TINNITUS

J. B. FREEMAN · 2026 · Case ID: A26041008

MIXED

Summary

The Veteran served from June 1974 to June 1977. He appeals the denial of an increased rating for his service-connected back disability and the denial of service connection for tinnitus, bilateral hearing loss, chronic kidney pain, and chronic kidney infections. The Board granted service connection for tinnitus, finding the Veteran's lay statements credible and the VA examiner's opinion inadequate for failing to address the in-service onset of tinnitus. The Board denied the increased rating for the back disability, finding the evidence did not support a rating higher than 40 percent, as the Veteran's functional loss did not approximate unfavorable ankylosis. The Board granted a 20 percent rating for moderate incomplete paralysis of the bilateral femoral nerves, an increase from the previous 10 percent rating, based on the Veteran's reported pain and mild sensory deficits. The claims for generalized anxiety disorder (GAD), bilateral hearing loss, chronic kidney pain, and chronic kidney infections were remanded due to inadequate VA examinations. For GAD, the VA examiner's opinion was inadequate because it did not explain the effect of possible symptom exaggeration on the opinion. For hearing loss, the VA examiner's opinion was inadequate for failing to address the Veteran's reports of in-service onset and worsening symptoms. For chronic kidney pain, the VA examiner's opinion was inadequate for failing to address the Veteran's reports of onset in service and for providing inconsistent findings regarding kidney infections. For kidney infections, the VA examination was inadequate for failing to consider existing laboratory testing results and an MRI finding.

Rationale

VA examiner's opinion inadequate for failing to address in-service onset; Veteran's lay statements regarding tinnitus onset found credible; Service connection granted based on credible lay evidence and inadequate VA opinion

Special Benefit

NO SPECIAL BENEFIT

Docket No.

250314-529277

Full Decision Text

Citation Nr: A26041008
Decision Date: 04/30/26 Archive Date: 04/30/26

DOCKET NO. 250314-529277
DATE: April 30, 2026

ORDER

Entitlement to service connection for tinnitus is granted.

Entitlement to an initial disability rating in excess of 40 percent for degenerative arthritis, degenerative disc disease, IVDS, and spondylolisthesis (back disability) is denied.

Entitlement to an initial disability rating of 20 percent for radiculopathy of the femoral nerve of the left lower extremity is granted.

Entitlement to an initial disability rating of 20 percent for radiculopathy of the femoral nerve of the right lower extremity is granted.

REMANDED

Entitlement to service connection for generalized anxiety disorder (GAD) is remanded.

Entitlement to service connection for bilateral hearing loss is remanded.

Entitlement to service connection for chronic kidney pain is remanded.

Entitlement to an initial compensable disability rating for chronic kidney infections is remanded.

FINDINGS OF FACT

1. The onset of the Veteran's current tinnitus was during active duty; symptoms have persisted since onset.

2. The Veteran's back disability has not manifested in ankylosis or caused impairment more nearly approximating unfavorable ankylosis of the thoracolumbar spine.

3. The Veteran's radiculopathy of the femoral nerve of the left lower extremity has manifested in symptoms more nearly approximating moderate incomplete paralysis of the femoral nerve.

4. The Veteran's radiculopathy of the femoral nerve of the right lower extremity has manifested in symptoms more nearly approximating moderate incomplete paralysis of the femoral nerve.

CONCLUSIONS OF LAW

1. The criteria for entitlement to service connection for tinnitus are met. 38 U.S.C. §§ 1101, 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309.

2. The criteria for an initial disability rating in excess of 40 percent for the Veteran's back disability are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.71a, Diagnostic Codes (DCs) 5239-5242.

3. The criteria for an initial disability rating of 20 percent, but no higher, for radiculopathy of the femoral nerve of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8526.

4. The criteria for an initial disability rating of 20 percent, but no higher, for radiculopathy of the femoral nerve of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.124a, DC 8526.

INTRODUCTION

The Veteran served on active duty from June 1974 to June 1977.

This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a February 2025 rating decision by a Department of Veterans Affairs (VA) Regional Office, which is the Agency of Original Jurisdiction (AOJ).

In the March 14, 2025, notice of disagreement, the Veteran elected the evidence submission docket.

Applicable Evidentiary Review Period

Therefore, the Board may only consider the evidence of record at the time of the February 2025 rating decision on appeal, as well as any evidence submitted by the Veteran with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

With regard to the Veteran's claims for entitlement to service connection for tinnitus and for entitlement to higher ratings for his back disability and associated radiculopathy of the femoral nerve of this lower extremities, ff the Veteran would like VA to consider any evidence that was submitted that the Board could not
If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to the date the Board received the VA Form 10182, or (2) more than 90 days following the date the Board received the VA Form 10182, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.303, 20.801.

With regard to the Veteran's claims for entitlement to service connection for tinnitus and for entitlement to higher ratings for his back disability and associated radiculopathy of the femoral nerve of this lower extremities, ff the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision.

However, because the Board is remanding the claims of service connection for GAD, bilateral hearing loss and kidney pain, and the claim for a compensable disability rating for kidney infections, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Service Connection -Tinnitus

The Veteran has contended that he has tinnitus that began during active military service.

In the February 2025 rating decision, the AOJ made the favorable findings that the Veteran was participated in a toxic exposure risk activity, as he was exposed to diesel fuel and oils, that he had been diagnosed with tinnitus at a January 2025 VA examination, and that a qualifying event, injury, or disease had its onset during your service, as his DD214 reflected a military occupational specialty of power generation equipment mechanic which had low probability of hazardous noise exposure.. These favorable findings are binding on the Board. 38 C.F.R. §§ 3.104(c), 20.801(a).

While the AOJ made the favorable finding that the Veteran's military occupational specialty (MOS) had a low probability of hazardous noise exposure, the MOS of a Power-Generation Equipment Repairer actually has a high probability of hazardous noise exposure. See VA Adjudication Procedures Manual (M21-1), part V, subpart iii, Ch. 2, B.1.b.

At the January 2025 VA examination, the Veteran reported that his tinnitus began during service in 1975 when he was exposed to noise from tanks, weapons, and generators. He indicated that his tinnitus was constant and that it had gotten worse since onset. The examiner opined that his tinnitus was not related to service. The rationale provided was that service treatment records indicated that there was not a significant in-service threshold shift and that, in the absence of an objectively verifiable noise injury, the association between claimed tinnitus and noise exposure could not be assumed to exist. The examiner noted that while the audiogram was an imperfect measurement, it was accepted as the objective basis for determining noise injuries. The examiner also found that there was no documentation of tinnitus in the Veteran's service treatment records or medical records reviewed.

The Veteran is competent to report readily observable symptoms. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Tinnitus is a noise in the ears, such as ringing, buzzing, roaring, or clicking. YT v. Brown, 9 Vet. App. 195, 196 (1996). Tinnitus is the type of disability that is capable of lay observation. Charles v. Principi, 16 Vet. App. 370, 374 (2002).

In this case, the VA examiner did not address the Veteran's reports of an onset of tinnitus in service. As such, the January 2025 VA opinion is inadequate. An examiner must consider lay statements regarding in-service occurrence of an injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence).

The Veteran has credibly asserted that his tinnitus had its onset during service. While the VA examiner opined that tinnitus was not related to noise
in service. As such, the January 2025 VA opinion is inadequate. An examiner must consider lay statements regarding in-service occurrence of an injury. See Dalton v. Nicholson, 21 Vet. App. 23 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence).

The Veteran has credibly asserted that his tinnitus had its onset during service. While the VA examiner opined that tinnitus was not related to noise exposure in service, the Board has no reason to doubt the Veteran's reports of experiencing tinnitus during a period of active service, and presently, and finds these statements credible.

As the evidence weighs persuasively in favor of a finding that tinnitus, a chronic disease, was present during service and currently, and is not clearly attributable to an intercurrent cause, service connection is warranted, and the claim is granted. See 38 C.F.R. §§ 3.303(b), 3.309(a); see also Fountain v. McDonald, 27 Vet. App. 258, 271 (2015); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013).

Increased Rating - Back Disability

Legal Criteria

The Veteran is seeking a higher rating for his service-connected back disability.

His back disability is rated at a 40 percent disability rating under 38 C.F.R. § 4.71a, DCs 5239-5242. Hyphenated DCs are used when a rating under one DC requires use of an additional DC to identify the basis for the evaluation assigned. See 38 C.F.R. § 4.27. In this case, DC 5239 pertains to spondylolisthesis or segmental instability and DC 5242 pertains to degenerative arthritis. 38 C.F.R. § 4.71a.

Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine, 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
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).

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).

The final sentence of 38 C.F.R. § 4.59 requires that the examiner record the results of range of motion testing "for pain on both active and passive motion [and] in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint." Correia v. McDonald, 28 Vet. App. 158 (2016). The spine has no opposite joint.

VA examiners must obtain information about the severity, frequency, duration, precipitating and alleviating factors, and extent of functional impairment of flares from the veterans themselves, when a flare-up is not observable at the time of examination. Sharp v. Shulkin, 29 Vet. App. 26 (2017).

Background and Analysis

The Veteran was provided with a VA examination in February 2024. He reported pain especially when transitioning from sitting to standing and vice versa with radiating pain down his legs and numbness and tingling of the feet and toes. He reported no current treatment. He had trouble sitting for long periods of time, and difficulty with bending and lifting. The Veteran reported moderate flare-ups that occurred on a daily basis lasted until he was able to get up and move around. Upon examination, active range of motion was flexion to 30 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees. Passive forward flexion was to 90 degrees, with all other passive motion having the same range of motion as active movement. There was evidence of pain with weight bearing, passive and active movement. Limited range of motion and pain caused functional loss described as limiting his ability to work in fields that required repetitive bending, lifting weights greater than 25 pounds, or squatting. There was no additional loss of function or range of motion after three repetitions. The examiner estimated that, after repeated use over time and during flare-ups, the Veteran's range of motion was limited to flexion to flexion to 30 degrees, and extension, right and left lateral flexion, and right and left lateral rotation all to 10 degrees. Pain was the cause of functional loss. There was no ankylosis or neurological abnormalities, other than radiculopathy.

The Board finds that the evidence of record persuasively weighs against a rating in excess of 40 percent for his back disability. The Board considered the possibility of awarding a higher rating under 38 C.F.R. §§ 4.40 and 4.45. The application of §§ 4.40 and 4.45 permits consideration under the General Rating Formula for Diseases and Injuries of the Spine of an evaluation based on ankylosis if a claimant's demonstrated is the functional equivalent of ankylosis. Chavis v. McDonough, 34 Vet. App. 1, 19 (2021).

While the evidence shows that the Veteran has functional loss described as impairment in his ability to work in fields that required repetitive bending, lifting weights greater than 25 pounds, or squatting due to pain and limitation of motion, this does not more nearly approximate unfavorable ankylosis. As noted above, unfavorable ankylosis is defined in the regulation as fixation of the entire thoracolumbar spine resulting in 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.

Even considering the functional limitation during flare-ups
in his ability to work in fields that required repetitive bending, lifting weights greater than 25 pounds, or squatting due to pain and limitation of motion, this does not more nearly approximate unfavorable ankylosis. As noted above, unfavorable ankylosis is defined in the regulation as fixation of the entire thoracolumbar spine resulting in 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.

Even considering the functional limitation during flare-ups, the Veteran's symptoms did not more nearly approximate the entire spine fixed in flexion or extension and one of the additional symptoms set forth above. Notably, there is no suggestion of any limited motion of the spine comparable to any type of immobility. He was still able to perform range of motion movements in all directions. Also, to the extent that the Veteran has experienced functional loss, he has not alleged functional impairment comparable to that experienced by an individual with immobility of part of the spine.

Consideration has also been given to assigning a rating under the Formula for Rating Intervertebral Disc Syndrome (IVDS) Based on Incapacitating Episodes. However, 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. See 38 C.F.R. § 4.71a, Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes.

Regarding neurological impairment, the Veteran is currently service connected for radiculopathy of the lower extremities. The ratings for his lower extremities are addressed below. Otherwise, the lay and medical evidence of record is against a finding that the Veteran has any other neurological abnormality associated with the spine disability.

For the foregoing reasons, the evidence of record persuasively weighs against the Veteran's claim for a rating in excess of 40 percent for the Veteran's service-connected back disability. As the evidence of record persuasively weighs against a rating in excess of 40 percent, the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); Lynch v. McDonough, 21 F.4th 776, 781-82 (2021) (en banc); 38 C.F.R. §§ 4.3, 4.7.

Increased Ratings - Radiculopathy of the Right and Left Femoral Nerve

The Veteran is seeking higher ratings for his radiculopathy of the femoral nerves.

As noted above, he is service connected for radiculopathy of the femoral nerves in the right and left lower extremities at 10 percent disability ratings, reflecting mild incomplete paralysis of the femoral nerve, for each lower extremity under DC 8526. 38 C.F.R. § 4.124a, DC 8526.

Paralysis of the femoral nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis, resulting in paralysis of quadriceps extensor muscles, is rated as 40 disabling. 38 C.F.R. § 4.124a.

The words "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. In the absence of an express definition, words are given their ordinary meaning. Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (citing Terry v. Principi, 340 F.3d 1378, 1382-83 (Fed. Cir. 2003)). The ordinary meaning of "severe" is "very great [or] intense," or "of a great degree." Id. (quoting, respectively, the NEW OXFORD AMERICAN DICTIONARY 1599 (3d ed. 2010) and MERRIAM-WEBSTER DICTIONARY online (internal citation omitted)). The ordinary meaning of "moderate" is "average in amount, intensity, quality, or degree." Gallagher v. Wilkie, No. 19-1855, 2020 U.S. App. Claims LEXIS 1889 (2020) (quoting NEW OXFORD AMERICAN DICTIONARY 1124 (3d ed. 2010). Webster's II
ordinary meaning of "severe" is "very great [or] intense," or "of a great degree." Id. (quoting, respectively, the NEW OXFORD AMERICAN DICTIONARY 1599 (3d ed. 2010) and MERRIAM-WEBSTER DICTIONARY online (internal citation omitted)). The ordinary meaning of "moderate" is "average in amount, intensity, quality, or degree." Gallagher v. Wilkie, No. 19-1855, 2020 U.S. App. Claims LEXIS 1889 (2020) (quoting NEW OXFORD AMERICAN DICTIONARY 1124 (3d ed. 2010). Webster's II New College Dictionary defines "mild," as relevant here, as "not severe." Id. at 694 (1995).

Regulations provide that ratings for peripheral neurological disorders are to be assigned based on 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).

VA's Adjudication Manual, M21-1, V.iii.12.A.2 (M21-1) discusses the terminology in 38 C.F.R. § 4.124a, DCs 8510-8730. The Manual indicates with regard to "mild": As this is the lowest level of evaluation for each nerve this is the default assigned based on the symptoms, however slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment for service connection purposes. In general, look for a disability limited to sensory deficits that are lower graded, less persistent, or affecting a small area. A very minimal reflex or motor abnormality potentially would also be consistent with mild incomplete paralysis.

The Manual indicates with regard to "moderate": Symptoms will likely be described by the claimants and medically graded as significantly disabling. In such cases a larger area in the nerve distribution may be affected by sensory symptoms. Other sign/symptom combinations that may fall into the moderate category include combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate.

The Manual indicates with regard to "severe": In general, expect motor and/or reflex impairment (for example, atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen in severe longstanding neuropathy cases. For the sciatic nerve, marked muscular atrophy is expected. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain should be rated as high as severe incomplete paralysis of the nerve. 38 C.F.R. § 4.123.

In June 2016, VA amended the M21-1 adjudication manual "to further clarify the intent of VA's policy," and the relevant portion of the M21-1 adjudication manual included the following: Important: This provision does not mean that if there is any impairment that is non-sensory (or involves a non-sensory component) such as a reflex abnormality, weakness or muscle atrophy, the disability must be evaluated as greater than moderate. Significant and widespread sensory impairment may potentially indicate the same or even more disability than a case involving a minimally reduced or increased reflex or minimally reduced strength.

The Adjudication Manual is not binding on the Board. DAV v. Sec'y of Veterans Affairs,
.

The Adjudication Manual is not binding on the Board. DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017) ("The M21-1 Manual is binding on neither the agency nor tribunals"). Nevertheless, it does provide useful guidance in defining these terms, particularly if the Veteran demonstrates impairment consistent with higher rating(s) than currently in effect. Chavis, 34 Vet. App. at 36. Stated another way, the Board will look to see if there are findings that would warrant a higher rating under the M21-1 provisions but will not deny the benefit sought on appeal if those provisions are not satisfied.

Background and Analysis

At his February 2024 VA examination, muscle strength was normal throughout the lower extremities. There was no muscle atrophy. Reflexes at the knee and ankle were normal. Sensory examination was normal. The Veteran experienced moderate intermittent pain on the right and severe intermittent pain on the left. The Veteran had reported mild paresthesias and/or dysesthesias, and numbness in both lower extremities.

The Veteran was assigned 10 percent disability ratings for mild incomplete paralysis of the femoral nerve in each lower extremity. Under the guidance provided in the M21-1, a rating at the level of mild incomplete paralysis generally means that the disability is limited to sensory deficits that are lower graded, less persistent, or affecting a small area.

In the present case, while the Veteran's symptoms of paresthesias and/or dysesthesias and numbness were mild, his reports of moderate pain in the right and severe pain in the left lower extremities reflect a disability that, overall, is more than mild. Taking his elevated pain into account, in addition to the symptoms rated as mild, the Board finds that this level of symptomatology reflects that his sensory deficits are more than "lower graded."

According to the M21-1 guidance, moderate incomplete paralysis could be shown by sensory symptoms affecting a larger area in the nerve distribution. While the VA examination does not provide evidence that would show the size of the area affected, the symptoms reported by the Veteran, which include the elevated reports of intermittent pain along with mild paresthesias and/or dysesthesias, and numbness, more nearly approximate a moderate level of incomplete paralysis of the femoral nerve in both lower extremities.

Based on the Veteran's wholly sensory symptomatology, a rating commensurate with moderate incomplete paralysis is the maximum rating possible. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves."

In conclusion, the Board finds that the evidence of record persuasively supports a finding of moderate incomplete paralysis of the bilateral femoral nerves. The Board concludes that 20 percent disability ratings are warranted for the Veteran's bilateral radiculopathy of the femoral nerves.

REASONS FOR REMAND

Service Connection - GAD

The Veteran has contended that he has a psychiatric disorder related to service.

In the February 2025 rating decision, the AOJ made the favorable findings that the Veteran had been diagnosed with a disability, as the September 2024 private medical examination noted a diagnosis of GAD, and that the Veteran had participated in a toxic exposure risk activity is conceded. These favorable findings are binding on the Board. 38 C.F.R. §§ 3.104(c), 20.801(a).

The Veteran submitted a Mental Disorders Disability Benefits Questionnaire (DBQ) completed by a private psychologist in September 2024. The private provider opined that the Veteran's symptoms of anxiety began as a result of the unnecessary emotional and verbal abuse he experienced during basic training as well as his frightening experience of physical illness he endured during the kidney incident that led to hospitalization. The provider found that it was clear that the stressful and demanding environment on active duty left deep emotional scars that continued to be present at this time.

The provider administered the Minnesota Multiphasic Personality Inventory-3 (MMPI-3), which raised concerns about possible overreporting. The provider noted that the Veteran's responses may have been indicative of symptom exaggeration. As such,
Veteran submitted a Mental Disorders Disability Benefits Questionnaire (DBQ) completed by a private psychologist in September 2024. The private provider opined that the Veteran's symptoms of anxiety began as a result of the unnecessary emotional and verbal abuse he experienced during basic training as well as his frightening experience of physical illness he endured during the kidney incident that led to hospitalization. The provider found that it was clear that the stressful and demanding environment on active duty left deep emotional scars that continued to be present at this time.

Unfortunately, the examiner did not explain the effect these findings of symptom exaggeration, which could diminish the credibility of the Veteran's reports, on the examiner's opinion. As such, the opinion is inadequate. For an opinion to be adequate, it must be based on a rationale sufficient to support its conclusions. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008).

The Board finds there is a deficiency in the record that existed prior to the decision on appeal, VA's failure to provide the Veteran with adequate VA examination prior to the rating decision. Therefore, remand is necessary to correct the pre-decisional duty to assist error. 38 C.F.R. § 20.802(a).

Service Connection - Bilateral Hearing Loss

The Veteran contends that his current bilateral hearing loss is related to noise exposure in service.

In the February 2025 rating decision, the AOJ made the favorable findings that the Veteran was participated in a toxic exposure risk activity, as he was exposed to diesel fuel and oils, that he had been diagnosed with bilateral hearing loss at a January 2025 VA examination, and that a qualifying event, injury, or disease had its onset during your service, as his DD Form 214 reflected a military occupational specialty of power generation equipment mechanic which had low probability of hazardous noise exposure. These favorable findings are binding on the Board. 38 C.F.R. §§ 3.104(c), 20.801(a).

During a January 2025 VA examination, the examiner confirmed the Veteran's bilateral hearing loss but opined the condition was not related to his military service. In support of this conclusion, the examiner stated there was no significant permanent shift in hearing thresholds beyond test variability from entrance to separation, which was objective evidence of no permanent auditory damage during active duty from conceded noise exposure. The examiner explained that although noise exposure was conceded and the relationship of noise, auditory damage and hearing loss was well-established, auditory damage and hearing loss were not conceded based on noise alone.

This opinion is inadequate, as the examiner did not address the Veteran's contentions that his hearing loss began during service and had worsened since his discharge. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence).

On remand the Veteran should be provided with another VA examination to determine whether his current hearing loss is related to service. The examiner must address the Veteran's lay statements that his hearing loss began during active duty.

Service Connection - Chronic Kidney Pain

The Veteran has contended that he has had kidney pain since service.

In the February 2025 rating decision, the AOJ made the favorable findings that the Veteran had been diagnosed with a disability, as the January 2025 VA examination noted a diagnosis of chronic kidney pain. In addition, participation in a toxic exposure risk activity was conceded based on the Veteran's exposure to diesel fuel and oils.

Service Connection - Chronic Kidney Pain

The Veteran has contended that he has had kidney pain since service.

The VA examiner opined that, based on the medical records and literature, the Veteran's kidney pain was not related to his in-service kidney injury. He found that, while the Veteran experienced an in-service kidney injury in 1977, the lack of objective evidence of chronic kidney pain, normal findings on imaging, and the resolution of acute symptoms within service strongly suggested that the injury did not result in a chronic or residual condition.

This VA opinion is inadequate, for the following reasons. First, the examiner did not address the Veteran's reports that his kidney pain began in service and has continued since service. See Dalton v. Nicholson, 21 Vet. App. 23, 39-40 (2007) (examination inadequate where the examiner did not comment on Veteran's report of in-service injury and relied on lack of evidence in service medical records to provide negative opinion); Miller v. Wilkie, 32 Vet. App. 249, 260 (2020) (explaining that a VA examination is inadequate if the examiner does not consider lay evidence).

In addition, the examiner's findings are inconsistent with the findings that she made regarding the Veteran's service-connected kidney infections. In that opinion, the examiner opined that the Veteran had recurrent kidney infections that were residuals of his in-service kidney trauma.

On remand, a VA opinion should be obtained as to whether the Veteran has kidney pain that began during service. In providing the opinion, the examiner must address the finding that the Veteran's in-service kidney injury resulted in his kidney infections for which service connection has been granted. In addition, the examiner must consider the Veteran's lay statements regarding the onset of his kidney pain. Finally, in providing the opinion, the examiner should note that the Veteran is currently service-connected for a back disability, and address whether his recurrent back pain is attributable to his service-connected back disability or to his in-service kidney injury.

Increased Rating - Kidney Infections

The Veteran has contended that he is entitled to a higher disability rating for his service-connected kidney infections.

His service-connected kidney infections have been rated under DC 7504 and are rated based on renal dysfunction or urinary tract infection, whichever is predominant. 38 C.F.R. § 4.115.

He was provided with a VA examination in January 2025. On the examination report, the examiner addressed diagnostic testing that had been conducted in January 2025, in connection with the VA examination. The examiner noted that there were no other laboratory or other diagnostic studies in the medical records. However, this is not accurate, as the record includes laboratory testing results dated October 26, 2023. These test results should be considered by a VA examiner. In addition, a July 2024 magnetic resonance imaging (MRI) of the lumbar spine revealed a cystic lesion within the right kidney measuring 12 millimeters. The examiner did not address this finding.

The Board by this remand makes no determination, expressed or implied, concerning the credibility of any statements on file.

The matters are REMANDED for the following action:

1. Schedule the Veteran for a VA psychiatric examination for GAD. The examiner must review the claims file.

The examiner is asked to provide an opinion as to whether the Veteran's GAD or any other psychiatric disability diagnosed on examination is related to service. In providing this opinion, the examiner must address the Veteran's reports of unnecessary emotional and verbal abuse he experienced during basic training as well as his frightening experience of physical illness he endured during the kidney incident that led to hospitalization.

Provide a rationale to support the opinion(s).

1. Schedule the Veteran for a VA psychiatric examination for GAD. The examiner must review the claims file.

Provide a rationale to support the opinion(s).

In providing the requested opinion, consider the Veteran's description of the in-service injury and symptoms as well as post-service symptoms. If there is any medical reason to accept or reject the proposition that the Veteran's reported injury and symptoms in service and thereafter represented the onset of the current disability, this should be noted. Stated another way, do the Veteran's reports about the symptoms align with how the currently diagnosed disability is known to develop or are the Veteran's reports generally inconsistent with medical knowledge or implausible?

2. Schedule the Veteran for a VA examination for bilateral hearing loss. The examiner must review the claims file.

The examiner is asked to provide an opinion as to whether his bilateral hearing loss (1) began during active service, (2) manifested within a year after discharge from service, or (3) was noted during service with continuity of the same symptomatology since service. The examiner must address the Veteran's reports of hearing loss since service.

Provide a rationale to support the opinion(s).

3. Schedule the Veteran for a VA examination for the chronic kidney pain. The examiner must review the claims file.

If a diagnosis cannot be provided but the Veteran's condition manifests in symptoms that cause functional impairment, then the examiner should consider them a "disability" for the purpose of providing the requested opinion(s) below.

The examiner is asked to provide an opinion as to whether the Veteran has a disability manifested by chronic kidney pain. In providing this opinion, the examiner should address whether the pain described by the Veteran is attributable to his service-connected back disability or his service-connected kidney infections.

Provide a rationale to support the opinion(s).

4. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the service-connected kidney infections. 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.

In providing an assessment of the Veteran's kidney infections, the examiner must address the laboratory testing results dated October 26, 2023, and the July 2024 MRI of the lumbar spine revealed a cystic lesion within the right kidney measuring 12 millimeters.

J. B. FREEMAN

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board M. Harrigan Smith

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.

Analyze in VA Law Explorer