Citation Nr: 21063988 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 14-25 223A DATE: October 18, 2021 ORDER For the entire period on appeal, a 50 percent rating, but not higher, for a back disability is granted. A compensable rating for right lower extremity radiculopathy is denied prior to December 29, 2015. A 10 percent rating, but not higher, for right lower extremity radiculopathy is granted from December 29, 2015 to June 18, 2017. A rating in excess of 10 percent for right lower extremity radiculopathy is denied from June 19, 2017, to April 11, 2018. A 40 percent rating, but no higher, for right lower extremity radiculopathy is granted from April 12, 2018. A compensable rating for left lower extremity radiculopathy is denied prior to December 29, 2015. A 10 percent rating, but no higher, for left lower extremity radiculopathy is granted from December 29, 2015, to April 9, 2018. A rating in excess of 10 percent for left lower extremity radiculopathy is denied from April 10, 2018, to April 11, 2018. A rating in excess of 20 percent for left lower extremity radiculopathy is denied from April 12, 2018. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's back disability most nearly approximated the functional equivalent of unfavorable ankylosis. 2. The probative evidence weighs against a finding that the Veteran had symptoms of right leg radiculopathy prior to December 29, 2015. 3. From December 29, 2015, to June 18, 2017, the Veteran's right lower extremity radiculopathy affecting the sciatic nerve manifested as mild incomplete paralysis. It did not manifest as moderate incomplete paralysis or include muscle atrophy or complete paralysis. 4. From June 19, 2017, to April 11, 2018, the Veteran's right lower extremity radiculopathy affecting the sciatic nerve manifested as mild incomplete paralysis. It did not manifest as moderate incomplete paralysis or include muscle atrophy or complete paralysis. 5. From April 12, 2018, the Veteran's right lower extremity radiculopathy affecting the sciatic nerve manifested as moderately severe incomplete paralysis. It did not manifest as severe incomplete paralysis with marked muscle atrophy or complete paralysis. 6. The probative evidence weighs against a finding that the Veteran had symptoms of left leg radiculopathy prior to December 29, 2015. 7. From December 29, 2015, to April 9, 2018, the Veteran's left lower extremity radiculopathy affecting the sciatic nerve manifested as mild incomplete paralysis. It did not manifest as moderate incomplete paralysis or include muscle atrophy or complete paralysis. 8. From April 10, 2018, to April 11, 2018, the Veteran's left lower extremity radiculopathy affecting the sciatic nerve manifested as mild incomplete paralysis. It did not manifest as moderate incomplete paralysis or include muscle atrophy or complete paralysis. 9. From April 12, 2018, the Veteran's left lower extremity radiculopathy affecting the sciatic nerve manifested as moderate incomplete paralysis. It did not manifest as moderately severe incomplete paralysis or include muscle atrophy or complete paralysis. CONCLUSIONS OF LAW 1. Throughout the appeal period, the criteria for 50 percent rating, but no higher, for a back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5010, 5237. 2. The criteria for a compensable rating for right lower extremity radiculopathy have not been met prior to December 29, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 3. The criteria for a 10 percent rating, but no higher, for right lower extremity radiculopathy of the sciatic nerve have been met from December 29, 2015, but no earlier, to June 18, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for a rating in excess of 10 percent for right lower extremity radiculopathy of the sciatic nerve have not been met from June 19, 2017, to April 11, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for a 40 percent rating, but no higher, for right lower extremity radiculopathy of the sciatic nerve have been met from April 12, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. The criteria for a compensable rating for left lower extremity radiculopathy have not been met prior to December 29, 2015. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 7. The criteria for a 10 percent rating, but no higher, for left lower extremity radiculopathy of the sciatic nerve have been met from December 29, 2015, to April 9, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 8. The criteria for a rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve have not been met from April 10, 2018, to April 11, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. 9. The criteria for a rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve have not been met from April 12, 2018. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1980 to April 1990, with honorable service from June 1980 to June 1984. This matter comes before the Board of Veterans' Appeals on appeal of a September 2013 Agency of Original Jurisdiction (AOJ) rating decision issued by the Department of Veterans Affairs (VA). The Board remanded the appeal to the AOJ in May 2019, November 2020, and April 2021 and there has been substantial compliance with its remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A Board hearing was held in October 2018. A transcript is of record. Increased rating for a lumbar spine disability The Veteran contends that his lumbar spine disability with bilateral lower extremity radiculopathy has resulted in symptoms of severe pain and functional limitations since his in-service injury in 1982. He asserts that the symptoms warrant a higher rating for the lumbar spine disability and that he has had lower extremity radicular symptoms, greater in the right leg than the left leg, throughout the appeal period. The September 2013 rating decision on appeal granted service connection for a spine disability and assigned a 10 percent evaluation effective May 11, 2012. While this appeal has been pending, the AOJ also assigned separate evaluations for radiculopathy, effective June 19, 2017, for the right lower extremity and April 10, 2018, for the left lower extremity. As the General Rating Formula for Diseases and Injuries of the Spine directs associated neurologic abnormalities be evaluated as part of the spine disability, the ratings for bilateral lower extremity radiculopathy must be considered for the entire period of this appeal. Further, a June 2020 rating decision assigned a 40 percent rating for the spine disability and 20 percent ratings for right and left lower extremity radiculopathy, effective April 12, 2018. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded). Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Where, as here, the question to consider is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating are required. See Fenderson v. West, 12 Vet. App. 199, 125-26 (1999); Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Rating the lumbar spine under Diagnostic Code 5237 For disabilities evaluated based on limitation of motion, VA must consider granting a higher rating in cases in which functional loss due to pain, weakness, excess fatigability, or incoordination is demonstrated, and those factors are not contemplated in the relevant rating criteria. See DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. The Court of Appeals for Veterans Claims (Court) clarified that although pain may be a cause or manifestation of functional loss, limitation of motion due to pain is not necessarily rated at the same level as functional loss where motion is impeded. See Mitchell v. Shinseki, 25 Vet. App. 32, 42-43 (2011). Instead, the Court in Mitchell explained that pursuant to 38 C.F.R. §§ 4.40 and 4.45, the possible manifestations of functional loss include decreased or abnormal excursion, strength, speed, coordination, or endurance, as well as less or more movement than is normal, weakened movement, excess fatigability, and pain on movement (as well as swelling, deformity, and atrophy) that affects stability, standing, and weight-bearing. See 38 C.F.R. §§ 4.40, 4.45. Functional loss caused by pain must be rated at the same level as if the functional loss were caused by any of the other factors cited above. Thus, in evaluating the severity of a joint disability, VA must determine the overall functional impairment due to these factors. VA rated the Veteran's lumbar condition under 38 C.F.R. § 4.71a, Diagnostic Code 5010-5237. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27. In this case, the Veteran's service-connected chronic lumbar strain is rated under Diagnostic Code 5010, which pertains to traumatic arthritis, and requires the use of Diagnostic Code 5237, which pertains to lumbosacral or cervical strain. The Veteran does not assert, nor does the record reflect, that he has Intervertebral Disc Syndrome (IVDS). Therefore, the spine disability will not be further evaluated under the Formula for Rating IVDS Based on Incapacitating Episodes. All spinal disabilities are evaluated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). The Board notes that during the pendency of the appeal, the General Rating Formula under 38 C.F.R. § 4.71a was amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. VA must consider the claim for a higher rating pursuant to the former and revised regulations after February 7, 2021. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Prior to February 7, 2021, the criteria for traumatic arthritis in Diagnostic Code 5010 directed that evaluations be made pursuant to the criteria for degenerative arthritis found in Diagnostic Code 5003. 38 C.F.R. § 4.71a. Degenerative arthritis established by X-ray findings are rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. Effective February 7, 2021, Diagnostic Code 5010 provides that post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint. If there are 2 or more joints affected, each rating shall be combined in accordance with applicable regulations. The amendment did not revise the rating criteria for Diagnostic Code 5237 under the General Rating Formula. They remain as follows: A 100 percent rating is provided for unfavorable ankylosis of the entire spine. A 50 percent rating is provided for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is provided for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is provided 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 10 percent rating is provided for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 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. 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, which 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). For VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine is fixed in flexion or extension and 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. 38 C.F.R. § 4.71a, General Rating Formula, Note (5). 1. Entitlement to an initial rating in excess of 10 percent for a back disability prior to April 12, 2018, and in excess of 40 percent thereafter. The Board finds the evidence at least in equipoise that the Veteran's chronic lumbar strain with degenerative disc disease, spinal stenosis and spondylolisthesis was manifested by the functional equivalent of unfavorable ankylosis of the entire thoracolumbar spine throughout the period on appeal. Chavis v. McDonough, 34 Vet. App. 1, 11 (2021) (A claimant may obtain "an evaluation based on ankylosis if [that] claimant's functional loss is consistent with that contemplated by ankylosisin other words, if it is the functional equivalent of ankylosis."); Langdon v. McDonough, No. 18-0520, 2021 U.S. App. Vet. Claims LEXIS 1472, at *1 (Aug. 19, 2021) (adopting the Federal Circuit's holding that the plain language of 38 C.F.R. § 4.71a requires VA to treat the thoracolumbar spine as a unit when applying the General Rating Formula). Lay statements of record consistently report functional loss due to pain during flare-ups caused the Veteran to walk with an antalgic gait leaning forward. See, e.g., May 2013 Buddy Statement from T.G. (reporting that the Veteran's back pain caused him to walk with a limp and that his "lower body is twisted."). Moreover, the Veteran testified that flare-ups of back pain caused difficulty breathing due to the intensity of pain and tightness of his back muscles. October 2018 Board Hearing tr., at 14. He also described symptoms of walking sideways or tilted due to his flare-ups of pain that prevented him from straightening up. Id. at 15-16. The Veteran is competent to testify to facts he personally observed, including recall of what he personally felt. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds the testimony credible and supported by a December 2019 examination report. At the December 2019 examination, the Veteran's forward flexion was limited to 10 to 20 degrees with 0 degrees extension. 38 C.F.R. § 4.71a, General Rating Formula, Note (2). The examiner noted that the Veteran could not bend, twist, or turn and observed guarding causing slow gait and a forward lean. Further, the Veteran explained that he was experiencing a flare up at the December 2019 examination. See December 18, 2019, Correspondence (reporting that he told the examiner that he was having a flare-up because it was "really bad day" due to pain). Medical records further reflect functional loss due to pain caused the entire spine to be functionally fixed in flexion during flare-ups throughout the appeal period. A June 2017 VA occupational therapy consultation noted the Veteran's report that increased pain from sneezing caused him to bend forward and observed forward posture with rounded shoulders and head forward. The Veteran reported flare-ups of pain at his August 2013 VA examination that caused him to "walk abnormal." A January 2021 examination reported forward flexion limited to 20 degrees with pain noted throughout testing, flexion was further limited to 10 degrees after testing with at least three repetitions and the examiner noted functional loss due to pain, weakness, fatigability, lack of endurance, and incoordination with an estimated 9 degrees flexion after repeated use over time. Severe tenderness was noted to result in mildly antalgic gait with guarding. At a July 2021 examination, the Veteran reported severely painful flare-ups were entirely incapacitating for two to three days that inhibited any activity or movement and described functional loss due to pain to include abnormal gait and speed that he described as hunching over and walking sideways. The July 2021 clinician estimated flare-ups limited flexion to 15 degrees and guarding resulted in an abnormal gait and functionally precluded the Veteran's ability to sit, stand, drive or ambulate for prolonged periods, bend, stoop, twist, crawl, jump, reach, push, pull, pick up items, perform chores, take stairs, and that he was unable to do anything at all during flares, which occurred at least twice per month and lasted two to three days each. The Board acknowledges that the August 2013 and December 2015 VA examiners found forward flexion was limited to 80 degrees but notes that the additional functional loss due to flare-ups or repetitive motion could not be described in terms of degree, with the August 2013 examiner reported the measurement would require subjective information from the claimant. The Board affords these reports limited probative value. The Veteran is competent to report symptoms he is able to observe, such as walking abnormally due to pain and the frequency of such symptoms. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Sharp v. Shulkin, 29 Vet. App. 26, 34 (2017) (an examination does not need to be conducted during an actual flare-up in order to account for additional functional impairment. Instead, examiners are asked to estimate the functional impairment experienced during a flare-up, considering all competent evidence of functional loss that is available in the record.). As such, the Board finds sufficient evidence that flare-ups due to pain demonstrate the functional equivalent of unfavorable ankylosis as described in Note (5) of the General Rating Formula. A 50 percent rating is warranted. The analysis does not change when considering the revised criteria after February 2021. There was no evidence of unfavorable ankylosis of the entire spine, or the functional equivalent of unfavorable ankylosis of the entire spine, to warrant a 100 percent rating. See Chavis, 34 Vet. App. at 11. The Veteran does have a service-connected cervical spine disability rated 10 percent disabling prior to June 19, 2017, 20 percent disabling from June 19, 2017, to March 27, 2018, and 10 percent disabling from March 28, 2018. VA treatment records note general complaints of neck pain and there is evidence of painful motion of the cervical spine that caused some decrease in range of motion and loss of strength but did not affect gait or spinal contour. See August 2017 VA Neck Disability Benefits Questionnaire (DBQ), at 3-4; March 2018 VA Neck DBQ, at 3-4. There is no evidence indicating the entire spine, to include the cervical spine, was actually or functionally fixed in flexion or extension. The analysis does not change when considering the revised criteria after February 2021. The Board concludes the evidence of record supports a finding that the Veteran's flare-ups of pain cause the thoracolumbar spine to be functionally fixed in forward flexion with dyspnea to most nearly approximate unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.7; Chavis, 34 Vet. App.at 11. Objective neurologic abnormalities Pursuant to Note (1) of the General Rating Formula, VA is to evaluate any associated objective neurologic abnormalities separately under an appropriate diagnostic code. 38 C.F.R. § 4.71a. As noted above, the Veteran's back disability is productive of bilateral lower extremity radiculopathy and the ratings for the entire period on appeal are before the Board at this time. The Veteran has not contended, nor does the evidence of record reflect, that he has any other neurological abnormalities associated with his back disability; he specifically denied any bowel or bladder dysfunction throughout the appeal period. Under the Schedule of Ratings diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Descriptive words such as "slight," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. Sciatic nerve disabilities are evaluated under the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, when the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. 2. A compensable rating for right lower extremity radiculopathy involving the sciatic nerve prior to June 19, 2017. First, the Board finds a compensable rating is warranted for right lower extremity radiculopathy from December 29, 2015, the date of a VA examination the Veteran first reported symptoms involving the right leg. See 38 C.F.R. § 3.400(o). The Board finds a compensable rating is not warranted prior to December 29, 2015, as all lay statements and medical records prior to that date do not describe any radiating pain to the lower right extremity in reports of symptoms of back pain. See June 2013 Buddy Statements; October 2013 Correspondence. Further, an August 2013 VA Disability Benefits Questionnaire reported no right lower extremity symptoms and found normal muscle strength, reflexes, and sensation to light touch testing on examination. The Board acknowledges the Veteran's testimony that he has experienced radiating pain since his in-service injury. However, the Board finds the medical records and contemporaneous statements by the Veteran describing his symptomatology prior to December 29, 2015, and not including any reports of symptoms affecting the right leg, to be more probative. Prior to December 29, 2015, the Board does not have an evidentiary anchor with which to assign a compensable rating for right lower extremity radiculopathy. Second, the Board finds a 10 percent rating, but no higher, may be assigned for right lower extremity radiculopathy from December 29, 2015, to June 18, 2017. The Board finds the right lower extremity radiculopathy was manifested by no more than mild incomplete paralysis during this period and that the December 2015 VA examination is probative evidence in support of a 10 percent rating. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (noting that the credibility and weight of the opinions are within the province of the adjudicator); see also Prejean v. West, 13 Vet. App. 444, 448-49 (2000) (factors for assessing the probative value of a medical opinion are the physician's access to the claims folder and the thoroughness and detail of the opinion.). The December 2015 examiner noted the Veteran's reports of intermittent pain that shot down into the bilateral lower extremities and observed a hypoactive right knee reflex, decreased sensation to touch at the right lower leg, and a positive straight leg raising test on the right lower extremity. The examiner described the symptoms as mild intermittent pain and paresthesias involving the sciatic nerve with an overall degree of severity characterized as mild. An August 2016 private treatment record generally reported intermittent numbness and observed normal motor strength and intact sensory. The Board finds that evidence during this period on appeal of wholly sensory symptomatology that was described as mild in severity does not support assignment of more than a 10 percent rating for right lower extremity radiculopathy involving the sciatic nerve. A compensable rating is denied prior to December 29, 2015, and a 10 percent rating, but no higher, is granted from December 29, 2015, to June 18, 2017. 38 C.F.R. §§ 4.6, 4.124a, Schedule of ratings for Diseases of the Peripheral Nerves. 3. A rating in excess of 10 percent for right lower extremity radiculopathy involving the sciatic nerve from June 19, 2017, to April 11, 2018. Further, a rating in excess of 10 percent is not warranted from June 19, 2017, to April 11, 2018, because right leg radiculopathy involving the sciatic nerve was manifested by no more than mild incomplete paralysis. Id. An August 2017 VA peripheral neuropathy examination report noted the Veteran's reports of radiating pain and numbness and described the symptoms as mild pain and paresthesias and moderate numbness. The examiner found the right ankle had active movement against some resistance, with hypoactive reflexes at the knee and ankle and decreased sensation to light touch at the lower leg and foot and characterized the overall severity as mild incomplete paralysis of the right sciatic nerve. This is consistent with June 2017 VA treatment noting general intermittent leg symptomatology and July 2017 and February 2018 VA treatment records' notations of complaints of low back pain radiating into the right leg with intermittent numbness, tingling, and burning. Thus, a rating in excess of 10 percent for right lower extremity radiculopathy is not warranted from June 19, 2017, to April 11, 2018. 4. A rating in excess of 20 percent for right lower extremity radiculopathy involving the sciatic nerve from April 12, 2018. The Board finds the evidence at least in equipoise that right leg radiculopathy involving the sciatic nerve most nearly approximated moderately severe incomplete paralysis from April 12, 2018. 38 C.F.R. §§ 4.6, 4.7. Here, the June 2018, December 2019, January 2021, and July 2021 VA examination reports, when viewed as a whole, support a conclusion that the Veteran's right leg radiculopathy was manifested by moderate to severe pain, paresthesias, and numbness with decreased muscle strength that required use of a cane for stability that contemplates more than sensory involvement of the sciatic nerve. The January 2021 and July 2021 examiners reported constant use of a cane was required for bilateral lower extremity radiculopathy and examination revealed decreased muscle strength and sensation. The Veteran's symptoms of constant pain, intermittent pain, paresthesias, and numbness ranged in severity from moderate to severe and included reports of feelings of the right leg giving way. The Board acknowledges that a June 2018 VA examiner noted reports that right lower extremity radiculopathy was productive of severe constant pain, intermittent pain, and paresthesias, and moderate numbness with hypoactive deep tendon reflex at the knee but also reported normal muscle strength and sensation that the examiner characterized as moderate incomplete paralysis. However, private physical therapy records from 2018 reported decreased muscle strength at the hip and knee and an August 2018 VA treatment record notes the Veteran's request for a cane based on his reports that pain affected his ability to ambulate safely. When viewed as a whole, the Board finds the evidence at least in equipoise and resolves all reasonable doubt in favor of a 40 percent rating. 38 C.F.R. §§ 4.3, 4.6. A rating in excess of 40 percent is not warranted as there is no evidence of record that the right leg radiculopathy has been productive of marked muscular atrophy to constitute severe incomplete paralysis. 38 C.F.R. § 4.124a. Further, the Board acknowledges the Veteran's testimony that he believed his foot dangled and dropped, indicative of complete paralysis of the sciatic nerve, but finds the VA examination reports that conducted testing and found active movement possible of muscles below the knee to be more probative and weigh against a finding of complete paralysis at any point during the period on appeal. 38 C.F.R. § 4.7. 5. A compensable rating for left lower extremity radiculopathy involving the sciatic nerve prior to April 10, 2018. 6. A rating in excess of 10 percent for left lower extremity radiculopathy of the sciatic nerve from April 10, 2018, to April 11, 2018. First, the Board finds the evidence at least in equipoise in support of a compensable rating for left lower extremity radiculopathy from December 29, 2015, the date of a VA examination the Veteran first reported symptoms involving the left leg. See 38 C.F.R. § 3.400(o). The Board finds a compensable rating is not warranted prior to December 29, 2015, as no contemporaneous lay statement or medical record prior to this date describe any radiating pain to the lower left extremity when providing reports of symptoms of back pain. See June 2013 Buddy Statements; October 2013 Correspondence. Further, an August 2013 VA DBQ reported no left lower extremity symptoms and found normal muscle strength, reflexes, and sensation to light touch testing on examination. Although the December 2015 VA examiner did not find left leg radiculopathy due to normal test results, the Board notes that the examiner's conclusion that the left leg was manifested by no symptoms is in conflict with the Veteran's contemporaneous report of intermittent radiating pain affecting both extremities. The Board acknowledges the Veteran's testimony that he has experienced radiating pain since his in-service injury and resolves all reasonable doubt in support of a compensable rating for left leg radiculopathy beginning December 29, 2015. 38 C.F.R. §§ 4.3, 4.6. However, as the probative medical records and contemporaneous statements by the Veteran describing his symptomatology prior to December 29, 2015, do not include any reports of symptoms affecting the left leg, the Board does not have an evidentiary anchor with which to award a compensable rating for left lower extremity radiculopathy prior to December 29, 2015. Second, the Board finds a 10 percent rating, but no higher, is warranted from December 29, 2015, to April 10, 2018, and a rating in excess of 10 percent is not warranted from April 10, 2018, to April 11, 2018, as left lower extremity radiculopathy was manifested by no more than mild incomplete paralysis during this period on appeal. The Board finds the December 2015 and August 2017 VA examination reports to be probative evidence against assignment of a rating in excess of 10 percent from December 29, 2015, to April 11, 2018. See Guerrieri, 4 Vet. App at 470-71. As noted above, the December 2015 examiner reported a normal left leg upon testing for muscle strength, reflexes, and sensation. Further, an August 2017 VA peripheral neuropathy examination report noted no reported left leg symptoms with testing results finding normal muscle strength and sensation but hypoactive reflexes at the knee and ankle. A June 2017 VA occupational therapy record generally reported intermittent leg symptomatology and a February 2018 VA pain clinic treatment record recorded reports of radiating bilateral lower extremity pain with some tingling and burning in the left leg. The Board finds that evidence during this period on appeal to most nearly approximate wholly sensory, mild symptomatology. The Veteran generally reported intermittent symptoms or did not reported any left leg symptomatology in other records during this period describing back and right lower extremity pain. See, e.g., June 30, 2017, VA occupational therapy note; September 12, 2017, VA rehabilitation consultation. The Board finds a compensable rating not warranted prior to December 29, 2015, a 10 percent rating, but no higher, is warranted from December 29, 2015, to April 10, 2018, and a rating in excess of 10 percent is not warranted from April 10, 2018, to April 11, 2018. 38 C.F.R. §§ 4.6, 4.124a, Schedule of ratings for Diseases of the Peripheral Nerves. 7. A rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve from April 12, 2018. The probative evidence of record weighs against a finding that the left lower extremity radiculopathy was manifested by more than moderate incomplete paralysis from April 12, 2018. A rating in excess of 20 percent is not warranted. The Board finds the June 2018, December 2021, January 2021, and July 2021 VA examination reports to be probative evidence against assignment of a higher rating from April 11, 2018. See Guerrieri, 4 Vet. App at 470-71. Testing at the VA examinations revealed normal reflexes, decreased muscle strength with no atrophy, and decreased sensation at the ankle and foot. The severity of the symptoms of intermittent pain, constant pain, paresthesias, and numbness was described as mild to moderate. Moreover, the June 2018 and December 2021 VA examiners concluded that the left sciatic nerve involvement was overall mild in severity. A May 2018 private physical therapy note found decreased muscle strength in the bilateral lower extremities and pain upon straight leg raising. VA treatment records generally reported symptoms affecting the right leg. The Board finds that the evidence since April 12, 2018, is overall indicative of no more than moderate incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.6. Although the Board notes that VA examiners found bilateral lower extremity radiculopathy required a use of a cane for ambulation since January 2021, this decreased muscle strength and lack of stability is contemplated by a 20 percent rating based on left leg symptomatology that is characterized as mild to moderate in severity. This is also consistent with the Veteran's testimony that his radiculopathy symptoms were always more severe on the right leg than the left including during flare-ups. See October 2018 Board hearing tr., at 4, 12, 15. The Board finds a rating in excess of 20 percent is not warranted from April 12, 2018. 38 C.F.R. §§ 4.6, 4.124a, Schedule of ratings for Diseases of the Peripheral Nerves. The Board has considered whether any additional separate ratings may be assigned for bilateral lower extremity radiculopathy but finds no additional ratings are warranted at any point during the appeal period. The Board acknowledges that a June 2018 VA peripheral neuropathy DBQ was obtained in support of claims for upper extremity radiculopathy ratings and included findings of bilateral lower extremity popliteal and posterior tibial nerve involvement. However, the Board finds the preponderance of the evidence weighs against assignment of separate evaluations for these bilateral lower extremity nerves, as there is no other evidence of record indicating the bilateral popliteal or posterior tibial nerves were productive of incomplete paralysis due to the service-connected back disability. Moreover, the Board notes that the June 2018 examiner did not perform any diagnostic testing, to include electromyography (EMG) studies, nor provided a rationale to support the findings of popliteal or posterior tibial nerve involvement due to the service-connected back disability. As such, the Board affords little probative weight to the June 2018 examination findings that the additional nerves were affected. Rather, the evidence reflects that the Veteran's bilateral lower extremity radiculopathy is contemplated by the evaluations for bilateral sciatic nerve involvement. Finally, the Board has considered whether entitlement to a total disability rating based on individual unemployability (TDIU) is raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). Even though the record reflects that the Veteran had to stop working as a quality inspector around 2016 and pursued a claim for disability in 2018; he since stated that he was employed as a pastor. VA clinicians have also indicated that the functional impairment due to the Veteran's back disability with bilateral leg radiculopathy impacts his ability to work. For example, a July 2021 VA DBQ noted functional limitations included a loss of two to four weeks of work time in the past year due to incapacitating flare-ups of back pain as well as general limitations to his ability to sit, stand, drive, and ambulate for prolonged periods and an inability to bend, stoop, twist, crawl, jump, reach, take stairs, or perform chores around the home. See, e.g., July 2021 VA back DBQ, at 18. However, even though the Veteran has described the impacts of the back disability on his work as a pastor, he has not contended that he is unable to work due to his back disability. See 38 C.F.R. § 4.16(a). There is no evidence of record that the Veteran is not working and that such may be due to his back disability with bilateral radiculopathy. As such, the Board finds the schedular standards contemplate the functional impairment due to the back disability with bilateral lower extremity radiculopathy and entitlement to TDIU has not been raised. Id., Rice v. Shinseki, 22 Vet. App. 447 (2009). DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Odya-Weis 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.