Citation Nr: 19176830 Decision Date: 10/04/19 Archive Date: 10/04/19 DOCKET NO. 18-19 862 DATE: October 4, 2019 ORDER An earlier effective date of January 28, 2016 is granted for an increased rating for radiculopathy of the right upper extremity (associated with intervertebral disc syndrome (IVDS) with arthritis of the cervical spine). Service connection for sleep apnea is denied. An increased rating greater than 20 percent from April 19, 2016 is denied, for radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine). An increased rating greater than 30 percent from January 28, 2016 is denied for IVDS with arthritis of the cervical spine. A separate, compensable rating for urinary incontinence (rated with herniated lumbar discs) is denied. A separate, compensable rating for bowel incontinence (rated with herniated lumbar discs) is denied. REMANDED An increased rating greater than 30 percent from August 29, 2016 for radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine) is remanded. An earlier effective date than January 28, 2016 for an increased rating of 30 percent for IVDS with arthritis of the cervical spine is remanded. An earlier effective date than April 19, 2016 for the grant of service connection radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine) is remanded. An earlier effective date for the grant of service connection for urinary incontinence (rated with herniated lumbar discs) is remanded. An earlier effective date for the grant of service connection for bowel incontinence (rated with herniated lumbar discs) is remanded. FINDINGS OF FACT 1. An award of an increased rating to 50 percent for increased rating for radiculopathy of the right upper extremity (associated with IVDS with arthritis of the cervical spine) is effective January 28, 2016, the date that the Veteran filed his claim; it is not factually ascertainable that the Veteran’s disability worsened within one year prior to filing his claim. 2. The preponderance of the evidence is against finding that sleep apnea began during active service or is otherwise related to an in-service injury or disease. 3. The Veteran’s radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine) is manifest by no more than mild incomplete paralysis of the minor extremity from April 19, 2016. 4. At no point during the period on appeal has the Veteran’s IVDS with arthritis of the cervical spine caused ankylosis, IVDS with incapacitating episodes totaling six weeks or more in the prior 12 months, or neurological deficits other than radiculopathy. 5. A separate, compensable rating for urinary incontinence would be impermissible pyramiding. 6. A separate, compensable rating for bowel incontinence would be impermissible pyramiding. CONCLUSIONS OF LAW 1. The criteria have been met for an earlier effective date of January 28, 2016 for the award of an increased rating to 50 percent for radiculopathy of the right upper extremity (associated with IVDS with arthritis of the cervical spine). 38 U.S.C. §§ 5101, 5110 (2012); 38 C.F.R. §§ 3.151, 3.155, 3.400 (2018). 2. The criteria have not been met for service connection for sleep apnea. 38 U.S.C. §§ 1110, 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303 (2018). 3. The criteria have not been met for a disability rating greater than 20 percent for left upper extremity (associated with IVDS with arthritis of the cervical spine). 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (Code) 8511 (2018). 4. The criteria have not been met for an increased rating greater than 30 percent from January 28, 2016 for IVDS with arthritis of the cervical spine. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.71a, Code 5243 (2018). 5. The criteria have not been met for a separate, compensable rating for urinary incontinence (rated with herniated lumbar discs). 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.14. 4.71a, Code 5243 (2018); 67 Fed. Reg. 54,345, 54,348 (August 22, 2002). 6. The criteria have not been met for a separate, compensable rating for bowel incontinence (rated with herniated lumbar discs). 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.3, 4.7, 4.14. 4.71a, Code 5243 (2018); 67 Fed. Reg. 54,345, 54,348 (August 22, 2002). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from September 1987 to July 1991. This matter is before the Board of Veterans’ Appeals (Board) on appeal from May 2016 and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Board recognizes that the Veteran appealed the initial rating for his left upper extremity radiculopathy, the effective date for the grant of service connection for left upper extremity radiculopathy, and an earlier effective date than August 29, 2016 for the grant of an increased rating of 30 percent. However, because the Veteran is presumed to be appealing to the extent that it maximizes his benefits, the issue of an increased initial rating already contemplates the issue of an earlier effective date for an increase in a rating during the appeal period and the Board has considered these issues one and the same. Duties to Notify and Assist With respect to the claim decided herein, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Effective Date Except as otherwise provided, the effective date of an evaluation and award of 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; 38 C.F.R. § 3.400. Prior to regulatory changes effective March 24, 2015, a valid claim is a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p) (2014). The essential elements for any claim, whether formal or informal, are: (1) intent to apply for benefits; (2) identification of the benefits sought; and (3) communication in writing. Brokowski v. Shinseki, 23 Vet. App. 79, 84 (2009). 1. An earlier effective date of January 28, 2016 for an increased rating for radiculopathy of the right upper extremity (associated with IVDS with arthritis of the cervical spine). To establish an effective date earlier than August 29, 2016 for the award of an increased rating of 50 percent for the left wrist, the Veteran would need to show that entitlement to such a rating manifested prior to August 29, 2016 associated with his January 28, 2016 date of claim. See 38 C.F.R. § 3.400. The Veteran filed a non-initial claim for an increased rating on January 28, 2016. The Veteran was provided with an examination in April 2016, which supports that his right upper extremity radiculopathy was “severe” within the meaning of the schedule of ratings for diseases of the peripheral nerves. 38 C.F.R. § 4.124a. Given the proximity of time to the January claim, the Board finds that the April 2016 examination reflects that the results were applicable as of the date of the claim. The April 2016 examination report reflects that the Veteran was limited to a 3/5 to 4/5 strength in his right upper extremity, entirely absent reflexes, absent sensation, and severe constant pain, severe numbness, and moderate parasthesias. The examiner opined that these clinical signs and symptoms reflected severe incomplete neural paralysis of his right upper extremity. The Board finds this opinion is entitled to significant probative weight because it is consistent with the severity of the symptoms on examination. The words “mild,” “moderate,” and “severe” as used in the various Codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence. 38 C.F.R. § 4.6. Although the use of similar terminology by medical professionals should be considered, it is not dispositive of an issue. Instead, all evidence must be evaluated in arriving at a decision regarding a request for an increased disability rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Accordingly, an effective date of January 28, 2016 for the award of 50 percent for his right upper extremity radiculopathy is warranted. 38 U.S.C. §§ 5101, 5110; 38 C.F.R. §§ 3.151, 3.155, 3.156, 3.400. The Veteran has limited the scope of his appeal of an earlier effective date claim to that of January 28, 2016. See October 2016 Notice of Disagreement; see also March 2019 Representative’s Correspondence. Therefore, this is considered a full grant of this issue on appeal. Service Connection 2. Service connection for sleep apnea The Veteran has filed a claim for service connection for sleep apnea and reports that he has no family history of sleep apnea. See October 2016 Notice of Disagreement. His initial claim includes nothing regarding the Veteran’s belief as to the origin of his diagnosed sleep apnea. See October 2016 Veteran’s Claim for Benefits. Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding the merits of an issue, the benefit of the doubt shall be given to the Veteran. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. If the preponderance of the evidence is against the claim, the claim is to be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has a current diagnosis of sleep apnea, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. This is because the evidence does not reflect any relation to service and the Veteran has not provided sufficient evidence to warrant an examination. VA must provide a medical examination or opinion when the record contains, amongst other things, evidence of a current disability with an indication of a nexus to service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not submitted evidence, including lay evidence, that his sleep apnea is in any way related to his service. His claim for benefits does not indicate any relation to service or a statement as to onset of symptoms. The Veteran’s notice of disagreement merely states that there is no family history of sleep apnea, which does not reflect evidence of in-service injury or onset of symptoms. In requesting a sleep study, the Veteran’s e-mail to his providers only reflect that he has been told “for quite some time that [he] might be stopping breathing at night,” see June 2016 Primary Care Messaging, which also does not reflect evidence of in-service injury or onset of symptoms. Because there is no evidence of an indication of a nexus, remand for a VA examination is not appropriate. Accordingly, service connection for sleep apnea is not warranted and the appeal is denied. Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 3. An increased rating greater than 20 percent from April 19, 2016 for radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine). The Veteran is seeking the highest possible rating from the earliest possible effective date for his left upper extremity radiculopathy. Because service connection was established as April 19, 2016 and this is an initial increased rating claim, the Board may not consider an effective date earlier than this. However, the Board is herein remanding the Veteran’s appeal of the effective date of service connection pursuant to Manlincon v. West, 12 Vet. App. 238 (1999). Paralysis of the middle radicular group is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8511. Under these criteria, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. For complete paralysis, a 70 percent (major extremity) or 60 percent (minor extremity) is warranted when adduction, abduction and rotation of arm, flexion of elbow, and extension of wrist is lost or severely affected. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide 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 type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran treated his radiculopathy in April 2016. His motor functioning was described as full strength with full reflexes. There was no record of decreased sensation in his left upper extremity during this appointment, although other extremities reflected abnormalities. See April 2016 VA Treatment Note. The Veteran did not receive VA treatment for his left upper extremity radiculopathy between this April 2016 appointment and September 2016. The Veteran also reported to an April 2016 VA examination. This examination revealed full muscle strength, no muscle atrophy, intact reflexes, normal sensation, no pain, and no parasthesias or dysesthesias. The report reflects numbness in the left upper extremity. The examiner indicated that the nerve root involved was limited to the middle radicular group and opined that the Veteran had mild radiculopathy of the left upper extremity. See April 2016 VA Examination. The examiner opined that these clinical signs and symptoms reflected mild incomplete neural paralysis of his left upper extremity. The Board finds this opinion is entitled to significant probative weight because it is consistent with the severity of the symptoms on examination. Based on the above, the Board finds that the disability is primarily manifest by numbness of the left upper extremity. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, sensory disturbance, loss of reflexes, pain, or muscle atrophy. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. The Board has considered whether there is another potentially applicable Codes, but there is no evidence showing the Veteran had neurological impairment associated with any other peripheral nerve during this time. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for left upper extremity radiculopathy from April 19, 2016 to August 29, 2016. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 4. An increased rating greater than 30 percent from January 28, 2016 for IVDS with arthritis of the cervical spine. The Veteran is seeking a greater than 30 percent rating for his service-connected cervical spine IVDS with arthritis. The Veteran’s service-connected IVDS with arthritis of the cervical spine is currently rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least four weeks, but less than six weeks, during the past 12 months and a 60 percent rating is warranted with incapacitating episodes having a total duration of at least six weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 40 percent rating is warranted for, in pertinent part, unfavorable ankylosis of the entire cervical spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Higher ratings than 40 percent take into account the thoracolumbar spine, which is not currently on appeal. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a, Note (5). “Unfavorable ankylosis” is defined, in pertinent part, as “a condition in which the entire cervical spine… or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching.” Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a criteria.”). 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.” 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. The Board notes that remand pursuant to Correia and Sharp is not necessary because the Veteran must show unfavorable ankylosis to be entitled to an increased rating in excess of 30 percent. The considerations in Correia and Sharp do not apply to the symptoms that must be shown for unfavorable ankylosis, such as restricted opening of the mouth and a limited line of vision, and thus remand for a new examination would provide little probative value. The record does not reflect, nor has the Veteran stated that he has any of the requisite symptoms for a finding of unfavorable ankylosis. Accordingly, the Board finds that remand for a new VA examination is unnecessary. The Board finds that the preponderance of the evidence is against a rating greater than 30 percent for service-connected cervical spine IVDS with arthritis based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for four weeks or more during any 12-month period during the entirety of the period on appeal and against a finding that the Veteran has ankylosis of any sort, let alone unfavorable ankylosis. The Veteran treated at his local VA through much of the period on appeal, but the records do not reflect ankylosis of the spine or prescriptions for bed rest. The Veteran’s March 2018 treatment examination report reflects chronic, intense neck pain with very limited ranges of motion and tenderness in around his neck and upper back. His MRI did not reflect ankylosis of any sort. In June 2017, the Veteran went to his doctor for follow up on his chronic neck pain; however, the examination focused primarily on his lower back pain. He was not prescribed bed rest and there is no evidence of ankylosis. In April 2016, the Veteran attended a treatment examination for follow up and he showed tenderness on the neck. The Veteran was wearing a soft collar due to his neck pain and was encouraged to do more range of motion and strengthening exercises. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the bilateral upper extremities. The lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his cervical spine disability. The Veteran has been provided VA examinations during the appellate period, which reflect no prescriptions for bed rest and do not reflect ankylosis of any sort, either favorable or unfavorable. The examinations do not reflect neurologic impairment related to his neck, outside of radiculopathy. See April 2016 VA Examination; August 2016 VA Examination. The Board acknowledges the Veteran’s competent and credible reports of relevant symptoms and appreciates the diligent efforts to describe these symptoms while living with significant disability. However, these symptoms are most consistent with a 30 percent rating. Although the Veteran believes that a higher rating is warranted, this belief is outweighed by the more probative medical evidence of record and the findings of the VA examiners. Based on the examiners’ reports and in consideration of the Veteran’s reported symptoms and signs in treatment examinations, a rating higher than 30 percent is not warranted. For the foregoing reasons, the preponderance of the evidence is against the Veteran’s claim for a rating greater than of 30 percent for cervical spine IVDS with arthritis. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 5. Separate, compensable ratings for urinary incontinence and bowel incontinence (rated with herniated lumbar discs). The Veteran is seeking separate, compensable ratings for his urinary and bowel incontinence associated with his herniated lumbar discs, a form of IVDS. If the Veteran would like to be rated under the General Rating Formula for his lumbar IVDS, he would have to submit a claim for an increased rating for his lumbar spine, which is not presently before the Board. The Board’s inquiry is thus limited to whether the Veteran is entitled to a separate rating than the maximum schedular rating under the IVDS schedule. The Board concludes that to do so would be impermissible pyramiding. The Veteran is currently rated at 60 percent under Code 5243, IVDS, which is the maximum schedular rating available under the IVDS schedule. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1 (emphasis added). Unlike with the General Rating Formula for Diseases and Injuries of the Spine, there is no note that indicates that associated objective neurological should be evaluated separately. This is because the IVDS rating criteria, through definition of incapacitating episodes, takes into account all acute signs and symptoms due to IVDS, whether neurologic (as here) or orthopedic. See 67 Fed. Reg. 54,345, 54,348 (August 22, 2002). Because the Veteran is at the maximum available rating, there is no way to increase his rating based on neurologic signs and symptoms that are already considered in the rating criteria for IVDS; therefore, to provide a separate compensable rating would be to provide separate evaluations under different diagnoses for the same manifestations already compensated, which is explicitly prohibited by the regulations. 38 C.F.R. § 4.14. Accordingly, these appeals must be denied. REASONS FOR REMAND 1. An increased rating greater than 30 percent from August 29, 2016 for radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine) is remanded. The Veteran’s most recent VA examination for his left upper extremity radiculopathy occurred in August 2016. Since that time, he has indicated that his left upper extremity radiculopathy has worsened. See March 2018 VA Treatment Note. Because it has been over three years since the last VA examination, remand for a contemporaneous examination is required to assess the current severity of his service-connected disability. See Green v. Derwinski, 1 Vet. App. 121 (1991); see also Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). 2. The issues of an earlier effective date than January 28, 2016 for an increased rating of 30 percent for IVDS with arthritis of the cervical spine; an earlier effective date than April 19, 2016 for the grant of service connection radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine); an earlier effective date for the grant of service connection for urinary incontinence (rated with herniated lumbar discs); an earlier effective date for the grant of service connection for bowel incontinence (rated with herniated lumbar discs) are remanded. Regarding the above listed claims, the Veteran submitted a timely notice of disagreement with May 2016 and November 2016 rating decisions, but a statement of the case (SOC) has not yet been issued. A remand is required for the AOJ to issue an SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. If available, obtain the Veteran’s VA treatment records for the period from July 2018 to the present. 2. After completion of directive one, schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left upper extremity radiculopathy. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 3. Send the Veteran and his representative a statement of the case that addresses the issues of an earlier effective date than January 28, 2016 for an increased rating of 30 percent for IVDS with arthritis of the cervical spine; an earlier effective date than April 19, 2016 for the grant of service connection radiculopathy of the left upper extremity (associated with IVDS with arthritis of the cervical spine); an earlier effective date for the grant of service connection for urinary incontinence (rated with herniated lumbar discs); an earlier effective date for the grant of service connection for bowel incontinence (rated with herniated lumbar discs). If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. VICTORIA MOSHIASHWILI Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Lambert, Associate 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.