Citation Nr: 21004981 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 11-33 208 DATE: January 28, 2021 ORDER A rating of 50 percent for bilateral foot deformities with callus formations and hammer toes, status post-surgeries, with the exception of temporary total periods of disability in 2009, 2016, and 2019, is granted. A rating in excess of 40 percent for lumbar degenerative disc disease is denied. A compensable rating for right lower extremity radiculopathy prior to May 2, 2012, and in excess of 20 percent thereafter, is denied. A compensable rating for left lower extremity radiculopathy prior to May 2, 2012, and in excess of 20 percent thereafter, is denied. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has had bilateral hammer toes, status-post multiple surgeries including removal of toenails and partial amputation of the fifth digits bilaterally, with very painful calluses and corns; and her service-connected symptoms have most nearly approximated the criteria for claw foot. 2. Throughout the appeal period, the Veteran’s back disability has not manifested in ankylosis, incapacitating episodes, or associated bowel or bladder impairment. 3. Prior to May 2, 2012, the Veteran did not have compensable right or left lower extremity neurologic or radiculopathy symptoms. 4. Since May 2, 2012, the Veteran has had no more than moderate incomplete paralysis of the sciatic nerve for the right and left lower extremities. CONCLUSIONS OF LAW 1. The criteria for a rating of 50 percent for bilateral foot deformities with callus formations and hammer toes, status post-surgeries, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5299-5278, 5276 through 5284. 2. The criteria for a rating in excess of 40 percent for lumbar degenerative disc disease are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 3. The criteria for a compensable rating for right lower extremity radiculopathy prior to May 2, 2012, and in excess of 20 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 4. The criteria for a compensable rating for left lower extremity radiculopathy prior to May 2, 2012, and in excess of 20 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to August 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from August 2009 and May 2012 rating decisions. The August 2009 decision assigned a temporary total rating from June 11, 2009, and continued the prior 30 percent rating from October 1, 2009, for the Veteran’s bilateral foot disorder. That decision also continued a 40 percent rating for the Veteran’s low back disorder. A May 2012 rating decision granted separate 20 percent ratings each for left and right lower extremity radiculopathy associated with the low back disability, effective May 2, 2012. That decision noted that it was issued in connection with the Veteran’s appeal for the rating for her back disability. Therefore, the ratings for the associated bilateral lower extremity neurological disabilities are also on appeal. The Veteran testified at a Decision Review Officer (DRO) hearing in March 2012. The Board remanded this case in September 2016 to afford the Veteran a Board hearing. The Veteran testified at a Board hearing at the local Regional Office before the undersigned Veterans Law Judge in August 2017. The Board again remanded this case in May 2018 for additional evidentiary development. During the pendency of this appeal, the Veteran was granted temporary total ratings and special monthly compensable (SMC) based on statutory housebound status for her foot surgeries, effective September 29, 2016, with the prior 30 percent rating continued December 1, 2016, and effective January 17, 2019, with the prior 30 percent rating continued effective April 1, 2019. See rating decisions in October 2017 and June 2019. A September 2017 rating decision denied a temporary total rating for left 5th digit osteotomy and 4th toenail removal, noting that it was due to the service-connected condition but did not meet the criteria for a temporary total rating. An October 2020 rating decision also granted service connection for scars on the left and right lower extremities from the foot surgeries, rated as noncompensable, effective October 31, 2019. These determinations were not disputed or appealed and are not under the Board’s current jurisdiction. As directed in the last remand, in January 2019 VA requested the Veteran to identify and authorize any outstanding private records and obtain updated VA treatment records. In February 2019, the Veteran identified private treatment from A.B. Medical Center since February 2015 and from Lovell health center, a VA facility, since 2015. Private treatment records from A.B. Medical Center were received in March 2019, and additional VA treatment records from identified facilities dated through October 2020 were obtained. In March 2019, VA advised the Veteran that any records from the Lovell FHCC VA Medical Center (VAMC) dated from January 2015 through December 2016 were not available, but records from December 2016 forward were obtained. There is no argument or indication of other outstanding records that have a reasonable possibility of aiding in substantiating the claims on appeal. Additionally, VA examinations directed in the last remand were provided in April 2019, October 2019, and September 2020, along with an addendum opinion in October 2020. The post-remand VA examinations addressed questions relevant to Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017), as directed in the last remand. There is no argument or indication that further examination or medical evidence is needed for a fair appeal. In October 2020, the Veteran spoke with a VA employee and stated that she had received additional treatment for her back disability. The employee advised her to submit the additional records with a waiver of review of such evidence by the agency of original jurisdiction (AOJ). In November 2020, the Veteran and her appointed representative were advised that the case is at the Board and allowed an opportunity to submit additional arguments and evidence. No additional evidence or arguments have been received, and the case is now ready for a decision. Increased Ratings VA’s schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A separate rating may be assigned for non-overlapping conditions and symptoms, if the compensable criteria under the applicable code(s) are met. Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); 38 C.F.R. § 4.14. A separate or higher rating may be awarded for musculoskeletal conditions based on range of motion if there is additional functional loss after repetitive use or flare-ups due to pain or other factors. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016); 38 C.F.R. §§ 4.10, 4.40, 4.45. Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings may be awarded if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). This decision focuses on the evidence pertinent to the rating criteria and disability severity during the relevant period on appeal; however, the Board has considered the entire record and history to have a full picture of the Veteran’s disability. See 38 C.F.R. §§ 4.1, 4.2, 4.41; Gonzales v. West, 218 F. 3d 1378 (Fed. Cir. 2000). 1. A rating in excess of 30 percent for bilateral foot deformities with callus formations and history of hammer toes, status post-surgeries, with the exception of temporary total periods of disability in 2009, 2016, and 2019 The Veteran submitted a claim for increase in June 2009 for her bilateral foot disability due to a planned surgery in June 2009. She has been assigned temporary total (100 percent) disability ratings due to foot surgeries with convalescence of more than 29 days in 2005, 2009, 2016, and 2019. The Veteran contends that a rating higher than 30 percent is warranted due to pain and difficulty walking and wearing closed-toe shoes. See, e.g., March 2012 and August 2017 hearings. After her claim, a VA examination was provided for the Veteran’s feet in July 2010. As noted in the 2018 remand, a May 2012 VA examination did not comply with the requirements outlined by the Court in Correia. At the August 2017 Board hearing, the Veteran also testified that the severity of her bilateral foot disorder had increased since that examination and that she recently had surgery on her left foot. New foot examinations were provided in October 2019 and September 2020. The Veteran’s bilateral foot disability has been rated under DC 5299-5278 for an unlisted disability analogous to acquired claw foot (pes cavus), and assigned a 30 percent, effective since January 2001. Although the Veteran has been diagnosed with hammer toes, which is a listed condition in the rating schedule, she also developed calluses and corns and other symptoms. An unlisted condition may be rated under a closely related disease or injury in which the functions affected and the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20. Where the foot conditions are unlisted, DC 5284 and other potentially applicable codes are considered to determine the most appropriate and highest rating. Id.; Copeland v. McDonald, 27 Vet. App. 333 (2015); Yancy v. McDonald, 27 Vet. App. 484 (2016); Scott v. Wilkie, 920 F.3d 1375 (Fed. Circ. 2019). Under DC 5282, hammer toe will be assigned a maximum 10 percent rating if it affects all toes, unilaterally, without claw foot. A 0 percent rating is assigned if the condition only affects single toes. 38 C.F.R. § 4.71a. Under DC 5278, acquired claw foot (pes cavus) is assigned a 10 percent rating for unilateral or bilateral involvement where the great toe is dorsiflexed, there is some limitation of dorsiflexion at the ankle, and definite tenderness under the metatarsal heads. A 20 percent rating is assigned for unilateral involvement, or a 30 percent rating for bilateral involvement, where all toes are tending to dorsiflexion, there is limitation of dorsiflexion at the ankle to a right angle, shortened plantar fascia, and marked tenderness under the metatarsal heads. A 30 percent rating is assigned for unilateral involvement, or a 50 percent rating for bilateral involvement, where there is marked contraction of the plantar fascia with a dropped forefoot, all toes are hammer toes, very painful callosities, marked varus deformity. Id. Under 5284, other foot injuries will be assigned a 10 percent rating for moderate disability, 20 percent for moderately severe, or 30 percent for severe disability level. 38 C.F.R. § 4.71a. The severity terms for this code are not defined. The Board agrees with the AOJ that DC 5278 for acquired claw foot is the most analogous rating code for the Veteran’s bilateral foot disability. As noted above, this code contemplates hammer toes as one of the manifestations, and it also allows for a higher rating for her symptoms than the criteria for hammer toe. Resolving reasonable doubt in the Veteran’s favor, her condition is more nearly approximates the criteria for a 50 percent rating for bilateral involvement under DC 5278. A rating under DC 5284 for a general foot injury is not more appropriate because the Veteran’s symptoms are largely contemplated by DC 5278. To assign a separate or higher rating based on the same symptoms would be impermissible pyramiding. Concerning the DC 5278 criteria for a 50 percent rating, the Veteran does not have marked contraction of the plantar fascia with a dropped forefoot or marked varus deformity. However, there are notations of varus deformity or varus rotation of several digits on each foot, as well as decreased range of motion and strength of the ankle due to pain. The Veteran has hallux limitus with decreased range of motion and hammer toes of all digits. Although the September 2020 VA examiner stated that only the 2nd, 3rd, and 4th digits were hammer toes, the Veteran previously had both of her 5th digits partially amputated due to the severity of her painful calluses and corns. The May 2012 VA examiner noted that all toes, including the great toes, were hammer toes. She has had bunions with bunionectomies on the hallux and 5th digits, as well as very painful corns on multiple digits and callosities on plantar surfaces. She also had the toenails removed on all except the left 3rd digit and the right 3rd and 4th digits due to her service-connected disability. Lay and medical records reflect difficulty wearing shoes, particularly closed-toe shoes, due to painful callosities. She has had multiple surgeries to remove calluses, debride skin, or attempt to correct deformities of multiple digits bilaterally, and she frequently shaves off excess skin from her toes with a straight-edged razor to help alleviate pain. She also has marked tenderness of the metatarsal heads, or balls of the feet. See, e.g., July 2009 statement; March 2012 DRO hearing; August 2017 Board hearing; VA examinations in July 2010, May 2012, October 2019, and September 2020; VA, private, and federal treatment records since 2009, e.g. May 2010, October 2014, November 2014, August 2017, October 2017, November 2017, April 2018, November 2018, and February 2019. For example, a May 2010 physical therapy record noted that the session was for an acquired keratoma with a date of onset in May 2009, which was the fourth time for this foot. The Veteran had four related surgeries in May 2009, June 2009, February 2010, and May 2010 for excision of skin lesions, skin debridement, bunion and toenail removal removals. In May 2010, the Veteran reported pain rated at 10 out of 10 in the right foot and ankle, and ankle and foot range of motion and strength were decreased due to pain, particularly when walking. She used a cane to relieve pain or pressure on the right foot. During her July 2010 VA examination, the Veteran reported that her feet had worsened since the last examination in 2005. A November 2014 treatment record noted painful little toes when walking and when in shoes, with a history of multiple surgeries including arthroplasties to those digits, neurectomies and bunionectomies. A May 2016 VA treatment record als noted severe pain on movement due to callus and foot deformity. In February 2019, shortly after surgery, a VA provider advised that the Veteran’s toe was becoming rigid and reverting back to the prior deformity. The provider placed a consult for physical therapy and advised that she use normal shoe gear with a wide toe-box as tolerated. The October 2019 VA examiner noted that the Veteran continued to have constant subjective pain, numbness and tingling with multiple nail avulsions (removals) and surgeries that were ongoing to both feet. Concerning Correia and Sharp, the Veteran has reported constant foot and toe pain that is exacerbated by prolonged walking, running, or standing. She sits at work and wears different types of footwear or inserts as needed to relieve pain. For example, the Veteran reported in a July 2009 statement that she now had a handicap tag for her vehicle due partially to foot pain when walking long distances. The October 2019 and September 2020 VA examiners addressed the Correia and Sharp questions. However, the criteria for rating the feet do not specify ranges of motion in degrees, and the Veteran’s increased symptoms during flare-ups or repeated use over time are contemplated by the ratings as described above. Accordingly, no further VA examination or opinion in this regard is needed. Resolving reasonable doubt in the Veteran’s favor, these manifestations reflect a more severe condition than the 30 percent criteria under DC 5278 throughout the appeal period. Not all of the listed criteria need to be met for an analogous condition. Therefore, the Veteran’s condition more nearly approximates the next higher rating of 50 percent for bilateral involvement. See 38 C.F.R. §§ 4.3, 4.7. The October 2019 VA examination noted a diagnosis of bilateral hammer toes but assessed the Veteran’s symptoms under the questions for flatfoot (pes planus). However, neither this examiner nor other examiners or VA or private treatment providers have diagnosed flatfoot. Moreover, the Veteran testified during the August 2017 Board hearing that when she walks her feet do not come down “flat” because she does not put a lot of pressure on her toes. She tries to walk with her toes upward and does not go onto the balls of feet to her toes. This describes a more upward or concave position of her foot, i.e., the opposite of “flat” foot. Under DC 5276, the criteria for flatfoot (pes planus) contemplate the Veteran’s noted accentuated pain on manipulation and use of the feet and characteristic callosities, as noted in by the 2019 VA examiner, as part of a 30 percent rating for bilateral disability. A 50 percent rating for bilateral pes planus disability contemplates her noted extreme tenderness of the plantar surfaces of the feet that is not improved by orthopedic shoes or appliances. However, it also describes symptoms that the Veteran does not have of marked pronation, marked inward displacement and severe spasm of the tendo achillis (Achilles tendon) on manipulation. The 2019 VA examiner also recorded that no other manifestations of pes planus as noted in DC 5276, including in the lower level ratings, were found for either of the Veteran’s feet. See 38 C.F.R. § 4.71a, DC 5276. Instead, the Veteran’s bilateral foot and toe symptoms more nearly align with the rating criteria for a 50 percent rating under the code for clawfoot (pes cavus), as discussed above. Other diagnostic codes for the feet are for bilateral weak foot (DC 5277), anterior metatarsalgia or Morton’s disease (DC 5279), hallux valgus (DC 5280), and hallux rigidus (DC 5281), or malunion or nonunion of tarsal or metatarsal bones (DC 5283). However, DCs 5277 to 5281 only provide for a 10 percent rating, and the Veteran is already in receipt of a higher 30 percent rating. There is no indication of malunion or nonunion of any bones to consider a separate rating under DC 5283. Therefore, a separate or higher rating is not warranted under these alternate codes. There is no argument or indication that the Veteran had loss of use of either foot to an extent that she would be equally well served by an amputation with prosthesis. In summary, reasonable doubt has been resolved in the Veteran’s favor to award a higher 50 percent rating, and the appeal is granted to this extent. The manifestations of her bilateral foot disorder have been relatively consistent. Any increases in severity were not sufficient to more nearly approximate the criteria for an even higher or separate rating at any point. The appeal is otherwise denied. 2. A rating in excess of 40 percent for lumbar degenerative disc disease The Veteran contends that a higher rating is warranted for her back disability based on pain and resulting impairment, including treatment shock from a TENS unit. See, e.g., June 2009 informal claim, March 2012 and August 2017 hearings. As noted in the 2018 Board remand, an August 2016 VA examination for the Veteran’s back disability in August 2016 may not have met criteria outlined in Correia v. McDonald, 28 Vet. App. 158 (2016), and Sharp v. Shulkin, 29 Vet. App. 26 (2017). However, as she has been in receipt of the 40 percent maximum rating possible based on limitation of motion of the lumbar spine throughout the course of the appeal, such findings would not afford her a higher rating. Johnson v. Brown, 9 Vet. App. 7 (1997); DeLuca v. Brown, 8 Vet. App. 202, 206 (1995). Instead, a higher rating of 50 or 100 percent under the General Rating Formula for Diseases and Injuries of the Spine requires ankylosis of the spine. 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5243. Ankylosis has not been argued or medically shown, as the Veteran retains range of motion of the spine. Even during periods of increased symptoms during flare-ups or after repeated use over time, the Veteran’s limitation has not merely nearly approximated ankylosis of the spine. Id. Otherwise, the General Rating Formula provides that separate ratings will be assigned under an appropriate diagnostic code for any associated objective neurologic abnormalities. Id. at Note (1). These are addressed below. Alternatively, intervertebral disc syndrome (IVDS) may be rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, DC 5243 and Note. The next higher and maximum rating under the IVDS Formula is 60 percent, which is assigned where there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243, IVDS Formula. For this purpose, 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. Id. at Note (1). The 2018 Board remand found that a new VA orthopedic examination should be provided for the Veteran’s back disability to address she had incapacitating episodes to warrant a higher rating under the IVDS Formula because the 2016 VA examination noted degenerative disc disease but did not address that aspect of the rating criteria. VA examinations were provided for the spine in October 2019 and September 2020, with an addendum opinion in October 2020. Nevertheless, such information cannot result in a higher rating because the Veteran is already in receipt of the highest available rating without ankylosis when considering her combined spine and lower extremity ratings, effective since May 2, 2012. Specifically, effective since May 2, 2012, the Veteran has a 40 percent rating for the spine and 20 percent ratings for each lower extremity. The combined ratings table under 38 C.F.R. § 4.25 and the bilateral factor under 38 C.F.R. § 4.26 are applied to the lower extremity ratings, such that 20 plus 20 combines to 36 percent, and 3.6 is added as 10 percent of that combination to result in 39.9 percent, which rounds up to 40 percent for the lower extremities together. Then, combining the 40 percent for the back disability with the 40 percent for the lower extremities results in 64 percent, which rounds down to 60 percent as the combined rating for the back and lower extremities together. This is already the maximum rating available under the alternative IVDS formula. Therefore, a higher rating is not available under the IVDS Formula, effective since May 2, 2012, as a matter of law. Moreover, three VA spine examinations in 2019 and 2020, as well as an addendum opinion in 2020, stated that there was no IVDS and no incapacitating episodes. Instead, effective since May 2, 2012, a higher rating may be assigned in connection with the Veteran’s back disability if the service-connected bilateral lower extremity manifestations meet the criteria for a rating higher than 20 percent for either lower extremity under the neurologic rating criteria. These ratings are discussed below. There is also no argument or medical indication of bowel or bladder impairment due to the spinal disability to warrant a separate compensable rating. Although the Veteran reported frequent urinary urgency for years during her April 2019 VA examination, there is no medical suggestion that it is related to her back disability. The Veteran’s treatment records reflect that she repeatedly denied urinary frequency, as well as bowel concerns including constipation and diarrhea. Additionally, the October 2019 and September 2020 VA examinations specified that there were no bowel or bladder problems related to the back disability. Effective prior to May 2, 2012, a rating higher than 40 percent may be assigned under the General Rating Formula if the Veteran had ankylosis or separately compensable objective associated neurologic disabilities, to include bowel or bladder impairment or compensable manifestations in either lower extremity. There is no assertion or indication of ankylosis or associated bowel or bladder impairment. If there are no separately compensable neurologic manifestations to combine to 60 percent, a 60 percent rating may be assigned under the IVDS Formula based on incapacitating episodes. However, the Veteran denied incapacitating episodes in the July 2010 VA examination, and there was no suggestion of incapacitating episodes in lay statements or treatment records. Therefore, an increase from 40 percent is not warranted for the back disability. In summary, the Veteran’s service-connected manifestations of her back disability have been relatively consistent. Any increases in severity were not sufficient to more nearly approximate the criteria for a higher or separate rating at any point. There is no reasonable doubt to be resolved, and the appeal is denied. 3. and 4. A compensable rating for right lower extremity radiculopathy prior to May 2, 2012, and in excess of 20 percent thereafter; a compensable rating for left lower extremity radiculopathy prior to May 2, 2012, and in excess of 20 percent thereafter The Veteran has not specified why a higher rating should be assigned for her right or left lower extremity neurological symptoms, but she essentially asserts that she had compensable symptoms prior to 2012. See, e.g., August 2017 Board hearing. As noted above, the Veteran was assigned separate compensable ratings of 20 percent each for right and left lower extremity radiculopathy, effective May 2, 2012, which was the date of a VA examination. If the evidence shows objective neurologic abnormalities associated with the low back disability prior to May 2, 2012, and the criteria for a compensable rating are met during the appeal period for the June 2009 claim, a compensable rating will be warranted prior to May 2, 2012. Likewise, an increase from 20 percent will be granted if the higher criteria are met. Under DC 8520, an 80 percent rating will be assigned where there is complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. A 60 percent rating is warranted where there is severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 10 percent rating is warranted for mild incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The terms “mild,” “moderate,” and “severe” are not defined in the diagnostic codes. However, the term “incomplete paralysis” for peripheral nerve injuries indicates a degree of lost or impaired function substantially less that the type pictured for complete paralysis. 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, introduction prior to DC 8510. Peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, will be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating for neuritis not characterized by these organic changes will be moderate, or moderately severe if there is sciatic involvement, incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, will be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The 2018 Board remand found that a separate nerve examination should be provided to address the severity of the Veteran’s associated bilateral lower extremity radiculopathies because the 2016 spine examiner simply stated that the right and left lower extremities were not affected, despite the fact that she has been service-connected for associated radiculopathies effective since May 2, 2012. Along with VA and private medical records and the Veteran’s lay statements relevant to her claim, additional VA examinations addressed neurological manifestations in her lower extremities in July 2010, May 2012, April 2019, October 2019, and September 2020, with an addendum opinion in October 2020. As explained below, the preponderance of the evidence is against a compensable rating prior to May 2, 2012, or a rating in excess of 20 percent each thereafter. Prior to May 2, 2012, the Veteran complained of back pain radiating to the right hip and leg, but examinations were normal for muscle or motor strength, reflexes, and sensation. She was found to have a normal neurologic examination, with no radiculopathy or neuropathy. See, e.g., July 1995 and April 2005 VA examinations. After her current claim, a July 2010 VA examination noted back pain with bilateral radiation of cramping-type pain in the lower extremities that was not true radiculopathy. The Veteran denied numbness or tingling and stated that her back or spine did not affect her ability to walk, but the cramping of muscles bothered her. During the examination, the Veteran’s muscle tone and bulk intact were intact, and there were again no neurological deficits and reflexes were normal at 2+. The diagnosis was lumbar degenerative disc disease with no evidence of radiculopathy. Treatment records also noted muscle cramping in the legs or calves, but no neurologic deficits prior to May 2, 2012. For example, a May 2010 VA treatment record noted back pain radiating down into the right leg to the knee, seemingly from the hip socket, and leg cramps that were relieved with apple cider vinegar. An April 2011 federal treatment record also noted low back pain radiating into the right thigh, but no numbness or decreased sensation throughout the legs, no weakness of the knee or ankle, and normal reflexes of the knee and ankle. During the March 29, 2012 DRO hearing, the Veteran reported constant pain radiating down both legs to the knees. As noted above, the Veteran’s 40 percent rating for the spine provided under the General Rating Formula already contemplates pain, whether or not it radiates from the spine to the lower extremities. Therefore, her symptoms of radiating pain are not sufficient to support a compensable separate neurologic rating. As the Veteran had no other subjective complaints or objectively symptomatic neurologic abnormalities in the lower extremities prior to May 2, 2012, there was not a least mild incomplete paralysis of any affected nerve to warrant a compensable rating. In contrast, the May 2, 2012, VA examination noted a diagnosis of lumbar degenerative disc disease with bilateral radiculopathy since 1992, which was the Veteran’s service-connected disability. During this examination, the Veteran’s muscle strength was decreased to 4 out of 5 at all levels in the lower extremities. There was no atrophy, and reflexes and sensory tests remained normal. The Veteran reported moderate intermittent pain bilaterally, but no paresthesias or dysesthesias and no numbness in the lower extremities. The examiner stated that the sciatic nerve was affected and had an overall severity of moderate incomplete paralysis. This VA examination was the first factually ascertainable compensable neurologic impairment, as there was decreased strength in addition to moderate pain in the Veteran’s bilateral lower extremities that was attributed to her back disability. On May 5, 2012, a federal treatment record noted complaints of back pain since Friday. Testing showed no decreased sensation or weakness and normal reflexes. A federal record in October 2013, as well as a private record in October 2015, noted that the Veteran denied numbness, tingling, or weakness of the extremities. A July 2017 VA treatment record noted that the Veteran denied burning, numbness, or tingling in the extremities. Sensation was intact to the toes, feet, and ankles. During her August 2017 Board hearing, the Veteran testified that she had constant pain related to her original back injury in 1992, apparently referring to back pain. Her leg was hurting while sitting for the hearing, and she reported pain down into both legs all the time, or constant pain and occasional tingling and numbness. An April 2018 VA treatment record noted no numbness or weakness. In November 2018, the Veteran complained of foot pain but otherwise denied numbness, tingling or burning. Muscle strength was normal (5/5) for the feet and ankles bilaterally. A March 2019 record noted no tinging or burning to the feet. In April 2019, the Veteran complained of back pain radiating to the hip and knee for years off and on, which was worse over the past six months, but she denied numbness or weakness. The Veteran had additional VA examinations for the spine and peripheral nerves in April 2019, October 2019, and September 2020, with October 2020 addendum. The April 2019 examination noted back pain radiating to both legs, more on the right, as well as a prior right hip injury. The Veteran had decreased sensory testing to light touch on the buttocks, the sciatic notches positive bilaterally, worse on the right, and midway of the ischium and greater trochanteric. There was also pain to compression with radiating pain and numbness to the legs, but no weakness, with muscle strength of 5 out of 5. The examiner noted that sensory testing was patchy in the legs and decreased to light touch, and sensory testing was recorded as normal at all levels except for decreased at the foot/toes (L5) bilaterally. Reflexes were trace or 0 (absent) in the knees and normal (2+) in the ankles bilaterally. The Veteran reported mild constant pain, paresthesias or dysesthesias, and numbness, and moderate intermittent pain bilaterally. There were no trophic changes. The Veteran had an abnormal gait of walking slow due to both back and leg pain, and she used a cane due to back and leg pain. The examiner stated that the sciatic nerves were affected and had overall severity of moderately severe incomplete paralysis on the right side and moderate incomplete paralysis on the left side. In October 2019, VA examination reports for the spine and peripheral nerves noted complaints of constant pain to both lower extremities and that he Veteran stated that her legs were “about the same.” Although the Veteran reported constant pain at a level of 10 out of 10, the examiner noted that she appeared calm, with no fidgeting, changing positions, sweating, or other outward signs of experiencing 10 out of 10 pain. The examiner also noted that the Veteran complained of bilateral hip pain that had been diagnosed as bursitis, as well as bilateral thigh pain and calf pain radiating down into the plantar and dorsal feet. The examiner noted that there were also multiple foot conditions. The Veteran denied weakness but reported severe constant pain, and mild paresthesias or dysesthesias and numbness bilaterally. Testing showed normal motor strength (5/5) and reflexes (2+), and sensory testing was normal except for decreased sensation at the foot/toes (L5) bilaterally. There were no trophic changes. The Veteran had normal gait and reported that she occasionally used a cane, but she did not present with an assistive device to the examination. The spine examination report found mild incomplete paralysis of the sciatic nerve bilaterally. The peripheral nerves examination report noted that the Veteran’s multiple lower extremity diagnoses, such as the right hip bursitis and bilateral feet conditions, could be causing some of her symptoms. A November 2019 VA treatment record found normal strength (5/5) of all extremities, normal reflexes (2+), and equal sensations bilaterally. A January 2020 record noted right hip pain with an exacerbation, but no numbness or weakness. An August 2020 treatment record noted no tingling or numbness. In September 2020, VA examination reports for the spine and peripheral nerves noted constant back and hip pain. The Veteran reported mild intermittent pain and numbness bilaterally, but no constant pain and no paresthesias or dysesthesias. Motor strength, reflexes, and sensory testing were all normal. There were no trophic changes, and the Veteran had normal gait and occasionally used a cane for back pain. Both reports noted mild incomplete paralysis of the sciatic nerve. In an October 2020 addendum, an examiner stated that the Veteran’s back symptoms were mainly low back pain localized to the lower back. She had mild intermittent pain and numbness of the lower extremities bilaterally, with mild incomplete paralysis of the sciatic nerve and mild lumbar radiculopathy. Overall, the Veteran’s manifestations of her lower extremity radiculopathies have most nearly approximated moderate incomplete paralysis of the sciatic nerve since May 2, 2012. Although the Veteran’s symptoms increased or decreased at times, the changes were not sufficient to show an increase for a distinct period. Specifically, the Veteran had intermittent or constant pain varying from mild to moderate to severe. However pain alone is not enough to support a rating higher than 20 percent. The Veteran’s subjective reports as well as objective testing generally showed normal motor or muscle strength, reflexes, and sensation, with no trophic or other organic changes. In addition, her abnormal gait was only partly due to her legs, as she also reported using a cane, walking slowly, and difficulty walking and standing for prolonged periods due to pain in her back and feet. The Veteran’s motor strength was slightly decreased to 4 out of 5 only during the May 2012 VA examination; otherwise, the Veteran denied weakness and strength was normal or 5 out of 5. This reflects only very intermittent decreased strength. Similarly, only the April 2019 VA examination measured decreased reflexes, noting that they were trace or absent at the knees. The examiner stated that sensation was “patchy” in the legs, but the specific testing was otherwise normal (2+). Because the Veteran had normal reflexes shortly before and after this examination, the decrease during the 2019 VA examination was only temporary or intermittent. The Veteran also reported only intermittent and mild numbness, and objective testing showed only intermittently decreased sensation. The Veteran reported occasional numbness during the August 2017 hearing, and in the April 2019 and October 2019 VA examinations noted mild numbness and decreased sensation. The Veteran otherwise denied numbness and had normal sensation on testing, including shortly before the Board hearing and before and after the 2019 VA examinations. Moreover, to the extent the Veteran had decreased sensation or numbness in her toes, these complaints have been attributed at times to her service-connected feet disorders and multiple surgeries, which are already separately compensated. It would be impermissible pyramiding to include those symptoms in a higher rating. In addition, the Veteran had only mild and intermittent paresthesias or dysesthesias, or a tingling or burning sensation. She reported occasional tingling during the August 2017 Board hearing and mild paresthesias or dysesthesias at the April 2019 and October 2019 VA examinations. As with her other symptoms besides pain, she denied such sensations at other times, including before and after the examinations. As noted above, the Veteran complained of back pain radiating into the legs, which at times seemed to come from the hip. Treatment records, as well as VA examinations in 2012 and 2016, also reflect separately diagnosed hip conditions with leg pain. An April 2012 x-ray showed minimal degenerative changes of the right hip. A May 2019 VA treatment record noted bilateral hip pain related to iliotibial (IT) band syndrome, as well as avascular necrosis without collapse. Service connection for a right hip disorder was separately granted in August 2016, effective August 31, 2015, after an initial denial of a claim for right hip arthritis in 2012. These conditions are distinguishable from the Veteran’s lower extremity radiculopathies, and overlapping symptoms may not be compensated twice. VA examiners generally have characterized the Veteran’s overall lower extremity neurologic impairment as mild or moderate. The April 2019 VA examiner opined that the condition amounted to moderately severe incomplete paralysis on the right side and moderate incomplete paralysis on the left side. However, the Veteran reported the same symptoms and had the same test results for both legs during that examination, and no reason was provided for characterizing them differently. Therefore, this opinion has low probative value and is outweighed by the other evidence. Additionally, the VA examiner’s characterization of the overall severity is not dispositive of the outcome, as the Board must consider all lay and medical evidence and make a fair determination. In this case, the Board finds that there was no more than moderate incomplete paralysis bilaterally, as explained above. In summary, the Veteran did not have compensable right or left lower extremity neurologic symptoms prior to May 2, 2012, and her neurologic manifestations have been relatively consistent since that date. Any increases in severity were not sufficient to more nearly approximate the criteria for a higher rating at any point. There is no reasonable doubt to be resolved in her favor. The appeals are denied. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Wheatley 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.