Citation Nr: 21029482 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 14-32 260 DATE: May 13, 2021 ORDER Before December 1, 2016, a rating in excess of 20 percent for a back disability is denied. On and after December 1, 2016, a rating in excess of 40 percent for a back disability is denied. Before September 28, 2020, a rating in excess of 10 percent for radiculopathy of the left lower extremity is denied. On and after September 28, 2020, a rating in excess of 40 percent for radiculopathy of the left lower extremity is denied. Before September 28, 2020, a rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. On and after September 28, 2020, a rating in excess of 40 percent for radiculopathy of the right lower extremity is denied. FINDINGS OF FACT 1. Before December 1, 2016, the Veteran's back disability did not result in forward flexion limited to 30 degrees or less, ankylosis, or incapacitating episodes of intervertebral disc disease (IVDS). 2. On and after December 1, 2016, the Veteran's back disability has not resulted in unfavorable ankylosis or incapacitating episodes of IVDS. 3. Before September 28, 2020, the Veteran's radiculopathy of the left lower extremity has not resulted in symptoms approximating moderate incomplete paralysis of the sciatic nerve. 4. On and after September 28, 2020, the Veteran's radiculopathy of the left lower extremity has not resulted in symptoms approximating severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. 5. Before September 28, 2020, the Veteran's radiculopathy of the right lower extremity has not resulted in symptoms approximating moderate incomplete paralysis of the sciatic nerve. 6. On and after September 28, 2020, the Veteran's radiculopathy of the right lower extremity has not resulted in symptoms approximating severe incomplete paralysis of the sciatic nerve with marked muscle atrophy. CONCLUSIONS OF LAW 1. Before December 1, 2016, the criteria for a rating in excess of 20 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. 2. On and after December 1, 2016, the criteria for a rating in excess of 40 percent for a back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237. 3. Before September 28, 2020, the criteria for a rating in excess of 10 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 4. On and after September 28, 2020, the criteria for a rating in excess of 40 percent for radiculopathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 5. Before September 28, 2020, the criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. 6. On and after September 28, 2020, the criteria for a rating in excess of 40 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2002 to September 2002, from September 2004 to January 2006, and from March 2009 to February 2010. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2011 rating decision of the Agency of Original Jurisdiction (AOJ) continuing an existing 20 percent rating for a back disability. A July 2014 rating decision assigned an initial separate 10 percent rating for radiculopathy of the left lower extremity. A July 2017 rating decision increased the rating of the back disability to 40 percent effective December 1, 2016. A February 2021 rating decision assigned an initial separate 10 percent rating for radiculopathy of the right lower extremity before September 28, 2020, and a 40 percent rating on and after September 28, 2020. That rating decision additionally increased the rating for radiculopathy of the left lower extremity to 40 percent on and after September 28, 2020. The Veteran participated in a hearing before the Board in January 2018, and a transcript of that hearing has been associated with the record. This matter was most recently before the Board in April 2020, when it remanded the Veteran's claims in order to further develop the medical evidence of record. The AOJ has substantially complied with the Board's April 2020 remand directives, and it will proceed to a decision. Increased Rating Spine disabilities are evaluated under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever results in the higher evaluation when all disabilities are combined. 38 C.F.R. § 4.71a. The General Rating Formula for Diseases and Injuries of the Spine provides for the following ratings, in pertinent part: 20 percent: Forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, or the combined range of motion of the thoracolumbar spine not greater than 120 degrees, or muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. 40 percent: Forward flexion of the thoracolumbar spine to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. 50 percent: Unfavorable ankylosis of the entire thoracolumbar spine. 100 percent: Unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. "Ankylosis" is immobility and consolidation of a joint due to a disease, injury, or surgical procedure. Lewis v. Derwinski, 3 Vet. App. 259 (1992). Unfavorable ankylosis is a condition in which the entire thoracolumbar spine or the entire spine is fixed in flexion or extension and ankylosis results in one or more of the following: difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching. The Formula for Rating IVDS Based on Incapacitating Episodes rates lumbar spine disabilities as follows, in pertinent part: 20 percent: Incapacitating episodes having a total duration of at least two weeks but fewer than four weeks during the past 12 months. 40 percent: Incapacitating episodes having a total duration of at least four weeks but fewer than six weeks during the past 12 months. 60 percent: Incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Diagnostic Code 5237. An "incapacitating episode" is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Effective February 7, 2021, VA revised the criteria for evaluating musculoskeletal disorders. This revision did not, however, change the General Rating Formula for Diseases and Injuries of the Spine, nor did it change the Formula for Rating IVDS Based on Incapacitating Episodes. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76464 (Nov. 30, 2020); Correction, 86 Fed. Reg. 8142, 8143 (Feb. 4, 2021). Therefore, the revised criteria effective February 7, 2021, are not applicable in this case and the Board will not consider them. Turning to the facts in this case, the Veteran filed his claim for an increased rating in April 2010. The Veteran underwent a VA examination in August 2010, at which time the Veteran complained of experiencing back pain. The examiner noted that the Veteran severely flinched with even light touch of the thoracolumbar spinous processes and paraspinous muscles, moving from a relaxed sitting posture to an arched posture. The examiner noted that the Veteran initially slouched uncomfortably in a chair but later sat normally without a back rest. The examiner noted that the Veteran had fewer than 10 degrees of motion in every direction. With that said, the examiner noted testing was "difficult to assess" as a result of the Veteran's unwillingness to experience discomfort, which appeared to be out of proportion to the otherwise unguarded motions and movements that the examiner observed. The Veteran did not have ankylosis. The Veteran underwent an additional VA examination in July 2014, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran complained of constant pain that was not alleviated by pain medication. The Veteran stated that he experienced flare-ups when his back spasmed; during flare-ups, the Veteran experienced less movement of the back and he occasionally fell. The Veteran had forward flexion to 45 degrees, extension to 0 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 25 degrees. The Veteran experienced pain with all movement. Repetitive use testing resulted in forward flexion to 35 degrees, extension to 10 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 25 degrees. Factors such as pain, weakness, fatigability, or incoordination would significantly limit the Veteran's functional ability during flare-ups and with repeated use over time, with the examiner noted that the Veteran would move more slowly. The Veteran experienced functional loss in the form of less movement than normal and painful movement. The Veteran had localized tenderness or pain to palpation of the joints and soft tissue of the back, with a "dramatic response" to minimal light palpation of the skin overlying the right lumbar paraspinous muscles, and tenderness of the left lumbar paraspinous muscle. The examiner found that the Veteran's guarding of the thoracolumbar spine resulted in an abnormal gait or spinal contour. There was no ankylosis of the spine. The examiner found that the Veteran did not have IVDS. The Veteran underwent an additional VA examination in October 2014, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran experienced chronic pain in his back, and he could walk only 30 feet at a time, and he required help from his wife with dressing, cleaning, and cooking. The Veteran stated that he experienced flare-ups in the form of a sharp, crushing, aching pain with lifting and bending. The Veteran had forward flexion to 45 degrees with pain, extension to 0 degrees with pain, bilateral lateral flexion to 15 degrees with pain, right lateral rotation to 25 degrees with pain at 20 degrees, and left lateral rotation to 20 degrees with pain. Repetitive use testing did not result in an additional loss of motion or other functional loss. The Veteran experienced functional loss in the form of less movement than normal and painful movement. Flare-ups would result in a mild overall loss of strength, coordination, and fatigue, which themselves would result in a limitation of forward flexion to 35 degrees. The examiner noted tenderness of the spine but no spasms; with that said, the examiner also found that the Veteran had muscle spasm resulting in an abnormal gait or spinal contour. There was no ankylosis of the spine. The examiner found that the Veteran did not have IVDS. The Veteran was assigned temporary 100 percent ratings on the basis of treatment requiring convalescence from October 15, 2015, to April 30, 2016, and from May 12, 2016, to November 30, 2016. Following the conclusion of the Veteran's temporary total evaluation, the Veteran underwent an additional VA examination in December 2016, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran experienced chronic pain, soreness, and stiffness that flared up with bending and lifting. The Veteran indicated that his wife helped him dress. The Veteran had forward flexion to 30 degrees, extension to 0 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 15 degrees. The Veteran had pain with all ranges of motion, and the Veteran had pain with weight-bearing and non weight-bearing. Repetitive use testing did not result in an additional loss of motion or other functional loss. Pain would significantly limit the Veteran's functional ability during flare-ups. The examiner was unable to say without speculation whether repeated use over time would significantly limit the Veteran's functional ability. The Veteran did not have guarding or muscle spasm, and there was no ankylosis of the spine. The examiner found that the Veteran had IVDS but had not experienced episodes of acute signs or symptoms requiring physician-prescribed bed rest and treatment by a physician during the preceding 12 months. The Veteran underwent an additional VA examination in May 2019, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine. The Veteran described experiencing sharp, stabbing pain in his back that flared up with bending, lifting, twisting, and carrying. The Veteran reported that he experienced flare-ups of symptoms multiple times a day. The Veteran had forward flexion to 40 degrees, extension to 0 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 10 degrees. The Veteran had pain with all ranges of motion, and the Veteran had pain with weight-bearing and non weight-bearing. Repetitive use testing did not result in an additional loss of motion or other functional loss. Pain would significantly limit the Veteran's functional ability with repeated use over time, resulting in forward flexion to 35 degrees, extension to 0 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 10 degrees. Pain would significantly limit the Veteran's functional ability with flare-ups, resulting in forward flexion to 30 degrees, extension to 0 degrees, bilateral lateral flexion to 15 degrees, and bilateral lateral rotation to 10 degrees. The Veteran did not have guarding or muscle spasm, and there was no ankylosis of the spine. The examiner found that the Veteran had IVDS but had not experienced episodes of acute signs or symptoms requiring physician-prescribed bed rest and treatment by a physician during the preceding 12 months. The Veteran underwent an additional VA examination in September 2020, at which time the examiner diagnosed the Veteran with degenerative arthritis of the spine and IVDS. The Veteran complained of constant pain in his middle and upper back and acute sudden pain in his lower back. The Veteran used a recliner as his bed, he did not use stairs in his home. The Veteran stated that he could not dress himself or put on his shoes, and he avoided bending and twisting to avoid shock-like pain. The Veteran stated that twisting and bending caused him to experience severe flare-ups of back pain every day, and nothing alleviated this pain. The Veteran had forward flexion to 20 degrees, extension to 10 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 5 degrees. The Veteran experienced pain with all movement except extension, and the Veteran had pain with both weight-bearing and non-weight bearing. The Veteran's range of motion itself contributed to a functional loss because the Veteran was unable to stand fully upright. The Veteran was unable to participate in repetitive use testing, with the examiner noting that the Veteran's range of motion was so limited that repetitive use measurements would not be useful. While the Veteran was not being examined immediately after repeated use over time or during a flare-up, the examiner found that pain would significantly limit the Veteran's functional ability, with a limitation of forward flexion to 15 degrees, extension to 10 degrees, bilateral lateral flexion to 5 degrees, and bilateral lateral rotation to 5 degrees. There was no guarding, muscle spasm, or ankylosis of the spine. While the examiner found that the Veteran had IVDS, the examiner stated that the Veteran had experienced episodes of acute signs or symptoms requiring physician-prescribed bed rest and treatment by a physician during the preceding 12 months. The examiner did not, however, describe the total number of such episodes, and he described only the Veteran's subjective account of his symptoms in response to this question. In addition to the results of these VA examinations, the Board has reviewed the Veteran's VA and private treatment records, which show that the Veteran has consistently received treatment for chronic, severe back pain since filing his appeal. These treatment records show a symptom picture that is broadly consistent with the observations of VA examiners. For example, in December 2010, a clinician noted that the Veteran had flexion to 40 degrees with pain. In May 2017, a clinician noted that the Veteran had normal flexion and extension of the back. In February 2018, a clinician noted that the Veteran's lumbar flexion was limited by 90 percent, his extension limited by 50 percent, his right side bend by 25 percent, his left side bend by 50 percent, and his rotation by 50 percent. An April 2020 MRI of the Veteran's spine showed status post T8 laminectomy and spinal cord stimulator explantation with expected postoperative granulation tissue and mild degenerative changes of the lumbar spine. The Veteran has additionally received pain management treatment throughout the appeal; for example, in November 2020, the Veteran was placed on a morphine infusion pump in treatment of his back pain. Consideration has also been given to the lay contentions regarding the Veteran's symptoms. Throughout the appeal, the Veteran has described experiencing severe back pain that he believes warrants ratings in excess of those currently assigned. For example, during his January 2018 hearing before the undersigned, the Veteran described in detail the nature and effects of his back pain, and he stated that his severe back pain had persisted despite undergoing a number of surgeries. Turning to an analysis of these facts, the Veteran's back disability is rated 20 percent disabling before December 1, 2016 (except during the above-described periods of temporary total ratings from October 15, 2015, to April 30, 2016, and from May 12, 2016, to November 30, 2016), and 40 percent disabling on and after December 1, 2016. A rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine requires the presence of unfavorable ankylosis of the entire thoracolumbar spine, which the Veteran has never shown, nor has he so contended. Though the Veteran has experienced painful movement throughout the appeal, the Veteran has consistently maintained a range of motion of the thoracolumbar spine. The Board fully acknowledges that the symptoms of the Veteran's low back disability hinder him from standing fully erect. Such could be found to be analogous to ankylosis even though ankylosis has not been diagnosed. However, even in liberally construing the Veteran's back disability has resulting in ankylosis, there is no evidence suggesting that the ankylosis is unfavorable. Specifically, there is no evidence that the "ankylosis" causes difficulty walking because of a limited line of vision, restricted opening of the mouth and chewing, breathing limited to diaphragmatic respiration, gastrointestinal symptoms due to pressure of the costal margin on the abdomen, dyspnea or dysphagia, atlantoaxial or cervical subluxation or dislocation, or neurologic symptoms due to nerve root stretching (as opposed to nerve impingement). With a rating in excess of 40 percent unwarranted at any time, a greater rating for the Veteran's back disability is unavailable on and after December 1, 2016. With a rating in excess of 40 percent unwarranted at any time, the Board will next address whether a 40 percent rating is warranted for the Veteran's back disability at any time before December 1, 2016. Such a rating requires either favorable ankylosis of the spine or a limitation of forward flexion to 30 degrees or fewer. At no time has the Veteran's back been ankylosed, or immobile. The Veteran has contended, for example in March 2021, that he has indeed experienced favorable ankylosis of the spine. While the Board has considered this argument, the Veteran additionally stated that he was "not able to bend more than 30 degrees forward, back, or to the side". Such a statement is inconsistent with a finding that the Veteran has experienced ankylosis, which is immobility of the spine. As noted above, though the Veteran has experienced painful movement throughout the appeal, the Veteran has consistently maintained a range of motion of the thoracolumbar spine. The examinations during this period (as opposed to those in 2019 and 2020) do not suggest that pain would result in functional impairment akin to favorable ankylosis. Similarly, the Veteran's back was not functionally limited to 30 degrees of forward flexion or fewer at any time before December 1, 2016, even considering his symptoms following repeated use, with repeated use over time, and during flare-ups. While the August 2010 examiner noted that the Veteran had fewer than 10 degrees of motion in every direction, the examiner found the validity of such testing to be "difficult to assess" because of the Veteran's display of otherwise unguarded motions outside of formal range of motion testing. The Board thus puts little weight in these findings and concludes that the results of the August 2010 examination themselves do not support a greater rating for the Veteran's back disability. A rating in excess of 20 percent is unwarranted at any time before December 1, 2016. With greater ratings unavailable based on the General Rating Formula for Diseases and Injuries of the Spine, the Board will next consider whether greater ratings are warranted under the Formula for Rating IVDS Based on Incapacitating Episodes. The record shows that the Veteran indeed has IVDS. With that said, ratings in excess of those currently assigned require not only such a diagnosis, but also the presence of incapacitating episodes with bed rest and treatment prescribed by a physician. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. In this case, the weight of the evidence, including the findings of examiners in October 2014, December 2016, and May 2019, does not support a finding that the Veteran has experienced incapacitating episodes with physician-prescribed bed rest. In making this finding, the Board acknowledges that the September 2020 examiner found that the Veteran had indeed experienced incapacitating episodes. This finding is however, based only upon the Veteran's self-reported medical history, which is not otherwise supported by the medical evidence of record. This notation alone, therefore, does not support the award of ratings in excess of those currently assigned on the basis of IVDS. In sum, the evidence does not show the presence of incapacitating episodes of IVDS, and the criteria for a greater rating based on IVDS have not been met. In making these determinations, the Board has considered the Veteran's functional loss due to factors such as pain, weakened movement, excess fatigability, and incoordination that cause additional disability beyond that which is reflected on range of motion measurements. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The Board accepts the Veteran's competent and credible assertions that his service-connected back disability causes him to experience pain, and the Veteran's existing ratings have been assigned based in part on those assertions. The rating schedule does not require a separate rating for pain itself. Spurgeon v. Brown, 10 Vet. App. 194 (1997). The Board has also considered the effects of flare-ups on the Veteran's functioning. Sharp v. Shulkin, 29 Vet. App. 26 (2017); Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Such flare-ups must be quantifiable and result in a limitation of motion or function beyond that contemplated by the already provided evaluation. In addition, because there is a regulation addressing stabilization of ratings, the flare-up must be of a sufficient length to establish a greater severity of overall impairment, rather than a brief snapshot in time. The Board's above analysis considers the Veteran's reports of the nature and extent of his flare-ups and finds that these reports do not warrant greater ratings than those currently assigned. Generally, when evaluating diseases and injuries of the spine, the Board is to separately evaluate any associated neurological abnormalities. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1). In this case, the Veteran's radiculopathy of the bilateral lower extremities is rated 10 percent disabling before September 28, 2020, and 40 percent disabling on and after September 28, 2020. The Board will address whether greater ratings are available at any time during the period on appeal. A 10 percent rating applies to mild incomplete paralysis of the sciatic nerve, a 20 percent rating applies to moderate incomplete paralysis, a 40 percent rating applies to moderately severe incomplete paralysis, and a 60 percent rating applies to severe incomplete paralysis with marked muscular atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. While an 80 percent rating applies to complete paralysis of the sciatic nerve, the record contains no clinical evidence of complete paralysis, nor has the Veteran alleged that he has complete paralysis. Id. Terms such as "mild", "moderate", and "severe" are not defined in the rating schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are equitable and just as contemplated by the requirements of the law. 38 C.F.R. § 4.6. Turning to the facts in this case, in August 2010, an examiner noted that the Veteran had no weakness, paralysis, paresthesias, or numbness. Reflex testing was normal. In July 2014, the Veteran stated that he experienced unpredictable episodes of pain that radiated down both of his legs and intermittent tingling of the toes without a loss of sensation. Muscle strength testing was normal, and the Veteran had no muscle atrophy. Reflex testing was hyperactive without clonus. Sensory examination was decreased bilaterally at the lower leg and ankle, but otherwise normal. The examiner noted that the Veteran experienced severe intermittent pain of the bilateral extremities and moderate paresthesias and dysesthesias as a result of radiculopathy. The examiner concluded that the Veteran's right side was not affected by radiculopathy, and the left side was mildly affected. In October 2014, the Veteran complained of pain and subjective feelings of weakness in both lower extremities. Muscle strength testing was normal, and the Veteran had no muscle atrophy. Deep tendon reflexes were normal. Sensory examination was normal, except that the Veteran showed decreased sensation at the lower leg, ankle, feet, and toes. The examiner noted that the Veteran experienced mild constant pain, paresthesias, dysesthesias, and severe intermittent pain of the left lower extremity as a result of radiculopathy. The Veteran did not experience any such symptoms in his right lower extremity. The examiner concluded that the Veteran's right side was not affected by radiculopathy, and the left side was mildly affected. In December 2016, the Veteran complained of pain that radiated from his back to his bilateral feet. The examiner noted that the Veteran had full sensation and strength upon examination. Muscle strength testing was normal, and the Veteran had no muscle atrophy. Reflex and sensory testing were normal. The examiner noted that the Veteran experienced mild constant pain, intermittent pain, paresthesias, and dysesthesias of the left lower extremity as a result of radiculopathy. The Veteran experienced mild intermittent pain of the right lower extremity. The examiner concluded that the Veteran's right side was not affected by radiculopathy, and the left side was mildly affected. In May 2019, the Veteran described experiencing pain that radiating from his back into his legs. The examiner noted that the Veteran had full sensation and strength upon examination. Muscle strength testing was normal, and the Veteran had no muscle atrophy. Reflex testing was normal. The Veteran had decreased sensation at the upper left anterior thigh, thigh, knee, lower leg, ankle, feet, and toes. The Veteran had decreased sensation at the right thigh and knee, but sensation was otherwise normal. The examiner noted that the Veteran experienced mild constant pain, intermittent pain, paresthesias, dysesthesias, and numbness of the left lower extremity as a result of radiculopathy. The Veteran's right lower extremity did not show symptoms of radiculopathy. The examiner concluded that the Veteran's right side was not affected by radiculopathy, and the left side was mildly affected. In September 2020, the Veteran complained of experiencing shock-like pain and numbness that extended down his left leg into his toes. The Veteran complained of right-sided numbness that radiated into his hip and knee. The Veteran stated that he fell frequently and needed to use a walker. Muscle strength testing was normal, except left ankle dorsiflexion and great toe extension showed active movement against some resistance. The Veteran had no muscle atrophy. Deep tendon reflexes were normal, except the left ankle showed hypoactive reflexes. Sensory testing was normal, except for decreased sensation at the left lower leg, ankle, foot, and toes. The examiner noted that the Veteran had mild constant pain, severe intermittent pain, and numbness of the left lower extremity as the result of radiculopathy. The Veteran had mild intermittent pain of the right lower extremity. The examiner concluded that the Veteran's right side was not affected by radiculopathy, and the left side was mildly affected. The examiner noted that inconsistencies in the examination rendered the results "less reliable". In addition to the results of these VA examinations, the Board has reviewed the Veteran's VA and private treatment records. These records show that the Veteran has consistently received treatment for radicular symptoms since filing his appeal, with the Veteran endorsing symptoms generally consistent with those in the above-discussed examination reports. For example, in May 2019, the Veteran complained of bilateral leg weakness and experiencing frequent falls. Turning to an analysis of this evidence, a rating in excess of 40 percent based on incomplete paralysis of the sciatic nerve requires a finding of severe incomplete paralysis with marked muscle atrophy. No clinician or examiner has found the Veteran's symptoms of radiculopathy to result in severe incomplete paralysis, nor has any clinician or examiner found marked muscle atrophy of the lower extremities. To the contrary, examiners in October 2014, December 2016, May 2019, and September 2020, have found there to be no muscle atrophy of the lower extremities. These examiners have similarly found the Veteran's symptoms of the left lower extremity to be mild, and the symptoms of the right lower extremity to be nonexistent. While the Veteran has otherwise sought treatment for subjective symptoms such as weakness and radiating pain, the Board does not find such treatment records to be consistent with a finding of severe incomplete paralysis with marked muscle atrophy. A rating in excess of 40 percent based on incomplete paralysis of the sciatic nerve is therefore unwarranted at any time, and a greater rating for the Veteran's radicular symptoms is thus unavailable on and after September 28, 2020. With a rating in excess of 40 percent unwarranted for the Veteran's radicular symptoms at any time, the Board will next address whether ratings in excess of 10 percent are warranted for the Veteran's radiculopathy of the bilateral lower extremities at any time before September 28, 2020. Greater ratings based on radiculopathy of the sciatic nerve require a finding of moderate incomplete paralysis of the sciatic nerve. Before September 28, 2020, the Veteran consistently complained of subjective symptoms such as pain, weakness, and dysesthesias of the lower extremities. With that said, examiners in October 2014, December 2016, May 2019, and September 2020, found the Veteran's symptoms of the left lower extremity to be mild, and the symptoms of the right lower extremity to be nonexistent. Furthermore, the medical evidence of record shows that sensory, muscle, and reflex testing of the lower extremities were generally either normal or mildly impaired. The Board thus finds that ratings in excess of the currently assigned 10 percent ratings for radiculopathy of the lower extremities are unwarranted at any time before September 28, 2020. In sum, the weight of the evidence is against the assignment of ratings in excess of 10 percent for the Veteran's radiculopathy of the lower extremities before September 28, 2020, and in excess of 40 percent thereafter. MICHAEL A. HERMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.A. Flynn, 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.