Citation Nr: 21074616 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-29 585 DATE: December 15, 2021 ORDER Entitlement to an initial rating higher than 10 percent for the period prior to February 5, 2020 for service-connected degenerative arthritis of the cervical spine with intervertebral disc syndrome (IVDS) is denied. Entitlement to a rating higher than 30 percent for the period beginning February 5, 2020 for service-connected degenerative arthritis of the cervical spine with IVDS is denied. Entitlement to an initial rating higher than 10 percent for IVDS with ulnar nerve involvement of the left upper extremity is denied. Entitlement to an initial rating higher than 10 percent for IVDS with ulnar nerve involvement of the right upper extremity is denied. REMANDED Entitlement to an initial rating higher than 10 percent for the period prior to February 5, 2020 for service-connected IVDS of the lumbar spine, status post laminectomy with residual scar is remanded. Entitlement to a rating higher than 20 percent for the period beginning February 5, 2020 for service-connected IVDS of the lumbar spine, status post laminectomy with residual scar is remanded. Entitlement to an initial rating higher than 10 percent for IVDS with sciatic nerve involvement of the right lower extremity is remanded. FINDINGS OF FACT 1. For the period prior to February 5, 2020, the cervical spine disability was manifested by pain and stiffness, but did not demonstrate forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; combined range of motion of the cervical spine not greater than 170 degrees; muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis; and/or did not cause incapacitating episodes as defined by VA. 2. For the period beginning February 5, 2020, the cervical spine disability was manifested by pain, stiffness, and limitation of motion; ankylosis of the cervical spine was not present. 3. The Veteran's IVDS with ulnar nerve involvement of the left upper extremity was manifested by no worse than mild wholly sensory involvement with slight decrease in sensation. 4. The Veteran's IVDS with ulnar nerve involvement of the right upper extremity was manifested by no worse than mild wholly sensory involvement with slight decrease in sensation. CONCLUSIONS OF LAW 1. For the period prior to February 5, 2020, the criteria for a rating higher than 10 percent for service-connected cervical degenerative arthritis with IVDS are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5242. 2. For the period beginning February 5, 2020, the criteria for a rating higher than 30 percent for service-connected cervical degenerative arthritis with IVDS are not met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.40, 4.45, 4.59, 4.71a Diagnostic Code 5242. 3. The criteria for an initial rating higher than 10 percent for IVDS with ulnar nerve involvement of the left upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8516. 4. The criteria for an initial rating higher than 10 percent for IVDS with ulnar nerve involvement of the right upper extremity are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.3, 4.7, 4.124a, Diagnostic Code 8516. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from June 1984 to June 1991. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2010 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO). As a preliminary matter, the Board notes that as a result of the February 2020 examination, the RO proposed to decrease the Veteran's 10 percent ratings for his bilateral upper extremity ulnar nerve involvement to noncompensable. See July 2020 Rating Decision. However, the RO did not implement the proposed action, and the Veteran's bilateral upper extremities are each still assigned a 10 percent rating for ulnar nerve involvement. Thus, the issues on appeal pertaining to these disabilities are limited to entitlement to increased ratings for each extremity. Increased Rating Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Increased Ratings for Spine Disabilities In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and §4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by §4.40 and §4.45 but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). The Court has addressed what constitutes an adequate explanation for an examiner's inability to estimate motion loss in terms of degrees during periods of flare-ups. Sharp v. Shulkin, 29 Vet. App. 26 (2017). Additionally, the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. The Veteran's cervical spine disability is currently rated pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5242. Disabilities of the spine are evaluated under the General Formula for Diseases and Injuries of the Spine (General Rating Formula). 38 C.F.R. § 4.71(a), Diagnostic Codes 5235-5242. The General Rating Formula provides a 10 percent disability rating for forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees; or, combined range of motion of the cervical spine greater than 170 degrees but not greater than 335 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the cervical spine greater than 15 degrees but not greater than 30 degrees; or, the combined range of motion of the cervical spine not greater than 170 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 30 percent disability rating is provided for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent disability rating is provided for unfavorable ankylosis of the entire cervical spine. A 100 percent disability rating is assigned for unfavorable ankylosis of the entire spine. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is zero to 45 degrees, extension is zero to 45 degrees, left and right lateral flexion are zero to 45 degrees, and left and right lateral rotation are zero to 80 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the cervical spine is 340 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner's assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is 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. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. Under the IVDS Rating Formula (Diagnostic Code 5243), a 10 percent disability rating is assigned with incapacitating episodes having a total duration of at least 1 week but less than 2 weeks during the past 12 months; a 20 percent disability rating is assigned with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating is assigned with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a maximum 60 percent disability rating is assigned with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. Note (1) provides that 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. Note (2) provides that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, each segment should be evaluated on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment. During the pendency of the appeal, the rating criteria for evaluating musculoskeletal disabilities under 38 C.F.R. § 4.71a were amended, effective February 7, 2021. 85 Fed. Reg, 230 (Nov. 30, 2020). These amendments revised select diagnostic codes "to ensure that this portion of the rating schedule uses current medical terminology and provides detailed and updated criteria for the evaluation of musculoskeletal disabilities." Id. If a law or regulation changes during the course of a claim or an appeal, the version more favorable to the veteran will apply, to the extent permitted by any stated effective date in the amendment in question. 38 U.S.C. § 5110(g). If the revised version of the regulation is more favorable, the implementation of that regulation under 38 U.S.C. § 5110(g) can be no earlier than the effective date of that change. If the former version is more favorable, VA can apply the earlier version of the regulation for the period prior to, and from, the effective date of the change. 38 U.S.C. § 5110. The Board observes that VA recently revised Diagnostic Code 5242 to encompass "degenerative arthritis, degenerative disc disease other than IVDS" while revising Diagnostic Code 5243 as IVDS only when there is disc herniation with compression and/or irritation of the adjacent nerve root. 85 Fed. Reg. 76453 (Nov. 30, 2020). VA considers these non-substantive changes which clarify the meaning of IVDS. See 82 Fed. Reg. 35719, 35720 (Aug. 1, 2017). As such, the Board finds that this non-substantive change does not require AOJ review in the first instance. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). As a preliminary matter, based on the entirety of the record, there is no evidence of incapacitating episodes as defined by VA regulation. For reference, incapacitating episodes are a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. There are no periods of bed rest prescribed by a physician for any time during the appeal period (excluding periods of convalescence). The Veteran does not contend otherwise. Thus, the Board finds that the criteria pursuant to 38 C.F.R. § 4.71a, Diagnostic Code 5243 are not applicable to the present case. Cervical Spine Disability The Veteran filed a claim for service connection for a cervical spine disability in May 2010. Private treatment records document the Veteran's reports of pain in the cervical spine, aggravated by movement or bad posture. His treating physicians also noted some tenderness in the cervical paraspinal area along with some weakness in handgrip and elbow flexion. At the November 2011 VA examination, the examiner diagnosed IVDS with degenerative changes. The Veteran reported stiffness, fatigue, and decreased motion of the cervical spine, but denied spasms, paresthesia, numbness, or weakness. He denied any episodes of incapacitation in the past 12 months and denied experiencing any overall functional impairment from his cervical spine disability. Range of motion testing revealed full range of motion of the cervical spine, albeit with pain at various points. The Veteran was able to perform repetitive use testing with no additional degree of limitation of motion. At the January 2015 VA examination, the Veteran reported pain localized in the middle of his neck, along with constant stiffness. He also stated that his neck crackled upon movement. The Veteran denied flare ups of symptoms or functional loss/impairment. Range of motion testing revealed full range of motion upon forward flexion, extension, and bilateral lateral flexion; right lateral rotation was limited to 65 degrees and left lateral rotation was limited to 70 degrees. There was no evidence of pain with weightbearing, nor was there evidence of localized tenderness or pain on palpation of the joint or associated soft tissues of the cervical spine. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. There was no evidence of guarding or muscle spasms and the Veteran maintained normal muscle strength in the bilateral extremities. In an April 2016 VA treatment note, the Veteran rated his neck pain as a constant 4/10, with flare ups of shooting pain rated 8/10 in severity. While he took pain medication, he denied receiving injections, physical therapy, or surgery related to his cervical spine. In a June 2016 disability benefits questionnaire (DBQ), the Veteran reported chronic dull aching of the neck, which was aggravated by prolonged driving and leaning forward. He used pain medication to alleviate his pain. He denied experiencing flare ups of symptoms or having functional loss or functional impairment. Range of motion testing revealed full range of motion in all directions. There was no pain noted on the examination nor was there evidence of localized tenderness or pain on palpation of the joint or associated soft tissues. There was no evidence of pain with weight-bearing and the Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion. There was no evidence of guarding or muscle spasms, nor were there additional factors contributing to the disability. The Veteran demonstrated normal muscle strength in the bilateral upper extremities. In a November 2019 treatment note, the Veteran continued to experience neck pain, especially with bad posture, which he rated a 6-8/10 in severity. Active range of motion testing revealed flexion to 25 degrees and extension to 40 degrees. Most recently, at the February 2020 VA examination, the Veteran reported having achy neck pain, which he rated as 8/10 in severity. His treatment included pain medication and physical therapy. He also reported daily flare ups of pain, which he rated as 10/10 in severity, which was precipitated by 10 minutes of looking down, such as when reading. Range of motion revealed forward flexion to 15 degrees and extension to 40 degrees. The examiner noted pain on examination which caused functional loss. The examiner found objective evidence of pain with weightbearing and non-weightbearing, along with tenderness and pain over the posterior cervical spine. The Veteran was able to perform repetitive use testing with at least three repetitions. The examiner ultimately found that both repetitive use over time and flare ups resulted in additional limitation of forward flexion to 8 degrees. There was no evidence of guarding or muscle spasms; there were no additional factors contributing to the disability. The Veteran maintained normal muscle strength throughout the extremities. Based on the above, the Board finds that a rating higher than 10 percent is not warranted for the service-connected cervical degenerative arthritis with IVDS for the period prior to February 5, 2020. As previously noted, in order to warrant a higher 20 percent rating, there must be forward flexion of the cervical spine less than 30 degrees or muscle spasms or guarding severe enough to result in an abnormal gait or abnormal spine. Here, a higher rating is not warranted based on limitation of motion as the most probative clinical evidence reflects that there is no evidence that the Veteran's forward flexion was limited to less than 30 degrees or the functional equivalent thereto. Consequently, a higher rating is not warranted for the Veteran's service-connected cervical arthritis with IVDS. In so finding, the Board acknowledges the lay statements of record but finds that the symptoms attributed to the Veteran's service-connected cervical arthritis with IVDS are adequately contemplated by the current assigned 10 percent rating for the period prior to February 5, 2020. For the period beginning February 5, 2020, the Board finds that a rating more than 30 percent is not warranted as there is no competent evidence that the Veteran's cervical spine was ankylosed during this period. As discussed above, the Board places greater probative weight to the findings of the VA examiner who has greater training and expertise than the Veteran in evaluating whether ankylosis is present. Quite simply, the Veteran's cervical spine is not fixed in a certain position in any plane of motion. As there is no competent evidence of ankylosis or the functional equivalent thereof, the claim for a higher rating for the period beginning February 5, 2020 is denied. Increased Ratings for Neurological Disabilities In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, a disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. 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. 38 C.F.R. § 4.124a. Descriptive words such as "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology 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. 38 U.S.C. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. However, VA's Adjudication Manual does provide guidance in evaluating the severity of nerve paralysis. According to the Manual, "mild" incomplete paralysis is demonstrated by subjective symptoms or diminished sensation. "Moderate" incomplete paralysis is manifested by the absence of sensation confirmed by objective findings. "Severe" incomplete paralysis is manifested when more than sensory findings are demonstrated, such as atrophy, weakness, and diminished reflexes. M-21, III.iv.4.G.4.b. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, neuritis, 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. 38 C.F.R. § 4.124a. Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate, incomplete paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes as noted above will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.124. Bilateral Upper Extremities The Veteran is currently assigned 10 percent ratings for bilateral IVDS with ulnar nerve involvement of the bilateral upper extremities under Diagnostic Code 8516. Diagnostic Code 8516 provides the rating criteria for paralysis of the ulnar nerve and, therefore, neuritis and neuralgia of that nerve. Complete paralysis of the ulnar nerve, which is rated as 60 percent disabling for the major extremity, contemplates the "griffin claw" deformity, due to flexor contraction of ring and little fingers, atrophy very marked in dorsal interspace and thenar and hypothenar eminences; loss of extension of ring and little fingers cannot spread the fingers (or reverse), cannot adduct the thumb; flexion of wrist weakened. For the major extremity, a 10 percent rating is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis, and a higher 40 percent evaluation is warranted for severe incomplete paralysis. For the minor extremity, a 10 percent rating is warranted for mild incomplete paralysis; a 20 percent rating is warranted for moderate incomplete paralysis; and a higher 30 percent rating is warranted for severe incomplete paralysis. Diagnostic Code 8616 refers to neuritis of the ulnar nerve while Diagnostic Code 8716 refers to neuralgia of the ulnar nerve. A Note following the criteria for the upper extremity nerve groups states that combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. Turning to the facts of the case, at the November 2011 VA examination, there was no evidence of spasms, tenderness, guarding, weakness, loss of tone, or atrophy of the limbs. The examiner noted a sensory deficit of bilateral ulnar nerve of the bilateral ring fingers and bilateral little fingers. Reflexes of the Veteran's bilateral upper extremities were normal. At the March 2013 VA examination, the Veteran endorsed normal muscle strength with movement throughout the bilateral upper extremities along with normal deep tendon reflexes and normal sensation to light touch. There was no evidence of trophic changes. At the January 2015 VA examination, the Veteran denied experiencing radiation of neck pain to his arms. Testing revealed normal muscle strength bilaterally upon movement. There was no evidence of muscle atrophy and the Veteran's deep tendon reflexes and sensation to light touch were normal bilaterally. In an April 2015 neurological consultation, the Veteran's motor strength, reflexes, and sensation were intact and normal. In the June 2016 DBQ, the Veteran denied experiencing pain, numbness, paresthesias, or dysesthesias of the bilateral upper extremities. He demonstrated normal muscle strength with movement throughout the bilateral upper extremities and there was no evidence of muscle atrophy. His deep tendon reflexes and sensation to light touch were all within normal limits. There were no trophic changes in either extremity. The examiner found that the Veteran's nerves and radicular groups were all within normal limits. Most recently, at the February 2020 VA examination, the Veteran reported tingling down the back of both arms and shooting pain to his elbows, along with increased numbness in the 4th and 5th fingers during cold weather. Objectively, the Veteran demonstrated normal muscle strength with movement in the bilateral extremities. Testing revealed normal deep tendon reflexes and normal sensation to light touch in the bilateral shoulders and forearms; there was some decreased sensation in the bilateral hands and fingers. Ultimately, the examiner found that the Veteran's upper extremity nerves were within normal limits but noted mild incomplete paralysis of the left ulnar nerve. Based on the above, the Board finds that ratings higher than 10 percent are not warranted for bilateral IVDS with ulnar nerve involvement as the symptoms demonstrated by the lay and medical evidence more nearly approximate that which is contemplated by mild incomplete paralysis of the ulnar nerves. Here, the Veteran has described upper extremity symptoms from his cervical spine down to his fingers. There is confirmed impairment of the ulnar nerves as well as electrodiagnostic evidence of chronic cervical radicular irritation. While the Veteran reports symptoms of pain, numbness, and tingling, along with some recent decreased sensation in the hands and fingers, there is no indication that such symptoms result in functional impairment. During the appeal period, the Veteran maintained normal strength in the extremities, along with deep tendon reflexes and sensation to light touch. There was no evidence of atrophy or trophic changes of the bilateral extremities. By his own descriptions, the severity of the Veteran's impairment of the bilateral ulnar nerves is no worse than mild incomplete paralysis. Accordingly, the claim for higher ratings for IVDS with bilateral ulnar nerve involvement is denied. REASONS FOR REMAND The Veteran is seeking increased staged ratings for his service-connected lumbar spine disability, as well as an increased initial rating for his service-connected IVDS with sciatic nerve involvement of the right lower extremity. The record reflects that the Veteran underwent a lumbar laminectomy and discectomy in March 2011, during the appeal period. Notably, records related to the Veteran's surgery and subsequent convalesce (if any) are not associated with the claims file. In order to properly adjudicate the Veteran's claims for increased ratings, it is imperative that the RO attempt to obtain these records. Thereafter, the RO should determine whether the Veteran is entitlement to a temporary total evaluation at any time during the appeal period secondary to his lumbar spine disability. The matters are REMANDED for the following action: 1. Contact the Veteran and his attorney and with their assistance, identify any outstanding records pertaining to the Veteran's lumbar spine disability and right sciatic nerve disability, specifically those related to the Veteran's March 2011 lumbar surgery and any subsequent surgeries related to the lumbar spine. After obtaining the proper authorizations, obtain those records and associate them with the claims file. Any private records deemed unavailable must be documented in the claims file and identified as such to the Veteran. 2. After completion of records development, readjudicate the Veteran's increased rating claims on appeal. If the claim remains denied, a supplemental statement of the case should be provided to the Veteran and his attorney. After they have had an adequate opportunity to respond, the case should be returned to the Board for further appellate review. L. BARSTOW Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Orie, 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.