Citation Nr: 21070907 Decision Date: 11/26/21 Archive Date: 11/26/21 DOCKET NO. 16-46 844 DATE: November 26, 2021 ORDER Entitlement to a rating in excess of 40 percent for low back strain with degenerative disc disease is denied. Entitlement to a rating in excess of 20 percent for sciatica, right lower extremity prior to December 2, 2019 is denied. Entitlement to a 40 percent rating, but no higher, for sciatica, right lower extremity from December 2, 2019, is granted. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's low back disability has not been manifested by ankylosis of any kind or required physician prescribed bed rest. 2. Prior to December 2, 2019, the Veteran's right lower extremity sciatica was manifested by no more than moderate, incomplete paralysis of the sciatic nerve. 3. From December 2, 2019, the Veteran's right lower extremity sciatica has more nearly approximated moderately severe incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 40 percent for low back strain with degenerative disc disease have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242-5237. 2. The criteria for entitlement to a rating in excess of 20 percent for sciatica, right lower extremity, prior to December 2, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 3. From December 2, 2019, the criteria for a 40 percent rating, but no higher, for sciatica, right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Army from November 1972 to June 1982. These matters come before the Board of Veterans' Appeals (the Board) on appeal from an April 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Veteran testified at a hearing before the undersigned Veterans Law Judge in December 2019. A transcript of the hearing is of record. The Board previously remanded these matters in December 2019 and March 2021. While in remand status, the RO issued a July 2021 rating decision, increasing the Veteran's rating for sciatica, right lower extremity, to 40 percent, effective July 7, 2021. The Veteran continues to appeal for a higher rating. AB v. Brown, 6 Vet. App. 35 (1993) (a claimant is presumed to be seeking the maximum rating allowed by law). As the actions specified in the Board's most recent remand have been substantially completed, these matters have been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). As an initial matter, the Board acknowledges that VA treatment records were added to the claims file after the RO's September 2021 SSOC. However, since these records are duplicative of evidence already in the claims file and have been previously considered by the RO, the Veteran is not prejudiced. Duties to Notify and Assist With respect to the Veteran's claims herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A; 38 C.F.R. § 3.159. Neither the Veteran nor his representative have advanced any procedural arguments in relation to VA's duty to notify and assist; therefore, the Board will proceed with appellate review. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Fenderson v. West, 12 Vet. App. 119, 126 (1999); Francisco v. Brown, 7 Vet. App. 55, 58 (1994). 1. Entitlement to a rating in excess of 40 percent for low back strain with degenerative disc disease, is denied. The Veteran's low back disability is rated under Diagnostic Codes 5242-5237. 38 C.F.R. § 4.71a. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the rating assigned. The additional code is shown after a hyphen. 38 C.F.R. § 4.27. Diagnostic Code 5242 rates degenerative arthritis of the spine and refers to Diagnostic Code 5003, which rates degenerative arthritis. 38 C.F.R. § 4.71a . Under Diagnostic Code 5003, degenerative arthritis established by X-ray findings will be rated based on limitation of motion under the appropriate diagnostic code(s) for the specific joint(s) involved. When, however, the limitation of motion of the specific joint(s) involved is noncompensable under the appropriate diagnostic code(s), a 10 percent rating is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under Diagnostic Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. In the absence of limitation of motion, a 10 percent evaluation is warranted if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and a 20 percent evaluation is authorized if there is X-ray evidence of involvement of two or more major joints or two or more minor joint groups and there are occasional incapacitating exacerbations. Id., Diagnostic Code 5003. Diagnostic Codes 5242 and 5237 are evaluated under the General Rating Formula for Diseases and Injuries of the Spine, with or without symptoms such as pain, stiffness or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply: A 20 percent rating is appropriate where there is 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 warranted for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Concerning disabilities affecting the spine, any associated objective neurologic abnormalities are evaluated separately under an appropriate Diagnostic Code. 38 C.F.R. § 4.71a, General Formula, Note 1. 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. Id. at Note 2. 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 lateral rotation, with the normal combined range of motion of the thoracolumbar spine being 240 degrees. Id. Unfavorable ankylosis is a condition in which the entire thoracolumbar 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. Id. at Note 5. Fixation of a spinal segment in neutral position always represents favorable ankylosis. Id. An April 16, 2021 the Court of Appeals for Veterans Claims (the Court) decision, Chavis v. McDonough, 34 Vet. App. 1 (2021), held that ankylosis can be met with evidence of the functional equivalent of ankylosis during a flare. Id. at 2. The Court also reiterated that "VA considers ankylosis to be an objective finding like limitation of motion, muscle spasm, guarding, and tenderness." Id. at 9. The Appellant argued that his spine disability results in the functional equivalent of ankylosis during flare-ups that render him unable to move. Id. at 12. The Court vacated the prior Board denial of an increased rating, remanding the claim for the Board to consider whether the Appellant's symptoms during flare-ups result in the functional equivalent of ankylosis. Back disabilities may also be evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes (Incapacitating Episodes Formula), which applies to Intervertebral Disc Syndrome (IVDS). See 38 C.F.R. § 4.71a, Incapacitating Episodes Formula. An "incapacitating episode" for purposes of totaling the cumulative time is defined as "period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician." 38 C.F.R. § 4.71a, Diagnostic Code 5243, Incapacitating Episodes Formula, Note 1. When evaluating disabilities of the musculoskeletal system, functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements must be considered. 38 C.F.R. § 4.40; see DeLuca v. Brown, 8 Vet. App. 202 (1995). Consideration must also be given to weakened movement, excess fatigability and incoordination. 38 C.F.R. § 4.45. In determining if a higher rating is warranted on this basis, it is important to note that pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Similarly, painful motion alone does not constitute limited motion for the purposes of rating under the diagnostic codes pertaining to limitation of motion. Id. However, pain may result in functional loss if it limits the ability to perform normal movements of the body with normal excursion, strength, speed, coordination, or endurance, as provided in 38 C.F.R. § 4.40. Id. at 38. Functional loss caused by pain must be rated at the same level as if that functional loss were caused by some other factor, for example, deformity, adhesion, atrophy, tendon tie-up, see 38 C.F.R. §§ 4.40, 4.45, that actually limited motion. Id. at 37. During the period on appeal, the Veteran has reported that he experiences severe back pain, limitation of motion, limitations on sitting and raising up from sitting, standing, walking, and completing activities of daily living. The Veteran is competent to report such symptoms and there is no evidence that his statements are not credible. Jandreau, 492 F.3d 1372. As such, the statements are entitled to probative weight as to the severity of his disability during the period on appeal. The Veteran was provided with VA spine examinations in March 2015, June 2020, and July 2021. During the March 2015 examination the Veteran reported constant back pain and stiffness. The Veteran was noted to have forward flexion to 30 degrees and motion to 15 degrees in other planes. There was no further loss of motion after repetitive testing. The Veteran did not report flare-ups, but reported functional loss of his thoracolumbar spine that impedes his ability to bend, stoop and lift. He avoids these activities as much as possible. The examiner noted no evidence of ankylosis of the spine. A diagnosis of IVDS was noted, but the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. In March 2015, the Veteran reported falling within the last year due to his legs going numb. He complained of low back pain rated as 7 of 10 while sitting and 8 of 10 while walking. See March 2015 VA Primary Care Nursing Note. In June 2016, the Veteran reported to a VA emergency room with complaints of back pain. His gait was noted as steady. See June 2016 VA Emergency Room Note. A September 2016 VA treatment note reflects the Veteran's complaints of low back pain ranging in severity from 5-8 of 10. The Veteran reported the pain as radiating from the low back, worse with lying supine, bending, standing, and sitting. The Veteran reported sharp pain on the right side of his buttocks. He was using 800mg ibuprofen 2-3 times daily, as well as doing stretches, and using heating pads. The Veteran put zippers in his boots to make securing his shoes easier than tying, due to pain in his back. See September 2016 VA Pain Consult. A December 2018 work note from the Veteran's VA provider requested the Veteran's employer to allow him to take off anywhere from 1-3 days per flare-up of chronic back pain. The provider noted that in general, the Veteran usually requires 7-10 days off per month if pain is severe. See December 2018 Certification of Health Care Provider for Employee's Serious Health Condition. At his December 2019 Board hearing, the Veteran testified that sometimes pain makes it hard for him to ascend the stairs in his home, and to get in and out of bed. Sometimes the Veteran's back "locks up." At times he cannot even bend over, especially with certain activities. He experiences flare-ups which sometimes result in him having to miss work. See December 2019 Board Hearing Transcript. He testified that none of this doctors have ordered bed rest for more than six weeks in the past year given his back condition. He also testified that sometimes his back locks up. In January 2020, the Veteran reported to a VA emergency room with complaints of chronic low back pain radiating down both legs. The Veteran was discharged the same day, with his provider excusing the Veteran from work for 4 days following the Veteran's ER visit. See January 2020 VA Emergency Room Note. A September 2020 VA MRI of the Veteran's lumbar spine revealed a stable to slight progression of degenerative changes at L5/S1 with asymmetric spinal canal and lateral recess stenosis and mild to moderate left and mild right foraminal narrowing. See September 2020 VA MRI. During the June 2020 VA examination the examiner was unable to conduct range of motion testing due to the Veteran reporting his back pain as severe and that he was unable to perform testing. The examiner noted no evidence of ankylosis of the spine. A diagnosis of IVDS was noted, but the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. The Veteran occasionally used a lumbar support brace at work. The Board found the June 2020 examination to be inadequate and remanded the claim to afford the Veteran a Sharp and Correia compliant examination. See Sharp v. Shulkin, 29 Vet. App. 26 (2017), Correia v. McDonald, 28 Vet. App. 158 (2016) An April 2021 VA treatment note reflects the Veteran's treatment for an acute flare of chronic low back for the prior 2 days. The Veteran's pain is noted as aching across his low back, and radiating into the right leg. The provider noted no numbness, weakness, or changes in the Veteran's bowel or bladder. The Veteran denied taking any daily medications for low back pain. See April 2021 VA Emergency Room Note. In June 2021, the Veteran complained of low back pain rated as 10 of 10 for the prior 2 days. He denied lower extremity radiculopathy, and urinary/fecal incontinence. See June 2021 VA Administrative Note. Pursuant to the Board's March 2021 remand, the Veteran underwent another VA examination in July 2021. The Veteran reported constant, aching low back pain rated as 8 of 10. He also reported constant, sharp, shooting pains down the right leg to the right foot and toes with tingling and numbness. He reported weakness due to the right leg condition, and having fallen in the past. He reported he was offered a cane but has not gotten one. The Veteran was noted to have forward flexion to 20 degrees, right lateral flexion to 15 degrees, and 10 degrees of motion in all other planes. Pain was exhibited on all planes of motion. Repetitive testing resulted in additional loss of range of motion of forward flexion to 10 degrees, right lateral flexion to 10 degrees, and 5 degrees on all other planes of motion. Functional loss was caused by pain. The Veteran reported flare-ups of sharp and shooting low back pain 1-2 times weekly, lasting all day. Precipitating factors are bending down, prolong walking, standing and sitting, raising after sitting, and pushing and pulling mail bins out of trucks at work. Alleviating factors are rest and medication. Procured evidence suggested pain that significantly limited functional ability with repeat use and during flare-ups. The examiner estimated ROM during these periods as forward flexion to 10 degrees, right lateral flexion to 10 degrees, and 5 degrees on all other planes of motion. The examiner noted that the Veteran's bilateral lumbar facet joints with paraspinal tenderness result in localized tenderness, muscle spasms and guarding, with muscle spasms and guarding resulting in abnormal gait or abnormal spine contour. Interference with sitting and standing and disturbance of locomotion were listed as additional factors contributing to the Veteran's disability. The examiner noted no evidence of ankylosis of the spine. A diagnosis of IVDS was noted, but the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the prior 12 months. In August 2021, the RO obtained an addendum opinion from the July 2021 VA examiner to specifically address the Veteran's December 2019 Board hearing testimony, along with the result of the September 2020 MRI. New diagnoses pertaining to this opinion include IVDS, retrolisthesis, lumbar disc protrusion L4/5 and L5/S1, moderate spinal stenosis, degenerative lumbar spine, and worsening of DDD at L5/S1. The examiner acknowledged the Veteran's statements at his Board hearing. Addressing the September 2020 MRI, and citing to medical literature, the examiner stated that the noxious stimulus of a spinal nerve creates ectopic nerve signals that are perceived as pain, numbness, and tingling along the nerve distribution. Lesions of the intervertebral discs and degenerative disease of the spine are the most common causes of lumbosacral radiculopathy. However, any process that causes irritation of the spinal nerves can cause radicular symptoms. The differential diagnosis for lumbosacral radiculopathy should include (but is not limited to) the following: degenerative conditions of the spine, spinal stenosis, and adult isthmic spondylolisthesis. There is no evidence that the above examiners were either not competent or credible. Further, their assessments were based on the Veteran's own reports of his symptoms and each examiner's own objective examination of the Veteran's lumbar spine. As such, the Board finds that each respective examination report is entitled to significant probative weight as to the severity of the Veteran's disability during the period on appeal. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Treatment records from the period on appeal reflect consistent reports of low back pain. However, the records do not reflect any physician prescribed bedrest, fixation of the lumbar or entire spine, or any symptoms associated with unfavorable ankylosis of the lumbar or entire spine. Based on the foregoing, the preponderance of the evidence is against a finding that an increased rating in excess of 40 percent is warranted. None of the evidence, whether lay or medical, indicates that the Veteran's lumbar or entire spine is fixed in place in any way. While the Veteran testified during the Board hearing that on occasion his back will lock, such is not the equivalent to his spine being fixed in place. Significantly, throughout the period on appeal, no VA examiner, VA, or private provider have stated that the Veteran's disability was manifested by ankylosis of any kind. As such, an increased rating for the Veteran's low back disability is not warranted in this case. 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Codes 5242-5237. As the evidence shows that the Veteran has IVDS, the Board has considered whether he is entitled to a higher evaluation under Diagnostic Code 5243. The rating criteria under Diagnostic Code 5243 require that a maximum 60 percent evaluation is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In this case, at his March 2015 VA examination, January 2020 VA examination, and July 2021 VA examination, the clinical findings showed that the Veteran did not have any incapacitating episodes that required bedrest prescribed by a physician and treatment by a physician due to his IVDS. Therefore, the Veteran does not qualify for a higher 60 percent evaluation under Diagnostic Code 5243 at any time during the appeal period. Accordingly, throughout the appeal period, the Veteran's low back strain with degenerative disc disease is no more than 40 percent disabling. The Board has also considered whether the Veteran's symptoms approximate ankylosis in light of Chavis v. McDonough. In Chavis, the Court noted the Dorland's definition of ankylosis as "complete limitation of motion." See Dorland's Illustrated Medical Dictionary at 94 (33d ed. 2019). The Board has reviewed the objective medical evidence of record and does not find that the Veteran's symptoms, including during periods of flare-up, approximate ankylosis. The Board further finds that there is no basis for the assignment of a higher rating based on consideration of any of the factors addressed in 38 C.F.R. §§ 4.40, 4.45, 4.59, and DeLuca, 8 Vet. App. at 204-07. The Veteran already receives the maximum disability rating available for limited motion in the lumbar spine absent ankylosis. In addition, none of the medical evidence suggests that the severity of his service-connected low back disability is the functional equivalent of ankylosis. Notably, all of the VA examinations from the period on appeal demonstrated that the Veteran had at least some range of motion in his lumbar spine, even with Deluca considerations. Hence, even with consideration of sections 4.40 and 4.45 and DeLuca, the record presents no basis for the assignment of a rating higher than 40 percent based on functional loss. As such, the Veteran is not entitled to a higher rating under the General Rating Formula for limitation of spine movement. See 38 C.F.R. § 4.71a, Diagnostic Code 5237. The findings provided in the examination reports are adequate to decide the claim. See Sharp v. Shulkin, 29 Vet. App. 26 (2017). Finally, the Board considered whether the Veteran is entitled to a separate evaluation for any neurologic abnormalities, other than his service-connected bilateral lower extremity sciatica. At his January 2020 VA examination, the Veteran reported 6 occurrences over the prior year of urinary incontinence. He also admitted to not feeling like he has fully emptied his bladder, a weak stream, and increasing urinary frequency especially at night. The Veteran stated that he had not discussed this with any of his providers. The January 2020 VA examiner opined that the Veteran did not have any diagnosis of urinary incontinence or loss of bladder control. The examiner indicated a few back conditions that can cause urinary incontinence: cauda equina syndrome, a spinal cord injury, or a severely herniated disc. The examiner noted that none of these conditions applied to the Veteran and that instead the Veteran may have been experiencing a common condition seen with aging men, called benign prostatic hypertrophy. The examiner cited to evidence in the claims file from 3 medical treatment notes from the prior 6 months, all of which noted no evidence of urinary incontinence, loss of bladder, or related complaints. See February 2019, March 2019, and January 2020 VA Treatment Notes. Therefore, the Board finds that the evidence does not support a finding that a separate evaluation is warranted for any bladder or bowel dysfunction. See General Rating Formula for Diseases and Injuries of the Spine, Note 1. In reaching the above conclusions, the Board acknowledges that the Veteran sincerely believes his low back disability and its associated symptoms to be more severe than contemplated by his currently-assigned disability rating. The Board notes that the Veteran is competent to report on factual matters of which he has first-hand knowledge, such as experiencing an increased level of pain. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). However, he is not competent to report that his low back disability is of sufficient severity to warrant higher ratings under the rating schedule, as such an opinion requires specialized medical expertise which falls outside the realm of the common knowledge of a layperson. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board must rely on the medical evidence of record to assign the appropriate disability ratings in this case and, therefore, accords the objective medical findings greater weight than the Veteran's subjective complaints of increased symptomatology. In summary, to the extent any higher level of compensation is sought, the Board finds that the weight of the evidence is against the Veteran's claim. As such, the Veteran is not entitled to a rating in excess of 40 percent, for a low back disability manifested by limitation of motion in flexion, at any time during the period on appeal. As the evidence preponderates against the claim, the benefit-of-the-doubt rule is not for application and the Veteran's appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 49. 2. Entitlement to a rating in excess of 20 percent for sciatica, right lower extremity for the period prior to December 2, 2019 is denied. Resolving all reasonable doubt in favor of the Veteran, a 40 percent rating, but no higher, for the period from December 2, 2019 for sciatica, right lower extremity is granted. The Veteran contends that his right lower extremity sciatica is worse than his current evaluation reflects. He asserts that his sciatica causes him to all of a sudden lose balance. Sometimes he cannot hold his urine. His sciatica impacts his ability to work, and he has fallen in the past due to right leg weakness. See December 2019 Board Hearing Transcript, July 2021 Peripheral Nerves Conditions VA Examination. During the relevant period on appeal, the Veteran's right lower extremity sciatica is rated as 20 percent disabling prior to July 7, 2021 and as 40 percent disabling thereafter, under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve, and therefore, neuritis and neuralgia of that nerve. 38 U.S.C. § 4.124 a, Diagnostic Code 8520. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Words such as "mild," "moderate," and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Additionally, the term "incomplete paralysis," with this and other peripheral nerve injuries, 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. 38 C.F.R. § 4.124a, Note at Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. Id. Turning to the relevant evidence of record, a September 2016 VA treatment note reflects the Veteran's reports on low back pain with sharp pain on the right-side buttocks. See September 21, 2016 VA Pain Consult. December 2018 and March 2019 VA treatment notes reflects the Veteran's complaints of lower back pain that was not radiating. See December 22, 2018, March 31, 2019 VA Emergency Room Notes. At his December 2019 hearing, the Veteran testified that his right lower extremity causes him to all of a sudden lose balance and that sometimes he cannot hold his urine. The Veteran believes he is entitled to a higher rating because trying to work with the pain is very difficult. Sometimes he cannot do his job and has to have help; he just doesn't know "when it is going to hit." The Veteran has a prescription foot brace for pain. None of his providers have ever stated that he could not work due to his right lower extremity sciatica. See December 2019 Board Hearing Transcript. During a January 2020 VA examination, the Veteran reported that sometimes his right leg "gives way" and he loses his balance. He reported severe radicular pain down both legs as well as numbness and tingling. The examiner documented the Veteran's right lower extremity sciatica as causing the Veteran constant pain, severe in nature. Numbness and paresthesias and/or dysesthesias were also noted as severe. Overall, the examiner indicated the severity of the Veteran's right lower extremity sciatica as moderate. An April 2021 VA treatment note documents the Veteran's complaints of low back pain radiating into the right leg. There was no numbness, weakness, or changes in bowel/bladder. See April 16, 2021 VA Emergency Dept. Note. In June 2021, the Veteran complained of low back pain radiating to his right lower extremity for the past 2 days. See June 30, 2021 VA Emergency Dept. Note. In a May 2021 statement, the Veteran's wife wrote of an occasion where the Veteran awoke from sleeping and his legs gave out, causing him to fall to the floor. For a "little while," "it felt like he was paralyzed from his waist down." Also in May 2021, the Veteran submitted a statement that the pain in his back goes down his legs, causing him to lose strength in his legs. He cannot pick up his legs to walk upstairs and bending is a struggle. In July 2021, the Veteran underwent a Peripheral Nerves Conditions VA examination. He was diagnosed, in relevant part, with sciatica, right lower extremity. The Veteran reported constant right leg pain which is worse when walking, which he currently treats with ibuprofen and muscle relaxants, a few times a week. He had missed almost 2 weeks of work due to flare-ups of low back pain with right leg pain and stiffness. The Veteran reported that he had fallen in the past due to right leg weakness. The examiner documented moderate constant pain, moderate numbness, and moderate paresthesias Veteran's right lower extremity. The examiner noted that the Veteran did not have muscle atrophy. The examiner determined that the Veteran has moderately severe incomplete paralysis of the right sciatic nerve. The examiner noted that the Veteran's nerve condition impacts his ability to work, noting 1-2 weeks of work time lost in the prior 12 months. Based on a careful review of all the subjective and clinical evidence and resolving all reasonable doubt in favor of the Veteran, the record reflects that since the December 2, 2019 Board hearing, the Veteran's right lower extremity sciatica more nearly approximated moderately severe incomplete paralysis. However, prior to December 2, 2019, the Board finds that the Veteran's right lower extremity sciatica does not warrant a higher 40 percent evaluation under Diagnostic Code 8520. In other words, prior to December 2, 2019, the evidence does not demonstrate that the Veteran's right lower extremity sciatica is more appropriately characterized as moderately severe incomplete paralysis of the sciatic nerve. Moreover, from December 2, 2019, the Board finds that the Veteran's right lower extremity sciatica does not warrant a higher 60 percent evaluation under Diagnostic Code 8520. In other words, during the relevant appeal period, the evidence does not demonstrate that the Veteran's right lower extremity sciatica is more appropriately characterized as severe, with marked muscular atrophy, incomplete paralysis of the sciatic nerve. Accordingly, the Board finds that the preponderance of the evidence is against finding that a rating in excess of 20 percent prior to December 2, 2019 is warranted; however, resolving all reasonable doubt in favor of the Veteran, a 40 percent, but no higher rating, is warranted from December 2, 2019 for right lower extremity sciatica, is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.