Citation Nr: 1817441 Decision Date: 03/22/18 Archive Date: 04/03/18 DOCKET NO. 13-06 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 70 percent for posttraumatic stress disorder (PTSD) prior to May 10, 2017, and in excess of 50 percent prior to November 22, 2014. 2. Entitlement to an initial compensable rating for bilateral hearing loss. 3. Entitlement to service connection for radiculopathy, bilateral lower extremities, to include as secondary to a low back disability. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Bates. Associate Counsel INTRODUCTION The Veteran served on active duty from November 1966 to October 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a May 2011 rating action by a Department of Veterans Affairs (VA) Regional Office (RO). The issue of entitlement to a compensable rating for bilateral hearing loss is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The most probative evidence of record fails to show the Veteran has symptoms indicative of a higher disability rating for PTSD during the pendency of his claim. 2. The Veteran has not been competently and credibly diagnosed with radiculopathy of the lower extremities during the pendency of his claim. CONCLUSIONS OF LAW 1. The criteria to warrant an increased evaluation for PTSD have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.125, 4.126, 4.130, Diagnostic Code 9411 (2017). 2. The criteria to establish entitlement to service connection for radiculopathy of the lower extremities have not been met. 38 U.S.C. §§ 1110, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309, 3.310 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Increased rating for PTSD The Veteran seeks entitlement to a 100 percent evaluation for his posttraumatic stress disorder (PTSD) prior to May 10, 2017. In the alternative, he seeks entitlement to a 70 percent rating prior to November 22, 2014. See O'Connell v. Nicholson, 21 Vet. App. 89, 92 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). (The Veteran's PTSD has been evaluated as 50 percent disabling from when service connection was first established, effective from November 1994. In October 2010, he filed a claim for increase that was denied in a May 2011 rating action. In a September 2017 rating action, it was increased to 70 percent, effective from the date of a VA examination conducted in November 2014, and then increased to 100 percent effective from the date of a VA examination conducted in May 2017. The Veteran has been separately assigned a total disability rating based on unemployability due to the combination of the impairment caused by all his service connected disabilities, effective from November 2015. ) At his hearing, the Veteran indicated he had not been fully forthcoming with his treatment providers leading up to when he was assigned a 100 percent evaluation, owing to the providers' lack of the combat experiences of the sort he endured in service. (Indeed, few can match this Veteran's distinguished service as the record shows he earned two Bronze Star Medals for valor in combat, as well as the Purple Heart.) Unfortunately, this admission of the inaccuracy of his prior reports of symptoms places the Board in a position where it is unable to effectively use those reports to judge the level of impairment present at those times. Thus, the Board's analysis becomes whether the findings from the Veteran's most recent VA examination, which effectuated a 100 percent evaluation, are applicable to the remaining time period on appeal. A 100 percent rating is assigned for PTSD when there is total occupational and social impairment, due to symptoms such as the following: gross impairment in thought processes or communication, persistent delusions or hallucinations, grossly inappropriate behavior, persistent danger of hurting self or others, intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene), disorientation to time or place, and memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130, Diagnostic Code 9411 (2017). Although the last VA examination report noted that the Veteran suffers from total occupational and social impairment, it also clearly stated that these symptoms "had exacerbated." See VA Examination, 1-2 (May 15, 2017). By finding that his condition had exacerbated, it leaves the reasonable impression that the examiner believed the condition had worsened, which in turn implies the condition had not been as bad on previous occasions. Under the unique circumstances of this case, that conclusion supports keeping in place the previously assigned (less than total) ratings. Service connection for radiculopathy The Veteran seeks service connection for radiculopathy of the lower extremities, to include as secondary to his service-connected back disability. Service connection may be granted for a disease or injury incurred in or aggravated by service. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted on a secondary basis if the claimed disability is proximately due to, the result of, or aggravated by, an already service-connected disease or injury. See 38 C.F.R. § 3.310(a). In either instance, a threshold requirement for the granting of service connection is evidence of a current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); Allen v. Brown, 7 Vet. App. 439 (1995). In the absence of a current disability, there can be no valid claim. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, although the Veteran has reported feeling "numbness and tingling" in his legs, he has not been competently and credibly diagnosed with radiculopathy. Compare, Hearing Transcript, 16 (Oct. 19, 2017), with VA Examination, 6 (Nov. 19, 2014). Consequently, the claim must be denied because he does not have a diagnosed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). ORDER An increased rating for PTSD is denied. Service connection for radiculopathy is denied. REMAND The Board observes that the Veteran has testified that his bilateral hearing loss disability has worsened since his last VA examination. See Hearing Transcript, 9 (Oct. 19, 2017). As the evidence of record suggests that the Veteran's symptoms may have worsened, a remand is necessary to provide him with a more contemporaneous VA examination to assess the disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). Accordingly, the case is REMANDED for the following action: 1. Obtain any outstanding VA and/or private treatment records relevant to the claim remaining on appeal. 2. Schedule the Veteran for an appropriate VA examination to determine the nature and current severity of his service-connected bilateral hearing loss disability. 3. Then, re-adjudicate the claim remaining on appeal. If the benefit sought is not granted in full, issue the Veteran and his representative a supplemental statement of the case and return the appeal to the Board. The Veteran has the right to submit additional evidence and argument on the matter 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. §§ 5109B, 7112 (2012). ______________________________________________ M. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs