Citation Nr: 21022797 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 14-33 875 DATE: April 19, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to November 21, 2019 for varicose veins of the right lower extremity and in excess of 20 percent from that date is denied. Entitlement to an initial rating in excess of 10 percent prior to September 7, 2014 for thoracolumbar degenerative joint disease (back disability), in excess of 20 percent from September 17, 2014 to November 21, 2019, and in excess of 40 percent from November 21, 2019 is denied. From September 17, 2013, a 10 percent rating for right lower extremity radiculopathy involving the sciatic nerve is granted, subject to the laws and regulations governing the distribution of monetary awards. Entitlement to an initial rating in excess of 10 percent prior to November 21, 2019 for right lower extremity radiculopathy involving the sciatic nerve, and in excess of 20 percent from that date is denied. From September 17, 2013, a 10 percent rating for left lower extremity radiculopathy involving the sciatic nerve is granted, subject to the laws and regulations governing the distribution of monetary awards. Entitlement to a 20 percent rating left lower extremity radiculopathy involving the sciatic nerve, from September 7, 2014 is granted, subject to the laws and regulations governing the payment of monetary awards. Entitlement to a rating in excess of 20 percent for left lower extremity radiculopathy involving the sciatic nerve from September 7, 2014 is denied. Entitlement to a compensable rating prior to November 21, 2019 for right lower extremity radiculopathy involving the femoral nerve, and in excess of 20 percent from that date is denied. Entitlement to a compensable rating prior to November 21, 2019 for left lower extremity radiculopathy involving the femoral nerve, and in excess of 20 percent from that date is denied. FINDINGS OF FACT 1. Prior to November 21, 2019, the Veteran’s varicose veins in the right lower extremity was not shown to have been manifested by persistent edema, incompletely relieved by elevation of extremity, with or without beginning stasis pigmentation or eczema. 2. From November 21, 2019, the Veteran’s varicose veins in the right lower extremity was not shown to have been manifested by persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. 3. Prior to September 7, 2014 the Veteran’s thoracolumbar degenerative joint disease was not shown to have been manifested by forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, a combined range of motion of the thoracolumbar spine less than 120 degrees, muscle spasms severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least two weeks during a 12 month period. 4. From September 7, 2014 to November 21, 2019, the Veteran’s thoracolumbar degenerative joint disease was not shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less; ankylosis; or incapacitating episodes of intervertebral disc syndrome having a total duration of at least four weeks during a 12 month period. 5. From November 21, 2019, the Veteran’s thoracolumbar degenerative joint disease was not shown to have been manifested by ankylosis or incapacitating episodes of intervertebral disc syndrome having a total duration of at least six weeks during a 12-month period 6. Beginning September 17, 2013, the Veteran’s radiculopathy of his right lower extremity involving the sciatic nerve became symptomatic and mild in severity. 7. Prior to July 16, 2014, the Veteran did not demonstrate subjective or objective symptoms of neurological impairment in the right lower extremity related to his service-connected thoracolumbar degenerative joint disease. 8. Prior to November 21, 2019, the Veteran’s right lower extremity radiculopathy involving the sciatic nerve is manifested by no more than mild incomplete paralysis. 9. From November 21, 2019, the Veteran’s right lower extremity radiculopathy involving the sciatic nerve is manifested by no more than moderate incomplete paralysis. 10. Beginning September 17, 2013, the Veteran’s radiculopathy of his left lower extremity involving the sciatic nerve became symptomatic and mild in severity. 11. From September 7, 2014, the Veteran’s left lower extremity radiculopathy involving the sciatic nerve is manifested by moderate incomplete paralysis. 12. Prior to November 21, 2019, the Veteran’s radiculopathy of the right lower extremity did not manifest in involvement of the femoral nerve. 13. From November 21, 2019, the Veteran’s right lower extremity radiculopathy involving the femoral nerve is manifested by no more than mild incomplete paralysis. 14. Prior to November 21, 2019, the Veteran’s radiculopathy of the right lower extremity did not manifest in involvement of the femoral nerve. 15. From November 21, 2019, the Veteran’s left lower extremity radiculopathy involving the femoral nerve is manifest by no more than mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 for varicose veins in the right lower extremity prior to November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code (Code) 7120. 2. The criteria for a rating in excess of 20 for varicose veins in the right lower extremity from November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code (Code) 7120. 3. The criteria for a rating in excess of 10 percent for thoracolumbar degenerative joint disease prior to September 7, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5242-5243. 4. The criteria for a rating in excess of 20 percent for thoracolumbar degenerative joint disease from September 7, 2014 to November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5242-5243. 5. The criteria for a rating in excess of 40 percent for thoracolumbar degenerative joint disease from November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code (Code) 5242-5243. 6. The criteria for a 10 percent rating for right lower extremity radiculopathy involving the sciatic nerve have been met from September 17, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a Diagnostic Code (Code) 8520. 7. The criteria for an initial rating in excess of 10 percent for right lower extremity radiculopathy involving the sciatic nerve prior to November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8520. 8. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy involving the sciatic nerve from November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8520. 9. The criteria for a 10 percent rating for left lower extremity radiculopathy involving the sciatic nerve have been met from September 17, 2013. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a Diagnostic Code (Code) 8520. 10. The criteria for an initial rating in excess of 10 percent for left lower extremity radiculopathy involving the sciatic nerve prior to September 7, 2014 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8520. 11. The criteria for a 20 percent rating for left lower extremity radiculopathy involving the sciatic nerve have been met from September 7, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8520. 12. The criteria for a compensable rating for right lower extremity radiculopathy involving the femoral nerve prior to November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8526. 13. The criteria for a rating in excess of 20 percent for right lower extremity radiculopathy involving the femoral nerve from November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8526. 14. The criteria for a compensable rating for left lower extremity radiculopathy involving the femoral nerve prior to November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8526. 15. The criteria for a rating in excess of 20 percent for left lower extremity radiculopathy involving the femoral nerve from November 21, 2019 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1971 to September 1974.     In November 2017, he testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The appeal was most recently before the Board in July 2018 when it was remanded for further development.  The Board finds there has been substantial compliance with the remand directives and the Board will proceed to adjudication.  Stegall v. West, 11 Vet. App. 268 (1998).  In an interim April 2020 rating decision, increased ratings were assigned to the following disabilities, each effective November 21, 2019. The rating of the right lower extremity varicose veins was increased to 20 percent; back disability to 40 percent; right lower extremity radiculopathy affecting the sciatic nerve to 20 percent, and; left lower extremity radiculopathy affecting the sciatic nerve to 20 percent. The ratings are less than the maximum schedular ratings; the appeals are continued. AB v Brown, 6 Vet. App. 35 (1993). In the April 2020 rating decision, granted service connection was granted and separate 20 percent ratings assigned for femoral nerve radiculopathy of both the right and left lower extremities, effective November 21, 2019. These disabilities are part of the increased rating claims for peripheral radiculopathy of the bilateral lower extremities and are before the Board. Increased Rating Disability ratings are determined by comparing the Veteran’s symptoms with criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. Separate Codes identify the various disabilities. 38 C.F.R. § Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). Varicose veins of the right lower extremity The Veteran filed his claim in September 2013. The right lower extremity varicose veins are rated as 10 percent disabling from September 17, 2013 and 20 percent from November 21, 2019. 38 C.F.R. § 4.104, Diagnostic Code (Code) 7120. The Board concludes that higher ratings are not warranted for any period on appeal. Under Code 7120, a 10 percent rating is warranted for intermittent edema of the extremity or aching and fatigue in the leg after prolonged standing or walking, with symptoms relieved by elevation of the extremity or compression hosiery. A 20 percent rating is warranted for persistent edema, incompletely relieved by elevation of the extremity, with or without beginning stasis pigmentation or eczema. A 40 percent rating is warranted for persistent edema and stasis pigmentation or eczema, with or without intermittent ulceration. A 60 percent rating is warranted persistent edema or subcutaneous induration, stasis pigmentation or eczema, and persistent ulceration. A 100 percent rating is warranted massive board-like edema with constant pain at rest. 38 C.F.R. § 4.104, Code 7120 On December 2013 VA Varicose Veins Disability Benefits Questionnaire (DBQ) the varicose veins were manifested by asymptomatic palpable varicose veins and intermittent edema, both of the right lower extremity. The examiner noted the Veteran had never been diagnosed with peripheral vascular disease, aneurysm of any large artery, arteriosclerosis obliterans, or thormbo-angiitis obliterans (Buerger’s Disease). He did not have arteriovenous fistula, angioneurotic edema or erythromelalgia. He did not use any assistive device as a normal mode of locomotion. The examiner opined that there was no functional impairment of an extremity that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner also opined that the Veteran’s varicose veins impacted his ability to work as it limited prolonged standing. In his September 2014 VA Form 9 Substantive Appeal, the Veteran reported that he was advised by his doctor to avoid crossing his legs, not to sit with his leg bent, and to keep his legs elevated as much as possible. He reported that he had daily leg swelling, and aching pain from his right foot to his groin. At the November 2017 hearing, the Veteran testified that his varicose veins had gotten worse, but he had no active treatment other than wearing compression stockings. He testified that he was advised by his medical providers not to sit bent leg and that he always has his legs up. On November 2019 VA Varicose Veins DBQ, there was swelling on the right leg and pain in the groin near staples in the Veteran’s thigh. His pain was dependent on the position he sits, and he tries to elevate his legs and not to dangle them. He also had problems when driving long distances. Symptoms affecting the right leg included aching and fatigue in his leg after prolonged standing and walking. He had a persistent edema that is incompletely relieved by elevation of extremity. No stasis pigmentation or eczema was noted. He constantly used compression hose for his varicosities. The examiner opined that there was no functional impairment of an extremity that no effective function remains other than that which would be equally well served by an amputation with prosthesis. The examiner also opined that the Veteran’s varicose veins impacted his ability to work as he would not be able to stand or walk for more than 30 minutes, would need to have at least 4 to 6 breaks a day, and would not be able to sit for 6 hours a day because of his legs/groin would be flexed. The examiner opined that he was not able to work a sedentary job. The examiner noted that on a previous job where he sat and drove a car for 8 hours a day he developed a blood clot which required hospitalization. In an April 2020 rating decision, the rating was increased from 10 percent to 20 percent, effective November 21, 2019, the date of the VA DBQ. Based on a review of the record, the Board concludes that higher ratings are not warranted for any period on appeal. For the period prior to November 21, 2019, criteria for a rating in excess of 10 percent are not met or more closely approximated. The disability was manifested by an intermittent edema. There were no findings of persistent edema, incompletely relieved by elevation, as contemplated by the higher 20 percent rating. For the period from November 21, 2019, the criteria for a rating in excess of 20 percent are not met or more closely approximated. The varicose veins were manifested by a persistent edema that is incompletely relieved by elevation of extremity. There were no findings that the Veteran had stasis pigmentation or eczema, as contemplated by the higher 40 percent rating. Back disability The Veteran’s claim has been pending since September 2013. His back disability is rated as 10 percent disabling from September 17, 2013; 20 percent from September 7, 2014, and; 40 percent from November 21, 2019 under 38 C.F.R. § 4.71a, Diagnostic Code (Code) 5242-5243. The Board concludes that higher ratings are not warranted for the Veteran’s back disability for any period on appeal. Disability of the musculoskeletal system is primarily the inability, due to damage or infection in the parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. In evaluating disabilities of the musculoskeletal system, it is necessary to consider, along with the schedular criteria, functional loss due to flare-ups of pain, fatigability, incoordination, pain on movement, and weakness. DeLuca v. Brown, 8 Vet. App. 202 (1995). Weakness is as important as limitation of motion, and a part which becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. Pain on movement, swelling, deformity or atrophy of disuse as well as instability of station, disturbance of locomotion, interference with sitting, standing and weight bearing are relevant considerations for determination of joint disabilities. See 38 C.F.R. § 4.45. These determinations are, if feasible, be expressed in terms of the degree of additional loss-of-motion due to any weakened movement, excess fatigability, incoordination, flare-ups, or pain. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Disabilities of the spine are to be evaluated under the General Rating Formula for Diseases and Injuries of the Spine (outlined below). 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5242. Intervertebral disc syndrome (IVDS) will be evaluated under the general formula for rating diseases and injuries of the spine or under the formula for rating intervertebral disc syndrome based on incapacitating episodes (outlined below), whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a, Code 5243. Any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment are to be evaluated separately under the appropriate diagnostic code(s). Id. at Note (1). During the pendency of the Veteran’s claim and appeal, the criteria for rating musculoskeletal disabilities were changed by an amendment to the rating schedule that became effective on February 7, 2021. 85 Fed. Reg. 76, 453 (November 30, 2020). The amendments provide that the Board should apply the criteria which are more favorable to the Veteran. The amended rating criteria, if favorable to the claim, can be applied only for periods from the effective date of the regulatory change; however, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The changes effective February 7, 2021 under 38 C.F.R. § 4.71a, Codes 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under Code 5243 and all other intervertebral disc disabilities under 5242. As such, Code 5242 now reflects Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010); Code 5243 now reflects Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses. The changes do not impact the general rating formula or the rating criteria specific to IVDS and evaluation of the back disability under the pre- and post-February 7, 2021 regulations is not required. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 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 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Code 5235-5242. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, normal extension is zero to 30 degrees, normal left and right lateral flexion is zero to 30 degrees, and normal left and right lateral rotation is zero to 30 degrees. 38 C.F.R. § 4.71a, Codes 5235-5242, Note (2). All measured ranges of motion are to be rounded to the nearest five degrees. 38 C.F.R. § 4.71a, Codes 5235-5242, Note (4). Under the rating criteria in effect prior to February 2021, For purposes of evaluations under Code 5243 based on IVDS, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Note (1). Under the new criteria, Code 5243 is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; Code 5242 is assigned for all other disc diagnoses; the formula for rating IVDS is unchanged. In a November 2013 VA MRI note, degenerative disc disease and spondylosis of at the L3-4, L4-5, and L5-S1 vertebrae, mild bilateral inferior foraminal narrowing L3-4 and L4-5 vertebrae with mild to moderate bilateral neural foraminal narrowing at L5-S1 vertebrae. On March 2014 VA back examination, mild thoracolumbar degenerative joint disease was diagnosed. The Veteran reported having flare-ups of his back disability where he was limited in weight bearing, heavy lifting, and repetitive bending. On range of motion testing, forward flexion, extension, right lateral rotation, left lateral rotation, right lateral flexion, and left lateral flexion were all normal. There was no evidence of pain on motion. The Veteran was able to perform repetitive use testing with 3 repetition and there was no additional loss of range of motion. The Veteran had pain on movement and interference with sitting, standing, and/or weight bearing after repetitive use. He did not have localized tenderness, pain, guarding, or muscle spasms. Muscle strength and reflex testing were normal bilaterally. The Veteran did not have muscle atrophy. The Veteran did not have IVDS of the thoracolumbar spine. He did not use an assistive device to help him walk. The examiner opined that the Veteran’s back disability impacted his ability to work because it limits his heavy lifting and repetitive bending. In an April 2014 rating decision service connection for mild thoracolumbar degenerative joint disease was granted and assigned a 10 percent rating, effective September 17, 2013, his date of claim. On September 2014 VA examination, the diagnoses were thoracolumbar degenerative joint disease and lumbar intervertebral disc disease with radiculopathy. The Veteran reported having flare-ups of his back disability, which included pain and stiffness, 75 times per year, lasting 2 to 10 days per flare. During flare-ups there was pain and limited range of motion that impaired his ability to bend, lift, carry, stand, or sit for prolonged periods. On range of motion testing forward flexion was to 40 degrees with objective evidence of painful motion at 40 degrees; extension was to 10 degrees, with objective evidence of painful motion at 10 degrees; right lateral flexion was to 10 degrees, with evidence of painful motion at 10 degrees; left lateral flexion was to 10 degrees, with evidence of painful motion at 10 degrees; right lateral rotation was to 10 degrees, with evidence of painful motion at 10 degrees; and left lateral rotation was to 10 degrees, with evidence of painful motion at 10 degrees. The Veteran was able to perform repetitive use testing with 3 repetition and there was no additional loss of range of motion. After repetitive use testing, the Veteran had less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and/or weight bearing. The examiner noted that the Veteran had pain during flare-ups but they were unable to assess the estimated degrees of additional range of motion loss during a flare-up because the Veteran was unable to replicate the estimated limitation during the examination. The Veteran had tenderness to palpation of the lumbar paraspinal muscles bilaterally. He had guarding resulting in abnormal spinal contour, such as scoliosis, revered lordosis, or abnormal kyphosis. The examiner noted that the Veteran’s diminished reflexes was due to IVDS of the lumbar spine, but they specifically noted the Veteran did not have IVDS. The Veteran occasionally used a cane to help him walk. The examiner opined that the Veteran’s back disability impacted his ability to work: he could only lift 20 pounds intermittently; could only walk a quarter mile at a time; could only walk for 1 hour during an 8 hour day; could only sit or stand for 30 minutes at a time; and could only sit or stand for 4 hours during an 8 hour day. The examiner opined that the Veteran was not able to work in occupations that required lifting, carrying, or bending at the waist, but he was able to work in a sedentary occupation such as an office or administrative. In a January 2015 VA treatment note, the Veteran reported that his private doctor is sending him for back injections since his neuropathy was getting worse. In a July 2015 rating decision, the Veteran’s rating for his back disability was increased from 10 percent to 20 percent, effective September 7, 2014, the date of the VA examination. In his August 2015 VA Form 9 substantive appeal, the Veteran reported that his back disability was worse than the diagnostics indicated. He reported he received treatment weekly just to keep him ambulatory. He reported that he had some form of assistance in every aspect of his daily life due to his disabilities and he is incapacitated in every way of life. In a December 2016 VA pain management treatment note, the Veteran reported continuing back pain. On physical examination, he was noted to be walking with a slow antalgic gait without the use of any assistive devices. On range of motion testing, flexion was to 45 degrees and extension was to 5 degrees, with a moderate amount of pain on both movements. At the November 2017 hearing, the Veteran testified that his back had gotten worse in the prior three years. He testified that he had become a fall hazard due to his back and related arthritis. He described he was only able to stand for less than an hour, and his gait had shortened so he could not walk one mile. His mailbox was a quarter mile from his house and he could not make the round trip. He testified the Veteran had private chiropractor treatment for his back disability. He testified that he had back injections that only worked for 60 days. He also testified he occasionally used a cane to help him walk. On November 2019 VA examination, the Veteran reported pain in his lumbar spine with spasms which cause him to walk unevenly. He reported having flare-ups of his back disability when he steps and his left leg will give out from the radiating back pain. He reported that he had functional impairment due to his back disability as it resulted in an inability to walk or stand and required bed rest. He also reported he was unable to bend over at the waist. On range of motion testing forward flexion was to 40 degrees, extension was to 10 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 10 degrees, right lateral rotation was to 15 degrees, and left lateral rotation was to 15 degrees. Pain was noted on all range of motion that caused functional loss, but the examiner did not note where pain began and ended. There was evidence of moderate pain on palpation of the lumbar spine. The Veteran was able to perform repetitive use testing with at least three repetitions. On repetitive use range of motion testing, forward flexion was to 35 degrees, extension was to 10 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 10 degrees, right lateral rotation was to 10 degrees, and left lateral rotation was to 10 degrees. Pain, fatigue, weakness, lack of endurance, and incoordination caused this functional loss. The Veteran was not examined immediately after repetitive use over time, but the examiner was able to describe functional loss in terms of range of motion. After repetitive use, the examiner estimated forward flexion was 30 degrees, extension was to 10 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 10 degrees, right lateral rotation was to 10 degrees, and left lateral rotation was to 10 degrees. The examination was not being conducted during a flare-up and the examiner opined that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-ups. The examiner noted that that pain, weakness, fatigability or incoordination significantly limited functional ability with flare-ups. During flare-ups, the examiner estimated forward flexion was 20 degrees, extension was to 10 degrees, right lateral flexion was to 10 degrees, left lateral flexion was to 10 degrees, right lateral rotation was to 10 degrees, and left lateral rotation was to 10 degrees. The Veteran had no muscle spasms or guarding. He also had contributing factors of less movement than normal due to ankylosis, limitation or blocking; weakened movement due to muscle or of peripheral nerves; deformity; interference with sitting; and interference with standing. He had chronic pain with stiffness, with standing, sitting, and weakness with less motion. The Veteran did not have muscle atrophy or ankylosis. The Veteran had IVDS of the thoracolumbar spine with episodes of bed rest prescribed by a physician having a total duration of at least 2 weeks but less than 4 weeks during the prior 12 months. The examiner noted that this was based on medical history described by the Veteran only, without documentation. The Veteran reported that he had a weekly visits to a chiropractor who advised him to take bed rest over the previous year, and he usually took 2 to 3 days of bed rest at a time, totaling about 3 weeks. He regularly used a brace and occasionally used a cane to help him walk because of his back condition. The examiner opined that the Veteran’s back disability impacted his ability to work as he was unable to bend over at the waist due to back pain; he was unable to squat because he was unsteady and had difficulty getting back up from the ground; and he was limited to weight restriction of 10 pounds. In an April 2020 rating decision, the rating was increased from 20 percent to 40 percent, effective November 21, 2019, the date of the November 2019 VA examination. Based on a review of the record, the Board concludes that higher ratings for the Veteran’s back disability are not warranted for any period on appeal. For the period prior to September 7, 2014, an initial rating in excess of 10 percent is not warranted as there is no evidence of flexion to greater than 30 degrees but not greater than 60 degrees; or the combined range of motion not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Range of motion was normal on March 2014 VA examination, with evidence of pain after repetitive use, but no evidence of muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. For the period from September 7, 2014 to November 21, 2019, a rating in excess of 20 percent is not warranted. The record does not reflect that during this period that forward flexion was limited to 30 degrees and there was no evidence of ankylosis. Even with consideration of pain on motion, forward flexion was to, at worst, 40 degrees. See September 2014 examination. For the period from November 21, 2019, a rating in excess of 40 percent is not warranted. Even considering the Veteran’s lay reports of symptoms and noted functional loss, the degree of additional limitation reflected during flare-ups and after repetitive use testing would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. The examiner specifically noted that the estimated loss of motion as a result of flare-ups would be flexion to 20 degrees. 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). The Veteran retained movement on November 2019 VA examination and the examiner specifically found he did not have ankylosis. Additionally, the Board has considered whether higher ratings are warranted under Code 5243 for IVDS. While the November 2019 VA examiner indicated the Veteran had IVDS with episodes of bed rest, the examiner based their findings of bed rest on the Veteran’s lay report that his private chiropractor advised him to take bed rest, and is no evidence in the record during the period on appeal of bed rest prescribed by a physician. Accordingly, higher ratings are not warranted for any period under Code 5243 for IVDS. Radiculopathy The Veteran seeks higher ratings for his service-connected radiculopathy affecting both the femoral and sciatic nerves in each lower extremity. Radiculopathy of the sciatic nerves for each extremity is rated as 10 percent from July 16, 2014 and 20 percent from November 21, 2019 under 38 C.F.R. § 4.124a Code 8520. Radiculopathy of the femoral nerves of each extremity is rated as 20 percent from November 21, 2019 under 38 C.F.R. § 4.124a Code 8526. The neurological ratings are part of the Veteran’s back claim, which has been pending since September 2013. The Board will consider the ratings for the entire appeal period, which includes whether compensable ratings are warranted before any of the disabilities prior to the effective dates assigned by the AOJ; July 2014 and November 2019. 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 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. Code 8526 provides for ratings for paralysis of the anterior crural nerve (femoral). Under Code 8526, complete paralysis of the nerve (paralysis of quadriceps extensor muscles) is rated as 40 percent. Disability ratings of 30 percent, 20 percent, and 10 percent are assignable for incomplete paralysis which is moderately-severe, moderate, or mild in degree. 38 C.F.R. § 4.124a, Code 8526. 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). In a November 2013 VA treatment note, the Veteran denied any neurological problems. In a January 2014 private examination of the lower extremity, the provider noted the Veteran had reported bilateral feet pain, numbness, and burning sensation of several months’ duration. Sensory examination revealed normal proprioception, light touch, and pain stimuli. Motor examination revealed normal muscle strength testing for the bilateral lower extremity. Muscle strength reflexes were 2+ symmetrical for Achilles, and straight leg raising was positive bilaterally. The provider found there was evidence for severe bilateral L5, S1 radiculopathy with motor axonal loss. On March 2014 VA back examination, muscle strength testing, reflexes, and sensory examination were all normal bilaterally. Straight leg testing was negative bilaterally. The examiner found the Veteran did not have radicular pin or any other signs or symptoms due to radiculopathy. In a May 2012 private chiropractor’s treatment note, received in July 2014, the private provider noted that chiropractic manipulation of the spine was administered to free irritated nerves on the spinal level. On September 2014 VA back examination, muscle strength testing was normal. Reflexes were hypoactive bilaterally in the knees and normal bilaterally for the ankles. There was decreased sensation to light touch bilaterally for the lower leg/ankle (L4/L5/S1) and the foot/toes (L5); normal for the thigh/knee and upper anterior thigh. Straight leg testing was positive bilaterally. The Veteran had moderate dull intermittent pain of the left lower extremity; mild paresthesias of the bilateral lower extremities; and moderate numbness of the bilateral lower extremities. The examiner diagnosed sciatic nerve involvement; mild on the right, moderate on the left. In an April 2015 rating decision, service connection for radiculopathy of the sciatic nerve, of the right and left lower extremity was granted and assigned a 10 percent rating from July 16, 2014, the date the private chiropractor treatment note was received. A December 2015 VA treatment note documented the Veteran’s report of burning in both feet and feeling like he was walking on glass. A review of an EMG of the lower extremities performed in 2014 reflected severe bilateral L5 and S1 radiculopathy. On physical examination, muscle strength was 4/5, bilaterally; skin sensation to light touch revealed generalized diminution in the sensory dermatomal levels of L5 and S1 vertebrae in the bilateral lower extremities. Deep tendon reflexes of the lower extremities revealed the patellar and Achilles reflexes were not obtainable bilaterally with enhancement. In an April 2017 VA neurology consultation, sensory nerve action potentials were normal bilaterally. The provider noted that this was essentially a normal electrophysiological study of the lower extremities. On November 2019 VA examination, muscle strength testing showed hip flexion as 4/5 bilaterally; knee extension, 5/5 bilaterally; ankle plantar flexion 5/5 bilaterally; ankle dorsiflexion 5/5 bilaterally; and great toe extension 4/5 bilaterally. On reflex examination, both knees were normal; ankles, hypoactive. On sensory examination, the Veteran had decreased sensation of the foot and toes bilaterally. The remainder of sensory testing was normal. Straight leg raise testing was positive bilaterally. The Veteran reported symptoms of moderate constant pain bilateral; moderate, usually dull intermittent pain, bilateral; moderate paresthesias of the right lower extremity and severe paresthesias of the left lower extremity; and moderate numbness bilaterally. The examiner identified involvement of the femoral and sciatic nerves bilaterally, characterized as of moderate severity on the righty, severe on the left. In an April 2020 rating decision, the ratings for the right and left sciatic nerve impairment was increased from 10 percent to 20 percent, effective November 21, 2019, the date of the VA examination. Additionally, service connection was granted and separate 20 percent ratings assigned for femoral nerve impairment in each extremity, right and left lower extremities were granted and assigned a 20 percent evaluation, effective November 21, 2019. Sciatic Nerve Based on a review of the record, the Board finds compensable ratings are warranted for both the right and left lower extremity radiculopathy involving the sciatic nerve from September 17, 2013. The initial 10 percent rating was effective July 16, 2014, the date of receipt of the May 2012 private chiropractor’s treatment note. While on March 2014 VA examination the examiner found no symptoms due to radiculopathy and straight leg testing was negative bilaterally, this May 2012 private chiropractor’s note and a January 2014 treatment note included the Veteran’s subjective complaints of bilateral feet pain, numbness, and burning. As there is evidence of neurological manifestations of his back disability prior to July 16, 2014, the Board finds 10 percent ratings are warranted for his right and left lower extremities from September 17, 2013, the date of claim for the back disability. The Board further finds that a rating in excess of 10 percent is not warranted for impairment of the right sciatic nerve prior to November 21, 2019 and in excess of 20 percent is not warranted from that date. For the period prior to November 21, 2019, the symptoms affecting the right lower extremities included decreased sensation, numbness, paresthesias, diminished sensation to touch, and tenderness. While the January 2014 provider characterized symptoms as severe, the September 2014 VA examiner characterized them as mild, and throughout this period strength and reflexes were normal on examination. Thus, the Board finds that the criteria for a higher 20 percent rating for moderate incomplete paralysis are not more closely approximated for the period prior to November 21, 2019. For the period from November 21, 2019, the symptoms affecting his right lower extremity included moderate constant pain, moderate intermittent pain, moderate paresthesias, moderate numbness, decreased muscle strength in his hip and great toe, decreased reflexes in his ankle, and decreased sensation. Additionally, the November 2019 VA examiners characterized such symptoms as moderate in severity. At no point during this period did the Veteran have muscle strength rated as less than 4/5, nor were reflexes or sensation to light touch absent. Thus, the Board finds that the criteria for a higher 40 percent rating for moderate severe incomplete paralysis are not more closely approximated for the period from November 21, 2019. For the left lower extremity sciatic nerve, the Board finds that a rating higher than 10 percent prior to September 7, 2014 is not warranted; a 20 percent rating, but no higher, is warranted from that date. Prior to September 7, 2014, symptoms affecting the left lower extremity included reports of pain, numbness and burning sensation. While the January 2014 private provider characterized his symptoms as severe, the March 2014 VA examination noted no symptoms of radiculopathy. Throughout this period, strength and reflexes were normal on examination. Thus, the Board finds that the criteria for a higher 20 percent rating for moderate incomplete paralysis of the sciatic nerve are not more closely approximated for the period prior to September 7, 2014. The Board finds that the criteria for a higher 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the lower extremity have been met beginning September 7, 2014, the date of the VA examination. That examination showed decreased sensation to touch for the lower leg/ankle and foot/toes, moderate dull intermittent pain, moderate numbness, and mild paresthesias. The September 2014 VA examiner characterized the Veteran’s symptoms as moderate in severity. The Veteran continued to have decreased muscle strength, decreased reflexes, decrease sensation and paresthesias during this period. Accordingly, the Board finds that the Veteran’s symptoms more nearly approximate moderate incomplete paralysis for his left lower extremities and a 20 percent rating is warranted for his left lower extremity radiculopathy involving the sciatic nerve from September 7, 2014 A higher rating 40 rating is not warranted for the Veteran’s left lower extremity for the period from September 7, 2014, as the record does not reflect that the radiculopathy nearly approximated moderate severe incomplete paralysis at any point during this period. On November 2019 VA examination, there was moderate constant pain, moderate dull intermittent pain, moderate numbness, and severe paresthesias. While the VA examiner characterized these symptoms as severe, at no point during this period were reflexes were absent, there was no muscle atrophy and only a mild decreased strength for only hip flexion and great toe extension. Absent findings of a combination of more significant sensory changes and reflexes or motor changes, the criteria for a 40 percent rating for moderately-severe incomplete paralysis are not more closely approximated for the period from September 7, 2014. Femoral Nerve Based on a review of the record, the Board concludes that a compensable rating is not warranted for the period prior to November 21, 2019, and ratings in excess of 20 percent are not warranted from that date for femoral nerve impairment affecting either extremity. Before November 21, 2019, there is no competent evidence of record of femoral nerve impairment. Throughout the period there was normal sensation of the upper anterior thigh (the femoral nerve involves the quadricep muscles.) Further, on September 2014, the VA examiner only specifically noted involvement of the sciatic nerve. From November 21, 2019, a rating higher than 20 percent is not warranted for femoral nerve impairment of either extremity. Throughout this period, the Veteran’s symptoms affecting his right lower extremity included moderate constant pain, moderate intermittent pain, moderate paresthesias, moderate numbness, decreased muscle strength in his hip and great toe, decreased reflexes in his ankle, and decreased sensation. The November 2019 VA examiners characterized symptoms affecting the right lower extremity as moderate in severity. Throughout this period, symptoms affecting the left lower extremity included moderate constant pain, moderate dull intermittent pain, moderate numbness, and severe paresthesias. The November 2019 VA examiners characterized those symptoms as severe in severity. However, at no point during this period were reflexes were absent, there was no muscle atrophy and only a mild decreased strength for only his hip flexion and great toe extension. Absent findings of a combination of more significant sensory changes and reflexes or motor changes, the criteria for a 30 percent rating for severe incomplete paralysis are not more closely approximated for either extremity for the period from November 21, 2019. In deciding the claims, the Board has also considered the Veteran’s lay statements that his varicose veins of the right lower extremity, back disability, and radiculopathy of the right and left lower extremity symptoms were worse than currently evaluated. He is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disabilities has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which his disabilities are evaluated. As such, the Board finds these records to be more probative than the Veteran’s subjective complaints of increased symptomatology. The Board has considered the doctrine of reasonable doubt but has determined that it is inapplicable, other than to the extent of allowing an increase in the ratings to for radiculopathy of the right and left upper extremities, sciatic nerve because otherwise the preponderance of the evidence is against higher ratings. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7, 4.71a, 4.104, 4.124a. M.E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Eric Struening 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.