Citation Nr: 1751417 Decision Date: 11/09/17 Archive Date: 11/17/17 DOCKET NO. 17-02 106 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for type II diabetes mellitus. 2. Entitlement to service connection for erectile dysfunction. 3. Entitlement to service connection for an acquired psychiatric disability. 4. Entitlement to service connection for obstructive sleep apnea. 5. Entitlement to service connection for high blood pressure. 6. Entitlement to service connection for neuropathy of the bilateral upper extremities. 7. Entitlement to a rating in excess of 40 percent for bilateral hearing loss disability. 8. Entitlement to a rating in excess of 10 percent for a low back disability. 9. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy. 10. Entitlement to a rating in excess of 20 percent for the period prior to January 29, 2016 for service-connected left lower extremity peripheral neuropathy. 11. Entitlement to a rating in excess of 10 percent for the period beginning January 29, 2016 for service-connected left lower extremity peripheral neuropathy. 12. Whether the rating reduction from 20 percent to 10 percent for service-connected left lower extremity peripheral neuropathy under Diagnostic Code 8520, effective January 29, 2016, was proper. 13. Entitlement to an effective date earlier than August 25, 2015 for service connection for tinnitus. REPRESENTATION Appellant represented by: J. Michael Woods, Esquire ATTORNEY FOR THE BOARD C. Orie, Associate Counsel INTRODUCTION The Appellant served in the National Guard and in Air Force Reserves from December 1962 to October 1990 with various periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA). These matters come before the Board of Veterans' Appeals on appeal from rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina (Agency of Original Jurisdiction (AOJ)). Notably, in August 2015, the Appellant filed increased rating claims for his service-connected lumbar spine and left lower extremity peripheral neuropathy disabilities. At the time of the claim, the Appellant's left lower extremity neuropathy was rated as 20 percent disabling. In a February 2016 rating decision, the AOJ decreased the Appellant's disability rating for the left lower extremity neuropathy to 10 percent disabling, effective January 29, 2016. The Appellant timely appealed, requesting, among other things, an increased rating for his left leg peripheral neuropathy. A claim stemming from a rating reduction action must be phrased as whether the reduction was proper, not whether the appellant is entitled to an increased rating. See Dofflemyer v. Derwinski, 2 Vet. App. 277, 279-80 (1992). Here, as it specifically pertains to the disability rating for left leg peripheral neuropathy, the Appellant's appeal encompasses claims of entitlement to higher ratings since the date of claim and propriety of the reduction of the rating. Thus, the Board has rephrased the issues on the title page to reflect the separate increased rating and rating reduction issues and the fact that staged ratings have been assigned. See generally Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Board observes that, since the AOJ last adjudicated these claims, additional evidence was added by the Veteran which is not pertinent to the claims being decided on appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016). 38 U.S.C.A. § 7107(a)(2) (West 2014). The issues of entitlement to service connection for diabetes, erectile dysfunction, high blood pressure, and neuropathy of the bilateral upper extremities and entitlement to a rating in excess of 10 percent for the service-connected low back disability are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ. FINDINGS OF FACT 1. The Appellant's anxiety disorder is attributable to his service-connected disabilities. 2. The Appellant's obstructive sleep apnea is attributable to his service-connected disabilities. 3. A February 2016 rating decision implemented the disability rating reduction from 20 percent to 10 percent for left leg peripheral neuropathy, effective January 29, 2016. 4. At the time of the January 29, 2016 effective date of the reduction, the 20 percent rating for the Veteran's left leg peripheral neuropathy had not been in effect for more than five years. 5. The AOJ rating decision which reduced a disability rating for left leg peripheral neuropathy from 20 percent to 10 percent effective January 29, 2016 did not reflect consideration of the provisions of 38 C.F.R. § 3.344 and is void ab initio. 6. On VA audiological testing in January 2016, the Veteran's hearing acuity was level VIII in the right ear and level VI in the left ear. 7. The Appellant's left leg peripheral neuropathy is manifested by no more than moderate incomplete paralysis; symptoms indicative of moderately severe incomplete paralysis are not shown. 8. The Appellant's right leg peripheral neuropathy is manifested by no more than mild incomplete paralysis; symptoms indicative of moderate incomplete paralysis are not shown. 9. In August 2006, the Appellant filed a claim for service connection for tinnitus. 10. By way of an April 2007 rating decision, the AOJ denied the Appellant's service connection claim for tinnitus. The Appellant did not appeal or submit new and material evidence within one year of the decision; thus, the decision became final. 11. On August 25, 2015, the Appellant filed a formal claim for entitlement to service connection for tinnitus. CONCLUSIONS OF LAW 1. The criteria for service connection for anxiety disorder have been met. 38 U.S.C.A. §§ 1110, 5103, 5103A (West 2014); 38 C.F.R. § 3.310 (2017). 2. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C.A. § § 1110, 5103, 5103A (West 2014); 38 C.F.R. § 3.310 (2017). 3. The reduction of the rating for service-connected left leg peripheral neuropathy from 20 percent to 10 percent was improper and restoration of the 20 percent disability rating effective January 29, 2016 is warranted. 38 U.S.C.A. §§ 1155, 5103 (West 2014); 38 C.F.R. §§ 3.102, 3.105, 3.344 (2017). 4. The criteria for a rating in excess of 40 percent for bilateral sensorineural hearing loss have not been met. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.10, 4.85, 4.86, Diagnostic Code 6100 (2017). 5. The criteria for a rating in excess of 20 percent for left leg peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8520 (2017). 6. The criteria for a rating in excess of 10 percent for right leg peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.103, 3.159, 3.321, 3.327, 4.1, 4.2, 4.3, 4.7, 4.21, 4.124a, Diagnostic Code 8520 (2017). 7. The criteria for entitlement to an effective date earlier than August 25, 2015 have not been met. 38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. § 3.400 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA has procedural requirements pursuant to The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096(Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014)) which includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2017). A review of the record does not disclose that the Appellant and his representative have specifically raised any procedural issues to the AOJ or the Board, even when construing the Appellant's contentions liberally. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (Board required to address only those procedural arguments specifically raised by the Veteran, though at the same time giving the Veteran's pleadings a liberal construction). II. Service Connection Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a). Additional disability resulting from the aggravation of a non-service-connected condition by a service-connected condition is also compensable under 38 C.F.R. § 3.310(b). See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). Section 3.310 was amended effective October 10, 2006. The amendment essentially requires that a baseline level of severity of the nonservice-connected disease or injury must be established by medical evidence created before the onset of aggravation. Here, the Appellant's claim was filed in August 2015, after the amendment; thus, the current version of 38 C.F.R. § 3.310 is applicable to the claim on appeal. Acquired Psychiatric Disorder The Board finds that service connection for unspecified anxiety disorder is warranted. In June 2017, the Appellant underwent a private psychiatric assessment. At that time, the clinician diagnosed the Veteran with unspecified anxiety disorder and opined that the condition was more likely than not aggravated by his service-connected hearing loss, low back disability, tinnitus, and bilateral peripheral neuropathy. The Board finds this assessment to be highly probative as to the issues of etiology and aggravation. Dr. H.H.G. rendered her opinion upon review of the Appellant's claims file and in-person interview of the Appellant. She extracted a detailed history from the Appellant, to include his family life, medical history and current symptomatology. In addition, she cited to and provided medical journal articles which support the correlation between psychiatric disabilities, specifically anxiety, and chronic medical conditions. Accordingly, the Board assigns the assessment and accompanying opinion high probative value. Given the above, and the lack of evidence contradicting the opinion, the Board finds that service connection for unspecified anxiety disorder is warranted. The claim is granted. Obstructive Sleep Apnea The Board also finds that service connection for obstructive sleep apnea is warranted. In July 2017, the Appellant was afforded a private examination to determine the nature and etiology of his sleep apnea disability. Upon review of the record and examination of the Appellant, Dr. H.S. found it as likely as not that the Appellant's chronic pain in the back and bilateral lower extremities, along with his psychological disability each independently contributed to the onset and aggravation of his obstructive sleep apnea. In support of the opinion, the clinician cited to and provided copies of medical journals, which support the contention that individuals with psychological distress are likely to develop sleep-disordered breathing. The studies within the journal also correlated chronic pain to disrupted sleep, noting that they share a cause-and-effect relationship. The Board finds that this opinion is highly probative as to the issues of etiology and permanent aggravation. The clinician rendered the opinion upon review of the claims file and examination of the Appellant. In addition, the clinician cited to several medical journals which, after applying the facts of this particular case, support a correlation between the Appellant's obstructive sleep apnea and his service-connected disabilities. The Appellant has presented competent, credible, and probative evidence in support of his claim, and there is no probative evidence of record contradicting the conclusions within the assessment. As such, service connection for obstructive sleep apnea is granted. III. Rating Reduction When determining whether a reduction was proper, there are two sequential questions that must be addressed. First, whether the AOJ satisfied the procedural requirements for a reduction, as set forth in 38 C.F.R. § 3.105. If so, the second question concerns whether the evidence shows an improvement in the severity of the service-connected disability, as defined in 38 C.F.R. § 3.344. With regard to the initial question, the Board observes that the rating reduction did not result in any reduction of VA compensation being paid to the Appellant as the overall, combined disability rating was not reduced. Thus, the procedural protections of 38 C.F.R. § 3.105(e) do not apply. Stelzel v. Mansfield, 508 F.3d 1345, 1349 (Fed. Cir. 2007) (holding that VA was not obligated to provide a Veteran with sixty days' notice before making a disability ratings decision effective if the decision did not reduce the overall compensation paid to the Veteran). In cases where a rating has been in effect for less than 5 years the disability in question has not become stabilized and is likely to improve, reexaminations disclosing improvement, physical or mental, in these disabilities will warrant a rating reduction. 38 C.F.R. § 3.344(c). In this case, the Appellant's 20 percent disability rating was awarded effective February 29, 2012. The rating was reduced effective January 29, 2016. Accordingly, 38 C.F.R. § 3.344(c) applies. Under 38 C.F.R. § 3.344(c), reexaminations disclosing improvement in a service-connected disability will warrant reduction in rating. Without regard to whether a rating has been in effect for five years or more, a rating reduction is warranted only where the evidence demonstrates an actual improvement in disability. See 38 C.F.R. § 4.13. In other words, the provisions of 38 C.F.R. §§ 4.2 and 4.10 require that "in any rating-reduction case not only must it be determined that an improvement in a disability has actually occurred but also that the improvement actually reflects an improvement in the veteran's ability to function under the ordinary conditions of life and work." Brown v. Brown, 5 Vet. App. 413, 420 (1993); Faust v. West, 13 Vet. App. 342, 350 (2000). Moreover, reports of examination must be interpreted in the light of the whole evidentiary history and reconciled with the various reports into a consistent picture, so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. In short, "the Board must 'establish, by a preponderance of the evidence and in compliance [with] 38 C.F.R. § 3.344, that a rating reduction is warranted.'" Green v. Nicholson, 21 Vet. App. 512 (2006). If there is any doubt, the rating in effect will be continued. See Brown, 5 Vet. App. at 417-18. In general, the AOJ's reduction of a rating must have been supported by evidence on file at the time of the reduction. Pertinent post-reduction evidence favorable to restoring the rating, however, also must be considered. See Dofflemeyer, 2 Vet. App. 277 (1992). In addressing whether improvement is shown, the comparison point generally is the last examination on which the rating at issue was assigned or continued. See Hohol v. Derwinski, 2 Vet. App. 169 (1992). Under 38 C.F.R. § 4.124a, Diagnostic Code 8520, a rating of 20 percent is warranted for moderate incomplete paralysis; a 40 percent is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating, the maximum available, is warranted for complete paralysis. 38 C.F.R. § 4.124a. Upon consideration of the evidence of record under the laws and regulations as set forth above, the Board concludes that reduction of the disability evaluation for the Appellant's service-connected left lower extremity peripheral neuropathy from 20 percent to 10 percent was improper. The initial 20 percent evaluation was assigned based on the findings of a July 2012 VA examination. At that time, the Appellant endorsed moderate intermittent pain in the left lower extremity, along with mild paresthesias and/or dysesthesias and numbness. Both muscle strength testing, deep tendon reflex testing, and sensation testing for light touch were normal in all facets of the left lower extremity. The clinician found that the Veteran's symptoms were indicative of moderate incomplete paralysis of the sciatic nerve of the left lower extremity. There was no muscle atrophy and the Veteran did not utilize assistive devices as a normal mode of locomotion. Shortly thereafter, in November 2012, the Veteran was granted service connection for neuropathy of the left lower extremity, evaluated as 20 percent disabling. The Veteran's neuropathy was reevaluated in January 2016. At that time, muscle strength testing and testing of the deep tendon reflexes of the left lower extremity yielded normal results. The Veteran had decreased sensation to light touch in the left thigh, knee, lower leg, ankle, foot, and toes. There was also moderate intermittent pain, moderate paresthesias and/or dysesthesias, and mild numbness. The clinician noted that the radiculopathy in the sciatic nerve was mild in severity. After a thorough review of the evidence, the Board finds that the AOJ failed to properly make findings in this case as to both prongs of the Faust test for rating reduction cases. The adjudicatory documents do not demonstrate that the AOJ made a finding with respect to whether the improvement noted reflected "an improvement in the Appellant's ability to function under the ordinary conditions of life and work" to support the rating reduction. Without such explicit findings, the Board cannot properly analyze the ratings-reduction issue currently on appeal. The Board additionally notes that, from a factual point of view, the AOJ's rating reduction is also not supportable. The Board can find no evidence suggesting why the Appellant's left leg peripheral neuropathy would improve from a medical point of view. Rather, treatment records shortly before the VA examination demonstrate the Appellant's consistent reports of left leg pain and numbness; at one point, he described his pain as feeling like a "nail being driven into the side of leg with hammer." The only change was different examiner's subjective evaluations of the severity of these symptoms - mild versus moderate. Given this description, the Board finds that a difference in examiner interpretation of the same symptoms does not amount to an actual improvement of disability. Accordingly, the action to reduce the rating is void and the 20 percent evaluation for left leg peripheral neuropathy under Diagnostic Code 8520 is restored effective January 29, 2016 as though the reduction had not occurred. See Faust, supra. In so reaching that conclusion, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. IV. Increased Rating Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 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. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where, as here, entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, as explained below, uniform evaluations of the disability on appeal is warranted. A. Bilateral Hearing Loss The Appellant's service-connected bilateral hearing loss is currently evaluated at 40 percent disabling pursuant to 38 C.F.R. § 4.85, Diagnostic Code 6100. Hearing loss disability evaluations range from 0 percent to 100 percent based on organic impairment of hearing acuity, as measured by controlled speech discrimination tests in conjunction with the average hearing threshold, as measured by puretone audiometric tests in the frequencies 1000, 2000, 3000 and 4000 Hertz. The rating schedule establishes 11 auditory acuity levels designated from Level I for essentially normal hearing acuity, through Level XI for profound deafness. VA audiometric examinations are conducted using a controlled speech discrimination test together with the results of a puretone audiometry test. The vertical lines in Table VI represent nine categories of the percentage of discrimination based on the controlled speech discrimination test. See 38 C.F.R. § 4.85. The horizontal columns in Table VI represent nine categories of decibel loss based on the pure tone audiometry test. The numeric designation of impaired hearing (Levels I through XI) is determined for each ear by intersecting the vertical row appropriate for the percentage of discrimination and the horizontal column appropriate to the puretone decibel loss. The percentage evaluation is found from Table VII by intersecting the vertical column appropriate for the numeric designation for the ear having the better hearing acuity and the horizontal row appropriate to the numeric designation level for the ear having the poorer hearing acuity. For example, if the better ear has a numeric designation Level V and the poorer ear has a numeric designation Level VII, the percentage evaluation is 30 percent. See 38 C.F.R. § 4.85. There is an alternative method of rating hearing loss in defined instances of exceptional hearing loss. Exceptional hearing exists when the pure tone threshold at the frequencies of 1000, 2000, 3000, and 4000 Hertz is 55 decibels or more; or where the pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz. If the Veteran is found to have exceptional hearing, the Roman numeral designation for hearing impairment will be determined under either Table VI or Table VIa, whichever results in the higher numeral. See 38 C.F.R. § 4.86. The Appellant contends that he is entitled to a higher evaluation for his bilateral hearing loss. The Board finds that the evidence of record does not warrant a higher rating. The Appellant filed a service connection claim for bilateral hearing loss in August 2015. At the January 2016 VA audiological examination, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 25 35 50 80 85 LEFT 25 40 40 60 60 Speech audiometry revealed speech recognition ability of 44 percent in the right ear and of 64 percent in the left ear. Based on the examination, upon the grant of service connection, the AOJ assigned a 40 percent disability evaluation, effective August 25, 2015. After thorough review of the evidence of record, the Board finds that a rating in excess of 40 percent is not warranted. The most recent audiogram of record shows no worse than Level VIII in the Veteran's right ear and a Level VI in the Appellant's left ear, both pursuant to Table VI. Combining these levels according to Table VII results in a 40 percent rating. In so finding, the Board has considered the lay statements of record as to the severity of the Appellant's bilateral hearing loss disability. However, in regards to assigning the proper disability rating, the Board is bound by the explicit criteria stated in the Rating Code. His description of an inability to hear and discriminate speech has been measured according to puretone averages and speech discrimination, and is contemplated by the schedular criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). However, the weight of the credible evidence demonstrates that an increased rating for the Veteran's bilateral hearing loss is not warranted. As the preponderance of the evidence is against the claim, the claim must be denied. 38 U.S.C.A. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Lower Extremity Radiculopathy The Appellant's bilateral peripheral neuropathy is rated under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520 for the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis. A higher rating of 20 percent is warranted for moderate incomplete paralysis; a 40 percent is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating, the maximum available, is warranted for complete paralysis. 38 C.F.R. § 4.124a. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury and the relative impairment in motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. For VA purposes, the term "incomplete paralysis," with diseases of the peripheral nerves and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement; when bilateral, they are combined with application of the bilateral factor. 38 C.F.R. § 4.124a. Descriptive words such as "slight," "moderate" and "severe" are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The use of descriptive terminology by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision. 38 U.S.C.A. § 7104(a); 38 C.F.R. §§ 4.2, 4.6. However, VA's Adjudication Manual does provide guidance in evaluating the severity of nerve paralysis. According to the Manual, 'mild' incomplete paralysis is demonstrated by subjective symptoms or diminished sensation. "Moderate" incomplete paralysis is manifested by the absence of sensation confirmed by objective findings. "Severe" incomplete paralysis is manifested when more than sensory findings are demonstrated, such as atrophy, weakness, and diminished reflexes. M-21, III.iv.4.G.4.b. i. Left Lower Extremity By way of history, the Veteran's current 20 percent disability rating for left lower extremity peripheral neuropathy was based on a July 2012 VA examination. At that time, the Veteran endorsed moderate intermittent pain, along with mild numbness and paresthesias and/or dysesthesias of the left lower extremity. Both muscle strength and deep tendon reflexes were normal on all fronts. The Veteran also had normal sensation to light touch in his left lower extremity. There was no evidence of trophic changes and the Veteran endorsed a normal gait. The clinician found that the Veteran's symptoms were indicative of moderate incomplete paralysis of the left sciatic nerve. The Veteran did not use any assistive devices and did not endorse muscle atrophy. Most recently, in January 2016, the Veteran was afforded a VA examination to assess the severity of his left leg neuropathy. The Veteran endorsed normal muscle strength and deep tendon reflexes. However, there was decreased sensation to light touch in the thigh, knee, lower leg, ankle, foot, and toes. He also endorsed mild numbness along with moderate intermittent pain and moderate paresthesias and/or dysesthesias in the left lower extremity. Based on these symptoms, the clinician found that the Veteran endorsed mild incomplete paralysis of the left sciatic nerve. The Veteran did occasionally use a cane to help with walking due to back pain. The available treatment records do not disclose any significant, different findings with respect to the presence or severity of motor impairment, sensory impairment, reflex abnormality, muscle atrophy, trophic changes, etc. Upon consideration of the evidence, the Board finds that a rating in excess of 20 percent is not warranted for left leg peripheral neuropathy. During this time, the Veteran's disability was manifested by numbness, tingling, and decreased sensation in the left leg. Further, his left leg symptoms are wholly sensory; there is no indication of abnormal gait due to neuropathy, nor is there any evidence of muscle atrophy or trophic changes in the leg. There are no objective findings such as motor or reflex impairment, nor is there evidence of abnormal reflexes. Muscle strength in the left leg remained normal. Neither the examinations nor the medical records show any probative manifestations of at least moderately severe incomplete paralysis of the sciatic nerve. The Veteran's symptoms remained consistently indicative of no more than moderate incomplete paralysis of the sciatic nerve. The Board acknowledges the Veteran's contentions in regards to the severity of his left leg neuropathy. However, the Board finds that the symptomatology described in the statements is adequately contemplated by the assigned 20 percent rating. The statements do not present evidence indicative of moderately severe incomplete paralysis of the sciatic nerve. The Board has considered whether the Veteran would be entitled to a higher rating under another applicable diagnostic code, but has found none. In sum, the Board finds that the Veteran's left leg peripheral neuropathy is 20 percent disabling. A higher rating is not warranted. ii. Right Lower Extremity The Veteran's 10 percent rating for right leg peripheral neuropathy was predicated on the January 2016 VA examination. The Veteran endorsed normal muscle strength in the right hip flexion, ankle plantar flexion, ankle dorsiflexion and great toe extension; right knee extension was less than normal, but had active movement against some resistance. Deep tendon reflexes were hyperactive without clonus. There was decreased sensation to light touch in the right thigh, knee, lower leg, ankle, foot, and toes. The clinician ultimately found that the Veteran's symptoms were indicative of mild incomplete paralysis of the right sciatic nerve. The Board finds that the Veteran's right leg peripheral neuropathy symptoms more nearly approximate that which is contemplated by the currently assigned 10 percent rating and no higher. During the appeal period, the Veteran's symptomatology was wholly sensory, as the disability was manifested by numbness, tingling, and decreased sensation in the right lower extremity. There was no evidence of abnormal gait, muscle atrophy or trophic changes attributable to right leg neuropathy. Furthermore, the Veteran's muscle strength was noted as normal on all fronts, except knee extension, which was slightly less than normal. The objective medical evidence of record does not reflect any probative manifestations of at least moderate incomplete paralysis. The available treatment records do not disclose any significant, different findings with respect to the presence or severity of motor impairment, sensory impairment, reflex abnormality, muscle atrophy, trophic changes, etc. The Board further finds that the symptomatology described in the lay statements is adequately contemplated under the currently assigned 10 percent rating. The Board also observes the similarity of symptoms between the right and left lower extremities with the left lower extremity being rated as 20 percent disabling. The issue before the Board is whether the Veteran meets the next higher criteria for a rating in both lower extremities. The AOJ initially provided a favorable 20 percent rating for the left lower extremity for which the Board has no authority to revisit. See Murphy v. Shinseki, 26 Vet. App. 510 (2014). In terms of this decision, the Board only evaluates whether the Veteran meets the criteria for a higher rating for each lower extremity. The Board has considered whether the Veteran would be entitled to a higher rating under another applicable diagnostic code, but has found none. In sum, the Board finds that the Veteran's right leg peripheral neuropathy is 10 percent disabling. A higher rating is not warranted. C. Earlier Effective Date Generally, the effective date for a grant of service connection and disability compensation is the day following separation from active military service or the date entitlement arose if the claim is received within one year after separation from service; otherwise, the effective date will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. For purposes of this decision, a "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-35 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The Board notes that, effective March 24, 2015, VA amended its adjudication regulations to require that all claims governed by VA's adjudication regulations be filed on standard forms prescribed by the Secretary (i.e., VA Form 21-526). 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a). This rulemaking also eliminated the constructive receipt of VA reports of hospitalization or examination and other medical records as informal claims for increase and revised 38 C.F.R. § 3.400(o)(2). These amendments, however, are only applicable with respect to claims and appeals filed on or after March 24, 2015, and are not applicable in the present case. See 79 Fed. Reg. 57,660, 57,686 (Sept. 25, 2014). As such, any communication or action in this case, indicating intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim. Such an informal claim must identify the benefits sought. Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. Upon receipt of an informal claim, if a formal claim has not been filed, an application form must be forwarded to the claimant for execution. If the application form is received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. 38 C.F.R. § 3.155(a). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Under 38 C.F.R. § 3.157(b) in effect at the inception of the appeal, once a formal claim for pension or compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, receipt of (1) a report of examination or hospitalization by VA or uniformed services, (2) evidence from a private physician or layman, or (3) reports and records from State and other institutions will be accepted as an informal claim for increased benefits or an informal claim to reopen. However, this regulation only applies to a particular group of claims. See Pacheco v. Gibson, 27 Vet. App. 21 (2014) (en banc) (construing ambiguity contained in 38 C.F.R. § 3.157 as applying to a previous disallowance for a service-connected disability not being compensable in degree); see Sears v. Principi, 16 Vet. App. 244, 249 (2002) (finding that § 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service-connected rating where service connection has already been established). In this case, the Appellant is seeking entitlement to an effective date earlier than August 25, 2015 for the grant of service connection for tinnitus. By way of history, the record reflects that the Appellant initially filed for service connection for tinnitus in August 2006. In an April 2007 rating decision, the AOJ denied the claim, stating that there was no evidence of in-service occurrence of acoustic trauma and no evidence relating his current hearing loss to service. By letter dated May 2, 2007, the AOJ notified the Appellant of the denial and his appellate rights. The Appellant did not file a notice of disagreement or new and material evidence within one year of the notice of denial. As such, the April 2007 AOJ rating decision is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2006). After the April 2007 rating decision, VA treatment records demonstrate the Appellant's complaints and treatment related to tinnitus. On August 25, 2015, the AOJ received the Appellant's VA Form 21-526EZ, in which he claimed service connection for tinnitus. Upon review of the record, the Board finds that an effective date earlier than August 25, 2015 is not warranted for the grant of service connection. Notably, VA has a duty to determine the breadth of a claim from intent and the evidence of record. The claimant's intent in filing a claim is paramount to construing its breadth especially because the claimant knows what symptoms are causing the disability. The record reflects that the Appellant did file a claim for tinnitus in August 2006 and was notified of the denial in May 2007. The Board finds that based upon the evidence, the claim, and the pleadings, there was no intent to file a claim for tinnitus in the time period between the April 2007 final decision and the August 2015 claim. In that time period between April 2007 and August 25, 2015, there are medical records, correspondence and claims related to other disabilities. These records do not contain any complaints of tinnitus, nor was there any evidence that the Appellant believed he was entitled to a benefit based on tinnitus. Simply put, between April 2007 and August 25, 2015, there was no mention in the record of any compensation benefits related to tinnitus. The Board also finds that the medical evidence of record is not sufficient to establish an earlier effective date. The mere existence of such records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit. See Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006). Furthermore, in the absence of a sufficient manifestation of intent to apply for benefits for a particular disease or injury, a document providing medical information which refers to a disability in and of itself is not an informal claim for VA benefit. Ellington v. Nicholson, 22 Vet. App. 141, 145-46 (2007). In addition, a veteran's attempt to obtain treatment does not comprise a claim. Dunson v. Brown, 4 Vet App. 327, 330 (1993). Turning to the particular facts of this case, the Appellant periodically reported and received treatment for his tinnitus and various VA medical facilities. However, at no point in the record did the Appellant explicitly state that he intended to apply for benefits related to this disability. After review of the Appellant's medical records during the time period in questions, the Board finds that the Appellant's statements to physicians over the years cannot be construed as an informal claim. The Board has given the most favorable reading possible to the facts of this case, but finds that there is no interpretation of the facts of this case which will support a legal basis for favorable action with regard to the Appellant's claim. There was no communication or submission of evidence from the Appellant evidencing intent to apply for benefits regarding tinnitus prior to August 25, 2015. Accordingly, the Board finds no basis in law or facts in this case for an earlier effective date for service connection for tinnitus. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. In reaching this conclusion, the benefit of the doubt doctrine was considered. However, as a preponderance of the evidence is against this claim this doctrine is not for application. See 38 U.S.C.A. § 5107 (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER Service connection for unspecified anxiety disorder is granted. Service connection for obstructive sleep apnea is granted. Restoration of the 20 percent rating for left leg peripheral neuropathy under Diagnostic Code 8520, effective January 29, 2016 is granted, subject to the laws and regulations governing the payment of monetary benefits. Entitlement to a rating in excess of 40 percent for bilateral hearing loss is denied. Entitlement to a rating in excess of 20 percent for left leg peripheral neuropathy is denied. Entitlement to a rating in excess of 10 percent for right leg peripheral neuropathy is denied. Entitlement to an effective date earlier than August 25, 2015 for the grant of service connection for tinnitus is denied. REMAND Service Connection for Remaining Disabilities The Appellant asserts that his diabetes, erectile dysfunction, high blood pressure, and neuropathy were caused or aggravated by his active duty and/or Reserve and National Guard service. Veteran status is the first element required for a claim for disability benefits. D'Amico v. West, 209 F.3d 1322, 1326 (Fed. Cir. 2000). The term "veteran" means a person who served in the active military, naval, or air service and who was discharged or released therefrom under conditions other than dishonorable. 38 U.S.C.A. § 101(2). The term "active duty" includes full-time duty in the Armed Forces, other than active duty for training (ACDUTRA). 38 U.S.C.A. § 101(21). The term Armed Forces means the United States Army, Navy, Marine Corps, Air Force, and Coast Guard, including the reserve components thereof. 38 U.S.C.A. § 101(10). Active military, naval, or air service includes any period of ACDUTRA during which the individual concerned was disabled or died from a disease or injury incurred in or aggravated in line of duty or period of inactive duty training (INACDUTRA) during which the individual concerned was disabled or died from injury incurred in or aggravated in line of duty. 38 U.S.C.A. § 101(21) and (24); 38 C.F.R. § 3.6(a) and (d). ACDUTRA is, inter alia, full-time duty in the Armed Forces performed by Reserves for training purposes. 38 C.F.R. § 3.6(c)(1). When a claim for service connection is based only on a period of ACDUTRA, there must be some evidence that the appellant became disabled as a result of a disease or injury incurred or aggravated in the line of duty during the period of ACDUTRA. Smith v. Shinseki, 24 Vet. App. 40, 47 (2010). In the absence of such evidence, the period of ACDUTRA would not qualify as "active military, naval, or air service," and the appellant would not qualify as a "veteran" by virtue of ACDUTRA service alone. Id. Generally, no presumptions (including the presumptions of soundness, aggravation, or for presumptive diseases) attach to periods of ACDUTRA and INACDUTRA unless "veteran" status is attained during those periods. Paulson v. Brown, 7 Vet. App. 466, 470 (1995). As to the presumption of soundness, it does not apply to a claimant who had only ACDUTRA service and who is not otherwise a veteran. Paulson, 7 Vet. App. at 471. Moreover, even for veterans who have achieved "veteran" status through a prior period of active service and claim a disability incurred only during a different period of ACDUTRA, the presumption of soundness applies only when the veteran has been "examined, accepted, and enrolled for service" and where that examination revealed no "defects, infirmities, or disorders." Smith v. Shinseki, 24 Vet. App. 40, 45-46 (2010). See also Donnellan v. Shinseki, 24 Vet. App. 167, 171 (2010) (the presumption of aggravation is not applicable to ACDUTRA service unless claimant is service-connected for a disability for such period of ACDUTRA). There must be an entrance examination prior to the specific period of ACDUTRA OR INACDUTRA in which the Veteran claims the disease or injury occurred; otherwise, the presumption of soundness does not attach. Smith, 24 Vet. App. at 45-46. With respect to a claim for aggravation of a preexisting condition during a period of ACDUTRA or INACDUTRA, in order for a claimant to establish "veteran" status, the claimant must demonstrate both elements of aggravation - (1) that the preexisting disability permanently worsened in service, and (2) that such worsening was beyond the natural progression of the disease (i.e., such worsening was caused by service). Donnellan, 24 Vet. App. at 174. In such instances, the claimant is not entitled to the easier presumption of aggravation standard. See 38 U.S.C.A. § 1153; 38 C.F.R. § 3.306 (a). The standard of proof for the claimant is the "benefit of the doubt" standard; thus, the claimant must only show that there is an approximate balance of positive and negative evidence to prevail on this matter. Donnellan, 24 Vet. App. at 174. There is no shifting burden to VA as there is when the presumptions of soundness and aggravation apply. Id. at 175. For purposes of 38 U.S.C.A. § 101(24), the term "injury" refers to the results of an external trauma rather than a degenerative process. See generally VAOPGCPREC 4-2002 (May 14, 2002); VAOPGCPREC 86-90 (July 18, 1990); VAOPGCPREC 8-2001 (Feb. 26, 2001). The case at hand is complicated as the Appellant had many periods of ACDUTRA and INACDUTRA service with the Reserves and National Guard over many years. In addition, the Appellant is currently service-connected for bilateral hearing loss and a low back disability. This fact allows veteran status and the presumptions to be applied to certain periods of service; however, the record is unclear as to which periods of service the Appellant's service-connected disabilities are attributable. In addition, the Veteran's exact periods of active duty, ACDUTRA, and INACDUTRA are difficult to ascertain with the available records. Thus, the Board finds that remand is required to obtain more precise records that may be available from the Defense Finance and Accounting Service (DFAS) that could be used to verify the Appellant's various duty statuses through his Master Military Pay Account (MMPA). Increased Rating for Low Back Disability The Veteran was most recently afforded a VA examination to assess the severity of his low back disability in January 2016. Subsequent to this examination, the Court issued Correia v. McDonald, 28 Vet. App. 158 (2016). In Correia, the Court held "that the final sentence of § 4.59 creates a requirement that certain range of motion testing be conducted whenever possible in cases of joint disabilities." Id, at 8. Specifically, range of motion studies must be performed that test active and passive range of motion as well as in weight-bearing and nonweight-bearing. Accordingly, the case is REMANDED for the following action: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). Expedited handling is requested.) 1. Take additional action to verify the dates of the Veteran's ACDUTRA and INACDUTRA and any other type of Reserve service by contacting the Defense Finance and Accounting Service (DFAS) and requesting the Veteran's Master Military Pay Account (MMPA). The AOJ must document all steps taken to obtain this record. 2. Request the Veteran to described the onset of his claimed diabetes, erectile dysfunction, high blood pressure, and neuropathy of the bilateral upper extremities and clarify his theory of why such disabilities should be service-connected. 3. Schedule the Veteran for VA examination to ascertain the current severity and manifestations of his service-connected lumbar spine disability. The claims folder contents must be made available to the examiner. In order to comply with Sharp v. Shulkin, 29 Vet. App. 26, 33 (2017), the examiner is asked to describe whether pain, weakness, fatigue and/or incoordination significantly limits functional ability during flares or repetitive use, and if so, the examiner must estimate range of motion during flares or repetitive use. If the examination does not take place during a flare, the examiner should have the Veteran describe and/or demonstrate the extent of motion loss during flares or repetitive use and provide the extent of motion loss described in terms of degrees. If there is no pain and/or no limitation of function, such facts must be noted in the report. The examiner should comment as to whether there is any medical reason to accept or reject the Veteran's description of reduced range of motion during flares or repetitive use. Also, in order to comply with the Court's decision in Correia v. McDonald, 28 Vet. App. 158 (2016), the VA examination must include range of motion testing in the following areas: • Active motion; • Passive motion; • Weight-bearing; and • Nonweight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The VA examiner should provide a complete rationale for any opinions provided. 4. Then readjudicate the claims on appeal. If the benefits sought on appeal are not granted to the Veteran's satisfaction, he and his representative must be furnished a Supplemental Statement of the Case and afforded an opportunity to respond. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ T. MAINELLI Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs