Citation Nr: 1306603 Decision Date: 02/26/13 Archive Date: 03/01/13 DOCKET NO. 04-16 839A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for service-connected Charcot-Marie-Tooth (CMT) disease with peripheral neuropathy. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) for the period prior to October 13, 2006. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from March 1969 to March 1992. He is the recipient of the Combat Infantryman Badge, Purple Heart, Bronze Star Medal, and Army Commendation Medal with "V" Device. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in May 2003 by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. The Board notes that the Veteran has repeatedly argued that his peripheral neuropathy should be service connected on a presumptive basis as due to Agent Orange exposure. However, his peripheral neuropathy is already service-connected as part of his Charcot-Marie-Tooth disability. The basis for service connection has no impact on how the service-connected disability is evaluated. This case was previously before the Board in January 2010 and in October 2011 when it was remanded for further development. FINDINGS OF FACT 1. Since July 30, 2002, when service connection became effective, the Veteran's CMT has been manifested by muscular dystrophy of the arms and legs. Compensable neuropathy of the right and left lower extremities are rated separately. 2. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the sciatic nerve of the left lower extremity due to CMT. 3. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the sciatic nerve of the right lower extremity due to CMT. 4. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the external popliteal (common peroneal) nerve of the left lower extremity due to CMT. 5. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the external popliteal nerve of the right lower extremity due to CMT. 6. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the internal popliteal (tibial) nerve of the left lower extremity due to CMT. 7. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the internal popliteal nerve of the right lower extremity due to CMT. 8. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the posterior tibial nerve of the left lower extremity due to CMT. 9. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the posterior tibial nerve of the right lower extremity due to CMT. 10. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the musculocutaneous (superficial peroneal) nerve of the left lower extremity due to CMT. 11. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the musculocutaneous nerve of the right lower extremity due to CMT. 12. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the internal saphenous nerve of the left lower extremity due to CMT. 13. Since July 30, 2002, when service connection became effective, there has been moderate incomplete paralysis of the internal saphenous nerve of the right lower extremity due to CMT. 14. From October 2, 2002, the Veteran was unable to sustain gainful employment due to his service-connected disabilities, to include due to his CMT. CONCLUSIONS OF LAW 1. A 30 percent rating for muscular dystrophy is the highest available under that rating code; extra-schedular consideration is not warranted. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a Diagnostic Code 8023 (2012). 2. Prior to February 16, 2012, the criteria for an increased 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the left lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8620 (2012). 3. Since February 16, 2012, the criteria for a rating in excess of 20 percent for moderate incomplete paralysis of the sciatic nerve of the left lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8620 (2012). 4. Prior to February 16, 2012, the criteria for an increased 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the right lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8620 (2012). 5. Since February 16, 2012, the criteria for a rating in excess of 20 percent for moderate incomplete paralysis of the sciatic nerve of the right lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8620 (2012). 6. Prior to February 16, 2012, the criteria for an increased 20 percent rating for moderate incomplete paralysis of the external popliteal (common peroneal) of the left lower extremity due to Charcot-Marie-Tooth disease are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8621 (2012). 7. Since February 16, 2012, the criteria for a rating in excess of 20 percent for moderate incomplete paralysis of the external popliteal of the left lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8621 (2012). 8. Prior to February 16, 2012, the criteria for an increased 20 percent rating for moderate incomplete paralysis of the external popliteal of the right lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8621 (2012). 9. Since February 16, 2012, the criteria for a rating in excess of 20 percent for moderate incomplete paralysis of the external popliteal of the right lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8621 (2012). 10. Prior to February 16, 2012, the criteria for an increased 20 percent rating for moderate incomplete paralysis of the internal popliteal (tibial) of the left lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8624 (2012). 11. Since February 16, 2012, the criteria for a rating in excess of 20 percent for moderate incomplete paralysis of the internal popliteal of the left lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8624 (2012). 12. Prior to February 16, 2012, the criteria for an increased 20 percent rating for moderate incomplete paralysis of the internal popliteal of the right lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8624 (2012). 13. Since February 16, 2012, the criteria for a rating in excess of 20 percent for moderate incomplete paralysis of the internal popliteal of the right lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8624 (2012). 14. Prior to February 16, 2012, the criteria for an increased 10 percent rating for moderate incomplete paralysis of the posterior tibial nerve of the left lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8625 (2012). 15. Since February 16, 2012, the criteria for a rating in excess of 10 percent for moderate incomplete paralysis of the posterior tibial nerve of the left lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8625 (2012). 16. Prior to February 16, 2012, the criteria for an increased 10 percent rating for moderate incomplete paralysis of the posterior tibial nerve of the right lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8625 (2012). 17. Since February 16, 2012, the criteria for a rating in excess of 10 percent for moderate incomplete paralysis of the posterior tibial nerve of the right lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8625 (2012). 18. Prior to February 16, 2012, the criteria for an increased 10 percent rating for moderate incomplete paralysis of the musculocutaneous (superficial peroneal) nerve of the left lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8623 (2012). 19. Since February 16, 2012, the criteria for a rating in excess of 10 percent for moderate incomplete paralysis of the musculocutaneous nerve of the left lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8623 (2012). 20. Prior to February 16, 2012, the criteria for an increased 10 percent rating for moderate incomplete paralysis of the musculocutaneous nerve of the right lower extremity due to CMT are met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8623 (2012). 21. Since February 16, 2012, the criteria for a rating in excess of 10 percent for moderate incomplete paralysis of the musculocutaneous nerve of the right lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8623 (2012). 22. Throughout the pendency of the appeal, the criteria for a compensable rating for moderate incomplete paralysis of the internal saphenous nerve of the right lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8627 (2012). 23. Throughout the pendency of the appeal, the criteria for a compensable rating for moderate incomplete paralysis of the internal saphenous nerve of the left lower extremity due to CMT have not been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.321(b), 4.25, 4.26, 4.124a, Diagnostic Code 8627 (2012). 24. For the period from October 2, 2002, the criteria for the assignment of a TDIU have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102 , 3.340, 3.341, 4.15, 4.16, 4.19 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Proper VCAA notice must inform the claimant of any information and evidence not in the 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. Quartuccio v. Principi, 16 Vet. App. 183, 186 (2002). These notice requirements apply to all five elements of a service connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Proper VCAA notice must be provided to a claimant prior to the initial unfavorable decision on the claim. Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004). The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned rating for his CMT with neuropathy from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for his CMT with neuropathy was granted and an initial rating was assigned in the May 2003 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's service treatment records and post-service VA and private treatment records have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. The Veteran has submitted releases to obtain records from his neurologist Dr. S. In April 2012, the AMC obtained records from Dr. S. identified by the Veteran. The Veteran has also submitted other records from Dr. S. throughout the appeal period. In April 2012, he stated that the 2012 record from Dr. S., obtained by the AMC, was the only outstanding record needed to decide the claim and that all other necessary records from Dr. S. had been provided. When reviewing the Veteran's claim, the Board finds that the records in the file from Dr. S. span different years. Thus, given that the Veteran has submitted relevant records for Dr. S., and the favorable outcome of the appeal, the Board finds that further remand to obtain other possible records from Dr. S. is unnecessary and would not provide further benefit to his claim. The Veteran has also reviewed the Veteran's Virtual VA claims file, to include VA treatment records. The Veteran has also been afforded VA examinations in 2002, 2003, 2007, 2010, and 2012 in order adjudicate his initial rating claim. The Board finds these examinations to be adequate in order to evaluate the Veteran's CMT with neuropathy as they include an interview with the Veteran, a review of the record, and a full physical examination, addressing the relevant rating criteria. Therefore, the Board finds that the examination reports of record are adequate to adjudicate the Veteran's initial rating claim and no further examination is necessary. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the appellant are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, he will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis The Veteran contends that his charcot-marie-tooth disease (CMT) is worse than the current ratings. He contends that the disease greatly interferes with his ability to walk, to carry items of any weight due to his legs giving way and getting tired, and to complete most activities of daily living. He contends that he uses a cane, forearm crutches and ankle/foot orthotic braces due to his lower extremity symptoms. The Veteran's CMT is rated under Diagnostic Code 8099-8023. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). DC 8099 pertains to an unlisted neurological disability. DC 8023 pertains to progressive muscular atrophy, which provides a minimum rating of 30 percent. Governing regulation provides that disability from the following diseases (including progressive muscular atrophy) and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. 38 C.F.R. § 4.124a. Consideration should be afforded to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, and visceral manifestations, referring to the appropriate bodily system of the schedule. Id. A note under Diagnostic Code 8025 further provides that ratings in excess of the prescribed minimum rating may be assigned for ascertainable residuals, and the diagnostic codes utilized as bases of evaluation should be cited in addition to the codes identifying the diagnoses. In other words, a higher rating may be assigned based upon the combined evaluations of the residuals of the Veteran's CMT. The Veteran's major ascertainable residual, neurological damage in the lower extremities, is rated based upon the nerves affected. Diagnostic Codes 8520, 8620, and 8720 provide the rating criteria for paralysis of the sciatic nerve. Mild incomplete paralysis of the sciatic nerve warrants a 10 percent rating. A 20 percent rating requires moderate incomplete paralysis of the sciatic nerve. A 40 percent rating requires moderately severe incomplete paralysis of the sciatic nerve. When there is complete paralysis, the foot dangles and drops, no active movement of the muscles below the knee is possible, and flexion of the knee is weakened or (very rarely) lost. Diagnostic Codes 8521, 8621, and 8721 provide ratings for paralysis of the external popliteal nerve. Mild incomplete paralysis is rated as 10 percent disabling, moderate incomplete paralysis is rated as 20 percent disabling, and severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis of the external popliteal nerve, foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost; abduction of foot lost, adduction weakened, anesthesia covers entire dorsum of foot and toes, is rated as 40 percent disabling. Diagnostic Codes 8522, 8622, and 8722 provide ratings for paralysis of the musculocutaneous nerve. Mild incomplete paralysis is rated as 0 percent disabling, moderate incomplete paralysis is rated as 10 percent disabling, and severe incomplete paralysis is rated as 20 percent disabling. Complete paralysis of the musculocutaneous nerve warrants a 30 percent evaluation where eversion of the foot is weakened. Diagnostic Codes 8523, 8623, and 8723 provide ratings for paralysis of the anterior tibial (deep peroneal) nerve. Mild incomplete paralysis is rated as 0 percent disabling, moderate incomplete paralysis is rated as 10 percent disabling, and severe incomplete paralysis is rated as 20 percent disabling. Complete paralysis of the anterior tibial nerve (deep peroneal nerve), dorsal flexion of foot lost, is rated 30 percent disabling. Diagnostic Codes 8524, 8624, and 8724 provide ratings for paralysis of the internal popliteal (tibial) nerve. Mild incomplete paralysis is rated as 10 percent disabling, moderate incomplete paralysis is rated as 20 percent disabling, and severe incomplete paralysis is rated as 30 percent disabling. A 40 percent rating is warranted for complete paralysis, manifested by lost plantar flexion, frank adduction of the foot impossible, flexion and separation of the toes abolished, inability to move any muscle of the sole of the foot, and, in lesions of the nerve high in the popliteal fossa, lost plantar flexion of the foot. Diagnostic Codes 8527, 8627, and 8727 provide ratings for paralysis of the internal saphenous nerve. A maximum 10 percent rating is warranted for severe to complete paralysis. A noncompensable rating is warranted for mild to moderate paralysis of this nerve. Turning to the evidence of record, VA treatment records reflect that on January 2002 neurological consultation, the Veteran was noted to have a history of lower extremity weakness and low back pain. A January 2002 EMG had shown myotonic discharge at the right gastrocnemius muscle and left anterior tibialis muscle suggestive of myotonia muscular dystrophy. The Veteran reported that he had constant pressure-like pain in both legs. There was no apparent sensory loss. There was bilateral foot drop, worse on the right. His family members had remarked that he had distal lower extremity muscle atrophy in the previous few years. He had muscle cramping in the shoulders, feet, and thighs. It was noted that the Veteran had been evaluated privately in 1998 and there was evidence of diminished muscle reflexes throughout, 1 to trace. Strength and primary sensory examination had been normal. An MRI and x-rays of the lumbar spine had been negative for canal stenosis to account for the symptoms. Physical examination revealed prominent distal tapering of the lower extremity mass, bilaterally, mild extensor digistorum brevis atrophy bilaterally, and equivocal atrophy of the first dorsal interossi muscles, bilaterally. Upper and lower extremity muscle strength was normal to 4+. He was unable to rock back on his heels or stand on his toes. Muscle stretch reflexes was 0 at the Achilles. There was mild decrease in the thermal sensation distal to the knees and minimal decrease in light touch in the toes. There were no reflexes. The impression was possible myotonic dystrophy, but hereditary motor-sensory neuropathy was more likely. In April 2002, the Veteran reported decreased muscular tone in his hands. Bilateral hand grasp was a little weaker than normal. In May 2002, an EMG needle study was interpreted to show a neuronal form of CMT. On September 2002 VA examination, the Veteran reported having weakness in his legs, as well as severe symptoms related to his lumbar spine. He used a cane. His symptoms were precipitated by activity and relieved with rest. His symptoms of back pain were determined to likely be due to degenerative disc disease. In September 2002, the Veteran's VA physician stated that the Veteran had a progressive neuromuscular disease that was untreatable. He was released medically to return to work but had restrictions with regard to lifting, climbing, and bending. He was to work in a sedentary position, with no prolonged walking, standing, pulling, or pushing. The restrictions were permanent and could become more severe in the future. In October 2002, the Veteran's employer stated that upon review of the September 2002 statement, the restrictions could not be met and he was terminated from employment that month. In November 2002, the Veteran's private neurologist stated that the Veteran was able to walk but wore right ankle-foot orthosis. He was on a low dose of Neurotin but still had some pain. She suggested that the dose slowly escalate and that he complete physical therapy. On March 2003 VA examination, the Veteran reported dragging his right foot since 1983. He had also had progressive weakness in the left foot requiring a cane to balance. Physical examination showed loss of right peroneal mass, with the inability to evert the right foot. The assessment was trauma to the right common peroneal nerve resulting in atrophy of the peroneal muscles causing foot drop. On July 2003VA examination, the Veteran was assessed to have left shoulder symptoms of pain and weakness assessed to be related to degenerative joint disease and retained shrapnel. VA treatment records reflect that in November 2003, the Veteran was noted to walk with a cane and to use a right leg brace. On May 2007 VA examination, it was noted that the Veteran's CMT involved all four extremities. He currently wore wrist braces and ankle braces. He had weakness in the upper extremities requiring the use of a cane for prolonged walking. Exposure to cold temperatures caused pain in his hands, as well as numbness, and tingling and cramping in his feet. Physical examination revealed decrease in fine touch sensation in the feet and hands. Deep tendon reflexes were 1+ in all extremities. Grip strength was normal. Muscle strength was 4+/5 in the lower extremities. Muscle strength was 4/5 in the upper extremities. The assessment was paresthesias in the upper and lower extremities. A June 2007 private EMG demonstrated normal sensory conductions in the right and left sural and median nerves. The motor conductions in the right and left peroneal and median nerves were also normal. The impression was an abnormal study indicative of a chronic and active, length-dependant, axonal polyneuropathy. VA treatment records reflect that an April 2009 EMG demonstrated no abnormal muscle fiber potential in the cervical paraspinals or selected muscles in the right upper extremity. The right median and ulnar nerves had normal motor conduction velocities, distal sensory latencies, and normal F wave latencies. There was no indication of cervical radiculopathy but there was a suggestion of mild carpal tunnel syndrome. That same month, the Veteran was fitted for a new wrist brace. He reported slight numbness and tingling since the 1990s. He stated that in the last few months he had pain in his neck that went down to his hand. He had slight numbness and tingling in all fingers. The symptoms worsened when he was driving, working with his arms overheard, or when writing. In October 2009 his muscular dystrophy caused intermittent pain. On March 2010 VA examination, the Veteran reported having foot drop, bilaterally such that he used braces on both sides and walked with a cane. Upper limb examination was completely normal. Muscle tone was normal. Muscle strength and reflexes were normal. Examination of the lower extremities showed weakness of the distal muscles on both sides. Plantar flexors were 4/5 and dorsiflexors were 3/5. He was not able to walk on his tiptoes. He had bilateral foot drop. The muscles of both legs were wasted. He had decreased sensation to pain and touch, as well as vibration in both lower limbs starting from the toes up to the middle of the thigh. Deep tendon reflexes in the lower limbs, the knee jerks, and the ankle jerks were absent. The plantar reflexes were normal. Private treatment records reflect that in April 2010, the Veteran was noted to have carpal tunnel syndrome. He had trouble with fine finger movements. He had intermittent numbness from the left hip to lateral thigh. Overall he was doing well and was satisfied with the pain relief from Darvocet. He had weakness, paresthesias, poor coordination, gait difficulties, and tingling. Muscle strength was normal in the upper extremities. In the lower extremities, muscle strength was 3-5. Muscle tone was decreased in the upper extremities. Reflexes were absent in the lower extremities. Sensory examination showed diminished sensation on pinprick and vibration at the median distribution and to fingertips. Sensory examination in the lower extremities was diminished to ankle and toe. He could not walk on his heels or toes. He had mild problems with tandem walking. His CMT neuropathy was stable. On February 2012 VA examination, it was assessed that there were no abnormal objective physical findings of the cranial nerves related to CMT. With regard to the peripheral nerves, the Veteran reported bilateral lower leg weakness and difficulty walking for several years. He noted parethesias in the left upper thigh. Physical examination showed no pain in the extremities. There was no numbness or paresthesias in the upper extremities, with mild paresthesias and numbness in the lower extremities. Muscles strength was normal in the upper extremities. There was considerable loss of bilateral lower gastrocnemius muscles. Both sides were atrophied. Sensory examination was normal in the extremities. There was loss of extremity hair of the lower extremities showing some trophic changes. His ambulation was abnormal in that he used braces and cane. He had slow propulsion and bent posture. He was observed to walk barefoot with the cane which showed difficulty in that he had a stooped posture to assist in balance, delayed progression of walking, and foot slapping. He used his upper extremities to transfer to the examining table. None of the upper extremity nerves were found to be affected. With regard to the lower extremities, the sciatic nerve, external popliteal (common peroneal) nerve, musculocutaneous (superficial peroneal) nerve, internal popliteal (tibial) nerve, posterior tibial nerve, and internal saphenous nerve were all affected. All of those nerves were assessed to have incomplete paralysis that was moderate in degree, bilaterally. There was remaining effective function in the lower extremities. The Veteran's CMT was noted to cause more of a motor deficit than a sensory deficit. Prior EMGs were reviewed and a new EMG was not indicated. Private treatment records reflect that in June 2012, the Veteran reported having impaired manual dexterity and trouble opening packages. His arms would fatigue if reaching over head for brief periods. His balance was impaired. He had tingling in his legs and they felt like they were on fire. He had pain radiating from his hips to his feet. He had a hand tremor, intermittently. The tingling in his hands was due to his carpal tunnel syndrome. Physical examination was the same or similar to April 2010, with no indication of a resting tremor. Muscle tone was normal throughout. There was atrophy in the lower extremities. In this case, the Board finds that the Veteran's CMT results in residual neurological impairment of the bilateral lower extremities such that separate ratings are warranted aside from the 30 percent rating for muscular atrophy under DC 8023. The 2012 VA examiner identified each nerve affected and determined that the measure of severity was moderate incomplete paralysis. Such findings comport with the record dating back 2002, wherein VA treatment records and VA examinations demonstrate neurological impairment of the peroneal nerve, absent reflexes, foot drop, inability to heel-toe walk, propulsion difficulties without the use of braces and a cane, and muscle atrophy. Thus, the Board finds that the degree of severity of the Veteran's lower extremity neuropathy has remained the same throughout the appeal period, and it was only in 2012 that the nerves affected were precisely identified. Therefore, ratings for moderate incomplete paralysis of the sciatic nerve, external popliteal nerve, musculocutaneous nerve, internal popliteal nerve, posterior tibial nerve, and internal saphenous nerve should be assigned throughout the pendency of the appeal. However, ratings higher than moderate are not warranted for any of these nerves. Significantly, the 2012 examiner determined that the nerves affected were no more than moderate in degree. Once again, that finding comports with the VA and private treatment records which demonstrate that the Veteran is able to ambulate with assistance, experiences minimal sensory disturbance in the legs, feels mild pain as noted on follow-up VA visits, and has some trophic changes such as hair loss. Apart from atrophy, the evidence does not show organic changes. To the extent that the Veteran experiences wasting and degeneration of the muscles of the lower extremities, such is accounted for not only in the moderate neurological ratings but also in the 30 percent rating for muscular dystrophy. Moreover, on 2010 VA examination, muscle strength, sensation, and reflexes were shown to be less severe than on 2012 VA examination. To the extent that the Veteran experiences weakness of grip and tingling in his upper extremities, the Board finds that ratings separate from the 30 percent rating for muscular atrophy are not for application. For one, the Veteran's upper extremity symptoms have been linked to nonservice-connected carpal tunnel syndrome consistently. On 2010 and 2012 VA examinations, sensation, reflexes, and other neurological testing of the upper extremities has been negative for CMT residuals. Neither examiner diagnosed neurological CMT residuals in the upper extremities. For these reasons, the Board does not find that separate compensable ratings are warranted for neurological residuals of the upper extremities. TDIU In order to establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2012). In reaching such a determination, 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 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19 (2012); Van Hoose v. Brown, 4 Vet. App. 361 (1993). The regulatory scheme for a total rating for an award of a TDIU when, due to service-connected disabilities, a Veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, or at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. 38 C.F.R. §§ 3.340, 3.341, 4.16(a)(2012). In exceptional circumstances, where the Veteran does not meet those percentage requirements, a total rating may nonetheless be assigned upon a showing that the individual is unable to obtain or retain substantially gainful employment. 38 C.F.R. § 4.16(b)(2012). The Veteran is currently in receipt of service connection for a lumbar spine disability, posttraumatic stress disorder, residuals of shell fragment wounds to the left shoulder and face, hearing loss, tinnitus, and for CMT with neuropathy as described above. When grouping his CMT with neurological manifestations into one disability and taking into account the bilateral factor, and with the consideration of the additional disabilities, the Veteran meets the percentage criteria for consideration of a TDIU prior to October 13, 2006. In this case, the Veteran stated on his December 2006 application for a TDIU that he worked from 1998 to 2002 as a laborer until he was terminated by his employer due to his CMT and neuropathy on October 1, 2002. His employer submitted a statement that the Veteran's neurological disability prevented continuing employment because his disability restrictions could not be met. Given the severity of the Veteran's CMT and associated neurological deficits, to include an inability to walk unassisted and loss of muscle strength and weakness, the Board finds that the Veteran's TDIU has been shown by the record October 2, 2002, in that the Veteran has been described as having bilateral foot drop and related to neurological deficits since the beginning of the appeal period. Thus, the Board finds that it is appropriate to award the Veteran a TDIU for the period from October 2, 2002. III. Other Considerations The Board has considered whether a higher rating might be warranted for any period of time during the pendency of this appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). An extra-scheduler disability rating is warranted 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 that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. 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 evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation 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 "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected CMT and neurological impairments with the established criteria found in the rating schedule. As discussed in detail previously, the Veteran's symptomatology is fully addressed by the rating criteria under which such disabilities are rated. There are no additional symptoms that are not addressed by the rating schedule. Therefore, the Board finds that rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability. To that extent, the Veteran is able to walk and drive, and, although it remains difficult, he can attend to activities of daily living. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's CMT with neurological impairments may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Therefore, the Board finds that there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). ORDER A rating in excess of 30 percent for muscular dystrophy is denied. Prior to February 16, 2012, an increased 20 percent rating for moderate incomplete paralysis of the sciatic nerve of the left lower extremity is granted. Since February 16, 2012, rating in excess of 20 percent for moderate incomplete paralysis of the sciatic nerve of the left lower extremity is denied. Prior to February 16, 2012, an increased 20 percent for moderate incomplete paralysis of the sciatic nerve of the right lower extremity is granted. Since February 16, 2012, a rating in excess of 20 percent for moderate incomplete paralysis of the sciatic nerve of the right lower extremity is denied. Prior to February 16, 2012, an increased 20 percent for moderate incomplete paralysis of the external popliteal of the left lower extremity is granted. Since February 16, 2012, a rating in excess of 20 percent for moderate incomplete paralysis of the external popliteal nerve of the left lower extremity is denied. Prior to February 16, 2012, an increased 20 percent for moderate incomplete paralysis of the external popliteal nerve of the right lower extremity is granted. Since February 16, 2012, a rating in excess of 20 percent for moderate incomplete paralysis of the external popliteal nerve of the right lower extremity is denied. Prior to February 16, 2012, an increased 20 percent for moderate incomplete paralysis of the internal popliteal nerve of the left lower extremity is granted. Since February 16, 2012, a rating in excess of 20 percent for moderate incomplete paralysis of the internal popliteal nerve of the left lower extremity is denied. Prior to February 16, 2012, an increased 20 percent for moderate incomplete paralysis of the internal popliteal nerve of the right lower extremity is granted. Since February 16, 2012, a rating in excess of 20 percent for moderate incomplete paralysis of the internal popliteal nerve of the right lower extremity is denied. Prior to February 16, 2012, an increased 10 percent rating for moderate incomplete paralysis of the posterior tibial nerve of the left lower extremity is granted. Since February 16, 2012, a rating in excess of 10 percent for moderate incomplete paralysis of the posterior tibial nerve of the left lower extremity is denied. Prior to February 16, 2012, an increased 10 percent for moderate incomplete paralysis of the posterior tibial nerve of the right lower extremity is granted. Since February 16, 2012, a rating in excess of 10 percent for moderate incomplete paralysis of the posterior tibial nerve of the right lower extremity is denied. Prior to February 16, 2012, an increased 10 percent rating for moderate incomplete paralysis of the musculocutaneous nerve of the left lower extremity is granted. Since February 16, 2012, a rating in excess of 10 percent for moderate incomplete paralysis of the musculocutaneous nerve of the left lower extremity is denied. Prior to February 16, 2012, an increased 10 percent for moderate incomplete paralysis of the musculocutaneous nerve of the right lower extremity is granted. Since February 16, 2012, a rating in excess of 10 percent for moderate incomplete paralysis of the musculocutaneous nerve of the right lower extremity is denied. A compensable rating for moderate incomplete paralysis of the internal saphenous nerve of the right lower extremity is denied. A compensable rating for moderate incomplete paralysis of the internal saphenous nerve of the left lower extremity is denied. For the period from October 2, 2002, a TDIU is granted. ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs