Citation Nr: 21013674 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 20-25 210 DATE: March 10, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected degenerative disc disease of the lumbosacral spine (DDD). 2. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy of the femoral nerve. 3. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy of the femoral nerve. 4. Entitlement to an initial compensable disability rating for the period prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected left lower extremity radiculopathy of the sciatic nerve. 5. Entitlement to an initial compensable disability rating for the period prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected right lower extremity radiculopathy of the sciatic nerve. ORDER Entitlement to a disability rating in excess of 10 percent prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected degenerative disc disease of the lumbosacral spine (DDD) is denied. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy of the femoral nerve is denied. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy of the femoral nerve is denied. Entitlement to an initial compensable disability rating for the period prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected left lower extremity radiculopathy of the sciatic nerve is denied. Entitlement to an initial compensable disability rating for the period prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected right lower extremity radiculopathy of the sciatic nerve is denied. FINDINGS OF FACT 1. For the period prior to December 18, 2020, the Veteran’s service-connected degenerative disc disease of the lumbar spine (DDD) is predominantly manifested by flare ups, described as sharp pains to the lower back, which is aggravated by walking, but is decreased by sitting and resting. 2. For the period from December 18, 2020, the Veteran’s service-connected degenerative disc disease of the lumbar spine (DDD) is manifested by painful flare ups that occur one to two times per week, are a nine out of ten in severity, and last approximately one day in duration. The Veteran’s ROM measurements were at their worst during flare ups, and include forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion and rotation to 10 degrees each, and left lateral flexion and rotation to 5 degrees each, which is in addition to muscle spasm that results in abnormal gait/spinal contour, with reduced muscle strength disturbance of locomotion, and interference with siting and standing. 3. The Veteran’s service-connected left lower extremity radiculopathy of the femoral nerve is manifested by moderate incomplete paralysis. 4. The Veteran’s service-connected right lower extremity radiculopathy of the femoral nerve is manifested by moderate incomplete paralysis. 5. For the period prior to December 18, 2020, the Veteran’s service-connected left lower extremity radiculopathy of the sciatic nerve has not been manifested by mildly severe incomplete paralysis. 6. For the period from December 18, 2020, the Veteran’s service-connected left lower extremity radiculopathy of the sciatic nerve is manifested by moderate incomplete paralysis. 7. For the period prior to December 18, 2020, the Veteran’s service-connected right lower extremity radiculopathy of the sciatic nerve has not been manifested by mildly severe incomplete paralysis. 8. For the period from December 18, 2020, the Veteran’s service-connected right lower extremity radiculopathy of the sciatic nerve is manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent, prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected degenerative disc disease of the lumbosacral spine have not been met or approximated. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 2. The criteria for a disability rating in excess of 20 percent for service-connected left lower extremity radiculopathy of the femoral nerve have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 3. The criteria for a disability rating in excess of 20 percent for service-connected right lower extremity radiculopathy of the femoral nerve have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8526. 4. The criteria for an initial compensable disability rating for the period prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected left lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. The criteria for an initial compensable disability rating for the period prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected right lower extremity radiculopathy of the sciatic nerve have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from January 1961 to June 1964, and in the Navy from February 1968 to January 1970, and from March 1970 to March 1976. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) which denied entitlement to the benefits currently sought on appeal. By way of background, a rating decision from July 2017 granted entitlement to service connection for degenerative disc diseases of the lumbar spine with a 10 percent disability rating, effective March 2017. That same decision granted entitlement to service connection for radiculopathies of the right and left lower extremities – both to the femoral nerves and the sciatic nerves – at 10 percent disability ratings. The Veteran filed a claim for an increased rating to each of those disabilities in June 2018. A subsequent rating decision from August 2018 increased the ratings for the right and left lower radiculopathies of the femoral nerves to 20 percent but decreased the ratings to the right and left lower radiculopathies of the sciatic nerves to a noncompensable rating. The 20 percent ratings were assigned with an effective date of June 22, 2018, the date that the Veteran filed his claim for increased ratings. The rating for the degenerative disc diseases of the lumbar spine remained unchanged at 10 percent. In May 2019 the Veteran filed a request for Higher Level Review, however the Veteran was notified later that month that the form he submitted was outdated, and he was informed as to how to pursue filing a review request under the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA) The Veteran instead chose to continue the case via the Legacy system, and he filed a timely Notice of Disagreement (NOD) in June 2019 to the most recent August 2018 rating decision. He was issued a Statement of the Case in April 2020, and he submitted a timely Form 9 in May 2020. In the Veteran’s Form 9 from May 2020, he indicated a desire for a Board Hearing at a local VA office. The Veteran was sent correspondence in June 2020 that he would be placed on a list of Veteran’s awaiting a Travel Board Hearing. Later that month however, the Veteran submitted correspondence indicating his intent to withdraw the request for the Travel Board Hearing. As such, the Veteran was removed from the list of Veteran’s requesting a hearing, and his claim was certified to the Board in late June 2020. In September 2020, the Board remanded this matter for further development and adjudication. Upon review of the Veteran’s claim file, the Board finds that there has been substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). Following those remand directives, in a rating decision from December 2020, the RO increased the Veteran’s disability rating for his service connected DDD to 20 percent, effective December 18, 2020. In that same decision, the Veteran’s disability ratings for his right and left radiculopathies of the sciatic nerves were also increased from noncompensable ratings to 20 percent, effective December 18, 2020. The Board notes that the grant of increased ratings during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded, the claim is still in controversy and on appeal. Id. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c). 38 U.S.C. § 7107 (a)(2). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 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 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 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 importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154 (a). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. 1. Entitlement to a disability rating in excess of 10 percent prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected degenerative disc disease of the lumbosacral spine (DDD). The Veteran has claimed that his service connected DDD is worse than currently rated for both stage ratings periods on appeal. A disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. It is essential that the examination upon which ratings are based adequately portray the anatomical damage, and the functional loss, with respect to all these elements. The functional loss may be due to absence of part, or all, of the necessary bones, joints and muscles, or associated structures, or to deformity, adhesions, defective innervation, or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior of the claimant undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. A little used part of the musculoskeletal system may be expected to show evidence of disuse, either through atrophy, the condition of the skin, absence of normal callosity or the like. 38 C.F.R. § 4.40. Evidence of pain, weakened movement, excess fatigability, or incoordination must be considered in determining the level of associated functional loss in light of 38 C.F.R. § 4.40, taking into account any part of the musculoskeletal system that becomes painful on use. DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions regarding the avoidance of pyramiding do not forbid consideration of a higher rating based on greater limitation of motion due to pain on use, including flare-ups. 38 C.F.R. § 4.14. The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45, however, should only be considered in conjunction with the diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. With respect to the joints, the factors of disability reside in reductions of their normal excursion of movements in different planes. Inquiry will be directed to these considerations: (a) less movement than normal (due to ankylosis, limitation or blocking, adhesions, tendon-tie-up, contracted scars, etc.); (b) more movement than normal (from flail joint, resections, nonunion of fracture, relaxation of ligaments, etc.); (c) weakened movement (due to muscle injury, disease or injury of peripheral nerves, divided or lengthened tendons, etc.); (d) excess fatigability; (e) incoordination, impaired ability to execute skilled movements smoothly; and (f) pain on movement, swelling, deformity or atrophy of disuse. Instability of station, disturbance of locomotion, interference with sitting, standing, and weight bearing are related considerations. 38 C.F.R. § 4.45. The final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158 (2016). A recent Court decision also addressed what constitutes an adequate explanation for an examiner’s inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). In Sharp, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. The Veteran’s spine disability is currently rated under Diagnostic Code 5242. Disabilities of the spine are rated under either the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher rating. Under the General Rating Formula, a spine disability is rated as follows: A 10 percent evaluation is warranted where forward flexion of the cervical spine is greater than 30 degrees but not greater than 45 degrees; or, the combined range of motion of the cervical spine is 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. A 20 percent evaluation is warranted where forward flexion of the cervical spine is greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine is 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. A 30 percent evaluation is warranted for forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. 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. The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes 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. A 40 percent disability rating is assigned or IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5243. As noted above, the RO increased the Veteran’s disability rating from 10 percent to 20 percent, effective December 18, 2020. The Board will therefore analyze each staged ratings period on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). a) The Period Prior to December 18, 2020 Turning to the available evidence, the Board is reminded that the Veteran was given a VA examination in August 2018, however the Board in its September 2020 Decision found that exam to be inadequate. This was because the Veteran had wrote in his NOD from June 2019, that “the doctor that evaluated me was in the exam room for approximately two minutes and I feel that he did not spend enough time with me to provide an accurate evaluation.” He wrote that his disability was “much more severe … than the award rating.” The Veteran is competent to report the symptoms he experiences, such as those associated with his back pain. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). The Board notes that the August 2018 VA examination is the only available complete examination for this period on appeal. The Veteran’s claims file does contain VAMC records however, whereby he regularly complains of back pain and stiffness. See March 2018 Primary Care Note. A further VAMC report from August 2018 documents “pain located in his lower back … described as sharp and stabbing, occurring constantly.” The Veteran stated that the pain was “aggravated by walking, and decreased by resting, [and] sitting.” That same August 2018 VAMC note indicates that the Veteran was “walking with steady gait.” In fact, nearly all VAMC records for this time period indicate that the Veteran had exhibited a “normal gait.” See June 2018 VAMC Note. Further VAMC records for the period on appeal are largely similar, with the Veteran predominantly complaining of sharp pain in his lower back. See May 2018 VAMC note. There is no evidence that the VAMC professionals were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the severity of the Veteran’s service connected DDD more nearly approximates the current 10 percent disability rating for the period prior to December 18, 2020. The only complete evaluation for this period on appeal was from August 2018, and the Board has previously determined that examination to be inadequate. Therefore, the only medical evidence available are the competent lay statements provided by the Veteran which discuss back pain in general, and VAMC notes which describe a “sharp and stabbing” lower back pain, that is aggravated by walking, but is improved by “resting and sitting.” There are no records that purport to measure the Veteran’s range of motion, however he has been regularly seen to exhibit a steady gait. He has at no point demonstrated during this period on appeal that the severity of his service-connected DDD has reduced range of motion (ROM) as described in the 20 percent rating, nor has he had muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, which would warrant the 20 percent disability rating. The predominant symptom described by the Veteran is lower back pain, for which he is currently in receipt of the 10 percent disability rating. As such, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by a 10 percent rating for his service-connected DDD, and that the preponderance of the evidence is against the assigment of an increased rating. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5242. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating for the time period prior to December 18, 2020 is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. b) The Period From December 18, 2020 The Veteran was given a VA examination in December 2020. The Veteran was seen in person, and his claims file was reviewed. After confirming the Veteran’s diagnosed DDD, the examiner noted the lay statements of the Veteran, including that his “pain in back is worsening.” During the exam, the Veteran described flare ups with “more intensified sharp pain in low back,” that occur one to two times per week, are “9/10 severity,” and last approximately one day. The Veteran’s ROM measurements were at worse during a flare up, whereby the examiner estimated the Veteran had forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion and rotation to 10 degrees each, and left lateral flexion and rotation to 5 degrees each. The Veteran has muscle spasm that results in abnormal gait/abnormal spine contour. Additional factors include reduced muscle strength rated 4 out of 5, disturbance of locomotion, and interference with siting and standing. He does not exhibit ankylosis, nor other neurological abnormalities aside from the radiculopathies as noted below. The Veteran does not have IVDS. He uses a brace, as well as a cane and walker occasionally. VAMC records for the period from December 18, 2020 are generally consistent, with the Veteran complaining of “chronic low back pain.” See June 2020. Other reports indicate that the Veteran has described flare ups of sharp pain in his lower back. A VAMC note from January 2021 notes that the Veteran has unstable gait, and it has been suggested that he complete specific “gait exercises at home for balance.” There is no evidence that the VA examiners and the VAMC staff were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that for the period from December 18, 2020 the current severity of the Veteran’s service connected DDD more nearly approximates the current 20 percent rating. To begin, the most complete examination during this time period occurred in December 2020, and it found that the Veteran’s ROM was, at worst, forward flexion to 50 degrees, extension to 10 degrees, right lateral flexion and rotation to 10 degrees each, and left lateral flexion and rotation to 5 degrees each. These measurements match the language used under DC 5242 of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees for the 20 percent rating. Furthermore, in this December 2020 exam, the Veteran was described as having muscle spasm that results in abnormal gait/abnormal spine contour, which is also described under the 20 percent disability rating. This finding of an unstable gait is echoed by the VAMC records available for this period on appeal. Having said that, the Veteran has at no point demonstrated the requisite symptomatology for the higher 30 percent disability rating, as the VA examiner specifically denied that the Veteran had experienced any favorable ankylosis, let alone to the entire cervical spine. The Board also notes that this December 2020 examiner’s report, which the Board has given significant probative weight, is consistent with the Veteran’s lay statements, insofar as he has never complained of ankylosis of the spine, nor IVDS. As such, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by a 20 percent rating for the period from December 18, 2020, for his service-connected DDD, and that the preponderance of the evidence is against the assigment of an increased rating. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.71a, Diagnostic Code 5242. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating for the time period from December 18, 2020 is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. 2. Entitlement to disability ratings in excess of 20 percent for service-connected left and right lower extremity radiculopathies of the femoral nerves. The Board incorporates its discussion from the sections above by reference. The Veteran has generally claimed that he is entitled to a higher rating for his service-connected right and left right lower extremity radiculopathies of the femoral nerves. See further June 2019 NOD. As noted above, the Veteran is competent to report the symptoms he experiences, such as those associated with his lower extremities. See Jandreau v. Nicholson, 492 F. 3d 1372, 1376-77 (Fed. Cir. 2007). DC 8526 provides ratings for paralysis of the femoral nerve. DC 8526 provides that mild incomplete paralysis of the femoral nerve is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; severe incomplete paralysis is rated 30 percent disabling; and complete paralysis of quadriceps extensor muscles is rated 40 percent disabling. 38 C.F.R. § 4.124a. The term “incomplete paralysis” with this and other peripheral nerve injuries 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when there is bilateral involvement, the VA adjudicator is to combine the ratings for the peripheral nerves, with application of the bilateral factor. 38 C.F.R. § 4.124a. The words “slight,” “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 the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. Turning to the available evidence, the Board initially notes that the VA examination from August 2018 was deemed inadequate in the September 2020 Board Decision. As result, the Board remanded the matter for the Veteran to be given another VA examination. That examination occurred in December 2020. The Veteran was seen in person, and his claims file was reviewed. During the exam, the Veteran described “pain radiating down bilateral legs in front and back.” He further described “worsening pain, numbness and tingling.” The examiner noted that the Veteran experienced intermittent pain, paresthesias and numbness, each of moderate severity, to both his right and left lower extremity. The examiner again confirmed that the Veteran had an abnormal gait, “even with the use of brace,” as a result of his service-connected DDD and his service-connected radiculopathies. When providing an evaluation as to the current severity of the right and left lower extremity radiculopathies, the examiner found “incomplete paralysis” of “moderate” severity for both the left and right femoral nerves. VAMC records for the period on appeal are generally consistent, as the Veteran has described a numbness and tingling down both his right and left legs. See June 2019 and March 2020 VAMC notes. As noted above, there is no evidence that the VA examiner or VAMC staff were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran’s right and left lower extremity radiculopathies of the femoral nerve more nearly approximate the current 20 percent rating. The previous VA examination from August 2018, has been deemed inadequate and thus the most complete examination on record is from December 2020. This examination, which the Board has afforded significant probative weight, described the Veteran’s radiculopathies of both his right and left femoral nerves as being of “moderate” severity, which directly matches language used to describe the 20 percent disability rating. See DC 8526. While the Veteran has complained of pain and numbness, including a tingling down both his right and left legs from his lower back, at no point has he described this pain as severe. This was further reflected in VAMC reports, whereby the Veteran regularly complains of numbness and tingling, but has never described severe pain in his lower back. As such, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by 20 percent disability ratings for both the service-connected left and right lower extremity radiculopathy of the femoral nerve, and that the preponderance of the evidence is against the assigment of an increased rating. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8526. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating for both of these disabilities is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. 3. Entitlement to initial compensable disability ratings for the period prior to December 18, 2020, and in excess of 20 percent thereafter, for service-connected right and left lower extremity radiculopathies of the sciatic nerves. The Board incorporates its discussion from the sections above by reference. The Veteran has claimed that he is entitled to a higher rating for his service-connected right and left right lower extremity radiculopathies of the sciatic nerves. DC 8520 provides ratings for paralysis of the sciatic nerve. DC 8520 provides that mild incomplete paralysis is rated 10 percent disabling; moderate incomplete paralysis is rated 20 percent disabling; moderately severe incomplete paralysis is rated 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated 60 percent disabling. Complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost, is rated 80 percent disabling. 38 C.F.R. § 4.124a. As noted above, the RO increased the Veteran’s disability rating from noncompensable ratings to 20 percent, effective December 18, 2020. The Board will therefore analyze each staged ratings period on appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). a) The Period Prior to December 18, 2020 Turning to the available evidence, the Board initially notes that the VA examination from August 2018 was deemed inadequate in the September 2020 Board Decision. And as noted above, the August 2018 VA examination is the only available complete examination for this period on appeal. Having said that, VAMC records are associated with the Veteran’s claims file. He has generally complained of numbness and tingling “radiating” down his legs from the lower back. There are no VAMC records whereby the Veteran’s lower extremity radiculopathies of the sciatic nerve have been distinguished from the femoral nerve. In fact, for this period the Veteran’s symptoms are largely described as numbness and tingling, yet they are only ever linked to the lower extremities in general. The only exception to this is a March 2017 VAMC surgical consult, whereby an examiner noted that the Veteran was “negative [for] sciatic notch tenderness.” The Board notes that that surgical note is prior to the current period on appeal, however. The Board also recognizes the relevance of records cited earlier, as they relate to his service connected DDD, which indicate that the Veteran had exhibited a “normal gait.” See May and June 2018 VAMC Notes. There is no evidence that the VAMC professionals were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current noncompensable disability rating more nearly approximates the severity of his service-connected lower extremity radiculopathies of the sciatic nerves. The only available VA examination has been deemed inadequate by the Board during this period on appeal. VAMC records have not described the Veteran’s sciatic nerve specifically during the period on appeal, nor do they differentiate from symptoms that are already covered by the disability rating for the femoral nerves. Importantly, at no point have the radiculopathies of the sciatic nerve for the left and right lower extremity been described as of mild severity, which is the minimum requirement for the 10 percent disability rating. Furthermore, the Veteran has also not distinguished his experienced symptomatology as it relates to the sciatic versus the femoral nerve, instead just complaining of numbness and tingling in his lower extremities. Thus, as far as can be practically determined by the available evidence, to compensate the Veteran for what have been described as the same, or overlapping symptoms, would constitute impermissible pyramiding for the period prior to December 18, 2020. 38 C.F.R. § 4.14. Under the anti-pyramiding provision of 38 C.F.R. § 4.14, the evaluation of the “same disability” or the “same manifestation” under various diagnoses is to be avoided. For purposes of determining whether a veteran is entitled to separate ratings for different problems or residuals of an injury, such that separate evaluations do not violate the prohibition against pyramiding, the critical element is that none of the symptomatology for any one of the conditions is duplicative of, or overlapping with, the symptomatology of the other conditions. Esteban v. Brown, 6 Vet. App. 259 (1994). From the available evidence for the period prior to December 18, 2020, all of the symptoms described by the Veteran are duplicative to that used to describe his service-connected radiculopathies of the femoral nerves, for which he is already compensated. As such, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by a noncompensable disability rating for his service-connected left and right lower extremity radiculopathies of the sciatic nerves, and that the preponderance of the evidence is against the assigment of an initial compensable rating for both claims. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8520. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to increased ratings for the time period prior to December 18, 2020 for each disability is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. b) The Period From December 18, 2020 As noted above, the Veteran’s claim was remanded by the Board in September 2020, as the August 2018 VA examination was deemed inadequate. The Veteran was to be given a VA examination to assess the current severity of his service-connected radiculopathies of the sciatic nerves. That examination occurred in December 2020. The Veteran was seen in person, and the claims file was reviewed. During the exam, the Veteran described “pain radiating down bilateral legs in front and back.” He further described “worsening pain, numbness and tingling.” The examiner noted that the Veteran experienced intermittent pain, paresthesias and numbness, each of moderate severity, to both his right and left lower extremity. The examiner again confirmed that the Veteran had an abnormal gait, “even with the use of brace,” as a result of his service-connected DDD and his service-connected radiculopathies. When providing an evaluation as to the current severity of the right and left lower extremity radiculopathies, the examiner found “incomplete paralysis” of “moderate” severity for both the left and right sciatic nerves. Importantly, this was the first period where the symptoms and severity of the Veterans’ sciatic nerves were distinguished from the femoral nerves. The Board is reminded that VAMC records for the period on appeal are generally consistent, as the Veteran has described a numbness and tingling down both his right and left legs. See June 2019 and March 2020 VAMC notes. Again, there is no evidence that the VA examiner or VAMC staff were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). In consideration of the above, the Board finds that the current severity of the Veteran’s right and left lower extremity radiculopathies of the sciatic nerve more nearly approximate the current 20 percent rating. The December 2020 VA examination, which the Board has afforded significant probative weight, described the Veteran’s radiculopathies of both his right and left sciatic nerves as being “moderate”, which directly matches language used to describe the 20 percent disability rating. See DC 8520. Again, while the Veteran has complained of pain and numbness, including a tingling down both his right and left legs from his lower back, at no point has he described this pain as severe. This was further reflected in VAMC reports, whereby the Veteran regularly complained of numbness and tingling, but has never described severe pain in his lower back or down his legs. Importantly, the Board is reminded that the symptomatology could not be distinguished as it relates to the radiculopathies of the Veteran’s lower extremity sciatic nerves for the period prior to December 18, 2020. The December 2020 VA examination however represents the first time that the severity of the sciatic nerves has been described as separate and distinct from that of the femoral nerves. Therefore, the Board finds that, to rate the radiculopathies of the Veteran’s sciatic nerves with separate 20 percent ratings would not violate the prohibition against pyramiding. See Esteban v. Brown, 6 Vet. App. 259 (1994). Having said that, based on the Veteran’s overall symptomatology and the resulting impairment stemming therefrom, the Board finds that the evidence shows his disability picture more nearly approximates the level of severity contemplated by 20 percent disability ratings for both the service-connected left and right lower extremity radiculopathy of the sciatic nerves, and that the preponderance of the evidence is against the assigment of increased ratings for either extremity. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.124a, Diagnostic Code 8526. Consequently, the benefit-of-the-doubt rule does not apply and entitlement to an increased rating for both disabilities is denied. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at 55. Michael A. Pappas Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Mulrain, 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.