Citation Nr: 21021326 Decision Date: 04/12/21 Archive Date: 04/12/21 DOCKET NO. 10-20 870 DATE: April 12, 2021 ORDER A 40 percent rating, but no higher, is granted for the service-connected status post avulsion fracture of the transverse process, L1-3, and herniated nucleus pulposus L5-S1 (lumbar spine disability), throughout the pendency of this claim. A 10 percent rating, and no higher, effective August 14, 2008, for left lower extremity sciatic nerve disability is granted. A 20 percent rating, and no higher, effective May 10, 2017, and no earlier, for left lower extremity sciatic nerve disability is granted. A 10 percent rating, and no higher, effective August 14, 2008, for right lower extremity sciatic nerve disability is granted. A 20 percent rating, and no higher, effective February 17, 2010, and no earlier, and a 40 percent rating, and no higher, effective May 10, 2017, and no earlier, for the right lower extremity sciatic nerve disability is granted. FINDINGS OF FACT 1. Throughout the pendency of this claim, the Veteran’s lumbar spine disorder was manifested, at worst, by forward flexion of the thoracolumbar spine limited to 30 degrees or less, but generally greater than 30 degrees, with partial impairment of physical activities during extended time spent walking, bending, sitting, and standing; constant pain; and, reduced mobility upon repeated use; but not by unfavorable ankylosis of the entire thoracolumbar spine. 2. Since the August 14, 2008 claim and prior to August 24, 2009, the Veteran’s left lower extremity sciatic nerve disability was manifested by radiating pain; since May 10, 2017, the left lower extremity sciatic nerve disability manifested with no more than moderate incomplete paralysis. 3. Since the August 14, 2008 claim and prior to February 17, 2010, the Veteran’s right lower extremity radiculopathy was manifested by radiating pain; from February 17, 2010 to May 09, 2017, the Veteran’s right lower extremity sciatic nerve disability manifested with no more than moderate incomplete paralysis; and since May 10, 2017, it manifested with no more than moderately severe incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a 40 percent rating, but no higher for the lumbar spine disability, are met throughout the pendency of this claim. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a 10 percent rating effective August 14, 2008 for the left lower extremity sciatic nerve disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for a 20 percent rating, and no more, from May 10, 2017, and no earlier, for left lower extremity sciatic nerve disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 4. The criteria for a 10 percent rating effective August 14, 2008 for the right lower extremity sciatic nerve disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 5. The criteria for a 20 percent rating, and no higher, effective February 17, 2010, and no earlier, and the criteria for a 40 percent rating, and no higher, from May 10, 2017, and no earlier, for the right lower extremity sciatic nerve disability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service in the United States Army from May 2000 to May 2004. He had additional service in the Colorado National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions of March 2009 and November 2014 issued by a Department of Veterans Affairs (VA) Regional Office (RO). By way of history, this appeal was first before the Board in June 2014, at which time the Board remanded for new VA examination of the back and sciatic nerve conditions. The Veteran underwent a VA examination in July 2014. In February 2015, the Board again remanded the matters to obtain outstanding VA medical records and military service records. After the case returned to the Board in October 2017, the Board again remanded the matters to ensure that the Veteran received a VA examination that followed the requirements of Correia v. McDonald, 28 Vet. App. 158 (2016). In December 2017, the Veteran underwent a VA examination, and, in an April 2018 Addendum report, a VA examiner discussed the requirements of Correia. In a May 2019 Board decision, the Board denied the Veteran’s claim of entitlement to a rating in excess of 20 percent for his lumbar spine disability. The Veteran appealed the May 2019 Board decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court granted a Joint Motion for Remand (JMR) sought by the Veteran and the Secretary of Veterans Affairs (the Parties). The Parties found that the Board did not provide an adequate statement of reasons or bases for its determinations in that the Board did not discuss medical evidence that was potentially favorable to the Veteran. Specifically, the Board did not address a December 16, 2008 VA treatment note documenting a clinic visit for low back treatment and documenting a finding that the Veteran’s “lumbar spine exhibited ‘[d]ecreased [range of motion] to flexion 20[]degrees.’” Additionally, the Parties found that the record contained evidence suggesting that the Veteran’s lower extremity neurological impairment may have worsened since the last VA examination, but that the Board did not discuss whether such evidence warranted an award of a higher rating for the Veteran’s lower extremity neurological impairment. In October 2020, pursuant to the JMR, the Board remanded these matters for additional development. The Board concludes that there has been substantial compliance with these prior remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Increased Ratings Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent they are sufficient to warrant changes in the evaluations assignable under the applicable rating criteria. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); see also 38 C.F.R. § 3.400(o)(2). Where there is a question as to which of two ratings will be applied, the higher rating will be assigned if the disability picture more closely approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Lumbar Spine Disability The Veteran was initially awarded service connection for his lumbar spine disability by way of an August 2004 rating decision. A noncompensable rating was initially awarded and the Veteran appealed the rating assigned. A February 2006 rating decision was later issued, which increased the rating to 10 percent, effective September 14, 2005. In November 2007, the RO awarded a 20 percent rating, effective July 31, 2007. Following that rating, the Veteran, in January 2008, withdrew the appeal as to the lumbar spine rating. The Veteran then filed this claim for an increased rating in August 2008. Thus, the question before the Board is whether a rating in excess of 20 percent is warranted for the lumbar spine disability during the pendency of this increased rating claim. Initially, the Board recognizes that, effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021) (changing new diagnostic code applicable to plantar fasciitis from 5285 to 5269). VA’s General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C.A. § 5110(g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran’s claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. All diseases and injuries of the spine, other than IVDS, are rated under the general rating formula for diseases and injuries of the spine (general rating formula). IVDS is rated either under the general rating formula or under the Formula for Rating IVDS based on incapacitating episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. The new rating criteria do not involve changes to the specific rating criteria within either the general rating formula or the Formula for Rating IVDS based on incapacitating episodes. However, under the old criteria, Note 6 of the general rating formula directs evaluation of DC 5242 to also see DC 5003. The new rating criteria direct ratings under DC 5242 to see either DC 5003 or 5010. DC 5003 provides that degenerative arthritis established by x-ray findings be rated on the basis of limitation of motion under the appropriate diagnostic codes for the specific joint or joints involved. DC 5010 provides that arthritis, due to trauma, substantiated by X-ray findings, be rated as arthritis, degenerative. 38 C.F.R. § 4.71a. The only change made to DC 5003 in the new regulation is to clarify it as pertaining to degenerative arthritis, other than post-traumatic. The new DC 5010 indicates post-traumatic arthritis is to be rated as limitation of motion, dislocation, or other specified instability under the affected joint, and, if there are two or more joints affected, each rating shall be combined in accordance with § 4.25. The only other change to the regulations pertaining to rating the spine involved DC 5244, traumatic paralysis, which is not applicable in this case. Under the general rating formula, the presently assigned 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, with 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 in height. A 40 percent rating is warranted where forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. The only higher schedular ratings under the general rating formula are 50 percent for unfavorable ankylosis of the entire thoracolumbar spine and 100 percent for ankylosis of the entire spine. In addition, under the formula for rating intervertebral disc syndrome (IVDS) based on incapacitating episodes a 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent rating for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the Formula for Rating IVDS based on incapacitating episodes defines an incapacitating episode as a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. The current version of DC 5243 for IVDS instructs adjudicators to assign that DC only when there is disc herniation with compression and/or irritation of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. The former version provides no such instruction. 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; 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 criteria.”). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. §.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing “for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.” The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In this case, shortly following the Veteran’s August 2008 claim, he was afforded a VA examination in January 2009. The Veteran reported that he experienced constant severe pain, which was aggravated by walking over two miles, standing more than two hours, or sitting more than three hours. The examiner noted the Veteran’s lumbar spine disability was treated with Tylenol, Biofreeze, Sulindac, TENS unit, and epidural injections, having received two injections in 2007, three injections in 2008, and one injection in 2009. The Veteran reported having one incapacitating episode in the past year, lasting three days. He denied radiation of pain and numbness in his legs. He reported no additional limitations with flare-ups. His range of motion in forward flexion was limited to 75 degrees; extension was limited to 10 degrees; right and left lateral flexion was limited to 20 degrees; and right and left lateral rotation was limited to 25 degrees at the time of the examination. Active range of motion did not produce any weakness, fatigue, or incoordination. There was no additional loss of range of motion with repetitive movement times three. Neurological evaluation of the lower extremities was normal. As the Parties noted in the JMR, just a month prior to the January 2009 VA examination, a December 2008 VA treatment record recorded the Veteran’s forward flexion as limited to 20 degrees and extension less than five degrees. At this time, “axial loading” was noted to increase pain and the Veteran had midline and left paraspinal tenderness. His lower extremity strength was normal, recorded as “5/5.” These measurements were not noted or discussed by the January 2009 VA examiner. A July 2009 VA examination report recorded the Veteran’s range of motion with forward flexion limited to 40 degrees; extension limited to 30 degrees; right and left lateral flexion limited to 30 degrees; and right and left lateral rotation limited to 30 degrees. No additional decrease in range of motion was noted with three repetitive movements as related to pain or weakness or excessive fatigability or incoordination. There was no additional decrease in range of motion with flare-ups as this was not described. The examination showed painful motion, but no weakness or tenderness. Neurological findings were normal. There had been no incapacitation over the last 12 months. According to a February 2010 Nursing Note, the Veteran reported a constant, sharp, throbbing pain, which increased with exercise, movement, touching and manipulation, standing, and walking. A July 2014 VA examination report reflected normal range of motion in all fields of testing, including after repetitive testing. Strength and reflex testing were normal, as was the Veteran’s sensory examination. The Veteran reported the occasional use of a walker or cane to assist ambulation. The examiner noted the Veteran to have constant symptoms, without report of flare-ups. The examiner stated that the Veteran’s lumbar spine disability interfered with frequent or heavy bending and lifting. Following the Board’s October 2017 remand, the Veteran was afforded another VA examination in December 2017. At the examination, the Veteran reported he had two flare-ups yearly, and was currently experiencing a flare-up of his lumbar spine disability (with onset on November 21, 2017). The examination showed range of motion on forward flexion limited to 50 degrees; extension limited to 25; right and left lateral flexion and rotation limited to 30 degrees; with no additional loss after repetitive testing. Pain was noted on forward flexion, with evidence of pain on weight-bearing. The examiner found no evidence of ankylosis of the spine, and the Veteran’s IVDS did not require any episodes of physician prescribed bed rest in the past year. The Veteran reported occasionally using a cane or walker to assist ambulation. The examiner described the functional impact (pain, fatigue, weakness, and lack of endurance) of the Veteran’s lumbar spine disability as limiting his ability to perform repetitive lifting, pushing, or pulling. The examiner also opined that the Veteran’s lumbar spine disability was clinically worse than at the June 2014 examination. An April 2018 addendum opinion provided that passive range of motion testing could not be performed as it would be clinically inappropriate. The examiner also stated there was no evidence of pain when the joint was used in non-weight bearing. The Board notes that throughout the period on appeal, the Veteran received numerous injections to treat his lower spine disorder symptoms. See e.g., January 2012 Nursing Note; May 2012 Nursing Note; November 2013 Pain Management Note; October 2018 Nursing Procedure Note. An August 26, 2018 Physician Emergency Department Note shows that the Veteran complained of worsening and unbearable back pain and sciatica. See also August 29, 2018 Nursing Emergency Department Triage Note (complaint of worsening lower back pain for one month); September 5, 2018 Nursing Emergency Department Triage Note (complaining of severe right-side sciatica pain for the past three months). The Veteran underwent a surgical procedure to relieve symptoms related to his lumbar spine condition in October 2018. In November 2020, the Veteran underwent an updated VA spine examination. The examiner noted the Veteran’s report that his surgery helped him to “walk and stand again” as he had been staying in bed for six months leading up to his surgery. The Veteran reported that the surgery helped his bilateral lower extremity sciatica, as he no longer had complaints for that condition as of November 2020. The Veteran reported that his low back pain remained constant, “like a burning/sharp and soreness” with average pain level of seven out of ten, which becomes worse with sitting, standing, or walking for an hour. He held a support when bending over. He reported feeling weakness in his back while shopping or brushing his teeth. Initial range of motion testing during this examination revealed forward flexion to 90 degrees; extension to 20; right and left lateral flexion and rotation to 25, with pain noted to contribute to functional loss on all movements. There was no pain on weight bearing, but pain was localized tenderness or pain on palpation of the joints or soft tissues at L5-S1. There was no additional loss of function or range of motion after three repetitions. The examination was not conducted after repetitive use over time, but the examination was medically consistent with the Veteran’s statements regarding his functional loss under such repeated use. Fatigue and weakness were noted to significantly limit functional ability with repeated use over time, and the examiner estimated that range of motion would be limited to 70 degrees on forward flexion; 15 degrees on extension; right and left lateral flexion and rotation would remain at 25 degrees. The same measurements were estimated for flare-ups. The Veteran had no guarding or muscle spasm of the lumbar spine. Additional factors contributing to disability included interference with sitting, standing, walking, and bending down. Muscle strength was normal in all fields. The Veteran had no ankylosis and no radicular pain upon examination. He had no other neurologic abnormalities. The Veteran was noted to have IVDS, but had not been prescribed bedrest within the prior 12 months. Pain was noted on passive range of motion, but not during non-weight-bearing. Having fully considered the evidence of record, to include all functional impairment shown, the Board finds that the Veteran’s lumbar spine disability manifested with, at worst, forward flexion limited to 20 degrees, and with partial impairment of physical activities during extended time spent walking, bending, sitting, and standing. The Board concludes that while the Veteran’s range of motion on flexion was generally greater than 30 percent, considering his constant level of pain and reduced mobility upon repeated use, his symptoms approximate a 40 percent rating throughout the period on appeal. See DeLuca, 8 Vet. App. at 206-07. The next higher rating of 50 percent is not warranted as the evidence does not show the Veteran to experience unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71. Unfavorable ankylosis is defined as “a condition in which the entire cervical spine, 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.” Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is “always” considered favorable ankylosis. Id. Even considering the Veteran’s most severe symptoms throughout the period on appeal, at worst, his forward flexion was limited to 20 degrees and, even in the months leading up to his October 2018 surgery, the Veteran engaged in yard work activities on at least one occasion. See March 2008 VA PM & R Chiropractor Note. Further, he was generally able to walk, sit, and stand for periods of one hour or less. See 2018 VA treatment records, generally. As such, when considering the functional limitation during a flare-up or on repeated use, the Veteran’s symptoms do not more nearly approximate the entire spine fixed in flexion or extension and with additional symptoms included in Note 5. The Board has considered whether a higher rating could be assigned under the Formula for Rating IVDS Based on Incapacitating Episodes, however, the preponderance evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician. See 38 C.F.R. § 4.71a. Accordingly, and resolving all reasonable doubt in the Veteran’s favor, the Board finds that throughout the pendency of this increased rating claim, entitlement to a rating of 40 percent, but no higher, for the Veteran’s service-connected lumbar spine disorder is granted. 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. 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 which 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. In this case, as noted above, the General Rating Formula provides for associated neurologic abnormalities to be separately rated. The Veteran’s radiculopathy has been separately rated for sciatic nerve paralysis of the bilateral lower extremities, under 38 C.F.R. § 4.124a, DC 8520. The left lower extremity is rated 10 percent disabling from August 24, 2009, and 20 percent from November 20, 2020. The right lower extremity is rated as 10 percent from February 17, 2010, and 20 percent from November 20, 2020. Again, the Veteran filed his increased rating claim in August 2008. Thus, the question before the Board is whether a compensable rating is warranted for the left lower extremity prior to August 24, 2009; whether a rating in excess of 10 percent is warranted from August 24, 2009 to November 19, 2020; and, whether a rating in excess of 20 percent is warranted from November 20, 2020 to the present. The question before the Board as it relates to the right lower extremity is whether a compensable rating is warranted prior to February 17, 2010; whether a rating in excess of 10 percent is warranted from February 17, 2010 to November 19, 2020; and, whether a rating in excess of 20 percent is warranted from November 20, 2020 to the present. At the time of the Veteran’s claim, which was received on August 14, 2008, he reported burning pain, and a feeling of the nerve stinging on the left side. A November 2008 VA examination report shows he was reporting the radiating pain as existing bilaterally. The Veteran was then afforded a VA examination again in July 2009 VA examination, the Veteran reported back pain radiating to his left thigh. No level of severity was described in this report. By the time of the July 2014 examination, the Veteran was reporting radicular pain/paresthesias that radiates to the buttocks/hips and down the lateral aspect of his thigh, left greater than right. The examiner confirmed this as mild involvement of the sciatic nerve, bilaterally. The July 2014 examination report noted no trophic changes, and the Veteran had normal reflexes and sensation bilaterally. Further, the Veteran’s bilateral radiculopathy was estimated, based on the Veteran’s own lay report of symptomatology, to be mild at that time. A VA treatment record dated May 10, 2017, show that the Veteran reported increased lower extremity symptoms after he lifted an adjustable bed. His symptoms included burning, cramping/spasm pain in back and right medial top of buttock and down posterior thigh into the calf, however he had no bladder or bowel incontinence at that time and had full bilateral lower extremity strength. The Board does recognize that mild, bilateral, radiculopathy was again noted in the December 2017 VA examination report. However, subsequent records show the Veteran was seen many times in the emergency department related to his radicular pain. An October 2018 note shows the Veteran reported having to come there almost every week, with pain, numbness, tingling and throbbing sciatic pain such that he can hardly walk. Another October 2018 clinical note shows the Veteran reported a burning and weakness in his right lower extremity for the past several months. The record shows the Veteran underwent lumbar spine surgery later in October 2018. The Board finds that the Veteran’s symptoms worsened by May 10, 2017, ultimately leading to a surgical procedure in 2018, which is noted in the records and also by the subsequent VA examiner. Following the Board’s October 2020 remand, the Veteran was provided a VA examination in November 2020 and the opining clinician provided an addendum report in December 2020 to more specifically respond to the Board’s remand questions. The November 2020 examiner summarized medical findings for the period prior to July 2014, noting that the Veteran’s medical records showed “no radicular symptoms” in to notes from July 2008 and February 2009. Symptoms were noted by at least September 2010 and as continuing through March 2011. The examiner noted that the medical records from March 2011 did not indicate how severe the Veteran’s bilateral radicular pains were at that time. In the December 2020 addendum, the examiner concluded that the Veteran’s sciatica during the appeal period was “sometimes mild and other times moderate, “greater on the right” and “mild on the left.” The Board also recognizes that contemporaneous VA treatment records, which include the Veteran’s lay reports of symptoms over time, show that the Veteran’s right lower extremity radiculopathy worsened more quickly and substantially than the Veteran’s left lower extremity. At the time of the November 2020 examination, the examiner noted that after the Veteran’s 2019 laminectomy surgery, he no longer had radicular symptoms. Moreover, a November 2020 VA clinical note shows the indication that motor and sensory signals were intact in all extremities and the gait was noted as normal. There is no indication of a worsening since that time in either lower extremity. In sum, the evidence cumulatively shows that the Veteran’s right lower extremity radiculopathy worsened more substantially than the Veteran’s left lower extremity during same period, resulting in significant pain and impact to mobility. 38 C.F.R. §§ 4.123 and 4.124. With regard to the left lower extremity, the Board finds the radiculopathy was shown as manifested by radiating pain into the left thigh as early as the August 14, 2008 claim, and it was again confirmed at the VA examination that was ordered after the Veteran’s increased rating claim. At no time prior to May 10, 2017, however, was this left lower extremity radiculopathy shown to be manifested by more than mild pain. The Board, therefore, finds a 10 percent rating, and no higher, is warranted effective August 14, 2008. The left lower extremity increased in severity and is most analogous to a moderate level as of May 10, 2017; thus, a 20 percent rating is warranted effective May 10, 2017, and no earlier. At no time has the left lower extremity exhibited symptoms more analogous to a moderately severe or severe level. Thus, at no time is a rating in excess of 20 percent warranted for the left lower extremity. As for the right lower extremity, similarly, at the time of the November 2008 VA examination, which was ordered in response to the Veteran’s August 2008 claim, the Veteran was reporting radiating pain in both lower extremities. February 17, 2010, VA clinical records show a report of pain rising to the level of 10 out of 10, with the Veteran noted as walking with a cane and having an impaired gait. From this point forward, the records show the right lower extremity increased in severity at a faster pace than the left; thus, the Board presumes it was the right lower extremity that was being discussed at the time of this record. After February 17, 2010 and prior to May 10, 2017, the evidence shows the Veteran’s right lower extremity radiculopathy symptoms are most analogous to moderate; thus, effective February 17, 2010 and prior to May 10, 2017, a 20 percent rating is warranted. However, the right lower extremity increased in severity and is most analogous to a moderately severe level as of May 10, 2017; thus, a 40 percent rating is warranted effective May 10, 2017, and no earlier. At no time has the right lower extremity exhibited symptoms more analogous to a severe level with marked muscular atrophy. Thus, at no time is a rating in excess of 40 percent warranted for the right lower extremity. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. A. ADAMSON Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Hart, 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.