Citation Nr: 21006432 Decision Date: 02/04/21 Archive Date: 02/04/21 DOCKET NO. 17-24 047 DATE: February 4, 2021 ORDER 1. Entitlement to a rating in excess of 20 percent for a low back disability is denied. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is denied. 3. Entitlement to increases in the (10 percent prior to August 26, 2020, 20 percent from that date to October 22, 2020, and 10 percent from that date) staged ratings assigned for left lower extremity radiculopathy, is denied. FINDINGS OF FACT 1. Any no time under consideration is the Veteran’s low back disability shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or by ankylosis of the thoracolumbar spine. 2. Throughout, the Veteran’s right lower extremity radiculopathy is shown to have been manifested by no more than mild incomplete paralysis of the sciatic nerve; moderate incomplete paralysis of the right sciatic nerve is not shown. 3. Prior to August 26, 2020, the Veteran’s left lower extremity radiculopathy is shown to have been manifested by no more than mild incomplete paralysis of the sciatic nerve, and moderate incomplete paralysis of the nerve was not shown; from August 26, 2020 to October 22, 2020, the left lower extremity radiculopathy is shown to have been manifested by no more than moderate incomplete paralysis of the sciatic nerve, and moderately severe incomplete paralysis of the sciatic nerve is not shown; from October 22, 2020, the left lower extremity radiculopathy is shown to have been manifested by no more than mild incomplete paralysis of the sciatic nerve, and moderate incomplete paralysis of the sciatic nerve is not shown. CONCLUSIONS OF LAW 1. A rating for the Veteran’s low back disability in excess of 20 percent is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5242. 2. A rating for the Veteran’s right lower extremity radiculopathy in excess of 10 percent is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.21, 4.124a, Code 8520. 3. Ratings for left lower extremity radiculopathy in excess of 10 percent prior to August 26, 2020, in excess of 20 percent from August 26, 2020 to October 22, 2020, and in excess of 10 percent from October 22, 2020, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.21, 4.124a, Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty in the United States Army from February 1972 to May 1985 and from January 1986 to October 1992. These matters are before the Board of Veterans’ Appeals (Board) on appeal from October 2016, July 2017, and March 2018 rating decisions. An interim (March 2018) rating decision increased the rating for a low back disability to 20 percent, effective November 22, 2017. In February 2019, the Board denied entitlement to a rating in excess of 10 percent prior to November 21, 2017, and a rating in excess of 20 percent thereafter, for the Veteran’s service-connected low back disability. The Board also denied entitlement to ratings in excess of 10 percent for the Veteran’s right and left lower extremity radiculopathy. The Veteran appealed the February 2019 Board decision to the United States Court of Appeals for Veterans Claims (CAVC). In January 2020, the Court granted the parties’ Joint Motion for Partial Remand (JMPR), and vacated and remanded the February 2019 Board decision insofar as it denied increased ratings for the Veteran’s low back disability and right and left lower extremity radiculopathy. In June 2020, the case was remanded for further development. An interim (November 2020) rating decision increased the rating for the low back disability to 20 percent, effective August 4, 2016; and increased the rating for left lower extremity to 20 percent, effective August 26, 2020, and reduced the rating to 10 percent, effective October 22, 2020. 1. Entitlement to a rating in excess of 20 percent for a low back disability is denied. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40 , before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, (as is the case with the low back and right lower extremity radiculopathy claims) the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed the instant claim for increase on August 4, 2016. Consequently, the evaluation period begins August 4, 2015, one year prior. As noted above, a November 2020 rating decision increased the rating for the low back disability to 20 percent, effective August 4, 2016, the date of receipt of the claim for increase. The Veteran's lumbar spine disability is rated under 38 C.F.R. § 4.71a, Code 5242 (for lumbar spine degenerative arthritis, under Codes 5003 and 5010) and the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under Code 5010, which refers to arthritis, due to trauma (post-traumatic arthritis), substantiated by X-ray findings, consequent disability is rated as degenerative arthritis under Code 5003. Under Code 5003, degenerative arthritis is rated on the basis of limitation of motion under the appropriate Code for the specific joint involved. When, limitation of motion of the specific joint involved is noncompensable under the appropriate Code, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under 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 but X-ray involvement of two or more major joints or minor joint groups, a 10 percent rating is assigned. A 20 percent rating is assigned where the above is present as well as occasional incapacitating exacerbations. Code 5003 indicates these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. In addition, these ratings will not be utilized in rating conditions listed under Codes 5013 to 5024, inclusive. The intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59 The General Formula provides for: a 40 percent rating when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or with 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. 38 C.F.R. § 4.71a, Codes 5242-5235. Pertinent Notes following include: Note (1) any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Intervertebral disc syndrome (IVDS) may be rated under either the General Formula (discussed above) or alternatively under the Formula for IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Code 5243. (As incapacitating episodes of disc disease (bedrest prescribed by a physician) are not shown, further discussion of these criteria is not necessary). An October 2015 VA treatment record notes that the Veteran reported a long history of low back pain and that Tramadol seemed to be working fairly well in controlling his back pain. On examination, there was no joint swelling, and he ambulated without difficulty. On September 2016 VA lumbar spine examination, multilevel degenerative disc disease with disc herniation at L3-4 with coccygodynia was diagnosed. The Veteran reported that his back pain had worsened since his last VA examination, and described the pain as sharp and grabbing, worsened with bending or twisting. He related that he could not stand still for more than 10-15 minutes without severe pain, that had to change positions to relieve pressure and pain, and that he retired the prior September due to pain. He related that he had not had back surgery, was not receiving injections or physical therapy, did not use a brace or crutches for ambulation, and did not have loss of control of his bowel or bladder. He reported intermittent flare-ups that last 1-2 days, 1-2 times a month and that during the flare-ups, he had difficulty sitting and lying down. He took walks to relieve the pain and took Tramadol and over-the-counter (OTC) medications. His last severe flare-up (in July) lasted 4 days, and he remained in his pajamas. Regarding functional loss, the Veteran related that he gave up bow hunting, because bending, lifting and climbing became too difficult. Range of motion (ROM) testing showed forward flexion to 85 degrees, extension to 25 degrees, right lateral flexion and right lateral rotation to 30 degrees, and left lateral flexion and left lateral rotation to 25 degrees. The examiner noted that pain was noted on examination but did not result in functional loss. The Veteran was able to perform repetitive use testing, and no additional loss of function or ROM was noted. Regarding repetitive use over time and flare-up testing, the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss with repetitive use over time or functional loss during flare-ups. There was no guarding or muscle spasm. Muscle strength testing was normal, and there was no muscle atrophy. Reflex examination in the lower extremities was normal, except for the left knee which was slightly decreased. Sensory examination was normal, and the straight leg raising test was negative. The Veteran denied having radicular pain or signs or symptoms due to radiculopathy, and the spine was not ankylosed. IVDS of the thoracolumbar spine was not found on examination. Thoracolumbar spine imaging studies showed arthritis; a thoracic vertebral fracture with loss of 50 percent or more of height was not shown. Regarding functional impact, the examiner opined that the Veteran should use care with lifting, limit lifting to a maximum weight of 15-20 pounds, avoid lifting from the ground, limit bending and twisting, and engage in work where he can change position as needed. An October 2016 VA treatment record notes that the Veteran reported ongoing pain of 5/10 in his back and knees and that he was not currently taking OTC medication. He reported that he had liked to hunt but could no longer do it due to back and shoulder pain, and liked woodworking, but at times was limited in such due to pain. On examination he ambulated without difficulty; the assessment, in part, was chronic back pain. The Veteran was advised to continue to take Tramadol. A February 2017 Social Security Administration (SSA) function report notes that the Veteran could lift 20-25 pounds and stand for up to 10-15 minutes before he experienced pain. He reported that he could walk 1/2 to 3/4 mile before pain began, when he would rest for 10 minutes, then continue walking. He related that when he was doing woodwork, he stopped every 20-30 minutes due to back pain. He also reported that he was able to do laundry, clean house clean, mow, and some household repairs, and could engage in each of the activities once a week for about 1-2 hours a time. He took 3 Tramadol up to 3 times a day. In a May 2017 statement, the Veteran reported that he started to feel back pain at 30 to 40 degrees and experienced increasing pain that rendered him incapable of doing anything for a while if engaged in projects that required use of his back. He stated that his back ROM was very limited before use and even more so afterward. An October 2017 VA treatment record notes that the Veteran reported chronic low back pain, moderate to severe, that radiated down both legs, and was worse with lying down and walking. On examination, there was no joint swelling, and the Veteran ambulated without difficulty. On November 2017 VA back examination, the diagnosis was multilevel lumbar degenerative spine disease with right lower extremity radiculopathy. The Veteran reported ongoing daily low back pain rated anywhere from 6-8/10, that he experienced occasional pain down the lateral aspect of his right leg and over his left knee, and that he also had occasional tingling in both feet. He related that bending, prolonged standing in the same spot, and prolonged sitting increased his low back pain, and that cold weather caused the low back to stiffen. He reported experiencing flare-ups every 1-2 months for several days at a time (when he also experienced reduced ROM) just from “twisting wrong.” He took 3 Tramadol tablets twice a day for low back pain. ROM testing showed forward flexion to 60 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. Pain was noted with ROM in all directions that contributed to functional loss. There was evidence of pain with weight-bearing and localized tenderness or pain on palpation to the L3-5, bilateral lumbar paraspinous, and bilateral SI regions. He was able to perform repetitive use testing; it was noted that the examination was neither medically consistent nor inconsistent with his statements describing functional loss with repetitive use over time. Pain significantly limited functional ability with repeated use over time, but the examiner indicated that the Veteran did not know how much ROM was lost with the increase in low back pain. Regarding flare-ups, the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups, and he reported that he believed that he experienced at least a 50 percent reduction in his low back ROM during flare-ups. Guarding and/or muscle spasm were not shown, muscle strength testing was normal, and there was no muscle atrophy. Reflex examination was normal, and sensory examination was normal except for decreased sensation in the right lower leg/ankle and foot/toes. Straight leg raising was negative, bilaterally. Signs and symptoms related to radicular pain included right lower extremity mild intermittent pain and right and left lower extremity mild paresthesias. Although the examiner opined that there was sciatic nerve involvement in both lower extremities, it was further noted that the left lower extremity was not affected and there was only right lower extremity mild incomplete sciatic nerve involvement. IVDS was shown on examination; however, the Veteran had not experienced any acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the last 12 months. X-rays showed degenerative disease including annular fissures, but no disc herniation, central canal stenosis, cord compression or significant appearing neural foraminal narrowing. The examiner opined that he would not recommend any occupation that required prolonged standing, walking, or sitting, or required repetitive bending, lifting, or twisting of the back. A March 2018 rating decision increased the rating for the Veteran’s lumbar spine disability from 10 to 20 percent, effective November 22, 2017. In an August 2018 private disability report, the Veteran reported no right knee pain but that he had left knee pain of 7/10. He related that he drove to the examination and estimated that he could walk 600 feet, stand 10 minutes, sit 20 minutes, lift approximately 30 pounds, climb stairs slowly (if they had a railing), could not climb a ladder or run, and could squat with difficulty and tandem walk. On examination, the there was no discomfort in the Veteran’s low back, no tenderness to palpation, no spasm, and straight leg raising was negative; significant left knee pain was reported. ROM testing showed forward flexion to 75 degrees, extension to 25 degrees and right and left lateral flexion to 25 degrees. Motor strength testing was normal, although there was some slight give-way at the left leg due to knee pain. Sensation in the legs was intact, and reflexes were symmetrical. Reflex testing was “trace” in both knees and 0 in both ankles. Regarding chronic pain, the provider noted that the Veteran’s left knee pain had been worsening over the last few years and that he did not see any evidence of radiculopathy. It was also noted that the Veteran appeared to have moderate left knee degenerative joint disease. On October 2020 VA back examination, multilevel lumbar degenerative spine and disc disease and bilateral lower extremity radiculopathy were diagnosed. The Veteran reported moderate to severe constant achy pain when he stayed in one position for an extended period, that his pain had increased, and that he needed to be on a restricted pain medication regimen or would be bed bound for a few days. He also reported shooting pain with numbness and tingling in both lower extremities. He took Tramadol, Ibuprofen, Tylenol, and Gabapentin. He reported that he experienced flare-ups once a week if he moved or bent down suddenly, that manifested as a severe sharp shooting pain in his low back that may last 1-2 days. ROM testing showed forward flexion to 60 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. Pain that caused functional loss was noted with all motion on examination. There was evidence of localized tenderness or pain on palpation of the thoracolumbar spine. Regarding repetitive use, pain contributed to functional loss and ROM testing showed forward flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. The examiner noted that the examination was not conducted during a flare-up, but based on the Veteran’s reports of pain with flare-ups, decreased ROM due to flare-ups was estimated to be forward flexion to 40 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 15 degrees. Guarding and muscle spasm were not shown. Muscle strength testing was normal, there was no muscle atrophy, and deep tendon reflex examination was normal. Sensory examination in the lower leg/ankle and foot/toes, bilaterally, was decreased. Straight leg raising was negative. Signs or symptoms due to radiculopathy included mild intermittent pain, paresthesias, and numbness, bilaterally. There was mild incomplete paralysis of the sciatic nerve bilaterally. The spine was not ankylosed. IVDS was noted on examination; however, the Veteran had not experienced any acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the last 12 months. He did not use any assistive devices. X-rays showed lumbar spine arthritis; a thoracic vertebral fracture with loss of 50 percent or more of height was shown. A November 2020 rating decision granted a 20 percent rating for the Veteran’s low back disability from August 4, 2016, the date of his increased rating claim. A December 2020 VA treatment record notes that the Veteran denied new joint pain, swelling, numbness, tingling or weakness. He reported that over the last week, his average back pain was 2/10, and he had not fallen. On examination, there was no joint swelling, and he ambulated without difficulty. The provider noted that his chronic low back pain was stable on Gabapentin and Tramadol. The Veteran’s low back disability has been assigned a 20 percent rating throughout the period on appeal (as noted above). The evidence of record does not show that at any time since then symptoms of the disability met (or approximated) the criteria for the next higher, 40 percent, rating. To warrant a 40 percent rating under the General Schedule, the evidence would have to show that thoracolumbar spine forward flexion is limited to 30 degrees or less or that there is favorable ankylosis of the entire thoracolumbar spine. Such limitations are not shown. Instead, thoracolumbar forward flexion was to 85 degrees on September 2016 VA examination, to 60 degrees on November 2017 VA examination, to 75 degrees on private examination in August 2018, and to 40 degrees on October 2020 VA examination. Ankylosis of the thoracolumbar spine was not found on any examination. VA examination and treatment records do not note incapacitating episodes of disc disease (and specifically not any having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, as required for a higher rating. Additional factors that could provide a basis for an increased rating have also been considered. In a May 2017 statement, the Veteran reported that he started to feel back pain at 30 to 40 degrees, which is consistent with the criteria for the current 20 percent rating; he did not report range of motion studies, and those ranges could only be self-reported estimates, inadequate for rating. And although on November 2017 VA examination he reported that he believed that he experienced at least a 50 percent reduction in his low back ROM during flare-ups, such expression of belief (with no basis in actual measurement) is too unreliable to identify a distinct period when limitation during flare-up may have warranted a 40 percent rating; subsequent treatment records do not note reports of similar ROM reduction on flare-ups, and on October 2020 VA examination, the forward flexion decrease in ROM due to flare-ups was estimated to be to 40 degrees, which is consistent with a 20 percent rating. Therefore, at no time for consideration on appeal is it shown that the Veteran had functional loss beyond that compensated by the current ratings assigned. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205. As the criteria for the 20 percent rating encompass the greatest degree of severity of lumbar spine disability shown at any time during the period on appeal, the Board finds that a rating in excess of 20 percent for the low back disability is not warranted. The Board has also considered whether separate further compensable ratings may be warranted for additional neurological manifestations of the Veteran’s low back disability, but none have been shown. The ratings for right and left lower extremity radiculopathy are addressed below. 2., 3. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy and to increases in the (10 percent prior to August 26, 2020, 20 percent from that date to October 22, 2020, and 10 percent from that date) staged ratings assigned for left lower extremity radiculopathy is denied. When the appeal is from the initial rating assigned with a grant of service connection (as here, with the claim for increased ratings for left lower extremity radiculopathy, the severity of the disability during the entire period from the grant of service connection to the present is to be considered). “Staged” ratings may be assigned for distinct periods when different levels of impairment are shown. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran filed the instant claim for increase (for right lower extremity radiculopathy) on March 13, 2017. Consequently, the evaluation period begins March 13, 2016, one year prior. The Veteran’s right and left lower extremity radiculopathy has been rated under Code 8520 (for sciatic nerve paralysis), which sets forth the following criteria. A 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis, where the foot dangles and drops, no active movement is possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Code 8520. On September 2016 VA back examination, lower extremities reflex examination was normal except for in the left knee, where it was slightly decreased. Sensory examination was normal, and a straight-leg-raising test was negative. The Veteran reported having no radicular pain or signs or symptoms due to radiculopathy. On May 2017 VA peripheral nerves examination, right lower extremity lumbar radiculopathy was diagnosed. The Veteran reported that he had not received treatment or evaluation for radiculopathy or a nerve disorder in his legs in the last several years. His primary care provider prescribed pain medication primarily for his back. He reported right greater than left lateral knee pain which was increased with walking long distances or engaging in activities such as cutting the grass and that his legs periodically became weak. He took Tramadol for his back, which also helped some with leg pain. Symptoms included right and left lower extremity mild intermittent pain. Muscle strength testing was normal, and there was no muscle atrophy. Reflex examination found right and left knee and right and left ankle reflexes slightly reduced (1+). Sensory examination was normal. There were no lower extremity trophic changes in the lower extremities due to neuropathy, and the Veteran’s gait was normal. The examiner opined that the Veteran’s right and left sciatic nerves were normal, that his peripheral nerve disorder did not impact his ability to work, and that the reported right lower extremity radicular pain to his knee was not associated with any loss of reflexes, sensation or strength on the current examination. An October 2017 VA treatment record notes that the Veteran reported chronic low back pain, moderate to severe, that radiated down both legs, and was worsened with lying down and walking. On examination, no joint swelling was shown, and he ambulated without difficulty. On November 2017 VA back examination, multilevel lumbar degenerative spine disease with right lower extremity radiculopathy was diagnosed. The Veteran reported occasional pain down the lateral aspect of his right leg and pain over his left knee, and occasional tingling in both feet. Guarding and/or muscle spasm were not noted, muscle strength testing was normal, and there was no muscle atrophy. Reflex examination was normal, and sensory examination was normal except for decreased sensation in the right lower leg/ankle and foot/toes. Straight-leg-raising was negative, bilaterally. Signs and symptoms related to radicular pain included right lower extremity mild intermittent pain and right and left lower extremity mild paresthesias. The examiner opined that there was sciatic nerve involvement in both lower extremities, but also noted that the left lower extremity was not affected and that there was only right lower extremity mild incomplete sciatic nerve involvement. In a March 2018 addendum opinion, the provider opined that the Veteran’s left lower extremity sciatic nerve involvement to include paresthesia and dysesthesia, was related to his service-connected lumbar degenerative spine disability. In an August 2018 private disability report, the Veteran denied having right knee pain but reported that he did have left knee pain of 7/10. Motor strength testing was normal, although there was some slight give-way of the left leg due to left knee pain. Sensation of the legs was intact, and reflexes were symmetrical. Reflex testing was “trace” in the bilateral knees and 0 in the bilateral ankles. Regarding chronic pain, the provider noted that the Veteran’s left knee pain has been worsening over the last few years and that he did not see any evidence of radiculopathy. It was also noted that the Veteran appeared to have moderate left knee degenerative joint disease. A November 2019 VA treatment record notes that the Veteran denied new numbness, tingling or weakness in his extremities. On August 2020 VA peripheral nerves examination, bilateral lower extremity radiculopathy was diagnosed. The Veteran reported daily low back and bilateral leg pain that moved down the lateral aspect of both legs into both feet, with right extremity pain greater than on the left. He reported that prolonged standing and walking over 15-20 minutes increased low back and bilateral leg pain. He related that he occasionally had tingling in his feet and that he took Gabapentin and Tramadol. Symptoms included mild right lower extremity and moderate left lower extremity intermittent pain and mild left and right lower extremity paresthesias. Muscle strength testing was normal except for left knee strength of 4/5; there was no muscle atrophy. Deep tendon reflex examination showed slight (1+) decrease in the left knee and left and right ankles. Sensory examination was decreased in the right and left thigh/knee and lower leg/ankle. There were no trophic changes due to peripheral neuropathy; it was noted that the Veteran walked slowly, with a slight limp. The examiner opined that there was mild incomplete paralysis of the right sciatic nerve and moderate incomplete paralysis of the left sciatic nerve. Regarding functional impact, the examiner opined that prolonged standing and walking caused excessive pain, for which the Veteran was on chronic Tramadol that may affect judgment and reaction time. On October 22, 2020 VA back examination, the diagnoses were multilevel lumbar degenerative spine and disc disease and bilateral lower extremity radiculopathy. The Veteran also reported shooting pain with numbness and tingling in both lower extremities. Muscle strength testing was normal, there was no muscle atrophy, and deep tendon reflex examination was normal. Sensory examination in the lower leg/ankle and foot/toes was decreased, bilaterally. Straight-leg-raising was negative. Signs or symptoms of radiculopathy included mild intermittent pain, paresthesias, and numbness, bilaterally. There was mild incomplete paralysis of the sciatic nerve bilaterally. A November 2020 rating decision increased the rating for left lower extremity radiculopathy to 20 percent, effective August 26, 2020, and reduced the rating it back to 10 percent, effective October 22, 2020. At no time under consideration do VA examination reports and treatment records show symptoms of, or impairment due to, right lower extremity radiculopathy to have been of greater severity than that consistent with mild incomplete paralysis of the sciatic nerve, so as to warrant a rating in excess of 10 percent for right sciatic nerve disability. On September 2016 VA back examination, sensory examination was normal, and the Veteran denied having radicular pain or signs or symptoms due to radiculopathy. On May 2017 VA peripheral nerves examination, right lower extremity mild intermittent pain was reported, muscle strength testing was normal, and there was no muscle atrophy (suggestive of deconditioning or disuse). Reflex examination found right knee and right ankle reflexes only slightly reduced, and sensory examination was normal. There were no trophic changes in the lower extremities due to neuropathy, and the Veteran’s gait was normal. The examiner opined that the Veteran’s right sciatic nerve was normal, that the peripheral nerve disorder did not impact ability to work, and that the reported right lower extremity radicular pain to his knee was not associated with any loss of reflexes, sensation or strength on the current examination. On November 2017 VA back examination, the Veteran reported occasional pain down the lateral aspect of his right leg and also occasional tingling in both feet. Sensory examination was normal except for decreased sensation in the right lower leg/ankle and foot/toes. The examiner opined that there was right lower extremity mild incomplete sciatic nerve involvement. An August 2018 private report notes reflex testing was “trace” in both knees and 0 in the bilateral ankles; however, the provider opined that he did not see any evidence of radiculopathy. On August 2020 peripheral nerves examination, muscle strength testing was normal on the right, and there was no muscle atrophy. Deep tendon reflex examination showed slight decrease in the right ankle. Sensory examination was decreased in the right thigh/knee and lower leg/ankle. There were no trophic changes due to peripheral neuropathy; the examiner opined that there was mild incomplete paralysis of the right sciatic nerve. On October 2020 VA back examination, muscle strength testing was normal, there was no muscle atrophy was not shown, and deep tendon reflex examination was normal. Sensory examination was decreased in the lower leg/ankle and foot/toes, bilaterally. There was mild incomplete paralysis of the sciatic nerve bilaterally. VA treatment records note that he reported right leg and foot pain, tingling, and/or numbness. However, on examinations, the severity of symptoms reported was consistently mild. Decreased sensation in the right lower extremity was also noted on examination; however, examiners consistently opined that the right lower extremity sciatic nerve involvement was mild. Muscle strength testing was consistently normal; muscle atrophy is not shown; the Veteran has been maintained on Gabapentin, and treatment records tend to show that he sought medical treatment for radicular pain only on an “as needed” basis. The descriptions of functioning and examination findings do not at any time show or suggest symptoms or impairment characteristic of moderate incomplete paralysis of the right sciatic nerve. Accordingly, a rating in excess of 10 percent for right lower extremity radiculopathy is not warranted. Prior to August 26, 2020, the VA examination reports and the treatment records do not show symptoms of, or impairment due to, left lower extremity radiculopathy to have been of greater severity than that consistent with mild incomplete paralysis of the sciatic nerve, so as to warrant a rating in excess of 10 percent for sciatic nerve involvement in the left lower extremity. On May 2017 VA peripheral nerves examination, muscle strength testing was normal, and there was no muscle atrophy. Although reflex examination found left knee and left ankle reflexes slightly reduced, left lower extremity radiculopathy was not diagnosed. On November 2017 VA back examination, muscle strength testing was normal, and there was no muscle atrophy. Although the examiner opined that the left lower extremity was not affected, left lower extremity mild paresthesia was reported, and in a March 2018 addendum opinion, the provider opined that the Veteran’s left lower extremity sciatic nerve involvement to include paresthesia and dysesthesia, was related to his service-connected lumbar degenerative spine disability. In an August 2018 private disability report, the provider noted that the Veteran’s left knee pain had been worsening over the last few years; however, he did not see evidence of radiculopathy. VA treatment records note that he reported periodic left lower extremity pain and paresthesias. However, on examinations, the severity of the symptoms reported was consistently mild. Decreased sensation in the left lower extremity was also noted on examination; however, the examiner consistently opined on (objective) examination, that the left lower extremity sciatic nerve involvement was consistently mild. Muscle strength testing was consistently normal; muscle atrophy was never found; the Veteran was maintained on Gabapentin; and the treatment records suggest that he sought medical treatment for radicular pain only on an “as needed” basis. The descriptions of functioning and examination findings do not show or suggest symptoms or impairment characteristic of moderate incomplete paralysis of the left sciatic nerve. Accordingly, prior to August 20, 2020 a rating in excess of 10 percent for left lower extremity radiculopathy was not warranted. From August 26, 2020 to October 22, 2020 (which was found determined to be a distinct period during which an increased level of severity warranting a 20 percent rating was shown), it is not shown that the disability picture presented by the left lower extremity radiculopathy was of greater severity than that consistent with moderate incomplete paralysis of the sciatic nerve, so as to warrant a rating higher than 20 percent for left sciatic nerve disability. On the August 2020 VA peripheral nerves examination, the Veteran reported daily low back and bilateral leg pain that moved down the lateral aspect of both legs into both feet, with the right leg pain greater than on the left. Muscle strength testing was normal except for reduced left knee strength of 4/5, but there was no muscle atrophy. Deep tendon reflex examination showed only slight decrease in the left knee and left ankle. The examiner opined that there was moderate incomplete paralysis of the left sciatic nerve. VA clinical records for this (very short) period on appeal essentially consist of the August 2020 VA examination. The descriptions of functioning and examination findings do not show or suggest that from August 20, 2020 to October 22, 2020 there were symptoms or impairment characteristic of moderately severe incomplete paralysis of the left sciatic nerve, so as to warrant a higher rating. Accordingly, a rating in excess of 20 percent for left lower extremity radiculopathy from August 20, 2020 to October 22, 2020 is not warranted. Regarding the 10 percent rating for left lower extremity assigned from October 22, 2020, some discussion of due process is needed because the November 2020 rating decision both increased the rating for left lower extremity to 20 percent (from August 26, 2020 to October 22, 2020) and reduced the rating to 10 percent (from October 22, 2020. The rating decision also increased the rating for a low back disability to 20 percent, effective August 4, 2016. This resulted in an increase in the combined rating for the Veteran’s service disabilities to 50 percent effective August 26, 2020, and to 40 percent combined rating from October 22, 2020 (the effective date of the reduction at issue). Generally speaking, if a rating decision reduces the rating for a disability, but at the same time awards service connection or an increased rating for another disability which effectively cancels out the effect of the reduction on the Veteran’s combined disability rating, the notice mandated for reduction of a rating (pursuant to 38 C.F.R. § 3.105(e)) is not required. VAOPGCPREC 71-91 (Nov. 7, 1991). Here, while there was a reduction in the rating for left lower extremity disability, due to the other service connection grant, that reduction did not result in a decrease in compensation (just a lower increase from October 22, 2020). Thus, the question becomes whether the retroactive award of a combined 50 percent rating and 40 percent from the effective date of the reduction in the rating for left lower extremity radiculopathy, triggered the duty to comply with 38 C.F.R. § 3.105 (e). In interpreting 38 C.F.R. § 3.105(e), both the CAVC and VA General Counsel have recognized that the notice and 60-day grace period required under 38 C.F.R. § 3.105(e) are largely economically motivated, as opposed to being rooted in legal due process. O'Connell v. Nicholson, 21 Vet. App. 89, 93 (2007) (citing the legislative history of 38 C.F.R. § 3.105 (e)); VAOPGCPREC 71-91 (Nov. 7, 1991). Based on the reasoning that 38 C.F.R. § 3.105(e) is largely designed to notify veterans in advance of a pending reduction in their monthly compensation so that they may either prepare accordingly or contest the reduction, CAVC has determined that the due process required in 38 C.F.R. § 3.105(e) does not apply in some situations where a Veteran was retroactively and temporarily assigned a higher combined rating, which was reduced to the rating assigned prior to the increase. Specifically, CAVC has found that the requirements of 38 C.F.R. § 3.105(e) do not apply to staged ratings where the Veteran is granted an increased rating and then simultaneously staged down or to the award of temporary total ratings under 38 C.F.R. § 4.29 or 38 C.F.R. § 4.30. O'Connell, 21 Vet. App. at 93-94. Thus, to this point 38 C.F.R. § 3.105(e) has not been considered to apply to retroactive awards of combined or individual 100 percent ratings, as long as the Veteran is returned to at least the level of compensation he was at prior to the temporary increase. O'Connell, 21 Vet. App. at 93. The Board finds that compliance with the notice provisions of 38 C.F.R. § 3.105(e) was not required in this matter. The Veteran was assigned a combined 40 percent prior to the award, was retrospectively increased to 50 percent, combined, effective August 26, 2020, and then returned to his 40 percent rating effective October 22, 2020, the date of the reduction. Hence, there was no reduction in monthly compensation he was receiving, and he is exactly where he was compensation-wise when he started the appellate process. Id. Further, the award of the 50 percent combined rating was retrospective in nature and therefore this is not a situation where the Veteran had developed reliance on that level of compensation and would have needed to prepare for a different level of compensation or contest the loss of that level of compensation. Regarding the actual merits of the reduction, general regulatory requirements for disability ratings must be met determining regarding whether improvement is shown. See Brown v. Brown, 5 Vet. App. 413 (1993) (wherein CAVC provided guidance for adjudications involving rating reductions. Noteworthy in that guidance is the admonition that when a change in evaluation is made, the rating agency should assure itself that there has been an actual change in the condition and that to warrant a reduction it must be determined “that an actual improvement in disability occurred” (in such a manner that the Veteran’s ability to function under the ordinary conditions of life and work has been enhanced). See also 38 C.F.R. §§ 4.2, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Since the 20 percent rating for left lower extremity radiculopathy was in effect for a very brief period (much less than five years, August 26, 2020 to October 22, 2020), the provisions of 38 C.F.R. § 3.344 do not apply. Accordingly, the analysis proceeds to whether the reduction in the rating for the left lower extremity radiculopathy was warranted by the factual record. The Board finds that it was, and that therefore the reduction was proper. As noted above, on October 22, 2020 VA back examination, although the Veteran reported shooting pain with numbness and tingling in his left lower extremity, and sensory examination showed decreased sensation in the left lower leg/ankle and foot/toes, muscle strength testing was normal, there was no muscle atrophy, and deep tendon reflex examination was normal. Signs or symptoms due to radiculopathy included [only] mild intermittent pain, paresthesias, and numbness. The examiner opined that there was [only] mild incomplete paralysis of the sciatic nerve. Therefore, the descriptions of functioning and examination findings do not show or suggest that there were symptoms or impairment characteristic of more than mild (i.e., moderate) incomplete paralysis of the left sciatic nerve from October 22, 2020. Accordingly, a rating in excess of 10 percent for left lower extremity radiculopathy from October 22, 2020 is not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.