Citation Nr: 21011998 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 15-12 106A DATE: March 3, 2021 ORDER Entitlement to a disability rating in excess of 40 percent for ankylosis of the entire spine (previously rated as degenerative disc disease, status post herniated nucleus pulposus and diskectomy, lumbar spine), prior to April 29, 2019, is denied. Entitlement to a disability rating in excess of 30 percent, from April 29, 2015 to April 29, 2019, for degenerative disc disease, status post herniated nucleus pulposus and diskectomy, cervical spine, is denied. Entitlement to an initial disability rating in excess of 40 percent for left lower extremity sciatic nerve radiculopathy is denied. Entitlement to an initial disability rating in excess of 20 percent, prior to April 29, 2019, and in excess of 40 percent, thereafter, for right lower extremity sciatic nerve radiculopathy is denied. From April 29, 2019, entitlement to a disability rating in excess of 30 percent for right lower extremity femoral nerve radiculopathy, is denied. From April 29, 2019, entitlement to a disability rating of 30 percent, but no higher, for left lower extremity femoral nerve radiculopathy is granted. From June 19, 2009 to February 10, 2017, entitlement to an initial disability rating in excess of 20 percent for left upper extremity radiculopathy is denied. From February 10, 2017 to October 5, 2020, entitlement to a disability rating of 30 percent, but no higher, for left upper extremity radiculopathy is granted. From October 5, 2020, entitlement to a disability rating in excess of 60 percent for left upper extremity radiculopathy is denied. From June 19, 2009 to February 10, 2017, entitlement to an initial disability rating in excess of 20 percent for right upper extremity radiculopathy is denied. From February 10, 2017 to October 5, 2020, entitlement to a rating of 40 percent, but no higher, for right upper extremity radiculopathy is granted. From October 5, 2020, entitlement to a disability rating of 70 percent, but no higher, for right upper extremity radiculopathy is granted. FINDINGS OF FACT 1. Prior to April 29, 2019, the Veteran’s lumbar spine disability is not manifested by ankylosis or incapacitating episodes due to intervertebral disc syndrome having a total duration of at least 6 weeks during the past twelve months. 2. From April 29, 2015 to April 29, 2019 the Veteran’s cervical spine was limited at worst to 15 degrees flexion. 3. The Veteran suffers from no more than moderately severe incomplete paralysis of the left lower extremity sciatic nerve. 4. From June 19, 2009 to April 29, 2019 the Veteran suffers from no more than moderate incomplete paralysis of the right lower extremity sciatic nerve. 5. From April 29, 2019, the Veteran suffers from no more than moderately severe incomplete paralysis of the right lower extremity sciatic nerve. 6. From April 29, 2019, the Veteran does not suffer from complete paralysis of the right lower extremity femoral nerve. 7. From April 29, 2019, the Veteran suffers from no more than severe incomplete paralysis of the left lower extremity femoral nerve. 8. From June 19, 2009 to February 10, 2017, the Veteran suffered from no more than mild incomplete paralysis of the left upper extremity. 9. From February 10, 2017 to October 5, 2020, the Veteran suffered from moderate incomplete paralysis of the left upper extremity. 10. From October 5, 2020 forward, the Veteran does not suffer from complete paralysis of the left upper extremity. 11. From June 19, 2009 to February 10, 2017, the Veteran suffered from no more than mild incomplete paralysis of the right upper extremity. 12. From February 10, 2017 to October 5, 2020, the Veteran suffered from moderate incomplete paralysis of the right upper extremity. 13. From October 5, 2020, the Veteran suffered from severe incomplete paralysis of the right upper extremity; he does not suffer from complete paralysis of the right upper extremity. CONCLUSIONS OF LAW 1. Prior to April 29, 2019, the criteria for a rating in excess of 40 percent for service-connected lumbar spine have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71A, Diagnostic Code 5243. 2. From June 19, 2009 to April 29, 2015, the criteria for a rating in excess of 20 percent for service-connected cervical spine have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71A, Diagnostic Code 5237. 3. From April 29, 2015 to April 29, 2019, the criteria for a rating in excess of 30 percent for service-connected cervical spine have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71A, Diagnostic Code 5237. 4. The criteria for a rating in excess of 40 percent for service-connected left lower extremity sciatic nerve radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8520. 5. From June 19, 2009 to April 29, 2019, the criteria for a rating in excess of 20 percent for service-connected right lower extremity sciatic nerve radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8520. 6. From April 29, 2019, the criteria for a rating in excess of 40 percent for service-connected right lower extremity sciatic nerve radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8520. 7. The criteria for a rating in excess of 30 percent for service-connected right lower extremity femoral nerve radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8526. 8. The criteria for a rating of 30 percent, but no higher, for service-connected left lower extremity femoral nerve radiculopathy have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8526. 9. From June 19, 2009 to February 10, 2017, the criteria for an initial rating in excess of 20 percent for service-connected left upper extremity radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8513. 10. From February 10, 2017 to October 5, 2020, the criteria for a rating of 30 percent, but no higher, for service-connected left upper extremity radiculopathy have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8513. 11. From October 5, 2020, the criteria for a rating in excess of 60 percent for service-connected left upper extremity radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8513. 12. From June 19, 2009 to February 10, 2017, the criteria for an initial rating in excess of 20 percent for service-connected right upper extremity radiculopathy have not been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8513. 13. From February 10, 2017 to October 5, 2020, the criteria for a rating of 40 percent, but no higher, for service-connected right upper extremity radiculopathy have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8513. 14. From October 5, 2020, the criteria for a rating in of 70 percent, but no higher, for service-connected right upper extremity radiculopathy have been satisfied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124A, Diagnostic Code 8513. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1980 to August 1986. This matter comes before the Board of Veterans’ Appeals (Board) from an August 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). These issues were previously before the Board in January 2019. At that time, in pertinent part, the Board denied entitlement to an initial rating higher than 20 percent for the Veteran’s cervical spine disability, prior to April 29, 2015. As such, this issue has been decided and is no longer before the Board. The Board notes that in an October 2020 rating decision, the Veteran was granted entitlement to a 100 percent rating for unfavorable ankylosis of the entire spine, effective April 29, 2019 (previously rated as degenerative disc disease, status post herniated nucleus pulposus and diskectomy, lumbar spine). A 100 percent rating is the highest rating available; as such, for this issue, the period of time from April 29, 2019 is no longer on appeal. The October 2020 rating decision also granted a 40 percent rating for right upper extremity radiculopathy, effective April 2019; a 30 percent rating for left upper extremity radiculopathy, effective April 2019, and 60 percent, thereafter; a 40 percent rating for right lower extremity radiculopathy, effective April 2019; a 30 percent rating for radiculopathy of the right lower extremity, femoral nerve, effective April 2019; and a 20 percent rating for radiculopathy of the left lower extremity, femoral nerve, effective April 2019. Despite the grant of these increased evaluations, the issues remain on appeal, as the Veteran has not indicated satisfaction with the ratings assigned. A.B. v. Brown, 6 Vet. App. 35 (1993). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Different ratings may be assigned for different periods of time for the same disorder if the facts show distinct time periods with different levels of disability. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). 1. Entitlement to a disability rating in excess of 40 percent for ankylosis of the entire spine (previously rated as degenerative disc disease, status post herniated nucleus pulposus and diskectomy, lumbar spine), prior to April 29, 2019. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the thoracolumbar spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees, when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is assigned for forward flexion of the thoracolumbar spine to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is to 90 degrees and the normal combined range of motion is 240 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Ankylosis is stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint. Dinsay v. Brown, 9 Vet. App. 79, 81 (1996). Ankylosis is also defined as “immobility and consolidation of a joint due to disease, injury, or surgical procedure.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 93 (30th ed. 2003). Unfavorable ankylosis is defined by VA regulation as a condition in which the spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure on the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurological symptoms due to nerve root stretching. Id. , Note (5). Fixation in the neutral position of zero degrees always represents favorable ankylosis. Id. Alternatively, the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes allows a rating of 20 percent when there are incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted when there are incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months, and a rating of 60 percent is warranted when there are incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. In this case, there is no competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. During the appeal period the Veteran underwent VA examinations in May 2010, March 2015, February 2017, and August 2017. Range of motion testing was performed and showed, at worst, forward flexion to 20 degrees and a combined range of motion no less than 115 degrees. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. Collectively, these findings demonstrate that the Veteran’s lumbar spine was not fixed, and there was no diagnosis of ankylosis of the thoracolumbar spine or the entire spine, prior to April 29, 2019. Therefore, a rating higher than 40 percent under the General Rating Formula is not warranted. As the evidence does not indicate that the Veteran had unfavorable ankylosis of the entire thoracolumbar spine prior to April 29, 2019, entitlement to a rating higher than 40 percent is not warranted. The Board has carefully considered the Veteran’s contentions, including regarding flare-ups, and notes that the 40 percent rating is recognition that the Veteran has a severe low back disability as it is the maximum rating for limitation of motion under the schedular criteria. Where the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4. 40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Also, the Board notes that the criteria for a 40 percent rating includes compensation for favorable ankylosis. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 40 percent rating currently assigned for this time period presently contemplates episodes in which the Veteran believes his disability was so severe that he could not move his back. As previously noted; however, unfavorable ankylosis, as contemplated in the 50 percent and 100 percent ratings, however, is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Therefore, based on the evidence of record, the Board does not find that the medical evidence or the Veteran’s lay description of the functional impairment he experiences, to include during flare-ups, demonstrates the level of disability associated with unfavorable ankylosis of the thoracolumbar spine, which is the criteria associated with the next higher rating of 50 percent, for this period on appeal. In reaching these conclusions, the Board has considered any additional functional limitation due to factors such as pain, weakness, incoordination, or fatigability. See 38 C.F.R. §§ 4. 40 and 4.45; Deluca v. Brown. In considering additional limitation of function, the Board acknowledges the Veteran’s complaints of pain and stiffness. These complaints are well documented in the Veteran’s written statements and treatment records. However, the Board has considered the Veteran’s functional limitations based on pain and finds that the current rating appropriately compensates the Veteran for his symptoms. Moreover, whereas here, the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4. 40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). The Veteran has asserted that his symptoms are more severe than what is represented by a 40 percent rating. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the totality of the evidence indicates the current 40 percent rating for this appeal period appropriately compensates the Veteran’s symptoms. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluation assigned and do not more nearly approximate the criteria for a higher evaluation. Relevant neurological findings are addressed below. 2. Entitlement to a disability rating in excess of 30 percent, from April 29, 2015 to April 29, 2019, for degenerative disc disease, status post herniated nucleus pulposus and diskectomy, cervical spine. Regulations specify that disabilities of the spine should be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (Spinal Formula). 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5243. When intervertebral disc syndrome (IVDS) is present, it is to be evaluated under the Spinal Formula unless it is more favorable to rate under the Formula for Rating IVDS Based on Incapacitating Episodes (IVDS Formula). Ratings under the Spinal Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. As relevant to the cervical spine, the Spinal Formula provides for a 20 percent disability rating when forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees, when the combined range of motion of the cervical spine is not greater than 170 degrees, or when muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is assigned for forward flexion of the cervical spine to 15 degrees or less, or favorable ankylosis of the entire cervical spine. A 40 percent disability rating is assigned for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is assigned with unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Spinal Formula. For VA compensation purposes, normal forward flexion of the cervical spine is to 45 degrees and the normal combined range of motion is 340 degrees. Id., Note (2). Associated objective neurologic abnormalities should be rated separately under an appropriate diagnostic code. Id., Note (1). Alternatively, the IVDS Formula provides for rating based on the total duration of incapacitating episodes. 38 C.F.R. § 4.71a, IVDS Formula. Incapacitating episodes are defined as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id., Note (1). A 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks. Higher ratings are available with incapacitating episodes of greater duration during a 12-month period. In this case, there is competent evidence of incapacitating episodes as defined by regulation of the duration required for a higher rating. During the appeal period the Veteran underwent VA examinations in May 2016 and February 2017. Range of motion testing was performed and showed, at worst, forward flexion to 15 degrees and a combined range of motion no less than 90 degrees. During examination the Veteran was asked about pain, flare-ups, and functional limitations, and relevant testing was performed, to include testing for pain and testing to reveal any additional functional limitations in certain circumstances, such as after repetitive use. Collectively, these findings demonstrate that the Veteran’s cervical spine was not fixed, and there was no diagnosis of unfavorable ankylosis of the entire cervical spine, from April 29, 2015 to April 29, 2019. Therefore, a rating higher than 30 percent under the General Rating Formula is not warranted. As the evidence does not indicate that the Veteran had unfavorable ankylosis of the entire cervical spine, from April 29, 2015 to April 29, 2019, entitlement to a rating higher than 30 percent is not warranted. The Board has carefully considered the Veteran’s contentions, including regarding flare-ups, and notes that the 30 percent rating is recognition that the Veteran has a severe cervical spine disability as it is the maximum rating for limitation of motion under the schedular criteria. Where the Veteran is already receiving the maximum disability rating for limitation of motion, 38 C.F.R. §§ 4. 40 and 4.45 are not applicable. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Also, the Board notes that the criteria for a 30 percent rating includes compensation for favorable ankylosis of the entire cervical spine. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). Thus, the 30 percent rating currently assigned for this time period presently contemplates episodes in which the Veteran believes his disability was so severe that he could not move his cervical spine. The Veteran has asserted that his symptoms are more severe than what is represented by a 30 percent rating, for this period on appeal. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). However, the Board finds that the totality of the evidence indicates the current 30 percent rating appropriately compensates the Veteran’s symptoms, for this period on appeal. The symptomatology noted in the medical and lay evidence has been adequately addressed by the evaluation assigned and do not more nearly approximate the criteria for a higher evaluation. Relevant neurological findings are addressed below. 3. Entitlement to a disability rating in excess of 40 percent for left lower extremity sciatic nerve radiculopathy Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating that may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran underwent VA examinations in March 2015, February 2017, April 2019, and October 2020. At worst, the Veteran reported 3/5 hip flexion strength bilaterally, 4/5 knee extension, ankle plantar flexion and dorsiflexion, and great toe extension, decreased bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toe sensation, hypoactive left ankle and knee reflexes, decreased left lower leg and ankle sensation, moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness, and severe intermittent pain. During all examinations, the Veteran was diagnosed with moderate incomplete paralysis of the sciatic nerve. As the Veteran was diagnosed with moderate incomplete paralysis of the sciatic nerve, but also presented with hypoactive left ankle and knee reflexes as well as decreased left lower leg and ankle sensation, the Board finds that the Veteran suffers from moderately severe incomplete paralysis of the left lower extremity sciatic nerve. At no point, however, has the evidence demonstrated that the Veteran suffers from severe incomplete paralysis with marked muscular atrophy, to warrant a rating higher than the currently assigned 40 percent rating. As such, entitlement to a disability rating in excess of 40 percent for left lower extremity sciatic nerve radiculopathy is not warranted. 4. Entitlement to a disability rating in excess of 20 percent from June 19, 2009 to April 29, 2019, and higher than 40 percent, thereafter, for right lower extremity sciatic nerve radiculopathy a. June 19, 2009 to April 29, 2019 The Veteran underwent VA examinations in March 2015 and February 2017. At worst, the Veteran reported 4/5 bilateral hip strength, and moderate right lower extremity constant pain, intermittent pain, paresthesias and/or dysesthesias, numbness. The examiner diagnosed the Veteran with moderate incomplete paralysis of the sciatic nerve. The Board finds that the Veteran suffers from moderate right lower extremity radiculopathy. At no time during this period has the evidence shows symptoms that are consistent with moderately severe incomplete paralysis of the right lower extremity. b. April 29, 2019 forward The Veteran underwent VA examinations in April 2019 and October 2020. At worst, the Veteran reported 3/5 hip flexion strength bilaterally, 4/5 knee extension, ankle plantar flexion and dorsiflexion, and great toe extension, moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness, and severe intermittent pain. The examiner diagnosed the Veteran with moderate incomplete paralysis of the sciatic nerve. As the Veteran was diagnosed with moderate incomplete paralysis of the sciatic nerve, but also presented with decreased hip strength as well as severe intermittent pain, the Board finds that the Veteran suffers from moderately severe incomplete paralysis of the right lower extremity sciatic nerve. At no point, however, has the evidence demonstrated that the Veteran suffers from severe incomplete paralysis with marked muscular atrophy to warrant a rating higher than the currently assigned 40 percent rating for this period on appeal. As such, entitlement to a disability rating in excess of 40 percent for right lower extremity sciatic nerve radiculopathy is not warranted. 5. Entitlement to a disability rating in excess of 30 percent for right lower extremity femoral nerve radiculopathy, from April 29, 2019 The femoral nerve radiculopathy of the Veteran’s lower extremities has been evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under that diagnostic code, a 10 percent rating is assigned for mild, incomplete paralysis of the anterior crural (femoral) nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 30 percent rating is assigned for severe incomplete paralysis; and a maximum 40 percent rating is assigned for complete paralysis of the quadriceps extensor muscles. The Veteran underwent VA examinations in April 2019 and October 2019. At worst, the Veteran reported 3/5 hip flexion strength bilaterally, 4/5 knee extension, ankle plantar flexion and dorsiflexion, and great toe extension, hypoactive left knee reflex, bilateral hypoactive ankle reflexes, decreased bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toe sensation, moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness, and severe intermittent pain. The Veteran was diagnosed with moderate incomplete paralysis of the femoral nerve. As the Veteran was diagnosed with moderate incomplete paralysis of the femoral nerve, but also presented with decreased muscle strength and sensation as well as severe intermittent pain, the Board finds that the Veteran suffers from severe incomplete paralysis of the right lower extremity femoral nerve. At no point, however, has the evidence demonstrated that the Veteran suffers from complete paralysis to warrant a rating of 40 percent. As such, entitlement to a disability rating in excess of 30 percent for right lower extremity femoral nerve radiculopathy is not warranted. 6. Entitlement to a disability rating of 30 percent from April 29, 2019 forward for left lower extremity femoral nerve radiculopathy The Veteran underwent VA examinations in April 2019 and October 2019. At worst, the Veteran reported 3/5 hip flexion strength bilaterally, 4/5 knee extension, ankle plantar flexion and dorsiflexion, and great toe extension, hypoactive left knee reflex, bilateral hypoactive ankle reflexes, decreased bilateral upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toe sensation, moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness, and severe intermittent pain. The Veteran was diagnosed with moderate incomplete paralysis of the femoral nerve. As the Veteran was diagnosed with moderate incomplete paralysis of the femoral nerve, but also presented with decreased muscle strength and sensation as well as severe intermittent pain, the Board finds that the Veteran suffers from severe incomplete paralysis of the left lower extremity femoral nerve and a 30 percent disability rating is warranted. At no point has the evidence demonstrated that the Veteran suffers from complete paralysis, however, to warrant a rating higher than 30 percent. As such, entitlement to a disability rating of 30 percent, but no higher, for left lower extremity femoral nerve radiculopathy is warranted. 7. Entitlement to a disability rating in excess of 20 percent from June 19, 2009 to February 9, 2017 left upper extremity radiculopathy During this period, the Veteran’s upper extremity radiculopathy was rated under Diagnostic Code 8513. 38 C.F.R. § 4.124a, Diagnostic Code 8513. Under Diagnostic Code 8513, a 20 percent rating is warranted for incomplete paralysis that is mild. Id. A 40 percent rating (major extremity) and 30 percent rating (minor extremity) is warranted for incomplete paralysis that is moderate. Id. A 70 percent rating (major extremity) and 60 percent rating (minor extremity) is warranted for incomplete paralysis that is severe. Id. A 90 percent rating (major extremity) and 80 percent rating (minor extremity) is warranted for paralysis that is complete. During this period, the Veteran underwent a VA examination in May 2016. At worst, the Veteran reported moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness. The Veteran was diagnosed with mild radiculopathy. The Board finds that the Veteran suffers from mild left upper extremity radiculopathy. At no time during this period has the evidence shows symptoms that are consistent with moderate incomplete paralysis of the left upper extremity. 8. Entitlement to a disability rating of 30 percent from February 10, 2017 to October 5, 2020 for left upper extremity radiculopathy During this period, the Veteran underwent a VA examination in February 2017. At worst, the Veteran reported bilateral hypoactive biceps and mild intermittent pain. The Veteran was diagnosed with moderate radiculopathy. The Veteran underwent a VA examination in June 2019. At worst, the Veteran reported 4/5 muscle strength in elbow flexion and extension, wrist flexion and extension, and finger flexion and abduction, hypoactive bilateral bicep, triceps reflexes, absent bilateral brachioradialis reflexes, decreased bilateral shoulder area, inner/outer forearm, and hand/finger sensation, and mild bilateral intermittent pain, paresthesias and/or dysesthesias, and numbness. The Veteran was diagnosed with mild radiculopathy. The Board finds that the Veteran suffers from moderate left upper extremity radiculopathy and a 30 percent disability rating, but no higher, is warranted from February 10, 2017 to October 5, 2020. At no time during this period has the evidence shows symptoms that are consistent with severe incomplete paralysis of the left upper extremity. 9. Entitlement to a disability rating higher than 60 percent for left upper extremity radiculopathy, from October 5, 2020. During this period, the Veteran underwent a VA examination in October 2020. At worst, the Veteran reported 4/5 muscle strength bilaterally in elbow flexion and extension, wrist flexion and extension, and finger flexion and abduction, moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness, and severe bilateral intermittent pain, The Veteran was diagnosed with severe radiculopathy. The Board finds that the Veteran suffers from severe left upper extremity radiculopathy. At no time during this period has the evidence shows symptoms that are consistent with complete paralysis of the left upper extremity. 10. Entitlement to a disability rating in excess of 20 percent from June 19, 2009 to February 9, 2017 for right upper extremity radiculopathy During this period, the Veteran underwent a VA examination in May 2016. At worst, the Veteran reported moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness. The Veteran was diagnosed with mild radiculopathy. The Board finds that the Veteran suffers from mild right upper extremity radiculopathy. At no time during this period has the evidence shows symptoms that are consistent with moderate incomplete paralysis of the right upper extremity. 11. Entitlement to a disability rating of 40 percent from February 10, 2017 to October 5, 2020 for right upper extremity radiculopathy During this period, the Veteran underwent a VA examination in February 2017. At worst, the Veteran reported bilateral hypoactive biceps and moderate intermittent pain. The Veteran was diagnosed with moderate radiculopathy. The Veteran underwent a VA examination in June 2019. At worst, the Veteran reported 4/5 muscle strength in elbow flexion and extension, wrist flexion and extension, and finger flexion and abduction, hypoactive bilateral bicep, triceps reflexes, absent bilateral brachioradialis reflexes, decreased bilateral shoulder area, inner/outer forearm, and hand/finger sensation, and mild bilateral intermittent pain, paresthesias and/or dysesthesias, and numbness. The Veteran was diagnosed with mild radiculopathy. The Board finds that the Veteran suffers from moderate right upper extremity radiculopathy and a 40 percent disability rating, but no higher, is warranted effective February 10, 2017. At no time during this period has the evidence shows symptoms that are consistent with severe incomplete paralysis of the right upper extremity. 12. Entitlement to a disability rating of 70 percent, but no higher, from October 5, 2020 for right upper extremity radiculopathy During this period, the Veteran underwent a VA examination in October 2020. At worst, the Veteran reported 4/5 muscle strength bilaterally in elbow flexion and extension, wrist flexion and extension, and finger flexion and abduction, moderate bilateral constant pain, paresthesias and/or dysesthesias, and numbness, and severe bilateral intermittent pain, The Veteran was diagnosed with severe radiculopathy. The Board finds that the Veteran suffers from severe right upper extremity radiculopathy and a 70 percent disability rating is warranted, from October 5, 2020. At no time during this period has the evidence shows symptoms that are consistent with complete paralysis of the right upper extremity to warrant a rating higher than 70 percent. L. ANDERSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Hofmeister, 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.