Citation Nr: 21013609 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-40 482 DATE: March 10, 2021 ORDER A disability rating in excess of 20 percent prior to May 22, 2017 for right upper extremity radiculopathy is denied. A disability rating of 40 percent, but no higher, from May 22, 2017 for right upper extremity radiculopathy is granted, subject to regulations governing the payment of monetary awards. Entitlement to a disability rating in excess of 20 percent prior to January 19, 2018 for cervical spondylosis is denied. Entitlement to a disability rating in excess of 30 percent from January 19, 2018 for cervical spondylosis is denied. A separate 30 percent rating from January 19, 2018 for left upper extremity radiculopathy is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a total disability rating due to individual unemployability due to service-connected disabilities (TDIU) is remanded.   FINDINGS OF FACT 1. The Veteran’s right upper extremity radiculopathy was not manifest by moderate incomplete paralysis prior to May 22, 2017. 2. The Veteran’s right upper extremity radiculopathy was manifest by moderate incomplete paralysis from May 22, 2017. 3. The Veteran’s cervical spondylosis is not characterized by forward flexion of the cervical spine of 15 degrees or less, nor is there evidence of ankylosis prior to January 19, 2018. 4. The Veteran’s cervical spondylosis is not characterized by unfavorable ankylosis of the entire cervical spine from January 19, 2018. 5. From January 19, 2018, the evidence is at least in equipoise that the Veteran has experienced radiculopathy of the left upper extremity manifested by moderate incomplete paralysis. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent prior to May 22, 2017 for right upper extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8511. 2. The criteria for a disability rating of 40 percent, but no higher, from May 22, 2017 for right upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8511. 3. The criteria for a disability rating in excess of 20 percent prior to January 19, 2018 for cervical spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 4. The criteria for a disability rating in excess of 30 percent from January 19, 2018 for cervical spondylosis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5237. 5. From January 19, 2018, the criteria for a separate 30 percent rating for left upper extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from May 1983 to May 1987. These matters are before the Board of Veterans’ Appeals (Board) on appeal of a November 2014 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during a travel board hearing in August 2018, and a transcript of this hearing are associated with the claims file. The Board previously remanded these matters in a March 2019 decision for further development. During development, the cervical spondylosis and right upper extremity radiculopathy disability ratings were increased to 30 percent, effective January 19, 2018 for the cervical spondylosis and 40 percent, effective December 19, 2019 for the right upper extremity radiculopathy. Thus, the appeal has resulted in staged ratings and both periods remain on appeal. The matter has since been returned to the Board for further consideration. Increased Rating Generally, disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule). 38 C.F.R. Part 4. The Rating Schedule is primarily a guide used in the evaluation of disabilities encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155, 38 C.F.R. § 4.1. A Veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a Veteran may experience multiple distinct degrees of disability that might result in different levels of compensation. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In making all determinations, the Board must fully consider the lay assertions of record. A lay person is competent to report on the onset and recurrence of his symptoms. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a veteran is competent to report on that of which he or she has personal knowledge). 1. Right Upper Extremity Radiculopathy The Veteran currently has a disability rating of 20 percent for his right upper extremity radiculopathy prior to December 19, 2019 and has a rating of 40 percent from December 19, 2019. The record, including the reports of October 2014, June 2016, and January 2018 VA examinations, reflects that the Veteran is right hand dominant. Therefore, for rating purposes, his right upper extremity is the major extremity. 38 C.F.R. § 4.69. Major upper extremity radiculopathy is rated under Diagnostic Code 8511 for impairment of the middle radicular group. Diagnostic Code 8511 provides a 20 percent rating for mild incomplete paralysis of the major extremity; a 40 percent rating for moderate incomplete paralysis of the major extremity; and a 50 percent rating for severe incomplete paralysis of the major extremity. Where there is complete paralysis, as manifested by adduction, abduction and rotation of the arms, flexion of elbow, and extension of the wrist lost or severely affected, a 70 percent rating is assigned for the major extremity. 38 C.F.R. § 4.124a. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124. The Board notes that 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 order to arrive at a decision regarding an increased rating. 38 U.S.C. § 7104; 38 C.F.R. §§ 4.2, 4.6. Throughout VA treatment records, the Veteran complained of radicular pain in his right shoulder, arm, and hand. The Veteran underwent VA examinations of his right upper extremity radiculopathy in December 2013, October 2014, June 2016, January 2018, and December 2019. In the December 2013 VA examination, the examiner noted the Veteran had radiculopathy in his right upper extremity, with mild intermittent pain but no constant pain, paresthesias, dysesthesias, or numbness. The Veteran’s C5/C6 nerves were involved, and the severity of his radiculopathy was noted as being mild. Muscle strength testing was normal throughout the right upper extremity and there was no muscle atrophy. Reflex testing and sensory testing were normal. In the October 2014 VA examination, the Veteran had moderate intermittent pain, paresthesias/dysesthesias and numbness but no constant pain. The examiner also noted the Veteran had right C5 dermatome to the hand that was recurrent. Muscle strength testing was normal throughout the right upper extremity and there was no muscle atrophy. Reflex testing and sensory testing were normal. The Veteran’s radiculopathy was noted as being mild in severity. On June 2016 examination, the Veteran reported that he got numbness and tingling down the right side of his neck into his right upper arm. He reported having moderate intermittent pain, paresthesias/dysesthesias, and numbness, but no constant pain. Muscle strength testing was normal throughout the right upper extremity and there was no muscle atrophy. Reflex testing was normal. Sensory examination revealed decreased sensation to light touch at the shoulder area, inner/outer forearm, and hand/fingers. There were no trophic changes. The severity of the Veteran’s radiculopathy was noted as being mild incomplete paralysis. August 2017 private treatment records from Dr. L.L. reflect the Veteran experienced spasms in the right arm. He reported he had pain in the right arm that radiated down into his fingers and that when he lay on his arm the pain became worse. He reported the pain and spasms were constant. There was normal power, tone, and bulk proximally and distally in the upper extremities, except at the right triceps. Sensory testing was intact, and reflexes were 3-4+. In the January 2018 VA Cervical Spine examination, the Veteran had moderate constant pain, intermittent pain, paresthesias/dysesthesias, and numbness; however, the examiner indicated the severity of his radiculopathy was mild. The Veteran also indicated that he had constant neck pain of an 8/10 that radiated to his right arm and down to his lower back, as well as a constant “pins and needles” feeling in his right arm. Muscle strength testing was normal throughout the right upper extremity and there was no muscle atrophy. Reflexes were hypoactive at the bicep, tricep, and brachioradialis. Sensory testing revealed decreased sensation to light touch at the shoulder area, inner/outer forearm, and hand/fingers. On January 2018 Diabetic Sensory – Motor Peripheral Neuropathy exam, the examiner noted the Veteran had normal position sensation but decreased vibration sensation and cold sensation in the right upper extremity. The examiner also stated that a May 22, 2017 MRI showed multilevel severe degeneration with canal compromise from C3-C6 with mild to moderate foraminal narrowing, which was causing an increase in radiculopathy. The examiner indicated that decreased sensation and pain impacted the Veteran’s ability to stand for prolonged periods of time or lift. At the August 2018 Board hearing, the Veteran testified that he experienced radiating pain and numbness in his right arm and a loss of grip strength in his right hand. He reported having weakened movements and difficulty rotating his right arm. He stated that he had sharp, jabbing pains down his shoulder into his hands and extreme sensitivity to touch. February 2019 private treatment records from St. Mary’s Neurology Center, Inc. show the Veteran’s EMG/NCV results showed the Veteran’s median sensory nerves had decreased conduction velocity, indicating the Veteran had chronic radiculopathy in the right side at C5-6 and C6-7, and had no evidence of carpal tunnel syndrome. In the December 2019 VA examination, the Veteran had moderate constant pain, no intermittent pain, and moderate paresthesias/dysesthesias and numbness. Muscle strength testing revealed 4/5 strength (active movement against some resistance) for elbow flexion and extension, wrist flexion and extension, and finger flexion and extension. The Veteran did not have muscle atrophy. Reflex testing was hypoactive at the bicep, tricep, and brachioradialis. Sensory examination was decreased as the shoulder area, inner/outer forearm, and hand/fingers. The severity of the Veteran’s radiculopathy was noted as being moderate. The Veteran also reported that he had constant right neck pain with a burning or aching sensation at about a 7/10 that radiates down his right arm causing a burning pain that is about a 6/10. He also experiences constant numbness and tingling in both of his arms that goes down to his fingertips. After reviewing the evidence of record, and with consideration of the benefit of the doubt doctrine, the Board finds that the preponderance of the evidence is against a rating in excess of 20 percent prior to May 22, 2017, the date of the MRI that the January 2018 VA examiner indicated reflected a worsening of the Veteran’s radiculopathy. While the Veteran has demonstrated that he has radiculopathy of the right upper extremity and that it has continued to get worse over the years, he has not demonstrated that his right upper extremity radiculopathy is more nearly approximated by a rating greater than mild impairment prior to May 22, 2017. In the Veteran’s December 2013 examination, he only had mild intermittent pain, with no other symptoms of radicular pain, he had no constant pain, paresthesias, dysesthesias, or numbness, and the severity of his radiculopathy was noted as being mild. Muscle strength, reflex, and sensory test results were all normal and there was no muscle atrophy. In his October 2014 and June 2016 VA examinations, the Veteran had moderate intermittent pain, paresthesias/dysesthesias and numbness but no constant pain. Muscle strength and reflex test results were normal and there was no muscle atrophy. Sensation testing was normal at the October 2014 VA examination. Although sensation testing was decreased at the June 2016 examination, such findings are still representative of mild incomplete paralysis. 38 C.F.R. § 4.124a; see Miller v. Shulkin, 28 Vet. App. 376 (2017). Additionally, while the Veteran complained of stiffness and pain in his neck as well as numbness and tingling down his right arm, there is no indication of this numbness and tingling increasing the Veteran’s radiculopathy to a moderate level, especially when combined with the fact that the Veteran had no constant pain and only mild overall radicular impairment. Therefore, the claim for a rating in excess of 20 percent prior to May 22, 2017 must be denied. 38 C.F.R.§ 4.124a, Diagnostic Code 8511. The evidence of record is at least in equipoise as to whether the Veteran’s right upper extremity radiculopathy is more nearly approximated by a rating of moderate incomplete paralysis from May 22, 2017 forward. As noted above, the January 2018 VA examiner indicated that the May 22, 2017 MRI reflected that his cervical degeneration causing foraminal narrowing had caused an increase in his radiculopathy. Such an increase is supported by the findings noted at the subsequent January 2018 VA examination as reflex testing was hypoactive throughout the right upper extremity. Additionally, sensation was decreased throughout the right upper extremity. The Veteran also had decreased vibration sensation and cold sensation. The Veteran reported having moderate constant pain, intermittent pain, paresthesias/dysesthesias, and numbness. Additionally, he reported having radicular right arm pain of about a 7/10, along with increased numbness and tingling in his arm and fingers. Although the examiner noted the Veteran’s overall severity of his radiculopathy as being “mild,” this term is not dispositive of the Veteran’s condition. As such, the Board finds that the balance of the evidence is in equipoise, and thus should go in the Veteran’s favor. 38 U.S.C. § 5107(b). Therefore, a disability rating of 40 percent, but no higher, is granted from May 22, 2017. However, the preponderance of the evidence of record is against finding that the Veteran’s right upper extremity radiculopathy is more nearly approximated by severe incomplete paralysis. The Veteran’s reports during his January 2018 and December 2019 VA examinations indicate that his constant and intermittent pain, as well as paresthesias/dysesthesias and numbness are moderate, and there is no showing that his symptoms were “severe.” The numbness, tingling, and burning sensations the Veteran described in the December 2019 examination again are almost the same as those described in his January 2018 examination, which was more nearly approximated by moderate impairment. He also described similar symptoms at the August 2018 Board hearing. Although reflexes were hypoactive on January 2018 and December 2019 examinations and muscle strength was decreased to 4/5 on December 2019 examination, such impairment is most nearly approximated by moderate incomplete paralysis. There was no muscle atrophy or trophic changes in the right upper extremity and reflexes were still present. Although the EMG/NCV results from St. Mary’s Neurology Center, Inc. show the Veteran has chronic radiculopathy, they do not indicate the severity of his radiculopathy. Therefore, the Board finds the Veteran’s right upper extremity radiculopathy is most closely approximated by moderate impairment, and a rating in excess of 40 percent is not warranted from May 22, 2017. Overall, the preponderance of the evidence is against a disability rating in excess of 20 percent for the Veteran’s service-connected right upper extremity radiculopathy prior to May 22, 2017. However, a disability rating of 40 percent, but no higher, from May 22, 2017 forward is warranted. 2. Cervical spondylosis The Veteran has a disability rating of 20 percent for his cervical spondylosis prior to January 19, 2018 and a rating of 30 percent from January 19, 2018 under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Spine disabilities are rated pursuant to the criteria of a General Rating Formula for Diseases and Injuries of the Spine which governs Diagnostic Codes 5235 to 5243, set forth in 38 C.F.R. § 4.71a, unless Diagnostic Code 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. Note (2) provides that, for VA compensation purposes, normal forward flexion of the cervical spine is 0 degrees to 45 degrees, extension is 0 degrees to 45 degrees, left and right lateral flexion are 0 degrees to 45 degrees, and left and right lateral rotation are 0 degrees to 80 degrees. The normal combined range of motion of the thoracolumbar spine is 340 degrees. See also Plate V, 38 C.F.R. § 4.71a. Under the General Rating Formula, a 20 percent disability rating is assigned 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 assigned for forward flexion of the cervical spine 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 40 percent rating is warranted for unfavorable ankylosis of the entire cervical spine. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. Under the rating criteria for the cervical spine, it is necessary to show ankylosis for a rating higher than 30 percent. More generally, disability of the musculoskeletal system is primarily the inability, due to damage or infection in parts of the system, to perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance. Functional loss may be due to the absence or deformity of structures or other pathology, or it may be due to pain, supported by adequate pathology and evidenced by the visible behavior in undertaking the motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. 38 C.F.R. § 4.40. With respect to joints in particular, the factors of disability reside in reductions of normal excursion of movements in different planes. Inquiry will be directed to more or less than normal movement, weakened movement, excess fatigability, incoordination, pain on movement, swelling, deformity, or atrophy of disuse. 38 C.F.R. § 4.45. In addition, the intent of the Rating Schedule is to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimal compensable rating for the joint. 38 C.F.R. § 4.59. This regulation also provides that the intent of the Rating Schedule is to recognize painful motion with joint or periarticular pathology as productive of disability, and that crepitation should be noted carefully as points of contact which are diseased. Thus, when assessing the severity of a musculoskeletal disability that, as here, is at least partly rated on the basis of limitation of motion, VA must also consider the extent that the veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent (“flare-ups”) due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination, assuming these factors are not already contemplated by the governing rating criteria. DeLuca v. Brown, 8 Vet. App. 202, 204-07 (1995). A finding of functional loss due to pain must be supported by adequate pathology and evidenced by the visible behavior of the claimant. 38 C.F.R. § 4.40; Johnston v. Brown, 10 Vet. App. 80, 85 (1997). And although VA is required to apply 38 C.F.R. §§ 4.40 and 4.45, pertaining to functional impairment for disabilities evaluated on the basis of limitation of motion, where the Veteran is in receipt of the maximum schedular evaluation based on limitation of motion and a higher rating requires ankylosis, these regulations are not for application. Johnston, 10 Vet. App. at 84-85. Moreover, pain itself does not constitute functional loss. Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Rather, pain must affect some aspect of “the normal working movements of the body” such as “excursion, strength, speed, coordination, and endurance,” in order to constitute functional loss. Id; see 38 C.F.R. § 4.40. Under the Formula for Rating IVDS, 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. 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 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 months. 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. The criteria used to evaluate the spine were revised, effective February 7, 2021. The revisions defined Diagnostic Code 5243 for IVDS as disc herniation with compression and/or irritation of the adjacent nerve root. The revisions indicated that Diagnostic Code 5242 should be assigned for all other disc diagnoses. The revisions also indicated that evaluation under the Formula for Rating IVDS was only available for disabilities evaluated under Diagnostic Code 5243. Schedule for Rating Disabilities: Musculoskeletal System and Muscle Injuries, 85 Fed. Reg. 76,453 (Nov. 30, 2020) (to be codified at 38 C.F.R. § 4.71a, Diagnostic Code 5243). Throughout VA treatment records, the Veteran complained of chronic neck pain. The Veteran underwent VA examinations of his cervical spine in December 2013, October 2014, June 2016, January 2018, and December 2019. In his December 2013 examination, the Veteran reported that he had been undergoing physical therapy for pain relief in the neck and that it would help for a few days, but then the pain would start to get bad again. He reported his pain was present daily, most days at a 6 out of 10 pain level. The Veteran reported that he did not have flare ups. The Veteran’s initial range of motion measurements included forward flexion to 30 degrees, with pain noted at 20 degrees. No additional loss was noted after repetitive use testing. The examiner indicated contributing factors of disability were less movement than normal, pain on movement, and interference with driving. The Veteran had localized tenderness or pain on palpation of his cervical spine. The Veteran did not have muscle spasm or guarding resulting in abnormal gait or abnormal spine contour. No ankylosis or IVDS was noted. The Veteran also has arthritis of his cervical spine. Muscle strength testing on the left upper extremity was normal and there was no muscle atrophy. Reflex and sensation testing were also normal on the left upper extremity. The examiner also noted the Veteran’s neck pain impacted his job on a fire rescue squad to the point the Veteran was considering retiring. His neck pain also impacted his ability to drive. On October 2014 VA examination, the Veteran reported that his pain had increased since his last examination and was often worse at night and would wake him up. He stated that he had constant pain at a 6 or 7 level on a 10-pain scale. He stated that he did not experience flare ups. Initial forward flexion was to 25 degrees, with pain noted at 0 degrees. There was no additional loss after repetitive movement testing. Other contributing factors of disability were noted to be less movement than normal and pain on movement. The Veteran had tenderness or pain on palpation. Muscle strength, reflexes, and sensation testing of the left upper extremity were all normal and the Veteran did not report any signs or symptoms of radiculopathy in the left upper extremity. There were also no other neurologic abnormalities noted. The Veteran did not have ankylosis or IVDS. In the June 2016 VA examination, the Veteran reported continuing to have stiffness and pain. He stated he experienced popping in the neck. He reported he did not have flare ups. He experienced pain with heavy lifting. The Veteran’s initial forward flexion was to 45 degrees with pain that did not result in or cause functional loss. No additional loss was noted after repetitive use testing. Additional contributing factors of disability were less movement than normal. The Veteran had pain with weightbearing and localized tenderness at C3-C5 vertebrae. Muscle strength, reflex, and sensation testing of the left upper extremity were normal, and the Veteran did not report any signs or symptoms of left upper extremity radiculopathy. There were no other neurologic abnormalities noted. The Veteran did not have ankylosis or IVDS and had not had any episodes of acute signs or symptoms that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. May 2017 private MRI results reflected multilevel severe degenerative changes with moderate canal compromise from C3-C6 with foraminal narrowing mild to moderate and straightening of the cervical spine. It was noted that there was cervical spondylosis with stenosis involving C3-C7 with both radiculopathy and myelopathy. August 2017 private treatment records reflected decreased sensation in the C5-C6 nerve root on the right side, but the left side was normal. On January 19, 2018 VA examination, the Veteran reported having constant 8 out of 10 neck pain that radiated into the right arm. He also had left-sided neck tightness with intermittent left arm pain, numbness and tingling. He reported flare ups 2 to 3 times a day when he would get a pinched nerve feeling. The feeling would last about an hour until he got a massage or used a TENS unit. He reported functional loss from not being able to drive, twist or turn his neck, bend, lift or play with his grandchildren or do lawn work. The Veteran’s initial forward flexion was to 10 degrees with pain. Pain was noted on movement in all directions and limited the Veteran’s ability to do activities of daily living such as driving or household chores. His limited range of motion caused muscle spasms and tension. The Veteran’s ranges of motion after repetitive use testing were as follows: forward flexion of 5 degrees. Pain, fatigue, and weakness were noted to cause this functional loss. Less movement than normal was an additional factor contributing to disability. Localized tenderness resulting in abnormal gait or spine contour was noted. The Veteran had normal muscle strength in the left upper extremity but had hypoactive reflexes and decreased sensation in all areas tested in the left upper extremity. The Veteran reported having moderate intermittent pain, paresthesias and/or dysesthesias, and numbness in the left upper extremity. Mild radiculopathy in the left upper extremity was noted. There were no other neurologic abnormalities noted. There was no ankylosis or IVDS. The examiner also changed the Veteran’s diagnosis from cervical spondylosis to cervical spine stenosis, remarking that the cervical stenosis was a progression of the cervical spondylosis, because there is now a foraminal narrowing of the cervical spine, causing myelopathy and radiculopathy. The Veteran occasionally used a cane and regularly used a walker for stability. The functional impact was that the Veteran could not look down, bend, turn/twist, or lift. In the December 2019 VA examination, the Veteran reported constant right neck pain of a burning or aching nature that was a 7 on a 10-pain scale and constant left neck pain of a burning or tight nature that was a 6 on a 10 pain-scale. He reported having flare ups with neck pain increasing to 10, 2 to 3 times a day, lasting 30 minutes. It was noted that the Veteran’s limited range of motion in the neck made it difficult to rotate his neck which caused difficulty when driving, so the Veteran could no longer drive. He had trouble lifting and doing chores as he was unable to look up or down well and lifting caused pain. The Veteran’s initial forward flexion was to 10 degrees with pain. The Veteran’s range of motion contributed to functional loss because he cannot turn his head very well and cannot drive as a result. Pain was noted on exam and caused functional loss. No additional loss was noted after repetitive testing. Pain and weakness significantly limited functional ability with repeated use over time and during flare ups, but forward flexion was noted to be to 10 degrees. The examiner noted the exam was conducted during a flare up. Localized tenderness, muscle spasms, and guarding were noted, but did not result in abnormal gait or contour of the spine. Muscle strength in the left upper extremity was noted as being 4/5, with hypoactive reflexes and decreased sensation in all areas tested. The Veteran reported having moderate constant pain, paresthesias and /or dysesthesias, and numbness in the left upper extremity. There was no ankylosis or IVDS. There were no neurologic abnormalities other than right and left upper extremity radiculopathy. The Veteran occasionally uses a cane and regularly uses a walker due to his cervical spine. The Veteran’s May 2017 MRI shows a straightening of the cervical spine, and a January 2019 x-ray shows moderate degenerative joint disease at C4-C7 with spondylosis. The Veteran also submitted private treatment records from Hoffman Chiropractic Centre which reflected continued pain and limited range of motion, although exact ranges of motion were not provided. For example, in January 2019, the Veteran complained of pain on the left side of his neck, as well as in his left trapezius, posterior shoulder, triceps, elbow, and posterior forearm and wrist. The Veteran also reported neck spasms on both sides of his neck and trapezius muscles. Cervical flexion was recorded as being moderately reduced with pain noted, but a specific range of motion was not provided. The Veteran’s treating chiropractor, Dr. J.B., provided a statement in January 2019 explaining that the Veteran’s cervical spine degeneration has progressed, and while he is able to alleviate some of his symptoms, his condition will continue to progress over time and has a poor long-term prognosis. Upon review of the relevant evidence in the record, the Board finds, first, that a disability rating in excess of 20 percent for the Veteran’s cervical spondylosis prior to January 19, 2018 is not warranted. In order to obtain a higher rating for the Veteran’s cervical spondylosis, it is necessary to show that his forward flexion of the cervical spine is 15 degrees or less, or that he has favorable ankylosis of the entire cervical spine. Here, however, the Veteran was found to have forward flexion of no less than 25 degrees, which is higher than the requirement for a disability rating of 30 percent. Additionally, the Veteran does not have ankylosis, favorable or unfavorable, of the cervical spine. The Board has considered whether a rating in excess of 20 percent is warranted based on pain and functional loss. On October 2014 examination, the examiner indicated that pain began at 0 degrees, but the Veteran still had forward flexion to 25 degrees. There also was no additional loss of range of motion on repetitive use testing and no flare ups reported. On December 2013 and June 2016 examinations although the Veteran reported constant pain, there was no additional loss after repetitive use testing and no flare ups. Therefore, the Board finds that contributing factors of pain did not result in additional loss of forward flexion that would more nearly approximate forward flexion to 15 degrees or less or favorable ankylosis. Therefore, the Board finds that a rating in excess of 20 percent is not warranted for the Veteran’s cervical spondylosis during the period prior to January 19, 2018. As for the period from January 19, 2018, in order to obtain a rating in excess of 30 percent for the Veteran’s cervical spondylosis, it is necessary to show unfavorable ankylosis of the entire cervical spine. Here, however, the Veteran has not been found to have any ankylosis, favorable or unfavorable, at any point during the appeal period. Therefore, the Board finds that a disability rating in excess of 30 percent is not warranted for the Veteran’s cervical spondylosis from January 19, 2018. Additionally, there is no evidence that the Veteran has been diagnosed with IVDS at any time during the appeal period and there is no evidence of incapacitating episodes; thus, evaluation under the Formula for Rating IVDS based on Incapacitating Episodes is not appropriate both prior to and from February 7, 2021, the date of the revised regulations. Pursuant to Note (1), the Board has considered whether separate ratings are warranted for associated neurologic symptoms. In a November 2014 rating decision, the Veteran was awarded a separate rating of 20 percent for right upper extremity radiculopathy, which the Veteran appealed and is separately addressed above. In a February 2019 rating decision, the Veteran was awarded a separate rating of 30 percent for left upper extremity radiculopathy, effective August 10, 2018, under 38 C.F.R. § 4.124a, Diagnostic Code 8510. The Veteran has not appealed the rating assigned. However, prior to the effective date of service connection, Note (1) applied in conjunction with the Veteran’s claim for an increased rating for the cervical spine regarding whether there was any separate compensable neurologic impairment. Here, the record reflects that at the January 19, 2018 examination, the Veteran had decreased sensation and hypoactive reflexes in all areas tested in the left upper extremity. He also reported having moderate intermittent pain, paresthesias and dysesthesias, and numbness. Therefore, pursuant to consideration of Note (1), the Board concludes that the Veteran is entitled to a separate 30 percent rating for left upper extremity radiculopathy with moderate incomplete paralysis from an earlier date of January 19, 2018. Prior to January 19, 2018, the evidence did not reflect that the Veteran experienced any signs or symptoms of left upper extremity radiculopathy, including the signs and symptoms noted in the December 2013, October 2014, and June 2016 VA examination reports. Although the May 2017 MRI generally reflected radiculopathy, a subsequent August 2017 private treatment note indicated that there was no left sided nerve root impairment. Therefore, it was not factually ascertainable prior to January 19, 2018 that the Veteran had left upper extremity radiculopathy manifested by moderate incomplete paralysis. Separate evaluations for other neurological disabilities are not warranted for the entire period on appeal as no such additional neurological disability has been diagnosed. Overall, the preponderance of the evidence is against a finding that a disability rating in excess of 20 percent for the Veteran’s service-connected cervical spondylosis prior to January 19, 2018 and a disability rating in excess of 30 percent from January 19, 2018 is warranted. However, a separate 30 percent rating for left upper extremity radiculopathy is warranted from January 19, 2018. REASONS FOR REMAND Entitlement to TDIU is remanded. The Board finds that the issue of entitlement to a TDIU has been raised by the record as part and parcel of the claims for increased ratings. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). Specifically, on December 2019 VA examination of the cervical spine, the examiner noted that the Veteran used to drive a bus, that his neck disability made it difficult for him to turn his neck, and that the Veteran felt he would be unable to drive a bus at all now and that he no longer drove a personal vehicle due to his neck disability. Additionally, on December 2013 VA examination, the Veteran reported that his neck pain impacted his job at that time on a fire rescue squad to the point that he was considering retiring. As the issue of entitlement to a TDIU has been raised by the record but not developed by the agency of original jurisdiction (AOJ), remand is necessary for the AOJ to adjudicate the issue of entitlement to a TDIU in the first instance. The record also reflects the Veteran receives VA treatment; thus, updated VA treatment records should be associated with the claims file. The matter is REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from July 2020 to the present. 2. Provide the Veteran with appropriate notice regarding the TDIU claim and request a completed VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability. Complete any other development needed before adjudicating the claim of TDIU. M. SORISIO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Gabrielle Ongies, 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.