Citation Nr: 22014046 Decision Date: 03/11/22 Archive Date: 03/11/22 DOCKET NO. 13-20 830 DATE: March 11, 2022 ORDER Prior to June 29, 2016, entitlement to an initial rating in excess of 20 percent for a low back disability is denied. From June 29, 2016 to July 19, 2021, entitlement to an initial rating of 40 percent, but no higher, for a low back disability is granted, subject to the regulations governing payment of monetary awards. Effective July 19, 2021, entitlement to an initial rating in excess of 40 percent for a low back disability is denied. From October 18, 2011 to October 22, 2019, entitlement to an initial rating of 10 percent, but no higher, for left lower extremity radiculopathy involving the sciatic nerve is granted, subject to the regulations governing payment of monetary awards. Beginning October 22, 2019, entitlement to an initial rating of 20 percent, but no higher, for left lower extremity radiculopathy involving the sciatic nerve is granted, subject to the regulations governing payment of monetary awards. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy involving the femoral nerve is denied. From October 18, 2011, entitlement to an initial rating of 10 percent, but no higher, for right lower extremity radiculopathy is granted, subject to the regulations governing payment of monetary awards. Effective October 19, 2021, entitlement to an initial rating in excess of 10 percent rating for right lower extremity radiculopathy is denied. FINDINGS OF FACT 1. The Veteran filed his claim for entitlement to service connection for a low back disorder in October 2011. 2. For the period prior to June 29, 2016, the Veteran's low back disability was manifested by forward flexion limited to no worse than 45 degrees with painful motion and pain with certain activities; there were no incapacitating episodes having a total duration of at least four weeks during the past 12 month period. 3. From June 29, 2016 to July 19, 2021, the Veteran's low back disability more nearly approximated forward flexion limited to 30 degrees or less; or functional favorable ankylosis. 4. Unfavorable ankylosis of the entire thoracolumbar spine was not shown at any point, nor were there incapacitating episodes requiring physician ordered bed rest having a total duration of at least six weeks during a 12-month period. 5. From October 18, 2011 to October 22, 2019, the Veteran's left lower extremity radiculopathy that involved the sciatic nerve was manifested by no worse than mild incomplete paralysis. 6. Beginning October 22, 2019, his left lower extremity radiculopathy that involved the sciatic nerve was manifested by no worse than moderate incomplete paralysis. 7. Left lower extremity radiculopathy of the femoral nerve was manifested by no worse than moderate incomplete paralysis. 8. From October 18, 2011, the Veteran's right lower extremity radiculopathy was manifested by no worse than mild incomplete paralysis. CONCLUSIONS OF LAW 1. Prior to June 29, 2016, the criteria for entitlement to an initial rating in excess of 20 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5242. 2. Resolving reasonable doubt in the Veteran's favor, from June 29, 2016 to July 19, 2021, the criteria for entitlement to an initial rating of 40 percent, but not higher, for a low back disability have been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5242. 3. Effective July 19, 2021, the criteria for entitlement to an initial rating in excess of 40 percent for a low back disability have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.7, 4.71a, Diagnostic Code 5242. 4. From October 18, 2011 to October 22, 2019, the criteria for entitlement to an initial rating of 10 percent, but not higher, for left lower extremity radiculopathy involving the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Codes 8720, 8520. 5. Beginning October 22, 2019, the criteria for entitlement to an initial rating of 20 percent, but not higher, for left lower extremity radiculopathy involving the sciatic nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Codes 8720, 8520. 6. The criteria for entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy involving the femoral nerve have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8526. 7. Beginning October 18, 2011, the criteria for an initial 10 percent rating, but no higher, for left lower extremity radiculopathy involving the sciatic nerve have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1972 to November 1975. This appeal to the Board of Veterans' Appeals (Board) is from May 2015 and May 2017 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded the low back disability rating in February 2017 and July 2018 before denying the appeal in February 2020. The Veteran appealed the denial for the low back rating to the United States Court of Appeals for Veterans Claims (Court) and remanded the matter in January 2021 pursuant to a December 2020 Joint Motion for Partial Remand (JMPR). Thereafter, the Board remanded the matter in May 2021. An August 2021 rating decision granted a 40 percent rating effective July 19, 2021. When the Veteran appealed the May 2015 rating decision that established the rating for the low back disability, he appealed the initial rating for the back as well as the absence of separate ratings for bilateral lower extremity radiculopathy. The RO eventually granted service connection for the left lower extremity in a May 2017 rating decision and the right lower extremity in August 2021, and even though there is no appeal pending for the right lower extremity, the Board finds that, under Chavis, it is part and parcel to the appeal for the low back disability, so the Board has jurisdiction over that issue. Chavis v. McDonough, 34 Vet. App. 1 (2021). Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule). See generally 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practicably be determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. § 4.27. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Higher evaluations may be assigned for separate periods based on the facts found during the appeal period. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Low Back Disability 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. Regulation 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). The Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Daye v. Nicholson, 20 Vet. App. 512 (2006). Disabilities of the spine can be rated under the General Rating Formula for Diseases and Injuries of the Spine (Formula). 38 C.F.R. § 4.71a. Under this Formula, a 10 percent evaluation is assigned 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. 38 C.F.R. § 4.71a, Diagnostic Codes 5235 to 5242. A 20 percent evaluation is assigned 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. Id. A 40 percent evaluation is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is assigned of unfavorable ankylosis of the entire thoracolumbar spine. Id. A 100 percent evaluation is assigned for unfavorable ankylosis of the entire spine. Id. Normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is 0 to 30 degrees, left and right lateral flexion is 0 to 30 degrees and left and right lateral rotation are 0 to 30 degrees. The combined range of motion refers to the sum of the range of the range of forward flexion, extension, left and right lateral flexion and left and right lateral rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. Id., Note 2. Low back disabilities, which involve intervertebral disc syndrome may be alternatively rated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating episodes. Under this Formula, a 10 percent rating is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past 12 months; a 20 percent rating is assigned 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 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 rating is assigned for incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Code 5243. For purposes of evaluations under 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., Note 1. The RO assigned staged ratings with a 20 percent rating assigned prior to July 19, 2021 and a 40 percent rating assigned beginning on July 19, 2021. In the decision below, the Board has assigned an additional staged rating. Entitlement to an initial rating in excess of 20 percent for a low back disability prior to June 29, 2016. From the date service connection was established until June 29, 2016, the Veteran's low back disability was manifested by limitation of motion no worse than to 45 degrees, as demonstrated in an April 2016 VA record. See May 2017 Medical Treatment Records Non-Government Facility. Other records, such as a June 2014 treatment record that revealed forward flexion to 80 degrees and the December 2011 VA examination that revealed forward flexion to 60 degrees, revealed a greater range of motion in the lumbar spine. See December 2011 VA Examination and See May 2017 Medical Treatment Records Non-Government Facility. There are treatment records that also reflect limitation of motion, but they did not express it in degrees. Instead, August 2013, October 2013, November 2013, and August 2014 records noted forward flexion was to the knees. See June 2015 and July 2016 CAPRI records. The Board considered other factors that could additionally limit the Veteran's range of lumbar motion. Records in August and October 2013, May 2014, June 2015, January 2016, and April 2016 showed that the Veteran reported having increased periods of pain with certain movements or at certain times of the day and that his pain ranged from 3/10 to 8/10 in severity. See June 2015 and May 2016 CAPRI records, and May 2017 Medical Treatment Record Non-Government Facility. However, there was no indication as to what degree, if at all, these factors produced additional functional loss in terms of range of motion. Thus, they did not provide a basis for a higher rating. The Board finds, therefore, that the evidence tends to show that the Veteran's low back disability was manifested by limitation of motion that essentially fell within the scope of the criteria for a 20 percent rating, but no higher during this period, as forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine, was not shown. From June 29, 2016 to July 19, 2021, entitlement to an initial rating of 40 percent for a low back disability. On June 29, 2016 VA examination, forward flexion was to 40 degrees and pain caused his functional loss. After three repetitions there was no additional loss in range of motion. The Veteran reported that the pain in his back was constant and that he had flare-ups with repeated use, such as with prolonged walking, sitting, bending, or lifting. During flare-ups, he felt almost immobile. The examiner essentially stated that since the Veteran was not examined during a flare-up, he could not state whether pain, weakness, fatigability, or incoordination significantly limited functional ability without speculating. See June 2016 C&P Exam. Although he reasoned that to estimate range of motion without objective evidence would be conjecture, the Court held that such an explanation is inadequate. See Sharp v. Shulkin, 29 Vet. App. 26, 32-33 (2017). Although the examiner refrained from estimating the limitation of motion during flare-ups, the Board found that the Veteran adequately described his limitation so as to allow the Board to rate the severity of the disability. Notably, the Veteran is competent to report his symptoms, and the Board finds his statement credible and probative. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 367-68 (2005); Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). On examination, forward flexion was limited to 40 degrees and given that the Veteran reported he felt "almost immobile" during flare-ups, the evidence suggested that he was significantly more limited than what was demonstrated on examination. Thus, it was quite plausible under those circumstances that forward flexion was limited at least to 30 degrees or less. Arguably, he may have even had what amounted to functional favorable ankylosis during times of flare-ups. See Chavis v. McDonough, 34 Vet. App. 1, 10 (2021). In either event, both are in line with the requirements for a 40 percent rating. Although the June 2016 VA examiner did not elicit information regarding the frequency of the Veteran's flare-ups, the March 2017 VA examination did. The Veteran reported that during flare-ups his pain was 9/10 in severity and they occurred four times a week. He was also unable to stand for more than one hour or walk for more than two blocks without developing intolerable back pain. As with the prior VA examination, this examiner did not estimate the range of motion in degrees during flare-ups for essentially the same reason as the June 2016 VA examiner. Forward flexion was improved to 60 percent but given the frequency and severity of his flare-ups, the overall findings were still more consistent with a 40 percent rating. See March 2017 C&P Exam. On April 2019 VA examination, forward flexion was to 60 degrees and after only three repetitions it was reduced to 40 degrees. The clinician indicated that pain and fatigue significantly limited his functional ability with repeated use over time. As noted in the JMPR, the reason why the examiner did not estimate limitation during flare-ups was unclear. Nevertheless, the Veteran continued to have flare-ups and that were manifested by stabbing pain in the lower back and hip area. See April 2019 C&P Exam. In light of the examiner's failure to provide more clarity in her findings, the information with regard flare-ups is less probative than the June 2016 VA examination. Although the June 2016 VA examination was the only examination during this period that contained a description of the severity of his limitation of motion during flare-ups, the degree of pain at those times appeared to be fairly consistent in the subsequent examinations during this period. Thus, the Board finds that in light of the severity of pain and severe limitation due to pain that was previously reported, the evidence more nearly approximates the criteria for a 40 percent rating during this period. A higher rating of 50 percent is not assignable because even taking into consideration functional ankylosis, at most the limitation described was only in line with favorable ankylosis. Unfavorable ankylosis occurs when the entire thoracolumbar spine is fixed in flexion or extension or 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; or neurologic symptoms due to nerve root stretching. See Formula, Note (5). The Veteran's restriction in movement has not resembled unfavorable ankylosis of the entire thoracolumbar spine. Beginning July 29, 2021, entitlement to an initial rating in excess of 40 percent for a low back disability. The July 19, 2021 VA examination confirmed findings consistent with a 40 percent rating, but no higher. The Veteran reported flare-ups were every month that lasted from a few days to a couple of weeks; the most recent flare-up had been in the previous week and he could not walk down the hall or put on his socks and he could not drive for five days. He also reported severe limitation of motion with repeated use over time. On examination, forward flexion was to 40 degrees and there was no change after repetitive use testing. The Veteran exhibited pain in all ranges of motion, non-weight bearing, and in active and passive motion. The examiner estimated that with repeated use over time or during flare-ups, forward flexion was limited to 30 degrees. The severity of the Veteran's pain was 8/10 and muscle tightness in this area developed as a result of him limiting range of motion in order to avoid pain. When his back flared up, he had to sit and was unable to continue to be on his feet due to pain. See July 2021 C&P Exam. A subsequent VA examination in November 2021 showed that the Veteran did not report flare-ups but indicated that after repeated use over time he had difficulty lifting or picking up objects from the floor, putting on socks and shoes, and walking long distances. Range of motion testing showed forward flexion to 45 degrees and there was no additional loss after repeated testing. He did experience pain in all ranges tested, and there was pain in weight bearing, non-weight bearing, and in active and passive motion. The Veteran's movement was limited due to fear of pain. Based on the procured evidence (i.e., statements from the Veteran), there was no suggestion of pain, fatigability, weakness, lack of endurance, or incoordination which significantly limits functional ability with flare-ups or repeated use over time. See November 2021 C&P Exam. As there was some improvement noted in the most recent VA examination, there is nothing in the objective evidence in either VA examination or in the Veteran's description of his back disability under normal condition, flare-ups, or repeated use over time that suggested his back disability produced unfavorable ankylosis or was even consistent with functional unfavorable ankylosis. Thus, the Board finds no basis to assign a higher rating of 50 percent. Consequently, the appeal as it pertained to the period beginning July 19, 2021 is denied. Lower Extremity Radiculopathy On December 2011 VA examination for the Veteran's lumbar disability, he had full strength in the hips and lower extremities, and sensory testing was normal; however, reflexes were absent in the knees and ankles, bilaterally. The Veteran did not have any radicular pain or any other radicular signs or symptoms and the straight leg raising test was negative. See December 2011 VA Examination. A January 2012 record showed the Veteran admitted to experiencing numbness, tingling, or burning in the feet or toes. A February 2012 record noted he had attended physical therapy for his low back and reported that his "sharp" pain and tingling have resolved and there had been no recurrence over the past few weeks. Overall, his pain complaints had improved, and he had no radicular symptoms. He denied having any lower extremity weakness or gait changes. The neurological examination showed his bilateral lower extremity reflexes ranged from 1 to 2+ for the patellar/achilles and sensation was intact to light touch and pinprick. His gait was normal, and he had good heel strike. See November 2012 CAPRI records. In June 2013, the Veteran complained of right-sided sciatica pain. He reported that the pain had been present for the past two weeks and he rated it 7/10 in severity. An addendum noted he had right sided gluteal discomfort and the physician's assessment was sciatica. In July 2013, he continued to report sciatic pain, but radiation was only to the right hip. His right leg felt weak initially. The examination showed he had minimal reflexes bilaterally. That month he also had lumbar X-rays and an MRI due to lumbar pain and radicular symptoms with possible sciatica. In August 2013, the Veteran reported that his sciatic nerve had flared up over the past four to five months. He has pain with getting up from sitting position and with walking. His radiating symptoms consisted of some pain into the right buttocks and tingling in the right leg to the foot. The slump test was positive on the right lower extremity and negative on the left. See June 2015 and May 2016 CAPRI records. In June 2015, the Veteran denied radicular complaints, which included shooting pain down bilateral legs or any numbness/tingling. Bilateral lower extremity strength and sensation were normal, and reflexes were reduced to 1+. In December 2015, he again denied having numbness or tingling. A January 2016 treatment record indicated that his back pain did not extend to his legs. In April 2016, he denied radicular complaints and had no lower extremity numbness or paresthesias. See May 2016 CAPRI records. On June 2016 VA examination, the Veteran did not have radicular pain or any other radicular signs or symptoms. His bilateral lower extremity reflexes, sensation, and motor strength were normal, and the bilateral straight leg raising test was negative. See May 2016 C&P Exam. On March 2017 VA examination, the Veteran displayed some forgetfulness and confusion with regard to questions about back and lower extremity symptoms. The diagnoses included left lower extremity radiculopathy. The examination revealed that the straight leg raising test positive on the left and negative on the right. He had mild intermittent radicular pain and mild paresthesias and/or dysesthesias in the left lower extremity. The findings for the right lower extremity were normal and asymptomatic. The clinician found that the Veteran's left lower extremity radiculopathy involved the sciatic nerve and was mild. See March 2017 C&P Exam. In an April 2017 addendum to the March 2017 VA examination, the clinician wrote the Veteran did not demonstrate objective evidence of right lower extremity radiculopathy on the July 2013 MRI or physical exam. However, it was possible for the Veteran to develop right lower extremity radiculopathy in the future because disc herniation and radiculopathy have known pathogenesis in the progression from degenerative disc disease. See April 2017 C&P Exam. On April 2019 VA examination, the straight leg raising test was positive for each leg and there was objective evidence of mild intermittent pain and mild paresthesias and/or dysesthesias related to the left lower extremity with normal findings for pain and numbness. The right lower extremity did not demonstrate radiculopathy signs or symptoms. Bilateral strength and sensory tests were normal and left lower extremity reflexes were 1+ at the knee and ankle. The examiner indicated the findings were reflective of mild radiculopathy involving the sciatic nerve. See April 2019 C&P Exam. An October 2020 treatment record showed that the Veteran complained of lower extremity numbness/tingling. For at least the past year he had constant stinging/burning pain in his toes. The pain waxed and waned, but it was present all the time and was worse with walking. He also had a bilateral burning pain that was worse in his right toes and medial toes. He had zingers down both legs with the left worse that right. The examination revealed there was no bilateral lower extremity atrophy, strength was 5/5, and sensation was intact in his feet but diminished to light touch in the toes. His bilateral knee reflexes were 0 to 1+, and the slump test was positive bilaterally. The clinician reproduced zingers down his leg, and he had worsened toe burning sensation that resolved with lumbar extension. The Veteran had an EMG, and his bilateral lower extremity numbness was consistent with lumbar radiculopathy given the positive bilateral slump test with reproduction of symptoms and EMG results. See June 2021 CAPRI records. On July 2021 VA examination, the Veteran had normal strength and sensation in his lower extremities. His reflexes were 1+ in the knees and 2+ in the ankles. The straight leg raising test was negative on the right and positive on the left. His left lower extremity had moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The radiculopathy involved the femoral nerve. There were no abnormal findings associated with the right lower extremity and he did not report any symptoms. See July 2021 C&P Exam. An August 2021 treatment record showed he complained of having shooting pain down his left leg with some bilateral numbness that was constant. He denied having any problems moving his bowels or urinating and did not have any saddle paresthesia. He also denied any foot drop or muscle weakness. He had some intermittent numbness/tingling of feet that could have been related to lumbar radiculopathy. See October 2021 CAPRI records. The November 2021 VA examination noted the Veteran had bilateral lower extremity radiculopathy. His bilateral lower extremity strength was normal as were his reflexes and sensation. The bilateral straight leg raising test was negative. Radiculopathy was positive and the left lower extremity demonstrated moderate paresthesias and/or dysesthesias and moderate numbness. The right lower extremity demonstrated mild numbness and mild paresthesias and/or dysesthesias. The examiner noted that the radiculopathy involved the sciatic nerve. See November 2021 C&P Exam. Left lower extremity radiculopathy involving the sciatic nerve. The Board finds that after resolving reasonable doubt in the Veteran's favor, from the date of the grant of service connection for the lumbar spine disability on October 18, 2011 until October 22, 2019, the Veteran's left lower extremity radiculopathy warranted no greater than a 10 percent rating due to the mild symptoms he endorsed, including the waxing and waning of symptoms. The RO assigned a 10 percent rating effective July 8, 2013, however, as discussed below, the Board finds a 10 percent rating is assignable beginning October 18, 2011 and a 20 percent rating is assignable beginning October 22, 2019. The Veteran's lower extremity radiculopathy is rated under Diagnostic Code 8720, which applies the rating criteria found under Diagnostic Code 8520. Diagnostic Code 8520 provides a 10 percent evaluation for mild incomplete paralysis of the sciatic nerve of the lower extremity. A 20 percent evaluation is assigned for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is assigned for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is assigned for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is assigned for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis" indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Words such as "mild," "moderate," "severe," and "pronounced" are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Neuritis, cranial, or peripheral characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. "Neuritis is defined as inflammation of a nerve, a condition attended by pain and tenderness over the nerves, anesthesia and paresthesias, paralysis, wasting, and disappearance of the reflexes." Barclay v. Brown, 4 Vet. App. 161, 163 (1993). Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. "Neuralgia is acute paroxysmal pain radiating along the course of one or more nerves usu[ally] without demonstrable changes in the nerve structure." Horowitz v. Brown, 5 Vet. App. 217, 224 (1993). In applying the schedular criteria for rating peripheral nerve disabilities, including Diagnostic Code 8520, 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 level lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. See 38 C.F.R. § 4.124a. A. Rating from October 18, 2011 to October 22, 2019 A January 2012 treatment record showed the Veteran reported numbness, tingling, or burning in the feet or toes, but there was no indication of the frequency, duration, or severity of those symptoms or how they impacted him and weeks later. In February 2012, he reported that his symptoms had resolved and that he no longer had radicular symptoms. A July 2013 MRI revealed objective evidence of left-sided radiculopathy and, objectively, the evidence during this period showed some evidence of reduced reflexes as they were from 1 to 2+. His reflexes were similarly reduced in June 2015. While diminished reflexes were noted, there was no evidence that the objective findings resulted in any functional impairment or that he had any complaints associated with them and given the absence of any other objective findings or subjective complaints, the evidence thus far amounted to no greater than mild incomplete paralysis. The Board notes that while treatment records from June 2015 through June 2016 showed he denied having radiculopathy on multiple occasions, the RO already assigned a 10 percent rating during this period, which the Board is disinclined to disturb. An August 2016 statement indicated the Veteran had complaints of pain, numbness, and tingling that radiated from his back to his legs, especially during periods of exacerbation, but again there was no indication of severity, frequency, or duration of symptoms. Although the June 2016 VA examination he did not report any of those symptoms and there were no objective findings of radiculopathy, there were some objective findings on the March 2017 and April 2019 VA examinations that were consistent with his prior complaints. Overall, these examinations showed the paresthesias and/or dysesthesias was mild, and pain was intermittent and mild. Taking into consideration the objective findings and subjective complaints, the overall disability picture again reflected no worse than mild, incomplete paralysis. B. Rating beginning October 22, 2019 The left lower extremity sciatic radiculopathy appeared to progress by October 2019 since an October 22, 2020 record showed he reported having at least a one year history of constant stinging and burning pain in his toes as well as zingers in his legs. According to his April 2021 statement, the Veteran continued to have a stinging sensation in his feet and toes when he bended in addition to a shocking leg pain. He had similar complaints of shooting pain in August 2021 as well as constant leg numbness. Even though the July 2021 VA examination did not contain any complaints or findings of left lower extremity radiculopathy that involved the sciatic nerve, the earlier complaints and findings appeared consistent with the November 2021 VA examination findings, which the examiner stated were moderate in severity. In light of the progression of symptoms which were reported to have begun one year prior to the October 22, 2020 treatment record, the Board finds that after resolving reasonable doubt in the Veteran's favor, a 20 percent rating is assigned, effective October 22, 2019. A higher rating is not assigned since moderately severe radiculopathy was not shown. In this regard, the record did not reflect significant impairment in the Veteran's left leg function associated with sciatic radiculopathy. While the burning and stinging sensations in his left foot and toes were reported as constant, there was no indication that those symptoms, though constant, were severe enough to cause more than moderate impairment or created any significant difficulty with walking. His pain waxed and waned and sharp pains or zingers only manifested with bending and were relieved by extending his back. As noted previously, terms such as mild and moderate are not defined. In reaching this decision, the Board considered the Veteran's statements regarding his symptoms and, where noted, their severity. He was competent to describe his symptoms, and they were found to be both credible and probative. The Board also gave some deference to the examiners and clinicians that have examined him and offered their assessments as to the severity of impairment and the objective findings. Thus, in light of the subjective complaints, objective findings, and how the sciatic radiculopathy impacted the left lower extremity, as well as the severity, frequency, and duration of symptoms, the evidence supported a finding that a 10 percent rating was appropriate from the date of his claim to October 22, 2019 as the disability was no worse than mild in severity. However, the evidence also supported a finding that a 20 percent rating, but no higher, was warranted beginning October 22, 2019 due to the moderate incomplete paralysis that was demonstrated. Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy involving the femoral nerve. The RO assigned an initial 20 percent rating for the Veteran's left lower extremity radiculopathy that involved the femoral nerve. The effective date assigned was July 19, 2021, which the RO based on the date a VA examination revealed femoral radiculopathy existed. Diagnostic Code 8526, which applies to the femoral nerve, provides ratings for incomplete paralysis that are 10 percent when mild, 20 percent when moderate, and 30 percent when severe; complete paralysis of the quadriceps extensor muscles is assigned a 40 percent rating. 38 C.F.R. § 4.124, Diagnostic Code 8526. The July 2021 VA examination of the left lower extremity found objective evidence of intermittent pain, paresthesias and/or dysesthesias, and numbness, all of which were moderate in severity. Reflexes were also somewhat diminished at 1+ in the knees. The examiner attributed the radicular signs and symptoms to impairment of the femoral nerve. The Veteran reported that he occasionally had shooting pains down his left leg. The symptoms, as described, did not reflect severe incomplete paralysis. The functional limitations detailed in the examination were primarily shown to be related to the Veteran's low back disability rather than the left leg disability. The information the Veteran provided concerning his left leg did not suggest severe impairment in leg function due to his disability and the examiner's findings were only consistent with moderate disability. The November 2021 VA examination also did not provide any objective or subjective evidence of severe incomplete paralysis and, in fact, the only symptoms found were related to the sciatic nerve rather than the femoral nerve. For these reasons, the Board finds that an initial rating greater than 20 percent is not assignable or supported by the evidence. The Board considered the evidence prior to the July 2021 VA examination, but found no evidence that indicated his left lower extremity radiculopathy involved the femoral nerve. Nothing was found on the earlier VA examinations and treatment records were likewise silent. Entitlement to a rating for right lower extremity radiculopathy. The RO granted a 10 percent rating for right lower extremity radiculopathy, effective October 19, 2021; however, the Board must consider whether a compensable rating is assignable earlier than that date since the separate rating for right lower extremity radiculopathy is part and parcel to the appeal involving the initial rating for the back disability. Chavis v. McDonough, 34 Vet. App. 1 (2021). Based on the evidence, the Board finds that a 10 percent rating, but no higher, from October 18, 2011 is warranted. A. From October 18, 2011 The April 2017 VA examination addendum stated the July 2013 MRI did not reveal objective evidence of right lower extremity radiculopathy and right lower extremity radiculopathy was not formally diagnosed until the November 2021 VA examination. However, the Veteran first complained of symptoms in January 2012 and subsequently had symptoms and a positive slump test in August 2013 and positive straight leg raising test in April 2019; both tests were indicators of radiculopathy. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that his right lower extremity radiculopathy first appeared to be present in January 2012, and will resolve reasonable doubt and grant to the date of claim for the lumbar spine disability. The January 20, 2012 treatment record suggested the radicular complaints involved both feet. The Veteran did not report the frequency, severity, or duration of those symptoms but by February 2012 he reported those symptoms had resolved even though there was some objective evidence showed diminished reflexes. Right-sided radicular pain was again noted in June and July 2013 and even though he reported at the time that it only extended to the right hip and buttocks, an August 2013 treatment record showed he reported having a four to five month history of pain flare-up that resulted in pain not only in the right buttocks but also in the right leg and foot. Notably, the slump test was positive on the right. His reported pain when standing from a seated position and with walking indicated the type of activities that produced symptoms, but not the presence of any significant functional impairment. Although present, the record did not show that his symptoms interfered with his ability to rise from a seated position or with his ability to walk. Thus, the disability, at most, is best characterized as mild. Beginning June 23, 2015, the record showed the right lower extremity radiculopathy was asymptomatic. Notably, the June 2015 record showed he was on his feet all day but only reported back and knee symptoms, not right leg symptoms. He had diminished reflexes but there was no evidence of any associated functional impairment or associated symptoms. During this period, the Veteran denied radicular complaints, to include pain, numbness, tingling, or paresthesias, which included a June 2016 VA examination that showed he had no right lower extremity complaints or findings. His motor strength, sensation, and reflexes were normal. Thus, the disability during this time was essentially asymptomatic and no functional impairment was shown. The Veteran did not complain of symptoms until August 29, 2016 when he again reported having pain, numbness, and tingling that radiated to his right leg. He noted that those symptoms were also present during periods of exacerbation, but did not indicate the severity, or duration of symptoms, or functional impairment. However, the March 2017 VA examination showed that the straight leg raising test was negative on the right and the examination revealed no objective evidence of right lower extremity pain, paresthesias and/or dysesthesias, or numbness. Aside from the positive straight leg raising test on the April 2019 VA examination, the rest of the examination was similar to the March 2017 VA examination. Thus, there were no complaints associated with the right lower extremity and there was no evidence of symptoms. On October 19, 2020 he reported an approximately one year history of constant stinging and burning in his toes as well as leg zingers. He had a positive slump test, and his knee reflexes were from 0 to 1+. In April 2021, he reported having a stinging sensation with bending and a shock of pain in his leg but as with the previous VA examinations, the July and November 2021 VA examinations were silent for any complaints and there was no evidence of symptoms in the right lower extremity. (Continued on the next page) The Board carefully considered the October 2020 treatment record that showed the Veteran complained of what appeared to be worse symptoms over the past year and that he stated the symptoms in his toes were worse on the right than the left. While there was some objective evidence of diminished sensation in his toes, reflexes were reduced or absent, he had a positive slump test, and leg zingers were reproduced on examination, the complaints and findings were still more consistent with mild incomplete paralysis than moderate incomplete paralysis. Zingers were worse on the left and the right and while pain worsened with walking, the evidence did not show it had any significant impact on his ability to walk. As previously noted, the terms mild and moderate are not defined. However, in the context of determining the severity of radiculopathy, the Board views mild incomplete paralysis as a level of disability that may produce symptoms and minimally impact function in the portion of the lower extremity affected by sciatic nerve impairment. The Board also finds that moderate incomplete paralysis results in more observable functional impairment with more significant or frequent interference with right leg function. The Veteran's positive complaints and findings that resulted in diminished reflexes, decreased sensation in the toes, and increased pain with walking were not shown to have that type of impact contemplated in a 20 percent rating. In other words, the minimal findings and lack of symptoms on all VA examinations coupled with the Veteran's complaints, which are credible and probative, did not establish the degree of impairment and loss of function that one would expect to see with moderate incomplete paralysis under Diagnostic Code 8520 at any point during the appeal. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Bredehorst, 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.