Citation Nr: 22011027 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 17-51 922 DATE: February 25, 2022 ORDER Prior to August 28, 2018, entitlement to a rating in excess of 20 percent for low back disability is denied. From October 1, 2018, entitlement to a rating in excess of 20 percent for low back disability is denied. From June 8, 2021, entitlement to a rating in excess of 40 percent for low back disability is denied. From February 16, 2017 to August 28, 2018, entitlement to a separate 10 percent rating, but no higher, for right lower extremity radiculopathy associated with service-connected low back disability is granted. From June 8, 2021, entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy associated with service-connected low back disability is denied. From February 16, 2017 to August 28, 2018, entitlement to a separate 10 percent rating, but no higher, for left lower extremity radiculopathy associated with service-connected low back disability is granted. FINDINGS OF FACT 1. Prior to August 28, 2018, and from October 1, 2018 to June 8, 2021, the Veteran's low back disability was not manifested by limitation of forward flexion to 30 degrees or less, nor was there evidence of evidence of incapacitating episodes of Intervertebral Disc Syndrome (IVDS) having a total duration of 4 weeks during a 12-month period. 2. From June 8, 2021, there was no evidence of favorable or unfavorable ankylosis, or evidence of incapacitating episodes of IVDS having a total duration of 6 weeks during a 12-month period. 3. Resolving reasonable doubt in the Veteran's favor, from February 16, 2017 to August 28, 2018, the Veteran's right lower extremity radiculopathy, associated with low back disability, has been manifested by no more than mild symptoms. 4. From June 8, 2021, the Veteran's right lower extremity radiculopathy, associated with low back disability, has been manifested, at worst, by mild symptoms. 5. Resolving reasonable doubt in the Veteran's favor, from February 16, 2017 to August 28, 2018, the Veteran's left lower extremity radiculopathy, associated with low back disability, has been manifested by no more than mild symptoms. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent prior to August 28, 2018, in excess of 20 percent from October 1, 2018 to June 8, 2021, and in excess of 40 percent from June 8, 2021 for low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, DC 5242. 2. From February 16, 2017 to August 28, 2018, the criteria for a separate 10 percent rating, but no higher, for radiculopathy of the right lower extremity associated with service-connected low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, DC 8520. 3. From June 8, 2021, the criteria for a rating in excess of 10 percent for radiculopathy of the right lower extremity associated with service-connected low back disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, DC 8520. 4. From February 16, 2017 to August 28, 2018, the criteria for a separate 10 percent rating, but no higher, for radiculopathy of the left lower extremity associated with service-connected low back disability have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124A, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1990 to June 1994. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2017 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2021, the Veteran testified at a hearing before the undersigned. In March 2021, the Board remanded the current issue on appeal for additional development. During the pendency of the appeal, in a November 2018 rating decision, the RO granted a temporary evaluation of 100 percent based on surgical or other treatment necessitating convalescence for the service-connected low back disability, effective August 28, 2018 to October 1, 2018. Thereafter, during the pendency of the remand development, the RO granted an increased evaluation of 40 percent, effective June 8, 2021, for the service-connected low back disability. As these rating increases are not the maximum allowable for the entire period on appeal, the low back disability increased rating claim remains on appeal. AB v. Brown, 6 Vet. App. 35 (1993). Increased Rating As an initial matter, the Board notes that during the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g); see also Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110; Kuzma, 341 F. 3d 1327. Therefore, the Board will consider the Veteran's claim under the former criteria prior to February 7, 2021 and both the former and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. Disability of the musculoskeletal system is primarily the inability, due to damage or inflammation in parts of the system, to perform normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to pain supported by adequate pathology and evidenced by visible behavior of the claimant undertaking the motion. 38 C.F.R. § 4.40. The factors of disability affecting joints are reduction of normal excursion of movements in different planes, weakened movement, excess fatigability, swelling and pain on movement. 38 C.F.R. § 4.45. The Veteran seeks a higher rating for his service-connected low back disability. He contends that the ratings currently assigned does not reflect the current severity of his disability. The Veteran's low back disability is currently rated 20 percent from November 3, 2016 to August 28, 2018 and from October 1, 2018 to June 8, 2021, and 40 percent thereafter under 38 C.F.R. § 4.71a, DC 5242. DCs 5242-5237 provide ratings pursuant to the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Under DC 5243 both prior to and since the regulatory change, IVDS (preoperatively or postoperatively) is rated either under the General Rating Formula or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under § 4.25. 38 C.F.R. § 4.71a, DC 5243. Under DC 5243, a 10 percent rating is assigned for IVDS with 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 assigned for IVDS with 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 assigned for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the last 12 months. A 60 percent rating is assigned for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the last 12 months. Note (1) provides that for purposes of evaluations under 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bedrest prescribed by a physician and treatment by a physician. Alternatively, limitation of motion of the thoracolumbar spine is rated under the General Rating Formula. Under the General Rating Formula, a 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, if 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 warranted for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine and a 100 percent rating is warranted for ankylosis of the entire spine. Note (2) provides that normal forward flexion of the thoracolumbar spine is to zero to 90 degrees and extension and left and right lateral flexion and rotation of the thoracolumbar spine are all 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. Each range of motion measurement is to be rounded to the nearest five degrees. Factual Background A November 2016 private treatment record noted the Veteran was negative for bladder incontinence, bladder retention, bowel incontinence, bowel retention, numbness, and weakness. The Veteran reported that the injection he received helped for two weeks at 80 percent but that the low back pain has started to come back. On examination, the provider noted the Veteran's gait was non-antalgic nor broad-based and he was able to heel-and-toe-walk normally. His lower extremity muscle tone was normal, and his skin/scars was normal. There was paraspinous lumbar tenderness. The Veteran had normal posture with no back or leg pain on straight leg raise test. The lower extremity strength and light touch were noted normal on the right and left. There was pain noted on motion of the lumbar spine. See November 2016 Medical Treatment Record Non-Government Facility. In a two week post-operative report in December 2016 following intraoperative evocative chromodiscography and transforaminal discectomy at L4-5 right, the Veteran reported that his pre-operative pain was mostly resolved, that there was no radiation of low back pain and pertinent negatives included bladder incontinence, bladder retention, bowel incontinence, bowel retention, numbness, and weakness. See June 2017 Medical Treatment Record Non-Government Facility. In a February 16, 2017 VA examination, the Veteran reported that he was unable to bend at the waist or lift anything heavy without pain and weakness in both legs due to injury. See March 2017 C&P Exam. He reported that he was unable to do simple chores around the house and that if he pushed too hard, he will be on his back for a week. The examiner noted the Veteran had radicular pain and numbness into both legs to the level of each foot and it greatly limited his ability to participate in activities involving any physical exertional activities. The Veteran described flare-ups of the back as severe pain, numbness, and tingling down both legs causing weakness and made just standing and walking any distance or length of time cause flareup. On range of motion testing, flexion was to 55 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees and left lateral rotation to 10 degrees. Pain was noted on examination on forward flexion, right and left lateral flexion, and right and left lateral rotation. There was evidence of pain with weightbearing and there was tenderness noted over the L3-4, L4-5 disc interspaces with moderate pain. The examiner noted the Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion after three repetitions. Although the Veteran was not being examined immediately after repeated use over time, the examiner estimated the following range of motion measurements due to pain: flexion to 55 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, right lateral rotation to 15 degrees, and left lateral rotation to 10 degrees. The examiner noted the Veteran was being examined during a flare-up and noted range of motion testing at the waist had not changed throughout the examination today. No guarding or muscle spasms were noted. The examiner noted additional factors contributing to disability included interference with standing. Muscle strength testing was normal, no muscle atrophy was noted, no ankylosis was noted, and reflex and sensory examinations were normal. The examiner indicated positive straight leg raising test results but noted the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. No other neurologic abnormalities were noted. The examiner noted the Veteran has IVDS of the thoracolumbar spine with episodes of bed rest having a total duration of at least 1 week but less than 2 weeks in the past 12 months. The Veteran required regular use of a back brace, specifically when needing to stand and walk for more than 15 minutes. No other pertinent physical findings, complications, conditions, signs, symptoms, or scars were noted. There was objective evidence of pain on passive range of motion as well as objective evidence of pain on non-weight bearing testing of the back. An April 2018 VA treatment record noted the Veteran's increased back pain. He described pain shooting down his legs, having weakness in both legs, that would give out on him. See November 2018 CAPRI. A June 2018 VA treatment record noted the Veteran's reports of continued pain with radicular symptoms. See November 2018 CAPRI. A June 2018 treatment record noted a history of lumbar radiculopathy. See November 2018 Medical Treatment Record Non-Government Facility. An August 2018 private treatment record noted the Veteran's increasing low back pain and bilateral right greater than left lower extremity pain with leg symptoms traveling down the posterior legs to the soles of the feet. The provider noted his intermittent numbness and tingling. The Veteran denied any weakness and denied bowel or bladder incontinence. The examiner noted that a December 2016 right-sided L4-5 posterolateral discectomy helped alleviate his back and leg symptoms but have since gradually returned and worsened. The provider noted that the location of pain was in the lower back and occurred persistently with pain radiating to the left ankle, right ankle, left calf, right calf, left foot, right foot, left thigh, right thigh, and bilateral buttock. The Veteran described the pain as numbness, sharp, and stabling and that symptoms were aggravated by daily activities, sitting, standing, walking, and night pain. Symptoms were relieved by TENS and that associated symptoms included numbness in the bilateral lower extremity and weakness in the bilateral lower extremity. Pertinent negatives included bladder incontinence, bladder retention, bowel incontinence, and bowel retention. On lumbar spine examination, the provider noted the Veteran's gait was non-antalgic nor broad-based and was able to heel-and-toe walk normally. His lower extremity muscle tone, paraspinous muscle tone, and posture were normal. Spasm was absent and on straight leg raise test on the right and left, there was back pain only. There was active mild painful range of motion. The lower extremity strength on the right and left was noted as normal. The provider noted an assessment of other spondylosis with myelopathy lumbar region, other intervertebral disc displacement degenerative disc disease L4-5 with left NF stenosis. See November 2018 Medical Treatment Record Non-Government Facility. In an August 2018 private treatment record noted a preoperative diagnosis of L4-5 severe degenerative disk disease with left neural foraminal stenosis and left-sided radiculopathy. The preoperative report noted that the Veteran had a history of a previous right posterolateral diskectomy and foraminal decompression at L4-5 which helped alleviate the right leg pain but was having worsening back pain and left lower extremity pain. See November 2018 Medical Treatment Record Non-Government Facility. An October 2018 post-operative report noted the Veteran had no further lower extremity symptoms and only mild low back pain. Pertinent negatives included bladder incontinence, bladder retention, bowel incontinence, bowel retention, numbness, and weakness. See id. A May 2019 VA treatment record noted the Veteran's fluid, steady gait without use of assistive device, full range of motion with normal strength of spine and bilateral upper and lower extremities. There was no pinpoint pain or tenderness, swelling or redness along the spine or bilateral upper and lower extremities. Straight leg raising tests were normal, deep tendon reflexes and pulses were normal, and sensation was intact. See March 2021 CAPRI. During the March 2021 Board hearing, the Veteran reported limitations due to his service-connected low back disability included prolonged walking, prolonged sitting, and holding grandkids. He also reported flare-up and that he dealt strictly with VA for medical appointments. He reported his surgery was conducted at the Desert Institute for Spine Care and Core Institute Specialty Hospital. The Veteran reported his job was primarily sedentary. He reported intermittent radiculopathy in his right or left leg but indicated that there has been some relief of the radiculopathy symptoms when compared to prior to surgery. See March 2021 Hearing Transcript. In a June 8, 2021 VA examination, the Veteran reported that he had been treated with a lumbar fusion surgery in August 2018 and the current symptoms were arthritis pain, discomfort with lifting and bending down. See June 2021 C&P Exam. Current treatment included aspirin and a TENS unit. The Veteran reported daily flare-ups of the back that were moderate to severe that lasted a few hours to all day. He reported his back flare-ups were precipitated by bending over, picking up things, prolonged sitting, standing, cooking, washing dishes, and lifting grandkids. He indicated the flare-ups were alleviated by TENS unit, rest, and aspirin. Active range of motion testing revealed flexion to 30 degrees, extension to 15 degrees, right and left lateral flexion and rotation endpoint to 10 degrees. Pain was noted on flexion, extension, and right and left lateral flexion and rotation. The examiner noted that passive range of motion testing was not performed as testing may cause further injury. There was evidence of pain with weightbearing. There was no objective evidence of crepitus or of localized tenderness or pain on palpation of the joint or associated soft tissue. The examiner noted the Veteran was able to perform repetitive use testing and there was no additional loss of function or range of motion after three repetitions. The Veteran was examined immediately after repeated use over time and the following range of motion measurements were noted due to pain: flexion to 30 degrees, extension to 15 degrees, right and left lateral flexion and rotation endpoint were to 10 degrees. The examiner noted the Veteran was being examined during a flare-up and the following range of motion measurements were noted due to pain: flexion to 30 degrees, extension to 10 degrees, right and left lateral flexion and rotation endpoint were all to 10 degrees. No guarding or muscle spasms were noted. The examiner noted no additional factors contributing to disability. Muscle strength testing was normal, no muscle atrophy was noted, and no ankylosis was noted. Sensory examination was normal. Reflex examination revealed hypoactive (1+) deep tendon reflexes on the right and left. Straight leg raising test was positive on the right but negative on the left. The examiner noted radicular pain on the right side and that there was involvement of the sciatic nerve on the right side. Specifically, there was no symptoms noted in the left lower extremity. However, there was moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. No other signs or symptoms of radiculopathy were noted. No other neurologic abnormalities were noted. The examiner noted the Veteran has intervertebral disc syndrome (IVDS) of the thoracolumbar spine but did not have any episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran did not use an assistive device. Entitlement to a rating in excess of 20 percent prior to August 28, 2018, in excess of 20 percent from October 1, 2018 to June 8, 2021, and in excess of 40 percent from June 8, 2021 for low back disability. Prior to August 28, 2018 and from October 1, 2018 to June 8, 2021, the Board finds that the symptomatology attributable to the Veteran's low back disability did not more nearly approximate the criteria for a higher rating. There is no evidence of record during these periods on appeal showing the Veteran had flexion limited to 30 degrees or less. In fact, during this period on appeal, the Veteran's flexion has been shown to be limited to, at worst, 55 degrees, even during flare-ups and estimated limitation of range of motion following repeated use. Additionally, a May 2019 VA treatment record noted the Veteran's lumbar spine had full range of motion upon evaluation. The Veteran's back also had not been ankylosed, or immobile, at any time to warrant a higher rating. From June 8, 2021, there is no evidence of record showing the Veteran's back has been ankylosed, or immobile, at any time. Thus, a higher evaluation based on limitation of motion is not warranted. The Board notes that the painful motion the Veteran experienced during range of motion was accounted for by the VA examiners when determining the Veteran's range of motion. 38 C.F.R. § 4.40, 4.45. There is no other evidence showing that he has more limitation of motion than that found at the VA examinations. The Veteran indicated that there was increased pain during flare-ups, but there is no evidence or argument that flare-ups were so severe that they resulted in symptoms more nearly approximating ankylosis. Chavis v. McDonough, 34 Vet. App. 1, 12-13 (ankylosis in VA's General Rating Formula for Diseases and Injuries of the Spine can be met with evidence of the functional equivalent of ankylosis during a flare up). With consideration of all pertinent disability factors, there remains no appropriate basis for assigning a higher rating for the Veteran's low back disability. There is also no evidence that the Veteran's low back disability has resulted in incapacitating episodes having a total duration of at least 4 weeks during any 12-month period prior to August 28, 2018 and from October 1, 2018 to June 8, 2021, or a total duration of at least 6 weeks during any 12-month period from June 8, 2021. Thus, a higher evaluation based on incapacitating episodes is not warranted for any period on appeal. 38 C.F.R. § 4.71a, Diagnostic Codes 5243. In conclusion, a rating in excess of 20 percent prior to August 28, 2018 and from October 1, 2018 to June 8, 2021 is not warranted, and a rating in excess of 40 percent thereafter for the low back disability is not warranted. Neurological Impairments Consideration has also been given to separate compensable ratings for neurological impairment as related to the service-connected low back disability. During the appeal, the RO granted separate ratings for right lower extremity radiculopathy, 10 percent effective June 8, 2021, and residual surgical scars, 0 percent effective August 28, 2018, in a June 2021 rating decision. The Board finds that it has jurisdiction of these issues as part of the Veteran's appeal for a higher rating for his low back disability. Chavis v. McDonough, 34 Vet. App. 1 (2021). The Board will also consider if any other neurological impairment is warranted, to include left lower extremity radiculopathy. The Veteran has been assigned a noncompensable rating for residual surgical scars pursuant to 38 C.F.R. § 4.118, DC 7802, effective August 28, 2018. Here, as noted in the March 2017 VA examination, the Veteran did not have any scars related to the service-connected low back disability prior to the August 28, 2018. It was during the June 2021 VA examination that physical examination of the Veteran revealed two back scars related to the August 28, 2018 lumbar fusion. The June 2021 VA examiner noted the first scar measured at 4.2 cm x 0.6 cm and the second scar measured at 4.5 cm x 0.5 cm, both located on the anterior trunk, and did not have any underlying tissue damage; and, thus, is not measured with a total area as to warrant a compensable rating under DC 7802 or separate rating under any potentially applicable DC, to include DC 7801. The examiner noted the scars were not painful, were not unstable; and, thus, do not warrant a higher or separate rating under DC 7804. Also, as such scars are not located on the head, face, or neck, DC 7800 is inapplicable. DC 7805 is also inapplicable since no disabling effects were noted as well. The Veteran also has not reported that his back scars are painful or unstable. Therefore, the Board finds that a compensable rating for the Veteran's lumbar surgical scars is not warranted. The Veteran has been assigned a 10 percent rating for right lower extremity radiculopathy pursuant to 38 C.F.R. § 4.124a, DC 8520, effective June 8, 2021. DC 8520, pertinent to the sciatic nerve, provides that a 10 percent rating is assigned where there is mild incomplete paralysis; a 20 percent rating is assigned where there is moderate incomplete paralysis; a 40 percent rating is assigned for moderately severe incomplete paralysis; a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is assigned for complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened of (very rarely) lost. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. Descriptive words such as "slight," "moderate" and "severe" as used in the various diagnostic codes are not defined in VA's Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for "equitable and just decisions." 38 C.F.R. § 4.6. The Board finds that separate compensable ratings are warranted effective February 16, 2017, to August 28, 2018, for right lower extremity radiculopathy and left lower extremity radiculopathy. This finding is based on the results of the February 2017 VA examination. During the February 2017 VA examination, the examiner noted the Veteran's radicular pain and numbness into both legs to the level of each foot that limited his ability to participate in activities involving any physical exertional activities. The Veteran also reported no prolonged sitting or standing without pain and/or numbness, tingling in both legs. The examiner noted that straight leg raising test were positive on both sides but indicated muscle strength testing, reflex examination, and sensory examination were normal. Despite the examiner noted the Veteran's radicular pain and numbness in his legs, and positive straight leg tests that suggests radiculopathy, the VA examiner indicated the Veteran did not have any signs or symptoms of radiculopathy and did not explain the conflicting findings. Nevertheless, subsequent treatment records in April 2018, June 2018, and August 2018 have noted low back pain radiating into the lower extremities. See November 2018 CAPRI, November 2018 Medical Treatment Record Non-Government Facility (2). A June 2018 treatment record noted lumbar radiculopathy and August 2018 preoperative diagnosis noted left sided radiculopathy. See November 2018 Medical Treatment Record Non-Government Facility. As such, the Board will resolve reasonable doubt in the Veteran's favor and assign a separate 10 percent rating for right lower extremity radiculopathy and a separate 10 percent rating for left lower extremity radiculopathy, both effective February 16, 2017, to August 28, 2018. However, the Board notes that a rating in excess of 10 percent is not warranted for both the right lower extremity radiculopathy and left lower extremity radiculopathy. Significantly, muscle strength testing, reflex examination, and sensory examination were normal and there was no evidence of muscle atrophy during this period on appeal. Based on the complaints and objective findings, the Veteran's right and left lower extremity radiculopathy symptoms are characterized as no more than "mild." Following the August 28, 2018 lumbar fusion, an August 29, 2018 private treatment record noted the Veteran's bilateral lower extremities were neurologically intact. An October 2018 private treatment record noted the Veteran had no further lower extremity symptoms and no radiation of low back pain. See November 2018 Medical Treatment Record Non-Government Facility. A May 2019 VA treatment record noted the Veteran's straight leg raising tests were negative, the deep tendon reflexes and pulses were normal, and sensation were intact. As noted above, the June 2021 VA examiner found the Veteran had right lower extremity radiculopathy but found there was no left lower extremity radiculopathy on examination. See June 2021 C&P Exam. Specifically, the examiner noted that straight leg raising test was positive on the right and negative on the left, there was moderate intermittent pain, mild paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. There was no constant pain, no intermittent pain, no paresthesias and/or dysesthesias, and no numbness in the left lower extremity noted. The examiner indicated only the right sciatic nerve was affected. The Board acknowledges the Veteran's reports of intermittent lower extremity symptoms during the March 2021 Board hearing. However, the Board reiterates that the Veteran was not diagnosed with radiculopathy of the left lower extremity from August 28, 2018. Unlike the conflicting findings in the March 2017 VA examination that noted the radiating pain in the bilateral lower extremities and thereafter indicated no radicular symptoms, the June 2021 VA examiner noted whether there was any constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness in either extremity, and specifically found no left lower extremity radicular symptoms. Moreover, for this latter period on appeal, treatment records also did not indicate left lower extremity radiculopathy. The Board acknowledges the Veteran's complaints of sporadic numbness and tingling of the left leg. However, the medical findings from June 8, 2021 have essentially been normal. As the medical evidence of record does not demonstrate lumbar radiculopathy of the left lower extremity, the Board finds that a separate compensable disability rating for mild incomplete paralysis of the left lower extremity is not warranted from August 28, 2018. Considering the Veteran's reports of only intermittent symptoms in his right lower extremity during the March 2021 Board hearing and the June 2021 VA examiner initially found objective evidence of right lower extremity radiculopathy and noted normal muscle strength testing, normal sensory examination, no evidence of muscle atrophy, and only hypoactive deep tendon reflexes, the Veteran's right lower extremity radiculopathy symptoms is appropriately characterized as no more than "mild." As such, the Board finds that the Veteran's radiculopathy affecting the right lower extremity does not meet or more nearly approximate the criteria for a disability rating in excess of 10 percent from June 8, 2021, and also is not warranted between August 28, 2018 to June 8, 2021. See 38 C.F.R. § 4.124a, DC 8520. Additionally, there have not been any other neurological findings, to include bladder or bowel impairment, during the appeal period, and as such do not warrant separate compensable ratings. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Cheng, 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.