Citation Nr: 1749115	
Decision Date: 10/31/17    Archive Date: 11/06/17

DOCKET NO.  12-06 036	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina


THE ISSUES

1.  Entitlement to a rating in excess of 20 percent for a low back disability post herniated nucleus pulposus (HNP) with laminectomy and discectomy with residual pain and evidence of degenerative joint disease (DJD), prior to May 22, 2017.  

2.  Entitlement to a rating in excess of 40 percent for a low back disability post HNP with laminectomy and discectomy with residual pain and evidence of DJD, from May 22, 2017.  

3.  Entitlement to an initial rating in excess of 10 percent for left lower extremity radiculopathy, prior to February 25, 2015.  

4.  Entitlement to an initial rating in excess of 20 percent for left lower extremity radiculopathy, from February 25, 2015.  


REPRESENTATION

Veteran represented by:	North Carolina Division of Veterans Affairs
ATTORNEY FOR THE BOARD

LM Stallings, Associate Counsel


INTRODUCTION

The Veteran served on active duty from May 1971 to July 1974 and from February 1975 to July 1993.  

These matters are before the Board of Veterans' Appeals (Board) on appeal from a June 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  In a January 2011 rating decision, the RO granted service connection for left lower extremity radiculopathy with a 10 percent disability rating, with an effective date of October 30, 2008.  As the rating criteria for the spine considers associated neurological abnormalities, the Board has determined that the rating of left lower extremity radiculopathy is part of the appeal before the Board.  38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine, Note (1) (2017).  

The issue of entitlement to a rating in excess of 20 percent for a low back disability was before the Board in October 2011 when it was remanded for the issuance of a statement of the case (SOC).  The Veteran submitted a timely VA Form 9 in March 2012.  

This appeal was before the Board in January 2015 and May 2017 when it was remanded for additional evidentiary development.  In a June 2017 rating decision, the RO granted an increase for the low back disability from 20 percent to 40 percent, effective May 22, 2017 and granted an increase for left lower extremity radiculopathy from 10 percent to 20 percent, effective February 25, 2015.  

Despite the grant of increased ratings for a low back disability and left lower extremity radiculopathy, a claimant is presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum benefit is awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  


FINDINGS OF FACT

1.  Prior to May 22, 2017, the Veteran's low back disability was manifest by forward flexion greater than 30 degrees but not greater than 60 degrees of the thoracolumbar spine.

2.  From May 22, 2017, the Veteran's low back disability is manifest by forward flexion of 30 degrees or less; there is no indication of unfavorable ankylosis of the entire thoracolumbar spine.  

3.  Prior to February 25, 2015, the Veteran's left lower extremity radiculopathy was manifest by no more than mild incomplete paralysis of the sciatic nerve.  

4.  From February 25, 2015, the Veteran's left lower extremity radiculopathy is manifest by no more than moderate incomplete paralysis of the sciatic nerve.   


CONCLUSIONS OF LAW

1.  Prior to May 22, 2017, the criteria for a disability rating in excess of 20 percent for the Veteran's service-connected low back disability are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.71a, Diagnostic Code (DC) 5242 (2017).

2.  From May 22, 2017, the criteria for a disability rating in excess of 40 percent for the Veteran's service-connected low back disability are not met.  38 U.S.C.A.           §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.40, 4.71a, DC 5242.

3.  Prior to February 25, 2015, the criteria for a disability rating in excess of 10 percent for radiculopathy of the left lower extremity are not met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124a, DC 8520.

4.  From February 25, 2015, the criteria for a disability rating in excess of 20 percent for radiculopathy of the left lower extremity are not met.  38 U.S.C.A.       §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.120, 4.124a, DC 8520.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

Neither the Veteran nor his representative has raised any issue with the duties to notify or assist.  See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 

Accordingly, appellate review may proceed without prejudice to the Veteran with respect to his claims.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).

Legal Analysis 

Disability ratings are determined by comparing a Veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  When a question arises as to which of the two ratings applies under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  Id. § 4.3.  

Further, a disability rating may require re-evaluation in accordance with changes in a Veteran's condition.  It is thus essential in determining the level of current impairment that the disability is considered in the context of the entire recorded history.  38 C.F.R. § 4.1.  Nevertheless, the present level of disability is of primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The assignment of a particular diagnostic code is completely dependent on the facts of a particular case.  Butts v. Brown, 5 Vet. App. 532 (1993).  

Medical Evidence

The Veteran was afforded a VA examination in September 2010.  The Veteran reported pain with standing or sitting for a long time and that he had decreased motion, stiffness, weakness, and spasm.  The Veteran reported that his back pain was severe, dull, achy, and shooting, occurred 1-6 days each week and lasted 1-2 days.  He reported that he was unable to bend, lift, twist, and squat.  He also reported being unable to stand or sit in the same position for more than a few minutes at a time and must reposition himself to alleviate pain.  He reported having radiating, shooting pain in the left leg and numbness and paresthesias.  The Veteran also reported that he is able to walk between 1/4 of a mile and 1 mile.  

Upon physical examination, the examiner noted an antalgic gait with a left leg limp.  No ankylosis or scoliosis was noted.  The examiner identified that the Veteran had spasming, guarding, pain on motion, and tenderness, but specified that they did not cause an abnormal gait.  Range of motion measurements reflected flexion to 38 degrees, extension to 15 degrees, left and right lateral flexion to 12 degrees, and left and right lateral extension to 10 degrees with pain.  There was also pain on repetitive motion testing, but no additional limitation of motion.  

The examination showed reflex testing was normal and there were no trophic changes.  The left lower extremity exhibited decreased vibratory sense and decreased sensation of pinprick and pain along the lateral aspect of the leg, impacting the sciatic nerve.  Sensory testing to position sense and light touch were normal.  The Veteran tested positive for Lasegue's sign and tingling in the left leg was noted.  
The Veteran was afforded another VA examination in February 2015.  The Veteran stated that he had moderate low back pain at the beltline that is constant with sharp, burning pain on a daily basis.  He reported that the pain worsened in the cold weather and he experienced intermittent numbness in the left leg once or twice a week for 8 to 24 hours.  The Veteran did not report any flare ups but did note that he has functional loss due to the pain.   

On physical examination, the Veteran had paraspinal tenderness.  Range of motion testing revealed forward flexion to 60 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees, and right and left lateral rotation to 30 degrees, with pain on forward flexion and extension.  There was no additional loss of range of motion with repetitive use.  The Veteran reported he did not have flare-ups.  The examiner noted that the Veteran had localized tenderness that did not result in abnormal gait or abnormal spinal contour.  The examiner indicated the Veteran had less movement than normal, weakened movement, and interference with standing.  Also, the Veteran had muscle spasming which resulted in an abnormal gait or abnormal spinal contour.  The examiner found the Veteran did not have ankylosis.  The examiner noted that the Veteran had no neurologic abnormalities such as bowel or bladder problems associated with his low back disability.  An X-ray report of the lumbar spine reflected arthritis.  The examiner indicated the Veteran did not have intervertebral disc syndrome.  The examiner also noted that the Veteran experienced interference with standing and weakened movement due to muscle or peripheral nerve injury.  

The February 2015 examiner also noted that the Veteran's left sciatic nerve exhibited symptoms due to radiculopathy.  The Veteran's left lower extremity reflected moderate intermittent pain, moderate numbness, and mild paresthesias.  Reflex testing of the left lower extremity reflected normal reflexes at the knee and hypoactive reflexes at the ankle.  Sensory testing was decreased in the left lower leg/ankle and the left foot/toes.  Muscle strength testing showed active movement against some resistance of the left ankle and left great toe extension.  Straight leg raising testing on the left lower extremity was positive.  The examiner concluded that the Veteran had left lower extremity radiculopathy that was manifest by moderate severity.  The examiner diagnosed the Veteran with DJD with radicular left leg pain.  

On May 22, 2017 VA examination, the Veteran reported he has left lower back pain which radiates to the foot.  He takes aspirin and sees a chiropractor and an acupuncturist to manage the pain.  The Veteran reported flare-ups, typically provoked by prolonged standing, walking, or lifting 20+ pounds and that interfere with walking and getting dressed.  The Veteran also reported that his back pain limited his ability to do chores around the house and that he was unable to stand for longer than 10 minutes without pain.  He reported his activities of daily living were limited during flare ups.  The Veteran reported regular use of a cane to help him get around.  

On physical examination, the Veteran had moderate tenderness in the upper lumbar and midline areas.  Range of motion testing revealed forward flexion to 35 degrees, extension to 10 degrees, right lateral flexion to 10 degrees, left lateral flexion to 15 degrees, and right and left lateral rotation to 30 degrees.  The examiner noted pain on range of motion examination limited the Veteran's functionality on each measurement.  There was no additional loss of function or range of motion on repetitive use testing.  The examiner noted that pain significantly limited the Veteran's functional ability with repeated use over time; specifically, the Veteran's forward flexion decreased to 30 degrees due to pain on motion.  The examiner also noted that pain upon flare-ups caused significant limitation of the Veteran's functional ability, but noted that there was no change in terms of additional limitation of motion.  There was no guarding or spasming and the Veteran's gait was normal.  The examiner noted the Veteran did not have ankylosis.  There were no neurologic abnormalities noted.  The examiner also noted a diagnosis of invertebral disc syndrome but noted no incapacitating episodes in the last 12 months.  The examiner indicated the Veteran's back caused him to have limited range of motion which interfered with his functionality and that pain was a limiting factor with repetitive activities.

The May 2017 examiner also noted that the Veteran's left sciatic nerve exhibited symptoms due to radiculopathy.  The Veteran's left lower extremity reflected moderate intermittent pain, moderate numbness, and moderate paresthesias.  The reflex examination and sensory examination were normal.  Muscle strength testing of the left lower extremity showed normal strength and there was no muscle atrophy.  Straight leg raising testing was normal.  The examiner concluded that the Veteran's left lower extremity radiculopathy was wholly sensory and was manifest by moderate severity.  

Low Back Disability

The Veteran's service-connected low back disability is currently rated under 38 C.F.R. § 4.71a, DC 5242 [degenerative arthritis of the spine]. 

The evidence of record indicates that the Veteran has had a diagnosis of degenerative arthritis of the lumbar spine throughout the appeal period and that he was diagnosed with invertebral disc syndrome in 2017.  Based on reported symptomatology, and consistent with DC 5242, the Board will rate the Veteran under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome, DC 5243. 

The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply:  A 100 percent rating is warranted for unfavorable ankylosis of the entire spine.  A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine.  A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, when there is favorable ankylosis of the entire thoracolumbar spine.

A 20 percent rating is warranted where there is forward flexion of the thoracolumbar spine 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 spasms or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis.  
The evaluation of a service-connected disability involving a joint rated on limitation of motion requires adequate consideration of functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, incoordination or pain on movement of a joint under 38 C.F.R. § 4.45.  See DeLuca v. Brown, 8 Vet. App. 202 (1995).

The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment.  See 38 C.F.R.    § 4.10.  Disability of the musculoskeletal system is primarily the inability to perform the normal working movements of the body with normal excursion, strength, speed, coordination and endurance.  See 38 C.F.R. § 4.40.  Consideration is to be given to whether there is less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, atrophy of disuse, instability of station, or interference with standing, sitting, or weight bearing.  See 38 C.F.R. § 4.45.

Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code.

Under the formula for rating Intervertebral Disc Syndrome based on Incapacitating Episodes, the following ratings will apply: 

A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months.  

Note (1): For purposes of evaluating under DC 5243, 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.

Staged ratings are currently in effect for the Veteran's low back disability: rated as 20 percent disabling prior to May 22, 2017, and rated as 40 percent disabling from May 22, 2017.  

      Prior to May 22, 2017

As noted above, the Veteran is currently in receipt of a 20 percent disability rating prior to May 22, 2017.  To warrant a 40 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine.

The September 2010 VA examination reflected forward flexion to 38 degrees.  The September 2010 VA examiner noted that the Veteran had an antalgic gait with a left leg limp; however, the examiner specified that the noted spasming and guarding did not cause the Veteran's abnormal gait.  The Veteran also reported that he was unable to bend, lift, twist, or squat.  

The February 2015 examination showed forward flexion of 60 degrees with pain.  The Veteran reported functional loss due to pain, which the examiner noted caused less movement than normal, weakened movement, and interference with standing.  Although pain caused functional loss, such loss did not more nearly approximate forward flexion limited to 30 degrees or less.  There is no evidence that the Veteran had favorable ankylosis of the thoracolumbar spine.  The evidence shows that throughout the period prior to May 22, 2017, the Veteran had motion of the spine.  

The medical evidence does not reflect that prior to May 22, 2017 the Veteran had forward flexion of less than 30 degrees or favorable ankylosis of the thoracolumbar spine, even when considering the DeLuca factors of pain, fatigue, weakness, and stiffness associated with functional loss.  

Additionally, the Board has considered whether there are associated objective neurologic abnormalities, including bowel or bladder impairment, which might warrant separate ratings under an appropriate diagnostic code.  As explained above, the Veteran is separately service-connected for left lower extremity radiculopathy and the rating for the disability will be addressed below.  There is no indication that the Veteran had any neurological symptoms of the right leg.  Neurological findings during all VA examinations for the right leg were normal.  There also was no indication of any bowel or bladder impairment.  Therefore, he is not entitled to a separate rating for any associated objective abnormalities other than for the already service-connected left lower extremity.

Pursuant to 38 C.F.R. § 4.71a, DC 5243, entitlement to an increased rating for intervertebral disc syndrome, a 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months.  The competent medical evidence does not show the Veteran reported experiencing incapacitating episodes during this period, and there are no VA or private treatment records reflecting bed rest prescribed by a physician for back pain in a 12 month period prior to May 22, 2017.  Thus, a preponderance of the evidence is against finding that the Veteran had incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks in a 12 month period prior to May 22, 2017.

Accordingly, and considering all the competent medical evidence, the Board finds that a rating in excess of 20 percent for the Veteran's low back disability is not warranted prior to May 22, 2017.  

      From May 22, 2017

As noted above, from May 22, 2017 the Veteran is in receipt of a 40 percent disability rating.  To warrant a 50 percent disability rating under the General Rating Formula for Diseases and Injuries of the Spine, the Veteran must show unfavorable ankylosis of the entire thoracolumbar spine.

The May 2017 VA examination reflects range of motion testing which shows forward flexion of 35 degrees upon initial testing and forward flexion of 30 degrees upon repeated use testing.  The examination report did not reflect unfavorable ankylosis of the entire thoracolumbar spine.  The Veteran reported moderate tenderness and that pain significantly limited his functional ability, specifically to do chores around the house.  The Veteran also reported use of a cane to assist in mobility and that difficult standing for longer than 10 minutes or doing household chores.  However, the medical evidence from May 22, 2017 does not more nearly approximate that the Veteran has unfavorable ankylosis of the entire thoracolumbar spine, even when considering the DeLuca factors of pain, fatigue, weakness, and stiffness associated with functional loss.  8 Vet. App. at 205.  The spine was not in a fixed position and there is no indication that he experienced any of the symptoms of unfavorable ankylosis.  The examiner also specifically noted that he did not have ankylosis.

The record also does not show any associated objective abnormalities other than the already service-connected left lower extremity radiculopathy that would warrant any separate ratings from May 22, 2017.

Pursuant to 38 C.F.R. § 4.71a, DC 5243, entitlement to an increased rating under the rating criteria for intervertebral disc syndrome, a 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months.  The competent medical evidence of record does not show the Veteran reported incapacitating episodes during this period.  The May 2017 VA examination report reflects a diagnosis of intervertebral disc syndrome but there are no VA or private treatment records reflecting bed rest prescribed by a physician during this period.  Thus, a preponderance of the evidence is against a finding that the Veteran had incapacitating episodes having a total of at least 6 weeks in the last 12 months.  Consequently, the Board finds that a rating in excess of 40 percent for the Veteran's low back disability from May 22, 2017 is denied.  

Accordingly, the Board finds that a rating in excess of 40 percent for the Veteran's low back disability is not warranted from May 22, 2017. 

Radiculopathy of the Left Lower Extremity 

The Veteran's radiculopathy of the left lower extremity is rated under DC 8520 for impairment of the sciatic nerve.  
DC 8520 provides that for complete paralysis of the sciatic nerve, marked by dangle and drop of the foot, with no active movement of the muscles below the knee possible, and weakened or (very rarely) lost flexion of knee, an 80 percent evaluation is assigned.  For lesser degrees of impairment, or incomplete paralysis, lower ratings are assigned.  Mild impairment is rated 10 percent, moderate impairment is 20 percent, and moderately severe impairment is 40 percent.  Severe impairment, with marked muscle atrophy, is rated 60 percent disabling.  38 C.F.R. § 4.124a, DC 8520.

When rating neurological conditions, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances.  38 C.F.R. § 4.120.  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 should be for the mild, or at most, the moderate degree.  38 C.F.R. § 4.124a; see Miller v. Shulkin, 28 Vet. App. 376 (finding that the plain language of the note to § 4.124a contains no mention of non-sensory manifestations and declining to read into the regulation a corresponding minimum disability rating for non-sensory manifestations).  

The words "mild," "moderate," and "severe" are not defined in the Rating Schedule.  Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the degree that its decisions are "equitable and just."  38 C.F.R.   § 4.6.  It should also be noted that use of descriptive terminology such as "mild" by medical 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 regarding an increased rating.  38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6.
  
Staged ratings are currently in effect for the Veteran's left lower extremity radiculopathy: the disability has been rated as 10 percent disabling prior to February 25, 2015, and 20 percent disabling from February 25, 2015.  

      Prior to February 25, 2015

Prior to February 25, 2015, the Veteran's radiculopathy of the left lower extremity is rated as 10 percent disabling for mild impairment of the sciatic nerve.  A rating of 20 percent requires moderate impairment of the sciatic nerve.  38 C.F.R. § 4.124a, DC 8520.

The Veteran's September 2010 VA examination reflected the left lower extremity had a decreased vibratory sense and sensation along the lateral aspect of the leg, impacting the sciatic nerve.  Reflex testing was normal.  Objective testing revealed decreased vibration and pain/pinprick testing but showed normal strength, position sense and light touch responses.  There was also no finding of dysesthesias.  In examining the relevant evidence, the Board concludes that an evaluation of 10 percent for mild incomplete paralysis most closely approximates the Veteran's disability picture prior to February 25, 2015.  

The Veteran is competent to report symptoms of radiating pain and the need to frequently adjust to alleviate pain, because this requires only personal knowledge as it comes to him through his senses.  Layno v. Brown, 6 Vet. App. 465 (1994).  He is not, however, competent to identify a specific level of disability of this disorder according to the appropriate diagnostic codes.  

Here, the evidence shows that the nerve damage does not more nearly approximate "moderate" incomplete paralysis; hence, a preponderance of the evidence is against the Veteran's claim and an evaluation in excess of 10 percent prior to February 25, 2015 is denied.  

      From February 25, 2015

The Veteran's radiculopathy of the left lower extremity is rated as 20 percent disabling from February 25, 2015.  A rating of 40 percent requires moderately severe impairment of the sciatic nerve.  38 C.F.R. § 4.124a, DC 8520.

The February 2015 VA examination report indicated the Veteran had radiculopathy of the left lower extremity of moderate severity.  The Veteran did not have constant pain of the left lower extremity.  Moderate intermittent pain and numbness were noted in the left lower extremity as well as mild paresthesias and/or dysesthesias numbness.  The report indicated the Veteran had no other signs or symptoms of radiculopathy.  The Veteran had no decrease in muscle strength and his knee reflex was normal with a slight decrease in his ankle reflex.  Left straight leg raising test was positive and there was decreased sensation to light touch in the left lower leg/ankle and foot/toes.  

The May 2017 VA examination report reflected similar results as the February 2015 VA examination.  The Veteran's left lower extremity radiculopathy was found to be moderate by the examiner.  The Veteran did not have constant pain of the left lower extremity, but had moderate intermittent pain, paresthesias and/or dysesthesias, and numbness.  There was decreased sensation to light touch in the left lower leg/ ankle and foot/toes.  

The evidence is against a finding that there were moderately severe symptoms, which would warrant a higher 40 percent rating.  Both the February 2015 and June 2017 VA examination reports fail to show that the Veteran had moderately severe or severe symptoms of pain, paresthesias or numbness.  

Here, the evidence shows that nerve damage does not more nearly approximate "moderately severe" incomplete paralysis; hence, a preponderance of the evidence is against the Veteran's claim and an evaluation in excess of 20 percent from February 25, 2015, is denied.  


ORDER

A rating in excess of 20 percent for a low back disability prior to May 22, 2017 is denied.  

A rating in excess of 40 percent for a low back disability from May 22, 2017 is denied.  
A rating in excess of 10 percent for left lower extremity radiculopathy prior to February 25, 2015 is denied.  

A rating in excess of 20 percent for left lower extremity radiculopathy from February 25, 2015 is denied.  



____________________________________________
M. Sorisio
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs

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