Citation Nr: 21025197 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 11-09 782 DATE: April 27, 2021 ORDER 1. For prior to March 9, 2007, entitlement to a 20 percent (but no higher) rating is granted for the Veteran’s low back disability from [the earlier effective date of] July 10, 2006, subject to the regulations governing payment of monetary awards; entitlement to further increases in the staged (20 percent from May 1, 2007 to July 1, 2020, and 40 percent from that date) ratings assigned for the low back disability is denied. 2. Entitlement to increases in the staged (10 percent prior to July 1, 2020, and 20 percent from that date) ratings assigned for left lower extremity radiculopathy, is denied. 3. Entitlement to an effective date prior to May 1, 2007 for the award of service connection for left lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to March 9, 2007, the Veteran’s low back disability was reasonably shown to have been manifested by forward flexion of thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; at no time prior to July 1, 2020, was it shown to have been manifested by forward flexion of the thoracolumbar spine limited to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine or by incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in a 12 month period; from July 1, 2020 the disability is at no time shown to have been manifested by unfavorable ankylosis of the entire thoracolumbar spine or by incapacitating episodes having a total duration of at least 6 weeks in a 12 month period; separately ratable neurological manifestations other than left lower extremity sciatic radiculopathy (and left lower extremity femoral radiculopathy) are not shown. 2. Prior to July 1, 2020, the Veteran’s left sciatic radiculopathy was not shown to be more than mild; from that date it is not shown to have been more than moderate. 3. In July 2007, the Veteran filed a claim for an increase in the rating assigned for a low back disability (which encompassed entitlement to a separate rating for left lower extremity radiculopathy as a neurological manifestation of the Veteran’s service connected low back disability). 4. Left lower extremity radiculopathy (although service-connected effective May 1, 2007) was not clinically diagnosed prior to November 21, 2008, and was not shown prior to May 1, 2007. CONCLUSIONS OF LAW 1. For prior to March 9, 2007, a 20 percent (but no higher) rating is warranted for the Veteran’s low back disability from [the earlier effective date of] July 10, 2006; prior to July 1, 2020, a rating in excess of 20 percent for the disability was not warranted; from July 1, 2020, a rating in excess of 40 percent is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes (Codes) 5003, 5010, 5242, 5243. 2. Prior to July 1, 2020, a rating in excess of 10 percent for left lower extremity radiculopathy was not warranted; from that date a rating in excess of 20 percent is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.71a, Code 8520. 3. An effective date prior to May 1, 2007, for the award of service connection and a separate 10 percent rating for left lower extremity radiculopathy is not warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from September 1996 to November 2003, including tours of duty in Southwest Asia in 1998 and in Afghanistan in 2002. This matter is before the Board of Veterans’ Appeals (Board) on appeal of December 2007 and November 2016 Department of Veterans Affairs (VA) rating decisions. The December 2007 rating decision, outside of granting a temporary total rating under 38C.F.R. §4.30, for convalescence following surgery, from March 9, 2007 through April 2007, denied a rating in excess of 10 percent for lumbar spondylosis. The November 2016 rating decision granted a 20 percent rating for lumbar spondylosis effective September 30, 2016, and granted service connection for left lower extremity radiculopathy, rated10 percent, effective November 21, 2008. Upon the Veteran’s appeal for earlier effective dates and higher ratings, an August 2018 Decision Review Officer (DRO) decision granted a 20 percent rating for lumbar spondylosis retroactive to May 1, 2007 and granted an effective date of May 1, 2007 for the award of service connection for left lower extremity radiculopathy. In April 2016, a hearing was held before the undersigned in Washington, D.C.; a transcript is in the record. In June 2016 and February 2020, the case was remanded for additional development. An interim ( July 2020 ) DRO decision granted service connection for left lower extremity femoral nerve radiculopathy rated 20 percent, service connection for residual scar, status post spinal fusion rated 0 percent, and an increased (to 40 percent) rating for the low back disability, and increased the rating for left lower extremity radiculopathy to 20 percent, all effective July 1, 2020. The case was again remanded for further development in November 2020. 1. Entitlement to a 20 percent rating for low back disability is granted from [the earlier effective date of] July 10, 2006; entitlement to a rating in excess of 20 percent for the disability prior to July 1, 2020 is denied; entitlement to a rating in excess of 40 percent for the disability from July 1, 2020 is denied. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Pertinent general policy considerations include: interpreting examination reports in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When evaluating a service-connected disability based on limitation of motion, the Board must take into consideration functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). In DeLuca, the Court held that a diagnostic code based on limitation of motion does not subsume 38 C.F.R. §§ 4.40 and 4.45 and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flare-ups. Id. A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the veteran. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Nonetheless, a rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the “pain must affect some aspect of ‘the normal working movements of the body’ such as ‘excursion, strength, speed, coordination, and endurance,’” as defined in 38 C.F.R. § 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, (as is the case with the low back and left lower extremity radiculopathy claims) the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran filed the instant claim for increase on July 10, 2007. Consequently, the evaluation period begins July 10, 2006, one year prior. The Veteran’s low back disability was previously rated under 38 C.F.R. § 4.71a, Code 5242 (for lumbar spine degenerative arthritis, under Codes 5003 and 5010) and is currently rated under the General Rating Formula for Diseases and Injuries of the Spine (General Formula). Under Code 5010, for rating arthritis due to trauma (post-traumatic arthritis), substantiated by X-ray findings, consequent disability is rated as degenerative arthritis under Code 5003. Under Code 5003, degenerative arthritis is rated on the basis of limitation of motion under the appropriate Code for the specific joint involved. When, limitation of motion of the specific joint involved is noncompensable under the appropriate Code, a rating of 10 percent is warranted for each major joint or group of minor joints affected by limitation of motion, to be combined, not added under Code 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. . Code 5003 indicates these 20 and 10 percent ratings based on X-ray findings will not be combined with ratings based on limitation of motion. In addition, these ratings will not be utilized in rating conditions listed under Codes 5013 to 5024, inclusive. 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. The General Formula provides for: a 20 percent rating when forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, with 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 when forward flexion of the thoracolumbar spine is limited to 30 degrees or less, or with favorable ankylosis of the entire thoracolumbar spine; a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine; and a 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Codes 5242-5235. Pertinent Notes following include: Note (1) any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Intervertebral disc syndrome (IVDS) may be rated under either the General Formula (discussed above) or alternatively under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever 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. (As incapacitating episodes of disc disease (bedrest prescribed by a physician) are not shown, further discussion of these criteria is not necessary). An April 2006 private treatment record notes that range of motion (ROM) testing showed lumbar spine forward flexion was to 45 degrees. An October 2006 private treatment record notes that ROM testing showed lumbar spine forward flexion to 45 degrees. A November 2006 private treatment record notes that the Veteran reported worsening back pain and new left leg numbness, weakness, and pain. The examiner indicated that lumbar spine forward flexion had decreased (but the ROM was not noted). A lumbar spine MRI showed degenerative disc disease with a disc herniation and caudal migration L4-5 that had increased since the April 2006 MRI, minimal spinal stenosis, and compression of the L5 nerve root, and degenerative disc disease with small central disc protrusion or spur L5-S1. A February 2007 private treatment record notes that the Veteran reported that his lower back pain and left leg pain had increased in severity since September 2006 and his left leg weakness had increased since October 2006. It was noted that a new lumbar spine MRI showed progression of lumbar disc disease. L4-5 disc herniation was increased in size and was eccentric to the left side of his symptoms and his L5-S1 central disc protrusion was unchanged. Modic endplate changes L4-5 and L5-S1 were suggestive of instability at those levels. A March 2007 private treatment record notes that the Veteran underwent lumbar spine surgery, lumbar laminectomy and Dynesis instrumentation on March 9, 2007. On July 2007 VA spine examination, it was noted that the Veteran underwent a laminectomy and fusion of his lumbar spine on March 9, 2007. The diagnoses were lumbar spine laminectomy and fusion and back pain. The Veteran reported that before surgery he experienced severe left leg pain, but since the surgery, the pain had subsided except for some pain that radiated to his left buttock, and he experienced some left leg numbness. He took Lortab and Flexeril for pain. He reported that he could lift 30-40 pounds with no difficulty, walk with no limp, and squat with no difficulty. Lumbar spine ROM testing showed forward flexion to 90 degrees, extension to 10 degrees, right and left external rotation to 45 degrees, and right and left flexion to 45 degrees. Straight-leg-testing, deep tendon reflexes, motor strength, and sensory testing were negative, bilaterally. The examiner indicated that the Veteran had mild limitation with prolonged standing, running, jogging, and climbing of stairs, due to discomfort in his lower back. There was no evidence of additional limitation due to pain, weakness, fatigue, lack of endurance after repetitive motion, incoordination, or flare up. A lumbar spine X-ray showed postsurgical fixation of the L4-S1 vertebrae, and that alignment of the lumbosacral spine was otherwise within normal limits. Vertebral body heights and intervertebral disc spaces were within normal limits, and there was no evidence of compression fracture, spondylolysis, or spondylolisthesis. The remaining soft tissues and osseous structures were grossly unremarkable. A December 2007 rating decision granted a temporary 100 rating from March 9, 2007 to May 1, 2007 based on surgical or other treatment necessitating convalescence, and a 10 percent rating for the lumbar spine disability was continued from May 1, 2007. A January 2011 lumbar spine X-ray showed a laminectomy at L4 where trans-pedicular screws were seen bilaterally at L4, L5, and S1. The disc space was narrowed at the L4-5 level with sclerotic endplates and heterotopic calcification surrounding the L4-5 level along the lateral aspects. No hardware failure was shown and sacroiliac joints as well as soft tissues, appeared unremarkable. A May 2012 VA physical therapy treatment record notes that the Veteran’s lumbar flexion was 100 percent, extension was 90 percent, lumbar side bend was 100 percent, and lumbar rotation was 100 percent. An October 2012 VA treatment record notes that the Veteran reported low back and hip pain and that although he could manage activities of daily living (ADLs), he was unable to do heavy lifting and bending, or prolonged standing and sitting. At the April 2016 Board hearing, the Veteran testified that he experienced daily stiffness and low back pain in the morning, had nerve pain in his quadriceps, and could not step over something that is more than 12 inches high without pulling a muscle in his left leg. He related that he could not run or walk for a prolonged period and that he had pain with minimal movement that was not as severe as it was prior to his March 2007 surgery. He related that if he lifted items for a period of time or did work on his lawn, he would have to use a back brace for a day or two. He stated that he had not been put on bed rest by a physician other than during recovery from surgery. On September 2016 VA spine examination, spinal fusion, chronic low back strain, lumbar spondylosis, and left lower extremity radiculopathy were diagnosed. The Veteran reported that prior to his 2007 surgery, back pain radiated down his left leg and worsened with standing, walking, and sneezing. After his spinal fusion, the constant pain subsided, but he still had intermittent low back pain with some flare-ups, and poor mobility, numbness, and tingling in his left leg. He underwent a left hip replacement in 2010 and received physical therapy in 2011. He reported that during an occasional flare-up, he feels a knot in his buttock that is uncomfortable and makes him hobble. He related that his left leg does not work normally because of his back disability. ROM testing showed forward flexion to 45 degrees, and extension, right and left lateral flexion, and right and left lateral rotation each to 20 degrees. Pain was noted on examination that did not contribute to [additional] functional loss. There was no localized tenderness or pain on palpation of the lower back and no evidence of pain with weight-bearing. He was able to perform repetitive use testing, with no additional loss of function or ROM noted. The examiner indicated that the examination was neither medically consistent or inconsistent with the Veteran’s statements describing functional loss during flare-up. Guarding or muscle spasm of the thoracolumbar spine was not shown. Additional factors that contributed to disability were less movement than normal, disturbance of locomotion, interference with sitting, and interference with standing. Muscle strength testing in the lower extremities was normal except for left ankle dorsiflexion, great toe extension, and ankle plantar extension which were 4/5. There was no muscle atrophy. Sensory examination was normal; straight leg raising was negative on the right and positive on the left. Signs or symptoms of radiculopathy were mild intermittent pain, paresthesias, and numbness in the left lower extremity. There was mild sciatic nerve involvement in the left lower extremity. Ankylosis and IVDS were not shown. A 21 cm x 1 cm non-painful scar was in the lumbar area. Lumbar spine X-rays showed arthritis, but thoracic vertebral fracture with loss of 50 percent of height was not shown. The examiner opined that the Veteran’s lumbar spine disability did not impact his ability to work. A November 2016 rating decision increased the rating for the low back disability to 20 percent, effective September 30, 2016, and granted service connection for left lower extremity radiculopathy separately rated 10 percent, effective November 21, 2008. An August 2018 DRO decision granted earlier effective dates (to May 1, 2007) for the 20 percent rating for a low back disability, and the 10 percent rating for left lower extremity radiculopathy. On July 2020 VA spine examination, IVDS, spinal fusion, lumbar spondylosis, left lower extremity radiculopathy, and degenerative disc disease were diagnosed. The Veteran reported that since his 2007 spinal fusion he has had chronic low back pain with some improvement in his muscle functionality but has persistent numbness, paresthesias and pain in his left lower extremity. He reported that during flare-ups, his back will suddenly lock up, and he will have shooting pain in his left leg causing it to give out. He related that his functional impairment due to his low back disability as an inability to stand, bend, lift, or walk for an extended period. ROM testing showed forward flexion to 35 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees, and right and left lateral rotation to 10 degrees, and the examiner indicated that ROM did not contribute to a[n additional] functional loss. Pain was noted on the examination (in active and passive ROM) that caused functional loss, and there was pain on palpation over the bilateral lumbar paravertebral musculature with palpable spasm and point tenderness to the lower lumbar spine. There was evidence of pain with weight-bearing and non-weight bearing, and the Veteran was able to perform repetitive use testing. ROM after repetitive use testing (and for repeated use over time and flare-ups) showed forward flexion to 30 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees, and right and left lateral rotation to 5 degrees, and pain and lack of endurance were noted as factors that caused such functional loss (for repetitive use, repeated use over time, and flare-ups). Guarding and muscle spasm that resulted in abnormal gait or abnormal spine contour and were related to the Veteran’s lumbar spondylosis and left lower extremity radiculopathy were noted. Muscle strength testing was normal in the right lower extremity and 4/5 in all areas of the left lower extremity. Muscle atrophy was not shown, and reflexes were normal in the right knee and ankle and hypoactive in the left knee and ankle. Sensory examination was normal in the right lower extremity, and in the left lower extremity, thigh/knee, lower leg/ankle, and foot/toes was decreased. Straight-leg-raising was negative on the right and positive on the left. Regarding signs and symptoms of radicular pain, moderate constant pain, paresthesias, and numbness, and severe intermittent pain were shown in the left lower extremity. There was moderate involvement of the left femoral and sciatic nerves. Ankylosis was not shown. IVDS was shown that did not require bed rest during the last 12 months. The Veteran reported regular use of a back brace and cane. A non-tender, linear scar to the midline of the lumbar spine was noted that measured 21 cm x 1 cm. X-rays showed lumbar spine arthritis, but no thoracic vertebral fracture with loss of 50 percent or more of height was indicated. Regarding functional impact, the examiner opined that the Veteran’s lumbar spine disabilities impede his ability to stand, walk, or sit for more than 10 minutes before having to get up and move around. He was unable to bend and twist or do any lifting over 20 pounds, and will have to constantly shift his weight in his left leg, or it will give out; so he has to be careful with any strenuous activity. A July 2020 DRO decision increased the rating for low back disability from 20 to 40 percent, increased the rating for left lower extremity radiculopathy from 10 to 20 percent, granted service connection for left lower extremity femoral nerve radiculopathy rated 20 percent, and granted service connection for a lumbar spine scar rated 0 percent, all effective July 1, 2020. Prior to March 9, 2007, the Veteran’s lumbar spine disability was assigned a 10 percent rating. However, the evidence suggests that the criteria for a 20 percent (but no higher) rating for low back disability were met (or at least approximated) from July 10, 2006 (one year prior to the July 10, 2007 date of claim). An April 2006 private treatment record (prior to the period on appeal) notes ROM testing showed lumbar spine forward flexion to 45 degrees, and an October 2006 private treatment record notes that ROM testing continued to show lumbar spine forward flexion to 45 degrees (thereby suggesting continuity of severity from April to October 2006 and warranting an increase to 20 percent). Providing the Veteran the benefit of the doubt, the Board finds that the criteria for a 20 percent rating were met from July 10, 2006, a year prior to the date of claim. Therefore, a 20 percent rating is warranted from July 10, 2006. The Veteran’s low back disability has been assigned a 20 percent rating from May 1, 2007 to July 1, 2020, (as noted above). The evidence of record does not show that at any time during this period, symptoms of the disability met (or approximated) the criteria for the next higher, 40 percent, rating. To warrant a 40 percent rating under the General Formula, the evidence would have to show that thoracolumbar spine forward flexion is limited to 30 degrees or less or that there is favorable ankylosis of the entire thoracolumbar spine. Such limitations are not shown. Instead, thoracolumbar forward flexion was to 90 degrees on July 2007 VA examination, “100 percent” in a May 2012 VA physical therapy treatment record, and to 45 degrees on September 2016 VA examination. Ankylosis of the thoracolumbar spine (or impairment equivalent to ankylosis) was not found on any examination. VA examination and treatment records do not note incapacitating episodes of disc disease (and specifically not any having a total duration of at least 4 weeks during a 12 month period, as required for a higher rating). Additional factors that could provide a basis for an increased rating have also been considered. On September 2016 VA examination, the Veteran reported that during an occasional flare-up, he feels a knot in his buttock that is uncomfortable and makes him hobble, but no further information regarding possible impact on ROM or functioning was provided. Therefore, at no time from May 1, 2007 to July 1, 2020 is it shown that the Veteran had functional loss beyond that compensated by the current ratings assigned. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205. As the criteria for the 20 percent rating encompass the greatest degree of severity of lumbar spine disability shown at any time from May 1, 2007 to July 1, 2020, the Board finds that a rating in excess of 20 percent for the low back disability from May 1, 2007 to July 1, 2020, is not warranted. From July 1, 2020, the Veteran’s low back disability has been assigned a 40 percent rating (as noted above). The evidence of record does not show that at any time during this period, symptoms of the disability met (or approximated) the criteria for the next higher, 50 percent, rating under the General Formula, or the next higher, 60 percent, rating under the formula for rating IVDS. To warrant a 50 percent rating under the General Formula, the evidence would have to show unfavorable ankylosis of the entire thoracolumbar spine, and to warrant a 60 percent rating under the formula for IVDS, the evidence would have to show incapacitating episodes having a total duration of at least 6 weeks during a 12 month period. Such limitations are not shown. [The Board notes that a November 2020 remand directed that all updated (since July 2017) records of VA evaluations and/or treatment the Veteran has received for his service-connected lumbar spine and left lower extremity radiculopathy disabilities be secured for the record. A January 2021 Report of General information indicated that there were no new records to upload to claims folder, the last date of treatment at Baltimore VAMC was July 12, 2017, and there was no additional treatment at other facilities.] Therefore, the Board’s review of this “stage” is essentially limited to the findings on July 2020 VA examination. On that examination, ROM testing showed forward flexion to 35 degrees, ROM testing after repetitive use (and for repeated use over time and flare-ups) showed forward flexion decreased to 30 degrees, and guarding and muscle spasm were noted that resulted in abnormal gait or abnormal spine contour. However, ankylosis was not shown and, IVDS was not shown to have required bed rest. Therefore, at no time from July 1, 2020 is it shown that the Veteran had functional loss beyond that compensated by the current ratings assigned. 38 C.F.R. §§ 4.10, 4.40, 4.45; DeLuca, 8 Vet. App. at 205. As the criteria for the 40 percent rating encompass the greatest severity of lumbar spine disability shown at any time from July 1, 2020, the Board finds that a rating in excess of 40 percent for the disability from July 1, 2020, is not warranted. The Board has also considered whether separate further compensable ratings may be warranted for additional neurological manifestations of the Veteran’s low back disability; however, none have been shown. The rating for left lower extremity (femoral) radiculopathy is not currently on appeal, and the rating for left lower extremity radiculopathy is addressed below. 2. Entitlement to increases in the staged (10 percent prior to July 1, 2020, and 20 percent from that date) ratings assigned for left lower extremity radiculopathy, is denied. Under Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and an 80 percent rating is assigned for complete paralysis of the sciatic nerve. 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 is for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. See 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The terms “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the Rating Schedule or in the other regulations. Rather than applying a mechanical formula, the Board must instead evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. A November 2006 private treatment record notes that the Veteran reported left leg numbness and weakness and pain in his left buttocks and left leg. A February 2007 private treatment record notes that the Veteran had exacerbation of his back pain and left leg pain since September 2006 and left leg weakness since October 2006. On July 2007 spine examination, the Veteran reported that prior to March 2007 low back surgery, he experienced severe left leg pain, and that since the surgery, he has had periodic pain that radiated to his left buttock and some left leg numbness. Straight leg, deep tendon reflexes, motor strength, and sensory testing were all negative bilaterally. A November 2008 private medical statement notes that the provider opined that the findings on the nerve conduction study were compatible with a mild left L5 radiculopathy. A July 2012 VA treatment record notes a history of lower lumbar laminectomy for left sided radiculopathy. At the April 2016 Board hearing, the Veteran testified that his biggest concern was left leg nerve impairment. He related that he could not step over anything On September 2016 VA examination, the Veteran reported that he started experiencing low back pain that increased in severity prior to his 2007 surgery. The pain radiated down his left leg and worsened with standing, walking, and sneezing. The pain was only slightly bearable when he lay in a fetal position. He reported numbness, tingling, and poor mobility in his left leg due to nerve damage. Signs or symptoms of radiculopathy were mild intermittent pain, paresthesias, and numbness, in the left lower extremity. Muscle atrophy was not shown. The examiner indicated that there was mild sciatic nerve involvement in the left lower extremity. On July 2020 VA examination, the Veteran reported persistent numbness, paresthesias and pain in his left lower extremity. He reported that during flare-ups, his back will suddenly lock up, and he will have shooting pain in his left leg causing it to give out. Muscle strength testing was normal in the right lower extremity and 4/5 in all areas of the left lower extremity. Muscle atrophy was not shown, and reflexes were normal in the right knee and ankle and hypoactive in the left knee and ankle. Sensory examination was normal in the right lower extremity, and in the left lower extremity, thigh/knee, lower leg/ankle, and foot/toes was decreased. Straight-leg-raising was negative on the right and positive on the left. Regarding signs and symptoms of radicular pain, moderate constant pain, paresthesias, and numbness, and severe intermittent pain, were shown in the left lower extremity. There was moderate involvement of the left femoral and sciatic nerves. For prior to July 1, 2020 the Veteran’s left lower extremity radiculopathy has been assigned a 10 percent rating (for mild incomplete sciatic nerve paralysis). Considering the evidence of record, the disability picture presented does not warrant a rating in excess of 10 percent. On July 2007 VA examination, the Veteran reported periodic pain that radiated to his left buttock and some left leg numbness. Left lower extremity radiculopathy was not diagnosed. At the April 2016 Board hearing, he testified that his biggest concern was left leg nerve damage impairment and that he could not step over anything more than 12 inches high without pulling a muscle in his left leg. On April 2016 VA examination, he reported numbness, tingling, and poor mobility in his left leg that he asserted was due to nerve damage. Signs or symptoms of radiculopathy were mild intermittent pain, paresthesias, and numbness, in the left lower extremity. The examiner indicated that there was mild sciatic nerve involvement in the left lower extremity. It was noted that although the Veteran’s sciatic nerve was affected, muscle strength testing was normal, and there was no evidence of atrophy. Accordingly, the Board finds that the left lower extremity radiculopathy did not have manifestations consistent with more than mild incomplete paralysis. As the criteria for the 10 percent rating currently assigned encompasses the greatest degree of severity of right lower extremity sciatica shown at any time prior to July 1, 2020 the Board finds that a rating in excess of 10 percent for left lower extremity radiculopathy is not warranted. From July 1, 2020 the Veteran’s left lower extremity radiculopathy has been assigned a 20 percent rating (for moderate incomplete paralysis). Considering the evidence of record, the disability picture presented does not warrant a rating in excess of 20 percent. As noted above, a January 2021 Report of General information notes that there were no new records to upload, the last date of treatment at Baltimore VAMC was July 12, 2017, and there was no additional treatment at other facilities. Therefore, the Board’s review of this “stage” is essentially limited to the findings on the July 2020 VA examination. On that examination, muscle atrophy was not shown, and reflexes were hypoactive in the left knee and ankle. Sensory examination showed that sensation in the left lower extremity, thigh/knee, lower leg/ankle, and foot/toes was decreased. Straight-leg- raising was positive on the left. Regarding signs and symptoms of radicular pain, moderate constant pain, paresthesias, and numbness, and severe intermittent pain, in the left lower extremity were shown. There was moderate involvement of the left femoral and sciatic nerves. Accordingly, the Board finds that the left lower extremity radiculopathy did not have manifestations consistent with more than moderate incomplete paralysis. As the criteria for the 20 percent rating currently assigned encompasses the greatest degree of severity of right lower extremity sciatica shown at any time from July 1, 2020 the Board finds that a rating in excess of 20 percent for left lower extremity radiculopathy is not warranted. 3. Entitlement to an effective date prior to May 1, 2007 for the Award of Service connection and a separate rating for left lower extremity radiculopathy is denied. A November 2016 rating decision granted service connection for separately rated left lower extremity radiculopathy, rated 10 percent, effective November 21, 2008, the date of the private treatment report that showed evidence of left lower extremity radiculopathy. An August 2018 DRO decision granted an earlier effective date of May 1, 2007, for service connection for left lower extremity radiculopathy. The Veteran contends he is entitled to an effective date prior to May 1, 2007 for a separate rating for left lower extremity radiculopathy essentially because he has experienced tingling and numbness in his left leg. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. For an increase in disability compensation, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability had occurred if a claim is received within one year from such date, otherwise the date the claim was received. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o)(2). In July 2007, the Veteran filed a claim requesting an increase in the rating for his low back disability. Notably, he did not specify he was seeking a separate rating for left lower extremity radiculopathy. As the July 2007 claim for an increase in his low back disability rating is a claim for increase, the effective date will be the date the claim was received, unless it is factually ascertainable that an increase in disability occurred within one year prior to such date (or when left lower extremity radiculopathy was first clinically noted/diagnosed). A review of the record found that an August 2018 DRO decision granted an effective date of May 1, 2007 (the day after the ending period of the Veteran’s convalescence from spine surgery) for left lower extremity radiculopathy based on the Veteran’s reports (on July 2007 VA examination) of low back pain which radiated to the left buttock, severe left leg pain prior to March 2007 surgery, and numbness. It was also noted (in the DRO decision) that despite complaints of numbness, there was no diagnosis of left lower extremity radiculopathy on July 2007 examination. On close review of the record, it does not appear that left lower extremity radiculopathy was first diagnosed until November 21, 2008, when a private provider opined that the findings on a nerve conduction study were compatible with a mild left L5 radiculopathy. Accordingly, entitlement to a separate rating for left lower extremity radiculopathy (would have otherwise) arisen on that day. Although the Board acknowledges the reports of left leg pain, numbness, and weakness, in the year prior to the July 2007 claim, the records do not note a diagnosis of left lower extremity radiculopathy during that time (and a specific date of onset of left leg radiculopathy is not shown or alleged). Notably, on the July 2007 examination, based on which the effective date was assigned did not find a diagnosis of left lower extremity radiculopathy. While the law provides for an increase from the date of claim (July 10, 2007) for such (or from the date during the year preceding the date of claim an increase is shown), the Agency of Original Jurisdiction (AOJ) awarded service connection and a separate rating for left lower extremity radiculopathy from the [more favorable] date of May 1, 2007 (considering left lower extremity radiculopathy was not diagnosed until November 21, 2008). As left lower extremity radiculopathy was not shown prior to May 1, 2007 and within one year prior to the filing of the claim for increase that triggered the award, and an effective date for the award of service connection and a separate rating for left lower extremity radiculopathy prior to May 1, 2007 is not warranted. GEORGE R. SENYK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Bayles, 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.