Citation Nr: 21067815 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 17-03 997 DATE: November 5, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for low back strain prior to August 19, 2020 an in excess of 40 percent thereafter is denied. Entitlement to a rating higher than 10 percent for peripheral neuropathy, right lower extremity femoral nerve associated with low back strain is denied FINDINGS OF FACT 1. Prior to August 19, 2020, the Veteran's thoracolumbar spine disability manifested in forward flexion of the thoracolumbar spine of 70 degrees, combined range of motion of 185 degrees and no ankylosis of either the thoracolumbar or entire spine; there was no evidence of intervertebral disc syndrome (IVDS); and functional loss was limited to painful motion. 2. From August 19, 2020, the Veteran's low back disability was manifested by forward flexion between 20 and 30 degrees, with functional loss caused by flare ups and repetitive use. There was no evidence of ankylosis, functional ankylosis, or incapacitating episodes of IVDS having a total duration of at least 6 weeks. 3. The Veteran experiences no more than mild incomplete paralysis of the right lower extremity femoral nerve. CONCLUSIONS OF LAW 1. Prior to August 19, 2020, the criteria for entitlement to an initial rating in excess of 10 percent for low back strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237 2. From August 19, 2020, the criteria for entitlement to a rating in excess of 40 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.14, 4.21, 4.40, 4.45, 4.59, 4.71a, DC 5237. 3. The criteria for entitlement to a rating in excess of 10 percent for peripheral neuropathy, right lower extremity femoral nerve associated with low back strain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8621. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from May 2011 to October 2011 and from January 2014 to January 2015. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a May 2016 rating decision of the Agency of Original Jurisdiction (AOJ). The matter was previously before the Board in December 2018 and July 2021. In July 2021, the Board remanded the matter to the AOJ for further evidentiary development, which included providing an adequate medical opinion compliant with Chavis v. McDonough, No. 18-2928, 2012 LEXIS 660 (Vet. App. April 16, 2021). The Board is obligated by law to ensure that the AOJ complies with its directives; where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance. A review of the record reflects that the AOJ has substantially complied with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In October 2020 and September 2021 supplemental statements of the case, the AOJ addressed the Veteran's claim for an increased rating for a low back disability. In October 2020, the AOJ issued a rating decision increasing the evaluation of the Veteran's low back disability from 10 to 40 percent and awarding a separate 10 percent evaluation for peripheral neuropathy, right femoral nerve associated with low back strain effective August 19, 2020. Because this rating was not a total grant of benefits, the claim for an increased rating remained before the Board. AB v Brown, 6 Vet. App. 35, 39 (1993). 1. Entitlement to a rating in excess of 10 percent for low back strain prior to August 19, 2020 and in excess of 40 percent thereafter Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10 (2017). In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2 (2017); Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7 (2017). It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21 (2017). The Board will also consider entitlement to staged ratings to compensate for times since the claim was filed when the disability may have been more severe than at other times during the appeal. Hart v. Mansfield, 21 Vet. App. 505 (2007). In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40 (2018). With respect to disabilities of the joints, it must be considered whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45 (2018). These provisions thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 07 (1995). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997). In determining if a higher rating is warranted on this basis, pain itself does not constitute functional loss. Similarly, painful motion alone does not constitute limited motion for the purposes of rating under diagnostic codes pertaining to limitation of motion. However, pain may result in functional loss if it limits the ability to perform normal movements with normal excursion, strength, speed, coordination, or endurance, as provided in §§ 4.40 and 4.45. Functional loss due to pain is to be rated at the same level as functional loss caused by some other factor that actually limited motion. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The intent of the Rating Schedule is to recognize actually painful, unstable or misaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 (2018). As such, painful motion should be considered to determine whether a higher rating is warranted on such basis, whether or not arthritis is present. See Burton v. Shinseki, 25 Vet. App. 1 (2011). The Veteran contends that his lumbar spine symptoms are more severe than is contemplated by the 10 percent rating assigned prior to August 19, 2020 and the 40 percent rating assigned thereafter. The Veteran's lumbar disability is currently rated under DC 5237. The General Rating Formula for Diseases and Injuries of the Spine (General Formula) assigns disability ratings as follows: With or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees but not greater than 235 degrees; or, muscle spasm or guarding or localized tenderness not resulting in an abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. A 20 percent 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. Id. A 30 percent rating is warranted where flexion of the cervical spine is 15 degrees or less; or favorable ankylosis of the entire cervical spine. Id. A 40 percent evaluation will be 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. Id. A 50 percent evaluation will be assigned of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation will be assigned for unfavorable ankylosis of the entire spine. Id. Note (1): Evaluate any associated objective neurologic abnormalities, including but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Id. Note (2): For VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. Normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. Id. Note (4): Round each range of motion measurement to the nearest five degrees. Id. Note (5): For VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. Note (6): Separately evaluate disability of the thoracolumbar and cervical spine segments, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. Id. Under DC 5243, the DC used to evaluate IVDS, evaluations range from 10 to 60 percent based on the number of incapacitating episodes (period of acute signs and symptoms due to IVDS that require bed rest prescribed by a physician and treatment by a physician). 38 C.F.R. § 4.71a, DC 5243. Diagnostic Code 5243 provides that intervertebral disc syndrome (IVDS) (preoperatively or postoperatively) is to be rated either under the General Rating Formula for Disease and Injuries of the Spine, or 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, Diagnostic Code 5243. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Id. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. Id. A 40 percent rating is warranted where there are incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Id. A 60 percent rating is warranted where there are incapacitating episodes having a total duration of at least six (6) weeks during the previous 12 months. Id. The disabilities of the spine that are rated under the General Rating Formula for Diseases and Injuries of the Spine include vertebral fracture or dislocation (DC 5235), sacroiliac injury and weakness (DC 5236), lumbosacral or cervical strain (DC 5237), spinal stenosis (DC 5238), spondylolisthesis or segmental instability (DC 5239), ankylosing spondylitis (DC 5240), spinal fusion (DC 5241), degenerative arthritis of the spine (DC 5242) (for degenerative arthritis of the spine, see also DC 5003) (prior to Feb. 7, 2021), degenerative arthritis, degenerative disc disease other than IVDS (also, see either DC 5003 or DC 5010) (effective Feb. 7, 2021), IVDS (DC 5243), and complete traumatic paralysis (DC 5244) (effective Feb. 7, 2021). The Board notes that the criteria for rating musculoskeletal disabilities, including disabilities of the spine, have changed once during the period covered by this appeal, effective February 7, 2021. See 85 Fed. Reg. 76453 (Nov. 30, 2020). When a law or regulation changes during the pendency of a Veteran's appeal, the version most favorable to the Veteran applies, absent congressional intent to the contrary. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See 38 U.S.C. § 5110(g); 38 C.F.R. § 3.114; VAOPGCPREC 3-2000, 65 Fed. Reg. 33422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Thus, the Veteran is entitled to application of the criteria that are most favorable to his claim, except that an award based on the amended regulations may not be made effective before the effective date of the change. The Board notes that, effective February 7, 2021, DC 5242 was amended to include degenerative disc disease other than IVDS. DC 5244 was also added to add paraplegia and quadriplegia. DC 5237, under which the Veteran's chronic lumbar strain and chronic cervical strain is currently rated, was not changed. The Board notes that the spine regulations were also amended to state that Diagnostic Code 5243 governing Intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root; and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). The Board notes that this change does not impact the evaluation in this case as the Veteran does not have any evidence of incapacitating episodes that would warrant a compensable rating under Diagnostic Code 5243. Prior to August 19, 2020 During this period of the appeal, the Veteran originally underwent a VA exam for back conditions in May 2016. The examiner provided a diagnosis for lumbosacral strain and retrolisthesis. The Veteran noted low back pain during and since service. The Veteran did not report flare-ups. His initial range of motion measured flexion of 70 degrees and extension of 20 degrees. His combined range of motion was 185 degrees. Pain was noted on exam in all ranges of motion. The Veteran was able to perform repetitive-use testing with three repetitions. There was no change post-test in his range of motion for the thoracolumbar spine. There was functional loss or impairment of the thoracolumbar spine, which the examiner identified as less movement than normal, and inability to fully bend over. There was some localized pain or tenderness of the soft tissue or joints noted and evidence of pain on weight bearing. Muscle strength testing was normal. There was no muscle atrophy. Reflexes were normal, and sensory exam results were normal. The Straight Leg Test was negative for both legs. There was no radiculopathy noted, and there were no signs or symptoms of radiculopathy. There were no neurologic abnormalities or findings related to the thoracolumbar spine. There was no intervertebral disc syndrome (IVDS). There were no assistive devices noted and no associated scars. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. As to lay statements, in addition to those noted during examination, the Veteran stated in his November 2016 notice of disagreement that he could not stand for prolonged periods of time without aches and pain. He reported that pain disturbed his sleep and his ability to focus on school. He noted that the pain affected daily activities including showering, shopping, sleeping, and dressing. VA treatment records from January 2016 indicated the Veteran experienced pain in the lumbar region and paraspinal muscles with no radiation and no leg weakness. Treatment records from February 2019 not lower back pain shooting up the spine and into both hips with no paresthesia or numbness. Merits Having reviewed the evidence of record, medical and lay, the Board finds that an initial rating in excess of 10 percent is not warranted for the Veteran's thoracolumbar spine disability prior to August 19, 2020. During this period of the appeal, the Veteran's measured range of motion, 70 degrees flexion, is commensurate with a 10 percent rating. A 20 percent rating requires flexion limited to at least 60 degrees or combined range of motion not greater than 120 degrees, whereas the Veteran' combined range of motion was 185 degrees. Thus, a 20 percent rating is not warranted. Nor is there any medical evidence of record to reflect that the Veteran's forward flexion for the lumbar spine was 30 degrees or less during this period of the appeal. Thus, lacking competent evidence of forward lumbar flexion limited to 30 degrees or less, a 40 percent rating is not warranted based on limitation of motion. 38 C.F.R. § 4.7a, Diagnostic Code 5237. Nor is a 40 percent rating or higher warranted for ankylosis of the thoracolumbar or entire spine as the medical evidence during this period of the appeal indicates that the Veteran did not have ankylosis of the spine. Further, the Veteran denied flare-ups during this period, thus, there is no basis for finding the equivalent of ankylosis during a flare-up. Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). Lacking competent evidence of ankylosis, a rating of 40 percent or higher is not warranted for ankylosis. Nor is a higher rating warranted for additional functional loss. The Board acknowledges the Veteran and VA examiner's reports that the Veteran's back disability affects his ability to stand or sit for prolonged periods of time. However, his functional ability was indicated to be limited by pain. Yet, as noted, pain itself does not rise to the level of functional loss applicable to the musculoskeletal system. Mitchell v. Shinseki, supra. Physical examination of the Veteran indicated no additional limitation of motion due to weakness, fatigability, or incoordination. The Veteran did not report flare-ups so there is no basis for the examiner to provide an estimate of additional loss of function during flare-ups. As such, a higher rating for additional limitation of motion is not warranted. See DeLuca v. Brown, supra. Nor is a rating for IVDS warranted as the medical evidence indicates that the Veteran did not have IVDS during this period of the appeal. Nor has the Veteran indicated as such. The Board has also considered whether a separate evaluation is warranted for associated conditions. The Board acknowledges the Veteran reported pain radiating from his back into his hips. The Board notes the Veteran was denied service connection for a bilateral hip disability as secondary to his low back condition in a September 2019 rating decision. As the Veteran has not appealed that decision, the issue is not properly before the Board. The record does not reflect any other radicular or sensory symptoms during this appeal. The medical evidence indicates that the Veteran did not have any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. As such, a separate rating is not warranted for radiculopathy or sensory impairment. Nor does the Veteran suggest that he has bowel or bladder problems. Nor did the Veteran have any associated scars, joint replacement, need for amputation or loss of functionality requiring prosthesis. As such, there is no basis to assign a separate rating during this period of the appeal. Nor are additional staged ratings warranted during this period of the appeal. Fenderson v. West. At no point during this period of the appeal has the Veteran's back disability manifested in symptoms commensurate with a higher rating than 10 percent based either on limitation of motion or ankylosis. In light of the evidence, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran's lumbar disability prior to August 19, 2020. From August 19, 2020 During this period of the appeal, the Veteran is in receipt of the highest rating available for limitation of motion of the thoracolumbar spine, and a higher rating is not available absent ankyloses. Generally, the provisions governing functional loss are not applicable once a Veteran is in receipt of the highest rating for limitation of motion, however, as noted above, the Court has held that the ankylosis requirement can be satisfied with evidence of the functional equivalent of ankylosis during a flare-up. Chavis v. McDonough, Vet.App. , No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare."). Following the May 2016 VA exam, the Veteran indicated that his condition had worsened, specifically that his back pain radiates downward to his hip. Subsequently, the Veteran underwent another VA exam for back conditions in August 2020. Pursuant to this exam, the Veteran's rating was increased to 40 percent. Additionally, the Veteran was awarded a separate 10 percent rating for peripheral neuropathy, right femoral nerve associated with low back strain with retrolisthesis. This rating is discussed below. At the August 2020 exam the Veteran reported pain with prolonged sitting or standing, pain on use, the need to wear a brace, and spasms. The pain affects his sleep and his ability to lift. He also reported flare-ups every several weeks with pain at an 8-9 requiring him to lay down. The flare-ups last several days to a week. The August 2020 examiner provided a diagnosis for degenerative arthritis of the spine. The Veteran's initial range of motion was indicated as abnormal, and his forward flexion measured to 30 degrees. There was no additional loss of motion on repetitive use testing and the examiner found no significant limitation of functional ability due to pain, weakness, or fatigability with repeated use of time. However, the examiner did note that there was significant limitation of functional ability during flare-ups and noted that range of motion would decrease to 25 degrees flexion, and 0 to 25 degrees in all other ranges of motion. Muscle spasms were noted but not resulting in abnormal gait or abnormal spinal contour. Muscle strength testing was normal, and there was no muscle atrophy. Reflexes and sensory exam findings were normal. The Straight leg raising test was negative for both legs. The report indicates that the Veteran did have mild intermittent pain, paresthesias and/or dysesthesias, and numbness on the right. Involvement of the L2/L3/L4 nerve roots was indicated. There was no ankylosis. There were no other neurologic abnormalities or findings related to a thoracolumbar spine (back) condition (such as bowel or bladder problems/pathologic reflexes). There was no IVDS of the thoracolumbar spine. There was no use of assistive devices. There was no functional impairment of an extremity such that no effective function remains other than that which would be equally well served by an amputation with prosthesis. There were no associated scars. In August 2021, a VA examiner provided an addendum opinion as to whether the Veteran's lumbar spine disability is functionally equivalent to ankylosis. The examiner opined that the Veteran's limitations due to his lumbar spine disability did not represent functional ankylosis. The examiner reasoned that functional ankylosis applies to non-bony limitations of movement of a joint due to contracture of soft tissue scarring. Muscle spasm is not "pseudo ankylosis." The examiner found no evidence of bony fusion or "pseudo ankylosis/functional ankylosis." The examiner explained that the same would be true after repeated use and during flare-ups. Specifically, the examiner noted that there was no loss of range of motion on observed repetitive use and no loss was anticipated by the examiner with repetitive use. Additionally, the estimates for flare-ups were not in a range that would be even remotely considered functionally ankylotic. Merits Having reviewed the evidence of record, the Board finds that a rating in excess of 40 percent for the Veteran's thoracolumbar spine disability is not warranted from August 19, 2020. The Veteran is assigned a 40 percent rating during this period of the appeal based on his limitation of motion, and as noted, a higher rating requires some form of ankylosis. In this case, there is no indication of ankylosis. The August 2020 VA back examination indicated that the Veteran does not have ankylosis of the spine, even during flare-ups the examiner noted decreased motion but not ankylosis. Nor has the Veteran indicated that his back is ankylosed. Moreover, the August 2021 examiner opined that the Veteran's additional limitations did not result in the functional equivalent of ankylosis on either repetitive use or during flare-ups. Lacking competent evidence of ankylosis of either the thoracolumbar or the entire spine, there is no basis for a higher rating under the General Rating Formula for Disease and Injuries of the Spine. Additionally, as there is no evidence of the equivalent of ankylosis during flare-ups, there is no basis to award a higher rating for functional loss per Chavis, supra. Nor is a higher rating warranted under the Formula for Rating IVDS Based on Incapacitating Episodes as the medical evidence indicates that the Veteran did not have IVDS during this period of the appeal. Nor has he asserted as such. The Board has also considered whether a separate evaluation is warranted for associated conditions. Initially, the Board notes that for this period, the Veteran is in receipt of a separate evaluation for peripheral neuropathy, right lower extremity femoral nerve which will be discussed below. The medical evidence does not indicate that the Veteran had any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment. Nor does the Veteran suggest that he has bowel or bladder problems. A separate rating for associated scars is also not warranted as the medical evidence indicates the Veteran does not have any scars associated with his back condition. Nor has he asserted as such. Therefore, Diagnostic Codes 7800-7805 for scars are not applicable. 38 C.F.R. § 4.118. Nor was there any indication of amputation or the need for amputation. As such, diagnostic codes pertaining to amputation are not applicable. Nor are additional staged ratings warranted during this period of the appeal. Fenderson v. West, supra. At no point during the appeal has the Veteran's back disability manifested in ankylosis. Accordingly, in light of the evidence, the Board finds that a 40 percent rating, but no higher, is warranted for the Veteran's lumbar disability from August 19, 2020. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy, right femoral nerve associated with low back strain. On remand, the AOJ granted separate 10 percent ratings for right lower extremity peripheral neuropathy associated with the Veteran's low back disability. See October 2020 rating decision. The Board finds that a rating higher than 10 percent is not warranted. Under DC 8621, a 10 percent evaluation is assigned for neuritis with mild incomplete paralysis of the external popliteal nerve. A 20 percent evaluation is assigned for neuritis with moderate incomplete paralysis of the external popliteal nerve. A 30 percent evaluation is assigned for neuritis with severe incomplete paralysis of the external popliteal nerve. A 40 percent evaluation is assigned for neuritis with complete paralysis of the external popliteal nerve; foot drop and slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of the proximal phalanges of toes lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8621. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of the nerve. When incomplete paralysis is wholly sensory, the rating should be for the mild, or at most, moderate degree. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." See also Miller v. Shulkin, 28 Vet. App. 376, 380 (2017) (non-sensory manifestations are not necessarily rated at a higher level). VA regulations provide that ratings for peripheral neurological disorders are assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. The Board must also consider loss of reflexes, pain, and muscle atrophy. 38 C.F.R. §§ 4.123, 4.124. As noted above, the Veteran reported radiculopathy symptoms at the August 2020 examination. According to the examination report, he had mild intermittent pain, mild paresthesias and/or dysesthesias and mild numbness in the right lower extremity; he had no other signs or symptoms of radiculopathy. Reflex and sensory examinations were normal. Muscle strength testing was also normal, with no evidence of muscular atrophy. Overall, the 2020 examiner characterized the level of severity of radiculopathy as "mild" for both the right lower extremity. The Veteran's reported symptoms and the examiners' clinical findings support, at most, a 10 percent rating for peripheral neuropathy of the right lower extremity. The Board finds no other evidence in the record, lay or medical, to support an increased rating under Diagnostic Code 8621 anywhere in the record. In sum, the preponderance of evidence is against finding that the Veteran experiences more than mild incomplete paralysis of the involved nerve. Gilbert, 1 Vet. App. at 53. A rating higher than 10 percent for right lower extremity peripheral neuropathy associated with low back strain is denied. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Sherman Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.