Citation Nr: 22013754 Decision Date: 03/10/22 Archive Date: 03/10/22 DOCKET NO. 18-28 513A DATE: March 10, 2022 ORDER Entitlement to an increased rating in excess of 10 percent disabling prior to August 18, 2016 for low back disorder is denied. Entitlement to a 20 percent rating, but no higher, from August 18, 2016 to October 4, 2020 for low back disorder is granted. Entitlement to an increased rating in excess of 40 percent disabling since October 5, 2020 for low back disorder is denied. Entitlement to an increased rating in excess of 10 percent disabling prior to October 5, 2020 for left lower extremity radiculopathy associated with low back strain is denied. Entitlement to an increased rating in excess of 20 percent disabling since October 5, 2020 for left lower extremity radiculopathy associated with low back strain is denied. REMANDED Entitlement to an earlier effective date prior to November 12, 2013 for the grant of service connection for low back strain is remanded. Entitlement to an earlier effective date prior to November 12, 2013 for the grant of service connection for left lower extremity radiculopathy associated with low back strain is remanded. FINDINGS OF FACT 1. Prior to August 18, 2016, the Veteran's lumbar spine disability was primarily manifested by pain and forward flexion was limited to 70 degrees. 2. From August 18, 2016 to October 4, 2020, the Veteran's lumbar spine disability had manifested by chronic pain resulting in forward flexion to 60 degrees when considering additional functional loss and/or impairment but is not shown to result in forward flexion of the thoracolumbar spine 30 degrees or less, ankylosis of the thoracolumbar spine, or incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past twelve months. 3. At no time from October 5, 2020 has the Veteran's lumbar strain resulted in ankylosis, functional or actual, of the thoracolumbar spine, nor is there a finding of incapacitating episodes of intervertebral disc syndrome having a total duration of at least 6 weeks. 4. The radiculopathy of the Veteran's left lower extremity prior to October 5, 2020 has been manifested by no more than mild incomplete paralysis. 5. The radiculopathy of the Veteran's left lower extremity from October 5, 2020 has been manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for low back disability prior to August 18, 2016 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 2. The criteria for a 20 percent rating for low back disability from August 18, 2016 to October 4, 2020 have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 3. The criteria for a rating in excess of 40 percent for low back disability from October 5, 2020 have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.13, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 4. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity prior to October 5, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520, 8721. 5. The criteria for a rating in excess of 20 percent for radiculopathy of the left lower extremity from October 5, 2020 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520, 8721. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2005 to June 2009. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2021, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of that hearing has been associated with the record. Increased Rating The Veteran is seeking an increased evaluation for his low back disability and for his left lower extremity radiculopathy. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Low Back Strain The Veteran's low back strain is currently rated as 10 percent disabling prior to October 5, 2020 and at 20 percent since thereafter under DC 5237. 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. 85 Fed. Reg. 230 (Nov 30, 2020). These amendments revised 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 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 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. Id. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021 and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable will be applied. The criteria for rating disabilities of the spine are listed under DCs 5235 to 5243. The code for intervertebral disc syndrome (DC 5243), permits rating under either the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever results in the higher rating when all disabilities are combined. 38 C.F.R. § 4.71a. Prior to the regulatory change under the General Rating Formula for Disease and Injuries of the Spine, lumbosacral or cervical strain is rated under DC 5237 and DC 5242 was applicable to degenerative arthritis of the spine. 38 C.F.R. § 4.71a. A 10 percent evaluation is assigned for forward flexion of the thoracolumbar spine greater than 60 degrees, but not greater than 85 degrees; or, when the combined range of motion of the thoracolumbar spine greater than 120 degrees, but not greater than 225 degrees; or when there is 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 evaluation is appropriate where there is 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 is 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 evaluation for forward flexion of the thoracolumbar spine of 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. A 50 percent evaluation is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. Id. Any associated neurological abnormalities (e.g., bowel or bladder impairment) are evaluated separately under the appropriate diagnostic code. See Note 1. Normal forward flexion of the thoracolumbar segment of the 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 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. See Note 2, General Rating Formula for Disease and Injuries of the Spine, 38 C.F.R. § 4.71a, Plate V. The Board notes that the General Rating Formula for Diseases and Injuries of the Spine is unaffected by the February 7, 2021 regulatory changes. However, DC 5242 is expanded to include degenerative arthritis, and degenerative disc disease other than intervertebral disc syndrome. Prior to the regulatory change, under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is warranted for incapacitating episodes having a total duration of at least one week, but less than two weeks in the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. A 20 percent rating is warranted for incapacitating episodes having a total duration of at least two weeks but less than four weeks in the past 12 months. A 40 percent rating is warranted for incapacitating episodes having a total duration of at least four weeks, but less than six weeks in the past 12 months; and a 60 percent rating is warranted for incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, DC 5243. As of February 7, 2021, under the amended criteria, DC 5243 is only assignable when there is disc herniation with compression and/or irritation of the adjacent nerve root; DC 5242 is to be assigned for all other disc diagnoses. The pertinent evidence in this case consists almost entirely of clinical findings from VA examinations and from VA treatment records. In the January 2015 VA examination, The Veteran was diagnosed with a low back strain with dates of diagnosis in June, July, and November 2008. The Veteran noted that he always had an average pain level of three or four out of ten, but that it would worsen with certain activities. The Veteran explained that he had difficulty lifting his daughter and that he would have occasional shooting pain down his left leg with numbness in his left buttock. The Veteran reported that he was currently employed as a police office for over the past year and denied any on the job injuries. The examiner noted that the Veteran did not report flare-ups that impacted the function of his low back, but that he did have functional impairment since he could not bend forward fully. Initial range of motion (ROM) for forward flexion was limited to 70 degrees, extension was limited to 25 degrees, and bilateral lateral flexion and bilateral lateral rotation all did not have any limitation of motion. The ROM testing itself did not contribute to a functional loss and while pain was noted on examination with forward flexion and extension, it did not result in or cause any functional loss. The examiner noted that the Veteran's paraspinal region of the lower lumbar spine and his left buttock were tender to palpation. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or ROM. The Veteran was examined immediately after repetitive use over time and pain, weakness, fatigability, nor incoordination significantly limited the Veteran's functional ability. The examiner noted that the examination was not conducted during a flare up since the Veteran did not report any flare ups. The examiner furthered that the Veteran had no muscle spasms or guarding but did have localized tenderness that did not result in an abnormal gait or an abnormal spinal contour. The examination reflected that the Veteran had normal muscle strength, had no muscle atrophy, and had normal reflexes. The sensory examination reflected that everything was normal and that the Veteran had a negative straight leg raising tests. The examiner noted that the Veteran had mild intermittent pain and mild paresthesias in his left lower extremity. The severity of the radiculopathy on the left side was mild. The examiner furthered that there was no ankylosis of the spine, that the Veteran did not have any other neurologic abnormalities related to the back, and that he did not have IVDS of the back. The Veteran reported that he occasionally wears a brace when jogging. The examiner noted that the Veteran's back disability did not impact his ability to work. In a July 2014 VA treatment record, the Veteran complained of lower back pain, numbness in his upper thighs, and sharp pain that would shoot down to his feet. The examiner noted that the Veteran's back pain was moderate to severe. The Veteran furthered that the pain has a sharp and stabling feeling going down both legs and that it worsens when he bends or sits in certain positions. He also reported that he experienced numbness and tingling down his legs. He furthered that there was tenderness in the low back area and that he was unable to bend forward fully without pain elicited. He experienced pain on twisting his waist and with bilateral straight leg raises. In a May 2016 record, the Veteran complained that his lower back pain has worsened and that he was unable to bend forward fully or bend laterally to the left without a sharp pain. The examiner noted that the Veteran experienced pain with straight leg raises, but that his sensation was intact. An August 2016 record reflected that forward bending was limited to 60 degrees with pain, back extension was limited to 20 degrees, lateral bending to the right was 205 degrees and the left was 17 degrees. In the October 2020 VA examination, the Veteran was diagnosed with lumbosacral strain with a diagnosis date of 2008 and with degenerative arthritis of the spine and intervertebral disc syndrome with a diagnosis date of 2016. The Veteran reported that his back pain had gotten worse over time and that he had pain that would shoot down the back of his legs. The Veteran reported that he experienced flare-ups once a week with a severity of 10 out of 10 with certain movements that require him to lay down. The Veteran also reported having pain and difficulty with bending, lifting, taking the stairs, prolonged sitting, prolonged walking, squatting, twisting, lateral movements, and extension. Initial ROM testing reflected forward flexion limited to 35 degrees, extension limited to 20 degrees, and bilateral lateral flexion and bilateral lateral rotation all limited to 20 degrees. The examiner noted that the Veteran's ROM itself contributed to a functional loss since the limited ROM impacted washing, dressing, twisting, and bending. Pain was noted with forward flexion, extension, bilateral lateral flexion, and bilateral lateral rotation and it caused a functional loss. There was evidence of pain with weight bearing and there was objective evidence of tenderness to palpation in the lumbosacral region and paraspinous muscles. The Veteran was able to perform repetitive-use testing with no additional loss of function or ROM. The Veteran was not examined immediately after repetitive use over time or during a flare up and the examiner noted that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time or during a flare up. The examiner noted that pain and lack of endurance significantly limited the Veteran's functional ability with repeated use over a period of time and during a flare up and was able to describe it in terms of ROM with forward flexion limited to 30 degrees, extension limited to 15 degrees, and bilateral flexion and bilateral lateral rotation all limited to 20 degrees. The examiner noted that the Veteran had muscle spasms and guarding that did not result in an abnormal gait or an abnormal spinal contour. The Veteran had normal muscle strength, no muscle atrophy, and a normal reflex examination. Straight leg testing was positive for both legs, but there was no ankylosis of the spine. The examiner noted that the Veteran did not have any other neurologic abnormalities related to the back disorder. The examiner furthered that the Veteran had IVDS of the lower back but did not have any episodes of acute signs and symptoms that required bed rest prescribed by a physician and treatment in the past 12 months. The examiner noted that the Veteran's back disability impacted his ability to work since he lost two to four weeks of work in the past 12 months and the back disability and limited ROM impacted his ability with heavy carrying, lifting, bending, squatting, prolonged sitting, twisting, and lateral movement. The examiner noted that there was objective evidence of pain when the spine was non-weight bearing and that passive ROM of the spine was not performed as it was not feasible to do so in a safe and reasonable manner. During the October 2021 Board hearing, the Veteran testified that from when he submitted his claim he felt as if his back disability was more than just a muscle or back strain. The Veteran complained to a physician that he was in so much pain and that his back disability could not just be muscle spasms which caused the physician to schedule the Veteran for a MRI. The Veteran explained that the MRI in 2016 showed how bad his back was. The Veteran also reported that his first examination was very quick and was not thorough at all and felt that the second VA examination was much more thorough. After reviewing all the evidence in light of the above criteria, the Board finds that prior to August 18, 2016, a rating in excess of 10 percent is not warranted. During this time period, the Veteran had forward flexion of at least 70 degrees. The Board notes that while the January 2015 VA examiner claimed that the Veteran did not report any flare ups nor experienced any additional limitation of motion upon repetitive use, there is also no evidence in the treatment records that would reflect ROM at or less than 60 degrees forward flexion. During this time period, the Veteran has not had forward flexion of 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 where 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 degrees or less, or ankylosis of the entire thoracolumbar spine that would warrant a rating higher than 10 percent. Moreover, additional compensation based on functional loss due to pain and other factors is not warranted. 38 C.F.R. §§ 4.40, 4.45 (2018); DeLuca v. Brown, 8 Vet. App. 202 (1995). The 10 percent evaluation is based on compensation for functional loss due to painful movement, and the evidence does not show that there is additional functional loss that is not compensated already in the assignment of a 10 percent evaluation. In determining the Veteran's overall functioning, the Board has considered the DeLuca factors noted above, the Veteran's reported symptoms, the clinical records, and the VA examination reports. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for a rating in excess of 10 percent prior to August 18, 2016 and the claim must therefore be denied. However, starting from August 18, 2016 to October 4, 2020, the Board finds that a rating of 20 percent disabling is warranted. During this time period, the Veteran had forward flexion of 60 degrees. The Board notes that although the August 2016 VA clinician did not address whether the Veteran experienced additional limitation of motion due to repetitive use, pain, or flare-ups, there is no evidence in the treatment records that would reflect ROM at 30 degrees or less forward flexion. During this time period, the Veteran does not have forward flexion of the thoracolumbar spine 30 degrees or less, favorable ankylosis of the entire thoracolumbar spine, or any evidence of IVDS causing incapacitating episodes. In sum, the medical and lay evidence of record more nearly approximates the criteria for a rating of 20 percent disabling between August 18, 2016 and October 4, 2020. From October 5, 2020, the Board finds the evidence is against a finding in excess of 40 percent. None of the evidence indicates that the Veteran has ankylosis of the lumbar spine; on the contrary, the evidence shows the Veteran has maintained ROM in his spine, albeit limited, throughout the appeal period. Additionally, there is no evidence that the Veteran's spine disability results in the functional equivalent of ankylosis during flare-ups such that he is unable to move. Chavis v. McDonough, U.S. Vet. App. No. 18-2928 (April 16, 2021). To the contrary, even during flare-ups the, albeit in a reduced fashion. As such, there is no functional loss severe enough to implicate Chavis, and a rating in excess of 40 percent under the General Rating Formula is not warranted. Additionally, an increased rating is not warranted due to pain, weakness, fatigability, or incoordination with flare-ups as the Veteran's primary symptom, pain, has been considered in the 40 percent disability rating assigned. Based on the Veteran's statements and the medical evidence of record, consideration of a higher rating under DC 5243, which pertains to IVDS is also not warranted as no examiner found incapacitating episodes due to IVDS. In sum, the medical and lay evidence of record does not more nearly approximate the criteria for a rating in excess of 40 percent from October 5, 2020 and the claim for this period must therefore be denied. 2. Left Lower Extremity Radiculopathy associated with Low Back Strain The radiculopathy of the Veteran's left lower extremity has been evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8721 as analogous to neuralgia of the external popliteal (common peroneal) nerve. Under that diagnostic code, mild incomplete paralysis of the nerve warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; severe incomplete paralysis warrants a 30 percent rating; and complete paralysis warrants a 40 percent rating. Complete paralysis of the nerve contemplates foot drop and slight droop of the first phalanges of all toes, inability to dorsiflex the foot, loss of extension (dorsal flexion) of the proximal phalanges of the toes, lost abduction of the foot, weakened adduction, and anesthesia covering the entire dorsum of the foot and toes. Id. The Board notes, however, that the October 2020 VA examination included findings to the effect that the radiculopathy affected the sciatic nerve. As such, consideration of the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520, is also warranted. Under that diagnostic code, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular atrophy; a 40 percent evaluation if it is moderately severe; a 20 percent evaluation if it is moderate; and a 10 percent evaluation if it is mild. Neuritis and neuralgia of the nerve are evaluated on a similar scale under Diagnostic Codes 8620 and 8720. 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 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 terms "mild," "moderate," and "severe" are not defined in the Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board notes, for reference and illustrative purposes, that the definition for "mild" includes not very severe. WEBSTER'S II NEW COLLEGE DICTIONARY at 694 (1995). In addition, a synonym for "mild" is "slight" and definitions for "slight" include small in size, degree, or amount. Id. at 1038. The definitions for "moderate" include of average or medium quantity, quality, or extent. Id. at 704. Finally, definitions of "severe" include extremely intense. Id. at 1012. It is noted that the term "moderately severe" indicates impairment greater than moderate but not to the extent as to be considered severe. The pertinent evidence in this case consists almost entirely of clinical findings from VA examinations and from VA treatment records. In the January 2015 VA examination, the Veteran reported experiencing occasional shooting pain down his left leg with numbness in his left buttock. The examiner indicated that the Veteran experienced mild intermittent pain and paresthesias and/or dysesthesias in his left lower extremity. The examiner did not indicate the nerve roots involved and noted that the Veteran had mild radiculopathy in his left side. VA treatment records indicate that the Veteran experienced radiating, sharp, shooting, and stabbing pain that went down his leg. The records also reflected that he experienced numbness and tingling down his legs. A May 2016 record reflected that the Veteran's sensation was intact in his left leg. An August 2016 VA treatment record reflected that the Veteran occasionally experienced radiating pain to his left lower extremity and that he had four out of five strength in his left lower extremity. An October 2018 record reflected that he experienced intermittent numbness and tingling in his left lower extremity. In the October 2020 VA examination, the Veteran was diagnosed with bilateral lower extremity radiculopathy. The Veteran reported that with his back pain he developed pain that would shoot down the back of his legs, more in the left leg. The Veteran explained the left leg pain started directly after his injury. The examiner noted that the Veteran had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in his left lower extremity. The examiner indicated that the Veteran had decreased sensation in his lower leg and ankle. The examiner furthered that the Veteran did not have any trophic changes attributable to peripheral neuropathy and that his gait was normal. The examiner indicated that the Veteran had incomplete paralysis of the sciatic nerve with moderate severity and that his external popliteal nerve was normal on the left side. The examiner noted that the Veteran's radiculopathy impacted his ability to work since he lost about one to two weeks of work in the last 12 months due to the pain. In the October 2021 Board hearing, the Veteran reported that he has always experienced shooting pain down his left leg and numbness in his buttocks. Prior to October 5, 2020, the Board notes that the January 2015 VA examination found that the Veteran had mild radiculopathy in his left lower extremity. Although the Board is not bound by that description, it is probative evidence or consideration. As detailed below, the Board is persuaded that the Veteran's radiculopathy is, in fact, shown to be no more than mild in degree. The Board finds that based off of the evidence of record, it is indicative that the Veteran had no more than mild incomplete paralysis prior to October 5, 2020. The May 2016 record claimed that the Veteran's sensation was intact and the August 2016 record reflected that the Veteran occasionally experienced radiating pain in his left leg. Thus, the Board finds that the Veteran is not entitled to a rating in excess of 10 percent under either Diagnostic Code 8721 or 8520, to include as a "staged" rating. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claim for this appeal period, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The appeal of this issue prior to October 5, 2020 must be denied. From October 5, 2020, the Board notes that the October 2020 VA examination found the radiculopathy of the Veteran's left lower extremity to be moderate. The Board finds this as probative evidence for consideration. There is no indication that the Veteran experienced incomplete moderately severe or severe paralysis of the sciatic nerve or the external popliteal nerve nor that the Veteran had complete paralysis of either the sciatic or external popliteal nerves. Thus, the Veteran is not entitled to a rating in excess of 20 percent under either Diagnostic Code 8721 or 8520, to include as a "staged" rating. In reaching this decision, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is persuasively against the claim for this appeal period, that doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. § 4.3. The appeal of this issue must be denied. REASONS FOR REMAND 1. Entitlement to an earlier effective date prior to November 12, 2013 for the grant of service connection for low back strain is remanded. 2. Entitlement to an earlier effective date prior to November 12, 2013 for the grant of service connection for left lower extremity radiculopathy associated with low back strain is remanded. During the October 2021 Board hearing, the Veteran reported that he believes he went to a VA clinic before filing his claim for service connection and expressed how he hurt his back during military service and that he had a back disorder. The Veteran was granted service connection for his low back strain and for the left lower extremity radiculopathy with an effective date of November 12, 2013. The Veteran claims that he was seen at VA prior to this date and had complained of his back disability and was prescribed medication for it. The Veteran's representative pointed out that an informal claim could have arisen out of these complaints by the Veteran, thus entitling the Veteran with an earlier effective date prior to November 12, 2013. The record reflects that the earliest VA treatment records start from November 2010. Thus, there is a gap of records from June 2009 (when the Veteran separated from military service) until November 2010. A remand is warranted to obtain these missing medical treatment records in order to adjudicate the claims. By this remand the Board makes no determination, expressed or implied, as to the credibility of any statements on file. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2009 to November 2010. 2. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If the benefit sought is not granted to the Veteran's satisfaction, send the Veteran and his representative a Supplemental Statement of the Case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. Thomas H. O'Shay Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Imam, Associate 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.