Citation Nr: 1304523 Decision Date: 02/07/13 Archive Date: 02/19/13 DOCKET NO. 09-42 401 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin THE ISSUES 1. Entitlement to an initial rating in excess of 40 percent for the service-connected diabetic peripheral neuropathy of the left upper extremity. 2. Entitlement to a total disability rating by reason of individual unemployability (TDIU) by reason of service-connected disability prior to October 30, 2009. REPRESENTATION Appellant represented by: Wisconsin Department of Veterans Affairs ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from October 1969 to February 1972. This matter initially came before the Board of Veterans' Appeals (Board) on appeal from a rating decision of the RO. The Board previously remanded the case for additional development in June 2011 and has now been returned to the Board for appellate disposition. It is noted that the Veteran was assigned a schedular 100 percent rating effective on October 30, 2009. FINDINGS OF FACT 1. The symptoms of the service-connected diabetic peripheral neuropathy of the left upper extremity alone are not shown to result in more than moderate incomplete paralysis of the lower radicular group of the Veteran's dominant extremity. 2. Beginning on April 29, 2007, the Veteran was service connected for coronary artery disease, status post angioplasty with stent placement associated with type 2 diabetes mellitus, rated as 30 percent disabling; type 2 diabetes, rated as 20 percent disabling; diabetic neuropathy of the right lower extremity, rated as 10 percent disabling; and diabetic neuropathy of the left lower extremity, rated as 10 percent disabling. His combined disability rating was 60 percent. 3. The Veteran is shown to have last worked at substantially gainful employment in July 2007. 4. Beginning 29, 2008, the Veteran was determined to be service connected for coronary artery disease status post angioplasty with stent placement associated with type 2 diabetes mellitus, rated as 30 percent disabling; adjustment disorder with depressed mood associated with type 2 diabetes, rated as 50 percent disabling; diabetic neuropathy of the left upper extremity rated as 40 percent disabling; diabetic neuropathy of the right upper extremity rated as 30 percent disabling; diabetic neuropathy of the left lower extremity rated as 20 percent disabling; diabetic neuropathy of the right lower extremity rated as 20 percent disabling; type 2 diabetes mellitus, rated as 20 percent disabling; and erectile dysfunction, rated at no percent. His combined disability rating was 90 percent. 4. For the period of the appeal beginning in August 2007, the Veteran is shown as likely as not to have been precluded from securing and following substantially gainful employment consistent with educational and occupational background due to his service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for the assignment of an initial rating in excess of 40 percent for the service-connected diabetic neuropathy of the left upper extremity are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2011); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.124a including Diagnostic Code 8512 (2012). 2. The criteria for the assignment of a TDIU rating were met beginning in August 2007. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims and Assistance Act of 2000 (VCAA) describes VA's duties to notify and assist claimants with substantiating their claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. § 3.102, 3.156(a), 3.159. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant of any information, and any medical or lay evidence, that is necessary to substantiate his or her claim. 38 U.S.C.A. § 5103(a), 38 C.F.R § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183, 186-187 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. The Board notes that 38 C.F.R. § 3.159 was revised in part, effective May 30, 2008. See 73 Fed. Reg. 23,353-23,356. The third sentence of 38 C.F.R. § 3.159(b)(1), which stated that "VA will also request that the claimant provide any evidence in the claimant's possession that pertains to the claim," was removed. This amendment applies to all applications pending on, or filed after, the regulation's effective date. VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Pelegrini v. Principi, 18 Vet. App. 112, 115 (2004). However, the VCAA notice requirements may be satisfied notwithstanding defects in the timing or content of the notice if such are not prejudicial to the claimant. Id at 121. Further, a defect in the timing of the notice may be cured by sending proper notice prior to a re-adjudication of the claim. Mayfield v. Nicholson, 444 F.3d 1328, 1333-1334 (Fed. Cir. 2006). The VA General Counsel issued a precedential opinion interpreting Pelegrini as requiring the Board to ensure that proper notice is provided unless it makes findings regarding the completeness of the record or other facts that would permit the conclusion that the notice error was harmless. See VAOGCPREC 7-2004. The United States Court of Appeals for the Federal Circuit reaffirmed the importance of proper VCAA notice in Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). Mayfield and its progeny instruct that a comprehensive VCAA letter, as opposed to a patchwork of other post-decisional documents, is required to meet the VCAA's notification requirements. Id at 1320. However, VCAA notification does not require a pre-adjudicatory analysis of the evidence already contained in the record. See, e.g. Mayfield v. Nicholson, 20 Vet. App. 537, 541 (2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), aff'd sum nom Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice requirements are applicable to all five elements of a service connection claim. Thus, the Veteran must be notified that a disability rating and effective date for the award of benefits will be assigned if service connection for a claimed disability is awarded. Id at 486. In June 2007, prior to the appealed from rating decision, the Veteran was sent a letter that explained how VA could assist him with gathering evidence in support of his claims. The June 2007 letter also explained what the evidence needed to show in order to establish entitlement to a TDIU rating and explained how VA assigns ratings and effective dates for service connected disabilities. In May 2008, prior to the appealed rating decisions, the Veteran was sent another letter that explained how VA could help him obtain relevant evidence. The May 2008 letter also explained the criteria necessary to establish service connection for a claimed disability, what the evidence needed to show in order to establish entitlement to a TDIU rating, and how VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim for a higher rating for the service-connected peripheral neuropathy of the left upper extremity is a downstream issue from his claim of service connection for that disability. The RO granted service connection for left radial nerve neuropathy and assigned a noncompensable rating in a December 2008 rating decision. The Veteran then filed a Notice of Disagreement arguing that he should have received a higher rating. In October 2012, the RO increased the rating to 40 percent, effective the date of claim. However, this increase did not satisfy the Veteran, who is seeking a still higher rating. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003. In this precedential opinion, the General Counsel held that, although VA was required to issue a Statement of the Case (SOC) if the downstream issue was not resolved, 38 U.S.C.A. § 5103(a) did not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. The Veteran was sent an SOC addressing the appropriate rating for his peripheral neuropathy of the left upper extremity in September 2009. He was also sent Supplemental Statements of the Case (SSOCs) addressing this issue, most recently in August 2012. VA also must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. In connection with the current appeal, VA has of record evidence including service treatment records, VA treatment records, records of a Social Security Administration (SSA) decision granting the Veteran benefits, and the Veteran's submissions regarding his employment status. He was afforded appropriate VA examinations to determine the severity of his left upper extremity peripheral neuropathy. In September 2008 the Veteran was afforded an examination addressing his employability. However, it was inadequate because it did not consider the effects of all of the service connected disabilities. A subsequent examination in August 2010 also addressed employability at that time. The inadequacy of the September 2008 examination does not affect the fairness of the adjudication because, prior to August 2007 the Veteran reported actually being employed so his service-connected disabilities could not have prevented employment. . For these reasons, the Board finds that there were no prejudicial VCAA errors in this case. Initial Rating The Veteran contends that the symptoms of his left upper extremity peripheral neuropathy are more severe disabling that the currently assigned 40 percent rating reflects. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating 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 cases, such as this one, in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). See also Hart v. Mansfield, 21 Vet. App. 505 (2007). The service-connected peripheral neuropathy of the left upper extremity is rated pursuant to 38 C.F.R. § 4.124a, diagnostic code 8512. A 40 percent rating applies for moderate incomplete paralysis of the lower radicular group of the dominant extremity or severe incomplete paralysis of lower radicular group the non-dominant extremity. A 50 percent rating applies for severe incomplete paralysis of the lower radicular group of the dominant extremity. A 60 percent rating applies for complete paralysis of the lower radicular group of the non-dominant extremity. A 70 percent rating applies for complete paralysis of the lower radicular group of the dominant extremity. Complete paralysis encompasses all intrinsic muscles of the hand, and some or all of flexors of wrist and fingers paralyzed (substantial loss of use of hand). The term incomplete paralysis indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis of 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. The Veteran was examined with respect to his left upper extremity neuropathy in September 2008. At that time, he reported having pain in his wrists and fingers. His fingertips were numb. He had pain from his elbow to his wrist and a tremor of the left hand that made it difficult to write, eat or pick things up. In the Veteran's left hand he had decreased pinprick from wrist to elbow in a non-anatomic distribution. There was no atrophy of the thenar eminence or decreased grip. A previous EMG showed left upper extremity median and ulnar neuropathy. The examiner was unable to say whether the median neuropathy was related to diabetes. The ulnar neuropathy, which was at least as likely as not related to diabetes mellitus, was an EMG finding only with no clinical symptoms. On his VA Form 9 dated in October 2009 the Veteran reported that he had numbness and pain in his hands. In a February 2009 addendum, a VA examiner explained that the Veteran's left hand tremors were not due to or aggravated by his radial neuropathy as tremors of the extremities were not known to be due to nor aggravated by peripheral neuropathies such as radial neuropathy. The Veteran had another examination in September 2009. The examiner opined that the Veteran did not have a left radial neuropathy, but rather had left ulnar neuropathy that was related to his diabetes mellitus. The Veteran reported that he was left handed and continued to complain of tremors which occurred whenever he was lifting or using his hand. He reported having flare ups of numbness of the hand three to four times a day that lasted for about 15 minutes, with no clear precipitant. Gabapentin helped somewhat. The Veteran felt that his left-handed symptoms interfered with work because he was doing a lot of heavy lifting. An examination of the left hand revealed non-anatomic loss of pinprick and monofilament sensation throughout the left hand and forearm. He had loss of temperature sensation throughout the left hand, but normal vibratory sensation. Tinel's was negative, but Phalen testing was positive. Grip strength and muscle tone were normal. He had some difficulty with actively opposing his thumb to his little finger, but this was easily done passively. Otherwise, he had normal opposition of his fingers to his thumb. The examiner diagnosed left ulnar nerve neuropathy by EMG with no clear evidence of any clinically significant neuropathy on examination. The examiner opined that the sensory abnormalities of the left hand were due to his carpal tunnel syndrome and intention tremor rather than peripheral neuropathy. The Veteran's left upper extremity was again examined in August 2010. At that time, the Veteran reported having numbness and tingling of the left hand from the 4th and 5th digit up to the wrist. There was no pain. The difficulties caused by his unrelated left-handed tremor were noted. It was observed that the Veteran was left handed. There were no problems with grip strength of the left hand. The treatment records indicated that the Veteran had been prescribed Neurontin to help his various peripheral neuropathies with some benefit. However, specific symptoms of his left upper extremity peripheral neuropathy were not discussed. The Veteran was again examined in July 2011. At that time, the Veteran reported having numbness, tingling and weakness of the left hand. He reported having both motor and sensory symptoms. He also reported that his arm below the elbow went completely numb, followed by tingling, followed by resolution back to his normal baseline over the course of minutes. This occurred regardless of whether his elbows were flexed or extended and in both sitting, standing and lying positions. This had occurred six or seven times a day over the last five or six months. Numbness and tingling also occurred at night, and the Veteran reported that he was unable to use his hands when he woke up in the morning due to weakness. He reported that he was unable to move his fingers, but had intact extension and flexion of the wrists and pronation/supination of the arms upon wakening. With respect to motor symptoms, the Veteran reported that his hand was weak and that he had difficulty holding things and would often drop things. Some of his difficulties with motor tasks, such as eating and drinking and writing, were further compounded by his tremor. The Veteran was noted to be left handed. His daughter reportedly had to perform any writing tasks for him since he is unable to write. He reported taking gabapentin for his neuropathy, but this was less effective than in the past. In addition to the numbness and tingling, he reported having baseline numbness and tingling in the palmar aspect of the hand including the fingers. This appeared to involve the radial, median and ulnar nerve distributions. Strength on the left was full with the exception of impaired apposition of the first and fifth digits. There was no focal atrophy. Direct muscle testing of the intrinsic hand muscles and the muscles of the first, second, and fifth digits was full. Finger tapping was within normal limits. The Veteran reported having impaired fine touch on the palmar and volar aspects of the left hand up to the wrist consistent with the involvement of the median, ulnar, and radial nerves. The examiner explained that the Veteran's tremors were not related to his diabetic neuropathy. While the tremor alone was responsible for the shaking and was more clinically significant than the neuropathy, the effects could not be completely separated because they could be similar. The evidence of record does not show more than moderate incomplete paralysis of the Veteran's dominant upper extremity due solely to the service-connected diabetic peripheral neuropathy. For much of the appeal period, his impairment was primarily sensory, consisting of numbness and pain, with preserved grip strength and no thenar atrophy, and it was questioned whether his sensory symptoms were actually related to peripheral neuropathy as opposed to the nonservice- connected carpal tunnel syndrome and essential tremor. While greater subjective weakness was more recently claimed, the direct muscle testing of the intrinsic hand muscles as well as the muscles of the first, second, and fifth digits showed full strength. The Veteran has reported having difficulty holding objects, but his fine motor control was objectively tested to be within normal limits. There was no focal atrophy. To the extent that the Veteran was unable to write and had difficulty performing tasks such as eating and drinking, this is shown to be largely due to his carpal tunnel syndrome and essential tremor of the left hand and not consistent with changes expected due to the diabetic peripheral neuropathy. The totality of the circumstances show no more than moderate incomplete paralysis of the lower radicular group in this case. The Board also finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 11 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). Incomplete paralysis of the nerves of the left upper extremity are expressly contemplated by the rating schedule. The currently assigned 40 percent rating reasonably addresses the disabling manifestation to the extent that were caused by the service-connected diabetic peripheral neuropathy. The Board acknowledges that VA is statutorily required to resolve the benefit of the doubt in favor of the Veteran when there is an approximate balance of positive and negative evidence regarding the merits of an outstanding issue. That doctrine is inapplicable in the instant case because the preponderance of the evidence is against the Veteran's claim. See, e.g., Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); 38 U.S.C.A. § 5107(b). Accordingly, on this record, an initial rating in excess of 40 percent for peripheral neuropathy of the left upper extremity is denied. TDIU The Veteran filed his claim for a TDIU rating on April 16, 2007. He claimed that he was unable to work due to the combined effects of his service-connected disabilities. Subsequently, he was granted a schedular 100 percent rating effective on October 30, 2009. A total disability rating for compensation purposes may be assigned where the schedular rating is less than total if the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities, provided that if there is only one such disability, that disability is at least 60 percent disabling, and if there are two or more disabilities, at least one disability is a minimum of 40 percent disabling and there is sufficient additional disability to bring the combined rating to at least 70 percent. 38 C.F.R. § 4.16(a). Additionally it is VA's policy that all Veterans who are unable to follow a substantially gainful employment by reason of service connected disabilities shall be rated totally disabled. Therefore, referral to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of Veterans who are unemployable by reason of service connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a). 38 C.F.R. 4.16(b). A. The period prior to August 2007 At the time the Veteran filed his claim on April 16, 2007, he was service connected for coronary artery disease post angioplasty with stent placement associated with type 2 diabetes mellitus, rated as 30 percent disabling; type 2 diabetes, rated as 20 percent disabling; diabetic neuropathy of the right lower extremity, rated as 10 percent disabling, and diabetic neuropathy of the left lower extremity, rated as 10 percent disabling. His combined disability rating was 60 percent. The SSA disability records also indicated that the Veteran had been determined to be unable to work due to coronary artery disease and diabetes mellitus in December 2006. A "Request for Employment Information in Connection with a Claim for Disability Benefits" was sent to the Veteran's employer to gather more information about his work status. The employer returned the form in June 2007, indicating that the Veteran was still working for them. On a VA From 21-8940 dated in April 2008 the Veteran reported that he worked through July 2007. His last employment was noted to have been in July 2007. Thus, on this record, the Veteran does not meet the criteria for a TDIU rating prior to August of 2007 because he was still working up until that time, notwithstanding his receipt of SSA disability benefits for that period. Beginning on April 29, 2008, the service-connected disabilities were determined to include coronary artery disease status post angioplasty with stent placement associated with type 2 diabetes mellitus, rated as 30 percent disabling; adjustment disorder with depressed mood associated with type 2 diabetes, rated as 50 percent disabling; diabetic neuropathy of the left upper extremity rated as 40 percent disabling; diabetic neuropathy of the right upper extremity rated as 30 percent disabling; diabetic neuropathy of the left lower extremity rated as 20 percent disabling; diabetic neuropathy of the right lower extremity rated as 20 percent disabling; type 2 diabetes mellitus, rated as 20 percent disabling; and erectile dysfunction rated at no percent. His combined disability rating was 90 percent at that time. The VA treatment records from July 2008 reflect that the service-connected diabetes mellitus was poorly controlled. The VA treatment records reflect that the Veteran's activities were significantly curtailed due to his coronary artery disease, although the specific restrictions were not explained. Exertional chest pain was noted, although there was no chest pain at rest. A VA examination report in December 2009 referenced a nuclear stress test in 2007 showing a left ventricular ejection fraction of 70 percent at rest and 58 percent following adenosine stress. This report also indicated that the Veteran had exercised to 5.6 METS in 2006 and was presently unable to undergo a stress test due to pseudoclaudication. It was estimated that his heart condition limited him to 5 METS at that time. A September 2008 mental health evaluation indicated that the Veteran's psychiatric condition caused significant work deficiencies. The examiner was of the opinion that the Veteran's physical limitations caused "notable restrictions in all fields of labor." The Veteran reported that he could not stand or sit for long periods of time, had ongoing pain in his arms and legs, and resultantly the examiner found that he had become increasingly depressed with notable cognitive impairments, such as concrete thinking, inability to analyze, poor memory, and inability to follow detailed instructions. A September 2008 medical opinion indicated that the service-connected disabilities would have a minimal impact on most occupations. However, that examiner did not consider the effects of the Veteran's heart disorder or the bilateral lower extremity neuropathies. A February 2009 occupational therapy report indicated that the Veteran might be capable of light to medium work, although the basis for that conclusion was not explained and it was unclear if it contemplated the effects of all of the Veteran's service-connected physical and psychiatric disabilities. On his VA From 9 dated in October 2009, the Veteran reported that he had difficulty standing due to his lower extremity peripheral neuropathy, and complained that any exertion caused shortness of breath due to his coronary artery disease. A VA examination was performed in August 2010, although the Veteran already had been assigned a schedular 100 percent rating at that time. It was noted that, since September 2008, he indicated more anginal chest discomfort with even minimal activity. He had increasing shortness of breath and dyspnea on exertion with less and less activity such as climbing a few steps and got short of breath and developed angina with routine activities of daily living such as getting dressed or bathing. The Veteran reported worsening numbness in his lower extremities over the past one to two years, so that he could not stand because he felt total numbness in his legs and then his legs would give out and he would fall. The numbness went from the toes to the thighs. He also described numbness and tingling of the left hand of the fourth and fifth digit up to the wrist, although his limitations with his left hand were also affected by an unrelated tremor. The examiner noted that all of the Veteran's worsening disabilities contributed to his inability to work and that he had little capability of performing even basic activities of daily living around his own home or mobility around his home or holding down even a sedentary job. Where a Veteran meets the schedular criteria for consideration of unemployability under 38 C.F.R. § 4.16(a), the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The sole fact that a Veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. Rather, the question is whether the Veteran is capable of performing the physical and mental acts required by employment. To make this determination, the Veteran's level of education and previous work experience may be considered, but not his age or any impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). 'Substantially gainful employment' is employment "which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the Veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). 38 C.F.R. § 4.16(a) states that "[m]arginal employment shall not be considered substantially gainful employment." The Moore court cited the following language from Timmerman v. Weinberger, 510 F.2d 429 (8th Circuit 1975), in which United States Court of Appeals for the Eighth Circuit addressed unemployability in the Social Security disability context: It is clear that the claimant need not be a total 'basket case' before the courts find that there is an inability to engage in substantial gainful activity. The question must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore, 1 Vet. App. at 359 (citing Timmerman, supra at 442). In this case, in extending the benefit of the doubt to the Veteran, he is found to have met the criteria for TDIU rating beginning in August 2007. At that time, the Veteran had notable impairments due to impaired cardiac function causing chest pain and shortness of breath, peripheral neuropathy of the lower extremities that caused difficulty standing, diabetes mellitus that was under poor control. The service-connected disabilities shared a common etiology and combined to a rating of 60 percent with consideration of the bilateral factor. When these conditions were all considered by an examiner in August 2010, the examiner determined that the Veteran was deemed to be unemployable. By the time of the examination, the Veteran's condition had clearly deteriorated so greatly that he was limited in performing even basic activities of daily living at home. It is also notable that SSA had determined that the Veteran's coronary artery disease and diabetes had caused him to be unable to work beginning in December 2006, although the Veteran reported working up to July of 2007. Nonetheless, SSA's determination is accorded probative weight, especially given the lack of an appropriate VA assessment of the occupational effects of all of the Veteran's service-connected disabilities at the relevant time. Considering the service-connected disabilities, the Board finds that, beginning in August 2007, the Veteran as likely as not was significantly limited occupationally to be precluded from performing substantial gainful employment consistent with his educational and work background. Accordingly, on this record, the Board finds that a TDIU rating is assignable beginning in August 2007. ORDER An initial rating in excess of 40 percent for the service-connected peripheral neuropathy of the left upper extremity is denied. A TDIU rating for the period of the appeal beginning in August 2007 is granted, subject to the regulations controlling disbursement of VA monetary benefits. ______________________________________________ STEPHEN L. WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs