Citation Nr: 21072404 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 16-12 735 DATE: December 3, 2021 ORDER Entitlement to an increased disability evaluation for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, rated as 20 percent disabling for the rating period prior to September 10, 2018, is denied. Entitlement to an increased disability evaluation for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, rated as 40 percent disabling for the rating period since September 10, 2018, is denied. Entitlement to an increased, 20 percent disability evaluation for right lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), for the rating period prior to October 29, 2019 is granted. Entitlement to an increased disability evaluation for right lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), rated as 20 percent disabling, for the rating period since October 29, 2019, is denied. Entitlement to an increased disability evaluation for left lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), rated as 20 percent disabling, is denied. FINDINGS OF FACT 1. For the rating period prior to September 10, 2018, the Veteran's degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine is manifested by pain on motion, with functional loss due to pain upon movement. Forward flexion is limited to no worse than 70 degrees; the Veteran does not have intervertebral disc syndrome. 2. For the rating period since September 10, 2018, the Veteran's degenerative disc disease with spondylosis, post laminectomy, is manifested by pain and forward flexion of the thoracolumbar spine to 20 degrees, without ankylosis or its equivalent during a flare-up. 3. For the entire appeal period, the Veteran's right lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves) is productive of moderate incomplete paralysis of the sciatic nerve. 4. For the entire appeal period, the Veteran's left lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves) is productive of moderate incomplete paralysis of the sciatic nerve. CONCLUSIONS OF LAW 5. The criteria for a disability evaluation in excess of 20 percent for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, have not been met for the rating period prior to September 10, 2018. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2020). 6. The criteria for a disability evaluation in excess of 40 percent for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, have not been met for the rating period since September 10, 2018. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5235 5243 (2020). 7. The criteria for an increased, 20 percent disability evaluation for right lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), for the rating period prior to October 29, 2019, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8521 8520 (2020). 8. The criteria for a disability evaluation in excess of 20 percent for right lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), have not been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8521 8520 (2020). 9. The criteria for a disability evaluation greater than 20 percent for left lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), have not been met at any time during the appeal period. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3§§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Codes 8521 8520 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the U.S. Army from July 1971 to July 1974 and from February 2003 to December 2003. These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2015 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). During the pendency of the appeal, in a January 2019 rating decision, the Veteran was awarded an increased, 40 percent disability evaluation for his service-connected degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, effective September 10, 2018; a temporary total disability evaluation was assigned for the period from October 30, 2018 through December 31, 2018. Additionally, this rating decision awarded service connection for radiculopathy of the right and left lower extremities (sciatic nerve) and assigned a 10 percent disability evaluation on the right and a 20 percent disability on the left, effective September 10, 2018. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In a July 2020 rating decision, an increased, 20 percent disability evaluation was awarded for the Veteran's right lower extremity radiculopathy of the sciatic nerve, and separate disability evaluations were assigned for the Veteran's right and left deep peroneal and common peroneal nerves; noncompensable disability evaluations were assigned for the Veteran's right and left deep peroneal nerves and 10 percent disability evaluations were assigned per lower extremity for the common peroneal nerves. An effective date of October 29, 2019 was assigned for each. In a July 2021 rating decision, a finding of clear and unmistakable error in the July 2020 rating decision was found. As a result, the Veteran was assigned a single evaluation, for each lower extremity, for his radiculopathy of the sciatic, deep peroneal, and common peroneal nerves; the Veteran was rated as 20 percent disabling for the entire rating period on appeal for his left lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves, as well as assigned a 10 percent disability rating for the rating period prior to October 29, 2019, and 20 percent disability rating thereafter, for his right lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves. As such, the issues on appeal have been recharacterized accordingly. The Board observes that the July 2021 rating decision also awarded service connection for right and left lower extremity radiculopathy of the femoral nerves; 20 percent disability evaluations were assigned for each lower extremity, effective April 6, 2021. However, the Veteran has not indicated that he disagrees with the disability evaluations or effective dates assigned and thus, these ratings will not be addressed by the Board. Additionally, the Veteran is service connected for bladder function issues related to his back condition with a 10 percent rating from December 2003, and a 40 percent rating from February 2009. He did not challenge this rating as part of his appeal for an increase in his low back disability. He filed a claim for an increase in his bladder function rating in May 2021, this claim was denied in a May 2021 rating decision which has not been appealed. Thus, the issue of an increased rating for bladder dysfunction related to his back condition is not before the Board. In March 2019 and July 2021, the Board remanded the Veteran's claims for increased disability evaluations for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, and radiculopathy of the right and left lower extremities (sciatic, deep peroneal, and common peroneal nerves) to the Agency of Original Jurisdiction (AOJ). A supplemental statement of the case was most recently issued in July 2021. The case has since been returned to the Board for appellate review. The Board finds that there was substantial compliance with its remand orders. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition, when assessing the severity of a musculoskeletal disability that is rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination. See DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59. When evaluating musculoskeletal disabilities, VA must consider whether a higher evaluation is warranted, where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups. See 38 C.F.R. § § 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are to be considered in conjunction with the diagnostic codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). Nevertheless, pain itself does not rise to the level of functional loss as contemplated by the VA regulations applicable to the musculoskeletal system. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Moreover, functional impairment must be supported by adequate pathology. Id.; Johnson v. Brown, 9 Vet. App. 7, 10 (1996) (both citing to 38 C.F.R. § 4.40). Notably, during the appeal period, changes were made to 38 C.F.R. § 4.71a, Diagnostic Codes 5242 and 5243. Effective February 7, 2021, VA amended its regulations governing the schedule of rating musculoskeletal disabilities. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76463 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5003, 5201, 5269). Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the Veteran will be applied. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). 10. Entitlement to an increased disability evaluation for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, rated as 20 percent disabling for the rating period prior to September 10, 2018. 11. Entitlement to an increased disability evaluation for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, rated as 40 percent disabling for the rating period since September 10, 2018. The Veteran is assigned a 20 percent disability rating for his degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, for the rating period prior to September 10, 2018 and a 40 percent disability evaluation thereafter pursuant to the provisions of 38 C.F.R. § 4.71a, Diagnostic Code 5243 5242. However, the Board observes that the Veteran has not been diagnosed with intervertebral disc disease (IVDS), and that, as will be explained below, the applicable diagnostic code is Diagnostic Code 5242. Lumbosacral and cervical spine disabilities are rated under the General Rating Formula for Rating Diseases and Injuries of the Spine ("general rating formula"). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) is rated under the General Rating Formula for Rating Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Formula for Rating IVDS Based on Incapacitating Episodes provides for ratings from 10 to 60 percent based on the frequency and duration of incapacitating episodes, defined in Note 1 as 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. The maximum 60 percent schedular rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the previous 12 months. The Board notes that effective February 7, 2021, the spine regulations were amended to state that Diagnostic Code 5243 governing intervertebral disc syndrome should only be assigned when there is disc herniation with compression and/or irritation of the adjacent nerve root, and that Diagnostic Code 5242 should apply to all other disc diagnoses. See 85 Fed. Reg. 76462 (Nov. 30, 2020) (effective 2/7/2021). As previously noted, the Veteran is rated for his degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, pursuant to Diagnostic Code 5243 5242. 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 evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2020). In the selection of code numbers assigned to disabilities, injuries will generally be represented by the number assigned to the residual condition on the basis of which the rating is determined.. As the Veteran has not been diagnosed with intervertebral disc syndrome, the more appropriate rating criteria is found under Diagnostic Code 5242, and there is no need to include Diagnostic Code 5243 by means of a hyphenated diagnostic code. Because Diagnostic Code 5242 is degenerative arthritis under the version in effect prior to February 7, 2021 and disc disease other than intervertebral disc syndrome under the version in effect since February 7, 2021, an alternative diagnostic code is not appropriate. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015). As such, the Board is amending the Diagnostic Code assigned for the Veteran's degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, to reflect that Diagnostic Code 5242 more accurately evaluates the Veteran's disability. See Butts v. Brown, 5 Vet. App. 532, 538 (1993); see also Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). As will be discussed below, this has no practical effect on the disability rating assigned. The Notes following the General Rating Formula for Diseases and Injuries of the Spine provide further guidance in rating diseases or injuries of the spine. Note 1 provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. As discussed above, ratings for bowel and bladder impairment are not on appeal. Note 2 provides that, for VA compensation purposes, the combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the cervical spine is 340 degrees and of the thoracolumbar spine is 240 degrees. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as 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. Note 6 provides that disability of the thoracolumbar and cervical spine segments are to be rated separately, except when there is unfavorable ankylosis of both segments, which will be rated as a single disability. According to the general rating formula, a 20 percent evaluation is to be 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 evaluation is to be assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is to be assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is to be assigned for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5235 for vertebral fracture or dislocation; 5236 for sacroiliac injury and weakness; 5237 for lumbosacral strain; Diagnostic Code 5238 for spinal stenosis; Diagnostic Code 5239 for spondylolisthesis or segmental instability; Diagnostic Code 5240 for ankylosing spondylitis; Diagnostic Code 5241 for spinal fusion; Diagnostic Code 5242 for degenerative arthritis of the spine; and Diagnostic Code 5243 for intervertebral disc syndrome. The Veteran contends that he is entitled to a higher rating because his current disability evaluations do not property account for the severity of his symptoms. Prior to September 10, 2018 After a review of all the evidence, the Board finds that, for the rating period prior to September 10, 2018, the Veteran's disability picture more nearly approximates the criteria for the currently assigned 20 percent disability evaluation for his service-connected degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine. At the June 2015 VA examination, the Veteran had forward flexion to 70 degrees, with extension to 15 degrees, lateral flexion to 15 degrees bilaterally, and lateral rotation to 15 degrees bilaterally. There was no muscle spasm, guarding, atrophy, or tenderness on palpation; there was also no evidence of ankylosis. The Veteran reported pain on motion and decreased range of motion that caused functional loss. Repetitive use testing did not show an additional loss of range of motion. The VA examiner found that the Veteran's functional loss due to flare-ups or repeated use included weakness, fatiguability, and pain on motion. The VA examiner noted that the Veteran does not have intervertebral disc syndrome or experience incapacitating episodes. The VA examiner also noted that the Veteran has an antalgic gait but does not use any devices to aid with ambulation. VA treatment records dated throughout the rating period on appeal reflect that the Veteran was treated for back pain. The lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating for this period. The evidence shows that the Veteran experiences forward flexion of the thoracolumbar spine which is better than 30 degrees which is required for a higher rating based on limitation of motion. 38 C.F.R. § 4.71a, Diagnostic Code 5242. Here, the lay evidence has been considered; however, that evidence when accepted as correct does not establish that he is functionally limited to 30 degrees or less forward flexion. Further, the evidence does not show favorable or unfavorable ankylosis of the entire thoracolumbar spine, or its equivalent due to functional loss. The Board has considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion and impairment. The Board observes that the June 2015 VA examiner indicated that the Veteran's functional loss was limited to decreased range of motion and pain on motion. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). Moreover, the available medical findings do not show that painful motion, limitation of motion on repetitive use testing, or pain or limitation of motion on active motion/passive motion/in weight-bearing/non weight-bearing resulted in functional loss warranting the assignment of any higher evaluation for the lumbar spine during the entire appeal period. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 20 percent disability rating. With respect to a higher evaluation based on incapacitating episodes under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, as noted earlier, the Board points out that the Veteran does not have intervertebral disc syndrome. Moreover, the Veteran's VA examination report reflects that the Veteran does not experience incapacitating episodes requiring physician prescribed best rest having a total duration of at least 4 weeks during a 12-month period as contemplated by a higher evaluation. Review of the Veteran's treatments record also do not reveal any periods of physician prescribed bed rest. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate disability evaluations for his right and left lower extremity neurological deficits of the sciatic, deep peroneal, and common peroneal nerves, effective September 10, 2018. However, the Board observes that the Veteran's right and left lower extremity neurological had onset in 2016. In this regard, the Board observes that VA treatment records dated March 30, 2016 reflect that the Veteran complained of numbness, tingling, and pain radiating to the lateral and posterior of the right leg and cramping of the left leg; upon examination, the Veteran had decreased sensation to touch of both legs. As such, the Board finds that the evidence of record reveals manifestations consistent with the currently assigned 20 percent evaluation for the entire rating period on appeal for degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine. Since September 10, 2018 After a review of all the evidence, the Board finds that the Veteran's disability picture does not warrant a disability evaluation in excess of the currently assigned 40 percent disability rating for the rating period since September 10, 2018. In this regard, the Board notes that the October 2018 VA examination report reflects that the Veteran had flexion to 30 degrees, extension to -10 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation to 5 degrees bilaterally; he had pain on motion and on weight-bearing. The VA examiner noted that there was pain on motion that caused functional loss and tenderness to palpation; repetitive use testing reflected additional loss of range of motion upon flexion and lateral flexion. The VA examiner noted that the Veteran flare-ups did not result in an increase in symptoms, but noted that the Veteran had functional loss due to decreased range of motion, pain on motion, and loss of endurance. There was no guarding or muscle spasm, and upon testing, muscle strength was full; there was no muscle atrophy or ankylosis. The VA examiner noted that the Veteran did not have intervertebral disc syndrome and that the Veteran used a cane and a brace to ambulate. At the October 2019 VA examination, the Veteran had flexion to 30 degrees, extension to 10 degrees, lateral flexion to 10 degrees bilaterally, and lateral rotation to 5 degrees bilaterally; he had pain on motion and on weight-bearing, but the Veteran did not experience pain on nonweight-bearing. The VA examiner noted that decreased range of motion and pain on motion that caused functional loss; the VA examiner noted that an estimated loss of 5 to 10 degrees could be expected during flare-ups. The Veteran had tenderness to palpation, without guarding, spasm, or ankylosis. The VA examiner noted that the Veteran could not push, pull, lift, or carry items, nor engage in prolonged walking or standing due to his thoracolumbar spine, and that the Veteran used a walker to ambulate. Upon testing, muscle strength was full; there was no muscle atrophy. The VA examiner indicated that the Veteran had intervertebral disc syndrome. At the most recent, April 2021 VA examination, the Veteran had flexion to 40-45 degrees, extension to -30 degrees, lateral flexion to 5 degrees bilaterally, and lateral rotation to 5 degrees bilaterally. Repetitive use testing reflected was not performed, and the Veteran denied experiencing flare-ups; estimated repetitive use range of motion was unchanged, except for flexion, which was estimated as decreased to 5 degrees. Functional loss caused limited walking, standing, and sitting due to pain. The Veteran had functional loss due to pain, fatigability, weakness, and lack of endurance. There was pain on weight-bearing and nonweight-bearing, as well as tenderness to palpation. There was no guarding, muscle spasm, or atrophy; the Veteran did not have ankylosis or intervertebral disc syndrome. In accordance with the above, the Veteran is entitled to a 40 percent disability evaluation, but no higher, for his service-connected degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine. The Board finds that the criteria for a disability rating of 50 percent have not been met or more nearly approximated. As noted, the evidence does not demonstrate the presence of ankylosis or its equivalent during a flare-up. The Board has considered the lay evidence of pain. However, that evidence does not establish that there is ankylosis as required for a higher rating. As previously noted, throughout the rating period on appeal, the Veteran had flexion to no worse than 5 degrees on repetitive use testing, and that other planes of motion did not show decreased range of motion. See Correia v. McDonald, 28 Vet. App. 158 (2016). See also Sharp v. Shulkin, 29 Vet. App. 26, 32 (2017). The evaluation of the same manifestation under different diagnoses are to be avoided. 38 C.F.R. § 4.14 (2016). Moreover, the Board observes that he April 2021 VA examiner noted that some of the Veteran's symptoms and limitations were attributable to the Veteran's service-connected residuals of a back injury, sacral plexus radiculopathy; to this point, the Board points out that the VA examiner attributed the Veteran's need for assistive devices for locomotion and his bladder incontinence to the Veteran's service-connected residuals of a back injury, sacral plexus radiculopathy. The Board points out that the Court has emphasized that a claimant may not be compensated twice for the same symptomatology as "such a result would overcompensate the claimant for the actual impairment of his earning capacity." See Brady v. Brown, 4 Vet. App. 203, 206 (1993). See also 38 C.F.R. § 4.14. The Board has also considered whether additional functional impairment due to factors such as pain, weakness and fatigability demonstrate additional limitation of motion or function to warrant a higher rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59 and DeLuca at 206-07. The evidence shows no atrophy or decrease in strength. To the extent that the Veteran claims that his pain upon motion is the equivalent of limited motion, the Board finds that the Veteran's subjective complaints of pain have been contemplated in the current rating assignment, as the current rating is based on the objectively demonstrated reduced motion, and there is no evidence that his pain is the equivalent of ankylosis. See Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). See also Chavis v. McDonough, Vet. App., No. 18-2928, 2021 WL 1432578, at *1 (Apr. 16, 2021) (the Court explained that the ankylosis requirement "can be met with evidence of the functional equivalent of ankylosis during a flare.").). To the extent that the Veteran reports limitations on his ability to bend and lift objects, the Board finds that the Veteran's flare-ups, especially in light of their frequency, do not show that the evidence more nearly approximates a disability picture with forward flexion of the spine limited to 30 degrees or less. 38 C.F.R. §§ 4.7, 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Therefore, the lay and medical evidence demonstrates that the Veteran's symptoms do not result in additional functional limitation to a degree that would support a rating in excess of a 40 percent disability rating at any point during the rating period on appeal. The Board acknowledges that the October 2019 VA examiner found that the Veteran has intervertebral disc syndrome. However, none of the other VA examiners, during the entire rating period on appeal, found that the Veteran had intervertebral disc syndrome and his treatment records do not reflect such a diagnosis. Thus, the Board finds this diagnosis to be inconsistent with the medical evidence of record. Even assuming this diagnosis is accurate, his degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine, has not been productive of incapacitating episodes at any time during the rating period on appeal. The Veteran has not reported, and the evidence does not demonstrate, that the Veteran experienced incapacitating episodes requiring bed rest; the Veteran's VA examination reports and treatment records do not demonstrate that his treating physicians noted any incapacitating episodes or prescribed bed rest. Thus, a higher rating based on IVDS would not be warranted in any case. With consideration of the provisions of Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Board notes that the Veteran is in receipt of separate disability evaluations for his right and left lower extremity neurological deficits. As discussed above, the Veteran is separately compensated for bladder dysfunction due to his back condition, and has not appealed the May 2021 denial of that rating, thus compensation for bladder dysfunction is not currently on appeal. Therefore, the Board finds that the evidence does not support a disability evaluation in excess of 40 percent for the Veteran's service-connected degenerative disc disease with spondylosis, post laminectomy, thoracolumbar spine. 12. Entitlement to an increased disability evaluation for right lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), rated as 10 percent disabling for the rating period prior to October 29, 2019. 13. Entitlement to an increased disability evaluation for right lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), rated as 20 percent disabling, for the rating period since October 29, 2019. 14. Entitlement to an increased disability evaluation for left lower extremity radiculopathy (sciatic, deep peroneal, and common peroneal nerves), rated as 20 percent disabling. The Veteran is currently assigned a 10 percent disability evaluation for his right lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves for the rating period prior to October 29. 2019, and a 20 percent disability evaluation thereafter. He is currently assigned a 20 percent disability rating for the entire rating period on appeal for his left lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves. The Veteran's right and left lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves is evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Codes 8521 8521. See 38 C.F.R. § 4.27. Under Diagnostic Code 8520, a 10 percent disability evaluation is warranted for mild incomplete paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis of the sciatic nerve and a 30 percent disability rating requires moderately severe incomplete paralysis. A 50 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent disability rating requires complete paralysis; the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or lost. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" with peripheral 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. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). After a review of all the evidence, the Board finds that the Veteran's right and left lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves most closely approximates the criteria for a 20 percent disability evaluation, for the entire rating period on appeal, from March 30, 2016. As previously discussed, the Veteran's radiculopathy first manifested in a March 30, 2016 VA examination, and as such, the Board finds that, in accordance with Note (1) of the General Rating Formula for Diseases and Injuries of the Spine, the Veteran is entitled to a separate rating for his neurological deficits of the sciatic nerve effective March 30, 2016. Moreover, the Board notes that the Veteran's radicular symptoms could not be fully evaluated in the absence of a VA examination in the years between the June 2015 and October 2018 VA examinations, and as such, the symptomatology shown in his treatment records is sufficient to show that his neurological deficits had onset in March 2016. Additionally, the Board notes that, at the October 2018, October 2019, and April 2021 VA back examinations, and the October 2019 VA peripheral nerves examination, the Veteran's right and left lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves manifestations was described as mild and moderate for the right lower extremity and moderate as to his left lower extremity. To this point, the Board observes that the Veteran had mild to moderate pain, paresthesias and/or dysesthesias, and numbness. Likewise, his reflexes were decreased, but intact; muscle strength was full and there was no evidence of atrophy. The Board acknowledges that the Veteran's left lower extremity radiculopathy was first shown to be sufficient to meet the rating criteria for a 20 percent disability rating at the October 2019 VA examination. However, the Board points out that the Veteran's symptomatology has been relatively consistent throughout the rating period on appeal. Moreover, the Veteran has asserted that his symptoms have been consistent and ongoing throughout the appeal period, which is confirmed by the Veteran's VA treatment records. Therefore, his symptomatology most closely approximates the criteria for the currently assigned 20 percent disability evaluation, per lower extremity, for moderate incomplete paralysis of the sciatic nerve as a result of his service-connected right and left lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves. The evidence of record does not show that he experiences moderately severe incomplete paralysis of the left sciatic nerve. In reaching this determination, the Board has considered the guidance provided by 38 C.F.R. §§ 4.120, 4.123, and 4.124. Accordingly, the Board finds that the evidence supports the assignment of a 20 percent rating, but no higher, per lower extremity for the entire rating period for the Veteran's service-connected right and left lower extremity radiculopathy of the sciatic, deep peroneal, and common peroneal nerves. The Board also finds that the evidence supports such ratings effective March 30, 2016. 38 C.F.R. §§ 4.3, 4.7. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Brokowsky, 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.