Citation Nr: 21070433 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-36 230 DATE: November 24, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent, prior to September 19, 2018, and in excess of 20 percent, thereafter, for lumbar spondylolisthesis at L5-S1 and thoracic spine levoscoliosis (back disability) is denied. Entitlement to a separate rating for right lower extremity radiculopathy prior to October 18, 2019, is denied. Entitlement to an initial disability rating in excess of 10 percent, for right lower extremity radiculopathy, is denied. FINDINGS OF FACT 1. The probative evidence of record does not support the finding that, prior to September 19, 2018, the Veteran's back disability manifested with symptomatology that more nearly approximated forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or a combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees, or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. The probative evidence of record does not support the finding that at any time during the appeal period beginning on September 19, 2018, the Veteran's back disability manifested with symptomatology that more nearly approximates forward flexion of the thoracolumbar spine of 30 degrees or less; or with favorable ankylosis of the entire thoracolumbar spine. 3. The probative evidence of record shows that the Veteran was diagnosed with radiculopathy of the right lower extremity on October 18, 2019, and no earlier. 4. The probative evidence of record does not support the finding that the Veteran's right lower extremity radiculopathy symptomatology has more nearly approximated moderate incomplete paralysis of the sciatic nerve, during the applicable appeal period. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating in excess of 10 percent prior to September 19, 2018, and in excess of 20 percent, thereafter, for a back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5239. 2. The criteria for a separate rating for right lower extremity radiculopathy, prior to October 18, 2019, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes 5242, 5239. 3. The criteria for an initial evaluation in excess of 10 percent for right lower extremity radiculopathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6. 4.7, 4.10, 4.71a, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 2013 to December 2013, with additional service in the National Guard. This matter comes before the Board of Veteran's Appeals (Board) from a June 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019 when the claim of entitlement to a disability rating in excess of 10 percent for a back disability was remanded for development. The Board finds the March 2019 remand directives have been substantially complied with, and the matter is again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran does not currently have representation. As such, the Board has an obligation to read the filings of this pro se Veteran liberally. See Moody v. Principi, 360 F.3d 1306 (Fed. Cir. 2004); Szemraj v. Principi, 357 F.3d 1370 (Fed. Cir. 2004); and Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001) (each emphasizing that pro se filings must be read liberally). During the pendency of the appeal, an April 2020 rating decision increased the Veteran's back disability rating to 20 percent, effective September 19, 2018, and granted a separate rating for radiculopathy of the right lower extremity, rated at 10 percent, effective October 18, 2019. As the increased disability rating of 20 percent for the Veteran's back disability did not constitute a full grant of the benefit sought, the claim for an increased rating remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, under Note (1) for the General Rating Formula for Diseases and Injuries of the Spine, an increased rating claim for a back disability encompasses any associated objective neurologic abnormalities, to include radiculopathy. 38 C.F.R. § 4.71a. Thus, although the Veteran did not formally file a notice of disagreement regarding the separate rating granted for his right lower extremity radiculopathy, as the separate disability rating granted for the radiculopathy only covered part of the appellate period, the claim is part of the present appeal regarding an increased rating for the Veteran's back disability pursuant to 38 C.F.R. § 4.71a. Accordingly, the separate rating for radiculopathy of the right lower extremity has been added to the issues on appeal, as it appears on the title page of this decision. 1. Entitlement to an initial disability rating in excess of 10 percent prior to September 19, 2018 and in excess of 20 percent, thereafter, for a back disability By way of history, a June 2014 rating decision granted service connection for the Veteran's back disability, initially rated at 10 percent disabling, effective December 16, 2013. In June 2015, the Veteran presented a Notice of Disagreement (NOD) regarding the initial rating assigned to his disability. He noted that he was seeking at least a 50 percent for his back disability. In favor of the increased rating, the Veteran asserted he lives with pain every day and that it affects him in his job duties- as he has lost job opportunities because of his limitations pertaining to heavy lifting. He also noted he had a back brace. See NOD of June 2015. In May 2017, a Statement of the Case (SOC) continued the Veteran's initial 10 percent rating for his back disability. In July 2017, the Veteran perfected his appeal to the Board by presenting a completed VA Form 9. In the Form 9, he asserted that the examiner that completed the VA examination did not review medical records he brought to the examination and reasserted that he has dealt with constant pain, every day, due to his back injury. See VA Form 9. In March 2019, the Board remanded the claim. The remand directives were for AOJ to obtain outstanding private medical records, after obtaining any necessary authorizations from the Veteran, and to provide the Veteran with a new VA examination, as the evidence of record indicated that the Veteran's back disability had changed in severity during the pendency of the appeal. See March 2019 Board remand. In October 2019, AOJ sent the Veteran a letter requesting him to complete and return the proper authorizations to allow VA to obtain private medical records on his behalf. See correspondence of October 2019. The Veteran did not return the requested authorizations, nor did he identify any outstanding private medical records. Thus, no private medical records were obtained. That same month, the Veteran was administered a VA examination for his back disability. The Board finds these actions substantially complied with the March 2019 remand directives. It is noted that as the Veteran did not provide the requested authorizations, no private records were obtained. The duty to assist is not boundless in its scope and only requires VA to make reasonable efforts to assist a claimant in obtaining relevant private records that the claimant adequately identifies. See 38 U.S.C. § 5103A. As the Veteran did not provide the requested authorizations for VA to obtain any outstanding private medical record, nor did he adequately identify any outstanding private medical record, no further development was warranted pursuant to the duty to assist. 38 C.F.R. § 3.159 (c)(1). In April 2020, a rating decision granted a 20 percent disability rating for the Veteran's back disability, effective September 19, 2018, and also awarded a separate disability rating for radiculopathy of the right lower extremity, rated at 10 percent, effective October 18, 2019. An April 2020 Supplemental Statement of the Case (SSOC) continued the Veteran's initial disability rating of 10 percent prior to September 19, 2018 and denied a disability rating in excess of 20 percent, thereafter, for his back disability. The matter is again before the Board. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consistent with the facts found, the rating may be higher or lower for segments of the time under review on appeal, i.e., the rating may be "staged." See Fenderson v. West, 12 Vet. App. 119 (1999). In rendering a decision on appeal, the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to him through his senses. See Layno, 6 Vet. App. 465. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Veteran's back disability is currently rated pursuant to diagnostic codes (DC) 5242-5239. Hyphenated codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. DC 5242 pertains to degenerative arthritis, degenerative disc disease, other than intervertebral disc syndrome (IVDS). DC 5239 pertains to Spondylolisthesis or segmental instability. Diagnostic codes 5235 to 5243 are evaluated under the General Rating Formula for Diseases and Injuries of the Spine. The General Rating Formula for Diseases and Injuries of the Spine provides, in pertinent part, that, 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 following ratings will apply. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, combined range of motion of the entire 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 assigned 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 rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine (for DCs 5235 to 5243). The criteria also include the following provisions pertinent to the present appeal: Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Note (2): 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 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 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. 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. The Veteran's medical records have been associated with the claims file. As this is an appeal regarding the initial disability rating assigned to the Veteran's back disability, the appellate period before the Board is from the effective date of the award of service connection for the back disability, December 16, 2013, forward. The records show that in April 2014, the Veteran was administered a Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire (Back DBQ). See Back DBQ of April 2014, associated with the claims file in June 2014. This examination revealed a normal initial range of motion with no objective evidence of painful motion. No additional loss of range of motion was noted after repetitive-use testing. The examiner noted that the Veteran had localized tenderness or pain to palpation of joints and/or soft tissue of the thoracolumbar spine, but no guarding or muscle spasm. The Veteran reported flare-ups of his back disability, described as pain, that impacted his ability to work, run, squat, and/or walk. See Back DBQ associated with the claims file in June 2014. The Board finds this examination report adequate to the extent that contains initial range of motion measurements and affords probative value to those initial range of motion measurement findings. VA medical records for December 2014, show the Veteran reported back pain, but no range of motion measurements were noted. The Veteran's motor function and reflexes were noted as normal and positive straight leg raises bilaterally were noted. See medical records for December 2014. No radiating pain was noted. Medical records for November 2015 note the Veteran's report of back pain and his report of having a custom brace for his back, that he used intermittently. Physical examination revealed normal range of motion of the back with pain upon extension, lateral bending, and twisting. The physician also noted, as to the lower extremities, normal strength, normal sensation, and negative results to diagnostic testing including SLR (straight leg raise) testing. See medical records for November 2015. It is noted that while this record notes a normal range of motion for the back, the records do not specify the range of motion observed in terms of degrees. In May 2016, the Veteran was seen for follow up care regarding his back pain. The Veteran reported wearing his back brace when lifting, that he continued to work full time and that he would at times lift 100-pound artillery rounds. The pain was noted as worse at the end of the day and first thing in the morning. The Veteran denied bowel or bladder incontinence, no new weakness, and no sensory changes, although he noted being unable to do weighted squats and deadlifts due to pain. The physical examination revealed a normal range of motion of the spine, paraspinal musculature non-tender to palpation, and negative results for diagnostic testing, including straight leg raise testing bilaterally. See medical records for May 2016. Private medical records, associated with the claims file in April 2017, note that the Veteran complained of lumbar pain with some pain radiating into the legs bilaterally, aggravated by standing or activities, and alleviated by rest. The Veteran denied paresthesias or weakness in the legs and reported the symptoms were worse in the morning. The physician noted that the Veteran's straight leg raise exam revealed negative results bilaterally and both lower extremities were noted to have normal strength, normal reflexes, and intact sensation to light touch. The physician recommended physical therapy and a back brace, to be used as needed for back pain. See private medical records for February 2017, associated with the claims file in April 2017. It is noted these records did not reveal any range of motion measurements in terms of degrees for the back. In May 2017, the Veteran was administered a Back DBQ. This examination report was completed based on the in-person examination findings without review of any additional evidence. The examiner noted the Veteran's report of decreased back pain through the years after rest and physical therapy compared to the pain he experienced at the time of his in-service injury, and his report of doing home exercises to strengthen his back regularly. The examiner also noted the Veteran's reports of flare ups, described as increased back pain when doing heavy lifting or a lot of bending, and noted functional loss/impairment as the Veteran reported being unable to lift more than 200lbs, or bench press (or free-weights) because of his back pain. The Veteran had a normal initial range of motion, with pain noted on examination that did not result in functional loss. The Veteran was also noted to have palpable tenderness along the midline upper to mid-lumbar spinal area. No additional functional loss was noted with repetitive use and the examiner determined that the Veteran's flares did not limit his functional ability. Straight leg raise testing revealed negative results. The examiner also noted that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. See Back DBQ of May 2017. The Board notes this Back DBQ is inadequate in part, as it is based only on the in-person examination and does not provide an estimate of the Veteran's functional ability during a flare or after repetitive use. However, the initial range of motion measurements and the information pertaining to flares noted, are found adequate for adjudication purposes, when considered in view of the additional evidence of record. In July 2017, the Veteran's private healthcare provider subscribed a letter explaining that, until further notice, the Veteran's physical activities were limited to running only 1 mile per session, no impact exercises, and no lifting anything weighing above 50 pounds. See letter, dated July 2017, associated with the claims file in February 2018. A second letter clarified that the Veteran's limitation to running 1 mile per session was due to the impact on his heels caused back pain and that the Veteran needed to wear his supportive back brace when lifting. See letter of July 2017, associated with the claims file in February 2018. In January 2018, the Veteran was seen for his back pain. Physical examination revealed normal range of motion without limitations of the spine, although the Veteran had discomfort with facet loading movement. Negative results for straight leg raise testing bilaterally were noted. Normal findings as to the Veteran's lower extremities were noted, including intact motor strength and sensory ability. See medical records for January 2018. In September 2018, the Veteran underwent another Back DBQ. This examination report was completed based on the in-person examination findings without review of any additional evidence. The Veteran reported flareups of the back, described as pack pain, stiffness, limited range of motion and difficulty with heavy lifting. The Veteran also reported functional impairment described as: pack pain, stiffness, limited range of motion and difficulty with heavy lifting. The examination revealed an abnormal range of motion, with forward flexion limited to 50 degrees, extension limited to 20 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 20 degrees, right lateral rotation limited to 20 degrees and left lateral rotation limited to 20 degrees. Pain was noted on examination with all movements and caused functional loss. Additional loss of function or range of motion after three repetitions was noted due to pain and lack of endurance resulting in range of motion limitation of forward flexion limited to 45 degrees, extension limited to 20 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 20 degrees, right lateral rotation limited to 20 degrees and left lateral rotation limited to 20 degrees. Repeated use over time was noted to further limit the Veteran's range of motion as follows: forward flexion limited to 40 degrees, extension limited to 15 degrees, right lateral flexion limited to 15 degrees, left lateral flexion limited to 15 degrees, right lateral rotation limited to 15 degrees and left lateral rotation limited to 15 degrees. The examiner also noted that the Veteran's flares further limited his range of motion to forward flexion limited to 35 degrees, extension limited to 10 degrees, right lateral flexion limited to 10 degrees, left lateral flexion limited to 10 degrees, right lateral rotation limited to 10 degrees and left lateral rotation limited to 10 degrees. The examiner noted that the Veteran's pain and stiffness contributed to his limited range of motion. Normal findings pertaining to the Veteran's lower extremities were noted, including negative straight leg raising test. No radicular pain or radiculopathy symptoms/signs were noted. No use of assistive devices was noted nor any other pertinent finding. See Back DBQ of September 2018. The Board finds this examination adequate and affords it high probative value. In October 2019, the Veteran was re-administered a Back DBQ, pursuant to the Board's remand directives. This examination report was completed based on the in-person examination findings and the examiner noted having reviewed the Veteran's medical records. The Veteran reported sharp pain and soreness all the time, and increased pain with activity. He stated that he cannot stand up after doing yardwork and lifting. The Veteran reported flares described as being unable to get out of bed or "get up straight" and that any moderate activity like lifting or doing yardwork causes sharp pain, rated at 10 in a scale of 1 to 10. The Veteran reported that his flares last for 1 to 2 days. Initial range of motion was noted as normal, with pain noted on exam with all movements that did not cause or result in functional loss. Localized tenderness or pain on palpation was noted, on the paraspinous process, of moderate severity. No evidence of pain with weight bearing was noted. Although the examiner noted that no additional loss of function was noted with repetitive-use testing, range of motion after repetitive use was noted as follows: forward flexion limited to 75 degrees, extension limited to 30 degrees, right lateral flexion limited to 30 degrees, left lateral flexion limited to 30 degrees, right lateral rotation limited to 30 degrees and left lateral rotation limited to 30 degrees. The Veteran's range of motion during a flare was noted as: forward flexion limited to 40 degrees, extension limited to 20 degrees, right lateral flexion limited to 20 degrees, left lateral flexion limited to 20 degrees, right lateral rotation limited to 0 degrees and left lateral rotation limited to 15 degrees. The examiner also noted that straight leg raising test results for the right extremity was positive and negative for the left extremity. Moderate bilateral intermittent pain and numbness were noted as a symptom due to radiculopathy. Based on the examination results, the examiner determined that the Veteran's right sciatic nerve was involved, but not the left one- as the left extremity was noted as "not affected" by radiculopathy. The Veteran's regular use of his back brace was noted. See Back DBQ of October 2019. The Board finds this Back DBQ adequate and assigns it high probative value. It is noted that the report contains some information as to the Veteran's flares and provides an estimate of the Veteran's range of motion, in terms of degrees, during a flareup of his condition. The Board acknowledges that the examination report does not specifically note the frequency of the Veteran's flares. However, the Board finds that although the report does not note a specific frequency of the reported flares, the report, when read as a whole and in view of the other evidence of record, to include lay statements of record, does provide sufficient information as to the Veteran's flares to allow the Board to apply the rating schedule. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Based on the above and the available evidence in the claims file, the Board finds that a disability rating in excess of 10 percent, prior to September 19, 2018, and in excess of 20 percent thereafter is not warranted for the Veteran's back disability. As previously noted, in order for the Veteran's back disability to warrant an initial disability rating in excess of 10 percent, prior to September 19, 2018, the evidence of record would need to show: forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, a 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. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. It is noted that as the evidence of record does not support the finding that the Veteran has experienced an incapacitating episode needing bed rest, recommended by a physician, the General Rating Formula for Diseases and Injuries of the Spine is the rating criteria that is most beneficial to the Veteran as opposed to the rating criteria for IVDS. Here, the evidence of record shows that the Veteran's range of motion was consistently noted as normal throughout the appellate period, prior to September 2018. Also, while the evidence shows that the Veteran had tenderness upon palpation of the spine at times, no probative evidence of record shows that the Veteran had muscle spasms or guarding that resulted in an abnormal gait or an abnormal spinal contour. Additionally, while the Veteran reported flareups of his back prior to September 2018, his description of the flareups revolved around increased pain with activity and the flares were not described or reported to affect his range of motion prior to September 2018. The first indication that the Veteran's flares could affect his range of motion was noted in the Back DBQ of September 2018. Additionally, the lay statements of record do not suggest that the Veteran's back disability resulted in a limitation of his range of motion to less than 60 degrees for forward flexion, that his back disability resulted in an altered gait, or an abnormal spinal contour, prior to September 2018. Thus, the Board finds that the preponderance of the evidence is against the finding that the Veteran's back disability manifested with symptomatology that more closely approximated a 20 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, to warrant a disability rating in excess of 10 percent, prior to September 19, 2018. In reaching this conclusion, the Board has considered the Veteran's competent and credible reports in the lay statements of record, to include his reports of back pain, increased pain with activity, and his use of a back brace. However, while the Veteran is competent to describe his symptomatology, the Board finds that the symptomatology described in the statements does not support a disability rating in excess of 10 percent, for his back disability, prior to September 19, 2018. The lay statements of record mainly revolve around increased pain with activity or constant pain in the back, but do not indicate that the Veteran's back disability resulted in impaired range of motion of sufficient severity, frequency, and duration as to warrant a disability rating in excess of 10 percent prior to September 2018. Thus, as the evidence of record does not support the finding that at any time prior to September 2018 the Veteran's back disability resulted in forward flexion limited to 60 degrees or less, or a combined range of motion limited to 120 degrees or less, or muscle spasms and/or guarding resulting in an abnormal gait or spinal contour, the Board is unable to find that his disability warranted an initial disability rating in excess of 10 percent prior to September 19, 2018. As to the appellate period from September 19, 2018, forward, the Board finds the evidence of record does not support a disability rating in excess of 20 percent. As previously noted, in order to warrant a disability rating in excess of 20 percent, the evidence of record would need to show that the Veteran's back disability manifested with forward flexion of the thoracolumbar spine of 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. It is noted that in this context, favorable ankylosis can be presented as fixation of a spinal segment in neutral position (zero degrees). See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Here, in the September 2018 Back DBQ the Veteran's back disability was noted to result in an abnormal initial range of motion with forward flexion limited to 50 degrees, with further limitation during flares and repetitive use. The range of motion noted in the September 2018 Back DBQ is consistent with a 20 percent disability rating pursuant to the General Rating Formula for Diseases and Injuries of the Spine. The April 2020 rating decision granted a 20 percent disability rating for the Veteran's back disability, effective September 19, 2018- the date of the Back DBQ. The Veteran's medical records prior to September 2018 show that he consistently reported back pain. However, these medical records do not show that the Veteran's back disability resulted in an abnormal range of motion with forward flexion limited to 60 degrees or less, prior to September 2018. Notably, records for January 2018 show the Veteran had full range of motion, despite pain with movement. See medical records for January 2018. Thus, while the evidence of record does show that the Veteran's back disability changed in severity during the pendency of the appeal, the evidence does not support the finding that the disability manifested with symptomatology consistent with a disability rating of 20 percent prior to the Back DBQ of September 2018, which revealed range of motion measurements and other findings consistent with a 20 percent disability rating. In reaching this conclusion the Board acknowledges that in increased rating claims, the date the increase in disability was ascertainable should be a finding that is made with consideration of all of the facts and not just a mechanical finding based on the date of an examination. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). However, in the present case, the evidence of record, to include the lay statements and the medical examinations of record prior to September 2018 do not support a finding that the worsening of the Veteran's back disability, consistent with a 20 percent disability rating, was ascertainable prior to September 2018. Notably, the statements and medical records available in the claims file prior to September 2018 show that while the Veteran reported increased pain, his range of motion was consistently noted as normal, and while the Veteran's statements could be construed to suggest an increase in his disability as evidenced by his reports of increased pain, the evidence of record to include the Veteran's statements do not suggest that his disability manifested with impaired range of motion prior to September 2018 or that any impaired range of motion the Veteran experienced was of such severity as to warrant a disability rating in excess of 10 percent prior to September 2018. Thus, the Board finds the evidence of record supports finding the increase in disability was ascertainable on September 19, 2018, and the preponderance of the evidence is against the finding that the increase in disability was ascertainable prior to September 19, 2018. Additionally, the Board finds that a disability rating in excess of 20 percent, from September 19, 2018, forward, is not warranted. Here, the evidence of record for this appeal period shows that while the Veteran's back disability affects his range of motion, his forward flexion has not been noted to be limited to 30 degrees or less, at any time during the applicable period, even in consideration of the additional estimated limitation of motion his flares cause, as the most favorable estimate pertaining to the Veteran's limitation of motion during a flare notes his forward flexion to be limited to about 35 degrees. See Back DBQ of October 2019. Additionally, there is no probative evidence of record showing that the Veteran's back disability has resulted in favorable ankylosis of the entire thoracolumbar spine. Notably, the Veteran has the ability to perform movements and at no point during this period, has any physician found the Veteran to have a fixated spinal segment. Thus, the Board finds the preponderance of the evidence is against the finding that the Veteran's back disability has manifested with symptomatology consistent with a disability rating in excess of 20 percent, or that more closely approximated the 40 percent disability rating criteria, from September 19, 2018, forward. In reaching this conclusion the Board has considered that the Veteran's flares result in an estimated limitation of about 35 degrees in forward flexion, as shown in the October 2019 Back DBQ, in addition to the Veteran's reports at this examination that during a flare he cannot get out of bed or get up straight. However, while the Veteran's report at the examination suggest that his flares result in notable limitations, the examiner estimated the Veteran's range of motion during a flare to be greater than 30 degrees in forward flexion, which is consistent with a disability rating of 20 percent. Additionally, the evidence of record does not show that the Veteran's flares are of sufficient severity, frequency, and duration, as to warrant a disability rating in excess of 20 percent during this period. Notably, the available evidence of record does not show other reports of flares similar to or worse than the ones the Veteran described in the October 2019 Back DBQ, or that the Veteran has sought treatment for severe symptoms similar to or worse than the flares the Veteran reported in the October 2019 Back DBQ, at any time after September 2018. Thus, in view of these findings and the other evidence of record, the Board finds that resolving reasonable doubt in his favor, the Veteran's back disability has manifested with symptomatology that more closely approximates the 20 percent disability rating, including during flares, from September 19, 2018 forward, and that the preponderance of the evidence is against finding that his symptomatology has more closely approximated the criteria to warrant a disability rating of 40 percent from September 19, 2018, forward. In reaching this conclusion the Board has considered the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the claim, the benefit of the doubt is not for application. The Board has also considered the Veteran's report of shooting/stabbing pain to his bilateral legs as noted in the available medical records and whether such reports warrant a separate disability rating for radiculopathy of the left lower extremity. However, here, there is no objective evidence that the Veteran's back disability results in radiculopathy to his left lower extremity. Notably, although the Veteran reported bilateral moderate intermittent pain and numbness to his lower extremities, he was diagnosed with radiculopathy of the right lower extremity and no radiculopathy of the left lower extremity was noted in the Back DBQ of October 2019. Thus, as no objective evidence of record supports the finding that the Veteran's back disability results in radiculopathy to his left lower extremity, the Board finds the preponderance of the evidence is against the finding that the Veteran's back disability results in radiculopathy to the left lower extremity and a separate disability rating for left lower extremity radiculopathy pursuant to 38 C.F.R. § 4.71a, note 1- which requires objective neurologic abnormalities, is not warranted. In reaching this conclusion the Board has considered the benefit of the doubt doctrine, however, as the preponderance of the evidence is against the claim, the benefit of the doubt is not for application. 2. Entitlement to a separate rating for radiculopathy of the right lower extremity prior to October 18, 2019 As noted previously, the Veteran was granted a separate disability rating for right lower extremity radiculopathy during the pendency of the appeal. The radiculopathy was rated at 10 percent disabling and assigned an effective date of October 18, 2019. See April 2020 rating decision. Since the Veteran's radiculopathy is a neurologic abnormality associated with his back disorder, awarded a separate rating during the pendency of the appeal pertaining to the disability rating assigned to the back, the Board has assumed jurisdiction of the issue pursuant to 38 C.F.R. § 4.71a, note 1. Additionally, as previously noted, the appeal period before the Board is from December 16, 2013; the effective date of the award of service connection for the back disability. The Board clarifies that the separate rating assigned to the Veteran's radiculopathy of the right lower extremity is not properly a separate award for benefits, but rather it is a separate evaluation of a neurologic abnormality associated with the Veteran's back disability, pursuant to 38 C.F.R. § 4.71a, note 1. Thus, as the separate rating assigned to the radiculopathy does not cover the entire period on appeal, the Board will analyze the evidence of record to determine whether a separate rating for radiculopathy of the right lower extremity pursuant to 38 C.F.R. § 4.71a, note 1, is warranted prior to October 18, 2019. In this case, the evidence of record shows that in December 2014, the Veteran reported back pain, and the physical examination noted positive straight leg raise testing results, with normal motor function and reflexes. See medical records for December 2014. The records for this date do not show any complaints or reports of radiating pain to the Veteran's lower extremities, nor a diagnosis of radiculopathy. In June 2016, the Veteran reported a "stabbing pain" down his legs, into his knees. See medical records for June 2016. In February 2017, the Veteran reported radiating pain to the bilateral lower extremities. No paresthesias or weakness was noted in the lower extremities and straight leg raise testing revealed negative results. See private medical records for February 2017. The Veteran was also noted to have negative results for straight leg raise testing in the Back DBQ of May 2017, in January 2018 and in the Back DBQ of September 2018. See VA medical records and Back DBQs of May 2017 and September 2018. In the October 2019 Back DBQ, the Veteran reported radiculopathy symptomatology and had a positive result to straight leg raising testing in the right lower extremity. The examiner diagnosed the Veteran with right lower extremity radiculopathy, caused by his back disability. See Back DBQ of October 2019. Based on the above, the Board finds that a separate radiculopathy rating prior to October 18, 2019 is not warranted. Here, the evidence of record shows that the Veteran reported shooting/stabbing pain down his legs as early as June 2016. However, no objective neurological abnormalities were noted pertaining to the Veteran's right lower extremity until the Back DBQ of October 2019. Further, although the Veteran reported radiating pain to his medical providers at various times, no objective evidence of radiculopathy or of any other neurological deficit associated with his back disability was noted prior to October 2019, in the available medical records. Thus, the Board is unable to find that the Veteran's radiculopathy of the lower right extremity warrants a separate rating prior to October 18, 2019. In reaching this conclusion the Board has considered that in December 2014 a physician noted the Veteran had positive straight leg raise testing results. However, no radiculopathy diagnosis was rendered based on that result. Further, the Veteran's medical records show that he reported radiating pain to his medical providers in 2016 and 2017. However, these reports of radiating pain were not diagnosed as radiculopathy by the medical providers and diagnostic testing revealed no abnormalities. See medical records for June 2016 and February 2017. Thus, while the Veteran is competent to report his radiating pain, and the record shows he reported such radiating pain to his medical providers, prior to October 2019, the evidence of record does not show objective neurological abnormalities pertaining to the Veteran's right lower extremity, prior to the October 2019 Back DBQ. Thus, as no objective evidence of neurological abnormalities associated with the Veteran's back disability were noted prior to October 18, 2019, the preponderance of the evidence is against finding that the separate disability rating for radiculopathy of the right lower extremity was warranted prior to October 18, 2019 pursuant to 38 C.F.R. § 4.71a, note 1. In reaching this conclusion, the Board has considered the Veteran's reports of radiating pain prior to October 2019 and Swain v. McDonald, 27 Vet. App. 219, 224 (2015). However, as 38 C.F.R. § 4.71a, note 1 requires objective evidence of neurological abnormalities and as such objective evidence, to include a diagnosis of radiculopathy, was not of record prior to October 18, 2019, the Board is unable to find that a separate rating for the radiculopathy of the right lower extremity was warranted pursuant to 38 C.F.R. § 4.71a, note 1, prior to October 18, 2019. 3. Entitlement to a disability rating of 10 percent for right lower extremity radiculopathy Radiculopathy of the lower extremities is rated based on the degree of paralysis of the sciatic nerve under 38 C.F.R. § 4.124a, DC 8520. Under this code, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve, which contemplates foot dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated in proportion to the impairment of motor, sensory, or mental function. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, and sensory disturbances. 38 C.F.R. § 4.120. The schedule of ratings does not define the terms "moderate" and "severe;" rather than applying a mechanical formula to make a determination, the Board evaluates all of the evidence such that decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with respect to nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for "complete paralysis" given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See Id. Here, the evidence of record does not support the finding that the Veteran's right lower extremity radiculopathy has manifested with symptomatology that more closely approximates a disability rating in excess of 10 percent throughout the appeal period- from October 18, 2019, forward. In the October 2019 Back DBQ, the Veteran reported radiculopathy symptomatology and had a positive result to straight leg raise testing in the right lower extremity. The Veteran's muscle strength, reflexes, and sensory testing results were noted to be normal. The examiner diagnosed the Veteran with right lower extremity radiculopathy, characterized as mild. See Back DBQ of October 2019. The Board finds this examination adequate and affords high probative weight to the examiner's finding of mild radiculopathy in view of his medical expertise and in further view of the findings noted in the Back DBQ of 2019 and other evidence of record. Thus, in view of the examiner's finding of mild radiculopathy in the Back DBQ October 2019 and absent other probative evidence that the Veteran's radiculopathy manifests with symptoms of a severity, frequency, and intensity, as to warrant a higher disability rating, the Board finds that a disability rating in excess of 10 percent for the Veteran's right lower extremity radiculopathy is not warranted. (Continued on the next page) In reaching this conclusion, the Board has considered the Veteran's report of moderate intermittent pain and numbness related to his radiating pain to his lower extremities as noted in the Back DBQ of October 2019. However, while the Veteran is competent to report his symptomatology, the Board finds the Veteran's characterization of his symptomatology as moderate, to be outweighed in probative weight by the other evidence of record, to include the objective findings in the October 2019 Back DBQ noting the Veteran's muscle strength, reflex, and sensory testing were normal for the right lower extremity. Additionally, other evidence of record to include medical records for the appellate period, do not show that the Veteran's radiating pain manifests with symptomatology that more closely approximates a disability rating in excess of 10 percent. Notably, the Veteran's reports of radiating pain seem to be usually associated with subjective sensory disturbances without associated impairment of the motor function or trophic changes and without objective sensory disturbance findings pertaining to the right lower extremity. As such, the Board finds the Veteran's radiculopathy of the right lower extremity manifests with symptomatology that more closely approximates the 10 percent rating criteria. Accordingly, for the reasons explained above the Board finds the preponderance of the evidence weighs against the finding that the Veteran's radiculopathy of the right lower extremity warrants a disability rating in excess of 10 percent. In reaching this conclusion, the Board has considered the benefit of the doubt doctrine, however, as the preponderance of the evidence is against finding a that the radiculopathy of the right lower extremity manifests with symptomatology that more closely approximates the disability criteria of 20 percent, the benefit of the doubt doctrine is not applicable. KRISTI L. GUNN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Gonzalez-Maldonado 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.