Citation Nr: 21027581 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 15-20 219 DATE: May 6, 2021 ORDER 1. An increased (to 60 percent) rating is granted for the Veteran's left lower extremity radiculopathy from (the earlier effective date of) June 4, 2019, subject to the regulations governing payment of monetary awards; ratings in excess of 20 percent prior to June 4, 2019 and in excess of 60 percent from June 4, 2019 to June 25, 2019, are denied. 2. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. Prior to June 4, 2019, the Veteran's left lower extremity radiculopathy was not shown to be manifested by more than moderate incomplete sciatic nerve paralysis and some muscular atrophy; moderately severe (or severe) incomplete sciatic nerve paralysis was not shown. 2. From June 4, 2019 to June 25, 2019, the left lower extremity radiculopathy is reasonably shown to have been manifested by severe incomplete, but not complete, sciatic nerve paralysis and marked muscular atrophy. 3. At no time under consideration is the Veteran's right lower extremity radiculopathy shown to have been manifested by symptoms or impairment reflecting more than mild incomplete sciatic nerve paralysis. CONCLUSIONS OF LAW 1. The Veteran's left lower extremity radiculopathy warrants a 60 percent (but no higher) rating from (the earlier effective date of) June 4, 2019; ratings in excess of 20 percent prior to June 4, 2019 or 60 percent from June 4, 2019 to June 25, 2019 are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (Code) 8520. 2. A rating in excess of 10 percent for right lower extremity radiculopathy is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.124a, Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The appellant is a Veteran who served on active duty from January 1997 to January 2001. These matters are before the Board of Veterans' Appeals (Board) on appeal from a December 2011 rating decision which, in relevant part, granted service connection for left lower extremity radiculopathy (rated 10 percent) and right lower extremity radiculopathy (rated 0 percent), each effective May 20, 2011. In September 2018, a videoconference hearing was held before the undersigned; a transcript is in the Veteran's record. A January 2020 Board decision granted partial "staged" increases in the ratings for the Veteran's left and right lower extremity radiculopathy. Specifically, the left lower extremity radiculopathy was assigned a 20 percent rating prior to June 25, 2019 and a 60 percent rating from that date; the right lower extremity radiculopathy was assigned a 10 percent rating throughout. [The January 2020 Board decision also dismissed (as withdrawn) claims seeking ratings in excess of 10 percent, each, for right ankle and right shoulder disabilities. The Board also remanded the matters of entitlement to service connection for left ankle, right knee, and left knee disabilities, and entitlement to a rating in excess of 20 percent for a low back disability. The remanded claims are pending development at the Agency of Original Jurisdiction (AOJ) and are not currently before the Board.] The Veteran appealed the portions of the January 2020 Board decision which denied a rating in excess of 20 percent for left lower extremity radiculopathy prior to June 25, 2019, and denied a rating in excess of 10 percent for right lower extremity, resulting in an October 2020 Amended Joint Motion for Partial Remand (JMPR) by the parties. [The parties did not disturb the Board's decision to the extent it granted a 60 percent rating for left lower extremity radiculopathy effective June 25, 2019, or granted a 10 percent rating throughout for right lower extremity radiculopathy. Although not specified, it is assumed that the Veteran did not wish to disturb the grant of a 20 percent rating for left lower extremity radiculopathy prior to June 25, 2019. He also did not challenge the dismissals noted above; those matters are no longer before the Board.] A November 2020 CAVC Order remanded the matters for compliance with the JMPR. 1. An increased (to 60 percent) rating is granted for the Veteran's left lower extremity radiculopathy from (the earlier effective date of) June 4, 2019; ratings in excess of 20 percent prior to June 4, 2019 and in excess of 60 percent from June 4, 2019 to June 25, 2019, are denied. 2. A rating in excess of 10 percent for right lower extremity radiculopathy is denied. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where, as here, the appeal is from the initial rating assigned with the award of service connection, the severity of the disability during the entire period from the award of service connection to the present, and the possibility of "staged" ratings for distinct periods of time when varying degrees of disability were shown, must be considered. See Fenderson v. West, 12 Vet. App. 119 (1999). When a question arises as to which of two ratings under a code applies, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. Reasonable doubt regarding degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The Veteran's service-connected right and left lower extremity radiculopathy disabilities have been rated under Code 8520. [Sciatic nerve impairment is rated under Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia).] For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" 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. See 38 C.F.R. § 4.124a. When involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Under Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; 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, where the foot dangles and drops, and there is no active movement possible of muscles below the knee, flexion of knee weakened, or very rarely, lost. 38 C.F.R. § 4.124a. (The ratings under Code 8520 are equivalent to or higher than the ratings under codes pertaining to other peripheral nerves of the lower extremities.) The terms "mild," "moderate," "moderately severe," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Similarly, the term "marked" is also not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Factual Background A March 4, 2011 private treatment record notes the Veteran's report of longstanding intermittent numbness of the left calf with atrophy and mild weakness. He reported right sciatica-type discomfort, but denied atrophy or weakness. He reported that he "exercises quite a bit, working out in the gym with weights and low-impact aerobic exercise." He reported pain rated 5/10, which tends to be worse with sitting or standing. He also reported a standing tolerance of 10 minutes and that he can walk more than half of a mile without any difficulty. A March 11, 2011 lumbar spine MRI showed broad left paracentral protrusion at L4-L5 level, left paracentral protrusion at L5-S1 level, and multilevel early endplate disease. A March 24, 2011 electromyography (EMG) report notes a complaint of bilateral leg pain. The EMG showed "evidence of lumbar radiculopathy affecting left lower extremity mainly at L5 in chronic denervation condition." A June 23, 2011 private treatment record notes complaints of continuing symptoms and "continued atrophy of the left lower extremity and symptoms subsequent to his low back complaints." Examination showed the bilateral lower extremities were normal "except moderate atrophy left calf." Reflexes were normal 2/2 except the left ankle, which was absent 0/2. Motor strength and sensory tests were normal bilaterally. The Veteran's gait and posture were normal; range of motion (ROM) was full without pain. The assessments include paresthesia and thoracic or lumbosacral neuritis or radiculitis. The physician noted that MRI reports were not available for review; but also noted that the EMG findings suggested denervation. He noted that if the Veteran does have denervation that "is ongoing and potentially progressive, our thought process would be to proceed with something to decompress the nerve to prevent long-term continued chronic denervation." On July 2011 VA joints examination, the Veteran reported that his back pain, left calf neuropathy, and sciatic pain had worsened. He reported sharp shooting pain into his legs. On examination he had an antalgic gait. Reflex testing was normal (2+) except left ankle jerk (1+, hypoactive); plantar flexion was normal bilaterally. Sensory testing of the right lower extremity was normal to position sense, vibratory sensation, and light touch/pinprick discrimination. Sensory testing of the left lower extremity was normal to position sense; there was decreased vibratory sensation and decreased light touch/pinprick discrimination from proximal calf area distally. Strength testing was normal (all 5/5). There was no muscle atrophy. An August 10, 2011 VA medical record notes the impression "it does appear that [the Veteran's] left lower leg condition is most likely related to issues from his lumbar spine disk protrusion and nerve denervation." An August 25, 2011 private medical statement indicates that the Veteran's "left lower extremity radiculopathy and weakness as evidenced on EMG is secondary to herniated disk on the left hand side." A separate August 25, 2011 private medical record notes the Veteran "has developed some weakness that is minor in his left calf with some concomitant atrophy." On November 2011 VA knee examination, bilateral knee flexion and extension strength were normal; bilateral ROM was full. On November 2011 VA peripheral nerves examination, the Veteran reported radicular pain in both legs and weakness in the left calf resulting in decreased push off power. He reported that left leg pain has been present since 2000 and "is now constant and worsening." He reported right leg pain that has been present for two years and "this is also constant. No right leg weakness." The symptoms were noted to be mild constant pain (may be excruciating at times) in both lower extremities; the examiner did not check the boxes to report symptoms including intermittent pain, paresthesias/dysesthesias, or numbness. Muscle strength testing was normal (5/5) bilaterally except left ankle plantar flexion (4/5). Deep tendon reflex and sensory testing were normal. Muscle atrophy was noted at the left leg medial gastrocnemius head, described as 1 cm less circumferential. There were no trophic changes. The examiner diagnosed mild incomplete paralysis of the left posterior tibial nerve; a right lower extremity nerve disability was not diagnosed. [He noted the 2011 EMG showed left lower extremity L5 radiculopathy.] He opined the disability has no impact on the Veteran's ability to work. A September 2012 physical therapy (PT) record notes the Veteran's report of right-sided low back pain, left-sided leg pain, and left calf paresthesias. Following examination, the physical therapist reported that the Veteran presented "with symptoms consistent with mild DDD and spinal stenosis of the lumbar spine. Mild gross radicular symptoms noted at this time on left." A February 2013 pain consult record notes the Veteran's complaint of "low back pain referred down posterior aspect both legs to heels bilaterally and muscle atrophy left calf. Worse with prolonged sitting." On examination, sensation to light touch was grossly intact. Lower extremity muscle testing results were between 4-/5 and 5/5 bilaterally. Deep tendon reflexes were normal except left achilles noted as 0/4. The "left gastrocnemius [was] visibly smaller and less defined than right." The impression was bilateral S1 radiculitis and left S1 radiculopathy. In his May 2015 VA Form 9 (formal appeal), the Veteran wrote that he disagreed with the examination reports; he reported that he has left calf muscle atrophy. Regarding his left lower extremity claim, he wrote, "An increase to 20% for moderate will satisfy my appeal." Regarding the right lower extremity claim, he wrote, "A rating of 10% will satisfy my appeal." A July 21, 2015 primary care record notes complaints of lower back pain with radiation to the left lower extremity and "left calf muscle wasting." A July 2015 private MRI showed L4-L5 annular tear. The Veteran reported that he would like to proceed with surgical treatment. On examination, he had a mildly antalgic gait. Light touch sensation was intact distally. Calf muscle assymetry was noted, left smaller than right. An August 2015 neurosurgery consult record notes reports of lower back pain and pain with dysesthesia in the left calf since 2000. "He has had gradual atrophy in his left calf muscle." Examination showed "mild weakness in his left foot plantar flexion. He has diminished sensation over his left calf. He had diminished left ankle jerk. He has atrophy on his left calf muscles." The neurosurgeon compared a December 2012 MRI with a July 2015 MRI and noted, "There is evidence of progression at the L5-S1 level." He recommended a left L5-S1 hemilaminotomy, exploration, and decompression of the left S1 nerve root. In January 2016, the Veteran underwent back surgery. The indications included "progressive and intractable left lower extremity weakness, pain, numbness, and tingling as well as calf atrophy in the setting of normally tolerable chronic low back pain." The postoperative diagnoses were left L5-S1 disk herniation with intractable left lower extremity radiculopathy including weakness and calf atrophy. An August 2016 primary care record notes the Veteran's report of "lower back pain with radiation to the right thigh attributed to LS-spine DDD/DJD that became more noticeable after the L5-S1 decompression in [January] 2016." Examination showed light touch sensation was intact, lower extremity strength was 5/5, and deep tendon reflexes were normal (2+), all bilaterally. The assessment was right lumbar radiculopathy. An August 31, 2016 EMG showed abnormal EMG/NCS of both lower extremities. The study was "consistent with a chronic L5/S1 lumbosacral radiculopathy." There was "no electrophysiological evidence of peripheral neuropathy or plexopathy." At his September 2018 Board hearing, the Veteran testified that he has "visual deformities of the left leg, left [calf] area." He disagreed with one of the prior VA examination reports which he reported "stated there was no deformities." He testified that his 2016 back surgery "caused more sciatic problems on the right side." He explained that "it was dual lateral before on the back pain, but it was primarily stuck on that left side, but after, after the surgery and, and it really is constant on both sides now." He described his left muscle atrophy as "severe" and stated the left calf "is probably a third of the size of the right one. The nerve running down the leg has totally told that muscle to stop working which makes me walk funny." He reported that his left calf condition "is the same if not worse" since the 2016 surgery. He described his right lower extremity condition as "moderate" and stated "I'm kind of concerned that the atrophy is going to start on the right side..." He reported that the lower extremity radiculopathies limit his mobility and manifest in limitations of family activities, such as inability to kick a soccer ball with his children and lagging behind them when walking outdoors. He testified that he has "daily, severe sciatic pain and muscle aches and pain." He testified that because of several disabilities, including his lower extremity radiculopathies, he changed employment positions from a physical field job to a more sedentary sales job. An October 2018 private treatment record notes the Veteran's report of pain that radiates to both legs and has increased in severity and duration (rated 7/10); "moderate atrophy left calf" was noted. Testing showed lower extremity strength was normal (5/5) except left ankle plantar flexion (5-/5); reflexes were normal 2/2 except left ankle (0/2, absent). Sensory testing was normal except left posterior calf, which was decreased. A private medical examination report from F.R., a chiropractic physician, dated June 4, 2019 notes the Veteran reported frequent low back pain with radiating symptoms down both legs. He reported left leg radiating symptoms on a daily basis with a varying degree of severity complicated by left lower leg weakness and burning sensations. Examination showed reflexes were normal except left achilles (+0); sensation was decreased/reduced on the left and within normal limits on the right. Muscle strength tests ranged between 3 and 5 (out of 5) on the left, and were normal on the right (except knee extension noted as 4/5). Lower extremity average circumferential measurements (taken three times with a cloth measuring tape at the location of the greatest girth) found left mid-thigh was 56.33 cm; right mid-thigh was 57.66 cm; left mid-calf was 42 cm; right mid-calf was 43.33cm. F.R. assessed failed back surgery syndrome with continued bilateral radicular symptoms as confirmed by the August 2016 EMG "as well as associated left lower leg atrophy." F.R. cited to a medical journal to explain that a very small reduction in thigh girth (1%) "may be an indicator of significant reductions in muscle bulk (13%) ..." Based on a finding that the Veteran's left thigh girth is 2.31% less than right, and his left calf girth is 3.07% less than right, he estimated a correlated reduction of muscle bulk in the left thigh of 30.03% and the left calf of 39.91%. Based on the findings on examination, and review of the July 2015 MRI and EMG results, F.R. opined that the Veteran's left lower extremity radiculopathy is "considered severe in nature with motor findings of the left upper and lower leg, reduced senses, reduced reflexes and pain." He did not assign (or opine on) a severity level for the right lower extremity radiculopathy. He continued to explain that, "Reviewing the Veteran's VA medical file, it is not likely to determine the history of the severity of his low back pain and left lower extremity radiculopathy." In July 2019, VA received separate disability benefits questionnaires (DBQs) from F.R., each dated June 25, 2019. A June 25, 2019 VA knee and lower leg DBQ notes muscle strength testing of the right knee was 5/5 flexion and 4/5 extension; the left knee was 4/5 in both flexion and extension. F.R. noted that "lumbar radiculopathy contributed to thigh muscular atrophy" and reported the girth measurements noted above. A June 25, 2019 back conditions DBQ notes an abnormal gait due to left leg atrophy. Reflex, muscle strength, and sensory testing was as noted on the June 4, 2019 report (above). F.R. opined that the Veteran has mild right lower extremity radiculopathy and severe left lower extremity radiculopathy. In August 2019, VA received an undated addendum opinion from F.R. [He specifically noted that he wrote the opinion after reviewing the attorney's brief (discussed below).] He opined that "it is not likely that [the Veteran's] lower extremity radiculopathy remained constant since 3/24/2011. Furthermore, it is at least as likely as not that [the Veteran's] left lower extremity radiculopathy has significantly worsened from 3/24/2011 to 1/19/2016, the date of [the Veteran's] left L5-S1 diskectomy with left L5-S1 hemilaminectomy, medial facetectomy, and foraminotomy." He specifically noted that the August 2016 EMG demonstrated objective lumbar radiculopathy that was not present in the August 2011 EMG. In an August 2019 statement, the Veteran reported symptoms including radiating pain down the left leg from the buttock to the heel, and "weakness in the left calf and hamstrings." "Due to atrophy the left one is not as strong." He estimated his left leg has "about half the strength" of the right leg, and stated, "The pain distracts my focus." He reported right leg symptoms "are a dull pain with numbness" and that during a flare-up it can get to 7-8/10 pain. He reported that the right leg pain "has been relatively steady since May 20, 2011," and that "It's definitely not as bad as the left leg, but it causes problems, too." He also reported that neither VA examiner measured the girth of his lower extremities, as F.R. did. In August 2019, VA received a brief (argument) from the Veteran's attorney. He argued that the Veteran's left lower extremity disability "is warranted a sixty percent (60%) evaluation for the entire pendency of his claim an[d] appeal." He cited to F.R.'s examination findings (regarding reduced girth measurements). He also stated that F.R.'s opined that the July 1, 2015 MRI demonstrated severe left radiculopathy. [The Board notes that the statement misrepresents F.R.'s statement, as it does not indicate that a July 1, 2015 MRI showed severe left lower extremity radiculopathy. Rather, F.R. wrote on June 4, 2019, that in consideration of the July 2015 MRI report, the EMG testing reports, current examination, and diagnostic testing, the Veteran's left lower extremity radiculopathy is severe in nature.] He argued that a November 2011 VA examination was inadequate as it did not mention atrophy or denervation, and did not include girth measurements. The attorney further argued that the Veteran's right lower extremity radiculopathy warrants a 40 percent rating throughout, under Code 8520, because the evidence shows at least moderately severe symptoms. He cited to the Veteran's statements that the pain causes an inability to focus. He again argued that the November 2011 VA examination was inadequate because it did not mention atrophy and denervation (as discussed in other treatment records pertaining to the left lower extremity). He noted that the DBQ completed by R.F. (who opined that the Veteran's right lower extremity radiculopathy is mild, and not moderate or severe) did not contain a box/option for "moderately severe" [which is immaterial as a finding that the radiculopathy was mild rather than moderate or severe, presumably eliminates the possibility that moderately severe (a level of severity between moderate and severe) would be found it there was such an option]. He concluded "Although no medical record specifically states that the symptoms are moderately severe, there is ample evidence that shows symptoms of at least moderately severe effect." In the October 2020 Amended JMPR, the parties agreed that the Board provided inadequate reasons and bases for denying entitlement to higher initial ratings for left and right lower extremity radiculopathy. [The parties noted that the Veteran is only challenging the left lower extremity radiculopathy rating assigned for the period prior to June 25, 2019.] The parties agreed that the Board failed to adequately discuss and address the evidence of muscle atrophy and denervation, such as the June 23, 2011 private record, a September 2011 private record (actually August 2011) regarding minor weakness in the left calf and concomitant atrophy, the Veteran's September 2018 hearing testimony regarding "walk[ing] funny" due to radicular symptoms, and F.R.'s June 2019 notation of abnormal gait due to left leg atrophy. Analysis Initially, the Board notes that the Veteran and his attorney have argued that the November 2011 VA peripheral nerves examination report is inadequate, namely because it did not mention atrophy or denervation, and did not include girth measurements. See August 2019 brief. The Board finds the report adequate for rating purposes, as the examiner reviewed the claims file (and thus would have read the March 2011 MRI report, the March 2011 EMG report, and the June 2011 private treatment record which discusses denervation). Furthermore, the examination report does mention left leg medial gastrocnemius head atrophy, specifically described such as 1 cm less circumferential than the right (suggesting measurements were conducted). It is not clear whether the Veteran's attorney filed to fully review the November 2011 VA peripheral nerves examination report, or is deliberately mischaracterizing the evidence (considering also the above -noted mischaracterization of R.F.'s June 4, 2019 findings). Left Lower Extremity Radiculopathy (prior to June 25, 2019) Upon review of the evidence, the Board finds that a 60 percent rating, for severe incomplete paralysis, is warranted for the Veteran's left lower extremity radiculopathy from the earlier effective date of June 4, 2019, the date of R.F.'s report indicating there is severe left lower extremity radiculopathy. [The Board notes that the January 2020 Board decision previously assigned an effective date of June 25, 2019 for the 60 percent rating based on the date of R.F.'s completed DBQs.] A rating in excess of 60 percent is not warranted from June 4, 2019 to June 25, 2019, as it is neither alleged nor shown that the Veteran's left lower extremity radiculopathy manifests in complete paralysis where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or lost. [The Board observes that this grant amounts in essence to a technical correction of the effective date for record purposes, as increases in compensation payment based on an effective date assigned begin with the first day of the month following the effective date assigned, and here both of the effective dates (the initial granted and the earlier granted herein are in June 2019, so an increase in compensation payment would begin with July1, 2019.] Turning to the period prior to June 4, 2019, the Board finds that a rating in excess of 20 percent for left lower extremity radiculopathy is not warranted. The left lower extremity radiculopathy was manifested by no more than moderate incomplete paralysis of the sciatic nerve; moderately severe (or severe) incomplete paralysis was not shown. In reaching this conclusion, the Board acknowledges that the record shows left thigh and left calf atrophy. Although medical providers described his left calf atrophy as "moderate" and "some concomitant," the Board will concede (solely for the purpose of this decision) that the Veteran's left leg showed moderate (but not greater) muscle atrophy, including at the left calf. The Board also notes the clinical notations of denervation following multiple EMGs. However, 40 percent rating requires moderately severe incomplete paralysis of the nerve, and a 60 percent rating (argued for by the Veteran's attorney) under Code 8520 requires severe incomplete paralysis of the sciatic nerve, with (i.e., to include) marked muscle atrophy. Prior to June 4, 2019, no more than moderate incomplete paralysis was shown. On November 2011 VA peripheral nerves examination, slight (per description) muscle atrophy was noted at the left gastrocnemius head (despite the attorney's argument that it was not), and the examiner found there was mild incomplete paralysis. A September 2012 PT record notes his left lower extremity radicular symptoms were mild. Muscle strength testing prior to June 4, 2019 was consistently normal (5/5), with exception of left ankle plantar flexion, which was 4/5. Reflex testing was normal except at the left ankle, which was noted (variously) to be either hypoactive or absent. Sensory testing was normal at times and decreased/reduced/diminished at others (but not absent). Such clinical findings weigh against a finding of moderately severe or greater incomplete nerve paralysis in the left lower extremity. The Board acknowledges the Veteran's subjective report of constant, severe, left lower extremity pain, and left leg weakness. It also acknowledges his report of "walking funny" and the notations of an antalgic gate. However, on objective examination/testing, no more than moderate radicular symptoms were shown (or diagnosed). Notably, the Veteran reported that he continued working out (including with weights and walking more than half a mile) in March 2011. The Board observes that as of May 2015, the Veteran himself appeared to acknowledge that his left lower extremity radiculopathy was characterized by less no more than moderate incomplete paralysis, as he indicated then (see May 2011 VA Form 9) that a 20 percent rating would satisfy his appeal. Clinical records in August 2011 and August 2015 describe such left calf and plantar flexion weakness as "mild." The Board finds the objective findings on detailed contemporaneous clinical examinations more probative regarding the severity of the radiculopathies than retroactive conclusory assessments made years later in connection with the claims-seeking process. Regarding, the Veteran's attorney's argument that a 60 percent rating (for severe incomplete paralysis with marked muscular atrophy) for left lower extremity radiculopathy is warranted throughout, such argument is facially inconsistent with R.F.'s (the submitted in support of the claim private provider's) report explicit finding (in an addendum) that "it is not likely" that the Veteran's left lower extremity radiculopathy remained constant since May 2011; in fact, R.F. explicitly found worsening since May 2011 (which was acknowledged by the increase in the rating). As noted above, although the attorney contends R.F. found that the July 2015 MRI showed severe radiculopathy, such is an inaccurate portrayal of R.F.'s finding. Rather, R.F. diagnosed severe left lower extremity radiculopathy in consideration of multiple pieces of evidence, including the May 2015 MRI, EMG reports, and the current (2019) examination and testing. In summary, although the evidence does show left lower extremity muscle atrophy, it is not shown to be marked (less than 2 cm., by the most favorable to the Veteran measurement), and the most probative evidence weighs against a finding of moderately severe or greater incomplete nerve paralysis in the Veteran's left lower extremity prior to June 4, 2019 (so as to warrant a rating in excess of 20 percent prior to that date. Accordingly, a rating in excess of 20 percent for left lower extremity radiculopathy is not warranted prior to June 4, 2019. Right Lower Extremity Radiculopathy Throughout, the Veteran's right lower extremity radiculopathy has been assigned a 10 percent rating under Code 8520 (for mild incomplete paralysis). Upon longitudinal review of the evidence, the Board finds that a rating in excess of 10 percent for right lower extremity radiculopathy is not warranted for any period under consideration. On November 2011 VA peripheral nerves examination, a right lower extremity nerve disability was not diagnosed. On June 4, 2019 private examination, F.R. did not assign (or opine on) a severity for the right lower extremity radiculopathy; in a June 25, 2019 DQB, he opined it was mild (and not moderate or severe). The Board acknowledges the Veteran's lay reports of pain, discomfort, shooting pain, and weakness, particularly (as he testified) after the January 2016 back surgery. The Board also notes the Veteran's attorney's argument that a 40 percent rating is warranted throughout. However, as explicitly acknowledged by the Veteran's attorney, no provider has opined that the right lower extremity nerve radiculopathy is manifested by moderately severe (or even moderate) incomplete paralysis. [Notably, much of the attorney's right lower extremity argument is based on left leg atrophy and symptomatology. See August 2019 brief.] Rather, the contemporaneous clinical evidence shows that throughout, the right lower extremity has been manifested by normal position sense, normal (or near-normal) strength, normal reflexes, and normal sensation. Muscle atrophy is not shown. Such objective examination findings weigh against a finding of moderate or greater incomplete nerve paralysis of the right lower extremity. The Board notes that the Veteran had previously reported (in May 2015) indicated that the assignment of a 10 percent rating (which the Board's January 2020 Board decision granted) would satisfy his appeal. The evidence added to the record since then does not include any that supports the Veteran has had moderate or greater severity incomplete paralysis of the right sciatic nerve. Accordingly, the preponderance of the evidence is against this claim. Therefore, the benefit of the doubt rule does not apply; the appeal seeking a rating in excess of 10 percent for right lower extremity radiculopathy must be denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The record does not show, nor has the Veteran alleged that he is unemployable due to his left and right lower extremity radiculopathies. The Board acknowledges the Veteran's reports that, due to low back pain and left leg weakness, he switched job positions from a physical field job to a desk job during the appeal period. See September 2018 Board hearing transcript; see also June 4, 2019 private medical opinion and June 25, 2019 private back conditions DBQ. However, he has not indicated (and the evidence does not show) that he has been unable to work due to his bilateral radiculopathies. Consequently, the matter of entitlement to a total rating based on individual unemployability (TDIU) in the context of the instant claims for increase is not raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009).] GEORGE R. SENYK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Dupont, 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.