severity, frequency and duration of flare-ups. 3. Since September 2, 2009, the Veteran’s right lower extremity radiculopathy manifested with moderate incomplete paralysis. 4. Since September 2, 2009, the Veteran’s left lower extremity radiculopathy manifested with mild incomplete paralysis. CONCLUSIONS OF LAW 1. From May 7, 2007 to June 5, 2009, the criteria for a rating of more than 10 percent for a lower back disorder were not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5243. 2. Since June 5, 2009, the criteria for a 20 percent rating, but no higher, for a lower back disorder have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326 (a), 4.7, 4.14, 4.40, 4.45, 4.59, 4.71a, DC 5243. 3. Since September 2, 2009, the criteria for an initial rating of 20 percent, but no higher, for right lower extremity radiculopathy have been approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, DC 8520. 4. Since September 2, 2009, the criteria for an initial rating of more than 10 percent for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.326(a), 4.7, 4.14, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1979 to August 1982. In May 2019, the Board of Veterans’ Appeals (Board) remanded this matter for an additional VA examination, which was completed in November 2019. Review of the completed development reveals that substantial compliance with the remand directives was obtained. Stegall v. West, 11 Vet. App. 268 (1998). In November 2020, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. The undersigned noted the issues on appeal and engaged in a colloquy with the Veteran toward substantiation of the claims. See Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). A copy of the hearing transcript is associated with the claims file. Increased Ratings Disability ratings are determined by applying criteria set forth in VA’s Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination on which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. 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 it 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 seriously disabled. 38 C.F.R. §§ 4.10, 4.40, 4.45, 4.59. Provision 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. Under 38 C.F.R. § 4.45, functional loss due to weakened movement, excess fatigability, and incoordination must also be considered. See DeLuca v. Brown, 8 Vet. App. 202, 206-07 (1995) (holding that the criteria discussed in sections 4.40 and 4.45 are not subsumed by the DCs applicable to the affected joint). The provisions of 38 C.F.R. § 4.59 recognize that painful motion is an important factor of disability. Joints that are painful, unstable, misaligned or due to healed injury are entitled to at least the minimum compensable rating for the joint. Id. Special note should be taken of objective indications of pain on pressure or manipulation, muscle spasm, crepitation, and active and passive range of motion of both the damaged joint and the opposite undamaged joint. Id.; see Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that § 4.59 applies to all forms of painful motion of joints, and not just to arthritis). Pain that does not result in additional functional loss does not warrant a higher rating. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011) (holding that pain alone does not constitute function loss and is just one fact to be considered when evaluating functional impairment). As here, VA assesses the level of disability from the initial grant of service connection and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as “staged ratings.” See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims). In assigning a higher disability rating, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial rating of more than 10 percent for a lower back disorder since May 7, 2007. The Veteran’s lower back disorder has been assigned the minimum 10 percent rating since May 7, 2007 based on painful motion of the spine. See 38 C.F.R. § 4.59. His lower back disorder is rated under the General Rating Formula for the Spine, which provides: A 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine; and A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine; or, forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. See 38 C.F.R. § 4.71a., DC 5243. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The normal combined range of motion of the thoracolumbar spine is 240 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 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. Id. at Note (2). 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. See Note 5 to DC 5243. The Veteran was afforded four VA back examinations during the appellate period. The effective date of his initial award of service connection is May 7, 2007, the date his claim was received. The report of the August 2007 VA back examination indicates the Veteran had full range of motion (ROM) in his lower back, albeit with pain. The Veteran reported experiencing lower back pain at night that lasted until morning. He indicated the pain worsened with prolonged sitting, standing or walking. He reported that pain radiated into his middle back and that he had numbness in his legs and occasional weakness in his right leg. However, he denied using a brace, cane or crutch. He stated he was unable to lift more than fifty to seventy pounds, walk more than half a male, sit or stand for more than fifteen to twenty minutes. He reported experiencing flare-ups of pain when bending over after standing from a bent position. He stated that flare-ups last for approximately ten minutes and render him unable to perform any physical activity for the duration. The Veteran stated he had missed three months of work in the past year due to back pain. He denied incontinence, erectile dysfunction or physician prescribed bedrest within the past year. On physical examination, the Veteran had normal motor strength and sensation in his lower extremities and did not have muscle atrophy. The examiner indicated the Veteran’s gait, spinal curvature, and posture were normal. The Veteran did not have additional pain, fatigue, weakness or lack of endurance after repetitive use. The VA examiner indicated that X-rays were negative for any abnormalities and diagnosed the Veteran with a lumbar strain. At a June 2009 VA lower back examination, the Veteran reported constant lower back pain, stiffness, numbness, and shooting pain down his legs. He indicated the pain was burning, aching and sharp, and described the pain as a “7.” He indicated the pain was exacerbated by physical activity but he was able to function normally with medication. The Veteran indicated his lower back condition had not resulted in any incapacitation, although he reported difficulty bending. He denied loss of bladder or bowel control. On physical examination, the Veteran was noted to have normal posture; gait; spinal symmetry and curvature. The VA examiner noted evidence of radiating pain during extension and tenderness in the lower back area. Straight leg testing was negative bilaterally, and there was no ankylosis. On ROM testing, the Veteran had flexion to 86 degrees (i.e. a loss of four degrees of normal flexion), extension to 26 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. He reported pain during flexion and extension. The examiner indicated that pain would cause functional impact after repetitive use, but the functional loss would not be limited by additional loss of ROM, fatigue, weakness, lack of endurance or incoordination. The examiner further noted there was no evidence of intervertebral disc syndrome (IVDS) with permanent and chronic nerve root involvement. The June 2009 VA examiner indicated that X-rays taken at the examination revealed degenerative arthritis, spondylosis and L5-S1 disc disease, all of which were a change from the previous diagnosis of a lumbar strain. At the June 2014 VA back examination, the Veteran reported his lower back pain had increased during the past five years. He reported difficulty sleeping due to pain, and that he had to sleep sitting up or in the fetal position in order to fall asleep. He reported experiencing decreased sensation and tightness in his right thigh upon waking up. He stated his morning pain was alleviated by taking Ibuprofen, walking and taking a hot shower. The Veteran reported that he worked as a mechanic and often felt his back “lock up” at work when rising from a seated position. He indicated he was unable to do heavier lifting at work. He further reported wearing a back brace 3-4 times per week, including at work. The Veteran reported flare-ups and described the pain as burning in the lower back, “shocking” pain above the waist, and burning pain at the waist into the right buttock. On initial ROM testing, he had flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 20 degrees, left lateral flexion to 20 degrees, right lateral rotation to 25 degrees, and left lateral rotation to 25 degrees, with objective evidence of pain on each range of motion. The Veteran did not have additional loss of ROM after repetitive use testing. The VA examiner indicated the Veteran’s functional loss after repetitive use was limited to less movement than normal and pain on movement. The examiner found no evidence of localized tenderness of the lumbar spine, muscle spasm, muscle atrophy, guarding, IVDS or ankylosis. Muscle strength testing was normal and straight leg testing was negative. However, the Veteran had hypoactive (diminished or absent) deep tendon reflexes in his bilateral ankles and decreased sensation in his right upper anterior thigh, knee, lower leg, ankle and toes. The examiner indicated the Veteran did not have radiculopathy, radicular symptoms, or any neurologic abnormality resulting from a lower back condition. She further noted that August 2007 X-rays indicated a normal lumbar spine. The VA examiner indicated the Veteran’s primary functional impairment was difficulty lifting heavy objects at work. The examiner opined that the Veteran’s lower back condition was “mild,” and the Veteran himself was highly functional despite his condition. The examiner indicated the Veteran’s abnormal gait was due to his lack of feeling in the posterior and lateral right thigh in the morning, and reiterated that those symptoms were alleviated with walking, a hot shower and Ibuprofen. In a May 2018 statement, the Veteran reported experiencing pain in his right hip and lower back, particularly when standing up after a period of prolonged sitting. He reported feeling as though his back was going to “lock up,” he walked with a limp, and he had difficulty bending. He indicated that medication and other treatment only provided temporary relief from pain. At the November 2019 VA lower back examination, the Veteran reported constant lower back pain that was aggravated by prolonged walking, standing and bending. He reported flare-ups occurring 1-2 times per month with mild to moderate pain and stiffness that lasted about 2-3 hours. The Veteran reported functional loss of weakness after prolonged weight bearing, standing and walking. He continued to report numbness in his right leg. He stated that he used lidocaine patches, pain medication, and back braces, which only partially alleviated his pain. On ROM testing, the Veteran had forward flexion to 70 degrees, extension to 20 degrees, right lateral flexion to 25 degrees, left lateral flexion to 25 degrees, right lateral rotation to 20 degrees, and left lateral rotation to 20 degrees. He reported pain on all ranges of motion but the examiner indicated abnormal ROM did not result in or cause functional loss. The examiner indicated there was no evidence of pain with weight bearing although she previously indicated the Veteran had weakness associated with prolonged weight bearing. The Veteran did not have additional pain or loss of ROM after repetitive use testing. The examiner noted the Veteran’s effort during ROM testing was suboptimal. The examiner noted that passive ROM testing was not performed because it was not feasible to do so in a reasonable and safe manner. She further indicated that non-weight bearing assessment was not applicable because the Veteran did not demonstrate objective evidence of pain when his spine was in a non-weight bearing position. She found that the Veteran had muscle spasm which did not result in an abnormal gait or spinal contour. The examiner indicated the Veteran was not being examined immediately after repetitive use over time or during a flare-up, and that the examination was neither medically consistent nor inconsistent with the Veteran’s statements describing functional loss under those circumstances. The examiner stated there was no basis to find additional loss of function or motion during flare-ups or repeated use over time. As she found there would not be additional loss of function or motion during flare-ups or repeated use over times, the examiner did not discuss any functional loss in terms of range of motion. She indicated her opinion was based on the Veteran’s reported history and subjective symptoms, prior examinations, and her medical knowledge and expertise. The November 2019 examiner continued to find that the Veteran did not have IVDS or ankylosis. She indicated a new diagnosis of degenerative changes of the L4 and L5 vertebra with facet narrowing and degenerative changes, which was a progression of the Veteran’s previous diagnosis. She stated that these changes were due to overuse of the back and resulted in breaking down of the facet joints and inflammation. She noted that inflammation caused pain, stiffness and spasm of the lumbar spine. At the November 2020 Board hearing, the Veteran reported his lower back pain worsened each day. He reported having constant lower back pain, shooting pain down his legs each morning, difficulty bending, and limited ROM. He stated he felt the bones in his back were “knocking” or “rubbing together” when he walked. He reported feeling instability but had not fallen. The Veteran denied being prescribed bedrest by a doctor, however he often rests of his own accord. He further reported experiencing pain and functional impairment at his job at an auto shop. He stated he often has difficulty getting up after bending down to repair vehicles. The Veteran indicated he has reduced his working hours to three days per week for the past two years as a result of his lower back pain. From May 7, 2007 to June 5, 2009, the Veteran’s lower back disorder manifested with normal ROM, albeit with pain on all ranges of motion; flare-ups; and difficulty lifting, sitting, standing and walking. Notably, the Veteran demonstrated full ROM at the August 2007 VA examination. Although these symptoms would ordinarily result in a noncompensable evaluation under the General Rating Formula for the Spine, given the Veteran’s painful ROM and flare-ups, the minimum 10 percent rating is warranted. See 38 C.F.R. § 4.59. As noted at the June 5, 2009 VA examination, the Veteran’s lower back disorder progressed from the previous diagnosis of a lumbar strain to degenerative arthritis. Since June 5, 2009, the Veteran’s lower back disorder has manifested with additional symptoms including a combined ROM of less than 235 degrees but greater than 120 degrees, and increased severity, frequency and duration of flare-ups. Additionally, the Veteran has had flexion greater than 60 degrees but less than 85 degrees since the June 2014 VA examination. Based on the Veteran’s ROM alone, a 10 percent rating would be warranted under DC 5243. However, accounting for the Veteran’s flare-ups and functional loss due to pain, a 20 percent rating is warranted since June 5, 2009. See DC 5243, 38 C.F.R. § 4.59. A rating of more than 20 percent is not warranted at any point during the appellate period. The Veteran has never had flexion of 60 degrees or less, or combined ROM of 120 degrees or less. His ROM measurements have been consistently within the range that warrants a 10 percent rating under DC 5243. While the Veteran has reported “locking” of the lower back during flare-ups, no medical provider has found X-ray or any other evidence indicating the Veteran has ankylosis of the spine. For these reasons, a 20 percent rating, but no higher, for the Veteran’s lower back disorder is granted, effective June 5, 2009. A rating more than 20 percent prior to June 5, 2009 is denied. 2. Entitlement to an initial rating of more than 10 percent for bilateral lower extremity radiculopathy since September 2, 2009. In a July 2020 rating decision, the Regional Office (RO) assigned a 10 percent rating for the Veteran’s bilateral lower extremity radiculopathy associated with his lower back disorder. The RO assigned an effective date of September 2, 2009, the date the Veteran sought emergency care at a VA medical facility for numbness and tingling of his bilateral lower extremities. Lower extremity radiculopathy is rated according to DC 8520, which provides ratings for paralysis of the sciatic nerve. DC 8520 provides: A 10 percent rating is warranted for mild incomplete paralysis; A 20 percent rating is warranted for moderate incomplete paralysis; and A 30 percent rating is warranted for moderately severe incomplete paralysis. 38 C.F.R. § 4.124a, DC 8520. Terms such as “mild,” “moderate” and “moderately severe” are not defined in the regulatory criteria, and the Board must make considerations as to their applicability to symptoms reported in the record in a manner that is “equitable and just.” See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. The term “incomplete paralysis,” indicates a degree of lost or impaired function substantially less than the type picture 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. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Id. At the August 2007 VA examination, the Veteran reported experiencing numbness in both legs and weakness in his right leg due to radiating lower back pain. He had diminished reflexes in his knees, but normal ankle reflexes. He was able to perform straight leg testing without pain, and his lower extremity strength and sensory tests were normal. The Veteran did not have muscle atrophy. At the June 2009 VA examination, the Veteran reported constant lower back pain that occasionally radiated into his legs. He reported the pain was itching, burning and sharp. On neurological examination, the Veteran’s motor and sensory function were within normal limits and straight leg testing was negative bilaterally. His gait, posture, and lower extremity, knee and ankle reflexes were also normal. The VA examiner indicated there were no signs of IVDS with chronic and permanent nerve root involvement. A September 2009 VA Emergency Room (E.R.) record indicates the Veteran reported to the E.R. with symptoms of bilateral lower extremity numbness. He denied dizziness, weakness, abnormal gait, or other sensorineural or focal neurological complaints. The attending clinician indicated the Veteran’s numbness was resolving and no neurological deficits were identified. At the June 2014 VA examination, the Veteran reported experiencing decreased sensation in his right posterior and lateral thigh during the morning. He described the sensation as a lack of circulation and tightness, and stated that walking, Ibuprofen and hot showers helped alleviate symptoms. He denied muscle spasms or using a cane, walker or any other method to assist with movement. The examiner noted the Veteran’s lack of feeling in his right thigh caused an abnormal gait. The examiner found no evidence of localized tenderness of the lumbar spine, muscle spasm, muscle atrophy, guarding, IVDS or ankylosis. Muscle strength testing was normal and straight leg testing was negative. The Veteran had diminished deep tendon reflexes in his bilateral ankles and decreased sensation in his right upper anterior thigh, knee, lower leg, ankle and toes. The VA examiner indicated the Veteran did not have radiculopathy, radicular symptoms, or any neurologic abnormality resulting from a lower back condition. The probative value of the 2014 VA examination report is diminished somewhat by the fact that the Veteran was later diagnosed with bilateral lower extremity radiculopathy with its onset in 2009. The report of the November 2019 VA examination indicates that the Veteran was diagnosed with bilateral lower extremity radiculopathy in June 2009. The Veteran reported continued numbness in his right leg and indicated he had tried muscle relaxants, Lidocaine patches, electrical nerve stimulation, and a brace to relieve pain in the lower back. Muscle strength and sensory testing were normal and muscle atrophy was not present. The Veteran had diminished reflexes in his bilateral ankles but his reflex examination was otherwise normal. He reported radicular symptoms of moderate intermittent pain, mild numbness, and mild paresthesias and/or dysesthesias in the right lower extremity. He reported only mild intermittent pain in his left lower extremity. The examiner noted sciatic nerve root involvement bilaterally and indicated the Veteran had no radicular symptoms other than those listed. The examiner assessed the Veteran’s right lower extremity radiculopathy as “moderate,” and left lower extremity radiculopathy as “mild.” At the November 2020 Board hearing, the Veteran reported experiencing shooting pain down both his legs each morning. He stated his leg pain was worse than his back pain and he felt as though he would stumble and fall, although he had not yet done so. Since September 2, 2009, the Veteran’s left lower extremity radiculopathy manifested with mild incomplete paralysis and warrants a 10 percent rating for the entire appellate period. See 38 C.F.R. § 4.124a, DC 8520. A rating of more than 10 percent for left-sided radiculopathy is not warranted. The report of the November 2019 VA examination indicated the Veteran’s left lower extremity radiculopathy was “mild” when compared to the right. Additionally, prior VA examinations have not indicated decreased sensation of the left lower extremity. The November 2019 VA examiner described the Veteran’s left-sided radiculopathy as mild. As discussed below, the medical evidence shows that the Veteran’s numbness, pain, and instability has been primarily related to his right-sided lower extremity radiculopathy. Since September 2, 2009, the Veteran’s right lower extremity radiculopathy manifested with moderate incomplete paralysis and warrants a 20 percent rating for the entire appellate period. See 38 C.F.R. § 4.124a, DC 8520. Unlike his left leg, the Veteran’s right leg consistently demonstrated decreased sensation and reflexes during examination. Notably, the June 2014 VA examiner opined that the Veteran’s right leg radiculopathy specifically caused the Veteran’s abnormal gait. The November 2019 VA examiner indicated the Veteran’s right-sided radiculopathy was moderate when compared with the left and noted X-rays revealed degenerative changes of the spine which were worse on the right than the left. While the Veteran reported shooting leg pain in both legs at the Board hearing and numbness of both legs at various points during the appellate period, he has primarily reported right thigh and leg pain and numbness to medical providers. Given this evidence, a higher initial rating of 20 percent is warranted for the Veteran’s right lower extremity radiculopathy. A rating of more than 20 percent is not warranted at any point for either lower extremity during the appellate period because the Veteran’s radiculopathy has not been moderately severe. He has consistently reported that his lower extremity numbness occurs primarily in the morning and is resolved by pain medication, hot showers, and walking. He has never had a positive straight leg test and has never reported severe radicular symptoms to a VA examiner or other medical provider. The Veteran has denied using a cane, walker or any other method to assist with movement, and he remains employed as an auto mechanic. Given this evidence, his radiculopathy is not “moderately severe.” For these reasons, an initial rating of 20 percent for right lower extremity radiculopathy will be granted, effective September 2, 2009. However, an initial rating of more than 10 percent for left lower extremity radiculopathy is denied. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hiaasen 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.