Citation Nr: 21041916 Decision Date: 07/10/21 Archive Date: 07/10/21 DOCKET NO. 16-63 827 DATE: July 10, 2021 ORDER An increased rating of 40 percent, but no higher, for a lumbar spine disability is granted, effective from October 14, 2015 to March 17, 2016, from May 1, 2016 to April 25, 2018, and from June 1, 2018. An increased initial rating of 40 percent, but no higher, for sciatic radiculopathy, right lower extremity is granted, effective from October 14, 2015. An increased initial rating of 30 percent, but no higher, for femoral radiculopathy, right lower extremity is granted, effective from October 14, 2015. An increased initial rating of 40 percent, but no higher, for sciatic radiculopathy, left lower extremity is granted, effective from January 29, 2021. An increased initial rating of 30 percent, but no higher, for femoral radiculopathy, left lower extremity is granted, effective from January 29, 2021. FINDINGS OF FACT 1. From October 14, 2015 to March 17, 2016, from May 1, 2016 to April 25, 2018, and from June 1, 2018, the Veteran's lumbar spine disability has been manifested by forward flexion of the thoracolumbar spine to 30 degrees or less. Incapacitating episodes of intervertebral disc syndrome (IVDS) and unfavorable ankylosis of the entire thoracolumbar spine or of the entire spine have not been shown. 2. Signs and symptoms of right and left lower extremity sciatic radiculopathy have most nearly approximated moderately severe incomplete paralysis of the sciatic nerve. Severe incomplete paralysis with marked muscular atrophy has not been shown. 3. Signs and symptoms of right and left lower extremity femoral radiculopathy have most nearly approximated severe incomplete paralysis of the femoral nerve. Complete paralysis has not been shown. CONCLUSIONS OF LAW 1. From October 14, 2015 to March 17, 2016, from May 1, 2016 to April 25, 2018, and from June 1, 2018, the criteria for an evaluation of 40 percent, but no higher, for the Veteran's lumbar spine disability are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.40, 4.45, 4.71a, Diagnostic Code 5243. 2. From October 14, 2015, the criteria for an initial rating of 40 percent, but no higher, for right lower extremity sciatic radiculopathy are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124a, Diagnostic Code 8520. 3. From October 14, 2015, the criteria for an initial rating of 30 percent, but no higher, for right lower extremity femoral radiculopathy are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124a, Diagnostic Code 8526. 4. From January 29, 2021, the criteria for an initial rating of 40 percent, but no higher, for left lower extremity sciatic radiculopathy are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124a, Diagnostic Code 8520. 5. From January 29, 2021, the criteria for an initial rating of 30 percent, but no higher, for left lower extremity femoral radiculopathy are met. 38 U.S.C. §§ 1155, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.120, 4.123, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1984 to September 2006. These matters are before the Board of Veterans' Appeals (Board) on appeal of a February 2016 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In February 2019, the Board remanded the claims for further evidentiary development. The Board finds that there has been substantial compliance with the prior remand instructions. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Board notes that the Veteran's claim of entitlement to service connection for a cervical spine disability, previously on appeal, was granted in a November 2020 rating decision. As such, that claim is considered to be resolved and is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second NOD must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. The Board notes that the Veteran expressed his desire to withdraw the claim currently on appeal in a written statement submitted in January 2021. However, the record shows that that same day, the Veteran submitted an intent to file for the claims currently on appeal. Withdrawal of an appeal is only effective where withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant. See DeLisio v. Shinseki, 25 Vet. App. 45, 57 (2011). Given that the Veteran submitted increased rating claims for that were already in appellate status, it is not clear that the Veteran's withdrawal was done with a full understanding of the consequences of his actions. Therefore, the Board finds that the criteria for withdrawal are not met and that the claims are still on appeal. 38 C.F.R. § 20.204(b). INCREASED RATINGS Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Lumbar Spine Disability By way of history, the Veteran filed an increased rating claim for his service-connected lumbar spine disability on October 14, 2015. In the February 2016 rating decision on appeal, the RO continued the Veteran's 10 percent rating for degenerative disc disease of the lumbar spine with invertebral disc syndrome, under Diagnostic Code 5243, for IVDS. 38 C.F.R. § 4.71a. In a November 2020 rating decision, the RO assigned a 100 percent rating from March 17, 2016 to May 1, 2016, a 10 percent rating from May 1, 2016 to April 25, 2018, a 100 percent rating from April 25, 2018 to June 1, 2018, a 10 percent rating from June 1, 2018 to December 18, 2019, and a 40 percent rating thereafter, under Diagnostic Code 5243. 38 C.F.R. § 4.71a. Although the period in which the Veteran was granted 100 percent ratings does constitute a full grant for his service-connected lumbar spine disability, higher evaluations are still available for the each of the staged-periods in which the Veteran's condition was rated less than 100 percent. As such, these staged periods are still under appeal and are discussed below. Effective February 7, 2021, the schedular criteria for rating the musculoskeletal system were amended. Prior to February 7, 2021, pursuant to 38 C.F.R. § 4.71a, disabilities evaluated under Diagnostic Code 5243 may be rated either under the General Formula for Diseases and Injuries of the Spine (General Formula) or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. After February 7, 2021, Diagnostic Code 5243 for IVDS is assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise Diagnostic Code 5242 is assigned for all other disc diagnoses. Where the rating criteria is amended during the course of an appeal, the Board considers both the former and the current schedular criteria because, should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991) (holding that, where a law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to appellant should and will apply unless Congress provides otherwise or permits the Secretary to do otherwise)). Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, the combined range of motion of the thoracolumbar spine is greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted where forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted where 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 warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. Lastly, a 100 rating is warranted where there is unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, Diagnostic Code 5242. The Notes following the General Rating Formula provide further guidance in rating diseases or injuries of the spine. Note 1 specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note 2 states 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. Note 3 provides that in exceptional cases, an examiner may state that because of age, body habitus, neurological disease, or other factors not the result of disease or injury of the spine, the range of motion of spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range of motion stated in Note 2. Provided that the examiner supplies an explanation, the examiner's assessment that the range of motion is normal for that individual will be accepted. Note 4 provides that range of motion measurements are to be rounded to the nearest five degrees. Note 5 defines unfavorable ankylosis as a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Comparatively, under the formula for rating IVDS, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note 1 to the formula for rating IVDS based on incapacitating episodes defines an incapacitating episode as "a period of acute signs and symptoms due to [IVDS] that requires bed rest prescribed by a physician and treatment by a physician." Finally, the Board recognizes that, in some circumstances, it must consider functional impairment in addition to limitation of motion due to factors such as pain, weakness, premature or excess fatigability, and incoordination when deciding an appropriate rating. See 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). After review of the medical and lay evidence regarding the Veteran's lumbar spine disability, a 40 percent rating is warranted. Turning to the relevant evidence, medical treatment records throughout the pendency of the appeal reflect both conservative treatments, including epidural steroid injections and chiropractic treatment, and multiple surgeries for the Veteran's lumbar spine disability. The Veteran was first afforded a VA lumbar spine examination in January 2016. The VA examiner diagnosed the Veteran with IVDS and degenerative disc disease of the lumbar spine. The Veteran endorsed flare ups of the back and described them as pain radiating down his right leg and limitation of function. The VA examiner determined that the Veteran's initial forward flexion was limited to 70 degrees, extension was limited to 20 degrees, right and left lateral flexion was limited to 20 degrees each, and right and left lateral rotation was limited to 25 degrees each. The Veteran had pain with all ranges of motion that caused functional loss, but no pain with weightbearing. The examiner also noted that the Veteran was able to perform repetitive use testing with no additional functional loss. The examiner reported that the examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and during flare ups. The examiner determined that pain significantly limited functional ability with repeated use over a period of time and during flare ups. The examiner explained that he was unable to describe the additional limitation in functional ability in terms of range of motion because such would depend on the type of activity performed and severity of pain experienced by the Veteran. The Veteran had localized tenderness that did not result in abnormal gait or abnormal spinal contour. He had additional factors of disability, including interference with sitting and interference with standing. The Veteran had normal muscle strength, normal reflexes and sensation, and no muscle atrophy. The Veteran had positive right-side straight leg raising, severe constant radicular pain, and moderate numbness of the right lower extremity. The examiner diagnosed the Veteran with moderate radiculopathy of the femoral and sciatic nerves of the right lower extremity. The examiner also determined that the Veteran did not have ankylosis of the lumbar spine or any other neurologic abnormalities, and that his IVDS did not result in any episodes of acute signs or symptoms that required bed rest prescribed by a physician. In an April 2016 Notice of Disagreement, the Veteran reported that he underwent back surgery in March 2016 and could not tie his shoes, twist or bend. The Veteran was then afforded another VA lumbar spine examination in December 2017. The examiner diagnosed the Veteran with degenerative disc disease of the lumbar spine with IVDS, status post transforaminal lumbar interbody fusion L5-S1 with residuals. The Veteran reported that he continued to have back pain after the surgery, including sharp pain with twisting and bending. The examiner determined that the Veteran's initial forward flexion was limited to 45 degrees, extension was limited to 10 degrees, right and left lateral flexion was limited to 30 degrees each, and right and left lateral rotation was limited to 30 degrees each. The examiner determined that all ranges of motion exhibited pain, but it did not cause functional loss. The examiner also noted that the Veteran was able to perform repetitive use testing with no additional functional loss. The examination was neither medically consistent nor inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during flare ups. She stated that it was not possible, without resorting to mere speculation, to estimate loss of range of motion, because there is no conceptual or empirical basis for making such a determination without directly observing function under these conditions. She noted the Veteran did not have guarding or muscle spasm of the thoracolumbar spine. The VA examiner noted that an additional factor contributing to disability was less movement than normal due to ankylosis, limitation or blocking, adhesions, etc. The Veteran did not have muscle atrophy and had normal reflexes and sensation to light touch. The Veteran had negative straight leg raising but mild intermittent radicular pain. The examiner diagnosed the Veteran with mild radiculopathy of the femoral nerve of the right lower extremity. The examiner also determined that the Veteran did not have ankylosis of the lumbar spine or any other neurologic abnormalities, and that his IVDS did not result in any episodes of acute signs or symptoms that required bed rest prescribed by a physician. The Veteran was again afforded another VA lumbar spine examination in December 2019. The Veteran reported that his lower back pain travels to his right leg with tingling and numbness sensation intermittently a few times per day lasting approximately one hour. The Veteran endorsed daily flare ups that last all day and are precipitated by waking up from sleep and doing any activities. The Veteran reported that he is unable to bend and reach floor level. Upon range of motion testing, the VA examiner determined that the Veteran's initial forward flexion was limited to 50 degrees, extension to 20 degrees, right and left lateral flexion was limited to 25 degrees each, and right and left lateral rotation was limited to 25 degrees each. The examiner determined that the Veteran's passive and active range of motion exhibited pain and contributed to functional loss. The Veteran also had pain with weightbearing and non-weightbearing and moderate pain of the lumbar paraspinal muscles. The examiner noted that the Veteran was able to perform repetitive use testing with no additional functional loss. The VA examiner indicated that the VA examination was medically consistent with the Veteran's statements describing functional loss with repetitive use over time and determined that pain would significantly limit functional ability with repeated use over a period of time. The VA examiner determined that the Veteran's forward flexion would be limited to 35 degrees, extension to 10 degrees, right and left lateral flexion to 20 degrees each, and right and left lateral rotation to 20 degrees each with repeated use over time. As for flare ups, the VA examiner also indicated that the VA examination was medically consistent with the Veteran's statements describing functional loss with flare ups and determined that pain, fatigue, and lack of endurance would significantly limit functional ability with flare ups. The VA examiner determined that the Veteran's forward flexion would be limited to 25 degrees, extension to 10 degrees, right and left lateral flexion to 15 degrees each, and right and left lateral rotation to 15 degrees each during flare ups. The VA examiner noted that the Veteran had muscle spasm of the thoracolumbar spine that resulted in abnormal gait or abnormal spinal contour. The Veteran had normal muscle strength, deep tendon reflexes, and sensation, and no muscle atrophy. The Veteran had right-sided positive straight leg raising and symptoms due to radiculopathy. The VA examiner determined that the Veteran had mild constant pain, paresthesias, and numbness and moderate intermittent pain of his right lower extremity. The examiner diagnosed the Veteran with mild radiculopathy of the femoral and sciatic nerves of the right lower extremity. The VA examiner noted that the Veteran did not have ankylosis of the spine or other neurologic abnormalities, and that his IVDS did not result in any episodes of acute signs or symptoms that required bed rest prescribed by a physician. In a February 2021 Disability Benefits Questionnaire, the Veteran's treating physician diagnosed the Veteran with degenerative disc disease of the lumbar spine, IVDS, and bilateral radiculopathy. The Veteran complained of worsening symptoms of pain, loss of range of motion, and severe sensory symptoms. The Veteran endorsed flare ups caused by standing, sitting, and walking for extended periods. He stated that severe pain hindered his movements and ability to perform routine tasks. The Veteran's physician noted that the Veteran had functional loss and could no longer stand, sit, or walk for extended periods, and bending over to lift more than 10 pounds. Upon range of motion testing, the Veteran's physician determined that the Veteran's initial forward flexion was limited to 35 degrees, extension to 15 degrees, right and left lateral flexion was limited to 15 degrees each, and right and left lateral rotation was limited to 15 degrees each. The Veteran's range of motion contributed to functional loss. The physician also noted that the Veteran was able to perform repetitive use testing with no additional functional loss. The physician determined that the Veteran's passive and active range of motion exhibited pain and contributed to functional loss. The Veteran also had pain with weightbearing and non-weightbearing which also contributed to functional loss. The physician also observed that the Veteran had moderate to severe pain and tenderness to the paravertebral muscles bilaterally and an abnormal gait due to guarding and muscle spasms. Contributing factors of disability associated with limitation of motion included less movement than normal, weakened movement, excess fatigability, incoordination, impaired ability to execute skilled movements smoothly, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. The physician determined that the Veteran's forward flexion would be limited to 20 degrees, extension to 5 degrees, right and left lateral flexion to 10 degrees each, and right and left lateral rotation to 10 degrees each during flare ups and with repeated use over time. The Veteran had reduced muscle strength, decreased sensation, and hypoactive reflexes, but no muscle atrophy. He had positive bilateral straight leg raising and moderate constant pain, severe intermittent and dull pain, moderate paresthesias, and severe numbness of the femoral and sciatic nerves of both lower extremities. The physician noted that the Veteran did not have ankylosis of the spine or other neurologic abnormalities, and that his IVDS did not result in any episodes of acute signs or symptoms that required bed rest prescribed by a physician. The Veteran required constant use of a back brace and tens unit. Given the Veteran's credible reports of functional loss, including difficulty and pain with bending his back, and forward flexion limited to less than 30 degrees during flare ups and with repeated use over time, and objective evidence of pain and fatigue at all degrees and during passive and active range of motion at the December 2019 and February 2021 examinations, the Board finds that the Veteran's lumbar spine disability most closely approximates the criteria for a 40 percent rating throughout the pendency of the appeal. In finding that a rating higher than 40 percent is not warranted, the Board notes that the evidence does not show that the Veteran had incapacitating episodes of IVDS or unfavorable ankylosis of the entire thoracolumbar spine at any point during the appellate period. 38 C.F.R. §§ 4.40, 4.45, 4.59; DeLuca, 8 Vet. App. 202. Neither did the Veteran experience limitation of motion so severe as to best approximate unfavorable ankylosis of the entire thoracolumbar spine. Therefore, the Board finds that a 40 rating for his service-connected lumbar spine disability is warranted from October 14, 2015 to March 17, 2016, from May 1, 2016 to April 25, 2018, and from June 1, 2018. In reaching its decision, the Board concludes that the findings of the January 2016 and December 2017 VA examinations are inadequate for rating purposes as they did not attempt to estimate the Veteran's range of motion during flare ups and with repeated use over time. See Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). The Board has also considered the Veteran's lay statements regarding the functional impact of his lumbar spine disability. The Veteran is competent to report his own observations with regard to the severity of his lumbar spine disability, including reports of pain, fatigue, and limited mobility. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The Board finds his statements to be credible and consistent with the rating assigned. To the extent he argues that his symptomatology is more severe, his statements must be weighed against the other evidence of record. Here, the examination findings of trained health professionals, which documented no evidence of ankylosis or incapacitating episodes of IVDS of the thoracolumbar spine, are of greater probative weight than the Veteran's more general lay assertions. 2. Bilateral lower extremity radiculopathy of the femoral and sciatic nerves Next, the Board considers whether higher ratings are warranted for an associated neurological disorder. Note 1 to the General Rating Formula provides that associated objective neurological abnormalities are to be rated separately under the appropriate diagnostic code. See 38 C.F.R. § 4.71a. The Veteran's sciatic radiculopathy of both legs is rated as 20 percent disabling for each leg under 38 C.F.R. § 4.124a, Diagnostic Code 8520, for paralysis of the sciatic nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis, a 40 percent evaluation is assigned for moderately severe incomplete paralysis, a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscle atrophy, and an 80 percent evaluation is assigned with complete paralysis. Id. The Veteran's femoral radiculopathy of both legs is also rated as 20 percent disabling for each leg under 38 C.F.R. § 4.124a, Diagnostic Code 8526, for paralysis of the femoral nerve. A 20 percent evaluation is assigned for moderate incomplete paralysis, a 30 percent evaluation is assigned for severe incomplete paralysis, and a 40 percent evaluation is assigned with complete paralysis. Id. Words such as "moderate" and "mild" are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Turning to the relevant evidence, at the January 2016 VA examination, the Veteran was assessed with positive right-sided straight leg raising, severe constant radicular pain, and moderate numbness of the right leg but no other radicular symptoms. He had normal muscle strength, deep tendon reflexes, and sensation, and no muscle atrophy. The Veteran was diagnosed with moderate right lower extremity radiculopathy of the sciatic and femoral nerves. At the December 2017 VA examination, the Veteran was assessed with negative straight leg raising of the right leg and mild intermittent pain of the right leg but no other radicular symptoms. He had normal muscle strength, deep tendon reflexes, and sensation, and no muscle atrophy. The Veteran was diagnosed with mild right lower extremity radiculopathy of the femoral nerve. At the December 2019 VA examination, the Veteran was assessed with positive right-sided straight leg raising, mild constant radicular pain, moderate intermittent pain, mild paresthesias, and mild numbness of the right leg but no other radicular symptoms. He had normal muscle strength, deep tendon reflexes, and sensation, and no muscle atrophy. The Veteran was diagnosed with mild right lower extremity radiculopathy of the sciatic and femoral nerves. In a January 29, 2021 intent to file and accompanying VA Form 21-526EZ, the Veteran filed a claim for left lower extremity radiculopathy of the sciatic and femoral nerves. He endorsed severe pain, tingling, numbness, and weakness of both legs. In a February 2021 Disability Benefits Questionnaire, the Veteran was assessed with moderate constant pain, severe intermittent pain, severe dull pain, moderate paresthesias, and severe numbness in both legs. He had no muscle atrophy, positive bilateral straight leg raising, and reduced muscle strength, hypoactive deep tendon reflexes, and decreased sensation of both legs. The Veteran's physician diagnosed the Veteran with moderate bilateral radiculopathy of the sciatic and femoral nerves. Based on the foregoing, the evidence reflects that the Veteran's right and left leg symptoms best approximate moderately severe incomplete paralysis of the sciatic nerve and severe incomplete paralysis of the femoral nerve, warranting 40 percent ratings under Diagnostic Code 8520 and 30 percent ratings under Diagnostic Code 8526 for each leg throughout the pendency of their appeals. Specifically, throughout the pendency of the appeal, the Veteran has experienced objective manifestations of neuropathy in both legs, including positive straight leg raising, intermittent pain, numbness, and paresthesias. Findings supportive of a higher rating, such as muscular atrophy, have not been reported or found on examination at any point during the course of the appeal. See 38 C.F.R. §§ 4.120, 4.123, 4.124a, Diagnostic Codes 8520, 8526. S.C. Krembs Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Bilstein, 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.