Citation Nr: 21006991 Decision Date: 02/08/21 Archive Date: 02/08/21 DOCKET NO. 12-16 908 DATE: February 8, 2021 ORDER Entitlement to a compensable initial rating prior to July 23, 2012 and in excess of 10 percent thereafter for post-operative residuals of a herniated lumbar disc and lumbar spondylosis with intervertebral disc syndrome (IVDS) is denied. Entitlement to an initial rating in excess of 10 percent prior to July 23, 2012 and greater than 20 percent effective thereafter for radiculopathy of the right lower extremity (RLE) is denied. FINDINGS OF FACT 1. The Veteran’s post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS did not result in incapacitating episodes that led to medically required bed rest in the past 12 months. The Veteran’s status post-surgery also did not lead to a forward flexion of the thoracolumbar spine of less than 30 degrees, nor did it lead to favorable ankylosis of the entire thoracolumbar spine. Prior to July 23, 2012, the Veteran’s status post-surgery did not rise to a high enough degree to make the disability compensable when taking the preservice injury into account. 2. The Veteran’s RLE radiculopathy has been manifested by moderate, incomplete paralysis since July 23, 2012. Prior to July 23, 2012, the Veteran’s RLE radiculopathy could only be classified as mild. CONCLUSIONS OF LAW 1. The criteria for entitlement to a compensable initial rating prior to July 23, 2012 and in excess of 10 percent thereafter for post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.22, 4.3, 4.7, 4.71a, Diagnostic Codes 5235-5243. 2. The criteria for a rating of 10 percent prior to July 23, 2012 and 20 percent effective thereafter for RLE radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Marine Corps from March 1981 to January 2002 when he received an honorable discharge. This matter comes before the Board of Veterans’ Appeals (the Board) from an initial June 2010 rating decision. The Board previously remanded these matters in October 2019. The Board also remanded these matters in December 2017, May 2017, September 2016, and March 2014. The Board is satisfied that there was substantial compliance with its remand orders and is prepared to adjudicate the issues at hand. See Dyment v. West, 13 Vet. App. 141, 146-147 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). In February 2013, the Veteran testified at a hearing before a Veterans Law Judge. A transcript of that hearing has been associated with the claims file. Because the Veterans Law Judge is no longer with the Board, the Veteran was offered another hearing before a current Veterans Law Judge. He accepted the offer of another hearing and it was conducted in December 2016. A transcript of this hearing has also been associated with the claims file. During the course of this appeal, the Veteran had his noncompensable rating for post-operative residuals of his herniated lumbar disc and lumbar spondylosis with IVDS increased to a 10 percent rating in September 2012. The September 2012 rating decision also granted secondary service connection for RLE radiculopathy, rated at 20 percent. Both disabilities had an effective date of July 23, 2012. The Veteran did not subsequently express disagreement with the decision. However, the now service-connected RLE radiculopathy is a manifestation of the Veteran's service-connected post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS. When the Veteran disagreed with the amount of compensation awarded for his low back condition, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for disability due to his service-connected low back condition. See AB v. Brown, 6 Vet. App. 35 (1993). Moreover, regulation provides that VA is to evaluate any neurologic abnormalities associated with a spine disability under an appropriate diagnostic code. 38 C.F.R. § 4.71a, Note (1). The Board was therefore required to consider whether ratings were warranted for neurologic abnormalities associated with the low back condition. For these reasons, the Board concludes that when the Veteran appealed the rating assigned for his post-operative residuals, his appeal encompassed ratings for all manifestations of the condition. Thus, the Board will consider the entire increased rating period to determine if entitlement to a compensable rating occurred at any time during the rating period prior to the July 2012 effective date. 38 C.F.R. § 4.71, General Rating Formula, Note 1. Increased Rating 1. Entitlement to a compensable initial rating prior to July 23, 2012 and in excess of 10 percent thereafter for post-operative residuals of a herniated lumbar disc The Veteran asserts that he should receive a compensable rating prior to July 23, 2012 and a higher rating after he was granted a 10 percent rating with an effective date of July 23, 2012, due to the fact he believes his disability has worsened. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4. The Board attempts to determine the extent to which the Veteran's service-connected disability adversely affects their ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.10. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. 38 C.F.R. §§ 4.1, 4.2; see also Francisco v. Brown, 7 Vet. App. 55 (1994). In Hart v. Mansfield, 21 Vet. App. 505 (2007), however, the Court held that "staged ratings" are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. When evaluating disabilities of the musculoskeletal system, 38 C.F.R. § 4.40 allows for consideration of functional loss due to pain and weakness causing additional disability beyond that reflected on range of motion measurements. See DeLuca v. Brown, 8 Vet. App. 202 (1995). This includes the analysis of additional functional impairment above and beyond the limitation of motion objectively demonstrated involving such factors as painful motion, weakness, incoordination, and fatigability, particularly during times when these symptoms "flare up," such as during prolonged use, and assuming these factors are not already contemplated in the governing rating criteria. Id. See also 38 C.F.R. §§ 4.40, 4.45, 4.59. In this regard, manifestation of pain alone does not equate with functional loss under 38 C.F.R. §§ 4.40 and 4.45 but may cause functional loss if affecting some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The rating criteria for spine disabilities are expressed under DCs 5235 through 5242. Regardless of which criteria between DC 5235 through 5242 that the RO selects, disabilities characterized under those diagnostic codes are rated pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Formula). However, when the Veteran’s claim involves IVDS, as it does here, the disability is evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes under DC 5243, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. Under the IVDS Formula, a rating of 10 percent is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months. A rating of 20 percent is assigned for incapacitating episodes having a total duration of at least 2 weeks but less than four weeks during the past 12 months. A rating of 40 percent is assigned for incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. A rating of 60 percent is assigned for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. Here, the Veteran experienced no incapacitating episodes in the past 12 months, or in the 12 months before his increased rating in 2012. Therefore, his post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS are evaluated under the General Rating Formula for Diseases and Injuries of the Spine for the period prior to July 23, 2012 and thereafter. Under the General Rating Formula, a 10 percent evaluation is for application with forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. 38 C.F.R. § 4.71a. A 20 percent evaluation is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, the combined range of motion of the cervical spine not greater than 170 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. Id. A 40 percent evaluation is provided for unfavorable ankylosis of the entire cervical spine; or forward flexion of the thoracolumbar spine 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is provided for unfavorable ankylosis of the entire thoracolumbar spine. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine, including the lumbar spine, is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. 38 C.F.R. § 4.71a, DCs 5235-5243, Note (2). In the June 2010 rating decision, the regional office made the determination that the Veteran’s post-operative residuals were service connected and met the criteria for a 10 percent rating under the General Rating Formula for Diseases and Injuries of the Spine. However, the Veteran’s STRs show that he entered with a preservice lumbar back disability. While the Veteran was found to be service-connected for post-operative residuals due to the back surgery performed by Dr. N in 2001, he was determined to have a noncompensable rating. The preservice percentage is always deducted before assigning a service-connected evaluation that is less than 100 percent. Here, the Veteran is service connected due to the fact that his back disability that existed prior to service permanently worsened as a result of his service. The current provisions of 38 C.F.R. § 3.310, including as in effect at the time of the prior rating decision that granted service connection for the low back disability as secondary disabilities, provide specific instructions regarding recognition and rating of “Aggravation of nonservice-connected disabilities.” The regulation instructs: “The rating activity will determine the baseline and current levels of severity under the Schedule for Rating Disabilities (38 CFR part 4 ) and determine the extent of aggravation by deducting the baseline level of severity, as well as any increase in severity due to the natural progress of the disease, from the current level.” The language of the regulation indicates that “... the baseline level of severity of the nonservice-connected disease or injury is established by medical evidence created before the onset of aggravation or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity of the nonservice-connected disease or injury.” See 38 C.F.R. § 3.310 (2016), See e.g. Davison v. Tran, 2021 U.S. App. Vet. Claims LEXIS 64, *7 (in other words, aggravation is just causation of an increase in disability—i.e., a discrete portion of disability—rather than of the whole disability itself.) To determine the appropriate compensation rating assignments in this case, the Board must first determine a pre aggravation baseline rating. The baseline rating will be used to offset the degree of severity shown in the post-aggravation periods on appeal, to distinguish the non-service-connected pre-aggravation impairment from the aggravated severity of impairment deemed to be service-connected. In the present case, the June 2010 rating decision determined that the preservice baseline was 10 percent. This was based upon the reported injury to L5 prior to service from a standing broad jump, reported backaches and pain. There was no range of motion testing at induction; however records in 1988 confirmed disc disease and an MRI in 2001 revealed degenerative changes. Accordingly, the RO determined the preexisting baseline to be 10 percent based upon evidence of residual pain. The Board has considered this matter on de novo review as an essential part of the rating assignment issue on appeal. The determination of the baseline is part of the matter before the Board of assigning the correct initial rating. See e.g. Davison v. Tran, 2021 U.S. App. Vet. Claims LEXIS 64, *7. The Board agrees with the AOJ’s conclusion that the preexisting disability was 10 percent. The service treatment records clearly reflect the Veteran reported a history of recurrent back pain on the January 1981 report of medical history and explained that he had injured his 5th lumbar bone in a standing broad jump in September 1978 which was corrected after exercises. The physician’s comment noted “low backache, injured 5th lumbar vertebra residual pain?” The January 1981 report of medical examination clearly noted an injured 5th lumbar spine 1978 residual discomfort ad an ortho consultation was ordered. The January 1981 orthopedic consultation for the lumbosacral spine described a history of an injury two years prior while broad jumping and alleged that it was the L5 vertebrae. He was treated with exercises and saw a doctor 3 times. He reported no symptoms at that consultation. Examination at that time reflected no deformity, no muscle spasm, no tenderness and straight leg raise to 85 bilaterally. There was no sensory damage and x-ray in 1981 reflected congenital abnormality, negative fracture. The conclusion was essentially negative exam. A December 1981 x-ray was taken to rule out scoliosis and found no marked scoliosis, spina bifida. Thus, the Board finds that there were some x-ray findings, a clear history of a prior injury and some complaints of residual pain. As such, the Board finds that the preexisting injury was 10 percent disabling. The Veteran’s April 2010 VA examination reflects the Veteran reported the onset as being in 1985. He can walk without limitation and has not experienced falls from the spine condition. He described stiffness, spasms, and decreased motion but denied fatigue, paresthesia and numbness. He reported weakness of the leg but no bowel issues related to the spine. The pain was constant and radiated to the right leg. Pain was exacerbated by physical activity and sleeping positions and alleviated by medication. Flare-ups resulted in limited movement, including limited grooming tasks and daily tasks. He denied any incapacitation in the prior year. Clinical examination showed that his forward flexion of the thoracolumbar spine was 86 degrees, extension to 26 degrees, right and left lateral flexion to 30 degrees and right and left rotation to 30 degrees with pain beginning at the endpoints. Repetitive testing was conducted and did not result in any additional limitation of motion. The spine had normal head position with symmetry in appearance and normal curves of the spine. The flexion findings alone are not enough to be rated at 10 percent. Even factoring the impact of pain and flare-ups, the range of motion still exceeded 85 degrees. However, the VA examination determined that the thoracolumbar spine range of motion (ROM) was 232 degrees which falls between the 120 degrees and 235 degrees and furthermore the Veteran continued to have x-ray evidence of a condition with limited motion due to pain required for a Veteran to receive a 10 percent rating evaluation. Therefore, the Veteran was assigned a noncompensable rating based on his limitation of motion, with adjustment for baseline. The Veteran was rated properly at 10 percent for his limitation of motion shown in the VA examination, however, as stated above, the preservice injury rating must be subtracted from the service connected rating. Thus, the 10 percent compensable rating established by the Veteran was found to be noncompensable after the preservice injury rating of 10 percent was subtracted. The evidence does not reflect range of motion that more nearly approximates limitation of flexion to 60 degrees to warrant a higher 20 percent rating which would then result in a compensable evaluation after subtraction of the baseline. As outlined above, even factoring in pain and flare-ups the Veteran still had motion of 86 degrees. The examiner also did not note any spasms or guarding resulting in abnormal spinal contour. The Veteran’s claim for a compensable rating prior to July 23, 2012 for post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS is denied. As noted above, the effective date for the Veteran’s increased rating for post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS was July 23, 2012. The Veteran makes the claim that he is due more than the 20 percent rating minus 10 percent for his preservice injury that he was evaluated for and granted in the September 2012 rating decision. The July 2012 VA examination reflected that the Veteran described flare-ups treated with medication. During flare-ups the back tightened up and pulled to the left side. His spine was tilted when he was standing upright. The Veteran reported it took a while to get up and out of bed and driving was an ordeal because of pain and numbing and pain down the right leg. Examination showed the Veteran’s forward flexion of the thoracolumbar spine was measured at 55 degrees. Extension was to 25 degrees, right and left lateral flexion and bilateral rotation were all found to 20 degrees. Repetitive use testing was performed and reflected flexion to 55, extension to 25, and lateral flexion and rotation to 20 bilaterally. The Veteran was afforded another examination in July 2014. At that time he described constant achy, low back pain with sharp pain and numbness and tingling radiation to the right leg. He also reported mild numbness of the left leg. Flare-ups were described as back tightness and pulling toward the left side and caused by prolonged standing, walking and bending. Range of motion testing reflected flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees and bilateral rotation to 15 degrees with pain at the endpoint for all tested ranges. Repetitive use testing did not result in any reduction in motion. There was muscle spasm but it did not result in abnormal gait or spinal contour. There was no ankylosis and there was no evidence of incapacitating episodes during the prior year. During a June 2017 VA examination the Veteran described constant tingling and numbness to the right leg all the way to the foot and dull pain from the lower back to right leg. Sudden movements caused pain and prolonged standing caused pain. He treated with medication, a compression wrap and a wedge. Prolonged standing, sit ups, exercise, sitting and driving aggravates pain. Range of motion testing reflected flexion from 0 to 70 degrees, extension to 10 degrees, left and right lateral flexion to 30 degrees and bilateral rotation to 20 degrees. There was no change after repetitive testing for flexion, extension, or rotation; however left lateral flexion was limited to 20 degrees after repetition. There was no guarding or spasms resulting in abnormal spinal curvature. There was no ankylosis and there was no evidence of incapacitating episodes during the prior year. The Veteran was afforded another examination in June 2018. During this examination he described flare-ups after prolonged sitting or standing. He was unable to do physical training or walk prolonged periods without pain, muscles tightening and was unable to do any running or strenuous activity. The June 2018 VA examination shows the Veteran had a forward flexion measurement of the thoracolumbar spine at 65 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees and bilateral rotation to 20 degrees. The examiner also measured the Veteran’s limitation of motion at 145 degrees. Repetitive use testing resulted in flexion being limited to 55 degrees but other ranges of motion were unchanged after repetition. There was no ankylosis. The Board received medical treatment records from three private doctors that the Veteran claims to have been treated by. The records from Dr. BB, Dr. MM, and Dr. WB were thoroughly reviewed by the Board. While the records show that the Veteran was diagnosed and treated for his post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS, there is no evidence in the private treatment records that would necessitate an increased rating to the level of 40 percent. Critically, there is no range of motion testing in any of the private medical records, no mention of the forward flexion being less than 30 degrees, and no statement from any of the three doctors opining that the Veteran should receive an increased rating for his back disability. The Veteran also testified at two Board hearings. During the 2013 hearing he reported that he treated with a doctor for his back and took medication. He explained he could not stand for prolonged periods due to pain radiating down the right leg and muscles tightening up. He stated that he was in almost a bent position when standing. He testified that his pain continued to get worse and that his motion was more limited than in the past. During the 2016 hearing the Veteran’s spouse reported that he was always in some sort of pain and some days he could not even stand up straight. She described a limp when he walked. He denied any current treatment but described past treatment including having injections to the lower back, medication and a TENS unit. He described that his job as a teacher aggravated his back and he’d have to lean against walls or sit as he could not stand for prolonged periods. He also had trouble with prolonged sitting and walking. A 20 percent rating is warranted if the forward flexion of the thoracolumbar spine is no greater than 60 degrees but more than 30 degrees. The Veteran’s forward flexion of 55 degrees, placed him within the criteria to receive a 20 percent rating. Here, the Veteran was properly increased to a 20 percent rating minus 10 percent for his preservice injury, which resulted in a 10 percent rating. However, there is no evidence in the record to show that the Veteran should receive a rating of 40 percent for his thoracolumbar spine. As stated above, a 40 percent rating requires forward flexion of the thoracolumbar spine to be 30 degrees or less or there must be favorable ankylosis of the entire thoracolumbar spine. Even factoring in the impact of pain and flare-ups, the record does not reflect flexion more nearly approximating flexion of less than 30 degrees. As noted above, examiners in 2012, 2014, 2017, 2018 conducted repetitive testing and did not reflect that flexion was limited to less than 30 degrees. The examiners also consistently indicated there was no ankylosis. Therefore, since there is no evidence in the most recent VA examination or in the Veteran’s private medical records that the Veteran meets the requisite criteria for a 40 percent rating, the Veteran will not receive such an increase in his rating for post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS after the July 23, 2012 effective date. The criteria for a rating in excess of 40 percent for the post-operative residuals have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5235-5243. 2. Entitlement to an initial rating in excess of 10 percent prior to July 23, 2012 and greater than 20 percent effective thereafter for radiculopathy of the right lower extremity The Veteran also asserts that he should receive an initial rating higher than 10 percent prior to July 23, 2012, and a rating greater than 20 percent thereafter for his RLE radiculopathy. Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. DC 8620 provides ratings for neuritis of the sciatic nerve. Incomplete paralysis of the sciatic nerve is rated under DC 8520. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. A 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent rating requires complete paralysis. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. 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). In the August 2014 rating decision, the regional office granted an effective date of January 20, 2010 to the Veteran for his right leg radiculopathy, at 10 percent, with an increased rating to 20 percent on July 23, 2012. The April 2010 VA examination reported a positive straight leg test on the right side for the Veteran and found objective pain radiation from the back down the right leg. Therefore, the 10 percent rating with an effective date of January 20, 2010 was proper. In the July 2012 VA examination, the Veteran recorded a positive straight leg raising test result in his right leg. According to the VA examination, a positive test suggests radiculopathy, often due to disc herniation. The Veteran also reported constant, moderate pain in his right lower extremity, as well as mild paresthesia and numbness in the right lower extremity. The examiner found that the sciatic nerve root was involved on the right side and diagnosed the Veteran with moderate right leg radiculopathy. Due to this diagnosis, the regional office granted the Veteran secondary service connection for RLE radiculopathy due to post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS in the September 2012 rating decision. The Veteran received a 20 percent rating based on the moderate incomplete paralysis of the Veteran, with an effective date of July 23, 2012. Therefore, the Veteran was found to be properly rated prior to July 23, 2012. The Veteran is also not entitled to an increased rating after July 23, 2012. As noted above, a 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The Board notes that words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence. See 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. See 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. In applying the schedular criteria for rating peripheral nerve disabilities, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. See 38 C.F.R. § 4.124a . When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In the July 2014 VA exam, the Veteran did not show any increased symptoms of radiculopathy. The examiner recorded the same symptoms that the VA examiner in July 2012 found. The July 2014 examiner classified the RLE radiculopathy as moderate. In the June 2017 VA exam the examiner once again determined the Veteran’s RLE radiculopathy to be moderate. The Veteran tested negative on the straight leg raising test but still reported moderate radicular pain and other symptoms consistent with radiculopathy. The Veteran reported moderate paresthesia and numbness, as well as moderate pain in the right leg. The Veteran submitted his private medical records from Dr. BB, Dr. MM, and Dr. WB. The Board thoroughly reviewed the records and found no evidence within to increase the Veteran’s 20 percent rating for RLE radiculopathy. Throughout the documents, the Veteran reports moderate pain radiating down the right leg and feeling some relief from epidural injections he receives regularly. Dr. MM and Dr. WB do not classify the radiculopathy as anything more than moderate and Dr. BB specifically stated that the RE radiculopathy was “mild” in February 2018. No VA examiner or private doctor has examined the Veteran and made a determination that the RLE radiculopathy is more than moderate. Therefore, the Veteran is not entitled to an increased rating of 40 percent for moderately severe paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The Board is grateful for the Veteran’s honorable service. However, given the record before it, the Board finds that the evidence supporting this claim does not rise to the level of equipoise. See Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009). In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Therefore, the Veteran’s claims for an increased rating for his post-operative residuals of a herniated lumbar disc and lumbar spondylosis with IVDS and right lower extremity radiculopathy are denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, 4.124a, Diagnostic Code 5235-5243; 8520. H. SEESEL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E.L. Aumiller, Associate 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.