Citation Nr: 22018200 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-38 751A DATE: March 28, 2022 ORDER Entitlement to a disability rating in excess of 20 percent for lumbar disc disease, L2-3, with disc herniation and moderate canal stenosis at L4-5 and disc herniation with severe left foraminal stenosis at L5-S1 (low back disability) prior to October 4, 2013, and in excess of 40 percent thereafter (exclusive of a period of temporary total rating from March 6 to June 30, 2014) is denied. A total disability rating based upon individual unemployability (TDIU) is granted, effective March 6, 2014. REMANDED Entitlement to a disability rating in excess of 40 percent for radiculopathy, sciatic nerve, bilateral lower extremities is remanded. Entitlement to a disability rating in excess of 30 percent for radiculopathy, femoral nerve, bilateral lower extremities is remanded. FINDINGS OF FACT 1. Prior to October 4, 2013, the Veteran's thoracolumbar spine disability manifested, at worst in forward flexion to 35 degrees, with pain on movement, and no favorable or unfavorable ankylosis of the thoracolumbar spine. 2. As of October 4, 2013, the Veteran's thoracolumbar spine disability manifested, at worst in forward flexion to 35 degrees, with pain on movement, and no favorable or unfavorable ankylosis of the thoracolumbar spine. 3. The Veteran stopped working due to his service-connected disabilities on March 6, 2014. CONCLUSIONS OF LAW 1. Prior to October 4, 2013, the criteria for a rating in excess of 20 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2021). 2. As of October 4, 2013, the criteria for a rating in excess of 40 percent for a thoracolumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2021). 3. The criteria for a TDIU were met, effective March 6, 2014. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from October 1992 to October 1996. The Board remanded this case three times. In May 2018, the Board directed the Agency of Original Jurisdiction (AOJ) to obtain VA treatment records and attempt to obtain the Veteran's Social Security Administration (SSA) records. Updated VA treatment records were associated with his claims file and his SSA records were obtained. There was substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). In June 2020, the Board remanded the issue again to obtain additional VA treatment records and provide the Veteran with a VA examination. Additional treatment records were obtained. The Veteran underwent a VA examination in December 2020. In March 2021, the Board found that the December 2020 examination was inadequate because the examiner did not estimate the Veteran's range of motion during flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). The Board directed the AOJ to obtain additional VA treatment records, provide the Veteran with release forms to obtain private medical records, and to schedule him for a new examination. The Board specifically asked the examiner to estimate the Veteran's range of motion during a flare-up for the period from April 2010 to October 2013. In July 2021, the Veteran underwent a new examination. The examiner estimated his range of motion during flare-ups. Later in July 2021, the AOJ asked the examiner to specifically address flare-ups during the period from April 2010 to October 2013. In a December 2021 addendum opinion, the examiner provided a range of motion estimate for flare-ups during this time. There was substantial compliance with the Board's remand directives. Stegall, 11 Vet. App. 268. The July 2021 VA examination and the December 2021 addendum opinion are adequate to evaluate the severity of his back disability because they were based upon consideration of the Veteran's pertinent medical history, his descriptions of his symptoms, and because they describe his back disability in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405, 407 (1994). The Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). The third step of this inquiry requires the Board to weigh the probative value of the evidence in light of the entirety of the record. Neither the Veteran nor his representative have raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). INCREASED RATINGS Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). 1. Entitlement to a disability rating in excess of 20 percent for lumbar disc disease, L2-3, with disc herniation and moderate canal stenosis at L4-5 and disc herniation with severe left foraminal stenosis at L5-S1 (low back disability) prior to October 4, 2013, and in excess of 40 percent thereafter (exclusive of a period of temporary total rating from March 6 to June 30, 2014). The Veteran's lumbar spine disability is evaluated under the General Rating Formula for Diseases and Injuries of the Spine, under which a 20 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, there is muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent evaluation is warranted when the forward flexion of the thoracolumbar spine is 30 degrees or less or there is favorable ankylosis of the entire thoracolumbar spine. Id. A 50 percent evaluation is warranted where there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted when there is unfavorable ankylosis of the entire spine. Id. Under the rating schedule, forward flexion to 90 degrees, and extension, lateral flexion, and rotation to 30 degrees, each, are considered normal range of motion of the thoracolumbar spine. Id. at Plate V. Alternatively, the Veteran's lumbar spine disability may be evaluated under the Formula for Rating intervertebral disc syndrome (IVDS). Based on Incapacitating Episodes, which assigns a 10 percent evaluation with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent evaluation may be 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 evaluation may be assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent evaluation may be assigned for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. See 38 C.F.R. § 4.71a, Diagnostic Code 5243, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. The October 2013 VA examiner found that the Veteran had IVDS and therefore this formula must be considered. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bedrest prescribed by a physician and treatment by a physician. Id. at Note (1). The October 2013 VA examiner diagnosed IVDS and found that the Veteran had incapacitating episodes over the past 12 months of at least 2 weeks but less than 4 weeks. This is contemplated by the 20 percent rating. All of the subsequent VA examiners found that he did not have IVDS, but it remained in his VA treatment record problem list. Additionally, there is no evidence after the October 2013 VA examination that the Veteran had additional incapacitating episodes as defined by the VA regulation. Therefore, Diagnostic Code 5243 is less favorable. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Prior to October 4, 2013 The Veteran's lumbar spine disability was evaluated in an August 2011 General Medical examination. At the examination, the Veteran demonstrated flexion to 80 degrees, with flexion to 72 degrees after 3 repetitions. The Veteran had extension to 20 degrees, with 15 degrees after 3 repetitions. The Veteran had right lateral bending to 15 degrees, left lateral bending to 20 degrees, right rotation to 20 degrees, and left rotation to 20 degrees. The Veteran's combined range of motion was 175 degrees, and 162 degrees after 3 repetitions. The Veteran did not have ankylosis. The Veteran reported flareups of his lower back pain occurring 2 to 3 times per month, lasting 2 to 3 days at a time. A December 2021 medical opinion from the July 2021 VA examiner stated that the Veteran and his wife describe his flare ups in a manner similar to what was described in October 2013. The examiner estimated range of motion during a flare-up for the period from April 3, 2010 to October 4, 2013, was flexion to 35 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 15 degrees. The Veteran's estimated combined range of motion was 75 degrees. The Veteran stated that his back pain caused approximately 2 months of missed work over the previous 12 months. During this period on appeal, the Veteran's private and VA medical treatment records note treatment for lower back pain and a diagnosis of foraminal stenosis and degenerative disc disease. However, the treatment records did not specifically address the rating criteria necessary for determining a disability evaluation. The Veteran's medical treatment notes did list bedrest assigned for three days in February 2011. Based on the medical evidence of record, the Board finds that entitlement to a disability evaluation in excess of 20 percent is not warranted. The probative evidence of record does not establish forward flexion of the thoracolumbar spine to 30 degrees or less or favorable ankylosis of the entire thoracolumbar spine. Even when considering the Veteran's pain and functional loss, his range of motion does not meet the 40 percent criteria. Moreover, based on the aforementioned range of motion findings, the record shows that the Veteran's thoracolumbar spine is not fixated or immobile. Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (internal medical dictionary citation omitted). Multiple VA treatment records also show that he is able to move the spine. He also does not have the functional equivalent of ankylosis because at worst his forward flexion is 72 degrees which is well over half of normal flexion. Additionally, at worst his extension was 15 degrees. This is not reasonably interpreted as the functional equivalent of not being able to extend the spine. See Chavis v. McDonough, 34 Vet. App. 1 (2021). Therefore, the Veteran has not been shown to have met the criteria for an increased rating under the General Rating Formula for Diseases and Injuries of the Spine. The Board has also considered whether the Veteran is entitled to a rating in excess of 20 percent under the rating criteria for evaluating intervertebral disc syndrome. However, in this case, the Board finds that these criteria have not been met. The record does not establish that the Veteran has intervertebral disc syndrome with incapacitating episodes having a total duration of at least 4 weeks during the past 12 months. Thus, the Board finds that a rating in excess of 20 percent is not warranted under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. See 38 C.F.R. § 4.71a, Diagnostic Code 5243. The Board has also considered the provisions of 38 C.F.R. §§ 4.40, 4.45, 4.59, and the holdings in DeLuca. However, an increased evaluation for the Veteran's lumbar spine disability is not warranted on the basis of functional loss due to pain or weakness in this case, as the Veteran's symptoms are supported by pathology consistent with the assigned 20 percent evaluation, and no higher. Although the factors in 38 C.F.R. §§ 4.40 and 4.45 must be considered, the schedular rating criteria still must be met to obtain a higher rating. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). In this regard, the Board observes that the Veteran complained of pain on numerous occasions. However, the effect of the pain on the Veteran's lumbar spine is contemplated in the currently assigned evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that the higher rating criteria are met. The Board finds that the effect of pain on the Veteran's back is contemplated in the currently assigned 20 percent evaluation. The Veteran's complaints do not, when viewed in conjunction with the medical evidence, tend to establish weakened movement, excess fatigability, or incoordination to the degree that would warrant an increased evaluation. The current 20 percent rating is based on evidence showing that the Veteran's spine disability is manifested by symptoms that include significant pain, flare-ups, and functional loss. The record shows no additional factors, such as atrophy of disuse, which would restrict motion to such an extent that the criteria for a rating in excess of 20 percent would be approximated or met. DeLuca v. Brown, 8 Vet. App. 202 (1995); 38 C.F.R. §§ 4.10, 4.40, 4.45. The Board acknowledges the Veteran's contention that his thoracolumbar spine disability is more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for a disability evaluation in excess of 20 percent have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his back disability. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. As the preponderance of the evidence is against the assignment of a disability evaluation in excess of 20 percent for the Veteran's thoracolumbar spine disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b). As of October 4, 2013 The Veteran's thoracolumbar spine disability has been evaluated multiple times since October 4, 2013, including examinations completed in October 2013, July 2015, December 2020, and July 2021. At examination in October 2013, the Veteran exhibited forward flexion to 55 degrees, with pain on motion starting at 40 degrees. Extension was limited to 15 degrees with pain on motion starting at 5 degrees. Right and left lateral flexion both were limited to 15 degrees with pain on motion at 15 degrees. Right and left lateral rotation were similarly limited to 15 degrees. The Veteran was not able to perform repetitive use testing due to pain and fatigue. The Veteran exhibited localized tenderness on palpitation and guarding that caused an abnormal gait. Reflex testing was normal, though the Veteran did have decreased sensation in the lower extremities. He had moderate to severe radicular pain in the bilateral lower extremities. The Veteran did not have muscle atrophy, and the examiner noted that ankylosis was "not applicable". The Veteran was noted to have intervertebral disc syndrome resulting in incapacitating episodes of at least 2 weeks but less than 4 weeks in the past 12 months. The Veteran reported wearing a back brace constantly to assist with locomotion. The Veteran's thoracolumbar spine was evaluated again in July 2015. At examination, the Veteran had flexion to 30 degrees, extension to 2 degrees, right and left lateral flexion to 25 degrees, and right and left lateral rotation to 20 degrees. The Veteran was able to complete repetitive-se testing without displaying an additional range of motion loss. The Veteran did not have localized tenderness or guarding. He had mild to moderate radicular pain in the bilateral lower extremities. Muscle strength testing was normal, and the Veteran did not have muscle atrophy. The Veteran was not diagnosed with intervertebral disc syndrome. Ankylosis was not addressed by this examiner. The Veteran reported using a cane constantly to assist with locomotion. A December 2020 thoracolumbar spine examination noted forward flexion to 55 degrees, extension to 15 degrees, right lateral flexion to 20 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 20 degrees. The Veteran's range of motion decreased after repetitive use testing, with forward flexion to forward flexion to 45 degrees, extension to 10 degrees, right lateral flexion to 15 degrees, left lateral flexion to 10 degrees, and right and left lateral rotation to 15 degrees. The examiner estimated the same range of motion measurements following repeated use over time. The examiner did estimate the Veteran's range of motion during a flare-up. Muscle strength testing was normal, the Veteran did not have muscle atrophy. The examiner noted that the Veteran did not have ankylosis of the spine. The Veteran reported using a cane to assist with locomotion. Because the examiner did not estimate the Veteran's range of motion during a flare-up, the Board found this examination inadequate in its March 2021 remand and therefore it is not probative evidence against the Veteran's claim. Most recently, the Veteran's thoracolumbar spine disability was evaluated at a July 2021 VA examination. The examiner diagnosed lumbar disc disease with disc herniation and moderate canal stenosis. The Veteran reported worsening pain, numbness in both legs, occasionally having to drag his right foot, and some burning pain in back. The Veteran reported flare-ups and stated that during a flare-up he has intense pain and cannot move in any direction. Flare-ups occur 2-3 times per month and can last for several days. At the examination, the Veteran had forward flexion to 40 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, right lateral rotation to 10 degrees, and left lateral rotation to 20 degrees. There was objective evidence of pain on movement during all range of motion testing. He also had pain on weight bearing and nonweight-bearing. The Veteran completed repetitive use testing. After three repetitions the Veteran demonstrated forward flexion to 35 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 15 degrees. The examiner estimated range of motion in degrees following repeated use over time as forward flexion to 35 degrees, extension to 5 degrees, right lateral flexion to 5 degrees, left lateral flexion to 10 degrees, right lateral rotation to 5 degrees, and left lateral rotation to 10 degrees. The examiner estimated the same range of motion in degrees during a flare up. Passive range of motion was not tested. The examiner explained that there was no feasible way to do this "... without causing further harm or pain to the [V]eteran." Not performing passive range of motion testing because of potential harm or increased pain is a valid explanation for not performing this testing. Correia v. McDonald, 28 Vet. App. 158 (2016). The Veteran did have localized tenderness, guarding, or muscle spasms of the thoracolumbar spine. Muscle strength testing was normal except for ankle plantar flexion, ankle dorsiflexion, and great toe extension which showed some active movement against some active resistance. He did not have muscle atrophy or ankylosis. The examiner did note moderate to severe radicular pain in the Veteran's bilateral lower extremities. The Veteran did not have other neurologic abnormalities and was negative for intervertebral disc syndrome. The Veteran used a cane and a brace to assists with ambulation. Based on the medical evidence of record, the Board finds that the Veteran does not meet the criteria for a disability rating in excess of 40 percent, as of October 4, 2013, for lumbar disc disease, L2-3, with disc herniation and moderate canal stenosis at L4-5 and disc herniation with severe left foraminal stenosis at L5-S1. The above discussed examinations and the Veteran's treatment records fail to establish unfavorable ankylosis of the thoracolumbar spine or unfavorable ankylosis of the entire spine. "Unfavorable ankylosis" is defined by VA regulation as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (5). The evidence does not show that any of these manifestations are present. As the preponderance of the evidence is against the assignment of a disability evaluation in excess of 40 percent for the Veteran's thoracolumbar spine disability, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107(b) TDIU In his April 2015 VA Form 21-8940 (Veteran's Application for Increased Compensation Based on Unemployability), the Veteran listed his low back disability as the reason he was unable to work. A TDIU claim is therefore raised as part of his claim for an increased rating for his back disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). In a June 2015 decision, the AOJ granted a TDIU effective July 1, 2014. The Veteran filed his informal claim for an increased rating for his back disability in March 2011. When TDIU becomes part of an underlying increased rating claim, the issue applies to the entire appeal period for the increased rating claim. Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue of entitlement to a TDIU prior to July 1, 2014 is before the Board. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability: that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. In such an instance, if there is only one service-connected disability, it must be rated at 60 percent or more; if there are two or more service-connected disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). In his TDIU claim, the Veteran stated that he stopped working due to his service-connected disabilities on March 6, 2014. Prior to that, he was employed full time as a technician at a copier facility from 2006. He earned approximately $3,400 per month. This is above the poverty threshold for one person as established by the Bureau of the Census, and therefore his employment was not marginal. He also has not asserted that he was being afforded unusual accommodations or that his employer was protecting him out of altruism or affording him lesser responsibilities or other indications that he was in a protected work environment. A TDIU is granted, beginning March 6, 2014, which is the date he stopped working due to his service connected disabilities. Prior to that date, he had substantially gainful employment. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 40 percent for radiculopathy, sciatic nerve, bilateral lower extremities is remanded. 2. Entitlement to a disability rating in excess of 30 percent for radiculopathy, femoral nerve, bilateral lower extremities is remanded. The Board notes that the Veteran has been assigned separate disability ratings under Diagnostic Codes 8520 and 8523 for radiculopathy of the sciatic nerves and femoral nerves, respectively. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve is rated as 10 percent disabling; moderate incomplete paralysis is rated as 20 percent disabling; moderately severe incomplete paralysis is rated as 40 percent disabling; and severe incomplete paralysis, with marked muscular atrophy, is rated as 60 percent disabling. Complete paralysis of the sciatic nerve warrants an 80 percent evaluation; with complete paralysis of the sciatic nerve, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. In accordance with Diagnostic Code 8526, a 20 percent disability rating is awarded for incomplete, moderate paralysis of the femoral nerve; a 30 percent disability rating is awarded for incomplete, severe paralysis of the femoral nerve; a 40 percent disability rating is awarded for complete paralysis of the femoral nerve. Id. At the most recent VA back conditions completed in July 2021, the Veteran reported some instances of drop foot and having to occasionally drag his right foot around. The Veteran also reported sharp burning sensation going to his lower extremities. This could indicate a significant worsening of the Veteran's radiculopathy of the lower extremities. A VA Peripheral Nerve Conditions examination is necessary to determine the current severity of the Veteran's bilateral lower extremity radiculopathy, sciatic and femoral nerves. The matters are REMANDED for the following action: 1. Schedule the Veteran for a VA Peripheral Nerve Conditions examination to determine the current severity of his service-connected radiculopathy, sciatic and femoral nerves, bilateral lower extremities. The entire claims file and a copy of this remand must be made available to the examiner for review, and the examiner must specifically acknowledge receipt and review of these materials in any reports generated. The examiner must provide all findings, along with a complete rationale for his or her opinion(s), in the examination report. If any of the above requested opinions cannot be made without resort to speculation, the examiner must state this and provide a rationale for such conclusion. 2. Readjudicate the claims. If any decision is unfavorable to the Veteran, issue a Supplemental Statement of the Case and allow the applicable time for response. Then, return the case to the Board. D. Martz Ames Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Riordan, 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.