Citation Nr: 22017606 Decision Date: 03/25/22 Archive Date: 03/25/22 DOCKET NO. 16-24 515A DATE: March 25, 2022 ORDER An increased rating for a right shoulder disability (residuals of dislocation with traumatic arthritis with slight atrophy of the deltoid muscle) in excess of 20 percent is denied. An increased rating for a back disability (residuals status post dislocation with fusion at T-12 to L-1) of 40 percent, effective August 12, 2020, to March 11, 2021, (excluding the temporary total rating period for back surgery) is granted. An increased rating for a back disability in excess of 20 percent prior to August 20, 2020, and in excess of 40 percent thereafter, is denied. An increased compensable rating for right lower extremity sciatic radiculopathy of 10 percent, effective April 21, 2014, to June 1, 2014, is granted. An increased rating for right lower extremity sciatic radiculopathy of 20 percent, effective since August 12, 2020, (excluding the temporary total period) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran has had right shoulder pain with intermittent painful or limited motion, stiffness, swelling, and infrequent episodes of dislocation or instability with guarding, but retained motion of the minor arm and shoulder to more than 25 degrees from the side. 2. Prior to August 12, 2020, the Veteran's low back disability manifested by pain and painful motion, with forward flexion to greater 30 degrees even during flareups or after repeated use; but no ankylosis and no incapacitating episodes. 3. Since August 12, 2020, the Veteran's low back disability has manifested by pain and painful motion, with forward flexion to 30 degrees or less during flareups or after repeated use; but no ankylosis and no incapacitating episodes. 4. Since his April 21, 2014, claim until August 12, 2020, the Veteran had mild incomplete paralysis of the sciatic nerve for the right lower extremity. 5. Since August 12, 2020, until his November 16, 2020, back surgery, the Veteran had moderate incomplete paralysis of the right lower extremity sciatic nerve. CONCLUSIONS OF LAW 1. The criteria for an increased rating for a right shoulder disability in excess of 20 percent are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5201. 2. The criteria for an increased rating for a back disability of 40 percent, effective since August 12, 2020, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.400, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 3. The criteria for an increased rating for a back disability in excess of 20 percent prior to August 12, 2020, and in excess of 40 percent thereafter, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5243. 4. The criteria for an increase or earlier rating of 10 percent for right lower extremity sciatic radiculopathy associated with the back disability, effective April 21, 2014, to June 1, 2014, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. 5. The criteria for an increased rating of 20 percent for right lower extremity sciatic radiculopathy, effective since August 12, 2020, are met. 38 U.S.C. §§ 1155, 5107, 5110; 38 C.F.R. §§ 3.400, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1977 to September 1998. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2014 rating decision in response to an April 2014 claim for increased ratings for the service-connected back and right shoulder disabilities. The July 2014 decision denied increased ratings from 20 percent for the back and 10 percent for the right shoulder. A June 2017 rating decision granted an increase for the right shoulder of 20 percent, effective since the April 21, 2014, date of claim. In May 2019, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge. In September 2019, the Board remanded the back and right shoulder issues for additional development, to include whether there were symptoms in the right lower extremity (leg) associated with his back disability. An August 2020 rating decision granted service connection for right lower extremity radiculopathy, rated 10 percent, effective since January 6, 2020, or the date of the post-remand VA examination that recorded this radiculopathy. However, the question of entitlement to a compensable rating for right lower extremity radiculopathy throughout the period since the Veteran's April 21, 2014, claim is before the Board as part of the appeal of the rating for the back disability. In December 2020, the Board again remanded this matter to obtain outstanding treatment records, provide updated VA examinations and estimates of functional loss, and consideration of an earlier rating for right lower extremity radiculopathy. Upon remand, a December 2020 rating decision granted a temporary total rating from November 16, 2020, to February 28, 2021, followed by a 20 percent rating based on a low back surgery; special monthly compensation (SMC) based on a single 100 percent rating and additional disabilities rated 60 percent or more was also awarded for the temporary total period. A June 2021 rating decision granted an increase to 40 percent for the back disability, effective March 12, 2021. A December 2021 rating decision granted separate ratings for scars associated with the Veteran's back disability. Painful low back surgical scars were rated 10 percent effective March 12, 2021, and 20 percent effective June 2, 2021; and there was a separate noncompensable rating for back surgical scars effective March 12, 2021. The December 2021 rating decision also granted an earlier effective date of June 2, 2014, for service connection (or the separate rating award) for right lower extremity radiculopathy associated with the low back disability. As the Veteran's claim for increase was received on April 21, 2014, the ratings remain on appeal. As a final preliminary matter, the December 2021 rating decision granted entitlement to total disability rating based on individual employability (TDIU), effective March 1, 2021, after the Veteran's temporary total period for his back surgery. There is no suggestion of unemployability prior to that date. Increased Ratings Relevant to all issues on appeal, as noted in the December 2020 Board remand, the Veteran asserted in his June 2016 VA Form 9 that his prior examinations were not thorough and private records were not considered; and he again asserted generally in September 2020 that prior VA examinations were inadequate. The Veteran had been provided VA examinations for his right shoulder, back, and any associated lower extremity neurologic signs or symptoms in July 2014, May 2017, and January 2020. There were different degrees of information about flareups and repeated use over time, and the Board requested clarification upon remand. As directed in the December 2020 Board remand, updated VA treatment records since September 2020 were obtained, including shoulder and back imaging reports. Private records from December 2020 through March 2021 were also obtained. As noted previously, in an October 2020 phone call, the Veteran identified medical evidence at his local VA Medical Center (VAMC) since September 1998 and requested that these records be obtained and considered. The claims file includes VA treatment records dated since September 1999, and any records prior to September 1999 (to include after service discharge in 1998) do not have a reasonable likelihood of assisting in substantiating his current increased rating claims that focus on the severity of his disabilities since his April 2014 claim. As also noted previously, the claims file includes an August 2012 private letter noting that the Veteran injured his back at work in April 2012, had been referred for physical therapy and follow-up treatment, and was recommended light duty indefinitely for his work at the post office. There is a June 2012 MRI of the back, along with employment forms signed by a medical provider for work restrictions from 2013 to 2014. As directed in the September 2019 Board remand, VA sent the Veteran a letter in November 2019 requesting him to identify and complete the necessary authorization forms for VA to obtain any private records for his claims, or provide the records himself. The Veteran did not respond and has not identified any other private records. Thus, VA made reasonable efforts to assist in this regard. Contemporaneous VA examinations were provided in March 2021 and June 2021, and there are addendum opinions in June 2021 and December 2021 to address the severity of the Veteran's back and right shoulder disability during flareups and repeated use over time, per Sharp v. Shulkin, 29 Vet. App. 26 (2017). There is no argument or indication that the Veteran's disabilities have increased in severity since the last medical evidence of record, or that the examinations are inadequate. No further remand is needed, and the case is ready for adjudication. VA's schedular percentage ratings are based on average impairment of earning capacity as a result of service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. A separate or higher rating may be assigned based on non-overlapping conditions and symptoms, if the compensable criteria under applicable diagnostic codes are met, including with consideration of additional functional loss after repetitive use or flareups for musculoskeletal conditions based on range of motion. See 38 C.F.R. §§ 4.14, 4.40, 4.45, 4.59, 4.71a; Amberman v. Shinseki, 570 F.3d 1377 (Fed. Cir. 2009); Thompson v. McDonald, 815 F.3d 781 (Fed. Cir. 2016). Pain itself does not constitute functional loss, and painful motion must result in functional loss to constitute limited motion for a rating under diagnostic codes based on limitation of motion. See Mitchell v. Shinseki, 25 Vet. App. 32 (2011). The most relevant information in determining the initial disability rating pertains to the severity of the disability since the effective date of service connection. Fenderson v. West, 12 Vet. App. 119 (1999). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are warranted if there are decreases or increases in symptomatology that meet the criteria for a different rating for a distinct period. Hart v. Mansfield, 21 Vet. App. 505 (2007). Effective dates should not be assigned based solely on the date of diagnosis. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, all relevant facts should be considered to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011); see also 38 C.F.R. § 3.400. 1. An increased rating for a right shoulder disability in excess of 20 percent The Veteran's right shoulder disability has been characterized as residuals of dislocation with traumatic arthritis with slight atrophy of the deltoid muscle. It was previously rated noncompensable (0 percent), effective since October 1, 1998. A 20 percent rating was granted, effective since April 21, 2014, the date of his claim for an increase, for arthritis with limitation of motion of the arm at the shoulder level under Diagnostic Code (DC) 5010-5201. See 38 C.F.R. § 4.71a. He seeks a higher rating due to pain, swelling, and functional impairment. Disabilities of the shoulder and arm are rated under 38 C.F.R. § 4.71a, DCs 5200 to 5203. Different ratings are available for the dominant (major) and non-dominant (minor) side. Although a November 2017 VA orthopedic record and September 2018 VA shoulder examination stated that the Veteran was right-hand dominant, these notations appear to be in error, as they are inconsistent with most other records. A February 2016 VA orthopedic consult and VA examination reports for the shoulder in 2014, 2017, 2020, and 2021, along with a November 2012 VA examination for the wrist, stated that he is left-hand dominant. Therefore, the evidence shows the right shoulder is the Veteran's minor side. See 38 C.F.R. § 4.69. Under DC 5201, limitation of motion of the minor arm will be assigned a minimum 20 percent rating where there is limitation at the shoulder level, or where there is limitation to midway between the side and shoulder level; and 30 percent rating where there is limitation to 25 degrees from the side. 38 C.F.R. § 4.71a. Normal ranges of motion for the upper extremity are forward elevation (flexion) from 0 to 180 degrees; abduction from 0 to 180 degrees; and internal and external rotation to 90 degrees. Lifting the arm to shoulder level is lifting it to 90 degrees. The anatomical position is considered as 0 degrees, except that for shoulder rotation the arm is abducted to 90 degrees and the elbow is flexed to 90 degrees with the position of the forearm reflecting the midpoint 0 degrees between internal and external rotation of the shoulder. 38 C.F.R. § 4.71, introduction and Plate I. Any limitation of motion of a single arm at the shoulder joint constitutes a single disability, and only a single rating may be awarded for each arm under DC 5201, regardless of the number of planes of limited motion (i.e., flexion, abduction, or rotation). Yonek v. Shinseki, 722 F.3d 1355, 1358-59 (Fed. Cir. 2013). Throughout the appeal period relevant to his April 2014 claim, the Veteran has had intermittently limited motion of his right shoulder and arm due to pain and other factors. He has consistently described constant pain that is worse with motion including sorting mail and overhead reaching or lifting as required for work, or above the shoulder level, as well as pain and difficulty lifting the arm at times. He also reported swelling or puffiness and stiffness, including in the mornings and after prolonged immobility. See, e.g., May 2019 hearing transcript; VA examinations in July 2014, May 2017, January 2020, March 2021 and June 2021. The July 2014 VA examiner measured forward flexion to 130 degrees with pain at that point, and abduction to 140 degrees with no objective pain; there was no change with repetitive testing. There was tenderness to palpation over and around the shoulder joint. The Veteran stated during this examination that his pain over the last six months had been 9 out of 10 at its worst, which occurred three times per month, and he had less severe pain more often; pain was worse with overhead reaching. This examiner did not provide an estimate of additional loss in degrees during flareups or after repeated use over time, stating that he could not do so without speculation without observing such episodes. However, the examiner noted a work impact of being unable to work overhead and limited to lifting 35 pounds; this is generally consistent with the Veteran's report of worse pain with overhead reaching. The examiner noted the results of x-rays in July 2013 due to complaints of worsening shoulder pain, which showed very mild spurring of the glenohumeral joint, along with prior studies; and the Veteran now had right shoulder arthritis. A February 2016 VA orthopedic consult record noted that the Veteran had been having worsening right shoulder pain since June 2015, which he described as pain starting above the shoulder and extending down past the elbow. His last physical therapy for the shoulder was in 2005, when he was last seen for a right shoulder dislocation and was advised to avoid external rotation and abduction of the shoulder. The provider stated that after discussion, the Veteran's current pain was primarily from his neck and not the shoulder. Examination of the right shoulder showed no atrophy, good muscle bulk, strength of 5 out of 5, and full painless range of motion. A February 2016 VA primary care record then noted that the Veteran's orthopedist had determined that his shoulder pain was originating from his neck, which radiated down his right arm. On examination, he reported right shoulder joint pain in addition to neck pain radiating down his right arm, and there was joint line tenderness upon palpation. A July 2016 VA physical medicine rehabilitation consult record noted that the Veteran's arm and shoulder hurt when he worked in the post office. He complained of neck and shoulder blade pain, focusing on radiating pain from the neck to arm. (Other VA treatment records noted similar complaints of neck pain radiating into the right arm and shoulder.) A February 2017 VA orthopedic clinic note recorded complaints of right shoulder pain, which was palpable at the acromioclavicular, but there was full range of motion with mild discomfort on examination. Rotator cuff strength was 5 out of 5. The Veteran was offered a cortisone injection but declined, and he stated that physical therapy had not been very helpful in the past. The May 2017 VA examiner measured forward flexion and abduction to 150 degrees with pain, and external and internal rotation to 90 degrees. There was tenderness to palpation and mild pain with active range of motion. Strength was 4 out of 5 for forward flexion and abduction. The examiner stated that there would be significant limitation with repeated use over time and flareups, but gave the same estimate of 150 degrees for additional loss. Contributing factors were overhead reaching and lifting, and work impacts were overhead reaching for long periods and that the Veteran had been restricted to lifting no more than 10 pounds. A November 2017 VA orthopedic clinic note again noted neck pain with radiation to the shoulder, and examination of the right shoulder showed active forward flexion and abduction from 0 to 160 degrees. External and internal rotation were possible from 85 degrees and 70 degrees when the arm was in 90-degree abduction. Rotator cuff strength was grossly normal, and the provider stated that the shoulder examination was "pretty benign." His pain was likely from his neck. Although subsequent VA treatment records noted right shoulder and arm pain at times, there was no other shoulder-specific treatment or findings through June 2021. As noted above, the Veteran did not provide a release or any records for any outstanding records of private treatment (physical therapy or otherwise). A September 2018 VA examination measured right shoulder forward flexion and abduction from 0 to 180 degrees, external and internal rotation to 90 degrees, with no pain on examination and no tenderness to palpation. The January 2020 VA examiner measured forward flexion and abduction to 180 degrees, and external and internal rotation to 90 degrees, with no pain noted. The Veteran reported intermittent pain rated 7 to 8 out of 10 that occurred daily with motion, which lasted for 30 minutes to 4 hours, and he took ibuprofen as needed. He was unable to lift anything heavy. The examiner noted work impact of losing less than one week in the last 12 months and difficulty sorting mail or repetitive motions due to the shoulder. This examiner stated that there would be significant limitation of function with repeated use over time or during flareups, but he was unable to describe in the additional loss in degrees without speculation. Strength was 5 out of 5, although the examiner found slight atrophy of the deltoid muscle. During a March 2021 VA examination, the Veteran described a historical right shoulder dislocation in 2004 related to reaching overhead. He reported current pain that starts above his right shoulder and extends down past his elbow, and that during flares his pain goes from his neck down to his fingertips. (These descriptions are similar to the reports for treatment above that were medically determined to be primarily due his neck condition, not his shoulder; thus, any symptoms down the right arm are not considered for his right shoulder rating). The Veteran also reported right shoulder tension, painful motion, and intermittent flareups or increased pain to 7 to 8 out of 10 daily for 30 mins to 4 hours, which were precipitated by reaching overhead. He took Motrin or naproxen (NSAIDs) as needed for pain. Range of motion, both active and passive, was forward flexion from 0 to 180 degrees, abduction from 0 to 170 degrees, and external and internal rotation to 90 degrees. There was crepitus and pain with all planes of movement, and no change in motion after repetitive testing. The examiner estimated additional loss with repeated use over time and flareups due to pain and weakness as both flexion and abduction to 160 degrees after repeated use and 140 degrees during flareups; and both external and internal rotation to 90 degrees and 80 degrees during such episodes. Additional contributing factors were swelling, and there was muscle atrophy of 10 cm above the lateral elbow. Work impact was that lifting with the right arm for more than 5 minutes caused lot of pain in the Veteran's right shoulder and he needed to rest his arm; and any type of weight caused instant pain. Another VA examination in June 2021 noted that a July 2014 MRI appeared to show a partial tear of the supraspinatus tendon, effusion and increased fluid in the biceps tendon sheath, and a suspected tear of the labrum anteriorly. The Veteran reported current right shoulder symptoms of constant aching pain, throbbing pain and increased stiffness with flareups, frequent popping, instability and recurrent subluxations. He used ibuprofen as needed for pain and inflammation. Flareups were moderate and lasted for 1 to 2 days, and they were precipitated by overhead use of the right arm, heavy lifting, pushing, pulling, or rotational activities involving the right shoulder. Functional impairment during flareups was increased pain, fatigue, and stiffness; and overall functional loss was described as difficulty with the activities noted above that precipitated flareups. Range of motion was forward flexion to 120 degrees active and 135 degrees passive; abduction to 90 degrees active and 100 degrees passive; and external and internal rotation to 90 degrees active and passive. There was pain with all planes of movement, pain with weightbearing and non-weightbearing, and no change after repetitive testing. The examiner estimated additional loss after repeated use over time and during flareups as forward flexion to 110 degrees, abduction to 80 degrees, internal and external rotation to 90 degrees; with the additional loss due to pain, fatigability, weakness, and lack of endurance. There was slight atrophy of the deltoid muscle. In a December 2021 addendum opinion, the VA examiner stated that the estimated range of motion during flareups and overuse (repeated use over time) provided in the June 2021 report was for the time that examination. The examiner noted that the Veteran reported increased pain and stiffness with flareups and overuse that would likely result in these additional limitations. He had a rotator cuff tear, labral tear, and residuals of right shoulder dislocation with traumatic arthritis with slight atrophy of the deltoid, all of which would likely contribute to the additional loss of range of motion. The estimated range of motion was made by considering the Veteran's reported history of increased stiffness and fatigue with flareups and overuse, along with the physical examination findings. The examiner noted that the Veteran's range of motion loss was more severe during testing in June 2021 when compared to the March 2021 examination. The Veteran reported a progression in severity, and the baseline level of range of motion did indicate an increased loss of range of motion. As the baseline range of motion loss on testing was more severe at the time of June 2021 examination, the estimated flareups and overuse range of motion was also more limited. The examiner was unable to estimate loss of motion during flareups and overuse prior to 2021 without resorting to mere speculation. Although several examiners prior to 2021 did not provide an estimate of additional loss during flareups or repeated use overtime, they noted the Veteran's reports of increased pain with overhead reaching, and noted work impacts of difficulty or needing to avoid overhead reaching due to increased pain. This is consistent with limitation to the shoulder level; therefore, another estimate opinion is unnecessary. Additionally, medical records and examinations noted use of various medications for pain in the right shoulder and other areas. As noted above, the Veteran took NSAIDs as needed to alleviate increased pain with activities; this indicates that his pain is present with such activities before medication, resulting in the noted limitations. Similarly, the Veteran testified in his May 2019 Board hearing that pain medications and physical therapy in the past had helped his right shoulder pain, but the medications wear off and he has the indicated pain and limited motion in his daily routine including at work. Thus, his description of having limitation above the shoulder level already discounts any ameliorative effects of medications. There is no lay or medical suggestion of limitation to a lower level before or afterward. As summarized above, the Veteran had full range of motion of the right shoulder at times, despite complaints of pain, and he made competent and credible descriptions of increased pain with lifting heavy weight and with repeated activities overhead or above the shoulder level. At other times, testing for treatment and exams for his claim, as well as estimates of additional loss during flareups and after repeated use over time (or overuse), ranged from 90 degrees to 170 degrees for forward flexion and abduction. The Veteran generally had full range to 90 degrees of external and internal rotation, although rotation was noted as 70 and 85 degrees in a 2017 treatment record when the arm was abducted to 90 degrees, and a 2021 VA examiner estimated rotation limited to 80 degrees during episodes of increased symptoms. These variations in the recorded ranges of motion tests for treatment and examinations are generally consistent with the Veteran's lay descriptions of the effects of pain and other factors during flareups and after repeated use over time. Therefore, he had limitation to shoulder level (90 degrees of forward flexion or abduction) or slightly below that level at times. Although the Veteran had slightly limited external and internal rotation at times, this motion is tested with the shoulder abducted to 90 degrees, or at shoulder level. Therefore, the evidence does not more nearly approximate limitation of motion to 25 degrees from the side, as required for a higher rating of 30 percent for the minor arm under DC 5201. Considering other codes, there is no argument or indication of ankylosis or impairment approaching ankylosis of scapulohumeral articulation, as required for a higher rating of 30 or 40 percent under DC 5200. Instead, there is no fixation of the joint, and there is significant range of motion despite pain and other factors. There are residuals of recurrent dislocation (subluxation) of the glenohumeral (scapulohumeral) joint, with instability, dislocation, or labral pathology. The Veteran has mechanical symptoms including clicking and catching, and infrequent episodes of recurrent dislocation with guarding of movement only at the shoulder level (meaning flexion and/or abduction at 90 degrees). See, e.g., July 2014, January 2020, March 2021 and June 2021 VA examinations. In 2014, the Veteran denied any dislocations since 2004 but stated that his shoulder felt like it wanted to dislocate, and there was a "popping" sensation with certain movements; the examiner noted infrequent episodes of dislocation. In 2020, the Veteran denied any dislocations since 2014 or 2015, stating that he was very careful with his movements to prevent it. The June 2021 examiner explained that the Veteran's current rotator cuff labral tear and glenohumeral instability were likely a progression caused by his prior trauma and chronic inflammation from dislocation. Under DC 5202, impairment of the humerus will be assigned a 20 percent rating for the minor arm where there are infrequent episodes and guarding of movement only at shoulder level (flexion and/or abduction at 90 degrees), or where there are frequent episodes and guarding of all arm movements. Alternatively, a 20 percent rating will be assigned for the minor arm where there is malunion of the humerus with moderate or marked deformity. Higher ratings of 40, 50, or 70 percent require fibrous union, nonunion (false flail joint), or loss of head of the humerus (flail shoulder). 38 C.F.R. § 4.71a. As the Veteran has already been assigned 20 percent rating under DC 5201 based on limitation of motion at shoulder level, a separate rating under DC 5202 would be improper pyramiding. There is no suggestion of fibrous union, nonunion, or loss of head of the humerus for a higher rating. Under DC 5203, impairment of the clavicle or scapula may be assigned a 10 or 20 percent rating where there is dislocation or nonunion. Alternatively, the condition will be rated on impairment of function of the contiguous joint (i.e., limitation of motion of the arm or shoulder). In this case, the Veteran is already assigned a 20 percent rating based on limitation of motion; a higher rating is not available under this code, and a separate rating for any dislocation would be improper pyramiding. Accordingly, DC 5201 for limitation of motion is the most appropriate code. In summary, the Veteran's right shoulder manifestations have been relatively consistent, and any increases in severity were not sufficient to more nearly approximate the criteria for a higher or separate rating under any applicable code at any point. The evidence is not in approximate balance or relative equipoise, there is no reasonable doubt to be resolved, and the appeal is denied. 2. and 3. An increased rating for a back disability in excess of 20 percent prior to March 12, 2021, and in excess of 40 percent thereafter With the exception of a temporary total rating after a back surgery in November 2020, the Veteran has been assigned a 20 percent rating for his low back disability, effective since October 1998. He was awarded a higher 40 percent rating, effective March 12, 2021. The condition was historically rated under DC 5293, but the code version throughout the appeal period is DC 5243. 38 C.F.R. § 4.71a. The disability is characterized as degenerative disc disease of the lumbar spine and intervertebral disc syndrome (IVDS), residuals status post dislocation with fusion, T-12 to L-1. Separate ratings were assigned for the Veteran's back scars. He has not complained of his scars for his appeal. There is no argument or suggestion that a higher or separate rating is warranted on this basis, and they will not be discussed further. Additionally, the temporary total rating is a separate claim, and the Veteran has not disputed the dates assigned for that rating and convalescence period from November 16, 2020, through February 28, 2021. That period is not on appeal. The Veteran seeks a higher rating due to back pain, associated right lower extremity radiculopathy symptoms, and resulting functional impairment. Spinal disabilities are rated under the General Rating Formula for Diseases and Injuries of the Spine, which provides for assignment of a separate rating for any associated objective neurological abnormalities. The identified ratings are to be assigned with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by the residuals of injury or disease. If there is intervertebral disc syndrome (IVDS), the disability will be rated under either the General Rating Formula or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The method that results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25 should be used. See 38 C.F.R. § 4.71a, DC 5243, General Rating Formula & Note (1), IVDS Formula & Notes (1) & (2). VA recently amended the regulations for rating spinal disabilities, effective February 7, 2021. See Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76453, 76462 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Codes 5242, 5243, & 5244). As relevant to this case, these changes result in distinctions between IVDS (still rated under DC 5243 as an alternative to the General Rating Formula as summarized above) and degenerative disc disease other than IVDS (now rated under DC 5242 but not DC 5243). As the Veteran has IVDS, the applicable analysis remains the same, and neither version is more favorable to the Veteran. The addition of DC 5244 is for traumatic paralysis, to include paraplegia or quadriplegia, which is not applicable to this case. Under the General Rating Formula, a 10 percent rating will be assigned where there is 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 assigned for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or combined range of motion of the thoracolumbar spine not greater than 120 degrees; or 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 assigned 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 assigned 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, DCs 5242 & 5243. Throughout the appeal period, the Veteran has consistently described constant back pain that is worse with bending or stooping (forward flexion) and heavy lifting. However, there was an increase during the appeal to warrant staged ratings. As summarized below, beginning more than one year prior to his claim and until August 12, 2020, the Veteran had increased pain with painful and limited motion at times, which resulted in the need for modified work duties. However, he retained forward flexion to greater than 30 degrees even during flareups and after repeated use over time. This severity warrants the assigned 20 percent rating for this period. Effective since August 12, 2020, there was a factually ascertainable limitation of forward flexion to 30 degrees or less during episodes of flareups or after repeated use over time. Thus, a 40 percent rating is warranted from this earlier date. However, a higher rating is not warranted at any point during the appeal period. Two years prior to his April 2014 claim, the Veteran had a back injury or exacerbation at work in April 2012. An MRI in June 2012 showed multiple disc bulges, marked discogenic endplate changes and marked disc narrowing. An August 2012 letter from his provider recommended that he remained on modified light duty status indefinitely; and 2013 and 2014 forms reflect work modifications. In January 2013, he was limited to lifting no more than 10 pounds, and no continuous bending, stooping or kneeling. In March 2014, he was permanently limited to standing no more than 15 minutes at a time; no pushing, pulling, or lifting more than 10 pounds; and no twisting, bending, stooping, or kneeling. The June 2014 VA examiner measured range of motion of forward flexion to 80 degrees with pain beginning at 70 degrees, and no change with repetitive testing. Extension was to 15 degrees with pain at 10 degrees, left and right lateral flexion were to 20 degrees with no pain, and left and right lateral rotation were to 30 degrees or more with no pain. There was tenderness to palpation, but no muscle spasm or guarding. X-rays showed no significant change since prior studies in 2012. The Veteran reported belt-line area pain in the low back that was constant, but worse with bending and heavy lifting. Over the past six months, his severity was 9 out of 10 at worst, which occurred about 3 times per month, and more often his pain was less severe. His stated that his pain was lessened with rest, heat, and medications of over-the-counter NSAIDs (naproxen or ibuprofen) and prescription methocarbamol. This examiner did not provide an estimate of additional loss in degrees during flareups or after repeated use over time, essentially because the episodes were not observed. However, the examiner noted a work impact of missing about a week of work prior to the last 12 months (or before 2013) due to an acute back flareup and being limited to lifting about 15 pounds due to the back. The May 2017 VA examiner measured forward flexion to 40 degrees, extension to 10 degrees, and all other planes of movement to 30 degrees. There was pain with all movements, noted as mild pain with active and passive motion, and tenderness to palpation, but no change in range after repetitive testing. The examiner expected significant limitation with repeated use over time and flareups, and estimated a loss of forward flexion to 40 degrees. The Veteran reported daily back pain and stiffness, problems touching his feet after sitting or lying in bed for a long period (which were also noted as the flareup description), and that he took ibuprofen as needed. Functional loss was pain with lifting or bending over such as sweeping the floor (which would be significant forward flexion), and bending for more than 10 to 15 minutes. The Veteran stated that he mainly had lifting problems and could lift more than 10 pounds. He occasionally wore a back brace. Work impacts were bending, reaching, lifting, and being restricted to lifting no more than 10 pounds. During his May 2019 Board hearing, the Veteran testified to current symptoms of constant aching pain from the location of his prior back surgery in the middle and lower portion of the spine, and tingling or numbness at times when sitting that goes from his back down his leg to his right ankle. He reported increased pain with activities, such as when he does repeated bending, lifting, or stretching. The Veteran stated that when he aggravated his back around 2012, he was placed on limited duty and those restrictions continued (consistent with the above records). The January 2020 VA examiner measured active forward flexion to 65 degrees with pain, with no change after repetitive testing. Passive testing was not performed because it was not feasible in a safe and reasonable manner. The examiner estimated an additional loss due to pain during flareups or after repeated use over time of forward flexion to 50 degrees. The Veteran reported daily back pain and stiffness, with intermittent pain of level 8 out of 10 that occurred daily and lasted from 30 minutes to 4 hours. He described flareups or increased pain after constant bending or stooping, which occurred two times per week with a severity of 9 out of 10 for a couple hours. Functional loss was difficulty with bending, stooping, raking, sweeping, lifting, sitting or standing for long periods, and inability to kneel. He took ibuprofen and methocarbamol as needed, and he used a brace occasionally for his back. The examiner summarized the current severity of back pain and limitation of motion was moderate, but it could be severe during flareups. Work impact was 1 to 2 weeks lost in the last 12 months and difficulty sitting or standing for long periods due to the back and bilateral lower extremity sciatic nerve radiculopathies. A February 2020 VA treatment record noted chronic back pain, and the Veteran reported that he "does okay most of the time but occasionally gets flareups." He usually had ibuprofen and methocarbamol on hand, and these worked well for his pain, but he was out of these medications. He missed work last night due to pain. He was tender to palpation over the L1 area and paraspinous muscles. The evidence through this point showed a range of forward flexion from 40 degrees to 80 degrees, including when accounting for additional loss with flareups and repeated use over time. The varied measurements and estimates are consistent with increased functional loss due to increased pain and other contributing factors at times. The 2014 examiner did not give an estimate of additional loss during such episodes of increased symptoms, and the 2017 examiner gave an estimate that was the same as the baseline testing during the examination. Nevertheless, the Veteran's descriptions of his increased severity of symptoms during such episodes does not suggest a limitation to 30 degrees or below during this period. Pain alone is not sufficient to constitute limitation of motion without resulting in additional functional loss, and painful motion alone does not constitute limited motion for a rating under the back-specific codes. The estimate of 40 degrees during episodes of increased symptoms by the 2017 examiner is generally consistent with increased pain but no additional resulting loss of forward flexion, as reflected in the other lay and medical evidence. The Veteran's measured range of motion was significantly higher both before and after this examination in 2014 and 2020, despite the Veteran's description of similar symptoms and functional loss. Thus, the Veteran's forward flexion was above 30 degrees, which warrants the 20 percent rating. The Regional Office found an increase to meet the 40 percent rating criteria as of the March 12, 2021, VA examination date, based on measurements at that time. However, resolving reasonable doubt in the Veteran's favor, an increase to the 40 percent level is factually ascertainable as of August 12, 2020, based on his reports for treatment for an exacerbation of pain that lasted for much longer than normal, which resulted in x-rays showing a worsening and surgery in November 2020, followed by a measurement of limitation to less than 30 degrees even after surgery. Specifically, on August 17, 2020, the Veteran received emergency VA treatment for an exacerbation of chronic back pain, with followup treatment on the 26th. He rated the pain as 6 or 9 out of 10 for emergency treatment. In the emergency room, he reported that pain lasting for 5 days (or since the 12th). Upon followup on August 26th, the Veteran stated that generally he has occasional back pain that lasts a couple days, but this episode of pain had been present for 2.5 weeks. X-rays in August 2020 showed worsened findings since a prior study in May 2018. The Veteran was referred for physical therapy and subsequent follow-up, and the provider noted that a CT scan would be appropriate after these were completed. For treatment in September and October 2020, the Veteran reported continued low back pain. An October 2020 MRI showed a "huge herniated disc" to the right of midline at L4-L5, eccentric herniation of the L5-S1 disc, a small focus of T2 hyperintense myelomalacia, and previous fusion of the T12-L1 intervertebral disc. A November 3, 2020, treatment record and letter from a private neurosurgeon stated that the Veteran had a long history of chronic back pain, but about six months of much worse back pain and radiating right leg pain. It was painful to bend over or have any weight in his arms; his symptoms were worse with bending, lifting, and twisting; and resting in one position for brief periods could help, but the symptoms worsened if he stayed in one position too long. Examination of the back showed forward flexion was to "about 45 degrees," and extension and lateral flexion were also limited. Considering his current symptoms, the provider recommended a surgery of microdiscectomy at L4-L5 on the right; he explained that the Veteran's chronic back pain would not get better, but hopefully the procedure would prevent worse weakness and pain in the right leg. On November 16, 2020, the Veteran had the recommended back surgery, resulting in a temporary total rating through February 28, 2021. During this period of convalescence, a November 30, 2020, letter from the Veteran's provider noted that he was expected to have 12 weeks of recovery through February 2021 from his surgery, with no work during that time. The provider indicated that after recovery his condition may possibly cause flareups that periodically prevent him from performing job functions, it may be medically necessary to be absent from work during flareups depending on the severity. The provider estimated that, based on his medical history, the Veteran would have a frequency of flareups 1 to 2 times every 3 to 5 months lasting for 1 day. A February 22, 2021, record noted that Veteran was "walking a good bit," and the incision was extremely well healed. During the March 12, 2021, VA examination, the Veteran summarized his history, stating that between 1998 to 2012 he constantly went back and forth to the VA emergency room because of flareups of his back. In 2012, he had an aggravation of his back at work while lifting a heavy tray and had severe pain located at the level below the area of prior surgery. He went through physical therapy and was placed on light duty at that time. Over the past few years, the Veteran had reached a point where he was dragging his right leg. In August 2020, he was referred to a neurosurgeon. An MRI showed two herniated discs in his low back, leading to another back surgery, a microdiscectomy at L4-L5 in November 2020. The examiner stated that the abnormal MRI in 2020 showing a large herniated disc at L4-L5 compressing nerve roots, along with a herniation at L5-S1 would explain the Veteran's low back pain and radiculopathy symptoms before his recent surgery. These notations support a factually ascertainable increase since August 2020. During the VA examination, the Veteran stated that his biggest issue after this surgery had been the loss of flexibility in his back. He described functional loss as being unable to flex at the waist very far or bend over to pick anything up, and needing to bend at the knees to do so. He still could not lift anything heavy, or sit or stand for long periods of time without changing positions due to back pain. The act of lying down flat caused back pain, and he needed to sit on the side of bed for a few minutes when getting up every morning. The examiner noted that the Veteran had very little range of motion of his back, which prevented performance of normal activities of daily living at times. He occasionally wore a back brace. Flareups of the back occurred once per month, precipitated by overuse; they were severe and lasted 24 hours. The Veteran took naproxen or motrin as needed, including for flareups, which only helped for a few hours, and he did not take the medication every day. His last bad flareup was in January 2021 (during his temporary total rating period), and he stayed in the house all day and rested. Range of motion was measured as forward flexion to 20 degrees active and 35 degrees passive; and bilateral lateral rotation and lateral extension were to 15 degrees. There was no change after repetitive testing. The Veteran had pain with all movements and at rest, and the examiner stated that he could not flex very far due to pain. The examiner estimated additional loss during flareups and after repeated use over time as forward flexion to 15 degrees and other ranges to 10 degrees. Work impact was that the Veteran's back condition caused limited range of motion to the point where he could not bend over, and he could not lift anything heavy due to back pain and risk of causing more injury. He quit his job due to his back. The Veteran reported in his March 2021 VA examination that his surgeon had told him it would be best for him not to return to work; he has already been granted a total disability rating effective since the end of his temporary total rating period. A March 23, 2021, VA treatment record noted the Veteran was doing "fairly well," but he was still a little stiff in the morning. He was walking about a mile at a time. During a June 2021 VA examination, the Veteran reported current symptoms of chronic low back pain and stiffness. He had sharp stabbing pain and severe stiffness of the low back with flareups, which occurred 3 to 4 times per month for 2 to 3 days and were severe. Functional impairment during flareups was increased pain, fatigue, and stiffness. Precipitating factors were prolonged sitting or standing, bending, twisting, or lifting; and the flares were alleviated by rest. Similarly, functional loss was difficulty with prolonged sitting or standing, bending, twisting, and lifting. Active range of motion was measured as forward flexion to 40 degrees, extension to 15 degrees, left and right lateral flexion to 20 degrees, and left and right lateral rotation to 25 degrees; there was tenderness to palpation as well as pain with all motions that caused functional loss. Passive testing was not performed due to medical contraindication of risk of further injury. There was a decrease of forward flexion to 30 degrees with repetitive testing, and the examiner estimated additional loss with repeated use over time and during flareups as forward flexion to 25 degrees, extension to 10 degrees, left and right lateral flexion to 15 degrees, and left and right lateral rotation to 20 degrees. Resolving reasonable doubt in the Veteran's favor, the records and examinations since August 2020 reflect a similar level of increased severity when accounting for additional loss during flareups and repeated use over time, with limitation of forward flexion to 30 degrees or below, although he had better motion at times. Therefore, the evidence warrants a 40 percent rating since August 12, 2020. For both staged periods on appeal, medical records and examinations noted use of various medications for pain in the low back and other areas. As noted above, the Veteran took NSAIDs as needed to alleviate increased pain with activities; this indicates that his pain is present with such activities before medication, resulting in the noted limitations. Thus, the ranges of motion above already discount any ameliorative effects of medications and treatment for the back disability. The Veteran also had limitation of motion with pain at times for other ranges of motion of the back, or extension, left and right lateral flexion (or side bending), and left and right lateral rotation (or twisting). However, limitations for those facets of motion (or combined motion) do not support an increase from 20 percent. As summarized above, the Veteran's limitation of motion is contemplated by the ratings of 20 and 40 percent, and he retained range of motion for all planes of movement of the thoracolumbar spine despite pain and other factors. In particular, the Veteran's limitation did not more nearly approach an absence of motion or fixation of a spinal segment in flexion or extension at any point, as required to equate to a functional equivalent of ankylosis of the spine for a 50 or 100 percent rating. See id.; see also 38 C.F.R. § 4.71a, General Rating Formula, Note (5). There has been no objective associated neurologic impairment other than bilateral lower extremity sciatic radiculopathy, to include bowel or bladder impairment. The right lower extremity rating is discussed in the next section below. Although the Veteran also has a separate rating for left lower extremity sciatic radiculopathy, he has not complained of those symptoms for his appeal. Instead, he focused on the right lower extremity, which the Board previously remanded as part of this appeal to consider an earlier compensable rating. Thus, only the right lower extremity rating is part of this appeal. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Under the alternative IVDS Formula, a rating must be based on incapacitating episodes. There are no lay reports or medical notations of prescribed bed rest for the Veteran's back disability to support an alternative rating on this basis. In summary, reasonable doubt has been resolved in the Veteran's favor to award a higher rating for a portion of the appeal period; the appeal is granted to this extent. The manifestations of his back disability were relatively consistent throughout the staged periods on appeal, and any increases in severity did not more nearly approximate the criteria for a higher or separate rating at any point. There is no reasonable doubt to be resolved in his favor, and the appeal is otherwise denied. 4. and 5. A compensable rating of 10 percent or higher for right lower extremity sciatic radiculopathy prior to June 2, 2014; and a rating in excess of 10 percent for right lower extremity sciatic radiculopathy As noted above, the Regional Office granted the Veteran's 10 percent rating for right lower extremity sciatic radiculopathy associated with the back disability from an earlier date, effective June 2, 2014, after additional development upon remand. This was the date of the VA examination that first showed right radiculopathy. Although the rating decision awarded service connection, these awards are essentially separate ratings for the neck disability based on neurologic impairment. Therefore, the rating may be effective up to one year prior to the date of claim, if the disability diagnosis and severity level was first factually ascertainable within one year prior to the date of the claim. Otherwise, the effective date will be the later of the date of the claim or the date entitlement arose. 38 C.F.R. § 3.400(o). Effective dates should not be assigned based solely on the date of diagnosis or examination. Swain v. McDonald, 27 Vet. App. 219, 224 (2015). Instead, all relevant facts should be considered to determine the date the increase in disability first manifested. DeLisio v. Shinseki, 25 Vet. App. 45, 58 (2011). Under DC 8520, complete paralysis of the sciatic nerve is assigned an 80 percent rating, where the foot dangles and drops, there is no active movement possible of muscles blow the knee, and flexion of the knee is weakened or (very rarely) lost. Lower ratings of 10, 20, 40, or 60 percent are assigned for mild, moderate, moderately severe, or severe incomplete paralysis, respectively. Neuralgia of the sciatic nerve is rated using the same criteria under DC 8720. 38 C.F.R. § 4.124a. The terms "mild," "moderate," and "severe" are not defined in the diagnostic codes. However, the term "incomplete paralysis" for peripheral nerve injuries indicates a degree of lost or impaired function substantially less that the type pictured for complete paralysis. 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, introduction prior to DC 8510. Peripheral neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, will be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating for neuritis not characterized by these organic changes will be moderate, or moderately severe if there is sciatic involvement, incomplete paralysis. 38 C.F.R. § 4.123. Peripheral neuralgia characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, will be rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. The Veteran's claim for an increase for his back disability was received April 21, 2014. Upon remand, the Regional Office granted an earlier effective date for the separate 10 percent rating effective as of the date of the June 2014 VA examination. However, there is no indication that the Veteran's right lower extremity symptoms and severity associated with his back disability were different at the time of his claim than during the June 2014 VA examination less than two months later. Therefore, resolving reasonable doubt in the Veteran's favor, the criteria for a 10 percent rating under DC 8520 were met at the time of the April 21, 2014, claim. There was no factually ascertainable increase to a compensable (10 percent) level within the one year prior to the claim for an even earlier effective date. As noted above, the Veteran had a back injury with increased symptoms and severity in April 2012, which resulted in permanent limited or modified work duties after that date. As discussed below, a rating higher than 10 percent is not warranted under DC 8520 prior to August 12, 2020. However, resolving reasonable doubt in the Veteran's favor, an increase to 20 percent is warranted since August 12, 2020. Specifically, during the June 2014 back examination, the Veteran described a feeling of weakness or numbness, and tingling or loss of sensation in the lower extremities. The examiner noted that he did not describe actual loss of strength or true weakness. Testing showed decreased strength of 4 out of 5 in the bilateral great toes, but otherwise normal strength (5/5), and tests for reflexes and sensation were normal. The examiner noted mild intermittent pain and mild paresthesias or dysesthesias, but no constant pain or numbness. Symptoms suggested L4/L5 nerve involvement clinically, but nerve compression was not shown in past imaging. A July 2016 VA treatment record noted radiating pain down the right leg at times. The May 2017 VA examination did not record any lower extremity symptoms, and the examiner found all normal neurologic tests and no signs or symptoms of radiculopathy for either lower extremity, with no identified affected nerve. During his May 2019 Board hearing, the Veteran described tingling or numbness at times when sitting that goes from his back down his leg to his right ankle. During the January 2020 VA examination, the Veteran reported radiation of pain and numbness down both legs to the feet, or intermittent numbness and tingling after sitting for long periods, noted as bilateral lower extremity radiculopathy. The examiner noted normal objective findings, but mild reported paresthesias and dysesthesias for both lower extremities, and overall mild sciatic nerve impairment. The lay and medical evidence to this point reflects a similar level of severity of no more than mild incomplete paralysis of the sciatic nerve. The Veteran had mild intermittent radiating pain down the leg, an intermittent sensation of tingling sometimes reported as numbness and which examiners noted as mild paresthesias or dysesthesias, intermittent mild decrease of strength to 4 out 5 at the toes, but otherwise normal tests for strength, sensation, and reflexes in the right lower extremity. In contrast to subsequent records in the latter part of 2020 as discussed below, there was no suggestion that the Veteran used a cane, dragged his foot, or had foot drop through this time. The Board agrees with the January 2020 examiner that the overall sciatic nerve impairment severity during this period was mild. As noted above, VA treatment records beginning August 17, 2020, reflect treatment for exacerbation of back pain, which lasted much longer than normal episodes of exacerbation, with radiating pain to the right leg and decreased use of the right leg. The Veteran reported that these symptoms had been present for about 5 days, or since August 12, 2020. On August 18, 2018, he requested a neurosurgery consult. An October 2020 treatment record noted occasional radiation of pain into the right leg, and an October 2020 physical therapy record noted a negative straight leg raise test and strength that was grossly 4 out 5 throughout the bilateral lower extremities. A November 3, 2020, treatment record and letter from a private neurosurgeon stated that the Veteran had a long history of chronic back pain, but about six months of much worse back pain and radiating right leg pain. The provider stated that the Veteran never had the right leg pain before; his right lower extremity now had some weakness in dorsiflexion, particularly in the toes of the right foot; he had noticed fasciculations in the right lateral thigh; and he was having numbness at times down to the top of the foot. The Veteran reported that at times he would drag his right foot, and he had been using a cane, which he did not do previously. Examination of the lower extremities showed that the Veteran limped a little favoring the right leg with a modest foot drop. There was some weakness in dorsiflexion of the right toes compared to the left, reflexes were trace throughout, and sensation was grossly intact. The provider recommended a microdiscectomy at L4-L5 on the right, which may prevent worse weakness and pain in the right leg. During the March 2021 VA examination, the Veteran reported that over the past few years, he had reached a point where he was dragging his right leg. Since his recent back surgery on November 16, 2020, he was no longer dragging his leg, and pain did not radiate down his legs as much as before his surgery. His left leg felt weaker than his right leg. Right lower extremity strength was 5 out 5, reflexes were 1+, sensation was normal, and straight leg raise was negative. The examiner noted moderate intermittent pain, mild paresthesias or dysesthesias (such as tingling), and no constant pain or numbness. The examiner stated that the Veteran's radiculopathy symptoms had improved since surgery, but he still had occasional intermittent pain and tingling down his right leg, likely involving the sciatic nerve. During the June 2021 VA examination, the Veteran reported burning and stinging pain shooting down both legs, and numbness and tingling of the legs most that was most severe in the left leg, during flareups 3 to 4 times per month for 2 to 3 days. Right lower extremity strength was 5 out of 5; reflexes were 2+ (normal) at the knee and 1+ (decreased) at the ankle; sensory testing was normal at the upper anterior thigh and thigh/knee but decreased at the lower leg/ankle and foot/toes levels. The examiner noted moderate intermittent pain, paresthesias or dysesthesias, and numbness, but no constant pain. The examiner stated that the Veteran's signs and symptoms were consistent with sciatic lumbar radiculopathy and IVDS were common complications of his degenerative disc disease on MRI. In a July 2021 addendum, a VA examiner opined that the Veteran's right lower extremity radiculopathy likely existed at the time of the 2014 VA examination. The examiner summarized evidence in the lay and medical records from 2014 to 2019. The descriptions in the November 2020 records, shortly before the Veteran's November 16, 2020, back surgery as recommended by the provide, support a 20 percent rating for moderate incomplete paralysis. In addition to intermittent radiating pain, intermittent weakness (or decreased strength) of the right toes, and intermittent tingling or a sensation of numbness as shown in prior records and testimony, the Veteran now had decreased or nearly absent "trace" reflexes, muscle fasciculations, and modest foot drop, and he was now using a cane at times. However, he still had grossly normal sensation (or no objective numbness) on testing; therefore, any numbness was still intermittent. There was still no constant pain, and there was no more than mild or moderate pain or other symptoms. Thus, the Board finds that these symptoms reflect moderate sciatic nerve impairment. This increase was factually ascertainable as of August 12, 2020. Despite the notations in the November 2020 private record and letter of increased right lower extremity symptoms for about six months, and in the March 2021 VA examination of dragging his leg over the past few years, the medical records reflect decreased right leg usage since August 2020, or closer to three months. This would be generally consistent with the other increased symptoms including a limp and right foot drop noted in the November 2020 private record and letter. However, there were no indications of the Veteran using a cane or of any persistent right leg or foot problems in VA treatment records from September 2019 through November 2020. Although there was a slightly decrease to 4 out of 5 for strength in the toes in 2014, this is a lesser degree of severity than noted in November 2020. VA treatment records in October and November 2019 record noted that problems around the left knee area may be neurological, and a February 2020 urgent care record noted that the Veteran may want to speak to a neurologist about back pain; however, the right leg or foot was not mentioned at either time. Instead, the Veteran reported worsening back pain and decreased use of the right leg in August 2020, which led to the consult with the private neurosurgeon and the recommended surgery. Additionally, the examiner in 2014 noted that prior imaging had not shown compression on the nerve root, whereas the October 2020 MRI did show a huge disc compression on the nerve root; this also supports an increased severity. The contemporaneous treatment records are more probative than the Veteran's report of his history for treatment in November 2020 and during the March 2021 VA examination, as the earlier reports were closer in time to the actual symptoms. Notably, the November 2020 provider's letter stated that the Veteran had not been having radiating pain into the right leg previously, but his prior medical records and May 2019 hearing testimony reflect that he did complain of pain down his right leg. It may be that the November 2020 provider's letter or the Veteran's report at that time meant a worse severity of right leg pain. Additionally, if the Veteran had been having foot drop, a limp, or using a cane for his right leg, it would be expected that those symptoms would be reported and noted previously. Instead, no assistive device other than an occasional back brace was noted in VA examinations in 2014, 2017, and January 2020. Therefore, the first factually ascertainable increase to 20 percent for the right lower extremity was shown in August 2020. Additionally, resolving reasonable doubt in the Veteran's favor, he continued to have a 20 percent level severity after his surgery. The evidence reflects that some of his right lower extremity symptoms improved after his surgery, including less radiating pain and being able to walk up to a mile (as noted in a March 23, 2021) record. This would be consistent with the neurosurgeon's November 2020 statement indicating that the back surgery would not improve the Veteran's back symptoms, but it could positively affect his right lower extremity. The Veteran also had normal strength testing in March and June 2021. He reported intermittent symptoms that were "occasional" or occurred 3 to 4 times per month during flareups. He described moderate burning or shooting pain, mild or moderate paresthesias or dysesthesias of tingling, and moderate numbness at times. Although these intermittent symptoms alone would likely approximate the mild severity level, the Veteran also had decreased reflexes to 1+ during both examinations in 2021, as well as reports of moderate numbness at times and objectively decreased sensation at levels below the knee (lower leg/ankle and foot/toes) on testing in June 2021. This severity of symptoms was not present before August 2020, and resolving reasonable doubt in the Veteran's favor, they show a moderate severity. However, the evidence does not more nearly approximate moderately severe or severe incomplete paralysis or complete paralysis of the sciatic nerve. There was no atrophy or objectively decreased strength, no absent reflexes, no loss of motion below the knee, no constant pain, no severe symptoms, and no constant symptoms. In summary, reasonable doubt has been resolved in the Veteran's favor to award a higher rating for portions of the appeal period; the appeal is granted to this extent. The manifestations of his right lower extremity were relatively consistent throughout the staged periods on appeal, and any increases in severity did not more nearly approximate the criteria for a higher or separate rating at any point. There is no reasonable doubt to be resolved in his favor, and the appeal is otherwise denied. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Wheatley 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.