Citation Nr: 21028371 Decision Date: 05/11/21 Archive Date: 05/11/21 DOCKET NO. 16-27 433A DATE: May 11, 2021 ORDER Entitlement to an increased rating of 20 percent, but no greater, for thoracolumbar arthritis is granted for the entire period on appeal. Entitlement to an increased rating for cervical strain with degenerative arthritis greater than 10 percent prior to September 25, 2020, is denied. Entitlement to an increased rating of 30 percent, but no greater, for cervical strain with degenerative arthritis from September 25, 2020, is granted. Entitlement to an increased evaluation greater than 10 percent for right sciatic radicular pain is denied. FINDINGS OF FACT 1. The Veteran's thoracolumbar arthritis was manifested by forward flexion of greater than 30 degrees but not greater than 60 degrees, combined range of motion not greater than 120 degrees without ankylosis for the entire period on appeal. 2. The Veteran's cervical strain with degenerative arthritis was manifest by combined range of motion greater than 170 degrees but not greater than 335 degrees and forward flexion of the cervical spine greater than 30 degrees but not greater than 40 degrees, degenerative arthritis, and with painful motion upon examination and prior to September 25, 2020. 3. The Veteran's cervical strain with degenerative arthritis was manifest by flare-ups with forward flexion of the cervical spine of 15 degrees or less without ankylosis and a combined range of motion not greater than 170 degrees on and after September 25, 2020. 4. The Veteran's right lower extremity radiculopathy is manifest by no more than mild incomplete paralysis during the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for an initial increased rating of 20 percent, but no higher, for thoracolumbar arthritis have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Codes 5242. 2. The criteria for an initial increased rating for cervical strain with degenerative arthritis in excess of 10 percent prior to September 25, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 3. The criteria for an increased rating of 30 percent, but no higher, for cervical strain with degenerative arthritis from September 25, 2020, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code 5237. 4. The criteria for a disability rating in excess of 10 percent for right sciatic radicular pain have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 2002 to February 2006. These matters return to the Board of Veterans' Appeals (Board) after a November 2018 Board remand. The November 2018 granted an initial increased rating of 10 percent disabling up to the November 2018 Board decision for thoracolumbar spine, cervical spine, and right sciatic radicular pain. The November 2018 decision remanded these three issues for further development. During the course of the remand, the Veteran was service connected for lower left extremity radiculopathy (left leg sciatic pain) at a rating of 10 percent disabling in a June 2020 rating decision by the agency of original jurisdiction (AOJ). The Veteran has not yet disagreed with the initial rating, and the time to appeal this issue has not yet expired. The Board finds substantial compliance with the November 2018 remand directives and therefore provides this decision on the merits under the legacy appeal framework. 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 of 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 determining the degree of limitation of motion, VA must consider the provisions of 38 C.F.R. §§ 4.10, 4.40, and 4.45. See DeLuca v. Brown, 8 Vet. App. 202 (1995). The basis of disability evaluation is the ability of the body as a whole, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. 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. 1. Entitlement an initial increased rating of 20 percent for thoracolumbar arthritis The Veteran contends that his thoracolumbar arthritis has worsened since the initial rating for service connection. 38 C.F.R. § 4.71a lays out the diagnostic codes for the cervical and lumbar spines in diagnostic codes 5235 through 5243 under the General Rating Formula for Disease and Injuries of the Spine. A 40 percent disabling rating is appropriate with manifestation(s) of forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. The thoracolumbar spine does not have a 30 percent rating. A 20 percent disabling rating is appropriate with manifestation(s) of forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent disabling rating is appropriate with manifestation(s) forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 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. Prior to the November 2019 VA examination, the Veteran's thoracolumbar spine disability was rated at 10 percent disabling based on objective symptoms of spasms without annotation of abnormal gait or abnormal spinal curvature. See, e.g., June 2015 to December 2015 Chiropractic Treatment Notes; February 2016 Orthopedic Surgery Consult Note. The Veteran was afforded two VA examinations for this thoracolumbar spine disability after the November 2018 Board remand. The first in November 2019 and the second in September 2020. Both examinations are found probative as to the Veteran's thoracolumbar disability and show progression of the Veteran's condition. A November 2019 examination show that the Veteran's thoracolumbar spine disability had progressed but was manifested by symptoms meeting a 10 percent disabling rating. At the November 2019 VA examination, the Veteran's thoracolumbar ranges of motion were found to be as follows: forward flexion limited to 70 degrees, extension to 20 degrees, right and left lateral flexion to 30 degrees each, right and left lateral rotation to 25 degrees each. This provides a total range of motion of 200 degrees. The examiner noted that these ranges are abnormal but motion itself does not contribute to functional loss. The examiner noted pain on forward flexion, extension, right and left lateral rotation. There was no evidence of pain on weight bearing and there was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, and no guarding or muscle spasms were noted. Muscle strength was noted to be normal and no muscle atrophy was noted. Repetitive use testing was conducted but there was no additional loss of function or range of motion. The Veteran was examined immediately after repetitive use over time and pain, weakness, fatigability, and/or incoordination did not significantly limit functional ability with repeated use over a period of time. The Veteran was not examined during a flare-up. The examiner did note that pain, weakness, fatigability or incoordination significantly limit functional ability with flare-ups due to pain. The Veteran reported he usually has to rest during flare-ups. During flare-ups the Veteran reported the need for assistance with dressing/bathing. The examiner opined, after examination of the Veteran, listening to his complete history and current subjective complaints, combined with a review of the available records, that there is no basis to offer additional losses of function or during a flare-up or repetitive use particularly since range of motion varies with level of pain during flare up. Reflex testing found right and left knee and ankle reflexes to be normal. Light touch sensory examination results were all normal. Straight leg raising test was positive for both left and right legs. The examiner found intermittent pain to be moderate in both left and right extremities, paresthesias and/or dysesthesias to be mild in both left and right legs and numbness to be mild in both left and right legs. The examiner indicated nerve root involvement at L4/L5/S1/S2/S3 nerve roots bilaterally and that the severity was mild. No other radicular pain symptoms were noted during the thoracolumbar examination. The examiner found no evidence of ankylosis or other neurologic abnormalities. The examiner stated that the Veteran does not have intervertebral disc syndrome (IVDS) of the thoracolumbar spine. The examiner noted that imaging studies of the thoracolumbar spine documented arthritis and that such imaging showed no thoracic vertebral fracture with loss of 50 percent or more of height of a vertebrae. Imaging also found mild spondylosis without acute bony abnormality of the thoracolumbar spine. The examiner opined that the Veteran's thoracolumbar spine condition does not impact his ability to work. The examiner noted that the Veteran does not use assistive devices as a normal mode of locomotion. The Veteran was afforded a second examination in September 2020 which shows objective evidence of worsening of the Veteran's condition. At this time, the facts showed that the Veteran's symptoms manifested as those meeting a 20 percent disability rating. At the September 2020 examination, the Veteran's thoracolumbar ranges of motion were found to be as follows: forward flexion limited to 60 degrees, extension to 20 degrees, right and left lateral flexion to 20 degrees each, right and left lateral rotation to 20 degrees each. This provides a total range of motion of 160 degrees. The examiner noted that these ranges are abnormal and contribute to functional loss. The examiner noted pain on forward flexion, extension, right and left lateral flexion and on left and right lateral rotation. There was no evidence of pain on weight bearing and there was no objective evidence of localized tenderness or pain on palpation of the joints or associated soft tissue of the thoracolumbar spine, no guarding or muscle spasms were noted. The Veteran was not examined immediately after repetitive use over time. The Veteran was able to perform repetitive use testing that resulted in additional loss of function or range of motion. The range of motion after three repetitions was found to be forward flexion limited to 55 degrees, extension to 15 degrees, right and left lateral flexion to 15 degrees each, right and left lateral rotation to 15 degrees each. This provides a total range of motion of 130 degrees. The examiner noted functional loss due to pain and lack of endurance. The examiner noted that the examination results are medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The Veteran was not examined during a flare-up. The Veteran reporting having flare-ups of the back occur daily. The back flare-ups were reported as moderate, lasting an hour or two, and are precipitated by heavy lifting, repetitive bending, prolonged standing, long distance walking. The back flare-ups are alleviated by rest and heat pad treatment. The Veteran reported limited range of motion, difficulty with heavy lifting, bending, prolonged walking and standing during flare-ups. The examiner provided estimated ranges of motion for repeated use over time and flare-ups based on all the evidence and the Veteran's description of his symptoms. The estimated ranges of motion are as follows: forward flexion limited to 50 degrees for repeated motion, forward flexion limited to 45 degrees during flare-ups. The remaining ranges of motion estimates are the same for both flare-ups and repetitive use and are as follows: extension limited to 10 degrees, right and left lateral flexion to 10 degrees each, right and left lateral rotation to 10 degrees each. This provides a total range of motion of 110 degrees during repeated motion and 105 degrees during flare-ups. These ranges of motion result from pain and lack of endurance. The examiner noted that the examination results are medically consistent with the Veteran's statements. Muscle strength testing was found to be normal for all tests. No guarding or muscle spasms, ankylosis, or atrophy of the thoracolumbar spine were noted. No additional factors, such as deformity, swelling, instability of station, interference with standing or sitting, disturbance of locomotion, flail joints, facture nonunion, etc. were noted. Reflex examination was found normal bilaterally as was sensory light touch examination for L2/L3/L4/L5/S1. Strength leg raising test was negative bilaterally. The examiner did note additional signs and symptoms due to radiculopathy, including bilateral mild intermittent pain paresthesias and/or dysesthesias, and numbness. Constant pain was not noted in either extremity. The examiner noted mild nerve root involvement of L4/L5/S1/S2/S3 bilaterally. The examiner opined that the Veteran does not have IVDS of the thoracolumbar spine. The examiner noted that the Veteran does not use any assistive devices as a normal mode of transportation. No other pertinent physical findings, complications, conditions, signs symptoms or scars were noted. The examiner noted that imaging studies were not available for review at the time of the examination and that the Veteran's thoracolumbar spine condition does impact his ability to work. The examiner noted objective evidence of pain on passive range of motion testing of the back, objective evidence of pain on non-weight bearing testing of the back. The examiner also noted that the established diagnosis of thoracolumbar arthritis has changed and progressed, as has the associated radiculopathy. Based on the November 2019 VA examination findings that confirmed arthritis and painful range of motion, and found forward flexion limited at 70 degrees, which is greater than 60 degrees but not greater than 85 degrees, and combined range of motion of 200 degrees, which is greater than 120 degrees but not greater than 235 degrees, the Veteran's symptoms meet the 10 percent disabling rating. However, it cannot be stated with certainty as to precisely when the Veteran's back limitation of motion increased. 38 C.F.R. §§ 3.400. The Veteran's reported flare-ups in the November 2019 VA examination are consistent with the September 2020 VA examination report and prior private treatment record as far back as January 2014, which indicates that the Veteran's back disability remained relatively consistent during this time period, to include the severity of his flare ups. Thus, although the November 2019 VA examination did not provide estimated range of motion loss during flare-ups of the thoracolumbar spine, the Board finds that his back disability so disabling to actually or effectively result in limitation in flexion of greater than 30 degrees but not greater than 60 degrees during this entire period, consistent with the estimated range of motion loss in flexion of the thoracolumbar spine during flare-ups as documented in the September 2020 VA examination report, as the Veteran's reported flare-ups have remained the same. The September 25, 2020, VA examination findings confirmed arthritis and painful range of motion. The examination found range of motion was further limited, with forward flexion limited at 45 degrees, which is greater than 30 degrees but not greater than 60 degrees, and combined range of motion of 105 degrees, which is not greater than 120 degrees but does not exhibit ankylosis. These manifestations align with a 20 percent disabling rating. Therefore, the Veteran is not entitled to rating in excess of 20 percent disabling based on this examination because the symptoms do not more approximate the manifestations necessary for a 40 percent disabling rating, requiring forward flexion of the thoracolumbar spine 30 degrees or less. The Board notes the legal guidance concerning functional impairment assessments in rating orthopedic disabilities during flare ups, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), 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. Additionally, joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38C.F.R. §4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Here, the Board finds that the VA examinations obtained in this case are adequate, as they are predicated on the Veteran's medical history and provides a sufficient evidentiary basis for the claim to be adjudicated. With specific regard to the Veteran's musculoskeletal examinations, to the extent that any of these examinations failed to specifically address limitation of motion on passive, weightbearing, or non-weightbearing testing, the Board is able to assess the level of limitation from the estimated range of motion loss during episodes of flare-ups as discussed in the September 2020 VA examination based on the Veteran's own statements of how his back disability impact him on a day-to-day basis. As the Veteran has indicated flare-ups caused increased back pain, the Board finds it is reasonable to conclude that the limitation of range of motion during a flare-up exhibits the worst of the disability, and therefore the Board does not find that a new examination would be necessary to specifically address these factors. The Veteran was invited to submit any pertinent private records as part of the remand directives. See August 2019 Letter (Request for Veteran to identify any relevant outstanding private treatment records or any other relevant evidence pertaining to his claim). The Veteran did not submit or identify any private records or evidence after the November 2018 Board Remand. All records prior to the November 2018 Board remand and the November 2019 VA examination show that the Veteran's thoracolumbar spine met a 10 percent rating but not greater. Accordingly, affording the Veteran the benefit of the doubt, the Board finds that the overall level of the Veteran's back disability warrants the assignment of a 20 percent rating for the entire period on appeal. However, the preponderance of the evidence regarding the Veteran's thoracolumbar disability is against granting an increased rating in excess of 20 percent. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 2. Entitlement an initial increased evaluation for cervical strain with degenerative arthritis greater than 10 percent prior to September 25, 2020, and in excess of 30 percent thereafter The Veteran contends that his cervical spine strain with degenerative arthritis has worsened since the initial rating for service connection. 38 C.F.R. § 4.71a lays out the diagnostic codes for the cervical and lumbar spines in diagnostic codes 5235 through 5243 under the General Rating Formula for Disease and Injuries of the Spine. A 40 percent disabling rating is appropriate with manifestation(s) of unfavorable ankylosis of the entire cervical spine. A 30 percent disabling rating is appropriate with manifestation(s) of forward flexion of the cervical spine of 15 degrees or less; or, favorable ankylosis of the entire cervical spine. A 20 percent disabling rating is appropriate with a manifestation of 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 10 percent disabling rating is appropriate with manifestation(s) of 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. The Veteran was afforded an examination in September 2020 which showed objective evidence of the Veteran's condition worsening. At this time, the facts showed that the Veteran's symptoms manifested as those meeting a 30 percent disabling rating. At the examination, the Veteran's range of motion for his cervical spine is noted as abnormal and are found to be: forward flexion limited at 30 degrees, extension at 30 degrees, right and left lateral flexion at 30 degrees each, right and left lateral rotation at 50 degrees each. This provides a total range of motion of 220 degrees. The examiner noted that the Veteran's range of motion does not itself contribute to functional loss. The examiner noted pain on forward flexion, extension, both left and right lateral flexion, and on both right and left lateral rotation. No objective evidence of localized tenderness or pain on palpation of the joint or associated soft tissue of the cervical spine were noted. There was no evidence of pain with weight bearing. The Veteran was not being examined immediately after repetitive use over time. Repetitive use testing found additional loss of function or range of motion after three repetitions. The reduced ranges of motion are as follows: forward flexion limited at 25 degrees, extension at 25 degrees, right and left lateral flexion at 25 degrees each, right and left lateral rotation at 45 degrees each. This provides a total range of motion of 190 degrees. The functional loss was attributed to pain and lack of endurance and was found to be medically consistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner provided estimated range of motion for repeated use over time based on functional loss due to pain and lack of endurance. Those ranges of motion are as follows: forward flexion limited at 20 degrees, extension at 20 degrees, right and left lateral flexion at 20 degrees each, right and left lateral rotation at 40 degrees each. This provides a total range of motion of 160 degrees. The Veteran was not examined during a flare-up. The Veteran reported flare-ups of the neck occurring 1-2 times a week. The neck flare-ups were reported as moderate, lasting a day, and are precipitated by prolonged driving, reading, and heavy lifting. The neck flare-ups are alleviated by treatment and rest. The functional loss was attributed to pain and lack of endurance and was found to be medically consistent with the Veteran's statements describing functional loss with flare-ups. The examiner provided estimated ranges of motion during a flare-up which are: forward flexion limited at 15 degrees, extension at 15 degrees, right and left lateral flexion at 15 degrees each, right and left lateral rotation at 35 degrees each. This provides a total range of motion of 130 degrees. No guarding or muscle spasms were noted during the examination. No additional factors, such as deformity, swelling, instability of station, interference with standing or sitting, disturbance of locomotion, flail joints, facture nonunion, etc. were noted. All muscle strength, reflex testing, and sensory examination testing produced normal results. No symptoms of cervical spine radiculopathy were noted. No evidence of ankylosis was found. The examiner opined that the Veteran does not have IVDS of the cervical spine. The examiner noted that the Veteran does not use assistive devices as a normal mode of locomotion. No other pertinent physical findings, complications, conditions, signs symptoms or scars were noted. The examiner noted that imaging studies document arthritis (degenerative joint disease) of the cervical spine. That there are no cervical vertebral fractures with loss of 50 percent or more of height. The examiner opined that the Veteran's cervical spine condition does impact his ability to work. The examiner noted objective evidence of pain on passive range of motion testing of the neck, objective evidence of pain on non-weight bearing testing of the neck, and a goniometer was used for all joint range of motion measurements. The examiner also noted that the established diagnosis of cervical strain has changed and progressed. The September 25, 2020 examination findings confirmed arthritis and painful range of motion. They also found forward flexion limited at 15 degrees, which is 15 degrees or less, but does not exhibit any ankylosis of the cervical spine. This manifestation aligns with the 30 percent disabling rating. Therefore, the Veteran is not entitled to rating in excess of 30 percent disabling based on this examination because the symptoms do not more approximate the manifestations necessary for a 30 percent disabling rating. However, it cannot be stated with certainty as to precisely when the Veteran's neck limitation of motion increased. 38 C.F.R. §§ 3.400. The Veteran's reported, for the first time, flare-ups with the September 2020 VA examination report. He had not reported flare-ups at his 2014 private examinations of record nor at his October 2014 VA examination. No cervical spine flare-ups were reported in any of the Veteran's private records, though flare-ups were reported for the Veteran's thoracolumbar spine in 2014 through 2016. The evidence of record shows that the Veteran's non flare-up cervical spine range of motion greatly decreased from the measurements at his 2014 private examination, to the June 2016, and continued to decrease through those taken at the September 2020 VA examination. As such, the Board cannot say with any certainty when the flare-ups began or their level of impact until the September 2020 VA examination when their impact for was documented for the first time. The Board notes the legal guidance concerning functional impairment assessments in rating orthopedic disabilities during flare ups, in Sharp v. Shulkin, 29 Vet. App. 26 (2017), 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. Additionally, joints should be tested for pain on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. 38C.F.R. §4.59; Correia v. McDonald, 28 Vet. App. 158 (2016). Here, the Board finds that the VA examination obtained in this case is adequate, it is predicated on the Veteran's medical history and provides a sufficient evidentiary basis for the claim to be adjudicated. With specific regard to the Veteran's musculoskeletal examinations, to the extent that any of these examinations failed to specifically address limitation of motion on passive, weightbearing, or non-weightbearing testing, the Board is able to assess the level of limitation from the estimated range of motion loss during episodes of flare-ups as discussed in the September 2020 VA examination based on the Veteran's own statements of how his neck disability impact him on a day-to-day basis. As the Veteran has indicated flare-ups caused increased neck pain, the Board finds it is reasonable to conclude that the limitation of range of motion during a flare-up exhibits the worst of the disability, and therefore the Board does not find that a new examination would be necessary to specifically address these factors. The Veteran was invited to submit any pertinent private records as part of the remand directives. See August 2019 Letter (Request for Veteran to identify any relevant outstanding private treatment records or any other relevant evidence pertaining to his claim). The Veteran did not submit or identify any private records or evidence after the November 2018 Board Remand. All records prior to the November 2018 Board remand and the September 2020 VA examination show that the Veteran's cervical spine met a 10 percent rating but not greater. For the foregoing reasons, the preponderance of the evidence for the Veteran's cervical spine disability is against granting an increased rating in excess of 10 percent prior to September 25, 2020. However, in affording the Veteran the benefit of the doubt, the Board finds that the overall level of the Veteran's cervical spine disability warrants the assignment of a 30 percent rating from September 25, 2020. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). 3. Entitlement to an initial increased evaluation greater than 10 percent for right sciatic radicular pain The Veteran contends that his right sciatic radicular pain has worsened since the initial rating upon service connection. See February 2016 VA Orthopedic Surgery Consult Note (Veteran noting that his flare-ups of the pain have gotten progressively worse). 38 C.F.R. § 4.124a includes the rating criteria for the sciatic nerve under diagnostic code 8520. The rating for paralysis of the sciatic nerve is rated as 10 percent disabling for incomplete paralysis with mild symptoms, 20 percent disabling for incomplete paralysis with moderate symptoms, 40 percent disabling for incomplete paralysis with moderately severe symptoms, 60 percent disabling for incomplete paralysis with severe symptoms, including marked muscular atrophy. An 80 percent disabling rating is appropriate with complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, or flexion of the knee is weakened or (very rarely) is lost. The Veteran was afforded a peripheral nerve condition examination in November 2019. The examiner found symptoms attributable to the peripheral nerve conditions of the lower extremities. The sciatic nerve was noted to have incomplete paralysis with mild severity bilaterally. The examiner found no constant pain in the left or right lower extremity, intermittent pain to be moderate in both left and right extremities, paresthesias and/or dysesthesias to be mild in both left and right legs and numbness to be mild in both left and right legs. Muscle strength was noted to be normal and no muscle atrophy was noted. Repetitive use testing was conducted but there was no additional loss of function or range of motion. No muscle atrophy was noted. Reflex testing found right and left knee and ankle reflexes to be normal. Light touch sensory examination results were all normal. Light touch sensory examination results were all normal. The peripheral nerve condition examination found no trophic changes (characterized by loss of extremity hair, smooth, shiny skin, etc.) attributable to peripheral neuropathy were noted. The Veteran's gait was found normal. No special tests were indicated or performed for median nerve evaluation. The examiner did not provide a response for any other nerve involvement. The examiner noted that an EMG study has not been performed and no other significant diagnostic test findings and/or results were noted. The examiner opined that the Veteran's peripheral nerve condition and/or peripheral neuropathy do not impact his ability to work. The Veteran also underwent two thoracolumbar spine examinations that are pertinent. These findings are consistent with the November 2019 peripheral nerve examination. The November 2019 and September 2020 thoracolumbar spine examinations both noted bilateral involvement of the sciatic nerve. Both examinations noted mild numbness and paresthesias and/or dysesthesias. The November 2019 examination noted mild intermittent pain while the September 2020 examination noted moderate intermittent pain. Neither examination found constant pain. Both the November 2019 and September 2020 examiners found that that the overall radicular symptoms are mild bilaterally. As such, the Board finds these are consistent with and support the November 2019 peripheral nerve examination. The Veteran was invited to submit any pertinent private records as part of the remand directives. See August 2019 Letter (Request for Veteran to identify any relevant outstanding private treatment records or any other relevant evidence pertaining to his claim). The Veteran did not submit or identify any private records or evidence after the November 2018 Board Remand. All records of record shows that the Veteran's right sciatic radicular pain met a 10 percent rating but not greater. For the foregoing reasons, the preponderance of the evidence for the Veteran's right sciatic radicular pain disability is against granting an increased rating in excess of 10 percent for the entire period on appeal. The benefit of the doubt rule does not apply, and the Veteran's claim is denied. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Sarah Campbell Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Boushehri, Darjush M. 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.