Citation Nr: A25035398 Decision Date: 04/17/25 Archive Date: 04/17/25 DOCKET NO. 240117-408866 DATE: April 17, 2025 ORDER Entitlement to a rating in excess of 10 percent for cervical spine spondylosis at C5-C6 and C6-C7 with bilateral foraminal encroachment (cervical spine disability) is denied. Entitlement to a rating in excess of 10 percent for levoscoliosis and spondylosis of the lumbar spine at L5-S1 (lumbar spine disability) is denied. From May 25, 2022 to May 25, 2023, entitlement to a separate 10 percent rating, but no higher, for radiculopathy of the right lower extremity is granted subject to controlling regulations applicable to the payment of monetary benefits. From May 25, 2023, entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity is denied. REMANDED Entitlement to an initial rating in excess of 10 percent for chronic sinusitis is remanded. Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's cervical spine disability was manifested by painful motion and forward flexion limited to, at worst, 45 degrees. His cervical spine disability was not manifested by guarding or muscle spasm resulting in an abnormal gait or spinal contour, forward flexion limited to less than 30 degrees, ankylosis or symptoms more nearly approximating functional ankylosis, or intervertebral disc syndrome (IVDS) with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 2. Throughout the appeal period, the Veteran's lumbar spine disability was manifested by painful motion and forward flexion limited to, at worst, 80 degrees. It was not manifested by forward flexion limited to 60 degrees or less, combined range of motion of the thoracolumbar spine limited to 120 degrees or less, muscle spasm or guarding severe enough to result in an abnormal gait, abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis, ankylosis or symptoms more nearly approximating functional ankylosis, a neurological condition other than radiculopathy, or IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 3. Throughout the periods on appeal, the Veteran's lumbar spine disability was manifested by radiculopathy of the right lower extremity that more nearly approximated mild incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for a cervical spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, Diagnostic Code (DC) 5242. 2. The criteria for a rating in excess of 10 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.71a, DC 5252. 3. From May 25, 2022 to May 25, 2023, entitlement to a rating of 10 percent, but no higher, for radiculopathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.40, 4.45, 4.124a, DC 8520. 4. From May 25, 2023, entitlement to a rating in excess of 10 percent for radiculopathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.14, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to February 2012. These matters are before the Board of Veterans' Appeals (Board) on appeal from August 2023 and December 2023 rating decisions adjudicated under the Appeals Modernization Act (AMA) by a Department of Veterans Affairs (VA) Regional Office (RO). Within the framework of the AMA, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) and elected Direct Review by a Veterans Law Judge in January 2024. See January 2024 VA Form 10182 Notice of Disagreement. The Board notes that under the direct review option, no additional evidence received after the appealed rating decision is to be considered; rather, review is limited to the evidence on record at the time of the decision. 38 C.F.R. §§ 19.2(d), 20.301. In addition, the Board notes that the Veteran submitted a new VA Form 21-22a, in favor of a new private attorney, in December 2024, after the Board mailed the AMA docketing letter in January 2024. See January 2024 AMA Notification Letter; December 2024 VA Form 21-22a, Appointment of Individual as Claimant's Representative. Under 38 C.F.R. § 20.5, "[a]n appellant will be accorded full right to representation in all stages of an appeal by a recognized organization, attorney, agent, or other authorized person." Generally, a representative receiving a docketing letter constitutes sufficient notice to meet this requirement. However, in situations where a new VA Form 21-22a, Appointment of Individual as Claimant's Representative, is received after a docketing letter has been sent and the Board accepts the change in representation, the new representative is to be given notice that the appellant has an appeal pending before the Board. Here, the Board sent a letter to the Veteran's private attorney in February 2025 identifying him as the representative of record for the Veteran and notifying him that the Veteran had at least one appeal pending before the Board. See February 2025 BVA Letter. The Board notes that more than thirty days have passed since the date of the February 2025 letter, and as such, finds that the new representative has been adequately notified of the appeal pending before the Board and was provided an opportunity to present argument. Lastly, the Board notes that the Veteran filed a timely appeal to a February 2022 rating decision for the issue of entitlement to service connection for sleep apnea. See February 2022 Rating Decision - Narrative; May 2022 VA Form 10182 Notice of Disagreement. That issue will be addressed in a separate decision under a different docket number. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability ratings is the ability of the body as a whole, or of the psyche, or of a system or organ of the body, to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When rating musculoskeletal disabilities on the basis of limited motion of a joint, VA must consider functional loss due to limited or excess movement, pain, weakness, excess fatigability, or incoordination. 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202 (1995). The provisions of 38 C.F.R. §§ 4.40 and 4.45 are to be considered only in conjunction with diagnostic codes predicated on limitation of motion. Johnson v. Brown, 9 Vet. App. 7 (1996). 1. Entitlement to a rating in excess of 10 percent for a cervical spine disability is denied. As an initial matter, the Veteran filed a claim for entitlement to a rating in excess of 10 percent for his service-connected cervical spine disability on May 25, 2023. See May 2023 VA Form 21-526EZ, Fully Developed Claim (Compensation). Throughout the period on appeal, the Veteran's service-connected cervical spine disability has been rated pursuant to 38 C.F.R. § 4.71a, DC 5242. Schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic code criteria pertinent to cervical spine disabilities provides that a 10 percent rating is warranted for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion (ROM) of the cervical spine greater than 170 degrees but not greater than 335 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 cervical spine greater than 15 degrees but not greater than 30 degrees; a combined ROM of the cervical spine not greater than 170 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 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less; or favorable ankylosis of the entire cervical spine, and a 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine. Under this code, a maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine. Note 1 to the General Rating Formula provides for a separate evaluation for any associated objective neurologic abnormalities. 38 C.F.R. § 4.71a. Note 2 to the General Rating Formula for Diseases and Injuries of the Spine provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion is zero to 45 degrees, and left and right lateral rotation is zero to 80 degrees. The normal combined ROM of the thoracolumbar spine is 340 degrees. See also Plate V, 38 C.F.R. § 4.71a. Under 38 C.F.R. § 4.71a, DC 5242 applies to degenerative arthritis and degenerative disc disease other than IVDS, and DC 5243 applies to IVDS and directs the rater to assign that diagnostic code only when there is disc herniation with compression of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. Under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, a 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Turning to the evidence of record, the Veteran endorsed occasional neck pain and numbness in May 2022. See May 2023 CAPRI. The Veteran underwent a VA examination for neck conditions in June 2023. The examiner diagnosed the Veteran with cervical spine spondylosis, C5-C6 and C6-C7, with bilateral foraminal encroachment. During the examination, the Veteran endorsed intermittent generalized neck pain and indicated that his symptoms resulted in limitation of motion when aggravated. In this regard, although the Veteran denied flare-ups and functional loss or impairment, to include after repeated use over a period of time, he reported that he used physical therapy, 800mg ibuprofen, and a heating pad to manage his symptoms. However, the Veteran did not state, and the evidence of record does not show, that he received physical therapy during the period on appeal. Active and passive ROM testing revealed forward flexion to 45 degrees, extension to 45 degrees, bilateral lateral flexion to 45 degrees, and bilateral lateral rotation to 80 degrees, and the examiner found no evidence of pain on active or passive ROM testing, weight bearing, non-weight bearing, or on rest/non-movement. No additional loss of motion was found on repetitive use testing. However, the examiner found that pain significantly limited the Veteran's functional ability with repeated use over time and would result in forward flexion limited to 45 degrees, extension limited to 45 degrees, bilateral lateral flexion limited to 45 degrees, and bilateral lateral rotation limited to 60 degrees. Muscle strength, reflex, and sensory testing were normal, and the examiner found no evidence of localized tenderness, guarding, muscle spasms, muscle atrophy, ankylosis, IVDS, radicular pain or any other signs or symptoms due to radiculopathy, or of any other neurologic abnormalities or findings related to his cervical spine. See June 2023 C&P examination. After a review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected cervical spine disability. In this regard, the Board finds that the Veteran's cervical spine disability has not been manifested by forward flexion limited to 30 degrees or less at any time during the period on appeal. Instead, the June 2023 VA examination report shows that the Veteran's cervical spine disability resulted in, at worst, forward flexion limited to 45 degrees, to include following repetitive use over a period of time. See June 2023 C&P examination. Significantly, the above findings reflect additional loss of motion at a time when the Veteran's cervical spine symptoms would have worsened. Further, the record does not show evidence of muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Additionally, the Veteran's cervical spine disability was not manifested by ankylosis or symptoms more nearly approximating functional ankylosis at any time during the period on appeal. Therefore, based on the General Rating Formula for Diseases and Injuries of the Spine, a rating in excess of 10 percent is not warranted for the Veteran's service-connected cervical spine disability at any point during the appeal period. The Board further notes that the Veteran's cervical spine disability has not been manifested by any associated neurological abnormalities such as a bladder or bowel disorder, or IVDS requiring bed rest prescribed by a physician. Accordingly, rating the cervical spine under the rating criteria for IVDS, or assigning a separate rating based on a neurological abnormality is not warranted. Therefore, throughout the appeal period, the evidence of record is persuasively against the assignment of a rating in excess of 10 percent for the Veteran's service-connected cervical spine disability. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5242; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to a rating in excess of 10 percent for a lumbar spine disability is denied. As an initial matter, the Veteran filed a claim for entitlement to a compensable rating for his service-connected lumbar spine disability in May 2023. See May 2023 VA Form 21-526EZ, Fully Developed Claim (Compensation). Thereafter, in an August 2023 rating decision, the RO awarded a 10 percent rating for the Veteran's service-connected lumbar spine disability, effective May 25, 2023, the date VA received the Veteran's increased rating claim. See August 2023 Rating Decision - Narrative. Throughout the period on appeal, the Veteran's service-connected lumbar strain has been rated pursuant to 38 C.F.R. § 4.71a, DC 5242. As noted above, schedular ratings for disabilities of the spine are provided by application of the General Rating Formula for Diseases or Injuries of the Spine or by application of the Formula for Rating IVDS Based on Incapacitating Episodes. 38 C.F.R. § 4.71a. The General Formula specifies that the criteria and ratings apply with or without symptoms such as pain, whether or not it radiates, stiffness, or aching in the area affected by residuals of injury or disease. 38 C.F.R. § 4.71a. Under the General Rating Formula for Diseases or Injuries of the Spine, the diagnostic criteria pertinent to thoracolumbar spine disabilities provides that a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; combined ROM of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; and muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees, combined ROM of the thoracolumbar spine not greater than 120 degrees, 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 warranted for forward flexion of the thoracolumbar spine limited to 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine, and a 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. Under the General Rating Formula, a maximum 100 percent rating is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a. For VA compensation purposes, normal forward flexion of the thoracolumbar spine is 0 to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are 0 to 30 degrees, and left and right lateral rotation are 0 to 30 degrees. Id. at Note 2. The combined ROM refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right lateral rotation, with the normal combined ROM of the thoracolumbar spine being 240 degrees. See also Plate V; 38 C.F.R. § 4.71a. Ankylosis is defined, for VA compensation purposes, as a condition in which all or part of the spine is fixed in flexion or extension. 38 C.F.R. § 4.71a, General Rating Formula for Diseases or Injuries of the Spine, Note (5). Pursuant to 38 C.F.R. § 4.71a, DC 5242 applies to degenerative arthritis and degenerative disc disease other than IVDS. DC 5243 applies to IVDS and directs the rater to assign that diagnostic code only when there is disc herniation with compression of the adjacent nerve root, and to assign DC 5242 for all other disc diagnoses. Under the Formula for Rating IVDS Based on Incapacitating Episodes, a 10 percent rating is assigned where there are incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. An incapacitating episode is defined as 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. 38 C.F.R. § 4.71a; Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note (1). Turning to the evidence of record, a physical examination conducted in connection with a November 2022 primary care note shows that an examiner found no evidence of muscle atrophy, midline pain, or step-offs. In addition, the examiner found that flexion of the Veteran's back was good; however, she did not describe such findings in terms of degrees. See May 2023 CAPRI. The Veteran underwent a lumbosacral spine x-ray for chronic right leg numbness in December 2022. The impression included chronic appearing L4 spondylosis, grade one anterolisthesis movement forward of L4 on S1 related to the above process, mild to severe multilevel degenerative disc disease and mild facet arthropathy, and transitional vertebral anatomy. An x-ray of the Veteran's right hip was also obtained at that time. The impression noted no acute osseous abnormality of the right hip, mild degenerative changes of the acetabulum, and partially visualized sclerosis/degenerative changes of the lower lumbar spine. See May 2023 CAPRI. Notably, the examiner did not indicate that the Veteran's right hip disability was etiologically related to his service-connected lumbar spine disability. A February 2023 community care consultation result note shows that an MRI study of the Veteran's lumbar spine revealed L5 spondylolysis with grade one to two anterolisthesis of L5 on S1 and severe degenerative disc disease at L5-S1, including disc bulging as well as bilateral foraminal disc herniations, right side greater than left, resulting in severe right and moderate severe left neural foraminal stenosis and some mild right lateral recess stenosis. The MRI study also revealed disc bulging and moderate right neural foraminal stenosis at L4-L5. However, the community care provider indicated that the Veteran did not feel that his discomfort was severe enough to warrant surgery and that he planned to continue conservative treatment. The request indicates that no additional services were requested through Community Care. See May 2023 CAPRI. The Veteran underwent a VA examination for back conditions in June 2023. The examiner diagnosed the Veteran with levoscoliosis, spondylosis L5-S1, of the lumbar spine. During the examination, the Veteran endorsed constant low back pain and bilateral hip pain, which was worse on his right side. In addition, he denied flare-ups but reported functional loss or impairment after repeated use over time, to include pain. In this regard, he noted that his symptoms made it difficult for him to complete tasks in a timely manner, sit or stand for long periods of time, perform strenuous activities, lay flat, or perform heavy lifting. He also indicated that he used icy hot, heating pads, and ibuprofen to manage his symptoms and noted that he had been to physical therapy, though he did not state, and the evidence of record does not show, that he received physical therapy during or around the period on appeal. ROM testing revealed forward flexion to 90 degrees, extension to 30 degrees, bilateral lateral flexion to 30 degrees, and bilateral lateral rotation to 30 degrees, and the examiner noted pain on bilateral lateral flexion and bilateral lateral rotation but indicated that such did not result in or cause functional loss. No pain or additional loss of motion was found on passive or repetitive use testing, but the examiner stated that pain significantly limited the Veteran's functional ability with repeated use over time and would result in forward flexion limited to 80 degrees, extension limited to 20 degrees, bilateral lateral flexion limited to 25 degrees, and bilateral lateral rotation limited to 20 degrees. Muscle strength, reflex, and sensory testing were normal. In addition, the examiner found objective evidence of localized tenderness or pain on palpation at the site of the Veteran's scoliosis and muscle spasms in his right lumbar paraspinal muscles but indicated that neither resulted in an abnormal gait or an abnormal spinal contour. The examiner found no evidence of muscle atrophy, ankylosis, IVDS, or of any neurological abnormalities other than radiculopathy. See June 2023 C&P examination. In July 2023, the Veteran continued to report worsening back pain. On physical examination, the examiner found no evidence of cyanosis, clubbing, or focal deficits and noted that the Veteran walked unassisted without foot drop. The assessment included lumbar spondylosis/stenosis with right radiculopathy. See August 2023 CAPRI. After a review of the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's service-connected lumbar spine disability. In this regard, the Board finds that the Veteran's lumbar spine disability has not been manifested by forward flexion limited to 60 degrees or less at any time during the period on appeal. Instead, the June 2023 VA examination report shows that the Veteran's lumbar spine disability resulted in, at worst, forward flexion limited to 80 degrees, to include following repetitive use over a period of time. See June 2023 C&P examination. Significantly, the above findings reflect additional loss of motion at a time when the Veteran's lumbar spine symptoms would have worsened. Further, the record does not show evidence of muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour. Additionally, the Veteran's lumbar spine disability was not manifested by ankylosis or symptoms more nearly approximating functional ankylosis at any point during the appeal period. Therefore, based on the General Rating Formula for Diseases and Injuries of the Spine, a rating in excess of 10 percent is not warranted at any point during the appeal period. The Board further notes that the lumbar spine disability has not been manifested by any associated neurological abnormalities other than radiculopathy of the right lower extremity, such as a bladder or bowel disorder, or IVDS requiring bed rest prescribed by a physician. Accordingly, rating the lumbar spine under the rating criteria for IVDS, or assigning a separate rating based on a neurological abnormality is not warranted. In addition, although the evidence of record, to include the December 2022 x-ray and the June 2023 VA examination report, shows that the Veteran reported right hip pain, the Board concludes that such has not been found to be associated with the Veteran's lumbar spine disability. Notably, neither the examiner who performed the December 2022 x-rays nor the June 2023 VA examiner stated or otherwise suggested that the Veteran's right hip disability was etiologically related to his service-connected lumbar spine disability, and there is no evidence indicating that the Veteran's right hip disability was caused or aggravated by his service-connected lumbar spine disability. Thus, a secondary service connection theory of entitlement has not been raised under Bailey v. Wilkie, 33 Vet. App. 188, 203 (2021) to warrant further development at this time. Therefore, throughout the appeal period, the evidence of record is persuasively against the assignment of a rating in excess of 10 percent for the Veteran's service-connected lumbar spine disability. The claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.71a, DC 5242; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 3. From May 25, 2022 to May 25, 2023, entitlement to a separate 10 percent rating, but no higher, for radiculopathy of the right lower sciatic nerve is granted subject to controlling regulations applicable to the payment of monetary benefits. 4. From May 25, 2023, entitlement to a rating in excess of 10 percent for radiculopathy of the right lower sciatic nerve is denied. As an initial matter, the Veteran filed a claim for entitlement to an increased rating for his service-connected lumbar spine disability and noted that such was manifested by lumbar radiculopathy and sciatica of the right lower extremity in May 2023. See May 2023 VA Form 21-526EZ, Fully Developed Claim (Compensation). Thereafter, in an August 2023 rating decision, the RO granted service connection for radiculopathy of the right lower sciatic nerve and assigned a 10 percent rating, effective May 25, 2023, the date VA received the Veteran's claim. See August 2023 Rating Decision - Narrative. The Veteran's radiculopathy of the right lower sciatic nerve has been rated pursuant to 38 C.F.R. § 4.124a, DC 8520, which pertains to symptoms affecting the sciatic nerve group. Under DC 8520, disability ratings of 10, 20, 40, and 60 percent are warranted, respectively, for mild, moderate, moderately severe, and severe incomplete paralysis of the sciatic nerve. A 60 percent rating also requires marked muscular atrophy. Under DC 8520, a maximum disability rating of 80 percent is warranted for complete paralysis of the sciatic nerve: the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or lost. Id. In rating diseases of the peripheral nerves, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured 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 should be for the mild, or at most, the moderate degree. Id. Words such as "severe," "moderate," and "mild" are not defined in the Rating Schedule. See Spellers v. Wilkie, 30 Vet. App. 211, 219 (2018) (noting that "DC 8520 does not define 'mild,' 'moderate,' 'moderately severe,' or 'severe,' or generally associate those terms with specific symptoms."). One possible source for such definitions would be the dictionary. Merriam-Webster's Dictionary (merriam-webster.com/dictionary, accessed April 2025), defines "mild," as relevant to a physical condition, as "not severe" or temperate; with "temperate" being defined as "keeping or held within limits" and "not extreme or excessive." "Moderate" is defined as "tending toward the mean or average amount," "not violent, severe, or intense," and "limited in scope or effect." Id. "Severe" is defined as "very painful or harmful" or "of a great degree." Id. The term "severe" is used throughout the rating schedule, including DCs 8520 and 8526, to indicate a very great degree of the specific listed disability, in order to differentiate between lesser (or sometimes greater) cases of that same disability within the specific diagnostic code. Within the context of DCs 8520 and 8526, which establishes a successive, tiered rating structure, it represents the highest or most extreme level of incomplete paralysis of the impacted nerve. The use of such terminology by VA examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision that is "equitable and just." 38 C.F.R. §§ 4.2, 4.6. Turning to the evidence of record, the Veteran sought treatment for right leg numbness and explained that he had been diagnosed with spondylosis on his L5 vertebrae, which pinched his sciatic nerve, in September 2001. The assessment included right leg radiculopathy. See November 2011 STR - Medical. A May 2022 primary care note shows that the Veteran reported that he had been experiencing occasional numbness in his leg for 15 years and indicated that his symptoms were caused by sciatica. Thereafter, a November 2022 primary care note shows that the Veteran reported that he had been experiencing right leg numbness since he was discharged from active duty but explained that his symptoms had worsened over the preceding six months. On physical examination, the examiner found no evidence of focal deficits and noted that the Veteran walked unassisted without foot drop. In addition, muscle strength was normal in his bilateral hips and legs. See May 2023 CAPRI. A February 2023 primary care telephone encounter note shows that the Veteran continued to report weakness and numbness that radiated down his right leg. The examiner noted that the Veteran chose not to take muscle relaxers or gabapentin but rather only took ibuprofen to manage his symptoms. See May 2023 CAPRI. The Veteran underwent a VA examination for back conditions in June 2023. The examiner diagnosed the Veteran with right lower extremity radiculopathy. During the examination, the Veteran reported that he experienced right lower extremity radiculopathy and indicated that he underwent physical therapy and had used icy hot, heating pads, and ibuprofen to manage his symptoms. Sensory testing conducted in connection with the examination was normal, but straight leg raising testing was positive on his right side. In this regard, although the Veteran denied constant pain, intermittent pain, and paresthesias and/or dysesthesias, he endorsed mild numbness in his right lower extremity. The examiner diagnosed the Veteran with radiculopathy with involvement of the L4/L5/S1/S2/S3 sciatic nerve root. See June 2023 C&P examination. In July 2023, the Veteran continued to report worsening back pain. On physical examination, the examiner found no evidence of cyanosis, clubbing, or focal deficits and noted that the Veteran walked unassisted without foot drop. The assessment included lumbar spondylosis/stenosis with right radiculopathy. See August 2023 CAPRI. Following a review of the evidence of record, the Board finds that the Veteran's service-connected radiculopathy of the right lower extremity has been manifested by mild incomplete paralysis throughout the periods on appeal. Initially, the Board observes that the June 2023 VA examination report shows the Veteran's radiculopathy affects his sciatic nerve group. Accordingly, the Board finds that his radiculopathy has been properly rated based on sciatic involvement under DC 8520. The Board further observes that as early as September 2001, the Veteran was diagnosed with right leg radiculopathy. See November 2011 STR - Medical. Additionally, during the one year lookback period, a May 2022 primary care note shows that the Veteran reported occasional numbness in his leg, and a subsequent November 2022 primary care note shows that the Veteran reported that his radiculopathy symptoms, to include right leg numbness, had worsened over the preceding six months. Intermittent radiculopathy of the right lower extremity is additionally shown throughout the appeal period, and the Veteran has consistently reported symptoms of pain and numbness. See May 2023 CAPRI; June 2023 C&P examination. Accordingly, the Board finds that a 10 percent rating is warranted for the Veteran's service-connected radiculopathy of the right lower extremity throughout the entire appeal period. The Board additionally finds that an earlier effective date of March 25, 2022, is warranted for the assignment of a 10 percent rating for radiculopathy of the right lower extremity. Turning to the assigned rating, the Board finds that the Veteran's radiculopathy of the right lower sciatic nerve has consistently been assessed as mild in severity, and as such, finds that a rating in excess of 10 percent is not warranted at any point during the period on appeal. In this regard, the Board finds it significant that the June 2023 VA examiner noted that the Veteran endorsed mild numbness in his right lower extremity and diagnosed him with radiculopathy with involvement of the L4/L5/S1/S2/S3 sciatic nerve root. See June 2023 C&P examination. The Board has considered whether a higher 20 percent rating is warranted. However, the Veteran has not argued, and the evidence does not suggest that his radiculopathy of the right lower extremity was manifested by moderate or severe incomplete paralysis or complete paralysis at any point during the period on appeal. To the contrary, the Veteran endorsed exclusively sensory symptoms, to include pain and numbness, in his right lower extremity during the relevant period. Thus, the Board finds that a rating in excess of 10 percent for the Veteran's service-connected radiculopathy of the right lower extremity is not warranted at any time during the period on appeal. In sum, effective May 25, 2022, and throughout the appeal period, a 10 percent rating is warranted for the Veteran's radiculopathy of the right lower extremity. Additionally, throughout the appeal period, the probative evidence of record is persuasively against assignment of a rating in in excess of 10 percent for the Veteran's service-connected radiculopathy of the right lower extremity affecting the sciatic nerve group. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.7, 4.124a; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 5. Entitlement to an initial rating in excess of 10 percent for chronic sinusitis is remanded. The Board finds that the AOJ committed a pre-decisional duty to assist error by failing to obtain VA community care and private medical records identified by the Veteran prior to the December 2023 rating decision. Specifically, an April 2022 community care consultation result note shows that the Veteran underwent a new patient consultation for sinusitis with an otolaryngologist at the University of North Carolina Greensboro in March 2022. The note indicates that the Veteran's diagnoses included non-seasonal rhinitis, chronic sinusitis, and a deviated nasal septum. In addition, a November 2022 primary care note shows that the Veteran was under the care of an otolaryngologist at the University of North Carolina. See May 2023 CAPRI. However, no medical records from the Veteran's community care providers, to include his otolaryngologist at the University of North Carolina, have been associated with the claims file. Thus, the Board finds that a remand is required to obtain these records. 6. Entitlement to a compensable rating for bilateral hearing loss is remanded. A February 2023 audiology note shows that the Veteran underwent an audiological evaluation with a Care in the Community (CITC) provider, during which puretone thresholds were recorded. In this regard, the examiner indicated that a copy of the audiogram had been reviewed and sent for scanning; however, the records do not include a copy of the puretone testing results. Accordingly, the Board finds that a remand is required to cure a duty to assist error with regard to obtaining VA medical records identified prior to the August 2023 rating decision. The matters are REMANDED for the following action: 1. Obtain a copy of the puretone threshold testing results referenced in the February 2023 audiology note. If a copy of the results is not available, such should be documented in the claims file 2. Ask the Veteran to complete an updated VA Form 21-4142 for records from his otolaryngologist at the University of North Carolina Greensboro dated from March 2022, to include all records related to his service-connected chronic sinusitis. A copy of any request(s) sent to the Veteran, and any reply, to include any records obtained in response to this request, should be associated with the claims file. If these records are not obtained, such should be noted in the claims file. S. HENEKS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Justis, 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.