Citation Nr: 22018335 Decision Date: 03/28/22 Archive Date: 03/28/22 DOCKET NO. 14-40 270A DATE: March 28, 2022 ORDER Entitlement to service connection for radiculopathy of the right upper extremity, is denied. Entitlement to a rating greater than 10 percent for lumbar degenerative disc disease (DDD) and spondylosis prior to March 23, 2015, is denied. Entitlement to a rating of 40 percent for lumbar DDD and spondylosis since March 23, 2015, is granted. Entitlement to a rating greater than 40 percent for lumbar DDD and spondylosis from April 3, 2016, to March 28, 2019, is denied. Entitlement to a rating greater than 10 percent for right lower extremity radiculopathy prior to April 3, 2016, and entitlement to a compensable rating for the same since April 3, 2016, is denied. Entitlement to a compensable rating for scar of the low back, is denied. Entitlement to a rating greater than 10 percent prior to August 20, 2021, for cervical DDD and spondylosis, is denied. Entitlement to rating greater than 20 percent for left upper extremity radiculopathy prior to August 20, 2021, is denied. REMANDED Entitlement to a rating greater than 40 percent for lumbar DDD and spondylosis since March 29, 2019, is remanded. Entitlement to a rating greater than 20 percent for cervical DDD and spondylosis from August 20, 2021, is remanded. Entitlement to a rating greater than 40 percent for left upper extremity radiculopathy from August 20, 2021, is remanded. FINDINGS OF FACT 1. The evidence of record persuasively weighs against finding that the Veteran has had radiculopathy of the right upper extremity or any related disability at any time during or approximate to the pendency of the claim. 2. For the period prior to March 23, 2015, the Veteran's lumbar spine was manifested by forward flexion limited to, at most, 85 degrees, and combined range of motion was, at most, 220 degrees. There is no evidence of ankylosis or IVDS requiring bedrest. 3. For the period since March 23, 2015, the Veteran's lumbar spine was manifested by forward flexion limited to 22.3 degrees; however, there was not unfavorable ankylosis. 4. For the period from April 3, 2016, to March 28, 2019, the Veteran's lumbar spine did not exhibit ankylosis, to include the functional equivalent. 5. The Veteran's right lower extremity manifest no more than mild radiculopathy prior to April 3, 2016, and no symptoms of radiculopathy since then. 6. The Veteran's lumbar scars did not manifest as deep and 39 square centimeters, or 929 squared centimeters, or unstable or painful. 7. Prior to August 20, 2021, the Veteran's cervical DDD and spondylosis was manifested by, at most, 40 degrees forward flexion and 270 degrees combined range of motion; and, there was not muscle spasm or guarding severe enough to result in abnormal gait or spinal contour, nor was there ankylosis or IVDS requiring bedrest. 8. Prior to August 20, 2021, the Veteran's left upper extremity radiculopathy was manifested by no worse than pain and numbness, with functional limitations such as difficulty reaching overhead or dropping things, which is no more than mild incomplete paralysis of the minor extremity. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for radiculopathy of the right upper extremity are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Prior to March 23, 2015, the criteria for entitlement to a rating greater than 10 percent for lumbar DDD and spondylosis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5242. 3. From March 23, 2015, to April 2, 2013, the criteria for a 40 percent rating for lumbar DDD and spondylosis are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5242. 4. From April 3, 2016, to March 28, 2019, the criteria for a rating greater than 40 percent for lumbar DDD and spondylosis are not met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.40-4.45, 4.59, 4.71a, Diagnostic Code 5242. 5. The criteria for entitlement to a rating greater than 10 percent for right lower extremity radiculopathy prior to April 3, 2016, and entitlement to a compensable rating from April 3, 2016, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8620. 6. The criteria for a compensable rating for surgical scars of the low back associated with lumbar DDD and spondylosis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.118, Diagnostic Code 7805. 7. The criteria for entitlement to a rating greater than 10 percent for cervical DDD and spondylosis prior to August 20, 2021, are not met. 38U.S.C. §§1155, 5103, 5103A, 5107; 38C.F.R. §§3.159, 4.1, 4.3, 4.7, 4.40, 4.45, 4.71a, Diagnostic Code 5242. 8. The criteria for entitlement to a rating greater than 20 percent for left upper extremity radiculopathy prior to August 20, 2021, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8510. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the United States Army from October 1970 to August 1991. See DD Form 214. The Veteran had a Board hearing in March 2021 before the undersigned. See March 2021 Hearing Transcript. In March 2021 the Board remanded these claims in order to obtain authorization to request private treatment records, to request VA treatment records, and to afford the Veteran a current examination. See March 2021 BVA Decision. A VA examination was afforded the Veteran in August 2021, and private treatment records for which authorization was obtained, and VA treatment records were associated with the appeal, such that there has been substantial compliance with the remand directives as to the decisions herein. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998) where there was substantial compliance with Board's remand instructions); see CAPRI records received October 27, 2021; see March 2021 and September 2021 Subsequent Development Letters. The Board observes that the decision reflects the Veteran's current appointment of Disabled American Veterans as the representative. See September 2021 VA 21-22 Appointment of Veterans Serv. Org. as Claimant Rep. Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Service connection for radiculopathy of the right upper extremity The Veteran contends that he has right upper extremity radiculopathy due to service, or secondary to his service-connected cervical spine disability. See March 2019 VA 21-526EZ, Fully Developed Claim; see January 2016 DRO Hearing. The question for the Board is whether the Veteran has a current disability that began during service, or is at least as likely as not related to an in-service injury, event, or disease, or related to or worsened by a service-connected disability. Current disability The Board concludes that the Veteran does not have a current diagnosis of right upper extremity radiculopathy and has not had one at any time during the pendency of the claim or recent to the filing of the claim. Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). By way of history, April 2012 VA examination report indicated the right upper extremity was not affected by radiculopathy. See April 2012 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. In April 2014 a VA examiner indicated that there was no constant pain, intermittent pain, paresthesias and/or dysesthesias, numbness, or other signs or symptoms of radiculopathy for the right upper extremity. See April 2014 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. On another VA examination, muscle strength testing, reflex exam, and sensory testing were all normal for the right upper extremity. See April 2014 VA Examination Peripheral Nerves Conditions Disability Benefits Questionnaire. There were no trophic changes, or atrophy. Id. The examiner specifically indicated that the Veteran denied past or present symptoms of radiculopathy in the right upper extremity. Id. A June 2016 VA treatment record shows the Veteran denied radiation of pain down his arm or into his fingers, although he reported numbness/tingling sensations in the tips of his fingers bilaterally, and impression was of electrodiagnostic evidence of bilateral sensorimotor median mononeuropathies localizable to the wrist- consistent with moderate carpal tunnel syndrome. See Minneapolis VAMC treatment records, received June 2016 in CAPRI. October 2016 treatment note indicated that there were no complaints in the right side of the neck, shoulder, or arm. See Minneapolis VAMC treatment records, received November 2016 in CAPRI. In November 2016 the Veteran reported mild paresthesias and/or dysesthesias of the right upper extremity, but muscle strength testing, reflexes and sensation were all normal, with no atrophy and no trophic changes. See November 2016 VA Examination Peripheral Nerves Conditions Disability Benefits Questionnaire. There was mild right median nerve, and right ulnar nerve incomplete paralysis. The VA examiner opined that there was no diagnosis of a right upper extremity radiculopathy, and that the Veteran's carpal tunnel syndrome of the upper extremities was less likely than not due to or a result of a cervical spine DDD and spondylosis because it was a peripheral nerve condition in the arm, not localized to the neck (cervical spine DDD and spondylosis), such that there was no anatomical association. Id. In January 2020 the Veteran indicated that he experienced pins and needles sensation down his right arm and hand at different times throughout the day, and had trouble with his arm falling asleep all the time, but especially at night, which interfered with his sleep (because he slept on his right side due to back pain). See January 2020 Statement in Support of Claim. Private treatment records from March 2021 show the Veteran was treated for cervical radiculopathy, with upper extremity symptoms impairing his ability to reach overhead, lift and carry without pain. See Orthopedic Spine Therapy treatment records, received March 2021. These same records, however, in the assessment reference neck and left arm pain cervical radiculopathy only. Id. At the August 2021 VA examination testing revealed normal muscle strength, reflexes, and sensation. See August 2021 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. There was no muscle atrophy. Id. There were no signs of radiculopathy, to include constant pain, intermittent pain, paresthesias and/or dysesthesias, or numbness of the right upper extremities. Id. EMG testing of the right upper extremity was normal. Id. See August 2021 VA Examination Peripheral Nerves Conditions Disability Benefits Questionnaire. The examiner indicated that the Veteran was not currently diagnosed with a right upper extremity radiculopathy, and the numbness in the arm and fingers, dropping items, and difficulty with overhead work had to do with the left upper extremity. See August 2021 BVA Medical Opinion. Analysis Although the Veteran has reported symptoms to include pins and needles sensation and his arm falling asleep, as well as difficulty working overhead, the August 2021 VA examiner indicated that the Veteran less likely than not had a right upper extremity radiculopathy secondary to service-connected cervical spine condition because he was not diagnosed with right upper extremity radiculopathy. See August 2021 BVA Medical Opinion. As such, here, the symptoms alone do not arise to a disability, without functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356, 1367-69 (Fed. Cir. 2018), ("pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity."); see Wait v. Wilkie, 33 Vet. App. 8, 17 (2020) (to establish disability, the veteran's pain must amount to a functional impairment of earning capacity). Further, despite consistent treatment and examinations throughout the appellate period, VA records do not contain a diagnosis of, or treatment for, a right upper extremity radiculopathy. See Minneapolis VA Medical Center (VAMC) records, received February 2014, May 2014, July 2014, March 2016, May 2016, June 2016, July 2016, November 2016, February 2019, March 2019; February 2020, March 2020, April 2020, November 2020, January 2021, March 2021, July 2021, August 2021, September 2021, and October 2021; see Orthopedic Spine Therapy records, received November 2016, and May 2021. Although private physical therapy notes reference radicular symptoms to his bilateral shoulders and hands, the Board finds the April 2014 and August 2021 VA examiner's specific testing for radiculopathy, to be more probative and persuasive because it involves examinations specific for radicular symptoms. See Orthopedic Spine Therapy treatment record received May 2021 in CAPRI; see August 2021 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire; see April 2014 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. While the Veteran is competent to report having experienced symptoms of right shoulder pain, and symptoms to include pins and needles sensation of the arm falling asleep, he is not competent to provide a diagnosis in this case or determine that these symptoms were manifestations of a right upper extremity radiculopathy. The issue is medically complex, as it requires knowledge of the interaction between multiple systems in the body. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this case, the most probative and credible medical evidence fails to show that a right upper extremity radiculopathy has been diagnosed, or right upper extremity pain or symptoms have caused functional impairment or affected earning capacity, at any time since the Veteran filed his claim for service connection. To the extent that he has reported numbness in the arm and fingers, dropping items, and difficulty with overhead work, the August 2021 examiner persuasively opined that this was due to the Veteran's left upper extremity radiculopathy. See August 2021 BVA Medical Opinion. Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. See 38 U.S.C. § 1131. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997) (38 U.S.C. § 1131 requires existence of present disability for VA compensation purposes); see also Wamhoff v. Brown, 8 Vet. App. 517, 521 (1996). Thus, in the absence of competent evidence showing a current diagnosis, or pain or symptoms amounting to functional impairment, it is unnecessary to address the remaining elements of the claim for service connection. See Brammer, 3 Vet. App. at 225. Further, to the extent carpal tunnel of the right arm was diagnosed, there is no indication of record suggesting it is due to service, and a VA examiner persuasively opined that it was less likely than not due to or a result of a cervical spine DDD and spondylosis because it was a peripheral nerve condition in the arm, not localized to the neck (cervical spine DDD and spondylosis), such that there was no anatomical association. See November 2016 VA Examination Peripheral Nerves Conditions Disability Benefits Questionnaire. Accordingly, the Board finds that the probative evidence is persuasively against the claim, and service connection for right upper extremity radiculopathy is denied. In reaching this conclusion the Board has considered the applicability of the benefit of the doubt doctrine. However, as the probative evidence is persuasively against the Veteran's claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 55-57. INCREASED RATING Disability ratings 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. The veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When evaluating disabilities of the joints, the Rating Schedule provides for consideration of additional functional impairment due to pain, weakness, fatigue, incoordination, and lack of endurance when assigning evaluations. 38 C.F.R. §§ 4.40, 4.45, 4.59 (2021); see DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011); see Burton v. Shinseki, 25 Vet. App. 1 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Additionally, in Correia v. McDonald, 28 Vet. App. 158 (2016), the Court held that, when possible, examiners must include range of motion testing on active and passive motion and in weight-bearing and non-weight-bearing conditions and, if possible, with range of motion measurements of the opposite undamaged joint." The spine has no opposite joint. In Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017), the Court held that VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Changes to the rating schedule for musculoskeletal disabilities became effective February 7, 2021. The amended rating criteria, if favorable to the Veteran's claim, can be applied only for periods from the effective date of the regulatory change. However, the old regulations will be considered for the periods both before and after the change was made. See VAOPGCPREC 3-2000, 65 Fed. Reg. 33,422 (2000); Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). The changes effective February 7, 2021, under 38 C.F.R. § 4.71a, DC 5242 and 5243 were not to the rating schedule itself but added instruction to classify disabilities associated with IVDS under DC 5243 and all other intervertebral disc disabilities under 5242. As such, DC 5242 now reflects "Degenerative arthritis, degenerative disc disease other than intervertebral disc syndrome (also, see either DC 5003 or 5010);" DC 5243 now reflects "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve route; assign diagnostic code 5242 for all other disc diagnoses." As such, the changes do not impact the general rating formula and evaluation of the disability under the pre-and post-February 7, 2021 regulations is not required. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (General Rating Formula). Ratings under the General Rating Formula 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. Lumbar Spine The Veteran's lumbar DDD and spondylosis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242. Under the General Rating Formula, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees, a 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. A 20 percent rating is assigned for 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 40 percent rating is assigned for forward flexion of the thoracolumbar spine 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent rating is assigned for unfavorable ankylosis of entire spine. As described above, the higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. The Court, citing Dorland's Illustrated Medical Dictionary (28th ed. 1994), has recognized that ankylosis is defined as "immobility and consolidation of a joint due to disease, injury or surgical procedure," for VA compensation purposes. See Colayong v. West, 12 Vet. App. 524, 528 (1999). Cervical Spine The Veteran's cervical DDD and spondylosis is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5242 as well. The General Rating Formula provides that as to ratings for the cervical spine, a 10 percent rating is warranted 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 (10 percent). A 20 percent rating is warranted 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 rating is assigned when forward flexion of the cervical spine is 15 degrees or less; or there is favorable ankylosis of the entire cervical spine. A 40 percent rating is assigned if there is unfavorable ankylosis of the entire cervical spine. A 100 percent rating may be assigned if there is unfavorable ankylosis of the entire spine. Lumbar Spine The General Rating Formula for Diseases and Injuries of the Spine, provides further guidance in rating diseases or injuries of the spine. In pertinent part, Note (1) provides that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be rated separately under an appropriate diagnostic code. Here, the Board notes the Veteran has already been assigned a separate rating for radiculopathy of the right lower extremity. See October 2021 Rating Decision-Codesheet. Note (2) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. 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 normal combined range of motion of the thoracolumbar spine is 240 degrees, and the normal combined range of motion of the cervical spine is 340 degrees. See also Plate V, 38 C.F.R. § 4.71a. Note (5) indicates that for VA compensation purposes, unfavorable ankylosis is a condition in which the entire cervical spine, the entire thoracolumbar 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. When rating degenerative arthritis of the spine (Diagnostic Code 5242), in addition to consideration of rating under the General Rating Formula, rating for degenerative arthritis under Diagnostic Code 5003 should also be considered. 38 C.F.R. § 4.71a. The Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes (effective September 26, 2003) provides a 20 percent disability rating for IVDS 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 for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a. Note (1) to Diagnostic Code 5243 (effective September 26, 2003) provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to IVDS that requires bed rest prescribed by a physician and treatment by a physician. 1. Entitlement to a rating greater than 10 percent for lumbar DDD and spondylosis prior to March 23, 2015 2. Entitlement to a rating more than 10 percent for lumbar DDD and spondylosis from March 23, 2015, to April 2, 2016 3. Entitlement to a rating greater than 40 percent for lumbar DDD and spondylosis from April 3, 2016 The Veteran's lumbar DDD and spondylosis was service-connected effective June 29, 2010, rated as 10 percent disabling. See April 2011 Rating Decision. In February 2014 the Veteran sought an increased rating, and a December 2016 rating decision awarded a 40 percent rating effective April 3, 2016. See February 2014 Third Party Correspondence; see December 2016 Rating Decision. As such, the claim did not constitute a full grant of the benefits sought, and the Veteran's claim for an increased rating remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 39 (1993). Thus, the Board is considering the appellate period from one year prior to the date of claim for increase, here from February 2013. Additionally, the Board is considering the appropriateness of an increased rating for the Veteran's right lower extremity radiculopathy, a rating for the left lower extremity, and an increased rating for the lumbar scars as part and parcel of the increased rating claim for the lumbar spine. Finally, the Board notes that the ratings have been staged according to the facts found. Relevant Facts In an April 2014 VA examination report the Veteran's DDD of the lumbar spine, with history of constant sharp back pain, worse with prolonged sitting, turning or twisting was reviewed. See April 2014 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Forward flexion was to 85 degrees, extension to 25, right and left lateral flexion to 25, each with evidence of pain. Id. Right and left lateral rotation was to 30 degrees or greater, without objective evidence of pain. Id. Range of motion was not altered following repetitions. Id. Functionally, there was less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing. Id. There was not muscle spasm, or guarding, resulting in abnormal gait or spinal contour. Id. There was no ankylosis. Id. There was no IVDS with incapacitating episodes. Id. The examiner indicated that there were no additional functional limitations of the lumbar spine, including no additional loss of range of motion, during flare-ups, or secondary to repetitive use of the joint, painful motion, weakness, and excessive fatigability, lack of endurance or incoordination. Id. Private treatment from Orthopedic Spine Therapy shows that the Veteran was seen in 2014 for physical therapy to assist with chronic low back pain, and noted hypomobility in the spine, especially with limited extension. See Medical Treatment Records-Furnished by SSA received March 2016 in CAPRI. VA treatment records show that the Veteran was assessed as having chronic low back pain with spondylosis, and L3-4 and L4-5 spinal stenosis, with a January 2015 MRI revealing straightening of the lumbar lordosis. See Minneapolis VAMC treatment records, received March 2016 in CAPRI. A March 23, 2015, treatment note indicates that the Veteran's extension was limited by 50 percent, with flexion, rotation and side bending each limited by approximately 75 percent. See SSA records, received March 2016 in CAPRI. Considering the Plate V Range of Motion for the thoracolumbar spine, extension was limited to 15 degrees (50 percent of 30 degrees), flexion to 22.5 degrees (90 degrees minus 67.5 degrees, which is 75 percent of 90), and rotation and side bending each to 7.5 degrees (30 degrees minus 22.5 degrees, which is 75 percent of 30 degrees.) See 38 C.F.R. § 4.71A Plate V. A January 2016 MRI revealed straightening of the lumbar lordotic curvature, intervertebral disc height loss and degenerative disc changes, with mild convex right scoliotic curvature. See Minneapolis VAMC treatment records received March 2016 in CAPRI. The Veteran underwent various procedures for his spinal stenosis with neurogenic claudication and right foraminal stenosis in February 2016. See Minneapolis VAMC treatment records, received March 2016 in CAPRI. In March 2016, following records review, a VA examiner indicated that the Veteran had lumbar surgery in February 2016 for spinal stenosis with neurogenic claudication, L3-4, L4-5, right foraminal stenosis, L5-S1. Id. He had a minimally invasive laminectomy with bilateral medial facetectomies and foraminotomies L3-4; minimally invasive laminectomy (right hemilaminectomy, contralateral laminoplasty) with bilateral medial facetectomies, L4-5; and, minimally invasive right hemilaminectomy, medial facetectomy and foraminotomy, L5-S1. Id. This was a progression of his lumbar DDD. Id. The Veteran was afforded a VA examination on April 3, 2016, for his lumbar DDD and spinal stenosis, wherein the examiner indicated that imaging supported congenital Scheuermann's disease based on extensive degeneration of the disc and endplates on the MRI and Schmorl's nodes present. See April 2016 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The examiner indicated that the Veteran's diagnosis was corrected to Scheuermann's disease otherwise known as juvenile DDD, which leads to early degeneration of the disc and endplates of the vertebral bones, supported by imaging and history. Id. Nevertheless, the Board observes that here there does not appear to be a consensus in the medical opinions of record that his diagnosis should be changed, and, where the Veteran's symptomatology for his lumbar DDD and Scheuermann's disease is not clearly differentiated, the symptoms are attributed to his service-connected lumbar spine disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998) (when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to distinguish the effects of each disability and, where such distinction is not possible, attribute those effects to the service-connected disability). The Veteran did not report flare-ups of the spine. See April 2016 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Forward flexion was to 30 degrees, extension to 10 degrees, and right and left lateral flexion and right and left lateral rotation each to 30 degrees. Id. The examiner indicated that the decreased range of motion of the lumbosacral spine was due to decreased flexibility from the degeneration of the discs of his spine. Id. Pain was noted on rest/non-movement, and with forward flexion, extension and right lateral flexion. See April 2016 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. There was no additional loss of range of motion following repetitions. Id. This examiner indicated that the examination was neither medically consistent or inconsistent with statements describing functional loss with repetitive use over time, and noted that the Veteran was not being examined immediately following repetitive use over time such that he was unable to say without resorting to mere speculation whether pain, weakness, fatigability or incoordination significantly limited functional ability with repeated use over time. Id. There was no guarding or muscle spasm of the spine. There was no ankylosis of the spine. Id. The Veteran did not have IVDS of the spine. Id. There was not thoracic vertebral facture with loss of 50 percent or more of height. Id. Legal Analysis and Conclusions First, the Board notes that it is staging the rating as appropriate, and remanding that portion of the rating that cannot be decided at this time; specifically, entitlement to a rating greater than 40 percent for the lumbar spine since March 29, 2019. A Rating Greater than 10 percent prior to March 23, 2015 Here, the Board is considering the time period since February 2013 until April 3, 2016, and finds that no greater rating than the 10 percent currently awarded is warranted prior to March 23, 2015. Specifically, the April 2014 VA examiner found forward flexion was to 85 degrees with pain, combined range of motion was 220 degrees, and there was no ankylosis or IVDS with incapacitating episodes. See April 2014 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Accordingly, these limitations correspond to a 10 percent rating. See 38 C.F.R. § 4.71A. As such, the Board finds that the evidence of record persuasively weighs against a rating in excess of 10 percent for the lumbar spine disability prior to March 23, 2015. Even considering the Veteran's lay reports of symptoms and functional loss due to pain, to include difficulty with prolonged sitting, turning and twisting, the degree of additional limitation reflected would not result in limitation of motion more nearly approximating forward flexion greater than 30 degrees but not greater than 60 degrees or the combined range of motion greater than 120 degrees. In fact, the April 2014 VA examiner noted that functionally, there was less movement than normal, pain on movement, and interference with sitting, standing and/or weight-bearing; yet, forward flexion was to 85 degrees with pain, and combined range of motion was 220 degrees. See April 2014 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Additionally, the Veteran did not have muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. Indeed, the April 2014 examination indicated that there was not muscle spasm, or guarding, resulting in abnormal gait or spinal contour. Id. On March 23, 2015, however, the Veteran met the criteria for a rating of 40 percent. See SSA records, received March 2016 in CAPRI. Specifically, the Veteran's forward flexion of the lumbar spine was at that time rated to be limited to the equivalent of 22.3 degrees, which falls within the 30 degrees or less necessary to warrant a 40 percent rating. See 38 C.F.R. § 4.71A Plate V; see SSA records, received March 2016 in CAPRI. Indeed, granting a 40 percent rating from March 23, 2015, makes the rating continuous with the 40 percent already awarded from April 3, 2016, for lumbar DDD with spondylosis. 38 C.F.R. § 3.344. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 10 percent for lumbar DDD with spondylosis prior to March 23, 2015. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). A rating of 40 percent since March 23, 2015, is, however, granted. Even so, no higher rating is warranted where the evidence does not show, and the Veteran does not contend, that he had unfavorable ankylosis of the entire thoracolumbar spine, even when considering functional deficits. A Rating Greater than 40 percent from April 3, 2016, to March 28, 2019 Here, the Board is considering the period from April 3, 2016, to March 28, 2019, the latter date corresponding to when the VA authorized the Veteran to seek care from Dr. Sembrano at the University of Minnesota for his lumbar spine, to include lumbar fusion surgery. See Minneapolis VAMC treatment records, received November 2020 in CAPRI. Specifically, the Board will remand the period from March 29, 2019, in order to obtain outstanding additional records regarding the lumbar spine. The probative evidence is against finding that there is unfavorable ankylosis of the entire spine from April 3, 2016, to March 28, 2019, such that a rating greater than 40 percent based on the functional impairment resulting from his lumbar spine disability is denied. In particular, the Board acknowledges the Veteran's reports of back pain, which the record clearly documents. However, the Veteran's flexion was limited, at most, to 30 degrees, even when considering pain on motion. See April 2016 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Additionally, the Veteran's range of motion was never completely limited, such that he does not meet the diagnostic criteria for the next higher rating under Diagnostic Code 5242. However, the Board also notes that a Veteran may be entitled to a higher disability evaluation for a musculoskeletal disability than that supported by mechanical application of the rating schedule where there is evidence that his or her disability causes additional functional loss, such as the inability... to perform the normal working movements of the body with normal excursion, strength, speed, coordination [,] and endurance, including as due to pain. 38 C.F.R. § 4.40 (2020); see Lyles v. Shulkin, 29 Vet. App. 107, 117 (2017). A higher disability evaluation may also be awarded where there is a reduction of a joint's normal excursion of movement in different planes, including changes in the joint's range of movement, strength, fatigability, or coordination. 38 C.F.R. § 4.45 (2020). However, the veteran's functional loss must result in limitation of motion sufficient to satisfy the next disability rating allowable for that particular disorder to be entitled to a higher disability rating under §§ 4.40 and 4.45. See Thompson v. McDonald, 815 F.3d 781, 785-86 (Fed. Cir. 2016). The next higher rating for 50 percent requires unfavorable ankylosis of the entire thoracolumbar spine. 38 C.F.R. § 4.71, Diagnostic Code 5242. Ankylosis is the "immobility and consolidation of a joint due to disease, injury, or surgical procedure." Dorland's Illustrated Medical Dictionary, 94 (32nd Ed. 2012). Alternatively, the next higher rating for IVDS of 60 percent requires incapacitating episodes having a total duration of at least 6 weeks in the past 12 months. Id. Neither of these requirements are shown by the evidence of record. Therefore, even considering any additional functional impact of the Veteran's lumbar spine as noted above and his reports of pain, the fact remains the Veteran retains motion in his lumbar spine through March 28, 2019, albeit limited, which precludes a finding of ankylosis. Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran's functional loss did not equate to the criteria required for a 50 percent rating. Indeed, there is no indication the Veteran suffered from such restricted range of motion of the lumbar spine that it may be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 10 (2021). There is also no medical or lay evidence indicating that the Veteran has had any incapacitating episodes due to IVDS during the period on appeal. While the Veteran has reported pain limiting motion, VA regulation defines an incapacitating episode as a period of acute signs and symptoms that requires bed rest prescribed by a physician. 38C.F.R. §4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, Note 1. There is no indication in the Veteran's VA treatment records that he has ever been prescribed bed rest by a physician due to his back, and the VA examiners have specifically indicated he does not have IVDS. The Board has considered the Veteran's lay statements, which are consistent with the rating assigned. To the extent that the Veteran argues his symptomatology is more severe than was shown on evaluation, his statements must be weighed against the other evidence of record, and they are outweighed by the competent medical evidence, including the examination findings of trained health care professionals. Jandreau, 492 F.3d at 1376-77. The Veteran has reported having back pain, to include historically with prolonged sitting, turning or twisting was reviewed. See April 2014 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. The Board acknowledges the Veteran's reports of painful motion which causes functional impairment, but he has been assigned the highest evaluation allowed for the lumbar spine in the absence of ankylosis, to include consideration of functional ankylosis, and therefore a higher rating based on painful motion is not warranted. There are no other applicable rating criteria that would allow for a higher rating, and the Board finds that a rating higher than 40 percent for lumbosacral strain from April 3, 2016, to March 28, 2019, is not warranted. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for his lumbar DDD and spondylosis. As the evidence of record persuasively weighs against a rating in excess of 40 percent from April 3, 2016, to March 28, 2019, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Other Considerations In addition to considering the orthopedic manifestations of a lumbar spine disability, VA regulations also require that consideration be given to any associated objective neurologic abnormalities, which are to be evaluated separately under an appropriate diagnostic code. 5. Entitlement to a greater rating for right lower extremity radiculopathy The Board notes that the Veteran is in receipt of a 10 percent rating for radiculopathy of the right lower extremity associated with lumbar DDD and spondylosis for the period prior to April 3, 2016, according to Diagnostic Code 8620, and a noncompensable rating since April 3, 2016. See October 2021 Rating Decision-Codesheet. As noted above, the Veteran appealed for an increased rating of the lumbar spine disability in February 2014, and his appeal includes for neurological manifestations of the lumbar spine. Neurological impairments affecting the sciatic nerve are evaluated under Diagnostic Codes 8520 (paralysis), 8620 (neuritis) and 8720 (neuralgia), using the criteria under Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8620, a 10 percent rating is assigned for mild incomplete paralysis, a 20 percent rating is assigned for moderate incomplete paralysis. If the condition is considered "moderately severe," a 40 percent rating is provided, and a 60 percent rating is warranted for conditions considered "severe, with marked muscular atrophy." The Board observes that the words "mild," "moderate," and "severe," as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Relevant Facts Private treatment records from October 13, 2014, show that the Veteran was treated for low back pain with radiating pain down his leg, with associated symptoms including pain, spasm, tenderness, tightness, and aching. See Orthopedic Spine Therapy records received November 2016 in CAPRI. In April 2015 straight leg raise test was without radicular symptoms. Id. November 2016 treatment notes referenced a history of bilateral lower extremity radiculopathy; however, the Veteran denied recurrence of bilateral lower extremity radiculopathy. See Minneapolis VAMC treatment records received November 2016 in CAPRI. An April 3, 2016 , VA examination revealed muscle strength testing, sensation and reflexes were normal on the bilateral lower extremities, and there was no atrophy. See April 2016 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. There was no lower extremity radiculopathy. Id. There were no bowel, bladder, or other neurologic abnormalities. Id. In March 2020, the VA examiner indicated that there was moderate intermittent pain for the bilateral lower extremities, and mild numbness of the right lower extremity. See February 2020 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. There was decreased sensation on the right upper anterior thigh, and lower leg/ankle, and foot/toes. Id. The examiner indicated that there was involvement of the L4/L5/S1/S2/S3 nerve roots (sciatic nerves). Id. There was mild radiculopathy bilaterally. Id. The examiner indicated that the right thigh numbness was due to the recent right total hip arthroplasty. Id. Further, right thigh and right knee findings were related to the recent total hip replacement for which the Veteran was in rehabilitation. Id. Yet, the examiner expanded diagnoses to include bilateral lower extremity radiculopathy. Id. The August 2021 VA examiner noted that the March 2020 VA examiner diagnosed bilateral lower extremity radiculopathy due to lumbar DDD and spondylosis with diagnosis date of October 2014. See August 2021 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. This VA examiner, however, indicated that the diagnosis was not appreciated. Id. He reasoned that the Veteran had numbness on the plantar surface of each foot in a non-radicular pattern of unknown etiology, not consistent with a lumbar spine radiculopathy. Id. The examiner also noted the Veteran's reports of some numbness and dysesthesias in the left lateral leg middle third, which were also not in a lumbar spine related radicular pattern. Id. The Veteran also did not report right lower extremity radiculopathy on examination. Id. Additionally, the examiner reviewed physical therapy notes from January 2020 in which the Veteran denied numbness and tingling in the bilateral lower extremities. Id. The VA examiner indicated that muscle strength testing was normal, and reflexes were hypoactive at the knees and ankles. See August 2021 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Sensory testing was normal, except for its absence at the foot and toes bilaterally. Id. The examiner indicated that there was numbness in the plantar surface of each foot, in a non-radicular pattern of unknown etiology, but not consistent with lumbar spine radiculopathy. Id. Additionally, the Veteran had a negative straight leg raising test on the left and was unable to perform the test on the right because he had a total hip replacement and was unable to flex the right knee past 45 degrees, unrelated to his low back condition. Id. The examiner indicated that the Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy. Id. The examiner noted that the Veteran's numbness and dysesthesia in the left lateral leg middle third was not in a lumbar spine related radicular pattern. See August 2021 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Legal Analysis and Conclusions In applying the above law to the facts of the case, the Board finds that the Veteran is not entitled to a disability rating greater than that which he was awarded for his right lower extremity at any point during this appeal, nor a rating for his left lower extremity as the probative evidence is against finding that the Veteran has left lower extremity radiculopathy attributable to his lumbar spine disability or that his right lower extremity symptoms are more than mild from October 13, 2014, to April 2, 2016, or even arise to the level of mild since April 3, 2016. Prior to April 3, 2016, the Veteran did not present symptoms of the right lower extremity approaching moderate paralysis. Rather, the record merely mentioned lumbar radiculopathy as part of his diagnosis, and for this he was awarded a 10 percent rating for mild symptoms, which the Board will not disturb. See December 2016 Rating Decision-Narrative. Since April 3, 2016, the date of examination which first suggested right lower extremity radiculopathy was resolved, the August 2021 VA examiner has provided an opinion that provides a probative rationale undermining the March 2020 VA examiner's opinion that there was bilateral lower extremity radiculopathy. See August 2021 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire; see February 2020 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Specifically, the August 2021 VA examiner explained that the Veteran's symptoms were in non-radicular patterns, and therefore not consistent with lumbar radiculopathy. See August 2021 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Of note, the Board observes that the Veteran is separately service connected for right hip strain, avascular necrosis and degenerative arthritis status-post total hip arthroplasty, left and right knee degenerative joint disease, and residuals of avulsion fracture right fifth metatarsal, left hip strain, and left leg length discrepancy. See October 2021 Rating Decision Codesheet. The Board finds the August 2021 VA examiner's opinion that there were no signs or symptoms of lumbar radiculopathy to be persuasive. See August 2021 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Accordingly, a compensable rating is not warranted as there are not even mild symptoms of lumbar radiculopathy of the right lower extremity. Finally, the Veteran has not argued that he has radiculopathy more severe than currently assigned and he has not set forth any lay evidence suggesting he warrants a higher rating for his right lower extremity radiculopathy, or a rating for his left lower extremity. For the foregoing reasons, the evidence of record persuasively weighs against a rating in excess of 10 percent for right lower extremity radiculopathy prior to April 3, 2016, and against a compensable rating since April 3, 2016. As the evidence of record persuasively weighs against increasing the ratings, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). Other Neurologic Abnormalities Here, there is no indication that the Veteran suffers from bowel or bladder impairment that would warrant the assignment of additional ratings. In April 2016, the VA examiner indicated that there were no bowel, bladder, or other neurologic abnormalities. See April 2016 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. February 2020 VA examiner indicated that there were no other neurologic abnormalities or findings related to a thoracolumbar spine condition. See February 2020 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. Similarly, the August 2021 VA examiner indicated that there were no other neurologic abnormalities or findings related to a thoracolumbar spine condition (such as bowel or bladder problems reflexes). See August 2021 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. As such, VA examinations have found no neurologic findings. 6. Entitlement to a compensable rating for the Veteran's scars of the low back The Board observes that the Veteran is in receipt of a noncompensable rating according to Diagnostic Code 7805 for his surgical scar of the low back associated with lumbar DDD and spondylosis since February 16, 2016. See February 2020 Rating Decision-Codesheet. Here, the Board is considering his claim of increased rating for his lumbar spine to include consideration of his related lumbar scars. During the pendency of this appeal, VA published a final rule amending its regulations on skin disabilities effective August 13, 2018. Where a law or regulation changes after the claim has been filed, but before the administrative or judicial process has been concluded, the version most favorable to the veteran applies unless Congress provided otherwise or permitted VA to do otherwise and VA did so. See VAOGCPREC 7-2003. However, "the case law is clear that a regulation is not to be applied retroactively unless the regulation is intended to be retroactive." Ervin v. Shinseki, 24 Vet. App. 318, 322 (2011) (citing Kuzma v. Principi, 341 F.3d 1327, 1328 (Fed. Cir. 2003)). Here, the recently revised skin regulations do not provide for retroactive application; thus, the amendments may be applied as of, but not prior to, August 13, 2018. Hence, for the period beginning August 13, 2018, the version more favorable to the Veteran will apply. Under the scar regulations in effect prior to August 13, 2018, scars that, as here, do not impact the head, face, or neck are rated under 38 C.F.R. § 4.118, Diagnostic Codes 7801 to 7805. Under Diagnostic Code 7801, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is deep and nonlinear, and covers an area of at least 6 square inches (39 sq. cm.), but less than 12 square inches (77 sq. cm.). A deep scar is one associated with underlying soft tissue damage. 38 C.F.R. §§ 4.118, Diagnostic Code 7801 (in effect from October 23, 2008, to August 13, 2018). Under Diagnostic Code 7802, a 10 percent rating is assigned when a scar, not of the head, face, or neck, is superficial and nonlinear, and covers an area of at least 144 square inches (929 sq. cm.). 38 C.F.R. §§ 4.118, Diagnostic Code 7802 (in effect from October 23, 2008, to August 13, 2018). Under Diagnostic Code 7804, a 10 percent rating is assigned for one or two scars that are unstable or painful. A 20 percent rating is assigned for three or four scars that are unstable of painful. A 30 percent rating is assigned for five or more scars that are unstable or painful. 38 C.F.R. § 4.118, Diagnostic Code 7804 (in effect from October 23, 2008, to August 13, 2018). Under Diagnostic Code 7805, any disabling effect(s) not considered in a rating provided under Diagnostic Codes 7800-7804 should be evaluated under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect from October 23, 2008, to August 13, 2018). Under the scar regulations in effect since August 13, 2018, Diagnostic Code 7801 provides ratings for scars, other than the head, face, or neck, that are associated with underlying soft tissue damage. Scars that are associated with underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) are rated as 10 percent disabling. Scars in an area or areas exceeding 12 square inches (77 square centimeters) are rated as 20 percent disabling. Scars in an area or areas exceeding 72 square inches (465 square centimeters) are rated as 30 percent disabling. Scars in an area or areas exceeding 144 square inches (929 square centimeters) are rated as 40 percent disabling. 38 C.F.R. § 4.118, Diagnostic Code 7801 (in effect since August 13, 2018). Diagnostic Code 7802 provides ratings for scars, other than the head, face, or neck, that are not associated with underlying soft tissue damage. A scar that is not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) or greater is rated as 10 percent disabling. 38 C.F.R. §§ 4.118, Diagnostic Code 7802 (in effect since August 13, 2018). Diagnostic Code 7804 was not changed in the August 13, 2018, regulation changes. Again, it provides that one or two scars that are unstable or painful are rated as 10 percent disabling. Three or more scars that are unstable or painful are rated as 20 percent disabling. Five or more scars that are unstable or painful are rated as 30 percent disabling. Note (1) to Diagnostic Code 7804 provides that an unstable scar was one where, for any reason, there was frequent loss of covering of skin over the scar. 38 C.F.R. §§ 4.118, Diagnostic Code 7804 (in effect since August 13, 2018). Diagnostic Code 7805 provides that any other scars (including linear scars) and other disabling effects of scars should be evaluated even if not considered in a rating provided under Diagnostic Codes 7800-04 under an appropriate diagnostic code. 38 C.F.R. § 4.118, Diagnostic Code 7805 (in effect since August 13, 2018). Relevant Facts In an April 2016 VA examination report, the examiner indicated that there was a .2 by 8-centimeter scar of the low back. See April 2016 VA Examination Back (Thoracolumbar Spine) Conditions Disability Benefits Questionnaire. An April 2016 treatment note for the lumbar paraspinals indicated that there was some limited motion and some numbness felt in the superior scar region. See Orthopedic and Spine Therapy received November 2016 in CAPRI. A June 2016 note indicated there were some scar adhesions in the low back, but mostly good mobility. Id. A February 2020 VA examination report showed lumbar spinal surgical scar from spinal fusion, and from MIS laminectomy. See February 2020 VA Examination Scars/Disfigurement Disability Benefits Questionnaire. By history, the Veteran had a MIS laminectomy L3-4, L4-5 and MIS right laminotomy-foraminotomy L5-S1 in February 2016, and spinal fusion in May 2019 for lumbar spondylosis, L4-S1. Id. VA examiner indicated there was underlying soft tissue damage to all three scars on the posterior trunk. Id. Three surgical scars adjacent to the lower lumbar spine, on the posterior trunk, measured 7.5 by 0.2 cm; 5.0 x 0.3 cm; and 5.0 x 0.3 cm. Id. On the anterior trunk there was a surgical graft scar from spinal fusion measuring 11.5 by.3 centimeters. Id. The approximate total area of scars with underlying tissue damage was 3.45cm squared on the anterior trunk and 4.5 cm squared on the posterior trunk. Id. None of the scars resulted in limitation of motion. Id. In April 2021, a VA examiner indicated there was a 13.5 by 0.5-centimeter scar on the left lower quadrant, with approximate total area of 6.75 centimeters squared. See April 2021 VA examination Scars/Disfigurement Disability Benefits Questionnaire. The scar did not cause limitations, or have any additional findings, complications, conditions, signs and/or symptoms (such as muscle or nerve damage). Id. There was no functional limitation from the scar. Id. Legal Analysis and Conclusions The Veteran's VA and private treatment records do not document any treatment for the scars during the pendency of this appeal, noting only the existence of the scars, to include numbness during his various examinations and treatment visits. Based on the evidence as discussed above, the Board does not find a compensable rating is warranted as the evidence does not show the Veteran is entitled to compensable ratings under Diagnostic Codes 7801, 7802, or 7804 under either the regulations prior to August 13, 2018, or since. Specifically, for the criteria prior to August 13, 2018, the scar was not found to be deep and nonlinear, and covering an area of at least 6 square inches (39 sq. cm), but less than 12 sq. inches (77 sq. cm.) (Diagnostic Code 7801); superficial and nonlinear, and covering an area of at least 144 square inches (929 sq. cm.) (Diagnostic Code 7802); or, described as painful or unstable (Diagnostic Code 7804). The Board acknowledges the April 2016 VA provider's finding of numbness, but does not equate this to painfulness (rather, numbness is opposite of pain). See Orthopedic and Spine Therapy received November 2016 in CAPRI. Rather, as noted by the February 2020 VA examiner the approximate total area of scars with underlying tissue damage was 3.45cm squared on the anterior trunk and 4.5 cm squared on the posterior trunk (7.95 cm squared total area). See February 2020 VA Examination Scars/Disfigurement Disability Benefits Questionnaire. For the criteria in effect since August 13, 2018, the scars do not result in underlying soft tissue damage in an area or areas exceeding 6 square inches (39 square centimeters) (Diagnostic Code 7801); not associated with underlying soft tissue damage in an area or areas of 144 square inches (929 square centimeters) (Diagnostic Code 7802); or, described as painful or unstable (Diagnostic Code 7804). Indeed, based on measurements provided at the VA examinations the scars did not come near the requisite measurements necessary for a rating. Pursuant to Diagnostic Code 7805, there are no other disabling effects not previously considered that would warrant a compensable rating in either the criteria in effect prior to or since August 13, 2018. Indeed, the April 2021 VA examiner persuasively indicated that the scar did not cause limitations, or have any additional findings, complications, conditions, signs and/or symptoms (such as muscle or nerve damage), or cause functional limitation. See April 2021 VA examination Scars/Disfigurement Disability Benefits Questionnaire. At most the April 2016 VA provider indicated that was some limitation of motion; however, the Board finds the Veteran's limited motion is already compensated for in the lumbar spine disability rating. See Orthopedic and Spine Therapy received November 2016 in CAPRI. Thus, the medical evidence of record contains no evidence showing that the Veteran's disability results in findings that would warrant the assignment of an initial compensable rating. For the foregoing reasons, the evidence of record persuasively weighs against a compensable rating for low back scars. As the evidence of record persuasively weighs against a compensable rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 6. Entitlement to a rating greater than 10 percent for cervical DDD and spondylosis prior to August 20, 2021 Relevant Facts In April 2011 the Veteran was granted entitlement to service connection for his cervical spine DDD and spondylosis rated as 10 percent disabling, effective June 29, 2010. See April 2011 Rating Decision. In February 2014 the Veteran claimed entitlement to an increased rating for his cervical spine, such that the Board will consider the period up to one year prior, from February 2013. See February 2014 Third Party Correspondence. The Veteran was afforded an April 2014 VA examination for his cervical spine, wherein his DDD of the cervical spine was described as causing constant, sharp pain, worse with lifting and carrying with arms extended. See April 2014 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Range of motion testing revealed forward flexion to 40 degrees, with no objective evidence of painful motion, extension to 35 degrees, and right lateral flexion to 30 degrees, left lateral flexion to 35 degrees, with objective evidence of painful motion; right lateral rotation to 70 degrees without evidence of painful motion, and left lateral rotation to 60 degrees, with evidence of painful motion. Id. The Board notes that this equates to combined range of motion of 270 degrees. There were no changes in range of motion following repetitive use, although the examiner indicated that there was less movement than normal and pain on movement. Id. There was not muscle spasm or guarding of the cervical spine resulting in, or not resulting in, abnormal gait or abnormal spinal contour. Id. There was no ankylosis of the spine; no other neurologic abnormalities, and no IVDS of the cervical spine. Id. Finally, there were no additional limitations of the cervical spine, including no additional loss of range of motion, during flare-ups, or secondary to repetitive use of the joint, painful motion, weakness, and excessive fatigability, lack of endurance or incoordination. Id. A January 2016 X-ray of the spine revealed cervical degenerative changes, facet arthropathy, with straightening of the cervical lordotic curvature, moderate loss of intervertebral disc height, and anterior marginal osteophytes. See Minneapolis VAMC treatment records received March 2016 in CAPRI. The Veteran was afforded an April 2016 VA examination for the cervical spine wherein the examiner indicated the Veteran had Scheuermann's disease with secondary osteoarthritis. See April 2016 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. The Veteran reported neck pain that was constant, without flare ups. Id. Range of motion was all normal, with forward flexion, extension, right and left lateral flexion, each to 45 degrees, and right and left lateral rotation each to 80 degrees. Id. The Board notes combined range of motion equates to 340 degrees. No pain was noted on examination, and there was no additional loss of function or range of motion following three repetitions. Id. There was no guarding or muscle spasm of the cervical spine. Id. There was no ankylosis of the spine. Id. There were no other neurologic abnormalities, and there was not IVDS of the cervical spine. Id. April 2016 orthopedic treatment note indicated that neck range of motion was mildly limited with lateral bending and rotation to the left side, associated with pain, and normal otherwise. See Minneapolis VAMC treatment records, received 2019 in CAPRI. A March 2021 private treatment notes indicate cervical range of motion was limited to 28 degrees of extension, 45 degrees flexion, 10 degrees left lateral flexion, 43 degrees left rotation, 18 degrees right lateral flexion, and 60 degrees right rotation. See Orthopedic Spine Therapy records received March 2021 in CAPRI. The Board notes combined range of motion is 204 degrees. An April 2021 private treatment note indicates cervical left rotation to 55 degrees, cervical extension to 55 degrees, and cervical left lateral flexion to 35 degrees as compared with the earlier ranges of motion. See Orthopedic Spine Therapy records received May 2021 in CAPRI. Legal Analysis and Conclusions Based on the evidence of record, the Board finds that the Veteran's cervical spine disability manifested as loss in forward flexion to 40 degrees, at worst, with combined ROM to 270 degrees, at worst, and with no evidence of ankylosis or IVDS, prior to August 20, 2021. See April 2014 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Limitation of motion due to pain was considered in the April 2014 VA examination, and subsequent treatment notes. Id. The symptomatology of the Veteran's cervical spine disability is more nearly approximated by the rating criteria for 10 percent prior to August 20, 2021. The persuasive evidence does not meet the necessary criteria for a 20 percent rating for the cervical spine. Specifically, the evidence does not approximate forward flexion limited to greater than 15 degrees but not greater than 30 degrees, or combined range of motion of the cervical spine not greater than 170 degrees, or muscle spasm or guarding resulting in abnormal spinal contour or gait. 38 C.F.R. § 4.71A. Indeed, there was no muscle spasm or guarding at either the April 2014 or April 2016 VA examinations. See April 2014 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire; see April 2016 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Therefore, the Board finds that even when considering functional limitations due to pain and the other factors identified in 38 C.F.R. §§ 4.40, 4.45, 4.59 as well as the criteria in DeLuca and Mitchell, the Veteran's functional loss does not equate to the criteria required for a 20 percent rating. Indeed, there is no indication the Veteran suffered from such restricted range of motion of the cervical spine that it may be considered the functional equivalent of ankylosis. See Chavis v. McDonough, 34 Vet. App. 1, 10 (2021). There is also no medical or lay evidence indicating that the Veteran has had any incapacitating episodes due to IVDS during the period on appeal. See April 2016 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. For the foregoing reasons, the evidence of record persuasively weighs against a rating greater than 10 percent prior to August 20, 2021, for the cervical spine. As the evidence of record persuasively weighs against a greater rating, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). 8. Entitlement to a rating greater than 20 percent prior to August 20, 2021, for left upper extremity radiculopathy The Veteran's left upper extremity radiculopathy is currently rated under DC 8510 at: 20 percent prior to August 20, 2021, and 40 percent since August 20, 2021. See 38 C.F.R. § 4.71a, DC 8510, 38 C.F.R. § 4.124a. Here, the Board is addressing entitlement to a rating greater than 20 percent prior to August 20, 2021, for left upper extremity radiculopathy, and remanding the increased rating claim since August 20, 2021, for the reasons explained below. As a foundational matter, ratings based on functional impairment of the upper extremities are predicated upon which extremity is the major extremity, with only one extremity being considered major. 38 C.F.R. § 4.69. The Veteran is right-hand dominant. See April 2014 VA Examination Peripheral Nerves Conditions. Consistent with the regulations, the Board finds the Veteran's left upper extremity to be the non-dominant, minor, extremity for rating purposes. Id. As previously noted, the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for the mild, or at most the moderate degree. Id. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Under diagnostic code 8510, considering the minor joint, a rating of 20 percent is warranted for mild incomplete paralysis, a 30 percent rating is warranted for moderate incomplete paralysis, and a 40 percent rating is warranted for severe incomplete paralysis of the minor joint upper radicular group. A rating of 60 percent is warranted for complete paralysis of the minor joint upper radicular group with all shoulder and elbow movement lost or severely affected and hand and wrist movements not affected. See 38 C.F.R. § 4.124A. As previously noted, the terms "mild" "moderate" "moderately severe" and "severe" are not defined in the Rating Schedule. Thus, rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. Relevant Facts In April 2011, the Veteran was afforded entitlement to service connection for left upper extremity radiculopathy, rated as 20 percent disabling effective June 29, 2010. See April 2011 Rating Decision. In February 2014 he appealed for an increased rating, such that the Board is considering relevant evidence from one year prior (February 2013). See February 2014 Third Party Correspondence. Here, the Board notes that the Veteran is separately service connected for left shoulder strain, rotator cuff tendonitis, and acromioclavicular joint osteoarthritis associated with cervical DDD and spondylosis and spinal stenosis. See October 2021 Rating Decision-Codesheet. In April 2014 the Veteran reported experiencing occasional numbness in the back of his left arm and digits 3 to 5 of his left hand. See April 2014 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Muscle, reflexes and sensation were all normal for the left upper extremity, and there was no muscle atrophy. Id. There were moderate paresthesias and/or dysesthesias, and numbness, but no other signs of radiculopathy, such that severity was considered to be mild. Id. The Veteran was afforded an April 2016 VA examination of the neck, which also evaluated his left upper extremity radiculopathy. See April 2016 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Radicular symptoms were denied. Muscle strength testing was normal, and there was no muscle atrophy. Id. Reflex and sensory exam were also normal. Id. There were no signs or symptoms of radiculopathy. Id. The examiner indicated that left upper extremity radiculopathy was resolved. Id. VA treatment records from April 2016, however, show that the Veteran reported left lateral neck chronic pain with radiation to his left upper extremity, associated with weakness and paresthesias, and the physician determined history and examination were suggestive of left C6/7 radiculopathy. See Minneapolis VAMC treatment records received May 2016 in CAPRI. In June 2016 Tinel's testing revealed carpal tunnel and cubital tunnel were positive for the left upper extremity. See Minneapolis VAMC treatment records received June 2016 in CAPRI. EMG study showed delayed latency at the left median motor nerve, delayed peak latency and decreased conduction velocity at the left median sensory nerve and left ulnar nerve. Id. There was, in part, electrodiagnostic evidence of sensory ulnar mononeuropathies not localizable. Id. An October 2016 VA treatment note indicated that the majority of symptoms, described as radiating pain down the base of his skull over the posterior scapula down the deltoid, with numbness in the left fourth and fifth fingers and tingling, with occasionally dropping things, stemmed from his cervical spine. See Minneapolis VAMC treatment records received November 2016 in CAPRI. Impression was of possible cervical encroachment of C6-7, C7-T1 root on the left, with intermittent radiculopathy. Id. At a November 2016 VA examination the Veteran described having normal strength in his arms, but radiating pain from his neck to his left upper extremity symptoms in his bicep area. See November 2016 VA Examination Peripheral Nerves Conditions Disability Benefits Questionnaire. He wore protective gel sleeves that helped the needle like and pain symptoms he used to experience radiating from the elbow to the left middle and ring fingers. Id. The examiner indicated that the Veteran experienced mild constant and intermittent pain, as well as mild paresthesias and/or dysesthesias of the left upper extremity. Id. Muscle strength testing, reflexes and sensation were normal, and there was no atrophy, and no trophic changes. Id. There was mild incomplete paralysis of the median nerve and the ulnar nerve. Id. The examiner indicated that subjective complaints of left upper extremity pain radiating from the neck to the bicep would be separately evaluated as radiculopathy, whereas the paresthesias and dysesthesias to the arms would be separately evaluated as CTS symptoms. Id. In November 2016 a VA examiner indicated that a continued diagnosis of left upper extremity radiculopathy was warranted. See November 2016 VA Medical Opinion Disability Benefits Questionnaire. The examiner also indicated that the carpal tunnel syndrome was a peripheral nerve condition in the arm not localized to the neck, cervical spine DDD and spondylosis, and therefore less likely than not a result of the cervical spine disability. Id. The examiner also indicated that subjective complaints of bilateral upper extremity paresthesias and dysesthesias to the arms would be separately due to carpal tunnel syndrome. Id. Private treatment records from March 2021 show the Veteran was treated for cervical radiculopathy, with upper extremity symptoms impairing his ability to reach overhead, lift and carry without pain. See Orthopedic Spine Therapy treatment records, received March 2021. His neck and left arm pain cervical radiculopathy was characterized by soft tissue restrictions in the cervical spine with mechanical dysfunctions, radicular symptoms that centralized, such that there was no longer pain or numbness in the hand, with primary complaint of shoulder pain and inability to reach overhead, lift or carry without pain. Id. Private treatment records show that the Veteran underwent physical therapy, and he described experiencing pain originating in his thumb and forefinger and radiating into the ulnar side of the left arm to the elbow to the lateral tricep to the shoulder. See Essentia Health - Duluth Clinic Neurosurgery treatment records received May 2021 in CAPRI. He reported frequently dropping things with his left hand, and rated his pain a 5/10 on average. Id. He had left arm numbness in C6 distribution cervical spondylosis with radiculopathy. Id. The Veteran described the numbness as pretty constant, never going away, although occasionally flaring up. Id. He reported his arm did not feel weak, although he had some trouble with muscle control of the arm. Id. At his March 2021 hearing the Veteran described experiencing constant left arm numbness, and easily dropping items. See March 2021 Hearing Transcript. Legal Analysis and Conclusions Here, the Board has considered the lay and medical evidence of record. The Veteran reported occasional numbness and paresthesias and or dysesthesias in April 2014; however, the examiner indicated the radiculopathy was mild because there was no muscle atrophy and muscle, sensory and reflex exams were normal. See April 2014 VA Examination Neck (Cervical Spine) Conditions Disability Benefits Questionnaire. Then, in November 2016 the VA examiner explained that the paresthesias and/or dysesthesias were separately due to carpal tunnel syndrome. See November 2016 VA Examination Peripheral Nerves Conditions Disability Benefits Questionnaire. Still, the Veteran described difficulty with reaching, lifting and carrying objects and continued numbness and pain. See Orthopedic Spine Therapy treatment records, received March 2021. Considering the totality of the evidence, however, the Board finds that the Veteran's radiculopathy symptomatology does not approximate the next higher rating of 30 percent which requires moderate severity of the incomplete paralysis of the minor upper extremity. Rather, here, the occasional numbness and pain, with some functional limitations, to include difficulty reaching overhead, remains at most mild in degree of severity. For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating greater than 20 percent for left upper extremity radiculopathy prior to August 20, 2021. As the evidence of record persuasively weighs against a rating in excess of 10 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, No. 2020-2067, 2021 U.S. App. LEXIS 37307 (Fed. Cir. Dec. 17, 2021). REASONS FOR REMAND 1. Entitlement to a rating greater than 40 percent for lumbar DDD and spondylosis from March 29, 2019 As previously noted in the Board's March 2021 remand, the Veteran's spinal fusion operative notes from Dr. J. Sembrano at the University of Minnesota, ranging from May to June 2019 are not associated with the record, and must be obtained. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Here, to ensure all related records are associated with the claim, the Board is remanding to obtain records from March 29, 2019, the date when the Veteran was authorized to seek treatment with Dr. Sembrano. 38 C.F.R. § 3.159. 2. Entitlement to a rating greater than 20 percent for cervical DDD and spondylosis since August 20, 2021 Here, the Board is separating the time period since the most recent examination in order to better assess the current severity of the Veteran's cervical DDD and spondylosis. Specifically, the medical record indicates that the Veteran was scheduled for a cervical fusion at St. Mary's Duluth Minnesota for November 20, 2021; however, these records are not yet associated with the claim. See Minneapolis VA treatment records, received October 2021 in CAPRI. As the outstanding records are pertinent to assessing the severity of his cervical DDD and spondylosis, the Board finds that remand is necessary to obtain these outstanding private records. 38 C.F.R. § 3.159. Further, if the records are received indeed showing such cervical fusion, then provide the Veteran with a VA examination to address the current severity of his disability. 3. Entitlement to a rating greater than 40 percent for left upper extremity radiculopathy from August 20, 2021 Here, the Board is remanding in order to obtain relevant, outstanding private treatment records regarding a cervical fusion, and the left upper extremity related to the cervical spine, such that the Board finds assessing the current severity of the left upper extremity radiculopathy is inextricably intertwined with the outstanding records. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that where a decision on one issue may have a "significant impact" upon another, the two claims are inextricably intertwined). Accordingly, this issue will also be remanded in order to accurately reflect the symptomatology of the left upper extremity radiculopathy. The matters are REMANDED for the following action: 1. Ask the Veteran to identify and authorize the VA to receive private treatment records (1) from the University of Minnesota since March 29, 2019, particularly involving a spinal fusion by Dr. Sembrano; and (2) records pertaining to his cervical fusion at St. Mary's Duluth Minnesota (scheduled for November 20, 2021). 2. If records are received that indeed show the scheduled surgery, then schedule the Veteran for an examination by an appropriate clinician ONLY regarding the current severity of his service-connected cervical spine and left upper extremity radiculopathy. (continued on the next page) YVETTE R. WHITE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Barner, 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.