Citation Nr: 1218481 Decision Date: 05/24/12 Archive Date: 06/07/12 DOCKET NO. 08-24 117 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial rating higher than 30 percent for peripheral neuropathy of the right upper extremity. 2. Entitlement to an initial rating higher than 20 percent for peripheral neuropathy of the left upper extremity. 3. Entitlement to an initial rating higher than 20 percent for peripheral neuropathy of the right lower extremity. 4. Entitlement to an initial rating higher than 20 percent for peripheral neuropathy of the left lower extremity. 5. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to November 23, 2010. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD B. Elwood, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1968 to September 1970. He received the Combat Infantryman Badge. These matters come before the Board of Veterans' Appeals (Board) from a March 2007 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Columbia South Carolina. In that decision, the RO granted service connection for bilateral peripheral neuropathy of the upper and lower extremities and assigned initial 10 percent disability ratings, all effective March 24, 2004. In June 2008, the RO assigned initial 20 percent ratings for peripheral neuropathy of the upper extremities, both effective March 24, 2004. In his July 2008 substantive appeal (VA Form 9), the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO. In November 2009, he withdrew his DRO hearing request and an informal hearing conference with a DRO was conducted in November 2009 in lieu of a formal hearing. A report of that conference has been associated with the Veteran's claims folder. In January 2010, the RO assigned an initial 30 percent rating for peripheral neuropathy of the right upper extremity and initial 20 percent ratings for peripheral neuropathy of the lower extremities, all effective March 24, 2004. FINDINGS OF FACT 1. Since March 24, 2004, the Veteran's peripheral neuropathy of the right upper extremity has been manifested by moderate neuralgia of the cervical radicular groups. 2. Since March 24, 2004, the Veteran's peripheral neuropathy of the left upper extremity has been manifested by moderate neuralgia of the cervical radicular groups. 3. Since March 24, 2004, the Veteran's peripheral neuropathy of the right lower extremity has been manifested by moderate sciatic neuralgia. 4. Since March 24, 2004, the Veteran's peripheral neuropathy of the left lower extremity has been manifested by moderate sciatic neuralgia. 5. From March 24, 2004 to November 22, 2010, the Veteran was service-connected for the following disabilities: coronary artery disease, rated 10 percent disabling prior to October 23, 2006, and 60 percent disabling since that date; peripheral neuropathy of the right upper extremity, now rated 40 percent disabling; peripheral neuropathy of the left upper extremity, now rated 30 percent disabling; peripheral neuropathy of the right and left lower extremities, both rated 20 percent disabling; depression/posttraumatic stress disorder (PTSD), rated 30 percent disabling since October 23, 2006; and type II diabetes mellitus, rated 20 percent disabling. His combined disability ratings are now 80 percent from March 24, 2004 to October 22, 2006 and 90 percent from October 23, 2006 to November 22, 2010. 6. Prior to November 23, 2010, the Veteran's service-connected disabilities precluded employment for which his education and occupational experience would have otherwise qualified him. CONCLUSIONS OF LAW 1. The criteria for an initial 40 rating for peripheral neuropathy of the right upper extremity have been met since March 24, 2004. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 8513, 8715 (2011). 2. The criteria for an initial 30 percent rating for peripheral neuropathy of the left upper extremity have been met since March 24, 2004. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 8513, 8715. 3. The criteria for a higher initial rating for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 8520, 8720 (2011). 4. The criteria for a higher initial rating for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.321(b)(1), 4.1, 4.2, 4.7, 4.10, 4.21, 4.123, 4.124, 4.124a, Diagnostic Codes (DCs) 8520, 8720. 5. The criteria for a TDIU due to service-connected disabilities prior to November 23, 2010 have been met. 38 U.S.C.A. §§ 1155, 5107 (b); 38 C.F.R. §§ 3.340 3.341 4.16 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2011). As the Board is granting the claim for a TDIU prior to November 23, 2010, the claim is substantiated and there are no further VCAA duties as to that issue. Wensch v. Principi, 15 Vet App 362, 367-68 (2001); see also 38 U.S.C.A. § 5103A(a)(2) (Secretary not required to provide assistance "if no reasonable possibility exists that such assistance would aid in substantiating the claim"); VAOPGCPREC 5-2004; 69 Fed. Reg. 59989 (2004) (the notice and duty to assist provisions of the VCAA do not apply to claims that could not be substantiated through such notice and assistance). As for the appeal for higher initial ratings for bilateral peripheral neuropathy of the upper and lower extremities, the appeal arises from the Veteran's disagreement with the initial ratings assigned after the grant of service connection. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or address prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); VAOPGCPREC 8-2003 (2003). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as initial rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation of such error in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records and all of the identified post-service VA treatment records and private medical records. In addition, the Veteran was afforded VA examinations for bilateral peripheral neuropathy of the upper and lower extremities. Although the most recent VA examination for the Veteran's service-connected peripheral neuropathy took place in 2009, the Veteran has not reported any change in the disability since then, and the record does not otherwise show any changes. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time does not trigger need for a new VA examination, absent evidence of a change in the disability). Several documents in the Veteran's claims file, including the June 2008 rating decision and a June 2008 statement of the case, make reference to "reports from Social Security" received in February 2008. The Court has held that where there has been a determination with regard to SSA benefits, the records concerning that decision must be obtained, if relevant. Tetro v. Gober, 14 Vet. App. 100, 108-09 (2000); Murincsak v. Derwinski, 2 Vet. App. 363, 372 (1992); cf. Golz v. Shinseki, 590 F.3d 1317, 1321 (2010) (there is no duty to get SSA records when there is no evidence that they are relevant). There are no Social Security Administration (SSA) records in the claims file or among the Veteran's paperless records in the Virtual VA system. However, the Veteran has not reported and the evidence does not otherwise reflect that he is in receipt of SSA disability benefits for any disability, including his service-connected peripheral neuropathy. Therefore, as there is no indication or allegation that any SSA records are relevant to the higher initial rating issues currently on appeal, VA has no duty to attempt to obtain them in regard to these issues. See Id. Analysis Higher Initial Rating Disability evaluations are determined by the application of rating criteria set forth in the VA Schedule for Rating Disabilities (38 C.F.R. Part 4) based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The peripheral neuropathy of the Veteran's upper extremities is currently rated under 38 C.F.R. § 4.124a, DCs 8715-8513 and the peripheral neuropathy of his lower extremities is currently rated under 38 C.F.R. § 4.124a, DCs 8799-8720. Hyphenated diagnostic codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the rating assigned. 38 C.F.R. § 4.27 (2011). In this case, the use of DCs 8715-8513 reflects that the Veteran's peripheral neuropathy of the upper extremities is rated as neuralgia under DC 8715 and that the ratings assigned are based on paralysis of all radicular groups under DC 8513. As for the peripheral neuropathy of the lower extremities, the use of DCs 8799-8720 reflects that there is no diagnostic code specifically applicable to the Veteran's neurologic disability of the lower extremities, and that this disability is rated by analogy to neuralgia of the sciatic nerve under DC 8720. See 38 C.F.R. § 4.20 (2011) (allowing for rating of unlisted condition by analogy to closely related disease or injury). Under DC 8513, paralysis of all radicular groups is rated as follows: a 20 percent rating is warranted for mild incomplete paralysis of both the minor and major extremity; 30 and 40 percent ratings are warranted for moderate incomplete paralysis of the minor and major extremities, respectively; 60 and 70 percent ratings are warranted for severe incomplete paralysis of the minor and major extremities, respectively; and 80 and 90 percent ratings are warranted for complete paralysis of the minor and major extremities, respectively. 38 C.F.R. § 4.124a, DC 8513. Neuralgia under DC 8720 is rated as paralysis of the sciatic nerve under DC 8520. Paralysis of the sciatic nerve is rated as follows: a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy; and an 80 percent rating is warranted for complete paralysis resulting in the foot dangling and dropping, no possible active movement of muscles below the knee, and weakened or (very rarely) lost flexion of the knee. 38 C.F.R. § 4.124a, DC 8520. The rating schedule provides guidance for rating neurologic disabilities. With regard to rating neurologic disabilities, cranial or peripheral neuritis, 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. 38 C.F.R. § 4.123. The maximum rating that can be assigned for neuritis not characterized by organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. Id. Cranial or peripheral neuralgia, usually characterized 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. 38 C.F.R. § 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. Medical records dated from April 2003 to October 2006 indicate reports by the Veteran of peripheral neuropathy which was manifested by bilateral arm and leg pain, tingling of the hands and feet, and burning and coldness of the feet. The left lower extremity pain occasionally migrated into the groin area. Such symptoms affected his ability to work and were treated with medications. Examinations revealed that the Veteran had slightly outwardly turned toes, somewhat cool feet, slightly diminished sensation in the toes, somewhat impaired muscle strength (4-4+/5) of the left extensor hallucis longus muscle, toe extensors and flexors, and ankle dorsiflexors, and somewhat diminished ankle reflexes. However, filament sensation testing was otherwise within normal limits, the Veteran had a fairly normal gait pattern, there was no obvious atrophy or asymmetry of the feet or legs, there was full motion of the hips, knees, and ankles bilaterally, all other deep tendon reflexes were normal bilaterally, motor strength of the knee extensors and flexors and hip flexors was normal (5/5), and reflexes were symmetric and normal (2/4) at the knees. Diagnoses of peripheral neuropathy were provided. VA examination reports dated in February 2007 reflect that the Veteran reported that he was right-handed and that he had experienced an approximately 2 year history of bilateral numbness and cramping of the fingers and a coldness, numbness, and burning pain of the feet. Examinations revealed that Achilles reflexes were absent, there was a distal sensory loss in glove and stocking type patterns, there was decreased sensitivity to vibration of the upper and lower extremities, and there was diminished sensation to pinprick, light touch, and monofilament of the plantar aspects of the feet. However, gait, strength, coordination, and distal motor function were all normal and deep tendon reflexes of the upper and lower extremities were also normal (2+). The Veteran was diagnosed as having mild bilateral peripheral neuropathy of the upper and lower extremities with dysesthesias in the hands and feet. Private treatment records dated from March to October 2007 and a September 2007 statement by the Veteran (VA Form 21-4138) reflect reports of difficulty walking due to leg and foot pain, chronic numbness and tingling of the arms, legs, and hands, and impaired hand grip. Diagnoses of peripheral neuropathy were provided. VA examination reports dated in April 2008 and December 2009 indicate that the Veteran reported worsening symptoms of peripheral neuropathy, including pain, numbness, tingling, and burning in the feet and numbness and tingling in the hands. Such symptoms were treated with medication. Distal motor function of the upper and lower extremities was intact bilaterally on examination and there was no muscle atrophy or weakness in the upper extremities. However, there was decreased sensation to vibration in the fingers and toes bilaterally, decreased sensation to light touch and pinprick in multiple fingers bilaterally, and decreased sensation to monofilament of the plantar aspects of both feet. The examiner who conducted the December 2009 examination noted that there was a profound loss of primary sensations in the upper extremities and in the lower extremities up to the knees. Ankle jerk was absent during the December 2009 VA examination, but all other deep tendon reflexes in the upper and lower extremities were otherwise normal (2+). An electromyography (EMG) conducted in January 2010 revealed mild bilateral carpal tunnel syndrome, moderate bilateral ulnar neuropathies localized to the elbows, and mild asymmetrical axonal neuropathy. The Veteran was diagnosed as having mild to moderate peripheral neuropathy of the upper extremities affecting the median and ulnar nerves and mild to moderate peripheral neuropathy of the lower extremities affecting the sciatic and sural nerves. The above evidence indicates that since the effective date of service connection, the bilateral peripheral neuropathy of the upper and lower extremities has been manifested by impaired hand grip, cramping of the fingers, bilateral arm and leg pain, numbness and tingling of the arms, hands, legs, and feet, a burning and coldness of the feet, somewhat impaired (4/5) muscle strength in the lower extremities, and occasionally absent Achilles reflexes and ankle jerks. The examiners who conducted the February 2007, April 2008, and December 2009 VA examinations and the physician who conducted the January 2010 EMG characterized the peripheral neuropathy as being mild to moderate. Given the findings of occasionally absent Achilles reflexes and ankle jerks, impaired muscle strength in the lower extremities, and impaired sensation in the upper and lower extremities, and resolving reasonable doubt in favor of the Veteran, the Board concludes that the symptoms of the bilateral peripheral neuropathy of the upper and lower extremities most closely approximate the criteria for moderate incomplete paralysis of the cervical radicular groups and sciatic nerves, respectively, since the effective date of service connection. Thus, initial 40 and 30 percent ratings are warranted under DC 8513 for peripheral neuropathy of the right and left upper extremities, respectively. However, initial ratings higher than 20 percent under DC 8520 for peripheral neuropathy of the right and left lower extremities are not warranted at any time since the grant of service connection. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.21, 4.124a, DCs 8513, 8520. Initial ratings higher than those contemplated for moderate impairment of the cervical radicular groups and sciatic nerve are not warranted at any time throughout the appeal period as muscle strength has only been found to be somewhat impaired, absence of lower extremity reflexes has been shown to be intermittent, all other clinical findings have otherwise been normal, medical professionals have characterized the Veteran's neurologic symptoms as being mild to moderate, and the Veteran has otherwise reported symptoms indicative of no more than moderate impairment. Extraschedular Pursuant to 38 C.F.R. § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular rating if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular rating when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242, 244 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular criteria for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of a claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular rating is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular rating does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). The evidence reflects that the Veteran's peripheral neuropathy has interfered with his employment. For example, in a January 2009 statement (VA Form 21-4138), he reported that he was unable to work due to his service-connected neurologic disabilities. This evidence raises the question of entitlement to an extraschedular rating. The symptoms of the Veteran's disabilities are impaired hand grip, cramping of the fingers, bilateral arm and leg pain, numbness and tingling of the arms, hands, legs, and feet, a burning and coldness of the feet, impaired muscle strength in the lower extremities, and occasionally absent Achilles reflexes and ankle jerks. These symptoms are contemplated by the rating criteria. The Veteran's unemployment is being compensated by the grant of a TDIU. Thus, referral for consideration of an extraschedular rating is not warranted. 38 C.F.R. § 3.321(b)(1). TDIU The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). A TDIU is provided where the combined schedular evaluation for service-connected diseases and disabilities is less than total, or 100 percent. 38 C.F.R. § 4.16(a). A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. VAOPGCPREC 6-99; 64 Fed. Reg. 52,375 (1999). In a June 2011 rating decision, the RO granted service connection for prostate cancer and assigned an initial 100 percent disability rating, effective November 23, 2010. As the Veteran was granted a 100 percent rating for his service-connected prostate cancer for the period since November 23, 2010, the question of entitlement to a TDIU during this period is not at issue. However, as for the remainder of the appeal period prior to November 23, 2010, the evidence reflects that the Veteran stopped working in December 2007 and that he has not worked since that time due to his service-connected disabilities. Given the evidence of current disabilities, the Veteran's claim for the highest ratings possible, and the evidence of unemployability, the record raises a claim for a TDIU under Roberson and Rice for the period prior to November 23, 2010. VA will grant a TDIU when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from securing and following "substantially gainful employment" consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). The central inquiry is, "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The regulations provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. Disabilities resulting from common etiology or a single accident or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board must evaluate whether there are circumstances in the Veteran's case, apart from any non service-connected condition and advancing age, which would justify a total rating based on individual unemployability due solely to the service- connected conditions. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993); see also Blackburn v. Brown, 5 Vet. App. 375 (1993). Marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). During the period from March 24, 2004 to November 22, 2010, the Veteran was service-connected for the following disabilities: coronary artery disease, rated 10 percent disabling prior to October 23, 2006 and 60 percent disabling since that date; peripheral neuropathy of the right upper extremity, now rated 40 percent disabling; peripheral neuropathy of the left upper extremity, now rated 30 percent disabling; peripheral neuropathy of the right and left lower extremities, both rated 20 percent disabling; depression/PTSD, rated 30 percent disabling since October 23, 2006; and type II diabetes mellitus, rated 20 percent disabling. His combined disability rating is now 80 percent from March 24, 2004 to October 22, 2006 and 90 percent from October 23, 2006 to November 22, 2010. Thus, the Veteran has met the schedular requirements for a TDIU for the entire appeal period. The remaining question is whether the Veteran's service-connected disabilities precluded gainful employment for which his education and occupational experience would have otherwise qualified him. Medical records dated from June 2002 to April 2008 and a July 2008 "Veteran's Application for Increased Compensation Based on Unemployability" (VA Form 21-8940) reflect that the Veteran reported that he had completed 1 1/2 years of college and that between March 2002 and December 2007, he had been employed as a supervisor at a textile company, in heavy manual labor, as a forklift operator, and as an assembly line worker. His highest gross earnings per month were $1,500 and his total earned income for the 12 month period preceding July 2008 was between $20,000 and $22, 2000. In 2007 his position at work changed and he had to walk most of the day as opposed to operating a forklift. As a result, he began to experience severe pain and did not believe that he would be able to continue with his employment. He stopped working in December 2007 and was reportedly unable to work due to his service-connected disabilities. The Veteran's employer (A.N., LLC) reported on an August 2008 "Request for Employment Information in Connection with Claim for Disability Benefits" form (VA Form 21-4192) that the Veteran had been employed full time as a production operator since March 2002. He had last worked in December 2007, his earnings for the 12 month period prior to his last day of work were $35,447.04, and he had last received a salary in November 2007. He was on disability, but was not yet retired from the company. In a June 2008 letter, Susan B. Munn, M.D. reported that the Veteran had been advised to stop full time employment due to severe polyarthralgia and neuropathy. Multiple medications and treatment modalities had been attempted without any pain relief. An unappealed rating decision dated in October 2008 reflects that entitlement to a TDIU was denied. In statements dated in December 2008 and January 2009 (VA Form 21-4138), the Veteran reported that although he had not worked since December 2007 due to his service-connected neurologic disabilities, he was still considered an employee of A.N., LLC up until December 2008. He had been placed on short term disability in December 2007 and was placed on long term disability in December 2008, at which time he was no longer considered an employee. He further explained that due to his employer's policies, he had to be out of work for a full year before he was able to be released under long term disability. His long term disability was due to end in 2010. In an unappealed rating decision dated in April 2009, entitlement to a TDIU was denied. In sum, the evidence indicates that the Veteran stopped full time employment in December 2007 due to his service-connected radiculopathy of the upper and lower extremities, that he has not worked since that time, and that he was in receipt of short and long term disability benefits. Further, Dr. Munn stated in her June 2008 letter that the Veteran was unable to continue working due to his neurologic symptoms. In light of this evidence and resolving reasonable doubt in favor of the Veteran, the Board concludes that his service-connected disabilities prevented him from securing and following substantially gainful employment consistent with his education and occupational experience for the period prior to November 23, 2010. Entitlement to a TDIU during that period is, therefore, granted. ORDER Entitlement to an initial 40 percent rating for peripheral neuropathy of the right upper extremity is granted, effective March 24, 2004, subject to governing criteria applicable to the payment of monetary benefits. Entitlement to an initial 30 percent rating for peripheral neuropathy of the left upper extremity is granted, effective March 24, 2004, subject to governing criteria applicable to the payment of monetary benefits. Entitlement to a higher initial rating for peripheral neuropathy of the right lower extremity is denied. Entitlement to a higher initial rating for peripheral neuropathy of the left lower extremity is denied. Entitlement to a TDIU prior to November 23, 2010 is granted, subject to governing criteria applicable to the payment of monetary benefits. ____________________________________________ ERIC S LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs