Citation Nr: 22011901 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 15-46 601 DATE: March 2, 2022 ORDER Entitlement to an earlier effective date of September 9, 1978, for the grant of service connection for radiculopathy of the right lower extremity is granted. From September 9, 1978, for the entire period on appeal, entitlement to an initial rating of 40 percent, but no higher, for the Veteran's thoracolumbar spine disability is granted. From September 9, 1978, entitlement to an initial rating of 40 percent, but no higher, for radiculopathy of the right lower extremity is granted. From April 30, 2013, entitlement to an initial rating of 40 percent, but no higher, for radiculopathy of the left lower extremity is granted. FINDINGS OF FACT 1. Service connection for a thoracolumbar spine disability was granted in a June 2014 rating decision; an effective date of September 9, 1978, was assigned. 2. The Veteran disagreed with the initial rating assigned for his service-connected thoracolumbar spine disability in March 2015; radiculopathy of the right lower extremity is a neurological manifestation of his service-connected lumbar spine disability and part and parcel of his claim for an initial increased rating for his lumbar spine disability. 3. Medical evidence indicates the Veteran had symptoms of radiculopathy of the right lower extremity as early as 1978. 4. Resolving all reasonable doubt in his favor, for the entire period on appeal, the Veteran's thoracolumbar spine disability had severe limitation of motion and is manifested by a forward flexion of 30 degrees or less; his lumbar spine disability has not been manifested by persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to site of diseased disc with little intermittent relief, unfavorable ankylosis of the entire thoracolumbar spine or entire spine, or incapacitating episodes due to intervertebral disc syndrome having a total duration of at least 6 weeks during the past twelve months. 5. From September 9, 1978, the Veteran's radiculopathy of the right lower extremity is manifested by moderately severe incomplete paralysis; his symptoms do not more nearly approximate severe incomplete paralysis with marked muscular atrophy. 6. From April 30, 2013, the Veteran's radiculopathy of the left lower extremity is manifested by moderately severe incomplete paralysis; his symptoms do not more nearly approximate severe incomplete paralysis with marked muscular atrophy. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of September 9, 1978, for the grant of service connection for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.159, 3.400. 2. From September 9, 1978, the criteria for an initial rating of 40 percent, but no higher, for a lumbosacral strain have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.71a, Diagnostic Code 5292. 3. From September 9, 1978, the criteria for an initial disability rating of 40 percent, but no higher, for radiculopathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. From April 30, 2013, the criteria for an initial disability rating of 40 percent, but no higher, for radiculopathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1972 to September 1978. This matter comes before the Board of Veterans' Appeals (BVA or Board) from a June 2014 and July 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In a September 2018 decision, the Board granted an earlier effective date of September 9, 1978, for the grant of service connection for a thoracolumbar spine disability and denied an effective date earlier than April 30, 2013, for the grant of service connection for radiculopathy of the left lower extremity. The September 2018 decision also remanded the issues of entitlement to initial increased ratings for the Veteran's thoracolumbar spine disability, radiculopathy of the left lower extremity, and radiculopathy of the right lower extremity, as well as entitlement to an earlier effective date for the grant of service connection for radiculopathy of the right lower extremity. The Veteran was notified in September 2019 that in a June 2019 rating decision, the RO effectuated the Board's September 2018 decision and granted an earlier effective date for the grant of service connection for the Veteran's low back pain, effective September 9, 1978, and assigned an initial 10 percent rating. The Board notes that the Veteran submitted a VA Form 10182 in July 2020 for the issue of entitlement to an increased rating for his low back disability, citing to the September 2019 notice of rating decision; importantly, this rating decision does not constitute an initial decision and therefore, this claim remains in the legacy system. Additionally, the Veteran was granted entitlement to a total disability rating based on individual unemployability (TDIU), effective September 3, 2016, the day following his reported last day of employment. Therefore, the Board finds this issue is granted in full and is no longer before the Board. Earlier Effective Date 1. Entitlement to an effective date earlier than April 30, 2013, for the grant of service connection for radiculopathy of the right lower extremity. Service connection for radiculopathy of the right lower extremity was granted in a July 2015 rating decision, effective March 25, 2015. The Veteran seeks an earlier effective date, arguing that his radiculopathy of the right leg manifested in 1978 and should have been service connected and rated as part of his original grant for service connection for a thoracolumbar spine disability. Of note, the Veteran's thoracolumbar spine disability has a lengthy procedural history. The Veteran separated from service on September 8, 1978. He filed his original service connection claim for a thoracolumbar spine disability in January 1979, within a year of his separation from service. At that time, he described that he was suffering from low back pain, which was spreading to his right side. Although some service treatment records were associated with the claims file in January 1979, the RO attempted to ensure all relevant service treatment records were associated with the claims file. Subsequently, in an August 1979 rating decision, the RO denied the Veteran's service connection claim for the thoracolumbar spine disability. In doing so, the RO noted they had been unable to obtain any other relevant service treatment records. He did not appeal this decision. Thereafter, the Veteran submitted another service connection claim for a thoracolumbar spine disability in April 2013. In a June 2014 rating decision, the RO interpreted the claim as a petition to reopen the prior service connection claim for a thoracolumbar spine disability. See 38 C.F.R.§ 3.156(a). The RO granted the petition to reopen the claim finding new and material evidence had been received. Of significance, in doing so, the RO noted service treatment records were received from the Veteran in April 2013 and July 2013. In particular, the RO referenced a Physical Evaluation Board Narrative Summary, which was among the service treatment records received in April 2013, and service treatment records that documented an in-service low back injury. Based on the new service treatment records, the RO granted the service connection claim, effective April 30, 2013, and assigned a 10 percent rating. The Veteran then disagreed with the effective date and rating assigned. In March 2015, the Veteran submitted a formal claim for radiculopathy of the right lower extremity, which was granted in a July 2015 rating decision, effective March 2015. A September 2018 Board decision determined that reconsideration of the August 1979 rating decision was warranted based on the addition of service treatment records to the claims file after the rating decision was issued, and granted an earlier effective date of September 9, 1978, for the grant of service connection for the Veteran's thoracolumbar spine disability, the day following his discharge from active duty as his application was received within one year of discharge. In general, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date the claim was received or the date the entitlement arose, whichever is later. See 38 U.S.C. § 5110 (a); 38 C.F.R. § 3.400. If the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service. 38 U.S.C. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). First, the Board notes that the Veteran's original claim for service connection indicated that his claim for a spine disability involved "lower back pain spreading on right side." The 1978 in-service Report of Medical Board specifically noted that the Veteran was experiencing low back pain with pain radiating into his right leg. The February 1979 VA examination also specifically noted that the Veteran reported that since the fall during service he had been having trouble with his back and experienced pain and numbness in his right leg. During a May 2015 VA examination, the Veteran again complained of right leg numbness, and after examination, the VA examiner confirmed that the Veteran had a diagnosis of radiculopathy of the right lower extremity. Based on this examination, the RO granted service connection for radiculopathy of the right lower extremity, with an effective date of March 2015, the date of the VA Form 21-526EZ specifically claiming service connection for right leg radiculopathy. The Veteran submitted a private evaluation, dated August 2020. The private physician reviewed the Veteran's claims file and interviewed the Veteran. The physician opined that it was at least as likely as not that the Veteran's current radicular symptoms existed as early as 1977/1978. The physician noted the Veteran's symptoms, that were documented as early as 1978. The physician stated the symptoms of radiating pain, diminished reflexes and muscle weakness represented an onset of radiculopathy and explained that EMG/NVC electrical testing is not sensitive enough to detect early sciatic nerve irritation. The physician indicated that from a clinical standpoint, this has been proven time and again when individuals pre-operatively have a normal EMG but complained of lower extremity radiculopathy and subsequently undergo lumbar decompressive surgeries and experience compete eradication of the radicular symptoms post-operatively. The Board acknowledges that there is conflicting evidence as to the onset of the Veteran's radiculopathy. In fact, there were several VA examiners that opined the Veteran did not have a diagnosis of radiculopathy. See, e.g., November 2018 and October 2019 VA examinations. However, as recently as February 2021, a VA examiner explained that a February 2015 EMG demonstrated neuropathy but also could not rule out radiculopathy. Additionally, the February 2021 VA examiner stated that he would disagree with any opinion that states the Veteran's current condition did not start in service. The Board finds the medical evidence indicates the Veteran's radiculopathy of the right lower extremity is a manifestation of his service-connected thoracolumbar spine disability. As such, this separate evaluation has been part and parcel to the current claim on appeal seeking an increased initial rating for the Veteran's thoracolumbar spine disability. When the Veteran disagreed with the initial rating assigned for his thoracolumbar spine disability, he did not limit his appeal to one manifestation but rather was seeking the highest rating or ratings available for his disability. See AB v Brown, 6 Vet. App. 35 (1993). In this case, there is persuasive evidence showing the Veteran experienced radiculopathy symptoms in the right lower extremity as early as 1978, during service. The Veteran's radiculopathy is part and parcel of his rating for his service-connected thoracolumbar spine disability, which is effective September 9, 1978. As the Court of Appeals for Veterans Claims stated in Swain v. McDonald, 27 Vet. App. 219, 224 (2015), "an effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the Veteran's disability first manifested." Thus, the Board resolves reasonable doubt in favor of the Veteran and concludes that his radiculopathy likely had an onset during service. Therefore, the Board finds that service connection for radiculopathy of the right lower extremity is warranted from September 9, 1978, the day after discharge from service, given that the Veteran filed his claim for service connection for a thoracolumbar spine disability within one year from discharge. Increased Ratings The Veteran seeks entitlement to higher initial ratings for his thoracolumbar spine disability and radiculopathy of the bilateral lower extremities. Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board has considered the entire record, including the Veteran's VA clinical records and private treatment records. These show complaints and treatment but will not be referenced in detail. The Federal Circuit has held that the Board must review the entire record but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disabilities. 2. Entitlement to an initial increased rating for the Veteran's thoracolumbar spine disability, currently rated as 10 percent disabling, prior to April 30, 2013, and as 40 percent disabling, thereafter. Service connection for a thoracolumbar spine disability was granted in a June 2014 rating decision, at which time a 10 percent rating was assigned, effective April 30, 2013. The Veteran disagreed with the effective date and rating assigned. In a July 2015 rating decision, the Veteran's rating was increased to 20 percent, effective March 25, 2015. A July 2016 rating decision granted an increased rating of 40 percent, effective April 30, 2013, 10 percent, effective May 6, 2014, and 20 percent, effective March 25, 2015. A September 2018 Board decision granted entitlement to an earlier effective date of September 9, 1978, for the grant of service connection for the Veteran's thoracolumbar spine disability, which was effectuated in a June 2019 rating decision, and a 10 percent rating was assigned, from September 9, 1978. In a March 2021 rating decision, the Veteran's 40 percent rating was restored for the entire period beginning April 30, 2013. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the Veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the Veterans themselves, when a flare-up is not observable at the time of examination. The criteria for evaluating spine disabilities were amended effective September 23, 2002, September 26, 2003, and February 7, 2021. Generally, where the rating criteria are amended during the course of the appeal, both the former and the current schedular criteria are considered. Should an increased rating be warranted under the revised criteria, that award may not be made effective before the effective date of the change. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) (overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991), to the extent it held 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 more favorable to Appellant should apply). Prior to April 30, 2013, the Veteran is rated as 10 percent disabled under Diagnostic Code 5292. From April 30, 2013, the Veteran is rated as 40 percent disabled under Diagnostic Code 5243-5242. Based on the diagnostic criteria in effect in 1978 until September 26, 2003, an evaluation of 10 percent under Diagnostic Code 5292 was warranted for slight limitation of motion of the lumbar spine. A 20 percent rating was warranted for moderate limitation of motion of the lumbar spine. A 40 percent rating was warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292. Diagnostic Code 5243, for intervertebral disc syndrome (IVDS), provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted 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 warranted 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 warranted for IVDS with 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 IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the current General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for 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. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 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. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined 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." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Normal combined range of motion of the thoracolumbar spine is 240 degrees. Normal ranges of motion for each component of spinal motion provided are the maximum usable for calculating the combined range of motion. As noted, service connection for his spine disability is in effect as of September 1978. In 1978, the highest rating under Diagnostic Code 5292, was 40 percent, and was warranted for severe limitation of motion of the lumbar spine. 38 C.F.R. § 4.71a, Diagnostic Code 5292 (1978). A maximum 60 percent rating was assignable under former Diagnostic Code 5293 for pronounced Intervertebral Disc Syndrome (IVDS) with persistent symptoms compatible with sciatic neuropathy with characteristic pain and demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to site of diseased disc, little intermittent relief (as in effect prior to September 23, 2002). Effective September 23, 2002, Diagnostic Code 5293 was amended to provide a 10 percent disability rating 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 disability rating 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 disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § § 4.71a. Effective September 2003, VA amended its Schedule for Rating Disabilities, to institute a general rating formula for evaluating diseases and injuries of the spine, at which time a 40 percent rating was warranted if the medical evidence demonstrated forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. Resolving all reasonable doubt in his favor, the Board finds that the Veteran's spine disability more nearly approximates a 40 percent rating, for the entire period on appeal. In January 1977, the Veteran fell down a ladder and began experiencing pain shooting down the right leg. Examination revealed a slight hypesthesia in the lateral aspect of the right thigh and dorsum of the right foot. In October 1977, the Veteran sought treatment for posterior right thigh pain radiating from his right lower back. Physical examination revealed his right great toe with distinct deficits compared to the left and he was assessed with possible HNP or nerve root compression secondary to trauma. The Veteran again sought treatment in January 1978 with chief complaints of low back pain. He denied any low back trouble until January 1977 when he fell aboard the ship and since that time, he was incapacitated by low back pain with pain radiating into this right leg, sometimes as far as his ankle. He was assessed with a chronic back strain. A June 1978 Medical Board Report indicated the Veteran had a chronic back strain, that did not exist prior to entry. The report indicated that the Veteran had the full benefit of conservative treatment, which did not result in substantial improvement, and he was unable to perform full duties. He was determined to be unfit for duty. Post-service medical evidence was reviewed. The Board acknowledges that several VA examinations of record do not meet the criteria under Correia and Sharp. The February 1979 VA examination did not specifically discuss pain on movement or the severity of any flare-ups. However, during the 1979 examination the Veteran indicated that he experienced "popping" and pain during activities, and after working he experienced fatigue and discomfort in the lower lumbar spine. The VA examiner at the time indicated that physical therapy exercises had not helped the Veteran's disability. Furthermore, the Board notes that as discussed, the Veteran's disability was so severe that he was medically discharged from service due to his chronic back strain. A June 2013 private evaluation indicated the Veteran's forward flexion was to 30 degrees. A June 2014 VA examination notes the Veteran reported flare-ups, described as pain so intense he does not want to move or be touched. Forward flexion was to 70 degrees, with pain at 70 degrees. The Veteran was afforded a VA examination in May 2015, at which time his forward flexion was to 60 degrees, with pain at 60 degrees. No incapacitating episodes were noted. The Veteran was afforded a VA examination in November 2018. He reported flare-ups precipitated by heavy lifting or moving the wrong way. Forward flexion was to 80 degrees. Pain was noted that did not cause functional loss. There was no additional loss of motion after three repetitions. The Veteran was afforded a VA examination in September 2019, at which time his forward flexion was to 75 degrees; he denied flare-ups. A private evaluation was conducted in August 2020. Forward flexion was to 10 degrees on the first set, and 5 degrees on the fourth set. The physician indicated that the Veteran was severely compromised in all planes of motion. The Veteran was afforded a VA examination in March 2021. He denied flare-ups, but reported an inability to bend, twist, or lift/carry. Forward flexion was to 30 degrees, with pain at the endpoint. All other ranges of motion were 5 degrees. The examiner opined that after repetitive use, range of motion would be limited to 20 degrees of forward flexion. There were no episodes that required prescribed bedrest in the prior 12 months. Based on the evidence of record, the Board resolves all reasonable doubt in his favor and, considering loss of range of motion due to pain, flare-ups, and repetitive use, finds that his spine disability warrants an initial 40 percent rating, effective September 9, 1978, for the entire period on appeal, as the evidence indicates the Veteran had severe limitation of motion for the entire period on appeal, as required for a 40 percent rating under Diagnostic Code 5292 under the former rating criteria in effect prior to September 2003. However, the Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent, at any time during the appeal period. The Board notes that a 60 percent rating is warranted under Diagnostic Code 5293 when there is evidence of intervertebral disc syndrome with demonstrable muscle spasm, absent ankle jerk, or other neurologic findings appropriate to site of diseased disc with little intermittent relief; however, as discussed below, the Board is granting a 40 percent rating for radiculopathy of the right lower extremity, under Diagnostic Code 8520, effective September 1978. Therefore, awarding the Veteran a higher rating under Diagnostic Code 5293 for these same radicular symptoms would violate the rule against pyramiding. From September 2002, the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for incapacitating episodes having a total duration of at least 6 weeks during the prior 12 months to more nearly approximate the criteria for a higher rating of 60 percent. The evidence of record also persuasively weighs against a rating in excess of 40 percent for under the General Rating Criteria, from September 2003. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain, weakened movement, excess fatigability, incoordination, repetitive use, pain during flare-ups, and pain during repetitive use over time, etc. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. For example, during the private evaluation in August 2020, the private physician noted that although severely compromised, the Veteran maintained some range of motion in each plane of motion. At no time during the August 2020 evaluation did the private physician indicate that the Veteran's disability more nearly approximated unfavorable ankylosis of the entire thoracolumbar spine; in fact, the physician opined that the Veteran's disability warranted a 40 percent rating. Furthermore, there is no additional medical evidence, VA examinations or private records, that indicate the Veteran's disability more nearly approximates unfavorable ankylosis of the entire thoracolumbar spine. The Board acknowledges the assertion that the Veteran's symptoms during a flare-up are like unfavorable ankylosis. However, even when considering the functional limitation during a flare-up, the Veteran's symptoms do not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth in Note 5. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the bilateral lower extremities and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. For the foregoing reasons, the evidence of record persuasively weighs in favor of a rating of 40 percent, but no higher, for the entire period on appeal. 3. Entitlement to a rating higher than 20 percent for radiculopathy of the left lower extremity. 4. Entitlement to a rating higher than 20 percent for radiculopathy of the right lower extremity. Service connection for radiculopathy of the left lower extremity was granted in a June 2014 rating decision, at which time a 10 percent rating was assigned, effective April 30, 2013. In a July 2015 rating decision, the Veteran's rating for the left leg was increased to 20 percent, effective March 25, 2015, and service connection was established for radiculopathy of the right leg, rated as 20 percent disabling, effective March 25, 2015. A July 2015 rating decision granted an earlier effective date of April 30, 2013, for the grant of service connection for radiculopathy of the right lower extremity, and an effective date of April 30, 2013, for the grant of a 20 percent rating for the left lower extremity. As a result of this Board decision, an earlier effective date of September 9, 1978, is granted for the grant of service connection for radiculopathy of the right lower extremity. The Board notes that the Veteran's attorney has argued for an earlier effective date for the grant of radiculopathy of the left lower extremity, asserting that it is part of the appeal for an increased rating for the lumbar spine; however, the issue of entitlement to an earlier effective date for the grant of service connection for radiculopathy of the left lower extremity was denied by the Board in a September 2018 decision, and as such, is no longer before the Board at this time. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.) Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. Service treatment records note the Veteran fell down a ladder in January 1977. He reported pain in the low back shooting down his right leg. Examination revealed a slight hypesthesia in the anterior lateral aspect of the right thigh and dorsum of the right foot. In October 1977, the Veteran again complained of low back pain with radiating pain to the posterior right thigh. Physical examination revealed right great toe with distinct deficits compared to the left. He was assessed with possible HNP or nerve root compression secondary to old trauma. A February 1979 VA examination noted pain and numbness in the right leg. Sensory examination was within normal limits. The Veteran was afforded a VA examination in May 2014. He reported numbness in the bilateral legs. Muscle strength was normal. Reflexes were normal. Sensory examination was normal except for left thigh/knee, left lower leg/ankle and left foot/toes were decreased. The Veteran was noted to have mild, left lower paresthesias/dysesthesias, and mild left lower numbness. The Veteran was afforded a VA examination in May 2015. The Veteran reported bilateral leg pain, constant left leg numbness above the knee, and right leg numbness when lying on his back. Muscle strength was normal, reflexes were normal, sensory examination was normal except for decreased sensation of the lower leg/ankle, bilaterally. The examiner indicated the Veteran had moderate numbness, bilaterally, and opined that the Veteran had moderate radiculopathy involving the sciatic nerve. The Veteran was afforded a VA examination in November 2018. He reported pain in the legs and numbness in the left thigh. Muscle strength testing was normal. Right knee deep tendon reflex was hypoactive, left knee was normal. Deep tendon reflexes were absent in the ankles, bilaterally. Sensory examination revealed decreased sensation to the left upper thigh, bilateral lower leg/ankle, and bilateral toes/foot. The Veteran was afforded a VA examination in September 2019. Muscle strength was normal. There was no muscle atrophy. Reflexes were normal. Sensory examination was normal. During an August 2020 private evaluation, the Veteran reported numbness and deep pain with paresthesias to the lower extremities. He indicated he frequently drags his right foot, which can cause tripping. The physician opined that the Veteran's right radiculopathy more nearly approximates a moderately severe severity, with diminished reflexes and decreased strength, while the left leg symptoms are more moderate in nature. The Veteran was afforded a VA examination in February 2021. He was diagnosed with sensory polyneuropathy of the bilateral lower extremities; the VA examiner opined that the Veteran is diagnosed with both polyneuropathy and radiculopathy and the symptoms could not be separated out from each other, except for pain, which is due to radiculopathy. The examiner indicated that all sensory symptoms are overlapping. Therefore, the Board will consider all symptoms as part of the service-connected disability. The Veteran reported moderate intermittent pain, bilaterally and mild paresthesias and/or dysesthesias as well as mild numbness. Muscle strength testing was normal. Reflexes for the knees were hypoactive and absent in the bilateral ankles. Sensory examination revealed decreased sensation to the foot/toes, bilaterally. There were no trophic changes or gait abnormalities. The Veteran was noted to have mild, incomplete paralysis of the sciatic nerves, bilaterally. He did not use an assistive device. After a review of the evidence, the Board resolves all reasonable doubt in the Veteran's favor and finds that he is entitled to an initial rating of 40 percent, but no higher, for each lower extremity, as his symptoms more nearly approximate moderately-severe severity for the entire period on appeal. Regarding impairment of motor functions, the Veteran reported he often has to drag his right leg, causing him to trip. Medical evidence indicates muscle strength is normal, throughout the course of the appeal, although the Veteran reported also experiencing weakness. Regarding sensory disturbance, examinations revealed decreased sensation, bilaterally. The Veteran also experiences paresthesias/dysesthesias, and numbness. Regarding reflexes, the Veteran's bilateral ankle reflexes were absent on several occasions and hypoactive in the bilateral knees. Regarding pain, the Veteran reported deep, radiating pain of the bilateral lower extremities. Regarding muscle atrophy, the evidence of record shows no muscle atrophy. Regarding paralysis, the medical evidence indicates, at most, moderately severe incomplete paralysis. The evidence of record does not indicate complete paralysis of the nerve. Based on the above, the Board finds the Veteran's symptoms more nearly approximate a moderately-severe incomplete paralysis for each lower extremity, and warrants an initial rating of 40 percent, for the entire period on appeal. The Veteran suffers from diminished and absent reflexes, sensory disturbances, and pain. A rating higher than 40 percent for each leg, however, is not established. As noted, to warrant the next higher rating of 60 percent, the Veteran's symptoms must more nearly approximate severe incomplete paralysis with marked muscular atrophy. The Board has considered both lay and medical evidence. Muscular atrophy was not found on any additional VA examination and the Veteran has not asserted he experiences atrophy. Therefore, the Board finds that the Veteran does not meet the criteria for a rating higher than the now 40 percent assigned, as the probative evidence of record does not indicate severe incomplete paralysis with marked muscular atrophy. Accordingly, resolving all doubt in the Veteran's favor, initial ratings of 40 percent, but no higher, for radiculopathy of the right lower extremity and left lower extremity are warranted throughout the appeal period. To this extent, the claims are granted. TANYA SMITH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. Andersen, 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.