Citation Nr: 18157094 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-51 402 DATE: December 11, 2018 ORDER Entitlement to service connection for acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression as secondary to service-connected disabilities is granted. Entitlement to service connection for sleep apnea is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for headache disorder is denied. Entitlement to a rating in excess of 10 percent for tinnitus is denied. Entitlement to a rating of 20 percent, but no higher, prior to June 10, 2014 for left lower extremity radiculopathy is granted. Entitlement to a rating in excess of 40 percent from June 10, 2014 for left lower extremity radiculopathy is denied. Entitlement to a rating of 20 percent, but no higher, for right lower extremity radiculopathy is granted.   REMANDED Entitlement to a compensable rating for bilateral hearing loss is remanded. FINDINGS OF FACT 1. The Veteran was called to active state duty as part of the National Guard by the Governor of New York on September 11, 2001. 2. The Veteran’s acquired psychiatric disorders to include posttraumatic stress disorder (PTSD) and depression are aggravated by his service-connected disabilities. 3. The Veteran does not have a current diagnosis of sleep apnea. 4. The Veteran does not have a current diagnosis of hypertension disorder. 5. The Veteran does not have a current diagnosis of chronic headache disorder. 6. Throughout the appeal period, the Veteran’s bilateral tinnitus has been assigned a 10 percent rating, the maximum authorized under Diagnostic Code (DC) 6260. 7. The Veteran’s left lower extremity radiculopathy manifested in symptoms of moderate incomplete paralysis prior to June 10, 2014 and did not show marked muscle atrophy at any time during the appeal period. 8. The Veteran’s right lower extremity radiculopathy manifested in symptoms of moderate incomplete paralysis during the period on appeal. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, the criteria for entitlement to service connection for acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression on a secondary service connection basis of aggravation have been met. 38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.310. 2. The criteria for entitlement to service connection for sleep apnea have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303. 3. The criteria for entitlement to service connection for hypertension have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303. 4. The criteria for entitlement to service connection for headache disorder have not been met. 38 U.S.C. § 1110, 5107; 38 C.F.R. § 3.303. 5. There is no legal basis for the assignment of a schedular evaluation in excess of 10 percent for bilateral tinnitus; extraschedular consideration is not warranted. 38 U.S.C. §1155, 5103, 5103A, 5107; 38 C.F.R. §4.87, DC 6260. 6. The criteria for entitlement to a rating of 20 percent, but no higher, prior to June 10, 2014 for left lower extremity radiculopathy have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.124a, DC 8520. 7. The criteria for a disability rating in excess of 40 percent from June 10, 2014 for left lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.124a, DC 8520. 8. The criteria for entitlement to a rating of 20 percent, but no higher, for right lower extremity radiculopathy have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.124a, DC 8520. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from November 1997 to March 1998. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff’d, 78 F.3d 604 (Fed. Cir. 1996). 1. Entitlement to service connection for acquired psychiatric disorder to include posttraumatic stress disorder (PTSD) and depression The Veteran contends that he has an acquired psychiatric disability to include major depressive disorder and PTSD as a result of service with the National Guard. After a thorough review of the Veteran’s claims file, the Board finds that entitlement to service connection for an acquired psychiatric disorder to include PTSD and major depressive disorder due to aggravation by service-connected disabilities is warranted for the degree to which those psychiatric disorders are aggravated by the service-connected disabilities. The RO administratively denied entitlement to service connection for the Veteran’s claim for psychiatric disorder in August 2010 due to the fact that his service during the days after the September 11, 2001 terrorist attack was completed under the National Guard of the State of New York and not pursuant to federal mandate. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. Service with a Reserve component, to include the Reserves and the National Guards, may, in certain circumstances provide this required service. 38 U.S.C. §§ 101(10), (27). However, a veteran’s Army National Guard service may only be considered qualifying service for the specific time periods when he has orders calling him to federal service. Allen v. Nicholson, 21 Vet. App. 54 (2007); see also 10 U.S.C. § 12401; Perpich v. Department of Defense, 496 U.S. 334, 110 S.Ct. 2418, 110 L.Ed.2d 312 (1990). Thus, to establish basic eligibility for veterans benefits based on a period of duty as a member of a state National Guard, a National Guardsman must either have been ordered into Federal service by the President of the United States, see 10 U.S.C. § 12401, or must have performed ‘full-time duty’ under the provisions of 32 U.S.C. §§ 316, 502, 503, 504, or 505. See 38 U.S.C. §§ 101(21), (22)(C); Allen, 21 Vet. App. at 57-60 (2007) ([M]embers of the National Guard only serve the federal military when they are formally called into the military service of the United States [and a]t all other times… serve solely as members of the State militia under the command of a state governor.); see also 32 U.S.C. §§ 316 (providing for detailing of regular members of the U.S. Army and Air Force to duty with the Army or Air National Guard of each State); 502(a)(2) (stating that “each company, battery, squadron, and detachment of the National Guard... shall... participate in training at encampments, maneuvers, outdoor target practice, or other exercises, at least 15 days each year”); 503 (providing for participation in field exercises); 504 (dealing with National Guard Schools and small arms competitions); 505 (dealing with U.S. Army and Air Force schools and field exercises). Allen, 21 Vet. App. at 57-58 (2007). In the present case, the Veteran has completed valid active service during his previous period in service in 1997 to 1998, thus his status as a veteran is not in question, the question pertains to the development of disabilities during his time when he was activated for service in the aftermath of the September 11, 2001 terrorist attack on New York City. In this regard, the Veteran also claims service connection for a mental health disorder due to service-connected disabilities. A disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Secondary service connection is permitted based on aggravation. Compensation is payable for the degree of aggravation of a nonservice-connected disability caused by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran’s claims file contains orders from the Adjutant General of the State of New York on behalf of the Governor of the State of New York directing the Veteran to report to State Active Duty on September 11, 2001 for a period of days extending into the year 2002. The Veteran reported in response to such orders and performed State Active Duty as required. The Veteran was not ordered to duty by the President, and was not participating in training exercises as contemplated under 32 U.S.C. §§ 502 or 503 or otherwise under Title 32 of the US Code. Thus, the Veteran is ineligible for service connection based on any injury or disease incurred during this period. 38 U.S.C. §§ 101, 1110, 1131; 38 C.F.R. §§ 3.303, 3.304. However, the Veteran argues that he is entitled to service connection for an acquired psychiatric disorder to include major depressive disorder and posttraumatic stress disorder as a result of aggravation of existing disorder secondary to service-connected disabilities. Here, the Board agrees. The Veteran has explained that he developed symptoms of PTSD after working at the World Trade Center debris site in the wake of the September 11, 2001 terrorist attack. The Veteran’s claims file supports this, as the VA examiner concluded in an April 2010 report that the Veteran’s PTSD was a direct result of working at the World Trade Center site. The Veteran’s VA treatment records contain consistent and ongoing treatment of and complaints regarding PTSD and depression that are intertwined with the Veteran’s treatment for persistent abuse of various substances. The records indicate that the Veteran was formally diagnosed with PTSD in 2005 in a study related to first responders for the World Trade Center. The Veteran was afforded a VA examination in November 2014 for psychiatric disorders. The examiner reiterated that the Veteran’s depression and related nightmares began after working at the Ground Zero site. The examiner opined that it was less likely than not that the Veteran’s depression was “due to” or “a result of” service-connected degenerative disc disease of the spine. The examiner also noted that the Veteran’s substance abuse was not secondary to PTSD as he had a prior history of using substances before September 2001. The examiner noted that the Veteran displayed a severe deficit of social and vocational functioning as a direct result of trauma related symptoms related to PTSD. The Veteran had at this point lost his job. The Board notes that the examiner here did not opine on whether the Veteran’s psychiatric disorders were aggravated by his service-connected disabilities. The Veteran submitted an evaluation dated August 2015 including a DBQ for psychiatric disorders and related written report from a private psychologist. The examiner diagnosed major depressive disorder and PTSD as well as substance abuse disorders. The Veteran reported being separated from his wife whom he had married in 2005. The examiner referenced the prior VA opinion and concluded in contrast to that opinion that the Veteran’s “PTSD is strongly aggravated by his service-connected physical conditions and chronic pain that have served as stimuli to elicit his anxiety-based disorder, resulting in his increased use of opioids, alcohol, and cannabis.” A March 2017 VA medical appointment noted the Veteran was concerned about losing his job due to chronic pain related to his service-connected disabilities. Based on the evidence presented, the Board finds that entitlement to service connection for an acquired psychiatric disorder to include PTSD and major depressive disorder is warranted on the basis of secondary service connection due to aggravation for the degree to which the Veteran’s PTSD and depression have increased as a result of his service-connected disabilities. The benefit of the doubt is resolved in favor of the Veteran and entitlement to service connection for an acquired psychiatric disorder is granted. 2. Entitlement to service connection for sleep apnea The Veteran contends that he has sleep apnea as related to his active service. The Board concludes that the Veteran does not have a current diagnosis of sleep apnea and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records are silent for complaints or treatment related to sleep apnea. The Veteran’s files contain a post-9/11 medical study completed in October 2006 for first responders who had served at the site of the World Trade Center in the days immediately after September 11, 2001. In the medical study, the Veteran completed a voluntary medical history form in which he replied that prior to September 11, 2001 he had not experienced any symptoms listed as related to sleep apnea such as snoring or gasping for air while asleep, but that after his time at the World Trade Center site, he began to experience such symptoms. The Veteran’s medical records do not contain a formal diagnosis of sleep apnea or complaints of ongoing treatment for symptoms or concerns by medical providers that the Veteran experiences sleep apnea. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the weight of the evidence of record does not demonstrate that the Veteran has a current sleep apnea disability, the Board must deny the claim on appeal for entitlement to service connection. In reaching the above conclusion, the Board has not overlooked the Veteran’s statements supporting his claim. While the Veteran believes that he has sleep apnea that he incurred during service, as a layperson, the Veteran has not shown that he has specialized training sufficient to render such an opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). In this regard, the diagnosis and etiology of sleep apnea are matters not capable of lay observation, and require medical expertise to determine. Accordingly, his opinion as to the diagnosis or etiology of sleep apnea is not competent medical evidence. 3. Entitlement to service connection for hypertension The Veteran contends that he has hypertension. The Board concludes that the Veteran does not have a current diagnosis of hypertension and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). Hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, DC 7101, Note (1). The Veteran’s files contain a post-9/11 medical study completed in October 2006 for first responders who had served at the site of the World Trade Center in the days immediately after September 11, 2001. The medical report issued after examination of the Veteran noted that he had “normal” blood pressure at a reading of 120/70. VA treatment records note blood pressure readings at regular appointments. In April 2017, the Veteran’s blood pressure reading was 129/86. In October 2016, the Veteran’s blood pressure was 147/85. At an April 2015 VA appointment, the Veteran was screened for hypertension, the blood pressure reading was 142/87. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the weight of the evidence of record does not demonstrate that the Veteran has a current hypertension diagnosis, the Board must deny the claim on appeal for entitlement to service connection. 4. Entitlement to service connection for headache disorder The Veteran contends that he has a headache disability as related to active service. The Board concludes that the Veteran does not have a current diagnosis of headache disorder and has not had one at any time during the pendency of the claim or recent to the filing of the claim. 38 U.S.C. §§ 1110, 1131, 5107(b); Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007); 38 C.F.R. § 3.303(a), (d). The Veteran’s service treatment records do not contain treatment for headache disorder. A July 1997 medical history form did not contain reports of headaches. The related July 1997 medical examination did not contain a note of headaches. The Veteran’s files contain a post-9/11 medical study completed in October 2006 for first responders who had served at the site of the World Trade Center in the days immediately after September 11, 2001. The Veteran noted that he had “bad migraines” beginning after working at the World Trade Center site. At a March 2017 VA medical appointment, the Veteran had no complaints of headaches. The existence of a current disability is the cornerstone of a claim for VA disability compensation. 38 U.S.C. § 1131; Degmetich v. Brown, 104 F.3d 1328, 1332 (1997). As the weight of the evidence of record does not demonstrate that the Veteran has a chronic headache disorder diagnosis, the Board must deny the claim on appeal for entitlement to service connection. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the Veteran’s disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings are sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). “The relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim.” Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). The relevant time period for consideration in a claim for an increased initial disability rating is the period beginning on the date that the claim for service connection was filed. Moore v. Nicholson, 21 Vet. App. 211, 216-17 (2007). The Board must also assess the competence and credibility of lay statements and testimony. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007). In increased rating claims, a Veteran’s lay statements alone, absent a negative credibility determination, may constitute competent evidence of worsening, at least with respect to observable symptoms. See Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 102 (2010), rev’d on other grounds by Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (Fed. Cir. 2009). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, pyramiding, or evaluating the same manifestation of a disability under different diagnostic codes, is to be avoided. See 38 C.F.R. § 4.14 (2017). Thus, separate ratings under different diagnostic codes are only permitted if, for example, those separate ratings are assigned based on manifestations of the Veteran’s disability that are separate and apart from manifestations for which the Veteran has already been rated. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). In determining the propriety of the initial rating assigned after a grant of service connection, the evidence since the effective date of the grant of service connection must be evaluated and staged ratings must be considered. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. 5. Entitlement to a rating in excess of 10 percent for tinnitus The Veteran contends that he is entitled to a higher disability rating for tinnitus. The maximum schedular rating available for tinnitus is 10 percent. The rating schedule directs that only a single rating of 10 percent is assigned for recurrent tinnitus whether the sound is perceived in one ear, both ears, or in the head. 38 C.F.R. § 4.87, DC 6260. Currently, the Veteran’s tinnitus is already rated 10 percent. Thus, there is no legal basis upon which to award an increased rating for tinnitus on a schedular basis, and the appeal must be denied. Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006). 6. Entitlement to a rating in excess of 10 percent prior to June 10, 2014 and in excess of 40 percent from that date for left lower extremity radiculopathy The Veteran submitted a claim for increased rating for lower extremity radiculopathy on August 22, 2012. The RO granted an increase from 10 percent to 40 percent for left lower extremity radiculopathy with an effective date of June 10, 2014 in a July 2014 rating decision. The Board finds that, resolving reasonable doubt in favor of the Veteran, that the Veteran’s left lower extremity radiculopathy was manifested in symptoms of moderate incomplete paralysis of the sciatic nerve prior to June 10, 2014, and did not manifest in severe incomplete paralysis symptoms including marked muscle atrophy at any time during the appeal period. Currently, the Veteran’s left lower extremity radiculopathy is rated under DC 8520 for the paralysis of the sciatic nerve at 10 percent for the right leg prior to June 10, 2014 and at 40 percent from that date. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating is assigned for moderately severe incomplete paralysis; and a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. A maximum 80 percent rating is assigned for complete paralysis of the sciatic nerve, where the foot dangles and drops, there is no active movement possible of muscles below the knee, and where flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. In rating diseases of the peripheral nerves, 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 a varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. Id. The Board observes that the terms “mild,” “moderate,” and “severe” are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. The use of terminology such as “moderate” or “severe” by VA examiners and others, 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 regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran was afforded a VA examination in October 2012 for both the spine and peripheral nerves. There was no muscle atrophy noted. Muscle strength testing for knee, ankle, and great toe of the left side was three out of five for all categories. Left side sensation to light touch on the upper anterior thigh, thigh/knee, lower leg or ankle and the foot or toes was decreased. Straight leg test was negative. Intermittent pain, paresthesias, and numbness were all moderate for the left side. On the peripheral nerve VA examination, the examiner noted radiculopathy of the left side sciatic nerve was manifested in incomplete paralysis at a mild level. At the June 2014 VA examination, the examiner noted no muscle atrophy. Muscle strength testing for knee, ankle, and great toe of the left side was three out of five for all categories. Deep tendon reflexes were hypoactive on the left side for the knee and ankle. Light sensory touch was absent for the left side upper anterior thigh, thigh/knee, lower leg/ankle, and foot/toes. Straight leg test was positive on the left and right side. Intermittent pain, paresthesias, and numbness were all severe for the left side. The examiner chose moderate level of severity for the Veteran’s radiculopathy bilaterally. Resolving reasonable doubt in favor of the Veteran, the Board finds that prior to June 10, 2014, the Veteran’s left lower extremity radiculopathy manifested in symptoms of moderate incomplete paralysis and warrants a 20 percent disability rating. The October 2012 VA examiner noted that the symptoms were moderate, although the peripheral nerve examination was mild for the left lower extremity radiculopathy of the sciatic nerve. The Veteran had symptoms of moderate intermittent pain, paresthesias, and numbness on the left side, decreased touch sensation and decreased muscle strength. However, the Veteran’s symptoms prior to June 10, 2014 did not manifest in moderately severe incomplete paralysis and accordingly, a rating of 40 percent is not warranted prior to June 10, 2014. The Veteran does not meet the criteria for a higher level of 60 percent disability rating from June 10, 2014 for left lower extremity radiculopathy because a 60 percent rating is assigned for severe incomplete paralysis, with marked muscular atrophy. The evidence does not support that the Veteran’s left lower extremity radiculopathy manifested in marked muscle atrophy. Accordingly, the Board grants an increase to 20 percent prior to June 10, 2014 for the Veteran’s left lower extremity radiculopathy, and denies an increase in excess of 40 percent from date. 7. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy The Veteran submitted a claim for increased rating for lower extremity radiculopathy on August 22, 2012. The Veteran is currently rated at 10 percent disability rating for right lower extremity radiculopathy. The Veteran was afforded a VA examination in October 2012 for both the spine and peripheral nerves. There was no muscle atrophy noted. Muscle strength testing for knee, ankle, and great toe of the right side was three out of five for all categories. Right side sensation light touch to the upper anterior thigh and thigh/knee was normal, but on the lower leg or ankle and the foot or toes was decreased. Straight leg test was negative. Intermittent pain, paresthesias, and numbness were all moderate for the right side. On the peripheral nerve VA examination, the examiner noted radiculopathy of the right side sciatic nerve was manifested in incomplete paralysis at a mild level. The examiner chose moderate as a level of severity for the Veteran’s right lower extremity radiculopathy. At the June 10, 2014 VA examination, the examiner noted no muscle atrophy. Muscle strength testing for knee, ankle, and great toe of the right side was four out of five for all categories. Deep tendon reflexes were hypoactive on the right side for the knee and ankle. Light sensory touch was normal for the right side upper anterior thigh, thigh/knee, lower leg/ankle, and decreased for the foot/toes. Straight leg test was positive on the left and right side. Constant pain, intermittent pain, paresthesias, and numbness were all marked as not present for the right side. The examiner chose moderate level of severity for the Veteran’s radiculopathy bilaterally. The Veteran’s right lower extremity radiculopathy manifested in moderate incomplete paralysis symptoms that meet the criteria for a higher 20 percent disability rating. The Veteran’s right lower extremity radiculopathy was “moderate” at the October 2012 VA examination and the right side sciatic nerve testing for incomplete paralysis was mild per the examiner. The Veteran’s right lower extremity radiculopathy manifested in some symptoms indicative of the criteria for a moderate incomplete paralysis such as reduced muscle strength, positive straight leg test, and reduced deep tendon reflexes, as well as the examiner noting moderate level for bilateral radiculopathy on the VA spinal examination. However, the Veteran’s right lower extremity radiculopathy does not meet the criteria for a higher 40 percent disability rating indicative of moderately severe incomplete paralysis such as “severe” intermittent pain, paresthesias, and numbness. The Board finds that, resolving reasonable doubt in favor of the Veteran, the Veteran’s right lower extremity radiculopathy manifested in symptoms of moderate incomplete paralysis of the sciatic nerve and grants a disability rating at a 20 percent evaluation. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral hearing loss disability is remanded. The Veteran’s VA treatment records show complaints of hearing loss changes since the original VA examination in August 2013 for bilateral hearing loss disability. In July 2016, the Veteran complained of left ear hearing difficulty and the VA medical provider noted, “muffled hearing consistent with eustachian tube dysfunction.” At a July 7, 2016 appointment, the Veteran complained he was having trouble with his ear and was having trouble hearing. These medical notes indicate a possible increase or change in the Veteran’s hearing loss disability and the Veteran should be provided a new VA examination for bilateral hearing loss. The matter is REMANDED for the following action: Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral hearing loss disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. To the extent possible, the examiner should identify any symptoms and functional impairments due to bilateral hearing loss disability alone and discuss the effect of the Veteran’s hearing loss on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). DAVID L. WIGHT Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs