Citation Nr: 22051160 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-33 306 DATE: September 8, 2022 ORDER Entitlement to a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS) is denied. Entitlement to a rating in excess of 20 percent for radiculopathy, involving the femoral nerve, left lower extremity, associated with lumbosacral strain with degenerative disc disease, is denied. FINDINGS OF FACT 1. Throughout the rating period on appeal, the Veteran's lumbosacral strain with degenerative disc disease and IVDS has not been manifested by favorable or unfavorable ankylosis, comparable symptoms, or symptoms requiring prescribed bedrest. 2. Throughout the rating period on appeal, the Veteran's radiculopathy, involving the femoral nerve, left lower extremity, associated with lumbosacral strain with degenerative disc disease has been manifested by no more than moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 40 percent for lumbosacral strain with degenerative disc disease and IVDS have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 8526. 2. The criteria for a disability rating in excess of 20 percent for radiculopathy, involving the femoral nerve, left lower extremity, associated with lumbosacral strain with degenerative disc disease, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran has active service from March 1959 to March 1979. This case is before the Board of Veterans' Appeals (Board) from an April 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran appeared before the undersigned Veterans' Law Judge at an October 2017 hearing. These claims were previously before the Board and remanded in April 2018, May 2020, July 2021, December 2021, and March 2022. The prior remands were required because the medical evidence of record had not adequately addressed the Veteran's contentions and some medical evidence of record with regard to flare-ups. In March 2022, in addition to remand for an addendum medical opinion to address flare-ups, remand was required to obtain social security records. An addendum has been obtained. that have been found to not exist, and further efforts to obtain them will be futile (06/16/2022 C&P Exam; 03/14/2022 SSA-828-U4 Request for Medical Information From Records of Department of Veterans Affairs; 04/29/2022 Medical Treatment Records - Furnished by SSA). Finding there has been substantial compliance with the Board's remand directives, the Board may proceed with appellate review. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Ratings for service-connected disabilities are determined by comparing the Veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities, which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, the entire history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, 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. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2009). The assignment of a particular diagnostic code to evaluate a disability is completely dependent on the facts of a particular case. See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis, and demonstrated symptomatology. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. Thus, with or without degenerative arthritis, it is the intention to recognize painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59; see Burton v. Shinseki, 25 Vet. App. 1, 5 (2011) (holding that the provisions of 38 C.F.R. § 4.59 are not limited to disabilities involving arthritis). Moreover, when evaluating musculoskeletal disabilities, VA may, in addition to applying the schedular criteria, assign a higher disability rating when the evidence demonstrates functional loss due to limited or excessive movement, pain, weakness, excessive fatigability, or incoordination, to include during flare-ups and with repeated use, if those factors are not considered in the rating criteria. See 38 C.F.R. §§ 4.40, 4.45, 4.59; see also DeLuca v. Brown, 8 Vet. App. 202 (1995); Burton, 25 Vet. App. at 5. The Court also held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Nonetheless, a disability rating higher than the minimum compensable rating is not assignable under any diagnostic code relating to range of motion where pain does not cause a compensable functional loss. Rather, the pain must affect some aspect of the normal working movements of the body such as excursion, strength, speed, coordination, and endurance, as defined in 38 C.F.R. §§ 4.40, before a higher rating may be assigned. See Mitchell v. Shinseki, 25 Vet. App. 32, 37 (2011) (noting that while pain may cause a functional loss, pain itself does not constitute a functional loss, and is therefore, not grounds for entitlement to a higher disability rating). 1. Disability rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS). 2. Disability rating in excess of 20 percent for radiculopathy, involving the femoral nerve, left lower extremity, associated with lumbosacral strain with degenerative disc disease. The Veteran claimed entitlement to an increased rating for his back disability, testifying that he has less mobility and needs to use a walker as an assistive device. He described having needed a motorized assistive device during vacation. He also described stiffening, indicating further limitation of his range of motion. The Veteran also described difficulty driving because of his legs and difficulty turning (10/27/2017 Hearing Transcript, pgs. 3-4, 6, and 8). The Veteran is assigned a 40 percent disability rating for his lumbosacral spine pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242-5237 (12/14/2021 Rating Decision Codesheet). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned. If the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen. 38 C.F.R. § 4.27. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes). Ratings under the General Rating Formula are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Prior to February 7, 2021, Diagnostic Code 5242 was assigned for degenerative arthritis of the spine and DC 5243 for IVDS. As of February 7, 2021, DC 5242 is assigned for degenerative arthritis and DDD other than IVDS. It also amends DC 5243 for IVDS, allowing the diagnostic code to be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; otherwise DC 5242 must be used for all other disc diagnoses. Although the amended criteria for 5242 and 5243 separated DDD from IVDS, the rating formula under each diagnostic code was left unchanged. The General Rating Formula provides for assignment of a 10 percent rating when forward flexion of the thoracolumbar spine is 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 requires 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 muscle spasm or guarding is severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating requires forward flexion of the thoracolumbar spine of 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating requires unfavorable ankylosis of the entire thoracolumbar spine, and a 100 percent rating requires unfavorable ankylosis of the entire spine. See 38 C.F.R. § 4.71a, DC 5242, General Rating Formula for Diseases and Injuries of the Spine. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion is zero to 30 degrees, and left and right lateral rotation is zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion. See 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine at Note (2); see also 38 C.F.R. § 4.71a, Plate V. Additionally, for VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Id. at Note (5). Any associated objective neurologic abnormalities, including, but not limited to bowel or bladder impairment, should be evaluated separately under the appropriate diagnostic code. Note (1). Alternatively, disability involving disc disease may be rated under the Formula for Rating IVDS Based on Incapacitating Episodes. That formula provides a 10 percent disability rating for incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for intervertebral disc syndrome with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. An incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note (1). As of February 7, 2021, the criteria for IVDS will be assigned only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other diagnoses. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the Veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110 (g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110 (g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. Therefore, the Board will consider the Veteran's claim under the old criteria prior to February 7, 2021, and both the old and new rating criteria from February 7, 2021. The criteria that is more favorable to the Veteran will be applied. 38 U.S.C. § 5110; Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). Turning to the medical evidence in this case, the Veteran was afforded a VA examination for his back in January 2014. His range of motion was measured as 70 degrees on forward flexion, with painful motion beginning at that point as well. Extension was measured as 20 degrees, with painful motion beginning at this point as well. Right lateral flexion was measured 20 degrees with no objective evidence of painful motion. Left lateral flexion was 25 degrees, with no objective evidence of painful motion. Right lateral rotation ended at 25 degrees, with no objective evidence of painful motion. Left lateral rotation ended at 30 degrees, also with no objective evidence of painful motion (01/17/2014 CAPRI, pg. 3). The Veteran described flare-ups daily. He was unable to perform three repetitions due to discomfort. Additional functional loss was noted, with contributing factors of less movement than usual and pain on movement. Pain on palpation was noted in the lumbar area. Muscle spasm and guarding were noted. However, they did not result in abnormal gait or spinal contour. Although IVDS was confirmed, no incapacitating episodes over the past 12 months were noted. The Veteran's constant use of a cane and other assistive devices for locomotion was noted. He was unable to stand for long periods of time with difficulty lifting and bending (01/17/2014 CAPRI, pg. 10). A May 2017 VA examination for the back (05/18/2017 C&P Exam) included measurements of the Veteran's range of motion. His forward flexion was 40 degrees; extension, 10 degrees; right and left lateral flexion were both measured as 15 degrees; and right and left lateral rotation were measured as 20 degrees. Pain on walking and bending was described. Pain was noted to cause functional loss with all range of motion and there was localized pain on palpation over the lumbar spine. The examiner found that pain, weakness, fatigability, and/or incoordination did not limit functional ability with flare up. Muscle spasm and guarding were found to result in abnormal gait or spinal contour. Disturbance of locomotion and interference with standing due to pain was describe. The Veteran explained he had pain on standing for more than 5 minutes or walking more than 25 feet. Ankylosis was not noted, and although IVDS was confirmed, no episodes of prescribed bed rest in the past year were noted. The Veteran also described pain in his back on bending and turning. Constant use of a cane was noted, and the Veteran described using back support in the car (05/18/2017 C&P Exam, pgs. 7 and 9). A private examination of the back was conducted in November 2017 (11/29/2017 Disability Benefits Questionnaire (DBQ) - Veteran Provided). The physician noted the Veteran was not able to bend or stand for long periods of time, and his movement is limited. The examiner indicated the Veteran was unable to perform range of motion testing due to pain. Pain was indicated on both active and passive range of motion. Localized tenderness or pain on palpation was noted. Guarding and muscle spasm was noted to contribute to abnormal gait. Functional loss and additional limitation of range of motion manifest with less movement than normal, weakened movement, excess fatigability, incoordination, pain, and interference with standing. Here too, the examiner indicated range of motion estimates were not feasible, stating that pain limits activities of daily living. The private examiner did not indicate the Veteran's back symptoms included ankylosis or IVDS. The Veteran was afforded a November 2019 VA examination of his back (11/12/2019 C&P Exam). His range of motion was measured as forward flexion of 25 degrees, extension was 10 degrees, right lateral flexion was 10 degrees, left lateral flexion was 5 degrees. He had no right or left lateral rotation, that is zero degrees. Marked reduction in range of motion was noted, with pain on exam that caused functional loss. On palpation, he was noted to be tender over lumbosacral spine, lumbar paraspinal muscles with spasm. Although pain was noted to significantly limit his functional ability with repeated use, no additional loss of range of motion was indicated. The examiner noted flare ups were not applicable. Muscle spasm and guarding resulted in abnormal gait or spinal contour. As with prior examinations, ankylosis was not noted; IVDS was confirmed, however, no episodes of prescribed bed rest in the past year were noted. Constant use of a cane was noted. The examiner described the Veteran as having antalgic gait. Pain was noted when the Veteran's back was moved in non-weight bearing. Passive back movement was not assessed due to pain and muscle spasm in the Veteran's back. The examiner also noted that the Veteran's back impacted his ability to bend, squat, and lift objects. A May 2021 back examination is of record (05/04/2021 C&P Exam). The Veteran's range of motion was measured as forward flexion, 70 degrees; extension 15 degrees; right lateral flexion, 10 degrees, left lateral flexion 15 degrees, right lateral rotation 15 degrees, left lateral rotation, 10 degrees. Passive range of motion was not tested. The examiner explained it may cause severe pain and risk further injury. Pain was evidenced on weight bearing, non-weight bearing, on rest/non-movement, and causes functional loss, noted as the same as active range of motion loss. There was objective evidence of crepitus, and localized tenderness or pain on palpation of the joint or associated soft tissue. Additional loss after repetition was not noted. The examiner indicated that the Veteran denied flare ups. Guarding was not noted. The examiner indicated muscle spasm resulted in abnormal gait or spinal contour. No ankylosis was noted, and although the Veteran has IVDS, no episodes requiring prescribed bed rest were noted in prior 12 months. The Veteran's use of a cane regularly and a walker occasionally was noted. An August 2021 addendum opinion was obtained (08/11/2021 C&P Exam). The examiner confirmed that the Veteran did not describe flare ups. With regard to functional ankylosis, the examiner explained that this is not an accepted orthopedic principle with respect to the back. It applies to joints where ligamentous, tendinous, or muscular injuries cause contractures, functionally creating ankylosis. The examiner clarified that the Veteran's range of motion falls well outside of what would be considered ankylotic. Ankylosis implies fusion of the bony structures, and the exhibited range of motion does not imply such limited functionality (08/11/2021 C&P Exam, pg. 4). An October 2021 addendum opinion for the back clarified why passive range of motion could not be assessed (10/22/2021 C&P Exam). The examiner explained that passive range of motion on back cannot be performed due to incomplete relaxation. The biomechanics of the back make all motions weight bearing. The examiner did explain that if such motions were possible, it would be anticipated that the results would be the same as initial range of motion measurements. The examiner provided a retroactive estimate of range of motion during flare ups associated with the January 2014 examination. The estimates were forward flexion: 35 degrees, extension 5 degrees, right and left lateral flexion, 10 degrees, and right and left lateral rotation, limited to 15 degrees (10/22/2021 C&P Exam). The examiner provided a retroactive estimate of range of motion during flare ups associated with the May 2017 examination. The estimated range of motion limitation measurements were forward flexion of 65 degrees, extension of 15 degrees, right lateral flexion of 15 degrees, left lateral flexion of 20 degrees, right lateral rotation of 20 degrees, and left lateral rotation of 25 degrees (10/22/2021 C&P Exam). A December 2021 addendum opinion was obtained (01/02/2022 C&P Exam). The examiner reiterated that all motions of the lumbar spine are considered active and weight-bearing. The examiner explained it is an established orthopedic principle that passive and non-weight-bearing motion does not apply to the lumbar spine, due to the anatomy of the spine, spinal reflexes, the biomechanics of the lumbar spine, and the inability to completely relax the lumbar spine, especially when a spinal condition is present. The examiner explained that although values for passive motion may be assigned, these are not considered accurate or consistent with standard orthopedic practice. With regard to the May 2021 examination, the addendum noted that the May 2021 examination indicated the Veteran denied flares, so no loss of range of motion due to flare-up was anticipated. The Veteran had no loss of range of motion on the observed repetitive use and no further loss was anticipated on extended repetitive use. The addendum clarified that stretching and range of motion exercises are generally recommended for back conditions, with the patient self-limiting at the point of pain, which is likely equivalent to the initial ROM in most circumstances for repetitive use. Though flares imply an acute increase in severity, one might anticipate a small loss of range of motion due to flair. The examiner reiterated that the Veteran denied flare ups. The addendum also confirmed that the Veteran's initial range of motion in May 2021 did not represent ankylosis or functional ankylosis. The examiner specifically noted that the Veteran's flexion at that time was not suggestive of anything near functional ankylosis. The addendum also addressed IVDS, clarifying there is no evidence dating to 2013 of incapacitation requiring bedrest and medical care. The examiner acknowledged the Veteran may have chosen bedrest and did report incapacitating episodes associated with the January 2014 examination. The addendum examiner clarified that these are not supported by documentation. Significantly, the 2017, 2019, and 2021 examinations were negative for incapacitating episodes of IVDS. The examiner opined that it is less likely than not that the Veteran had documented IVDS meeting rating requirements, that is having been prescribed periods of bed rest. The addendum examiner further explained that one would anticipate worsening, not amelioration, and the absence of incapacitating episodes on the later examinations belies their presence in 2014. The addendum reiterated that no medical evidence supports prescribed bedrest or traction occurring in or around 2014, or any time since 2013 (01/02/2022 C&P Exam). The Veteran most recently received a VA examination for his back in June 2022 (06/16/2022 C&P Exam). Range of motion was limited to 60 degrees on forward flexion, and 15 degrees on extension, right and left lateral flexion and left and right lateral rotation (06/16/2022 C&P Exam, pg. 4). During flare ups, the examiner estimated the Veteran's range of motion as 60 degrees on forward flexion and further reduced to 10 degrees on extension, right and left lateral flexion and left and right lateral rotation (06/16/2022 C&P Exam, pg. 7). Muscle spasm, resulting in abnormal gait or abnormal spinal contour was noted. Ankylosis was not indicated. Although IVDS was confirmed, the Veteran's symptoms had not required prescribed bedrest (06/16/2022 C&P Exam, pg. 11). Although the Veteran has described difficulty walking, he has explained that this is as a result of pain or balance issues, not due to restriction of his line of sight. There is no medical evidence that the Veteran suffers from 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. The June 2022 VA examiner did not indicate any neurologic symptoms are due to nerve root stretching, rather finding the cause of the radiculopathy is IVDS (06/16/2022 C&P Exam, pg. 11). The medical evidence does not reveal, nor has the Veteran described symptoms comparable to unfavorable ankylosis of the entire thoracolumbar spine or periods of prescribed bedrest, warranting a rating in excess of 40 percent. In that regard, the opinions of record affirmatively state the Veteran's range of motion is not comparable to ankylosis or a fusion of the spine, weighing against the Veteran's claim for an increased rating for his back disability. In addition to not revealing evidence of or comparable to unfavorable ankylosis of the entire thoracolumbar spine, the record does not suggest the Veteran's IVDS has required periods of prescribed bedrest, warranting a rating in excess of 40 percent. The Board acknowledges that perhaps the Veteran has chosen to rest in bed due to pain, but this is distinguished from prescribed bedrest, which is not indicated by the record. Accordingly, a higher disability rating based on IVDS is not warranted. The Board acknowledges there are conflicts in the record as to whether the Veteran has or does not have flare ups that further decrease his range of motion. The medical evidence establishes a disability picture of back pain with range of motion loss and locomotion limitations that require assistive devises. The Board concedes the Veteran has flare ups, however finds the evidence of record does not suggest that the flare ups result in symptomatology equating to unfavorable ankylosis, warranting an increased rating. The Board has considered the testimony of the Veteran's spouse, describing the impact of the Veteran's back on activities of daily living. She described his grunting because of excruciating pain. She described being afraid of his falling, and his use of walls in support to minimize the risk of falling. She testified to the Veteran's having fallen, and routinely needing to pause to find his balance. When he sits, he just falls. In addition to use of assistive devices for locomotion, the Veteran's spouse described the Veteran's use of topical medications for relief as well (10/27/2017 Hearing Transcript, pgs. 7-9). While the Board recognizes the difficulties caused by the Veteran's back, most notably the pain, the symptoms as described by the Veteran's wife, do not rise to the level of unfavorable ankylosis of the entire thoracolumbar spine or periods of prescribed bedrest, warranting a rating in excess of 40 percent. The Board has considered rating the Veteran's back pursuant to diagnostic codes 5003 and 5010. Such rating would not be advantageous to the Veteran because his current rating exceeds the highest rating available under those codes. Assigning a separate, additional rating under diagnostic code 5003 and/or 5010 is not permissible. Per Note (1) under diagnostic code 5003, the 20 percent and 10 percent ratings based on x-ray findings will not be combined with ratings based on limitation of motion (38 C.F.R. § 4.71a, Diagnostic Code 5003). As such, the Board finds the ratings, as currently assigned are the most accurate and advantageous to the Veteran. The Board recognizes that any associated objective neurologic abnormalities are evaluated separately under the appropriate diagnostic code. 38 C.F.R. § 4.71a, General Rating Formula, Note 1. Neurological symptoms. The Veteran has been assigned a 20 percent disability rating for radiculopathy, left lower extremity, involving the femoral nerve, pursuant to Diagnostic Code 8520, effective November 6, 2019, previously rated under Diagnostic Code 8526, effective December 15, 2011 (12/14/2021 Rating Decision - Codesheet). The Board notes that the femoral nerve should most accurately be rated pursuant to Diagnostic Code 8526. As such, the Board will reference code 8526 in this decision. The Veteran is also assigned a 20 percent disability rating for radiculopathy, left lower extremity, involving the sciatic nerve, pursuant to Diagnostic Code 8720, effective May 4, 2021 (12/14/2021 Rating Decision - Codesheet). With regard to the Veteran's right lower extremity, he is assigned a 20 percent disability rating for radiculopathy involving the femoral nerve, pursuant to Diagnostic Code 8520 (as with the left leg, should be code 8526), and a 20 percent disability rating for radiculopathy involving the sciatic nerve, pursuant to Diagnostic Code 8720, both effective May 4, 2021 (12/14/2021 Rating Decision - Codesheet). The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8626 and 8726. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of quadriceps extensor muscles is assigned a 40 percent disability rating. 38 C.F.R. § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide ratings for peripheral neurological disorders are assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran has been afforded a number of examinations for his back, that included evaluation of associated neurological symptoms. In January 2014, the Veteran's muscle strength was normal, and no muscle atrophy was indicated. His knee reflexes were normal, although ankle reflexes were absent. Although the Veteran's right leg was normal for sensation to touch, sensation of the left leg was noted as decreased at the thigh, knee, lower leg/ankle, and foot/toes. Radicular pain was noted with respect to the left leg, with symptoms of moderate intermittent pain, moderate paresthesias and or dysesthesias, and moderate numbness. The Veteran described pain radiating to his left calf. The examiner described the severity of radiculopathy of the left lower extremity as moderate (01/17/2014 CAPRI, pg. 8). The Veteran's May 2017 back examination considered neurological symptoms (05/18/2017 C&P Exam). At that time, muscle strength was assessed as normal bilaterally. His knee and ankle reflexes were hypoactive bilaterally. His right lower extremity was normal as to sensation to touch, although his left lower extremity was found to have decreased sensation to touch at the lower leg/ankle, and foot/toes. No right lower radiculopathy was noted, although moderate radicular symptoms of constant and intermittent pain, paresthesias and/or dysesthesias, and numbness of the left lower extremity. The examiner confirmed moderate radiculopathy of the left lower extremity, involving the left femoral nerve (05/18/2017 C&P Exam, pg. 6). A peripheral nerve examination was also conducted (05/18/2017 C&P Exam, pg. 9). A diagnosis of lumbar radiculopathy left leg was confirmed, and described as moderate. Decreased sensation to light touch was noted at the lower leg/ankle. Incomplete paralysis of the anterior crural (femoral) nerve was confirmed, and described as moderate. The Veteran's use of a cane constantly was noted, although attributed to his back pain, as opposed to radicular symptoms. A November 2017 private examination for the Veteran's back is of record. The examiner considered the Veteran's neurological symptoms as well (11/29/2017 Disability Benefits Questionnaire (DBQ) - Veteran Provided). Bilateral loss of muscle strength was noted and rated at 3 of 5 for bilateral hip flexion, knee flexion, knee extension, ankle plantar flexion, ankle dorsiflexion, foot abduction, adductions and great toe extension. Muscle atrophy was noted for the left lower extremity. The Veteran's sensation to light touch was found to be normal on the right lower extremity, with the exception of decreased sensation of the lower leg/ankle, which was decreased. Sensation to light touch on the left lower extremity was normal at the upper anterior thigh, but was decreased at the thigh/knee, lower leg/ankle and foot/toes. Severe bilateral radicular pain was noted as constant. No other radicular symptoms were noted for the right leg. However, the Veteran's left leg radicular symptoms also included moderate to severe paresthesias and/or dysesthesias, numbness. Despite the noted right leg symptoms, the examiner summarized the Veteran's right lower extremity as not affected by radicular pain. The Veteran's left lower extremity radicular pain was described as moderate to severe, involving the left femoral nerve. No other neurologic abnormalities were noted (11/29/2017 Disability Benefits Questionnaire (DBQ) - Veteran Provided, pgs. 7 to 9). The Veteran's November 2019 VA examination for his back also addressed neurological symptoms. The Veteran right extremity muscle strength was normal, however his left hip flexion, knee extension, ankle plantar flexion, and ankle dorsiflexion was noted to be reduced, 4 of 5, described as active movement against some resistance. His knee reflexes were normal bilaterally, and his ankle reflexes were absent bilaterally. Sensation to light touch was normal on his right lower extremity. His left, however was noted to be decreased at his thigh/knee, lower leg/ankle, and foot/toes. Radicular symptoms were not noted on his right side. However, moderate intermittent pain and moderate numbness was noted on his left side, with the involvement of the sciatic nerve. The examiner described the Veteran's left lower extremity symptoms as moderate (11/12/2019 C&P Exam, pg. 6). A March 2020 addendum opinion to the November 2019 exam for the Veteran's nerves is also of record (03/06/2020 C&P Exam). The examiner confirmed lumbar radiculopathy of the left lower extremity. The examiner described the radiculopathy as impacting the sciatic, rather than femoral nerve roots. The examiner concluded that the Veteran's left lower extremity radiculopathy was moderate. At a May 2021 VA examination for peripheral nerves, the Veteran's diagnosis of radiculopathy involving the femoral nerve left lower extremity was confirmed and bilateral lower extremity radiculopathy was also confirmed. This was noted to be a change in the previous diagnosis. The examiner explained that the Veteran's radiculopathy has worsened and progressed as his arthritic lumbar condition has worsened, affecting more levels of his spinal cord and nerve roots at each level (05/04/2021 C&P Exam, pgs. 2 and 15). The Veteran's right and left lower extremity radiculopathy was manifested by moderate constant pain, moderate paresthesias and/or dysesthesias and moderate numbness. His knee and ankle reflexes were noted as hypoactive. Sensation to light touch was noted as decreased at the upper anterior thigh, thigh/knee, lower leg/ankle, foot/toes. Trophic changes were noted, specifically shiny edematous hairless lower legs, and the Veteran's gait was described as antalgic and slow. Both the sciatic and femoral nerves were identified as affected, manifesting as moderate incomplete paralysis, bilaterally. The Veteran's use of a cane regularly and a walker occasionally was noted. In an August 2021 addendum opinion, the examiner confirmed the Veteran's moderate bilateral femoral and sciatic radiculopathies and clarified that the Veteran did not suffer from incapacity due to flares of radiculopathy (08/11/2021 C&P Exam, pg. 4). A December 2021 addendum clarified that the diagnosed radiculopathies were noted to be moderate in severity for both femoral nerves and sciatic nerves. The examiner reiterated flare ups were denied and opined the severity of radicular symptoms was unlikely to be altered if the Veteran did suffer flares (01/02/2022 C&P Exam). During the Veteran's June 2022 back examination, the examiner noted bilateral radiculopathy, impacting the femoral and sciatic nerves. Mild symptoms of pain and paresthesias or dysesthesias were noted bilaterally. Decreased sensation to touch was noted at the right lower leg, ankle, and foot, and throughout the left lower extremity. Hypoactive reflexes of the knee and ankle were noted bilaterally (06/16/2022 C&P Exam, pgs. 9-10). The Veteran was most recently afforded a June 2022 VA examination for peripheral nerves. The recorded radicular symptoms were consistent with the back examination as to mild symptoms of pain and paresthesias or dysesthesias were noted bilaterally. Decreased sensation to touch was noted at the right lower leg, ankle, and foot, and throughout the left lower extremity. Hypoactive reflexes of the knee and ankle were noted bilaterally. The Veteran's strength and gait were identified as normal. No trophic changes were identified. The examiner identified the femoral and sciatic nerves as the only affected, all resulting in mild incomplete paralysis bilaterally. The Veteran had decreased mobility and regular use of a cane, and occasional use of a walker was also identified as an assistive device used with locomotion. The examiner explained the Veteran is unable to perform normal occupational duties that are not desk bound due to lack of mobility and ambulation like lifting and carrying objects and being on his feet for long periods of time. After thorough review of the evidence of record, the Board finds the Veteran's radiculopathy disability is primarily manifest by bilateral pain, decreased sensation, paresthesias or dysesthesias, hypoactive reflexes of the knee and ankle decreased mobility, ambulation, resulting in difficulty lifting and carrying objects or being on his feet for long periods of time. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by trophic changes, muscle atrophy, or complete paralysis warranting a higher disability rating. The Board acknowledges trophic changes were noted by the May 2021 examiner. However, even so, the examiner ultimately characterized the severity of the Veteran's radiculopathy as affecting both sciatic and femoral nerves, manifesting as moderate incomplete paralysis, bilaterally. In light of the foregoing, the Board finds that the level of impairment for left lower extremity radiculopathy (femoral nerve) is most analogous to moderate incomplete paralysis, warranting a 20 percent rating, and no higher. The Board has also considered the Veteran's other radicular symptoms against all other potentially applicable Diagnostic Codes. The Board finds there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected, specifically including the sciatic nerve. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. The Board also notes that the bilateral factor has been appropriately applied, and thus does not warrant further discussion herein (12/14/2021 Rating Decision Codesheet, pg. 3). In sum, regarding the Veteran's back disability, based on the forgoing, the Board finds that the most probative evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for a lumbosacral strain with degenerative disc disease and intervertebral disc syndrome (IVDS). Likewise, the Board finds that the most probative evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 20 percent for radiculopathy, involving the femoral nerve, left lower extremity, associated with lumbosacral strain with degenerative disc disease. As the evidence of record persuasively weighs against the appeals, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Eric S. Leboff Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Myers, Pamella 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.