Citation Nr: 21008540 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 14-14 263 DATE: February 17, 2021 ORDER Entitlement to an evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine is denied. Entitlement to an initial evaluation in excess of 20 percent for service-connected right leg radiculopathy is denied. Entitlement to an initial evaluation in excess of 10 percent for service-connected left leg radiculopathy is denied. FINDINGS OF FACT 1. The Veteran does not have unfavorable ankylosis of the entire thoracolumbar spine or unfavorable ankylosis of the entire spine, as evaluated under 38 C.F.R. § 4.71a, Diagnostic Code (DC) 5237. 2. The Veteran does not have right leg radiculopathy, evidenced by incomplete paralysis of the sciatic nerve, with damage that is moderately severe or severe, with marked muscular atrophy, as evaluated under 38 C.F.R. § 4.124a, DC 8520. 3. The Veteran does not have left leg radiculopathy, evidenced by incomplete paralysis of the sciatic nerve, with damage that is moderate, moderately severe, or severe, with marked muscular atrophy, as evaluated under 38 C.F.R. § 4.124a, DC 8520. CONCLUSIONS OF LAW 1. The criteria for entitlement to an evaluation in excess of 40 percent for service-connected degenerative disc disease of the lumbar spine, from April 30, 2010, have not been met. 38 U.S.C. §§ 1110, 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 3.400, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, DC 5237. 2. The criteria for an initial rating in excess of 20 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. 3. The criteria for an initial rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.14, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Air Force from June 1967 to June 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Huntington, West Virginia, denying entitlement to an evaluation in excess of 20 percent for degenerative disc disease of the lumbar spine. At the request of the Veteran, the RO in Montgomery, Alabama now has jurisdiction over the case. See July 2011 Notice of Disagreement. In September 2014, the Veteran testified before the undersigned Veteran’s Law Judge (VLJ) at a video conference hearing. A copy of the hearing transcript is part of the record. The Board remanded the matter in January 2016 for additional development. The matter was returned to the Board in May 2018, at which time the evaluation for degenerative disc disease of the lumbar spine was increased to 40 percent, but no higher, from April 30, 2010, the date of the original claim for increase. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Veteran filed a timely notice of appeal (NOA) from the May 2018 Board decision with the United States Court of Appeals for Veterans Claims (CAVC). In June 2018, the RO issued a rating decision to the Veteran, pursuant to the May 2018 Board decision, with notice of entitlement to an increased evaluation of degenerative disc disease of the lumbar spine to 40 percent, effective April 30, 2010. See June 2018 Rating Decision Narrative. In a Notice of Disagreement dated July 2018, the Veteran appealed the June 2018 RO rating decision to the Board. See July 2018 VA Form 21-0958, Notice of Disagreement. In a Joint Motion to Remand (JMR) dated December 2018, the CAVC vacated the May 2018 Board decision granting an evaluation of 40 percent for degenerative disc disease and remanded the matter for further development. The JMR incorrectly stated, “[T]he parties move the Court to vacate and remand the May 10, 2018 Board decision denying entitlement to an evaluation greater than 20% for service-connected DDD of the lumbar spine.” See December 2018 CAVC JMR. The Board finds that the portion of the December 2018 JMR that vacated the May 2018 Board decision, granting an evaluation of 40 percent for degenerative disc disease, was a clerical error and was not intended to convey to the Veteran that he was not entitled to the benefit of the favorable findings of the Board. See 38 U.S.C. § 5104; 38 C.F.R. §§ 3.103(f)(4), 3.104(c), 38 C.F.R. § 20.801(a). During his November 2019 and 2020 VA examinations, the opinions of the VA examiners reasonably raised the possibility of entitlement to benefits for radiculopathy in the Veteran’s lower extremities. The AOJ considered the facially favorable evidence from the November 2020 VA examination, which documented additional symptoms caused by or resulting from the Veteran’s service-connected degenerative disc disease. See November 2020 VA examination report. The result was a grant for secondary service connection for radiculopathy of the right and left lower extremities, addressed in the November 2020 VA Rating Decision Narrative. Whether the Veteran is entitled to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine, whether the Veteran is entitled to a rating in excess of 20 and 10 percent for disabilities secondary to an already service-connected disability, and whether the Veteran is entitled to an earlier effective date “are questions relating to a single ‘matter’ for purposes of the Board’s jurisdiction.” See Bernard v. Brown, 4 Vet. App. 384 (1993). Regardless of whether the Veteran intended to appeal the November 2020 rating decision or not, the Board has jurisdiction to adjudicate whether an increased evaluation or earlier effective date is warranted. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). The matter is now returned to the Board to address the Veteran’s July 2018 appeal. 1. Increased rating for degenerative disc disease of the lumbar spine. The Veteran contends that he is entitled to an evaluation of “at least 50%” for degenerative disc disease of the lumbar spine. See June 2018 Family Medicine of Huntsville referral letter to The Orthopaedic Center. Increased Ratings Disability evaluations are determined by the application of facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) in 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 in or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Separate, staged ratings can be assigned for new or separate evaluations as current facts are applied to the established rating criteria. Fenderson v. West, 12 Vet. App. 119, 126 (1999); AB v. Brown, 6 Vet. App. 35 (1993) (holding that a claim for an original or increased rating remains in controversy when less than the maximum available benefit is awarded). Any reasonable doubt as to the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The claim for an increased rating for his degenerative disc disease was filed by the Veteran in April 2010. Therefore, the relevant temporal focus for evidence that is factually ascertainable regarding this disability includes evidence from April 2009. See 38 C.F.R. § 3.400(o)(2). The Veteran’s degenerative disc disease condition was evaluated under 38 C.F.R. § 4.71a, DC 5237, General Rating Formula for Diseases and Injuries of the Spine. Under DC 5237, a 10 percent rating is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 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. See 38 C.F.R. § 4.71a, DC 5237. A 20 percent rating is assigned for forward flexion of the thoracolumbar spine 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. See 38 C.F.R. § 4.71a, DC 5237. A 30 percent rating is assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned 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. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. Finally, a 100 percent rating is assigned for unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5237. Factual Background Addressing the Veteran’s April 2010 claim for an increased rating of degenerative disc disease of the lumbar spine, treatment records and VA examinations provide a history of range of motion (ROM) measurements for the relevant appeal period under 38 C.F.R. § 4.71a, DC 5237, rating criteria. At the Veteran’s July 2010 VA examination, he reported spasms and “sharp” pain in the lumbar spine but no incapacitating episodes. The Veteran also reported no functional impairment, some limitations with daily activities, and no limitations on his employment. His flexion was measured at 35 degrees, with the same results on repetitive testing. There was no evidence of cervical or thoracolumbar ankylosis. See July 2010 VA examination report. In September 2014, the Veteran had X-rays taken of his lumbar spine. The findings included: “The vertebral bodies are in alignment. No fracture or subluxation seen. Mild disc space narrowing is seen at L3-L4 with there [sic] are small marginal osteophytes. Other intervertebral discs appear normal. The sacroiliac joints appear normal. There is mild vascular calcification seen.” The impression was “Mild degenerative disc disease L3-L4.” See September 2014 Huntsville Hospital Imaging Center Radiology Consultation Report. A month later, the Veteran completed an MRI without contrast. The results were: “L3-4: Mild broad-based disc bulge…Mild disc desiccation and disc space height loss. L4-5: Broad-based disc bulge…Mild disc desiccation. L5-S1: Broad-based disc bulge…Mild disc desiccation and disc space height loss.” The impression was “Multilevel degenerative changes.” See October 2014 SportsMed Orthopaedic Surgery and Spine Center MRI. The Veteran completed another VA examination in June 2016. He reported no flare-ups, but functional impacts included the inability to “lift more than a gallon of milk, walk more than 2 blocks, stand for more than 5 minutes, sit for more than 30 minutes,” or “perform physically demanding work.” Weight-bearing pain was noted, but there was no functional loss due to pain. Flexion was measured at 50 degrees, with the same result after repetitive testing. There was no evidence of ankylosis. See June 2016 VA examination report. A private examination noted “normal” gait for the Veteran, “no evidence of shuffling or ataxia,” and range of motion of the lumbar spine was “limited.” The Veteran was prescribed a “stretching and exercise program.” See June 2018 Family Medicine of Huntsville Examination and referral letter to The Orthopaedic Center. VA treatment records for the same time period continue to reflect a history of and active treatment for “back pain…lower back” for the Veteran. See September 2017 VA Primary Care Outpatient and June 2019 VA Primary Care Notes and July 2019 VA Patient Contact Note Addendum. In November 2019, the Veteran attended an additional VA examination. Flare-ups were reported once a month with increased pain and lack of endurance. Functional loss was reported as the inability to “walk more than a block, stand for more than 10 minutes, sit for more than 30 minutes.” The Veteran indicated that he would be unable to perform work that was “physically demanding” or required “standing or walking.” Flexion was measured at 25 degrees, with the same result on repetitive testing, and weight-bearing pain was noted. There was no evidence of ankylosis. See November 2019 VA examination report. A final VA examination was performed in November 2020. The Veteran reported flare-ups 2-3 times per month, with “excruciating” pain. Functional limitations were documented as “standing for more than a few minutes, can’t sit a long time in the same position, can hardly walk.” Flexion was measured at 40 degrees, and repetitive testing was not performed due to pain. Weight-bearing pain was noted, with objective evidence of non-weight bearing pain. Passive range of motion testing could not be performed and / or was not medically appropriate. There was no evidence of ankylosis. See November 2020 VA examination report. Analysis The Board has carefully considered all applicable statutory and regulatory provisions, to include 38 C.F.R. §§ 4.40 and 4.59, as well as the holding in DeLuca v. Brown, 8 Vet. App. 202 (1995), regarding functional loss attributable to pain. While VA examiners noted the inability to sit or stand for long periods, the inability to walk long distances, the inability to “lift more than a gallon of milk,” and the inability to “fully bend” during VA examinations, the June 2016 examiner noted that pain did not result in or cause functional loss. See June 2016 VA examination report. The November 2019 examiner noted functional limitations only during flare-ups, which the Veteran reported once per month. See November 2019 VA examination report. The November 2020 examiner made a similar finding, with flare-ups occurring “2-3 times per month.” See November 2020 VA examination report. The Veteran reported “stiffness” and “weakness” at the July 2010 VA examination. See July 2010 VA examination report. However, he has denied “stiffness” during recent treatment. See March and September 2017 VA Primary Care Outpatient Notes. Muscle strength at VA examinations was indicated as “Normal,” without evidence of atrophy, muscle spasms, neurologic abnormalities, intervertebral disc syndrome, or other pertinent physical findings. See July 2010, June 2016, and November 2019 and 2020 VA examination reports. In addition, a private examination in June 2018 noted, “Gait…normal, non-antalgic…no evidence of shuffling or ataxia.” See June 2018 Family Medicine of Huntsville Examination. Forward flexion for the Veteran was measured between 25 and 50 degrees at each VA examination. See July 2010, June 2016, and November 2019 and 2020 VA examination reports. No “visible behavior of the (Veteran),” including “facial expression, wincing, etc.” was noted at any examination. See 38 C.F.R. §§ 4.40 and 4.59. These findings do not warrant an increased rating. The medical evidence in the Veteran’s claim file does not demonstrate unfavorable ankylosis of the entire thoracolumbar spine, nor does it demonstrate unfavorable ankylosis of the entire spine during the pendency of the appeal. The Board finds that a 40 percent disability rating adequately considers any functional loss, pain, or weakness resulting from his lumbar spine disability without a separate evaluation for pain. See generally 38 C.F.R. § 4.14. Notwithstanding that the VA examinations and other physical examinations discussed herein failed to record passive range of motion and range of motion in non-weight-bearing conditions, the Board finds that the examinations nevertheless are adequate for VA rating purposes. Passive range of motion is the amount of motion possible when an examiner moves a body part with no assistance from the individual being evaluated. It is usually greater than active range of motion because the integrity of the soft tissue structures does not dictate the limits of movement. Comparisons between passive range of motion and active range of motion provide information about the amount of motion permitted by the associated joint structures (passive range of motion) relative to the individual’s ability to produce motion at a joint (active range of motion). CYNTHIA NORKIN & D. JOYCE WHITE, MEASUREMENT OF JOINT MOTION: A GUIDE TO GONIOMETRY 8-9 (2016). Testing the joint under weight-bearing conditions involves movement of the body against gravity. J. Randy Jinkins, et al., Upright, Weight-bearing, Dynamic-kinetic Magnetic Resonance Imaging of the Spine: Initial Results, 15 J. Eur. Radiol. 1815-25 (2005). When evaluating range of motion, it is preferable to test in weight-bearing conditions because testing in non-weight-bearing conditions underestimates the degree of pathology present. Id. at 1823. Because there is no indication that the structural integrity of the Veteran’s back is compromised, such that passive range of motion in this case would be more limited than active, and because testing in weight-bearing conditions is more demonstrative of the degree of pathology, the Board finds that the failure to record limitation of motion on passive range of motion and in non-weight-bearing is harmless error and not prejudicial to the Veteran. The Board will therefore evaluate the Veteran’s range of motion using the available measurements on active range of motion. As for VA’s duty to assist the Veteran, a medical examination and a medical opinion have been obtained, sufficient to apply the applicable rating criteria and to make a decision on the claim. See 38 C.F.R. §§ 4.14, 4.40, 4.59, 4.71a. The Board finds that VA has done everything reasonably possible under 38 C.F.R. § 21.1032(a) to assist the Veteran. A remand or further development of this claim would serve no useful purpose. VA has satisfied its duties to inform and assist the Veteran in this case. See 38 U.S.C. §§ 5103, 5103A; 38 C.F.R. § 21.1032(a). Further, the RO’s efforts have substantially complied with the instructions contained in the July 2019 Board remand. See Stegall v. West, 11 Vet. App. 268 (1998). The entire record was available to the November 2020 examiner, a back (thoracolumbar spine) examination was performed, and the testing was sufficient to adequately address all potential rating criteria. See November 2020 VA examination report. Further development and further assistance by VA is not warranted. In reaching this conclusion, the Board has considered the overall disability picture demonstrated by the record to arrive at the appropriate evaluation in this case. A preponderance of the evidence is against a finding that the Veteran is entitled to a rating in excess of 40 percent for degenerative disc disease of the lumbar spine under 38 C.F.R. § 4.71a, DC 5237, for the relevant appeal period. The treatment records and the July 2010, June 2016, and November 2019 and 2020 reports from the VA examiners are the most probative evidence of record on the question of entitlement to an increased rating. The opinions were based on an extensive review of all of the evidence, including lay statements from the Veteran, was supported by a detailed rationale, provided data to support any conclusions, and they provided a clear and reasoned analysis, the source of the most probative value in a medical opinion. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The VA and non-VA treatment notes are consistent with the VA examinations and the evidence of record. The VA examiner opinions provide compelling evidence against the Veteran’s claim for increase. There is no competent, credible evidence to refute the treatment notes or the VA examiner opinions. The weight of the probative evidence of record is against a finding that the Veteran is entitled to a disability rating in excess of 40 percent for degenerative disc disease of the lumbar spine. In summary, a clear preponderance of the evidence of record indicates the Veteran does not meet the relevant diagnostic criteria under 38 C.F.R. § 4.71a, DC 5237, for entitlement to a disability rating in excess of 40 percent for degenerative disc disease of lumbar spine for the relevant appeal period. Therefore, his claim for increase must be denied. In reaching the above conclusions, the Board has not overlooked the Veteran’s statements with regard to the severity of his low back disability. In this regard, the Veteran is competent to report on factual matters of which he has firsthand knowledge, e.g., chronic pain in his lower back. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Veteran has provided lay evidence through VA examinations, in addition to hearing testimony, throughout the course of his appeal with respect to the presence of pain and its severity. He is competent to provide such statements, and the Board finds that the Veteran’s statements are credible. The Veteran’s reported symptomatology has been noted in the rating decisions, and the Board has considered the Veteran’s reports with respect to pain in evaluating his assigned rating. With respect to the Rating Schedule, the criteria set forth therein generally require medical expertise where the types of findings required are not readily observable by a lay person. Therefore, the objective medical findings provided by the Veteran’s VA examination reports have been accorded greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993) (“[t]he probative value of medical opinion evidence is based on the medical expert’s personal examination of the patient, the physician’s knowledge and skill in analyzing the data, and the medical conclusion that the physician reaches... the credibility and weight to be attached to these opinions [are] within the province of the adjudicator.”). In reaching the conclusions stated above, the Board has considered the applicability of the benefit of the doubt doctrine. The rule does not apply when the Board finds that a preponderance of the evidence is against the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (2018); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). Finally, the Veteran has not contended, nor does the evidence demonstrate, that this disability or his other service-connected disabilities render him unemployable. The Veteran indicated that he was a retired Quality Reliability Specialist for the U.S. Army. See July 2010 VA examination report. The Veteran was still employed during his April 2008 VA examination. At that time, the Veteran indicated that his disability had “no impact” on his occupation, except lifting his heavy luggage for business travel. See April 2008 VA examination report. In the most recent examination, it was noted that this disability “[a]ffects standing for more than a few minutes” and “can’t sit a long time in the same position.” See November 2020 VA examination report. At a May 2016 VA appointment, the Veteran indicated that he was employed as “a chef at Kroger.” See May 2016 VA Primary Care Outpatient Note Addendum. The issue of a total rating based on individual unemployability has not been raised at any time during this appeal. 2. Increased rating for right leg radiculopathy. 3. Increased rating for left leg radiculopathy. The Veteran has not claimed that he is entitled to an initial rating, in excess of 20 percent for right leg and in excess of 10 percent for left leg, for the grant of service connection for radiculopathy of the lower extremities. The Veteran filed a claim for an increase in his evaluation of service-connected degenerative disc disease of the lumbar spine in excess of 20 percent. See April 2010 VA Form 21-526b, Veteran Supplemental Claim. In order to fulfill its duty to assist in obtaining a medical examination or opinion when necessary to substantiate the claim, a series of VA examinations were performed for the Veteran as a result of the April 2010 claim for increase of degenerative disc disease of the lumbar spine. See generally 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). During the Veteran’s November 2019 and 2020 VA examinations, the opinions of the VA examiners reasonably raised the possibility of entitlement to benefits for radiculopathy in the Veteran’s lower extremities. The AOJ considered the facially favorable evidence from the November 2020 VA examination, which documented additional symptoms caused by or resulting from the Veteran’s service-connected degenerative disc disease. See November 2020 VA examination report. The result was secondary service connection for radiculopathy of the right and left lower extremities, addressed in the November 2020 VA Rating Decision Narrative. As discussed previously, regardless of whether the Veteran intended to appeal the November 2020 rating decision or not, the Board must assume that the Veteran is seeking the maximum benefit allowable. See generally 38 C.F.R. §§ 3.102, 4.3; Bradley v. Peake, 22 Vet. App. 280 (2008). Therefore, the Board has jurisdiction to adjudicate whether an increased evaluation or earlier effective date for the radiculopathy condition is warranted. See Cook v. Principi, 318 F.3d 1334 (Fed. Cir. 2002). Initial Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from the disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. See 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination 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 a disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; assigning the higher of the two disability evaluations where the disability pictures more nearly approximates the criteria for the next higher rating, where there is a question as to which of two evaluations apply; and evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person’s ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Veteran was granted service connection for right leg and left leg radiculopathy as secondary to service-connected degenerative disc disease of the lumbar spine in November 2020. A disability evaluation of 10 percent was assigned from November 19, 2020 for the right and left legs, and an evaluation of 20 percent was assigned for the right leg from November 7, 2020, using the rating criteria under 38 C.F.R. § 4.124a, DC 8520. See November 2020 Rating Decision Narrative. Under 38 C.F.R. § 4.124a, DC 8520, Sciatic nerve, Paralysis of, a 10 percent rating is assigned for mild, incomplete paralysis, a 20 percent rating is assigned for moderate, incomplete paralysis, and a 60 percent rating is assigned for severe, incomplete paralysis, with marked muscular atrophy. Finally, an 80 percent rating is assigned for complete paralysis, including evidence that the foot dangles and drops, no active movement possible of muscles below the knee, and flexion of knee weakened or (very rarely) lost. An 80 percent evaluation is the maximum possible rating under 38 C.F.R. § 4.124a, DC 8520. Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. 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, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The Board observes that the words “mild,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6.   Factual Background The Veteran was involved in a motor vehicle accident in the year 2000. When he was hit from behind, his back “buckled”, and he experienced “Pain immediately (lower back) within minutes down both legs.” See October 2000 Schales Chiropractic Center Treatment Note. The Veteran received treatment for “problems with his legs catching and burning pain the back and legs.” See October 2000 VA Primary Care Outpatient Note and May 2001 Physical Medicine and Rehabilitation Follow-up Evaluation. At the completion of his May 2001 treatment for the 2000 motor vehicle accident, complaints for the Veteran were limited to the “low back.” See March 2001 Huntsville Sports Medicine Progress Note (“Pain, Low Back, Lumbago”) and April 2003 VA Primary Care Note (“follow up of: Chronic back pain”). A VA examination in April 2008 noted, “Sensation is normal to (Veteran’s) legs, and a July 2010 VA examination found no evidence of numbness, paresthesias, or radiation of pain. See April 2008 and July 2010 VA examination reports. An October 2014 private treatment note documented, “[O]ngoing complaint of bilateral upper and lower extremity mixed nerve root radiculopathy.” See October 2014 SportsMed Orthopaedic Surgery and Spine Center Service Note. A subsequent MRI without contrast revealed: “L3-4: Mild broad-based disc bulge…Mild disc desiccation and disc space height loss. L4-5: Broad-based disc bulge…Mild disc desiccation. L5-S1: Broad-based disc bulge…Mild disc desiccation and disc space height loss.” The impression was, “Multilevel degenerative changes.” See October 2014 Crestwood Medical Center Radiology Report. The Veteran had surgery in November 2014, including laminectomy, diskectomy, and foraminotomy to relieve pressure on compressed nerves in the cervical spine, described as “mixed nerve root radiculopathy, right greater than left.” See November 2014 Crestwood Medical Center Operative Report. At one VA appointment, the Veteran described, “[F]reezing pain in legs” that was “constant…throbbing.” See May 2016 VA Primary Care Physician E & M Note. However, during his June 2016 VA examination, the Veteran had no neurologic abnormalities, denied radicular pain, and his sensory examination was “Normal.” See June 2016 VA examination report. In addition, the Veteran twice denied “numbness in extremities” at later VA treatment. See March and September 2017 VA Primary Care Outpatient Notes. A private treatment provider diagnosed the Veteran with “Spondylosis (without) myelopathy or radiculopathy.” She continued her assessment of the Veteran by stating, “He doesn’t really have a lot of radicular symptoms…I don’t see an indication for an MRI unless he develops new neurologic symptoms.” See June 2018 Family Medicine of Huntsville referral letter for The Orthopaedic Center. A July 2018 lumbar spine X-ray for the Veteran revealed: “some diffuse spondylitic changes and a little bit of lateral spurring here and there. Overall disc space height on the AP view appears to be fairly well maintained...On the lateral view the disc spaces are reasonably well maintained. There is a little bit of narrowing at 3, 4, some early anterior osteophytosis there, some early facet arthropathy at the lower lumbosacral junction. I don’t appreciate any severe bony neural foraminal narrowing. No obvious translational instability is noted on straight lateral view.” See July 2018 The Orthopaedic Center Radiology Report. At a 2019 VA follow-up appointment, the Veteran reported, “Chronic back pain…lower back…sometimes radiates to legs.” A lumbosacral spine MRI was ordered for the Veteran. See June 2019 VA Primary Care Outpatient Note. The Veteran was a “No show” for the August 2019 MRI appointment. See August 2019 VA Patient Contact Note. The examiner at the November 2019 VA examination concluded that the Veteran’s complaint of leg pain, “[D]oes not fulfill criteria for radiculopathy.” The reasons and bases for the opinion included reports from the Veteran that the “pain into legs” only occurred during flare-ups, and the fact that private treatment providers, whose opinions were included with The Orthopaedic Center records, found no evidence of radiculopathy. See July and August 2018 The Orthopaedic Center treatment records. At the November 2019 examination, the Veteran reported no constant pain, paresthesias, or numbness and only “Mild” intermittent pain in both lower extremities. There were no other signs or symptoms of radiculopathy, including other neurologic abnormalities. There was no evidence of muscle atrophy. See November 2019 VA examination report. The November 2020 VA examiner diagnosed the Veteran with “Radiculopathy, bilateral lower extremity.” The examiner noted, “Radicular pain, paresthesias, numbness mild to moderate at L4/L5/S1/S2/S3 nerve roots both sides.” On the right lower extremity, pain, paresthesias, and numbness were recorded as “Moderate.” On the left lower extremity, pain, paresthesias, and numbness were recorded as “Mild.” There were no other signs or symptoms of radiculopathy, including neurologic abnormalities, and no atrophy was noted during the examination. See November 2020 VA examination report. Analysis In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. Here, the Veteran is currently rated at 20 percent for moderate radiculopathy of the right lower extremity involving the sciatic nerve and 10 percent for mild radiculopathy of the left lower extremity involving the sciatic nerve, pursuant to 38 C.F.R. § 4.124a, DC 8520. In applying the applicable rating criteria to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating in excess of 20 percent for radiculopathy of the right lower extremity at any point during this appeal, as there is no evidence to support a finding that the Veteran’s right lower extremity radiculopathy has been manifested by moderately severe or severe incomplete or complete paralysis of the sciatic nerve. In addition, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for radiculopathy of the left lower extremity at any point during this appeal, as there is no evidence to support a finding that the Veteran’s left lower extremity radiculopathy has been manifested by moderate, moderately severe, or severe incomplete or complete paralysis of the sciatic nerve. The only evidence pertaining to this disability is the November 2019 and 2020 VA examinations and sporadic reports of “pain” in the legs. See May 2016 VA Primary Care E & M Note (“freezing pain in legs”) and June 2019 VA Primary Care Outpatient Note (“pain…lower back…sometimes radiates to legs”). There is no examination, VA or otherwise, for peripheral nerves. The November 2019 VA examination provided favorable evidence of radiculopathy of the right and left lower extremities, but it wasn’t until the November 2020 examination that it was diagnosed and etiologically attributed to the low back disability. The November 2019 examiner reported the severity of the right and left lower extremity radiculopathy to be mild in nature. The November 2020 examiner reported the severity of the right lower extremity radiculopathy to be moderate in nature, while the left lower extremity was still reported as mild. See November 2019 and 2020 VA examination reports. There is no competent, credible evidence in the record to contradict the reports of the November 2019 and 2020 VA examiners. Given that the November 2020 examination is the more current evidence of record, the Board finds that the severity of radiculopathy in the right lower extremity is best characterized as moderate, and a rating in excess of 20 percent is not warranted. With the consistent reporting of the November 2019 and 2020 VA examinations regarding radiculopathy of the left lower extremity, the Board finds that the severity is best characterized as mild. Therefore, a rating in excess of 10 percent is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520. There is no evidence of record to suggest that the Veteran’s right or left lower extremities meet the required criteria for a higher evaluation rating. The Board notes that, at no time during the relevant appeal period, did the Veteran present evidence, medical, lay, or otherwise, of a greater level of severity of radiculopathy for either lower extremity. Regarding moderately severe and severe rating criteria, there is no evidence of muscle atrophy during any VA examination, and the Veteran demonstrated normal muscle strength at each examination. See June 2016 and November 2019 and 2020 VA examination reports. Regarding complete paralysis rating criteria, there is no evidence of foot paralysis at any point during the relevant appeal period.   As a preponderance of the evidence is against the award of a rating in excess of 20 percent for right leg radiculopathy and 10 percent for left leg radiculopathy, the benefit-of-the-doubt doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1991). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Small, Attorney Advisor 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.