Citation Nr: 21027738 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 17-05 807A DATE: May 6, 2021 ORDER An initial rating in excess of 10 percent for service-connected lumbar spine degenerative disc disease (lumbar spine disability) prior to January 24, 2020, is denied. A rating in excess of 20 percent for a service-connected lumbar spine disability since January 24, 2020, is denied. Effective January 24, 2020, a separate 10 percent rating for right lower extremity, radiculopathy, sciatic nerve, associated with a service-connected lumbar spine disability, is granted. Effective January 24, 2020, a separate 10 percent rating for right lower extremity, radiculopathy, femoral nerve, associated with a service-connected lumbar spine disability, is granted. FINDINGS OF FACT 1. Prior to January 24, 2020, considering the Veteran's pain and resultant functional impairment, including during flare-ups, his service-connected lumbar spine disability was not productive of forward flexion greater than 30 degrees but not greater than 60 degrees, combined motion not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour. 2. Since January 24, 2020, considering the Veteran's pain and resultant functional impairment, including during flare-ups, his service-connected lumbar spine disability is not productive of forward flexion 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 3. As of January 24, 2020, there was clinical evidence of mild right lower extremity, radiculopathy, sciatic nerve, associated with a service-connected lumbar spine disability. 4. As of January 24, 2020, there was clinical evidence of mild right lower extremity, radiculopathy, femoral nerve, associated with a service-connected lumbar spine disability. CONCLUSIONS OF LAW 1. Prior to January 24, 2020, the criteria for an initial rating in excess of 10 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107, 5100 (g); 38 C.F.R. §§ 20.904 (d)(2), 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. Since January 24, 2020, the criteria for a rating in excess of 20 percent for a service-connected lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107, 5100 (g); 38 C.F.R. §§ 20.904 (d)(2), 4.1, 4.3, 4.7, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 3. Effective January 24, 2020, the criteria for a separate 10 percent rating, and no more, for right lower extremity, radiculopathy, sciatic nerve, associated with a service-connected lumbar spine disability, were met. 38 U.S.C. §§ 1155, 5107, 5100 (g); 38 C.F.R. §§ 20. 904 (d)(2), 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8520. 4. Effective January 24, 2020, the criteria for a separate 10 percent rating, and no more, for right lower extremity, radiculopathy, femoral nerve, associated with a service-connected lumbar spine disability, were met. 38 U.S.C. §§ 1155, 5107, 5100 (g); 38 C.F.R. §§ 20. 904 (d)(2), 4.1, 4.3, 4.7, 4.14, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1987 to August 2012. In August 2019, he testified before the undersigned Veterans Law Judge (VLJ) of the Department of Veterans Affairs (VA) Board of Veterans' Appeals (Board) seated in Washington, D.C. A transcript of the hearing has been associated with the claims file. In November 2019, the Board remanded the issue of entitlement to an initial rating in excess of 10 percent for a lumbar spine disability to the VA Regional Office (RO) for additional development; the claims file has been returned to the Board for adjudication. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, 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. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In evaluating disabilities of the musculoskeletal system, consideration must be given to functional loss, including due to weakness and pain, affecting the normal working movements of the body in terms of excursion, strength, speed, coordination, and endurance. 38 C.F.R. § 4.40; see Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011) (holding that pain 'must actually affect some aspect of 'the normal working movements of the body' [under] 38 C.F.R. § 4.40 in order to constitute functional loss' warranting a higher rating). With respect to disabilities of the joints, consideration is given as to whether there is less movement or more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement, as well as swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. The provisions of sections 38 C.F.R. §§ 4.40 and 4.45 thus require a determination of whether a higher rating may be assigned based on functional loss of the affected joint on repeated use as a result of the above factors, including during flare-ups of symptoms, beyond any limitation reflected on one-time measurements of range of motion. DeLuca v. Brown, 8 Vet. App. 202, 206 -07 (1995) (holding that the provisions of 38 C.F.R. §§ 4.40 and 4.45 are not subsumed by the diagnostic codes applicable to the affected joint). However, a higher rating based on functional loss may not exceed the highest rating available under the applicable diagnostic code(s) pertaining to range of motion. See Johnston v. Brown, 10 Vet. App. 80, 85 (1997) (holding that because the maximum rating available under the diagnostic code pertaining to limitation of motion of the wrist had already been assigned, remand was not warranted for consideration of functional loss due to pain under 38 C.F.R. § 4.40). In making all determinations, the Board must fully consider the lay statements of record. A Veteran is competent to report on that of which he or she has personal knowledge. Layno v. Brown, 6 Vet. App. 465, 470 (1994). When considering whether lay evidence is competent the Board must determine, on a case-by-case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board has reviewed all of the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to the Veteran's claim. The Board has considered the Veteran's claim and decided entitlement based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to this claim. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). The Veteran is seeking an initial rating in excess of 10 percent for his service-connected lumbar spine disability from September 1, 2012, the date of service connection for the same, and a rating in excess of 20 percent from January 24, 2020, the effective date assigned by the RO in its February 2021 rating decision granting an increased rating. Of note is the February 2019 rating decision granting service connection for left lower extremity radiculopathy, sciatic nerve and femoral nerve, each rated as 10 percent disabling, from September 1, 2012; to date, the Veteran has not expressed dissatisfaction with the ratings assigned therein. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Entitlement to an initial rating in excess of 10 percent for service-connected a lumbar spine disability prior to January 24, 2020, and a rating in excess of 20 percent thereafter. The Veteran's service-connected lumbar spine disability has been evaluated based upon limitation of motion under the General Rating Formula for Diseases or Injuries of the Spine, specifically DC 5242, contemplating degenerative arthritis. See 38 C.F.R. § 4.71a, DCs 5235-5242. Arthritis established by X-ray examination findings is rated on the basis of limitation of motion of the affected joints. 38 C.F.R. § 4.71a, DC 5003. Specific to disabilities of the spine, the rating schedule provides for the evaluation of all spine disabilities under the General Rating Formula, unless the disability is rated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes, under DC 5243. See id. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is assigned when rating forward flexion of the thoracolumbar spine is greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine 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 assigned when forward flexion of the thoracolumbar spine is greater than 30 degrees, but not greater than 60 degrees; when the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or when there is 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 assigned when forward flexion of the thoracolumbar spine is 30 degrees or less, or there is favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned when there is unfavorable ankylosis of the thoracolumbar spine only. Finally, a 100 percent rating is assigned when there is unfavorable ankylosis of the entire spine. Id. These criteria are to be applied irrespective of whether there are symptoms such as pain, whether or not it radiates, stiffness, or aching in the affected area of the spine. Id. The General Rating Formula for Diseases and Injuries of the Spine provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See also Plate V, 38 C.F.R. § 4.71a. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than two weeks in the last 12 months, a 20 percent rating is warranted for such episodes having a total duration of at least two weeks but less than four weeks, a 40 percent rating is warranted for such episodes having a total duration of at least four weeks but less than six weeks, and a maximum 60 percent rating is warranted for such episodes having a total duration of at least six weeks. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. An incapacitating episode is a period of acute signs and symptoms that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes, Note 1. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a). Under the revised regulations, as to the only provision relevant to the claim decided herein, effective February 7, 2021, DC 5243, contemplating IVDS, is to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; the rater is directed to assign DC 5242, contemplating degenerative arthritis, degenerative disc disease other than IVDS, for all other disc diagnoses. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). VA's General Counsel has held that where a law or regulation changes during the pendency of a claim for a higher rating, the Board must first determine whether the revised version is more favorable to the Veteran. In so doing, it may be necessary for the Board to apply both the old and new versions of the regulation. If the revised version of the regulation is more favorable, the retroactive reach of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. The Board must generally apply both the former and the revised versions of the regulation for the period prior and subsequent to the regulatory change, but an effective date based on the revised criteria may be no earlier than the date of the change. VA thus must consider the claim for a higher rating pursuant to the former and revised regulations during the latter part of this appeal. See VAOPGCPREC 3 2000, 65 Fed. Reg. 33,422 (2000); DeSousa v. Gober, 10 Vet. App. 461, 467 (1997). Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. In this regard, the Board observes that former regulation 38 C.F.R. § 19.9 (b)(2) (now renumbered as 38 C.F.R. § 20.904(d)(2)) provided that the Board has the authority to consider appeals in light of laws, including but not limited to statutes, regulations and court decisions that were not previously considered by the agency of original jurisdiction. In Disabled American Veterans v. Sec of Veterans Affairs, 327 F.3d 1339 (Fed. Cir. 2003), the United States Court of Appeals for the Federal Circuit (Federal Circuit) specifically upheld the validity of 38 C.F.R. § 19.9 (b)(2) (now as noted renumbered as 38 C.F.R. § 20.904(d)(2)). Id. at 1349. As such, pursuant to 38 C.F.R. § 20.904 (d)(2), the Board will proceed to adjudicate the Veteran's claim. In a July 2012 Disability Benefits Questionnaire (DBQ), the Veteran reported worsening pain, with flare-ups resulting in the inability to stand, sit, or walk for long periods of time. Range of motion testing revealed, with pain at each terminal degree of motion: forward flexion to 90 degrees or greater; extension to 30 degrees or greater; and right and left lateral flexion and right and left lateral rotation each to 30 degrees or greater. The Veteran was able to perform repetitive-use testing, demonstrating the same range of motion as above, without additional limitation. The examiner found no functional loss or impairment of the spine. There was localized tenderness or pain to palpation for joints/soft tissue, described as direct tenderness at the lumbar and paralumbar region. There was no guarding, atrophy, ankylosis, neurological abnormalities, radiculopathy, assistive devices used, or IVDS. The Veteran demonstrated a normal gait and had normal strength, reflexes, and sensation; his straight leg raising was negative on the right and positive on the left. There were no other findings and the examiner reported that there was no impact on the Veteran's ability to work. During his August 2019 Board hearing, the Veteran asserted that he had been diagnosed with IVDS after imaging in 2010. He reported that he worked in a physically demanding job as a lawn and garden associate, lifting, bending, stocking, and assisting customers. He asserted that he treated his symptoms with "a lot" of pain medication, injections, transcutaneous electrical nerve stimulation (TENS), heat, and rest. In a January 2019 DBQ, the Veteran was diagnosed with degenerative joint disease and degenerative disc disease, and radiculopathy, left lower extremity. He reported worsening pain and denied flare-ups. The Veteran reported functional loss or impairment described as the inability to bend over to lift up objects. Range of motion testing revealed, with pain at forward flexion and right and left lateral flexion, each without functional loss: forward flexion to 75 degrees; extension to 25 degrees; and right and left lateral flexion and right and left lateral rotation each to 25 degrees. The examiner reported that the Veteran's abnormal range of motion did not itself contribute to a functional loss. There was no objective evidence of localized tenderness or pain to palpation for joints/soft tissue. There was no pain on weight bearing motion. While there was pain on passive and non-weight bearing motion, the results of range of motion testing in those planes were the same as above. The Veteran was able to perform repetitive-use testing, without additional limitation. The examiner reported that the Veteran was not being examined immediately after repetitive use over time and the examination was neither medically consistent nor inconsistent with his statements describing functional loss with such use. Pain and weakness significantly limited the Veteran's functional ability with repeated use over time, described in range of motion as: forward flexion to 65 degrees, extension to 20 degrees, and right and left lateral flexion and right and left lateral rotation each to 20 degrees. While the Veteran denied flare-ups, the examiner reported that he was not being examined during a flare-up and the examination was neither medically consistent with nor inconsistent with his statements describing functional loss during such. Pain, weakness, fatiguability, or incoordination did not significantly limit his functional ability with flare-ups, and the examiner provided estimated range of motion as: forward flexion to 75 degrees, extension to 25 degrees, and right and left lateral flexion and right and left lateral rotation each to 25 degrees. The examiner reported that additional factors contributing to the Veteran's disability included interference with sitting and standing, as doing so for prolonged periods of time caused increased pain. There was no guarding, atrophy, ankylosis, neurological abnormalities, assistive devices used, or IVDS. The Veteran demonstrated a normal gait and had normal strength, reflexes, and sensation; his straight leg raising was negative. He had radiculopathy on the left. There were no other findings and the examiner reported that the impact on the Veteran's ability to work included not be being to do work requiring him to bend over to lift heavy objects. In a January 2020 DBQ, the Veteran was diagnosed with degenerative disc disease and bilateral lower extremity radiculopathy. He reported pain across his low back and down his left buttock into his left calf and ankle and right calf. He described the impact of his disability on his ability to perform occupational functioning and ordinary activity as limited lifting, bending, and twisting, as well as limited various sitting positions or prolonged sitting or standing, due to pain. He described his functional loss or impairment as not being able to lay on his back for very long and not being able to bend down and pick things up or get up off of the floor. He reported almost daily flare-ups, precipitated by lifting, bending, twisting, and prolonged sitting or standing, and alleviated by sitting down, using a TENS unit or heat, and taking medication. He reported that his flare-ups ranged from mild to moderate to severe and lasted various periods of time dependent upon whether he could sit down and rest or stop what he is doing to cause the pain. Range of motion testing revealed, with pain in all planes without functional loss: forward flexion to 70 degrees; extension to 20 degrees; and right and left lateral flexion and right and left lateral rotation each to 20 degrees. The examiner reported that the Veteran's abnormal range of motion did not itself contribute to a functional loss. There was no objective evidence of localized tenderness or pain to palpation for joints/soft tissue. There was pain on weight bearing and passive motion, and no pain on non-weight bearing motion; the examiner confirmed that range of motion in all planes was as reported above. In this regard, however, it appears that the examiner mistyped the Veteran's demonstrated extension in this section of the DBQ, as they reported such as 60 degrees; normal extension is from zero to 30 degrees and the Veteran demonstrated 20 degrees of extension as recorded in the preceding section containing the original range of motion testing results. The Veteran was able to perform repetitive-use testing, without additional limitation. The examiner reported that the Veteran was not being examined immediately after repetitive use over time and the examination was medically consistent with his statements describing functional loss with such use. Pain significantly limited the Veteran's functional ability with repeated use over a period of time, and the examiner provider estimated range of motion as: forward flexion to 60 degrees, extension to 15 degrees, right and left lateral flexion each to 15 degrees, and right and left lateral rotation each to 25 degrees. The examiner reported that he was not being examined during a flare-up and the examination was medically consistent with his statements describing functional loss during such. Pain and lack of endurance significantly limited the Veteran's functional ability with flare-ups, and the examiner provider estimated range of motion as: forward flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion each to 10 degrees, and right and left lateral rotation each to 20 degrees. The examiner reported that additional factors contributing to the Veteran's disability included less movement than normal, disturbance of locomotion, and interference with sitting and standing. There was no guarding, atrophy, ankylosis, neurological abnormalities, or IVDS. The Veteran presented using a brace and demonstrated a normal gait and had normal strength and reflexes; his straight leg raising was positive. He had decreased sensation in the left lower leg and ankle and bilateral feet and toes. He had mild radiculopathy, bilaterally, affecting the sciatic and femoral nerves. There were no other findings and the examiner reported that the impact on the Veteran's ability to work included difficulty with prolonged standing, sitting, lifting, and bending down. As to each of the periods during the current appeal considered herein, the Board has considered the lay statements of the Veteran describing his pain and functional limitation related to his service-connected lumbar spine disability. He is competent to report the sensations and resultant limitation and there is no evidence that he is not credible in this regard. Layno, 6 Vet. App. 465, 470. No party argues that the Veteran clearly has had significant treatment and pain management for his lumbar spine symptoms, and experiences functional limitation as evidenced by the DBQs of record. Also, as to each of the periods during the current appeal considered herein, a separate 10 percent rating under DC 5003 for arthritis of the lumbar spine may not be assigned, as this would result in compensating twice for manifestations of the same disability, limited motion, in violation of the rule against pyramiding. 38 C.F.R. § 4.14. Further, as to each of the periods during the current appeal considered herein, the Board has considered whether DC 5243, contemplating IVDS, under the old or new regulations, may serve as a basis for an increased rating, however, it finds that such is not warranted. The Veteran, during his August 2019 Board hearing, asserted that he had been diagnosed with IVDS after imaging in 2010. The VA examiner, in the January 2020 DBQ, provided an exhaustive recitation of the Veteran's pertinent medical history, including clinical findings, some by MRI, related to intervertebral herniated discs, disc bulging, and disc displacement. However, the evidence of record, including those treatment records and the July 2012, January 2019, and January 2020 DBQs, appear silent for a diagnosis of IVDS or findings of disc herniation with compression and/or irritation of the adjacent nerve root, as is required for IVDS pursuant to the new regulations concerning DC 5243. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, DC 5243). To the extent that the Veteran indeed has been diagnosed with IVDS and/or has clinical findings of disc herniation with compression and/or irritation of the adjacent nerve root, that the Board does not read as such, there is no evidence or assertion that he has the incapacitating episodes contemplated by the pertinent rating criteria, episodes of acute signs and symptoms of IVDS that required prescribed bed rest and treatment by a physician at any time during the appeal. For the period prior to January 24, 2020, considering the evidence of record, the Board finds that the orthopedic manifestations of the Veteran's service-connected lumbar spine disability did not approach the severity contemplated for a rating in excess of 10 percent, the next higher rating of 20 percent, under the pertinent regulatory criteria. The Board has considered in its analysis the Veteran's pain and resultant functional impairment, his very worst range of motion demonstrated or estimated on examination. See Mitchell, 25 Vet. App. 32, 43; DeLuca, 8 Vet. App. 202, 206-07; 38 C.F.R. §§ 4.40, 4.45. As noted, in the July 2012 DBQ, the Veteran demonstrated forward flexion to 90 degrees or greater, extension to 30 degrees or greater, and right and left lateral flexion and right and left lateral rotation each to 30 degrees or greater, combined as 240 degrees, without pain resulting in functional loss or impairment of the spine, but with localized tenderness or pain to palpation for joints/soft tissue. Such warrants a 10 percent rating under General Rating Formula for Diseases and Injuries of the Spine contemplating localized tenderness not resulting in abnormal gait or abnormal spinal contour. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. As noted, in the January 2019 DBQ, the Veteran's worst range of motion, considering his pain and resultant functional limitation, was estimated by the examiner to be after repetitive use over time and included forward flexion to 65 degrees, extension to 20 degrees, and right and left lateral flexion and right and left lateral rotation each to 20 degrees, combined as 165 degrees. Such warrants a 10 percent rating under General Rating Formula for Diseases and Injuries of the Spine contemplating forward flexion greater than 60 degrees but not greater than 85 degrees. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating, a 20 percent rating, requires forward flexion greater than 30 degrees, but not greater than 60 degrees, 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. Id. Such was not seen in the clinical or lay evidence dated during this period, prior to January 24, 2020; such was not recorded in the July 2012 or January 2019 DBQs nor does it appear that such was recorded in the Veteran's treatment records. His orthopedic manifestations, even considering his most severe motion demonstrated or estimated and thus considering his pain and resultant functional limitation, did not approach the severity contemplated for a 20 percent rating. The Veteran does not assert otherwise. For the period since January 24, 2020, considering the evidence of record, the Board finds that the orthopedic manifestations of the Veteran's service-connected lumbar spine disability do not approach the severity contemplated for a rating in excess of 20 percent, the next higher rating of 40 percent, as the criteria providing a 30 percent do not pertain to the thoracolumbar spine, under the pertinent regulatory criteria. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. The Board has considered in its analysis the Veteran's pain and resultant functional impairment, his very worst range of motion demonstrated or estimated on examination. See Mitchell, 25 Vet. App. 32, 43; DeLuca, 8 Vet. App. 202, 206-07; 38 C.F.R. §§ 4.40, 4.45. As noted, in the January 2020 DBQ, the Veteran's worst range of motion considering his pain and resultant functional limitation was estimated by the examiner to be after flare-ups and included forward flexion to 50 degrees, extension to 15 degrees, right and left lateral flexion each to 10 degrees, and right and left lateral rotation each to 20 degrees, combined as 125 degrees. No favorable ankylosis was found. Such warrants a 20 percent rating under General Rating Formula for Diseases and Injuries of the Spine contemplating forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees. Id. Under the General Rating Formula for Diseases and Injuries of the Spine, the next higher rating, a 40 percent rating, requires forward flexion of the thoracolumbar spine is 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. Id. Such was not seen in the clinical or lay evidence dated during this period, since January 24, 2020; such was not recorded in the January 2020 DBQ nor does it appear that such was recorded in the Veteran's treatment records. His orthopedic manifestations, even considering his most severe motion demonstrated or estimated and thus considering his pain and resultant functional limitation, did not approach the severity contemplated for a 40 percent rating. The Veteran does not assert otherwise. In sum, based on the foregoing, the preponderance of the evidence is against an initial rating in excess of 10 percent for a service-connected lumbar spine disability prior to January 24, 2020, and a rating in excess of 20 percent thereafter. The Board finds the benefit of the doubt doctrine is thus not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. The Veteran's claim is denied. Entitlement to separate 10 percent ratings each for right lower extremity, radiculopathy, sciatic nerve and femoral nerve, associated with a service-connected lumbar spine disability. The criteria for separate 10 percent ratings each for right lower extremity, radiculopathy, sciatic nerve and femoral nerve, associated with a service-connected lumbar spine disability, have been satisfied as of January 24, 2020, the date of the Veteran's January 2020 DBQ diagnosing him with the same. Hart, 21 Vet. App. 505, 509-10; Fenderson, 12 Vet. App. 119, 126. As discussed above, the General Rating Formula provides that neurologic abnormalities associated with disabilities of the spine are to be separately evaluated under an appropriate diagnostic code. See 38 C.F.R. § 4.71a, General Rating Formula, Note (1). Also, as discussed above, the RO, in the February 2019 rating decision, granted service connection for left lower extremity radiculopathy, sciatic nerve and femoral nerve, each rated as 10 percent disabling, from September 1, 2012; the assignment of such ratings are not appeal issues. In the January 2020 DBQ, the Veteran was diagnosed with, in pertinent part, bilateral lower extremity radiculopathy. He had decreased sensation in the bilateral feet and toes. The examiner found radiculopathy, described as mild intermittent pain, paresthesias and/or dysesthesias, and numbness on the right, involving the sciatic and femoral nerves, described as mild in severity on the right. Paralysis of the sciatic nerve is rated under 38 C.F.R. § 4.124a, DC 8520. Under DC 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; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent rating requires complete paralysis of the sciatic nerve 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 (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. Paralysis of the femoral nerve is rated under 38 C.F.R. § 4.124a, DC 8526. Under DC 8526, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis; a 30 percent rating is assigned for severe incomplete paralysis; and a 40 percent maximum rating is assigned for complete paralysis of the femoral nerve where the paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8520. The term "incomplete paralysis," with 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 the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; Note prefacing DC's 8510 through 8730. Here, the criteria for separate 10 percent ratings, each, for the Veteran's right lower extremity, radiculopathy, sciatic nerve and femoral nerve, associated with a service-connected lumbar spine disability, are more nearly approximated as of January 24, 2020, under DCs 8520 and 8526 for mild incomplete paralysis of the sciatic and femoral nerves, respectively. There no is clinical or lay evidence of symptoms described as or approximating moderate or incomplete paralysis or complete paralysis thus warranting higher ratings. 38 C.F.R. § 4.124a, DCs 8520, 8526. The Veteran does not assert otherwise. Prior to this date, January 24, 2020, there is no evidence that the Veteran had such right lower extremity, radiculopathy, sciatic nerve and femoral nerve, associated with a service-connected lumbar spine disability. Resultant to neurological examination, the examiner in the July 2012 DBQ specifically found no radiculopathy and the examiner in the January 2019 DBQ specifically found radiculopathy only in the left lower extremity. While the Veteran's treatment records dated prior to January 24, 2020, included diagnoses of lumbar radiculopathy, without designation as to extremity, it is significant that he described neurological symptoms related to the left lower extremity and appears to only have reported radiating pain on the right. In September 2015, he reported radicular pain on the left greater than on the right; however, he was diagnosed after imaging with lumbar radiculopathy of the left lower extremity. As discussed above, the criteria of the General Rating Formula for Diseases and Injuries of the Spine, under which the Veteran's orthopedic manifestations of his service-connected lumbar spine disability is rated, are to be applied, in pertinent part, irrespective of whether there are symptoms such as pain, whether or not it radiates. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. In essence, the radiating pain reported by the Veteran during the course of the appeal, which he is competent to describe and has been recorded by his treatment providers, until the time of his clinical diagnosis of right lower extremity, radiculopathy, sciatic nerve and femoral nerve on January 24, 2020, in the DBQ, has been rated under General Rating Formula for Diseases and Injuries of the Spine, considering his pain and resultant functional limitation. Layno, 6 Vet. App. 465, 470. In sum, based on the foregoing, the preponderance of the evidence supports the conclusion that, effective January 24, 2020, separate 10 percent ratings, each, and no more, for right lower extremity, radiculopathy, sciatic nerve and femoral nerve, each associated with a service-connected lumbar spine disability, is granted. 38 U.S.C. § 5107. P.M. DILORENZO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Department of Veterans Affairs 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.