Citation Nr: 21062587 Decision Date: 10/08/21 Archive Date: 10/08/21 DOCKET NO. 17-32 654 DATE: October 8, 2021 ORDER Entitlement to service connection for residuals of a traumatic brain injury (TBI) is denied. Entitlement to a rating in excess of 10 percent prior to November 8, 2019, for right lower extremity radiculopathy is denied. Entitlement to a higher rating of 40 percent from November 8, 2019, for right lower extremity radiculopathy is granted. Entitlement to an increased rating for lumbar osteoarthritis/degenerative arthritis, rated as 40 percent prior to August 19, 2014, and 20 percent thereafter, is denied. Entitlement to a rating in excess of 20 percent prior to November 8, 2019, for left lower extremity radiculopathy is denied. Entitlement to a higher rating of 40 percent from November 8, 2019, for left lower extremity radiculopathy is granted. Entitlement to a rating in excess of 20 percent for bilateral hearing loss is denied. REMANDED Entitlement to service connection for Meniere's disease is remanded. Entitlement to service connection for vertigo/dizziness is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that the Veteran has a TBI that began during active service, or is otherwise related to an in-service injury or disease. 2. Prior to August 19, 2014, the Veteran's osteoarthritis/degenerative arthritis of the lumbar spine was not manifested by ankylosis, and from August 19, 2014, it has been manifest by forward flexion of the thoracolumbar spine of greater than 30 degrees. 3. Prior to November 8, 2019, the Veteran's right lower extremity radiculopathy was manifest by no more than mild incomplete paralysis. 4. From November 8, 2019, the Veteran's right lower extremity radiculopathy is manifest by no more than moderate severe incomplete paralysis. 5. Prior to November 8, 2019, the Veteran's left lower extremity radiculopathy was manifest by no more than moderate incomplete paralysis. 6. From November 8, 2019, the Veteran's left lower extremity radiculopathy is manifest by no more than moderate severe incomplete paralysis. 7. The Veteran's bilateral hearing has been manifested by hearing acuity of no worse than Level IV in the right ear and no worse than Level IV in the left ear. CONCLUSIONS OF LAW 1. The criteria for service connection for a TBI are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. Prior to August 19, 2014, the criteria for a rating in excess of 40 percent for osteoarthritis/degenerative arthritis of the lumbar spine were not met; from August 19, 2014, the criteria for a rating in excess of 20 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Code 5243 (2021). 3. Prior to November 8, 2019, the criteria for a disability rating in excess of 10 percent for right lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 4. From November 8, 2019, the criteria for a disability rating of 40 percent for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 5. Prior to November 8, 2019, the criteria for a disability rating in excess of 20 percent for left lower extremity radiculopathy were not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 6. From November 8, 2019, the criteria for a disability rating of 40 percent for right lower extremity radiculopathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code 8520. 7. The criteria for a rating in excess of 20 percent for bilateral hearing loss have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, Diagnostic Code 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Marine Corps from July 1970 to July 1974 and the United States Army from July 1970 to July 1974 and from April 1975 to May 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from April 2013, October 2014, and April 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The case was previously before the Board in March 2019 when it was remanded for further development. The Board finds that the issue of entitlement to a TDIU has been raised by the record as part of the increased rating claims. Although the issue was previously denied in the October 2014 rating decision, a claim for a TDIU is part and parcel of an increased rating claim when it is raised by the record. See Rice v. Shinseki, 22 Vet. App. 447 (2009). The Veteran is currently unemployed and VA examination reports indicate the Veteran's service-connected disabilities affect his ability to work. Therefore, the issue of entitlement to a TDIU is before the Board. 1. Entitlement to service connection for Residuals of a TBI The Veteran asserts that he has residuals of a traumatic brain injury due to multiple head injuries in service. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The question for the Board is whether the Veteran has a current disability that began during service or is at least as likely as not related to an in-service injury, event, or disease. The Board concludes that, while the Veteran has been diagnosed with a TBI in private treatment records received in October 2016, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury, event, or disease. The Veteran has asserted that he had three head injuries in service. In an October 2014 statement, the Veteran stated that in the late summer/early fall of 1970 he was hit from behind with a liquor bottle over the head during a brawl at Camp Geiger. He stated that he was called back to Camp Lejeune to testify at the assailant's court martial. The Veteran reported that the next head injury happened when his training company was headed into a town in North Carolina in Cattle Cars and they were rear ended by a semi and the impact threw everyone into the air. He stated that he hit his head upon impact with the ground. The Veteran stated that he did not go to the hospital for either incident because he was in training. The Veteran stated that in approximately 1977 during a field exercise in Germany, he was crushed between two M125s Armored Personnel Carriers, but was told to refer to this as a "spirited football game" to protect the company commander. He stated that he went to the hospital a couple of days later and found he had broken ribs. In an October 2014 statement from the Veteran's spouse, she stated that the Veteran recalled being treated for broken ribs, but could not recall what was done if anything, regarding his head injury. In an October 2016 statement, the Veteran described having head injuries in the late summer/early fall of 1970 in a brawl at Camp Geiger and in October 1970 while traveling in Cattle Cars. He stated that in 1977, he was injured in a football game played without pads or helmets in Germany. He stated that a few days after the football game, he was crushed between two M125 Armored Personnel Carriers, but was told to refer to it as a spirited football game. The Board finds that while the Veteran is competent to report having experienced head injuries in service, his report of the head injuries in service is not credible due to internal inconsistency and inconsistency with other evidence in the record. The Veteran's service treatment records do not note any complaints or treatment for a head injury. An April 1976 service treatment record notes that the Veteran complained of a sore chest from playing football and was in considerable pain on the left side of the chest. The Veteran did not note any head injuries. In a March 1975 report of medical history, the Veteran denied having periods of unconsciousness, loss of memory or amnesia. In an April 1984 report of medical history, the Veteran also denied having any periods of unconsciousness, loss of memory or amnesia. He reported having frequent or severe headaches which were described as tension headaches. The Board notes that lay evidence does not lack credibility merely because it is unaccompanied by contemporaneous medical evidence; however, the absence of contemporaneous medical evidence is one factor in determining credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (lack of contemporaneous medical records does not serve as an "absolute bar" to the service connection claim); Barr v. Nicholson, 21 Vet. App. 303 (2007) ("Board may not reject as not credible any uncorroborated statements merely because the contemporaneous medical evidence is silent as to complaints or treatment for the relevant condition or symptoms"). In addition to the absence of treatment records for, complaints or, or treatment for a head injury in service, in a September 1991 VA examination report for dizziness noted that the Veteran specifically denied any surgeries or injuries of the head and neck. The Veteran first described having multiple incidences of head trauma ranging from minor to possibly more severe in a February 2005 private treatment record, many years after service. The Board also notes that his October 2014 and October 2016 statements regarding the third head injury at a football game or being crushed between personnel carriers were slightly different. The Board acknowledges that the Veteran stated that he did not report the head injuries because he was in training and afraid that reporting the incident would have a negative impact on her service career. However, the Veteran's service treatment records indicate that he reported other symptoms such as back pain, during his service. The service treatment records note that the Veteran complained of a sore chest following the football game, and it would have made sense for him to also report a head injury at that time. In a buddy statement received in June 2015, F.R., who served in the Veteran's unit, stated that he remembered a football game that was much more like a gladiator event. He stated that those who played were hitting as hard as if they had full football padding on, but of course no one had any padding. He described it as a brutal event. F.R. stated that as a result of that event, the Veteran was on profile and never returned to their unit. F.R. is competent to describe the football game and injuries, and the Board finds his statement to be credible. However, the statement does not indicate that the Veteran received a head injury during the football game. As noted above, the Veteran's service treatment records reflect that the Veteran injured his chest in the football game. Therefore, the buddy statement does not support a finding that the Veteran had a TBI or a head injury in service. The Board recognizes that the Veteran has not been provided with VA examination and medical opinion concerning his claim for service connection for a TBI. However, the Board concludes that such is not necessary, as the evidence of record does not establish that an event, injury, or disease occurred during service. Pursuant to the holding of the Court of Veterans Appeals in McClendon v. Nicholson, a VA examination and/or opinion is therefore not warranted. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). While the Veteran believes that he has residuals of a TBI that are related to an in-service head injury, the Board finds that the preponderance of the evidence weighs against findings that the in-service head injury occurred. In conclusion, the Board finds that a preponderance of the evidence weighs against a finding that the Veteran had a TBI and/or in-service head injury during his active service. The criteria for an award of service connection for a TBI are therefore not met, and the appeal is denied. Increased Rating A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, 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. 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 importance. Fenderson v. West, 12 Vet. App. 119, 12627 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 2. Entitlement to an increased rating for osteoarthritis/degenerative arthritis of the lumbar spine, rated as 40 percent prior to August 19, 2014, and 20 percent thereafter. The Veteran contends that he is entitled to a higher rating for his lumbar spine disability. The Veteran's osteoarthritis/degenerative arthritis of the lumbar spine is rated under 38 C.F.R. § 4.71a, Diagnostic Code 5243, for intervertebral disc syndrome (IVDS). Diagnostic Code 5243 provides that IVDS is to be rated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating IVDS Based on Incapacitating Episodes, whichever method results in the higher rating when all disabilities are combined under 38 C.F.R. § 4.25. Effective February 7, 2021, Diagnostic Code 5243 was amended to read: "Intervertebral disc syndrome: Assign this diagnostic code only when there is disc herniation with compression and/or irritation of the adjacent nerve root; assign diagnostic code 5242 for all other disc diagnoses." The Formula for Rating IVDS Based on Incapacitating Episodes provides that a 10 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. A 20 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 40 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 60 percent rating is warranted for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. 38 C.F.R. § 4.71a, Formula for Rating IVDS Based on Incapacitating Episodes. Note 1 to Diagnostic Code 5243 provides that, for purposes of ratings under Diagnostic Code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician. Id. at Note 1. Under the General Rating Formula for Diseases and Injuries of the Spine, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or the combined range of motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent rating is warranted for forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent evaluation is warranted for unfavorable ankylosis of the entire spine. 38 C.F.R. § 4.71a, General Rating Formula for Diseases and Injuries of the Spine. Any associated objective neurological abnormalities, including, but not limited to, bowel or bladder impairment, are to be evaluated separately under an appropriate diagnostic code. Id. at Note 1. Unfavorable ankylosis is defined as "a condition in which the entire cervical spine, the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching." Id. at Note 5. Additionally, fixation of a spinal segment in neutral position (zero degrees) is "always" considered favorable ankylosis. Id. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a; a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) ("[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran's disability, after which a rating is determined based on the § 4.71a criteria."). Under 38 C.F.R. § 4.59, painful motion is a factor to be considered with any form of arthritis; however, 38 C.F.R. § 4.59 is not limited to disabilities involving arthritis. See Burton v. Shinseki, 25 Vet. App. 1 (2011). Prior to August 19, 2014 The Veteran's lumbar spine disability is rated as 40 percent disabling prior to March 4, 2014. A September 2013 private treatment record indicated that lower trunk flexion was to 85 percent and extension in stand remained markedly limited. An October 2014 letter from Dr. P.Y., a private physician, indicates that at a February 2014 examination, the Veteran's lumbar spine flexion was to 20 degrees, extension was to 0 degrees, right rotation was to 15 degrees, left rotation was to 10 degrees, right lateral flexion was to 15 degrees, and left lateral flexion was to 10 degrees. There was a significant loss (50 percent or more) of the normal mobility of the L5 segment which was concomitant with markedly hypertonic deep and intermediate musculature at that level. The Board finds that the preponderance of the evidence is against a rating in excess of 40 percent for the lumbar spine disability, prior to August 19, 2014, based on incapacitating episodes. The Veteran does not have IVDS and the evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The medical evidence of record does not indicate that the Veteran was prescribed bedrest by a physician for his back. The preponderance of the evidence is also against a rating in excess of 40 percent for the lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms and that there was functional loss due to pain and weakened movement. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran had function limiting pain in the lower back would not result in symptoms more nearly approximating unfavorable ankylosis of the entire thoracolumbar spine. Although the Veteran reported pain in the back, he did not describe symptoms approximating ankylosis. Regarding neurological impairment, the Veteran has already been granted service connection for radiculopathy of the right and left lower extremity from March 4, 2014, and the lay and medical evidence of record is against a finding that the Veteran had any other neurological abnormality associated with his spine disability prior to August 19, 2014. For the foregoing reasons, the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for the lumbar spine disability, prior to August 19, 2014. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. From August 19, 2014 The Veteran contends that he is entitled to a higher rating for his lumbar spine disability from August 19, 2014, when the disability is rated as 20 percent disabling. At an August 19, 2014, VA examination, the thoracolumbar spine had flexion ending at 45 degrees with objective evidence of painful motion beginning at 0 degrees. Extension ended at 30 or greater with objective evidence of painful motion at 30 or greater. The back had right and left lateral flexion, and right and left lateral rotation ending at 20 degrees with objective evidence of painful motion beginning at 20 degrees. The report indicated that the Veteran had functional loss due to the back disability, including less movement than normal, excess fatigability, incoordination, pain on movement, interference with sitting, standing and/or weight-bearing and lack of endurance. The Veteran had muscle spasm of the thoracolumbar spine resulting in abnormal gait or abnormal spinal contour. The Veteran reported that he could not do heavy labor during flare-ups. He was able to mow his own lawn once a week, but needed to rest his back the next day. A November 2019 VA examination report indicates that the Veteran had intervertebral disc syndrome. On examination, the spine had forward flexion to 60 degrees, extension to 10 degrees, and right and left lateral flexion and rotation to 20 degrees. Pain was noted on examination but did not result in or cause functional loss. The Veteran was able to perform repetitive use testing with at least three repetitions with no additional loss of function or range of motion after three repetitions. Pain, weakness, fatigability or incoordination did not significantly limit functional ability with repeated use over time. The examiner indicated the examination was conducted during a flare-up and pain, weakness, fatigability or incoordination did not significantly limit functional ability with flare-ups. The Veteran did not have guarding or muscle spasm of the thoracolumbar spine. There was no evidence of pain with weight bearing. There was no ankylosis of the spine. The examiner noted that there was no gross evidence of pain of passive range of motion testing or when the Veteran was weight-bearing and non-weight bearing. The Board finds that the preponderance of the evidence is against a rating in excess of 20 percent for the lumbar spine disability based on incapacitating episodes. The evidence of record is against a finding that the Veteran was ever prescribed bed rest by a physician for a duration that meets the criteria for a higher rating. The November 2019 VA examiner found that the Veteran had no episodes of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician in the past 12 months. The Veteran's VA treatment records also do not show any episodes of required be rest due to IVDS. The preponderance of the evidence is also against a rating in excess of 20 percent for the lumbar spine disability under the General Rating Criteria. The Board acknowledges the Veteran's lay reports of symptoms pain in his back and that the April 2014 VA examination report indicated that there was functional loss due to pain on movement, excess fatigability, incoordination, interference with sitting, standing, and/or weight bearing and lack of endurance. However, even considering the Veteran's lay reports of symptoms and noted functional loss, the degree of additional limitation reflected by the statements that the Veteran's flare-ups caused pain and radiation of pain would not result in limitation of motion more nearly approximating forward flexion of the thoracolumbar spine to 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. Regarding neurological impairment, the Veteran has already been granted service connection for right and left lower extremity radiculopathy and the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with his spine disability. Based on the foregoing, the preponderance of the evidence is against of the evidence is against the Veteran's claim for a rating in excess of 20 percent for osteoarthritis/degenerative arthritis of the lumbar spine. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Right and Left Lower Extremity Radiculopathy The Veteran contends that he is entitled to a higher rating for his right and left lower extremity radiculopathy. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R § 4.124a. The words "mild," "moderate," and "severe" as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete, paralysis. The maximum rating which may be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123 Neuralgia, cranial or peripheral, characterized usually by a dull and intermittent pain, of typical distribution so as to identify the nerve, is to be rated on the same scale, with a maximum equal to moderate incomplete paralysis. Tic douloureux, or trifacial neuralgia, may be rated up to complete paralysis of the affected nerve. 38 C.F.R. § 4.124. 3. Entitlement to an increased rating for right lower extremity radiculopathy, rated as 10 percent prior to November 8, 2019, and as 20 percent thereafter. The Veteran contends that he is entitled to a higher rating for his right lower extremity radiculopathy. The Veteran filed a claim for a higher rating for his back on March 13, 2014. Service connection was granted for radiculopathy of the right and left lower extremities in an October 2014 rating decision, secondary to the Veteran's back disability. Prior to November 8, 2019 The Veteran's right lower extremity radiculopathy is rated as 10 percent disabling prior to November 8, 2019. A November 2013 private treatment record indicated the Veteran reported having left side back pain that rain down both legs, more on the left. He also had burning feet and legs that went numb, mainly in the left leg. An August 2014 VA examination report indicated that the Veteran had mild right lower extremity radiculopathy. The Veteran did not have constant pain in either extremity. Mild intermittent pain was noted in the right lower extremity. Mild paresthesias and/or dysesthesias was noted in the right lower extremity. A sensory examination of the lower extremities was normal. Muscle strength and reflex examinations were also normal in the bilateral lower extremities. A December 2014 VA treatment record noted that the Veteran had low back pain that radiated into the left, greater than the right leg, to the foot, with extended standing. A February 2017 VA treatment record indicated that the Veteran reported having bilateral leg numbness when standing. A sensory examination was normal. Based on the above, the Board finds that prior to November 8, 2019, the disability was primarily manifest by mild intermittent pain and paresthesias and/or dysesthesias in the right lower extremity. The evidence reflects that the Veteran reported mild radiating pain and tingling in the right leg which is consistent with a finding of mild incomplete paralysis. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, sensory disturbance, or loss of muscle atrophy. The Board thus finds that the level of impairment is most analogous to mild incomplete paralysis. Consequently, a rating in excess of 10 percent for right lower extremity radiculopathy is not warranted. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted, prior to November 8, 2019. From November 8, 2019 The Veteran's right lower extremity radiculopathy is rated as 20 percent disabling from November 8, 2019. The Board finds that a higher rating of 40 percent is warranted from November 8, 2019. A November 8, 2019 VA examination report noted that the Veteran had moderately severe incomplete paralysis of the sciatic nerve in the right lower extremity. The Veteran had mild intermittent pain, severe paresthesias and/or dysesthesias, and mild numbness in the right lower extremity. Muscle strength testing was 4/5, indicating active movement against some resistance, on right ankle plantar flexion, and ankle dorsiflexion. There was no muscle atrophy. Reflexes were normal in the right knee and ankle. A sensory examination showed normal sensation in the right thigh/knee, and decreased sensation in the right lower leg/ankle and foot/toes. No trophic changes were noted and the Veteran's gait was normal. A June 2020 VA treatment record indicates that the Veteran was negative for symptoms of change in sensation, paralysis and poor coordination. Based on the above, the disability is primarily manifest by mild intermittent pain, severe paresthesias and/or dysesthesias, and mild numbness in the right lower extremity, from November 8, 2019. The November 2019 VA examiner found that the Veteran had moderately severe incomplete paralysis of the sciatic nerve. The involvement was more than sensory as the Veteran had reduced muscle strength on right ankle plantar flexion and ankle dorsiflexion. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. Therefore, a higher rating of 40 percent is warranted from November 8, 2019 for left lower extremity radiculopathy. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted from November 8, 2019. 4. Entitlement to an increased rating in excess of 20 percent for left lower extremity radiculopathy. The Veteran contends that he is entitled to a higher rating for left lower extremity radiculopathy which is rated as 20 percent disabling throughout the appeal period. The August 2014 VA examination report indicated that the Veteran had moderate left lower extremity radiculopathy. The Veteran did not have constant pain in the left lower extremity. Severe intermittent pain was noted in the left lower extremity. Moderate paresthesias and/or dysesthesias was noted in the left lower extremity. A sensory examination of the lower extremities was normal. Muscle strength and reflex examinations were also normal. As noted above, the December 2014 VA treatment record noted that the Veteran had low back pain that radiated into the left, greater than the right leg, to the foot, with extended standing. He reported intermittent pins/needles in the left foot with extended standing. The November 2019 VA examination report indicated that there was moderately severe incomplete paralysis of the left sciatic nerve. The examination report noted that the Veteran had severe paresthesias and/or dysesthesias of the left lower extremity. There was mild intermittent pain and numbness in the left lower extremity. Muscle strength testing was 4/5, muscle strength against some resistance, on left ankle plantar flexion and dorsiflexion. There was no muscle atrophy. Deep tendon reflexes were normal. There was decreased sensation in the left lower leg and foot. No trophic changes were noted. The Veteran's gait was normal. The Board finds that prior to November 8, 2019, a rating in excess of 20 percent is not warranted for the left lower extremity radiculopathy. Based on the above, the Board finds that prior to November 8, 2019, the disability was primarily manifest by severe intermittent pain and moderate paresthesias and/or dysesthesias in the left lower extremity. The Board also finds that the most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, trophic changes, muscle atrophy, or complete paralysis. The August 2014 VA examination report indicated that muscle strength testing and a reflex examination were normal. The involvement appeared to be wholly sensory. The Board thus finds that the level of impairment is most analogous to moderate incomplete paralysis, prior to November 8, 2019. Consequently, a rating in excess of 20 percent was not warranted prior to November 8, 2019. From November 8, 2019, the disability is primarily manifest by mild intermittent pain, severe paresthesias and/or dysesthesias, and mild numbness in the left lower extremity, from November 8, 2019. The November 2019 VA examiner found that the Veteran had moderately severe incomplete paralysis of the sciatic nerve. The involvement was more than sensory as the Veteran had reduced muscle strength on right ankle plantar flexion and ankle dorsiflexion. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. Therefore, a higher rating of 40 percent is warranted from November 8, 2019 for left lower extremity radiculopathy. The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted for left lower extremity radiculopathy. 5. Entitlement to a rating in excess of 20 percent for bilateral hearing loss The Veteran contends that he is entitled to a higher rating in excess of 20 percent for his bilateral hearing loss. Evaluations of defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz). 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). An August 2014 VA examination reveals that the Veteran reported that he wore hearing aids binaurally and had difficulty hearing and understanding conversational speech. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: August 2014 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 65 70 70 61 72 LEFT 55 70 70 65 65 72 Applying the results to Table VI, the findings yield a numeric designation of Level IV in the right ear and Level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in left ear. Applying the results to Table VIA yields Level IV in the right ear and level IV in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level IV for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. Here, Table VI and VIA yield the same rating for the ears, 20 percent. A November 2019 VA examination reveals that the Veteran reported that he felt his hearing had worsened. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). The Veteran's Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: November 2019 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 55 75 75 70 60 94 LEFT 55 70 75 70 68 94 Applying the results to Table VI, the findings yield a numeric designation of Level II in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level II for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a noncompensable disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was shown in both ears. Applying the results to Table VIA yields Level IV in the right ear and level V in the left ear. Entering the resulting bilateral numeric designation of Level IV for the right ear and Level V for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 20 percent disability rating under Diagnostic Code 6100. Here, Table VIA yields the highest rating for both ears, 20 percent. Based on the evidence above, a rating in excess of 20 percent for the Veteran's bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including the Veteran's report of having difficulty hearing and understanding conversational speech. The Veteran is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. See Lendenmann v. Principi, 3 Vet. App. 345 (1992). The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes, is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). The Veteran's main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against the claim of entitlement to a rating in excess of 20 percent for hearing loss. In reaching the conclusion above, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran's claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 6. Entitlement to service connection for Meniere's disease. 7. Entitlement to service connection for vertigo/dizziness. In the March 2019 remand, the Board requested an addendum opinion in which the examiner was instructed to identify any current diagnosis of Meniere's disease, vertigo, and dizziness, and opine whether each diagnosis is at least as likely as not related to an in-service injury, event or disease. In regard to whether the Veteran has a diagnosis of Meniere's disease, the May 2020 VA examiner stated that the Veteran is service connected for bilateral tinnitus, suggesting that the service-connected disability was less likely due to Meniere's disease. In the rationale for the opinion, the examiner stated that Meniere's disease is a condition of hearing loss and tinnitus to one side rather than to the bilateral ears. However, a September 1991 VA audiological examination report reflects that the Veteran reported having constant unilateral tinnitus in the left ear since the 1970s. A December 1991 rating decision reflects that the Veteran was granted service connection for tinnitus because of constant ringing in his left ear. The evidence of record indicates that the Veteran has a history of unilateral tinnitus, contradicting the rationale for the examiner's finding that the Veteran did not have Meniere's disease. As the rationale is inadequate, the claim must be remanded for a VA opinion with an adequate rationale. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In a May 2020 VA opinion, the examiner opined that the Veteran's complaints of dizziness were likely due to benign positional vertigo (BPPV). The examiner opined that BPPV was less likely than not due to an in-service injury, event or disease. The examiner stated that there was no evidence of a head injury and the initial symptoms of vertigo were noted more than 14 years after service in 2005, further indicating that the BPPV was less likely due to active service. However, a September 1991 VA audiological examination report reflects that the Veteran reported having vertigo since 1984. As the examiner's rationale is contradicted by the evidence of record, it is inadequate, and the claim must be remanded for a VA opinion with an adequate rationale. 8. Entitlement to a TDIU Finally, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, the issues are inextricably intertwined. A remand of the claim for a TDIU is required. The matters are REMANDED for the following action: Obtain an addendum opinion from an appropriate clinician. The clinician should review the claims file, including the medical opinions of record. a) Is it at least as likely as not that that the Veteran has Meniere's disease? The examiner should review the medical opinions of record and the Veteran's reports of unilateral tinnitus in September 1991. b) Is the Veteran's benign positional vertigo at least as likely as not related to service, including his reports of dizziness in service? The examiner should review the Veteran's reports of dizziness in service and the Veteran's report of vertigo in the September 1991 VA examination. A complete rationale for all opinions must be provided. If the clinician cannot provide a requested opinion without resorting to speculation, it must be so stated, and the clinician must provide the reasons why an opinion would require speculation. The clinician must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the clinician must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. Nathaniel Doan Veterans Law Judge Board of Veterans' Appeals Attorney for the Board K. Marenna, Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.