Citation Nr: 21069902 Decision Date: 11/22/21 Archive Date: 11/22/21 DOCKET NO. 18-30 158 DATE: November 22, 2021 ORDER For the initial rating period from June 10, 1992 to September 28, 2006, a higher initial rating of 10 percent, but no higher, for lumbosacral strain, degenerative arthritis, and intervertebral disc disease (IVDS) of the lumbar spine, status post lumbar decompressive laminectomies (lumbar spine disability), is granted. For the initial rating period from September 28, 2006 to January 17, 2018, a higher initial disability rating in excess of 10 percent for the lumbar spine disability is denied. For the initial rating period from May 1, 2018 to October 19, 2020, a higher initial disability rating in excess of 10 percent for the lumbar spine disability is denied. For the initial rating period from October 19, 2020, a higher initial disability rating in excess of 40 percent for the lumbar spine disability is denied. For the initial rating period from June 10, 1992 to June 2, 2014, a higher (compensable) initial disability rating for lumbar radiculopathy of the sciatic nerve of the right lower extremity (right lower extremity radiculopathy of the sciatic nerve) is denied. For the initial rating period from June 10, 1992 to June 2, 2014, a higher (compensable) initial disability rating for lumbar radiculopathy of the sciatic nerve of the left lower extremity (left lower extremity radiculopathy of the sciatic nerve) is denied. For the initial rating period from June 2, 2014 forward, a higher initial disability rating in excess of 20 percent for the right lower extremity radiculopathy of the sciatic nerve is denied. For the initial rating period from June 2, 2014 forward, a higher initial disability rating in excess of 20 percent for the left lower extremity radiculopathy of the sciatic nerve is denied. For the initial rating period from October 19, 2020 forward, a higher initial disability rating in excess of 20 percent for lumbar radiculopathy of the femoral nerve of the right lower extremity (right lower extremity radiculopathy of the femoral nerve) is denied. For the initial rating period from October 19, 2020 forward, a higher initial disability rating in excess of 20 percent for lumbar radiculopathy of the femoral nerve of the left lower extremity (left lower extremity radiculopathy of the femoral nerve) is denied. FINDINGS OF FACT 1. For the initial rating period from June 10, 1992 to September 28, 2006, the lumbar spine disability has been manifested by symptoms of painful noncompensable limitation of motion, without ankylosis, limitation of forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12-month period. 2. For the initial rating period from September 28, 2006 to January 17, 2018, the lumbar spine disability has been manifested by symptoms of painful motion, without ankylosis, limitation of forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12-month period. 3. For the initial rating period from May 1, 2018 to October 19, 2020, the lumbar spine disability has been manifested by symptoms of painful motion, without ankylosis, limitation of forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12-month period. 4. For the initial rating period from October 19, 2020 forward, the lumbar disability has not been manifested by ankylosis of the thoracolumbar spine and/or incapacitating episodes requiring physician ordered bed rest having a total duration of at least six weeks during a 12-month period. 5. For the initial rating period from June 10, 1992 to June 2, 2014, the right lower extremity radiculopathy of the sciatic nerve has not manifested in mild incomplete paralysis of the sciatic nerve. 6. For the initial rating period from June 10, 1992 to June 2, 2014, the left lower extremity radiculopathy of the sciatic nerve has not manifested in mild incomplete paralysis of the sciatic nerve. 7. For the initial rating period from June 2, 2014 forward, the right lower extremity radiculopathy of the sciatic nerve has not manifested in moderately severe incomplete paralysis of the sciatic nerve. 8. For the initial rating period from June 2, 2014 forward, the left lower extremity radiculopathy of the sciatic nerve has not manifested in moderately severe incomplete paralysis of the sciatic nerve. 9. For the entire initial rating period from October 19, 2020 forward the right lower extremity radiculopathy of the femoral nerve has not manifested in severe incomplete paralysis of the femoral nerve. 10. For the entire initial rating period from October 19, 2020 forward the left lower extremity radiculopathy of the femoral nerve has not manifested in severe incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the initial rating period from June 10, 1992 to September 28, 2006, the criteria for a higher initial 10 percent rating, but no higher, for the lumbar spine disability have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 2. For the initial rating period from September 28, 2006 to January 17, 2018, the criteria for a higher initial disability rating in excess of 10 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 3. For the initial rating period from May 1, 2018 to October 19, 2020, the criteria for a higher initial disability rating in excess of 10 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 4. For the initial rating period from October 19, 2020 forward, the criteria for a higher initial disability rating in excess of 40 percent for the lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.20, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 5. For the initial rating period on appeal from June 10, 1992 to June 2, 2014, the criteria for a higher initial (compensable) disability rating for right lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. For the initial rating period on appeal from June 10, 1992 to June 2, 2014, the criteria for a higher initial (compensable) disability rating for left lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 7. For the initial rating period on appeal from June 2, 2014 forward, the criteria for a higher initial disability rating in excess of 20 percent for right lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 8. For the initial rating period on appeal from June 2, 2014 forward, the criteria for a higher initial disability rating in excess of 20 percent for left lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8520. 9. For the initial rating period on appeal from October 19, 2020 forward, the criteria for a higher initial disability rating in excess of 20 percent for right lower extremity radiculopathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8526. 10. For the initial rating period on appeal from October 19, 2020 forward, the criteria for a higher initial disability rating in excess of 20 percent for left lower extremity radiculopathy of the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the appellant, served on active duty from April 1974 to April 1978. These matters were previously before the Board in September 2020, at which time the matters were remanded for new VA examinations to be provided to the Veteran. The requested examinations were provided in October 2020, and the matters have now been properly returned to the Board for appellate adjudication. The Board notes that the Veteran is already in receipt of a total (100 percent) disability rating for the lumbar spine disability for the initial rating period from January 17, 2018 to May 1, 2018; thus, the Board will only address the issue of higher initial ratings for the lumbar spine disabilities for the rating periods from June 10, 1992 to September 28, 2006, from September 28, 2006 to January 17, 2018, from May 1, 2018 to October 19, 2020, and from October 19, 2020 forward. Disability Rating Legal Criteria Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. 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. Where there is a question as to which of two disability 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. DeLuca v. Brown, 8 Vet. App. 202 (1995); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Further, 38 C.F.R. § 4.45 provides that consideration also be given to decreased movement, weakened movement, excess fatigability, incoordination, and pain on movement, swelling, and deformity or atrophy of disuse. Painful motion is considered limited motion at the point that pain actually sets in. See VAOPGCPREC 9-98. 1. Rating the lumbar spine disability from June 10, 1992 to September 28, 2006 For the initial rating period on appeal from June 10, 1992 to September 28, 2006, the Veteran is in receipt of a noncompensable (0 percent) disability rating for the lumbar spine disability under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine for Diagnostic Codes 5235 to 5243, unless 5243 is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (IVDS Rating Formula). Ratings under the General Rating Formula are made 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. The General Rating Formula provides a 10 percent disability rating 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. 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 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately rated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the lumbar 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 lumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state, that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire lumbar 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. Under Diagnostic Code 5243 (Intervertebral Disc Syndrome), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 weeks but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that an incapacitating episode is 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher rating for that segment. Pursuant to 38 C.F.R. § 4.59, painful motion should be considered limitation of motion, even though a range of motion may be possible beyond the point when pain sets in. See Powell v. West, 13 Vet. App. 31, 34 (1999); Hicks v. Brown, 8 Vet. App. 417, 421 (1995). When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. See Burton v. Shinseki, 25 Vet. App. 1 (2011) (holding that the Board had failed to address painful motion and the applicability of 38 C.F.R. § 4.59 to an initial disability rating for residuals of a left shoulder injury with surgical repair). If the lumbar spine disability does not warrant a compensable rating under the appropriate diagnostic codes based on limitation of motion, the minimum compensable rating (10 percent) may be assigned where there is satisfactory evidence of painful motion. 38 C.F.R. § 4.59; Burton, 25 Vet. App. at 1. After a review of all the evidence, lay and medical, the Board finds that for the initial rating period on appeal from June 10, 1992 to September 28, 2006, the criteria for a higher initial 10 percent disability rating for the lumbar spine disability by analogy to Diagnostic Code 5003, applying the principles of 38 C.F.R. § 4.59, for painful motion that is manifested to a noncompensable degree, is supported by the evidence in this case. The Veteran underwent a VA examination in November 2015, the examination report for which includes the VA examiner's opinion that the Veteran's lumbar spine disability is at least as likely as not related to the dorsal lumbar scoliosis diagnosed during service in January 1978 and back pain treated during service in June 1974. The VA examiner explained that the Veteran experienced back pain during service and since service separation due to abnormal curvature of the spine that changed physiological alignment negatively that progressed into the mild lumbar arthritis that was diagnosed during the November 2015 VA examination. Based on the above, and resolving reasonable doubt in favor of the Veteran, for the initial rating period from June 10, 1992 to September 28, 2006, the Board finds that the criteria for an initial 10 percent disability rating under Diagnostic Code 5003 have been met for the lumbar spine disability. 38 C.F.R. § 4.3, 4.7, 4.71a. The Board further finds that a higher initial rating in excess of 10 percent under Diagnostic Code 5003 for the lumbar spine disability is not warranted for any part of the initial rating period from June 10, 1992 to September 28, 2006. A rating in excess of 10 percent (20 percent) under Diagnostic Code 5003, which in turn would be rated under the General Rating Formula for limitation of motion, requires 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. For the entire initial rating period from June 10, 1992 to September 28, 2006, VA, private, and Social Security Administration (SSA) treatment records deo not reflect that the lumbar spine disability has been manifested by symptoms that more nearly approximate limitation of the thoracolumbar spine to 60 degrees or less of forward flexion or combined range of motion of the thoracolumbar spine less than 120 degrees. Although the November 2015 VA examination report shows the Veteran was diagnosed with lumbar scoliosis during service, the evidence of record does not demonstrate that muscle spasms or guarding caused abnormal gait or abnormal spinal contour; thus, a higher initial rating in excess of 10 percent for the lumbar spine disability is not warranted for any period. 38 C.F.R. § 4.71a. 2. Rating the lumbar spine disability from September 28, 2006 to January 17, 2018 3. Rating the lumbar spine disability from May 1, 2018 to October 19, 2020 For the initial rating periods on appeal from June 10, 1992 to September 28, 2006, and from May 1, 2018 to October 19, 2020, the Veteran is in receipt of an initial 10 percent disability rating for the lumbar spine disability under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. After a review of all the lay and medical evidence of record, the Board finds that, for the initial rating periods on appeal from June 10, 1992 to September 28, 2006, and from May 1, 2018 to October 19, 2020, the lumbar spine disability has been manifested by symptoms of painful motion, without ankylosis, limitation of forward flexion to 60 degrees or less, a combined range of motion of 120 degrees or less, muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour, or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12-month period. A September 2006 SSA examination report reflects the Veteran complained of chronic low back pain that did not radiate and was not exacerbated by coughing or sneezing. Examination of the thoracolumbar spine revealed range of motion was within normal limits. The medical evidence of record does not reflect any further treatment or complaints of back pain until 2014 in a June 2014 private treatment record. The June 2014 private treatment record reflects range of motion in the lumbar spine was limited to 80 degrees of flexion with pain, but without any paraspinous muscle spasm. The November 2015 VA examination report discussed above shows the Veteran endorsed episodes of flare ups with intense back pain that caused difficulty walking, sitting, and lying down. Range of motion was initially measured to 90 degrees of flexion, a combined range of motion of 200 degrees, with pain noted upon examination that caused functional loss. At worst, range of motion in the thoracolumbar spine was estimated to 85 degrees of forward flexion following repeated used over time and during episodes of flare ups, with a combined range of motion of 180 degrees. The November 2015 VA examiner did not find IVDS or incapacitating episodes of back pain. Following a spinal laminectomy procedure in January 2018, the medical evidence or record reflects the Veteran's back pain initially improved, but that back pain eventually returned to pre-surgery levels by January 2019. See February 2018 private treatment record; December 2018 private treatment record; January 2019 VA treatment record. An April 2019 private treatment record reflects the Veteran continued to report disappointing post-operative lumbar spine symptoms of relentless mechanical back pain radiating into both legs. On examination, the private provider noted no clear change in clinical findings and reviewed X-rays and an MRI of the lumbar spine from January 2019 with the Veteran, which both showed only anticipated degenerative and post-operative changes in the lumbar spine, without spinal instability or other obvious explanation for his continued symptoms. See also, May 2019 VA treatment record (X-rays showing minor abnormality in the lumbar spine). The Board has considered a September 2019 private medical letter from Dr. D.M., who provided an opinion based on review of the record and interview of the Veteran without an in-person examination. In the September 2019 private medical letter, Dr. D.M. opines that the initial 10 percent rating assigned for the lumbar spine disability does not reflect the severity of the lumbar spine symptoms; however, as Dr. D.M. did not examine the Veteran, the September 2019 private medical letter did not include current clinical findings of the severity of the lumbar spine disability described in limitation of motion, findings of painful motion, any abnormal gait, or similar findings. Accordingly, the Board finds that the September 2019 private medical letter is of little probative value in demonstrating the severity of the lumbar spine symptoms for the initial rating periods from June 10, 1992 to September 28, 2006, and from May 1, 2018 to October 19, 2020. Based on the foregoing, the Board finds that the weight of the evidence demonstrates that the lumbar spine disability has not manifested in ankylosis (criteria for a 40 percent rating), limitation of forward flexion to 60 degrees or less (criteria for a 20 percent rating), a combined range of motion of 120 degrees or less (criteria for a 20 percent rating), muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour (criteria for a 20 percent rating), or incapacitating episodes requiring physician ordered bed rest having a total duration of at least two weeks during a 12-month period (criteria for a 20 percent rating). For the above reasons, the Board finds that, for the initial rating periods from June 10, 1992 to September 28, 2006, and from May 1, 2018 to October 19, 2020, the preponderance of the evidence is against the assignment of a higher initial disability rating for the lumbar spine disability in excess of 10 percent. 38 U.S.C. § 5107; 38 C.F.R. § § 4.3, 4.7. 4. Rating the lumbar spine disability from October 19, 2020 forward For the initial rating period on appeal from October 19, 2020 forward, the Veteran is in receipt of an initial 40 percent disability rating for the lumbar spine disability under the General Rating Formula. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. After a review of all the lay and medical evidence of record, the Board finds that, for the rating period on appeal from October 19, 2020, the criteria for a higher initial disability rating in excess of 40 percent for the lumbar spine disability have not been met or more nearly approximated. The Veteran has not described complete unfavorable ankylosis of the entire thoracolumbar spine or indicated that there were incapacitating episodes requiring physician ordered bedrest over a 12-month period. An October 2020 VA examination report reflects negative findings for ankylosis in the thoracolumbar spine or incapacitating episodes requiring physician ordered bedrest over a 12-month period. Instead, the October 2020 VA examination report reflects forward flexion in the thoracolumbar spine limited to 30 degrees, with estimated additional limitation of forward flexion to 10 degrees following repetitive use over time and during episodes of flare ups. The Board has considered a March 2021 private medical letter from Dr. D.M. who provided an opinion based on review of the evidence of record and an interview of the Veteran; it does not appear from the March 2021 private medical letter that Dr. D.M. examined the Veteran's lumbar spine disability in person. In the March 2021 private medical letter, Dr. D.M. purported to assess that the Veteran's lumbar spine symptoms are most accurately assessed as unfavorable ankylosis of the thoracolumbar spine based on the January 2019 private treatment record containing the lumbar MRI discussed above, the April 2019 private treatment record discussed above, and the October 2020 VA examination report. Such characterization is inconsistent with Dr. D.M.'s own finding that the Veteran has motion in the lumbar spine in all planes. Dr. D.M.'s argument that the Veteran does not have any functional motion in the lumbar spine, when this doctor's own assessment shows otherwise, is facially unsupported by the evidence of record. Dr. D.M. interprets the ranges of motion measured in the thoracolumbar spine during the October 2020 VA examination as "maximum movement" measured in the thoracolumbar spine without accounting for pain. Dr. D.M. assumes an inaccurate fact that the Veteran has no motion in any direction without the escalation of pain; this factual assumption, as well as the mischaracterization of the ranges of motion that are available as ankylosis, are at odds with other specific findings and assessments, including by the same doctor's findings of "maximum movement." For example, as noted on the October 2020 VA examination report, painful motion was accounted for when measuring the initial ranges of motion in the lumbar spine, but the October 2020 VA examiner found that the pain noted on examination does not result or cause functional loss. Moreover, the estimated additional limitation of forward flexion in the thoracolumbar spine to 10 degrees of flexion specifically accounts for pain, fatigue, weakness, and lack of endurance as factors that cause functional loss following repetitive use over time and during episodes of flare ups. Finally, Dr. D.M. did not explain why he found the lumbar spine disability more akin to unfavorable ankylosis of the entire thoracolumbar spine (criteria for a 50 percent rating) rather than favorable ankylosis of the entire thoracolumbar spine (criteria for a 40 percent rating). This lack of explanation, coupled with inaccurate factual assumptions and recharacterization of movement as ankylosis, renders the purported assessment of ankylosis of little probative value. In contrast, the October 2020 VA examiner examined the Veteran's lumbar spine disability in person, and made careful measures, and reasoned assessments of additional functional limitations based on relevant orthopedic limiting factors. For these reasons, the Board finds that the October 2020 VA examiner's finding of no ankylosis outweighs Dr. D.M.'s March 2021 private medical letter attempting to characterize the evidence as showing ankylosis of the thoracolumbar spine. VA and private treatment records throughout the rating period on appeal also do not indicate unfavorable ankylosis of the entire thoracolumbar spine (criteria for a 50 percent rating), or that the Veteran has experienced incapacitating episodes requiring physician ordered best rest with a total duration of at least 6 weeks during a 12 month period (criteria for a 60 percent rating). Based on the foregoing, the Board finds that the preponderance of the evidence is against the assignment of a higher initial rating for the lumbar spine disability in excess of 40 percent for the entire rating period from October 19, 2020 forward. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a. 5. Rating the right lower extremity radiculopathy of the sciatic nerve from June 10, 1992 to June 2, 2014 6. Rating the right lower extremity radiculopathy of the sciatic nerve from June 10, 1992 to June 2, 2014 For the initial rating period on appeal from June 10, 1992 to June 2, 2014, the Veteran is in receipt of initial noncompensable (0 percent) ratings for the right and left lower extremity radiculopathies of the sciatic nerve under Diagnostic Code 8520. 38 C.F.R. § 4.124a. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. § § 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After review of the lay and medical evidence of record, the Board finds the weight of the evidence is against finding that the right and left lower extremity radiculopathies of the sciatic nerve more nearly approximated mild incomplete paralysis of the sciatic nerve so as to warrant higher 10 percent ratings for the initial rating period from June 10, 1992 to June 2, 2014. For the initial rating period from June 10, 1992 to June 2, 2014, the right and left lower extremity radiculopathies of the sciatic nerve have not been manifested by symptoms more nearly approximating mild incomplete paralysis of the sciatic nerve. Although service connection for right and left lower extremity radiculopathies of the sciatic nerve has been established effective June 10, 1992, VA, private, and SSA treatment records for the initial rating period from June 10, 1992 to June 2, 1994 do not reflect any complaints, treatment, symptoms, or diagnoses for right and left lower extremity radiculopathies of the sciatic nerve. Instead, a September 2006 SSA examination report reflects the Veteran explicitly denied that radiating back pain; the September 2006 SSA examiner also found normal motor strength, 2/4 reflexes, and normal sensation in the bilateral lower extremities. Based on the foregoing, the Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran's right and left lower extremity radiculopathies of the sciatic nerve had not more nearly approximated the criteria for a 10 percent rating under Diagnostic Code 8520 for symptoms of mild incomplete paralysis of the sciatic nerve for any part of the initial rating period from June 10, 1992 to June 2, 2014; therefore, higher initial (compensable) disability ratings are not warranted under Diagnostic Code 8520 for the right and left lower extremity radiculopathies of the sciatic nerve. 38 C.F.R. §§ 4.3, 4.7. 7. Rating the right lower extremity radiculopathy of the sciatic nerve from June 2, 2014 forward 8. Rating the right lower extremity radiculopathy of the sciatic nerve from June 2, 2014 forward For the initial rating period on appeal from June 2, 2014 forward, the right and left lower extremity radiculopathies of the sciatic nerve have been assigned initial 20 percent disability ratings under Diagnostic Code 8520. 38 C.F.R. § 4.124a. After review of all the lay and medical evidence of record, the Board finds that the weight of the evidence is against finding that the right and left lower extremity radiculopathies of the sciatic nerve more nearly approximates moderately severe incomplete paralysis of the sciatic nerve, so as to warrant higher initial 40 percent ratings for the rating period from June 2, 2014 forward. Throughout the rating period from June 2, 2014, the right and left lower extremity radiculopathies of the sciatic nerve have manifested in symptoms or findings of mild to moderate intermittent pain, mild to moderate paresthesias/dysesthesias, and mild to moderate numbness in the right and left lower extremities involving the sciatic nerve, more nearly approximating moderate incomplete paralysis of the sciatic nerve. A June 2014 private treatment record reflects that the Veteran began complaining of some paresthesia in the legs and feet that caused trouble sitting. Examination of the Veteran revealed normal muscle bulk and tone in the bilateral lower extremities but found decreased pinprick sensation in the right lower extremity. The Veteran underwent a VA examination for the lumbar spine disability in November 2015, the examination report for which reflects the VA examiner found the right lower extremity radiculopathy had manifested in symptoms of moderate intermittent pain and left lower extremity radiculopathy had manifested in symptoms of mild intermittent pain involving the sciatic nerves. Neurologic examination of the lower extremities revealed active movement against some resistance in right hip flexion, but normal strength in all other planes tested in the right and left lower extremities. The November 2015 VA examiner noted negative findings for muscle atrophy, but found reflexes were hypoactive in the right and left knees and ankles. A light touch sensory examination found normal sensation in all planes tested in the right and left lower extremities. No other signs or symptoms of radiculopathy were found. The VA examiner noted the radiculopathies affected the sciatic nerves in the right and left lower extremities, but did not find that the radiculopathies had resulted in incomplete paralysis of the sciatic nerve in the lower extremities. Instead, the VA examiner remarked that the intermittent pain noted in the bilateral lower extremities involving the sciatic nerves was attributed to instability caused by the service-connected residuals of a right total knee arthroplasty with revision and not to another cause. A July 2017 private treatment record shows 4/5 motor strength in the right and left lower extremities, with absent deep tendon reflexes, and slightly decreased sensation. The Veteran was found to have a normal gait. A February 2018 private treatment record reflects the Veteran reported that claudicating sciatica had very substantially improved since undergoing a spinal laminectomy in January 2018. However, subsequent private treatment records show radiculopathy symptoms had returned several months following the lumbar spine surgery. See December 2018 private treatment record. A January 2019 VA treatment record reflects examination of the right and left lower extremities revealed 2+ radial pulses bilaterally, no cyanosis, no clubbing, no edema, and no restriction of range of motion in right or left lower extremities. The Veteran underwent another VA examination for the lumbar spine disability in October 2020, the examination report for which reflects the VA examiner assessed the right lower extremity radiculopathy had manifested in symptoms of moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness involving the sciatic nerve; the VA examiner also assessed that the left lower extremity radiculopathy had manifested in symptoms of mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness involving the sciatic nerve. Neurologic examination of the lower extremities revealed normal strength in all planes tested in the right and left lower extremities, normal reflexes in the right and left lower extremities, but decreased sensation in the right and left lower legs, ankle, feet, and toes. The October 2020 VA examiner noted negative findings for muscle atrophy and found no other signs or symptoms of radiculopathy. The VA examiner assessed moderate incomplete paralysis of the sciatic nerve in the right lower extremity and mild incomplete paralysis of the sciatic nerve in the left lower extremity. The Board has considered September 2019 and March 2021 private medical letters from Dr. D.M. In the September 2019 private medical letter, Dr. D.M. opined that it is at least as likely as not that the Veteran's right lower extremity radiculopathy of the sciatic nerve had significantly worsened over the last 4 years since the November 2015 VA examination as the Veteran was now experiencing constant sharp pain radiating from the lumbar area down to his right ankle, in addition to constant numbness and paresthesias. Dr. D.M. opined that the right lower extremity radiculopathy of the sciatic nerve was moderately severe in nature. These purported opinions are of minimal probative value because Dr. D.M.'s assertions of the Veteran's severe and worsening right lower extremity radiculopathy symptoms are in contrast to the actual in-person findings noted in the subsequent October 2020 VA examination report discussed above, and Dr. D.M. does not find that the Veteran's right lower extremity symptoms have resulted in incomplete paralysis of the sciatic nerve. As Dr. D.M.'s September 2019 opinion was not based on clinical findings or an in person examination of the Veteran, or even a careful assessment of the complaints, symptoms, and findings that are of record, the Board finds that the conclusory assessment of moderately severe symptoms is of little probative value in demonstrating the actual severity of the right lower extremity radiculopathy. Dr. D.M.'s September 2019 opinion did not address the left lower extremity radiculopathy of the sciatic nerve. Similarly, Dr. D.M.'s March 2021 private medical letter asserts that the initial 20 percent ratings assigned for the right and left lower extremity radiculopathies of the sciatic nerves do not reflect the Veteran's symptoms of severe pain. Dr. D.M. attempts to substitute a finding of severe pain for actual findings that do not support a higher rating. Although the Veteran does not have atrophy from nerve damage, Dr. D.M. argues that atrophy is only clinically significant if it is associated with weakness, so a lack of atrophy is irrelevant in this case as the Veteran's disability is based entirely on the severity of radicular pain. Aside from a logical disconnect as to why severe pain somehow would not be expected to cause atrophy, when basic orthopedic and neurological principles outlined in VA rating criteria recognize otherwise (see 38 C.F.R. §§ 4.40, 4.45, 4.59), Dr. D.M. again does not address whether or to what degree the right and left lower extremity radiculopathies have resulted in incomplete paralysis of the sciatic nerves, and Dr. D.M.'s opinion is not based on clinical findings or an in-person examination of the Veteran. See also 38 C.F.R. § 4.123 (listing both atrophy and pain as typical nerve symptoms). For these reasons, the Board finds that the March 2021 private medical letter is of little probative value in demonstrating the current severity of the right and left lower extremity radiculopathies of the sciatic nerve, and is outweighed by the findings contained in the October 2020 VA examination report, which was based on in-person clinical findings of the Veteran's symptoms, and other evidence of record bearing on the disability picture. Based on the foregoing, the Board finds that the weight of the lay and medical evidence of record demonstrates that the Veteran's right and left lower extremity radiculopathies of the sciatic nerve have not more nearly approximated the criteria for initial 40 percent ratings under Diagnostic Code 8520 for symptoms of moderately severe incomplete paralysis of the sciatic nerve for the rating period from June 2, 2014 forward; therefore, higher initial ratings in excess of 20 percent are not warranted under Diagnostic Code 8520 for the right and left lower extremity radiculopathies of the sciatic nerve. 38 C.F.R. §§ 4.3, 4.7. 9. Rating right lower extremity radiculopathy of the femoral nerve from October 19, 2020 10. Rating left lower extremity radiculopathy of the femoral nerve from October 19, 2020 For the entire initial rating period on appeal from October 19, 2020, the Veteran is in receipt of initial 20 percent disability ratings for right and left lower extremity radiculopathies of the femoral nerve under Diagnostic Code 8526. 38 C.F.R. § 4.124a. Diagnostic Code 8526 provides the rating criteria for paralysis of the femoral nerve. Disability ratings of 10, 20, and 30 percent are warranted, respectively, for mild, moderate, and severe incomplete paralysis of the femoral nerve. A disability rating of 40 percent is warranted for complete paralysis of the femoral nerve with paralysis of the quadriceps extensor muscles. 38 C.F.R. § 4.124(a). Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding assignment of a disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. After review of the lay and medical evidence of record, the Board finds the weight of the evidence is against finding that the right or left lower extremity radiculopathies of the femoral nerve more nearly approximated severe incomplete paralysis of the femoral nerve so as to warrant higher 30 percent ratings for the initial rating period from October 19, 2020 forward. For the initial rating period from October 19, 2020, the right and left lower extremity radiculopathies of the femoral nerve have been manifested by symptoms more nearly approximating moderate incomplete paralysis of the femoral nerve. As discussed above, the Veteran underwent a VA examination for the lumbar spine disability in October 2020, the examination report for which reflects the VA examiner assessed the right lower extremity radiculopathy had manifested in symptoms of moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness; the VA examiner also assessed that the left lower extremity radiculopathy had manifested in symptoms of mild intermittent pain, mild paresthesias/dysesthesias, and mild numbness. In addition to affecting the sciatic nerves, the VA examiner noted that the above symptoms also affected the femoral nerves in the right and left lower extremities. Neurologic examination of the lower extremities revealed normal strength in all planes tested in the right and left lower extremities, normal reflexes in the right and left lower extremities, but decreased sensation in the right and left lower legs, ankle, feet, and toes. The October 2020 VA examiner noted negative findings for muscle atrophy and found no other signs or symptoms of radiculopathy. The VA examiner assessed moderate incomplete paralysis of the femoral nerve in the right lower extremity and mild incomplete paralysis of the femoral nerve in the left lower extremity. In this case, the competent evidence, including the October 2020 VA examiner, has not differentiated radicular symptoms and impairment attributable to sciatic radiculopathy from the overlapping symptoms and impairment associated with femoral radiculopathy. The VA examiner in October 2020 did not differentiate the degree of severity of the radicular symptoms caused by sciatic radiculopathy from the degree of severity of femoral radiculopathy symptoms. Notwithstanding the overlapping symptoms and impairment and lack of differentiation of symptoms, VA assigned separate initial 20 percent ratings for moderate incomplete paralysis of the sciatic nerves under Diagnostic Code 8520 and moderate incomplete paralysis of the femoral nerves. The initial 20 percent ratings for right and left lower extremity radiculopathies of the sciatic nerve and femoral nerves were based on the same findings of symptoms or impairments of moderate intermittent pain, moderate paresthesia or dysesthesias, and moderate numbness in the right lower extremity and mild intermittent pain, mild paresthesias or dysesthesias, and mild numbness in the left lower extremity (as found during the October 2020 VA examination). See 38 C.F.R. § 4.14 (prohibiting the rating of the same manifestation of impairment under different diagnoses). Notwithstanding that the October 2020 VA examiner did not find any neurologic symptoms (decreased strength, reflexes, or sensation) in the right or left lower extremities in the areas affected by the femoral nerve (thigh and leg), VA assigned a 20 percent initial rating for femoral nerve impairment, but did so relying on symptoms and impairment that overlap with those relied upon to assign 20 percent ratings and correlating compensation for sciatic nerve impairment. See 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994) (the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). As the Veteran is already in receipt of compensable disability ratings for the right and left lower extremity radiculopathies under Diagnostic Codes 8520 and 8526, the Veteran is already being compensated twice for the same symptoms and functional impairment involving the right and left lower extremities. In this case, such related rating questions of pyramiding of compensation (38 C.F.R. § 4.14) are invoked by this appeal for yet higher ratings for both sciatic nerve and femoral nerve disabilities; however, in this decision, the Board will not take action to reduce any ratings for lower extremity nerve radiculopathies as fair process before doing so would include notice of such reduction (as outlined in this Board decision), the basis of the reduction (pyramiding of compensation), and some opportunity to be heard on the question. Aside from the pyramiding of compensation question, the Board finds that the weight of the lay and medical evidence of record is against finding that higher initial disability ratings in excess of 20 percent for right and left lower extremity radiculopathies of the femoral nerve under Diagnostic Code 8526 are warranted for the initial rating period from October 19, 2020. 38 C.F.R. §§ 4.3, 4.7. J. PARKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Choi, 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.