Citation Nr: A25041205 Decision Date: 05/06/25 Archive Date: 05/06/25 DOCKET NO. 210818-178915 DATE: May 6, 2025 ORDER Entitlement to an increased rating greater than 20 percent for evaluation of lumbar strain with intervertebral disc syndrome, degenerative arthritis, and degenerative disc disease is denied. Entitlement to an increased rating greater than 20 percent for left lower extremity radiculopathy (femoral nerve) is denied. Entitlement to an increased rating greater than 20 percent for left lower extremity radiculopathy (sciatic nerve) is granted. Entitlement to an effective date earlier than July 10, 2020, for a 20 percent rating for left lower extremity radiculopathy (femoral nerve) is denied. Entitlement to an effective date earlier than July 10, 2020, for a 20 percent rating for left lower extremity radiculopathy (sciatic nerve) is denied. FINDINGS OF FACT 1. The Veteran's lumbar spine disability is manifest by forward flexion no worse than 40 degrees and did not require bedrest prescribed by a physician. 2. The Veteran's left lower extremity radiculopathy (femoral nerve) is manifest by no more than moderate incomplete paralysis. 3. The Veteran's left lower extremity radiculopathy (sciatic nerve) is manifest by no more than moderately severe incomplete paralysis. 4. On July 10, 2020, the Veteran filed his claim for an increased rating for left lower extremity radiculopathy (sciatic nerve). 5. On July 10, 2020, the Veteran filed his claim for an increased rating for left lower extremity radiculopathy (femoral nerve). CONCLUSIONS OF LAW 1. The criteria for a rating greater than 20 percent for a lumbar spine disability have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243. 2. The criteria for a disability rating greater than 20 percent for left lower extremity radiculopathy (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8526. 3. The criteria for a disability rating greater than 20 percent for left lower extremity radiculopathy (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. The criteria for an effective date earlier than July 10, 2020, for the award of a 20 percent rating for left lower extremity radiculopathy (femoral nerve) have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2018); 38 C.F.R. §§ 3.340, 3.341, 4.16. 5. The criteria for an effective date earlier than July 10, 2020, for the award of a 20 percent rating for left lower extremity radiculopathy (sciatic nerve) have not been met. 38 U.S.C. §§ 1155, 5107, 5110 (2018); 38 C.F.R. §§ 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 May 2001 to October 2001. In August 2010, the Veteran filed his initial claim for a low back condition which he claimed as proximately due to his service-connected right ankle condition. In September 2010, a determination on service connection was deferred pending a new VA examination. In December 2010, a Rating Decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) granted service connection effective August 11, 2010, and awarded a 10 percent rating. In March 2011, the Veteran filed a supplemental claim seeking an increased rating for his lower back disability. This same supplemental claim also noted that the Veteran had pinched nerves. In August 2011, an RO rating decision continued the 10 percent rating as the Veteran's forward flexion was greater than 60 degrees but not greater than 85 degrees. In September 2011, the Veteran filed a Notice of Disagreement (NOD) with the August 2011 rating decision. In December 2011, the Veteran submitted medical documentation that he had undergone back surgery and indicated he was seeking a 100 percent rating for a period of convalescence. A January 2012, rating decision granted the 100 percent convalescence period from November 30, 2011, to January 31, 2012, with the Veteran's back rating returning to 10 percent effective February 1, 2012. Following receipt of additional medical records, a February 2012, RO rating decision extended the Veteran's 100 percent convalescence period an additional month and increased the lumbar spine rating to 20 percent effective March 1, 2012. In March 2012, a Statement of the Case (SOC) denied a further increased rating for the lumbar spine. In May 2012, the RO found that additional evidence had been received but that it was not enough to justify a rating greater than 20 percent for the lumbar spine. In June 2013, the RO granted service connection and a 10 percent rating for left lower extremity radiculopathy (sciatic nerve) based upon the findings of a June 2013, VA examination. No specific claim had been filed. No appeals of the May 2012 increased rating denial or of the June 2013 service connection grant for the left lower extremity radiculopathy were filed and no new and material evidence was received within a year, so these decisions became final. In July 2020, the Veteran filed an increased rating claim seeking higher ratings for the lumbar strain and the left lower extremity radiculopathy. In September 2020, the rating decision on appeal continued the Veteran's lumbar spine at 20 percent, increased the left lower extremity radiculopathy (sciatic nerve) to 20 percent, and additionally granted service connection and a 20 percent rating for left lower extremity radiculopathy (femoral nerve). In August 2021, the Veteran appealed that decision to the Board of Veterans' Appeals (Board) via a VA Form 10182 (Decision Review Request: Board Appeal (Notice of Disagreement)). The Veteran requested the Evidence Submission docket. Along with the appeal, the Veteran's representative stated that they had not yet received the Veteran's file and were seeking a 90-day window to submit evidence beginning upon receipt of the Veteran's file. The Veteran's complete file was sent to the representative on October 5, 2021. The representative has since withdrawn representation of this Veteran. As an appeal in which the appellant requested, on the Notice of Disagreement, an opportunity to submit additional evidence without a Board hearing, the Board's decision is based on a review of the evidence of record at the time of the decision on the issues on appeal and evidence submitted by the appellant or his representative with the Notice of Disagreement or within 90 days following receipt of the Notice of Disagreement. 38 C.F.R. § 20.303. Evidence has been submitted during a window of time when the Board may not consider it in reaching this decision. This evidence includes, but is not limited to, additional medical evidence. If the Veteran wishes for this evidence to be considered, he may do so by filing a supplemental claim. Instructions for filing a supplemental claim are included with this decision. INCREASED RATING 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. If two evaluations are potentially applicable, the higher evaluation 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. VA is responsible for determining whether the evidence supports the claim or is evenly balanced, with a claimant prevailing in either event. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The claimant is entitled to the benefit of the doubt when there is an "approximate" (meaning nearly equal) balance of positive and negative evidence regarding any material determination. See Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021). 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. Hart v. Mansfield, 21 Vet. App. 505(2007). The Veteran's disability is viewed in relation to its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Entitlement to an increased rating greater than 20 percent for evaluation of lumbar strain. The Veteran's lumbar strain is rated under Diagnostic Code 5243 under the general rating formular for diseases and injuries of the spine. It is currently rated at 20 percent. The Veteran contends that his lumbar spine has worsened, and an increased rating is warranted. Diagnostic Codes 5235 through 5243 pertain to various disease and injuries of the spine. A lumbar spine with intervertebral disc syndrome (IVDS) (Diagnostic Code 5243), is rated under either the General Rating Formula for Diseases and Injuries of the Spine or the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under 38 C.F.R. § 4.25. 38 C.F.R. § 4.71a at Note (6). As the record shows that the Veteran has experienced at most one week of incapacitating episodes, which would result in a 10 percent rating, the Board concludes that the highest rating for his condition would not be under the Formula for IVDS. To receive a rating greater than 20 percent based upon IVDS, the Veteran would need to have incapacitating episodes having a total duration of at least four weeks but less than six weeks during the past 12 months. Under the General Rating Formula of 38 C.F.R. § 4.71a, a 20 percent rating is assigned when there is forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; a combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire a spine. In Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that the final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." However, the spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. In August 2010, the Veteran underwent a VA examination for his back disability. The examiner diagnosed the Veteran with what was noted simply as a low back condition, no specifics were provided. The Veteran's activity was noted as limited due to chronic pain. The Veteran recounted his ankle injury in service which he believed ultimately led to him injuring his back. The Veteran was referred to physical therapy in August 2010. As no range of motion (ROM) measurements were provided in this examination, a new VA examination was ordered before an opinion on the Veteran's disability could be provided. In October 2010, the Veteran noted chronic difficulties with his back, and it was indicated the Veteran was using a wheelchair. In October 2010, a new VA examination was completed with ROM measurements provided. Radiographic imaging was completed which was negative. ROM was measured as forward flexion to 70 degrees, extension from 0-30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees for a total ROM of 220 degrees. Pain was noted on examination. No other ROM findings were included with this examination. In May 2011, the Veteran reported suffering a fall while bending to pick up his infant daughter. In July 2011, a new VA examination was completed. The Veteran was diagnosed with a low back condition to include disc compression, herniation, and pinched nerves. The examiner reviewed a January 2011 MRI which showed a disc protrusion with compression of the left S1 nerve root. The Veteran reported suffering from weekly flare-ups that he described as severe. He also reported numbness/tingling in the left leg. ROM measurements saw forward flexion to 70 degrees, extension from 0-30 degrees, left lateral flexion to 30 degrees, right lateral flexion to 25 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 28 degrees for a total ROM of 213 degrees. Following repetitive use testing, ROM was reduced in the right lateral flexion to 18 degrees for a loss of 7 degrees and a new total ROM of 206 degrees. In October 2011, a lumbar MRI was completed. This found a very minimal compression fracture of the superior end plate of L4, but the major finding noted was a degenerated disk with herniation of the left side occluding the neural foramen on the left side. The diagnosis provided was a lumbar disk herniation left L5-S1. On November 30, 2011, the Veteran underwent a left L5-S1 hemilaminectomy and microdiskectomy. In February 2012, the Veteran underwent a VA examination for his back. The Veteran was diagnosed with IVDS with radiculopathy. The Veteran complained that the feeling in his foot had not improved since his surgery. The Veteran denied flare-ups at this examination. ROM measurements saw forward flexion to 50 degrees, extension from 20 degrees, left lateral flexion to 30 degrees, right lateral flexion to 30 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 20 degrees for a total ROM of 190 degrees. There was no change in ROM following repetitive use testing. The Veteran was noted as using a cane for ambulation. This examination contains a contradictory statement as the examiner denied the Veteran had any radicular pain or any other signs or symptoms due to radiculopathy but then when listing the Veteran's radiculopathy symptoms indicated constant pain which may be excruciating at times. In August 2012, an x-ray of the lumbar spine was negative. In June 2013, a new VA examination of the back was completed. The examiner diagnosed the Veteran with a lumbar strain with IVDS and radiculopathy. The Veteran explained that he had been throwing his back out more often than at the time of his last VA examination. The Veteran reported flare-ups. ROM measurements saw forward flexion to 50 degrees, extension to 25 degrees, left lateral flexion to 30 degrees, right lateral flexion to 25 degrees, left lateral rotation to 30 degrees, and right lateral rotation to 30 degrees for a total ROM of 190 degrees. There was no change in ROM following repetitive use testing. The examiner found no evidence of muscle atrophy. The examiner found the Veteran's IVDS had resulted in less than one week of incapacitating episodes over the last 12 months. In May 2014, x-rays of the lumbar spine showed no evidence of significant degenerative disease or acute osseous abnormality. In August 2014, the Veteran was seen for continued lumbar pain. He received a shot of Toradol and a steroid which helped but that the pain continued. In July 2015, the Veteran complained of tenderness in the lower thoracic area. There was no lumbar tenderness. The Veteran had been in an automobile accident days prior. In February 2020, the Veteran underwent a second back surgery. In September 2020, the Veteran received an additional VA examination focused on the back. The examiner diagnosed the Veteran with a lumbosacral strain, degenerative arthritis of the spine, and IVDS. The Veteran reported that the first surgery seemed to work initially but that it later failed, and he had to go in for a second surgery to relieve a pinched nerve. The Veteran reported that post-surgery the feeling in his left leg did not return and he says he was informed that it may never return. The Veteran reported throbbing and sharp pains in his back with shooting sharp pains that travel down his legs. He reported taking ibuprofen as needed. The Veteran reported flare-ups during which he can barely get around. ROM measurements saw forward flexion to 60 degrees, extension to 25 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 25 degrees, and right lateral rotation to 25 degrees for a total ROM of 175 degrees. Pain was noted on all measurements. Observed repetitive use ROM was measured as forward flexion to 50 degrees, extension to 20 degrees, left lateral flexion to 15 degrees, right lateral flexion to 15 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees for a total ROM of 140 degrees. Repetitive use over time and flare-up ROM were the same as observed repetitive use. The examiner noted the Veteran was suffering from muscle spasms and guarding resulting in an abnormal gait or spine contour. The examiner noted that during the examination the Veteran was guarded as if he was expecting pain. There was some reduction in muscle strength testing but no muscle atrophy. There was a positive straight leg raising test on the left leg. There was no evidence of ankylosis. The Veteran did have IVDS, but the examiner found that bedrest prescribed by a physician was not required. The Veteran regularly used a brace. The radiculopathy will be covered in later sections of this opinion. The Veteran appealed the September 2020 RO rating decision to the Board and chose the evidence submission option. Therefore, new evidence is able to be reviewed by the Board. In September 2021, a VA back examination was completed. The examiner diagnosed the Veteran with a lumbar strain with IVDS, degenerative arthritis, and degenerative disc disease at L4-L5 status post left L5-S1 hemilaminectomy and microdiskectomy. The Veteran's history included two back surgeries but continued back pain and worsening ROM. The Veteran's current symptoms were back pain, weakness, numbness in the left leg, and limited ROM. The Veteran was taking ibuprofen as needed. The Veteran reported daily flare-ups which resulted in both increased pain and increased numbness down the Veteran's left leg. The flare-ups last most of the day and were described as aching, throbbing, and burning. These could be precipitated by walking or standing. The Veteran alleviated these by laying down. He described them as severe. The examiner noted that the Veteran was unable to tie his own shoes or wash his own feet due to his inability to bend down. The Veteran was also unable to stand or walk for long periods of time. ROM measurements saw forward flexion to 70 degrees, extension to 0 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 15 degrees, and right lateral rotation to 15 degrees for a total ROM of 140 degrees. Pain was noted on forward flexion and extension. Passive ROM and observed repetitive use ROM were the same. Repetitive use over time and flare-up ROM was measured at forward flexion to 60 degrees, extension to 0 degrees, left lateral flexion to 10 degrees, right lateral flexion to 10 degrees, left lateral rotation to 10 degrees, and right lateral rotation to 10 degrees for a total ROM of 100 degrees. There was some loss in muscle strength, but no evidence of muscle atrophy. The examiner indicated that the Veteran had IVDS but that there were no evidence or prescribed bedrest over the past 12 months. The Veteran was not using any assistive devices. In November 2021, one more VA examination was completed. The Veteran complained of daily back pain managed by ibuprofen and Tylenol. The Veteran noted undergoing physical therapy and injections prior to the two surgeries. The Veteran described suffering from flare-ups that were moderate in nature and were precipitated by overuse. These were said to occur daily and could last hours. The Veteran was reported to have limited ability to walk and stand. There was no evidence of guarding or muscle spasms, no loss of muscle strength, and no muscle atrophy. There was no ankylosis or IVDS. The Veteran was found to occasionally use a cane. ROM measurements saw forward flexion to 40 degrees, extension to 20 degrees, left lateral flexion to 20 degrees, right lateral flexion to 20 degrees, left lateral rotation to 20 degrees, and right lateral rotation to 20 degrees for a total ROM of 140 degrees. Pain was noted on all movements. ROM testing was the same for passive, observed repetitive use, repetitive use over time, and flare-ups. As noted earlier, for the Veteran to receive a rating greater than 20 percent based on the IVDS criteria, the Veteran would need to show incapacitating episodes of at least four weeks but less than six weeks over the past 12 months. The most prescribed bedrest ever noted was one week by the June 2013 examiner. This is not enough to justify a higher rating. Therefore, the Veteran will be rated under the general rating formula. To obtain a 40 percent rating for limitation of forward flexion of the thoracolumbar spine to 30 degrees or less; or favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted if there is unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is warranted if there is unfavorable ankylosis of the entire a spine. None of the examiners and none of the available medical records show that the Veteran is suffering from any type of ankylosis of the thoracolumbar spine. Therefore, a rating based on this would not be warranted. Accordingly, an increased rating for the thoracolumbar spine would need to come as a result of limitation of forward flexion. A review of all of the ROM measurements, including those noted as during observed repetitive use, flare ups, and repetitive use over time, shows that the greatest limitation of forward flexion was 40 degrees from the November 2021 VA examination. No other VA examination or any other of the Veteran's numerous medical records contains any ROM testing showing the forward flexion below 40 degrees. As a 30 degree or less measurement is necessary for an increased rating the Board finds that an increase is not warranted at this time. Therefore, the claim is denied. The Board finds that VA has complied with Sharp with respect to the Veteran's lumbar spine disability. Moreover, the Board has considered the Veteran's lay reports regarding his flare-ups, as well as symptoms such as pain, difficulty lifting and bending, difficulty ambulating, difficulty tying his shoes, and difficulty with prolonged standing and sitting. The most probative evidence reflects that the Veteran's functional impairments more nearly approximate functional loss to a degree that warrants a 20 percent rating, and no higher. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's forward flexion has not been limited to 30 degrees or less. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. Entitlement to an increased rating greater than 20 percent for left lower extremity radiculopathy (femoral nerve). The Veteran's femoral nerve radiculopathy is currently rated at 20 percent, but the Veteran is seeking an increased rating. Paralysis of the femoral nerve is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under this code, a 20 percent disability rating is warranted for moderate incomplete paralysis. A 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete; paralysis of quadriceps extensor muscles. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined by VA regulations. Regulations provide that the ratings for peripheral neurological disorders are to be assigned based on 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 of 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. See 38 C.F.R. § 4.124a. "Mild," as an adjective, is defined as "moderate in action or effect." Mild, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/slight, Definition 2a(1), (last accessed Jan. 3, 2025). "Moderate," as an adjective, is defined as "not violent, severe, or intense"; "limited in scope or effect." Moderate, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/moderate, Definitions 3 and 5 (last accessed Jan. 3, 2025). "Severe," as an adjective, is defined as "causing discomfort or hardship"; "very painful or harmful"; "of a great degree." Severe, Merriam-Webster Dictionary Online, https://www.merriam-webster.com/dictionary/severe, Definitions 6a, 6b, and 8 (last accessed Jan. 3, 2025). Using the above definitions as guidance, the Board must arrive at an equitable and just decision based on an evaluation of all relevant evidence. 38 C.F.R. §§ 4.2, 4.6. Additionally, VA's Adjudication Procedures Manual (M21-1) provides general guidelines for each level of incomplete paralysis for the upper and peripheral nerves. See M21-1, Part V, Subpart iii, Ch.12, A.2.c. For mild degrees of incomplete paralysis, the M21-1 instructs to look for a disability "limited to sensory deficits that are lower grade, less persistent, or affecting a small area" and "a very minimal reflex or motor abnormality potentially could also be consistent with mild incomplete paralysis." For moderate degrees, the M21-1 states that it "is the maximum evaluation reserved for the most significant cases of sensory-only impairment" and symptoms are described as "significantly disabling." Additionally, combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes graded as medically moderate in degree. Meanwhile, moderately severe incomplete paralysis contemplates motor and/or reflex impairment (for example, atrophy, weakness, or diminished reflexes) at a grade reflecting that a high level of limitation or disability is expected. For severe, incomplete paralysis, expect motor and/or reflex impairment (for example, atrophy or weakness), trophic changes, and marked muscular atrophy for the sciatic nerve. Although the Board is not bound by the M21-1, those standards are "'relevant guidance promulgated for the purpose of facilitating the efficient and proper resolution of claims,' which the Board must consider and address as part of its duty to provide a reasoned explanation for its decision." Chavis v. McDonough, 34 Vet. App. 1, 18 (2021). At the July 2011 VA examination, the Veteran noted a numbness/tingling in his left leg, but no further details or information were provided by either the Veteran or the examiner. In February 2012, the Veteran underwent a VA examination for his back. The Veteran was diagnosed with IVDS with radiculopathy. The Veteran complained that the feeling in his foot had not improved since his surgery. The Veteran denied flare-ups at this examination. This examination contains a contradictory statement as the examiner denied the Veteran had any radicular pain or any other signs or symptoms due to radiculopathy but then when listing the Veteran's radiculopathy symptoms indicated constant pain which may be excruciating at times. No specific nerve was indicated, and no level of severity was discussed by the examiner. In June 2013, a VA examination of the back was completed. The examiner diagnosed the Veteran with a lumbar strain with IVDS and radiculopathy. The Veteran reported flare-ups. The examiner noted the Veteran's radiculopathy symptoms as no constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and no numbness. The examiner found there were no additional signs or symptoms of radiculopathy. This impacted the sciatic nerve and was found to be mild overall. There was no indication of the femoral nerve being impacted. In September 2020, a VA examination on the back discussed the Veteran's radiculopathy. The examiner found that the Veteran's radiculopathy included both the femoral and sciatic nerves. Overall, it was noted as moderate in nature. Symptoms included mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. There were no other signs or symptoms of radiculopathy. After the appeal, a September 2021 VA examination focused on the back was completed which also discussed radiculopathy. The examiner indicated that only the sciatic nerve was impacted. There was no finding of femoral nerve radiculopathy. In September 2021, a VA examination focused specifically on radiculopathy was completed. The examiner diagnosed the Veteran with left lower extremity radiculopathy impacting both the sciatic and femoral nerves. The Veteran complained of no improvement in his symptoms following the 2020 back surgery. There was no finding of muscle atrophy but there was some loss in muscle strength noted. The examiner showed muscle strength at 4/5 on knee extension, ankle plantar flexion, and ankle dorsiflexion. There were hypoactive reflexes found on the left knee and ankle as well as decreased sensory examination for upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. There were no trophic changes. The symptoms included moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. For the femoral nerve, the Veteran was suffering from moderate incomplete paralysis. The Board finds that the Veteran's femoral nerve more closely approximates moderate incomplete paralysis and does not justify a rating greater than 20 percent. The Board notes that the September 2021 examination does find a slight decrease in muscle strength and sensory examination for the left lower extremity. However, the muscle strength remained 4/5 while the sensory examination was reduced by one point out of a possible two points. Additionally, there were no trophic changes. Regarding the pain caused as a result, the Veteran has not had worse than moderate pain whether that be constant or intermittent as noted by the September 2021 examination. The Board finds that the loss in muscle strength, sensory testing results, and pain are all more moderate in nature. These symptoms do not seem harmful to a great degree as the term severe describes. Therefore, a rating greater than 20 percent based on severe symptoms or severe incomplete paralysis is not warranted and the claim is denied. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's femoral nerve radiculopathy is moderate in nature. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. Entitlement to an increased rating greater than 20 percent for left lower extremity radiculopathy (sciatic nerve). The Veteran's sciatic nerve radiculopathy is currently rated at 20 percent and the Veteran is seeking an increased rating. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. 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. Regulations provide that ratings for peripheral neurological disorders are to be 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 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 assigned 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). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. At the July 2011 VA examination, the Veteran noted a numbness/tingling in his left leg, but no further details or information were provided by either the Veteran or the examiner. In February 2012, the Veteran underwent a VA examination for his back. The Veteran was diagnosed with IVDS with radiculopathy. The Veteran complained that the feeling in his foot had not improved since his surgery. The Veteran denied flare-ups at this examination. This examination contains a contradictory statement as the examiner denied the Veteran had any radicular pain or any other signs or symptoms due to radiculopathy but then when listing the Veteran's radiculopathy symptoms indicated constant pain which may be excruciating at times. No specific nerve was indicated, and no level of severity was discussed by the examiner. In June 2013, a VA examination of the back was completed. The examiner diagnosed the Veteran with a lumbar strain with IVDS and radiculopathy. The Veteran reported flare-ups. The examiner noted the Veteran's radiculopathy symptoms as no constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and no numbness. The examiner found there were no additional signs or symptoms of radiculopathy. This impacted the sciatic nerve and was found to be mild overall. In September 2020, a VA examination on the back discussed the Veteran's radiculopathy. The examiner found that the Veteran's radiculopathy included both the femoral and sciatic nerves. Overall, it was noted as moderate in nature. Symptoms included mild constant pain, moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. There were no other signs or symptoms of radiculopathy. After the appeal, a September 2021 VA examination focused on the back was completed which also discussed radiculopathy. The examiner indicated that only the sciatic nerve was impacted. There was no muscle atrophy, but there was a loss in muscle strength with the left side measuring 4/5. A sensory examination was completed on the left side which showed decreased results in all four tests, upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. The left leg also had a positive straight leg raising test. The Veteran was noted as suffering from moderate constant pain, no intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. There were no other signs or symptoms. In September 2021, a VA examination focused specifically on radiculopathy was completed. The examiner diagnosed the Veteran with left lower extremity radiculopathy impacting both the sciatic and femoral nerves. The Veteran complained of no improvement in his symptoms following the 2020 back surgery. There was no finding of muscle atrophy but there was some loss in muscle strength noted. The examiner showed muscle strength at 4/5 on knee extension, ankle plantar flexion, and ankle dorsiflexion. There were hypoactive reflexes found on the left knee and ankle as well as decreased sensory examination for upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. There were no trophic changes. The symptoms included moderate constant pain, moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. For the sciatic nerve, the Veteran was suffering from moderately severe incomplete paralysis. The Board finds that the September 2021 examination justifies an increased rating of 40 percent based on the examiner's conclusion that the Veteran was suffering from moderately severe incomplete paralysis. The examiner completed a full examination of the Veteran including muscle strength and sensory examination testing. The Board finds no reason to doubt the findings of the VA examiner. A 60 percent rating is not warranted because there is no evidence that the sciatic is severe resulting in muscle atrophy. Even the September 2021 examination, the examination most favorable to the Veteran, found no indication that the symptoms were severe in nature or that the Veteran was suffering from any type of muscular atrophy. There was a slight reduction in muscle strength, but there was no evidence of muscle atrophy anywhere in any of the Veteran's examinations or his medical treatment records. Therefore, an increased rating of 40 percent, but no higher, is warranted for the Veteran's left lower extremity radiculopathy involving the sciatic nerve. EARLIER EFFECTIVE DATE Generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. An exception to the general rule applies where evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of the claim for increased compensation. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). Entitlement to an effective date earlier than July 10, 2020, for a 20 percent rating for left lower extremity radiculopathy (femoral nerve). The Veteran's August 2021, appeal to the Board indicated he was seeking an earlier effective date prior to July 10, 2020, for the 20 percent rating for his left lower extremity radiculopathy (femoral nerve). The procedural history of the Veteran's femoral nerve claim is laid out above but will be repeated here for clarity. On July 10, 2020, the Veteran's increased rating claim for his already service connected left lower extremity radiculopathy (sciatic nerve) was received. The Veteran did not officially file a claim for left lower extremity radiculopathy (femoral nerve) but instead was granted service connection in the September 2020, RO rating decision on appeal based on the findings of the September 1, 2020, VA examination. This VA examination found the Veteran's femoral nerve was impacted along with the sciatic nerve. There was an intent to file a claim received on February 15, 2019, but this was not applicable to either left lower extremity radiculopathy claim as the next claim filed was in November 2019 regarding a 100 percent rating for the Veteran's right ankle. For increased rating claims, 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) potentially allow for an increase in disability compensation of up to one year prior to the date of claim, if it is factually ascertainable based on all evidence of record that an increase in disability had occurred. As such, the relevant period for this increased rating claim includes the one-year look-back period prior to the July 10, 2019, increased rating claim. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (referencing the "'one-year look-back period'"). The Veteran has put forth no theory of an earlier effective date and has submitted no evidence as to why he should be in receipt of an earlier effective date. Nor has the Veteran put forth an alternative effective date that he is seeking for his current 20 percent rating. The available evidence shows that the Veteran did not file a claim for left lower extremity radiculopathy (femoral nerve) at all. The earliest possible reading of a claim is the July 10, 2020, date for which the Veteran was seeking an increased rating for his already service connected left lower extremity radiculopathy (sciatic nerve). There is no indication in the medical record that the Veteran's femoral nerve was impacted by the radiculopathy until the September 1, 2020, VA examination. A review of the medical evidence fails to show factually ascertainable notice that the Veteran's femoral nerve was impacted, therefore, the one year look back is not applicable in this case. As there is no evidence of the Veteran's left lower extremity radiculopathy (femoral nerve) impacting the Veteran until September 1, 2020, the July 10, 2020, filing of an increased rating claim for his left lower extremity radiculopathy (sciatic nerve) is the earliest possible effective date for the femoral nerve. Therefore, the claim for an earlier effective date is denied. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's femoral nerve radiculopathy was provided the earliest possible effective date. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. Entitlement to an effective date earlier than July 10, 2020, for a 20 percent rating for left lower extremity radiculopathy (sciatic nerve). The Veteran's August 2021, appeal to the Board indicated he was seeking an earlier effective date prior to July 10, 2020, for his left lower extremity radiculopathy (sciatic nerve). The procedural history of the Veteran's sciatic nerve claim is laid out above but will be repeated here for clarity. The Veteran did not file a claim for left lower extremity radiculopathy (sciatic nerve) but instead was granted service connection and a 10 percent rating effective June 11, 2013, by a June 2013 RO rating decision based on the findings of the June 11, 2013, VA examination. The Veteran did not appeal this ruling, and no new and material evidence was received within a year and so the decision became final. There was an intent to file a claim received on February 15, 2019, but this was not applicable to either left lower extremity radiculopathy claim as the next claim filed was in November 2019 regarding a 100 percent rating for the Veteran's right ankle. On July 10, 2020, the Veteran's increased rating claim for his already service connected left lower extremity radiculopathy (sciatic nerve) was received. For increased rating claims, 38 U.S.C. § 5110(b)(3) and 38 C.F.R. § 3.400(o)(2) potentially allow for an increase in disability compensation of up to one year prior to the date of claim, if it is factually ascertainable based on all evidence of record that an increase in disability had occurred. As such, the relevant period for this increased rating claim includes the one-year look-back period prior to the July 10, 2019, increased rating claim. See Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010) (referencing the "'one-year look-back period'"). The Veteran has put forth no theory of an earlier effective date and has submitted no evidence as to why he should be in receipt of an earlier effective date. Nor has the Veteran put forth an alternative effective date that he is seeking for his current 20 percent rating. As stated earlier in this opinion, generally, and except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. The Veteran filed a claim for increase on July 10, 2020, and the 20 percent rating the Veteran received via the September 2020 rating decision was the result of a September 1, 2020, VA examination. Additionally, there is no factually ascertainable evidence that the Veteran's sciatic nerve left lower extremity radiculopathy manifested to 20 percent prior to this date and therefore, the one year look back window is not applicable. Therefore, the earliest possible effective date is July 10, 2020. Accordingly, the claim for an earlier effective date is denied. In reaching this conclusion, the Board has considered and applied the benefit-of-the-doubt rule. "When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant." 38 U.S.C. § 5107(b). "Evidence is not in 'approximate balance' or 'nearly equal,' and therefore the benefit-of-the-doubt rule does not apply, when the evidence persuasively favors one side or the other." Lynch v. McDonough, 21 F. 4th 776 (Fed. Cir. 2021); see also Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). In this case, the evidence persuasively favors a finding that the Veteran's sciatic nerve radiculopathy was provided the earliest possible effective date. Thus, the benefit-of-the-doubt rule does not change the outcome on this issue. RAY BARTO SLABBEKORN, JR. Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Andrew Ledman II 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.