Citation Nr: 1324935 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 07-09 422 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the left upper extremity. 2. Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right upper extremity. 3. Entitlement to an initial disability rating in excess of 20 percent for service-connected peripheral neuropathy of the left lower extremity. 4. Entitlement to an initial disability rating in excess of 20 percent for service-connected peripheral neuropathy of the right lower extremity. 5. Entitlement to a total rating based on individual unemployability (TDIU rating) prior to September 4, 2008. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD H. Yoo, Counsel INTRODUCTION The Veteran served on active duty from February 1985 to February 2005. These matters come before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In May 2009, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of this hearing was prepared and associated with the claims file. The Board notes that the issues of entitlement to increased initial evaluation for a disability of the thoracolumbar spine and total disability rating based on individual unemployability (TDIU) were properly developed for appeal. However, the initial increased evaluation for the thoracolumbar spine disability was denied by the Board in a December 2011 decision, while the TDIU claim was granted. As such, the claim for an increased rating for the service-connected thoracolumbar spine disability is no longer in appellate status and will not be addressed below. See generally Grantham v. Brown, 114 F.3d 116 (Fed. Cir. 1997); Barrera v. Gober, 122 F.3d 1030 (Fed. Cir. 1997). With respect to the claim for a TDIU rating, the Board notes that the RO granted an effective date of September 4, 2008. Therefore, under Rice v. Shinseki, 22 Vet. App. 447 (2009), there is an outstanding issue of whether a TDIU rating is warranted prior to September 4, 2008. In this regard, the Veteran filed his initial claim in March 2005, within one year of his February 2005 service discharge. As such, the Board has included this issue on the title page of this decision. Finally, a review of the Virtual VA file associated with the Veteran shows that all evidence contained therein is duplicative or irrelevant to the issues decided herein. The issue of entitlement to service connection for sleep apnea (which was previously denied by the RO in August 2008) has been raised by the record but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. The Veteran's peripheral neuropathy of the left upper extremity involves his minor upper extremity and is manifested by no more than mild incomplete paralysis of the median nerve. 2. The Veteran's peripheral neuropathy of the right upper extremity involves his major upper extremity and is manifested by no more than mild incomplete paralysis of the median nerve. 3. The Veteran's peripheral neuropathy of the left lower extremity is manifested by no more than moderate incomplete paralysis of the sciatic nerve. 4. The Veteran's peripheral neuropathy of the right lower extremity is manifested by no more than moderate incomplete paralysis of the sciatic nerve. 5. The Veteran's service-connected disabilities prevent the Veteran from engaging in a substantially gainful occupation effective February 28, 2005, the day after his discharge from service. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8715 (2012). 2. The criteria for a rating in excess of 10 percent for peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8715 (2012). 3. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 4. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2012). 5. The criteria for a TDIU rating has been met effective February 28, 2005. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. § 3.340, 3.341, 4.15, 4.16 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act of 2000 The VA has a duty to notify and assist claimants in substantiating a claim 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 and 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA 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 in accordance with 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Therefore, no further notice is required for this claim. VA must also make reasonable efforts to assist the Veteran 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. This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that VA has fulfilled its duty to assist the Veteran in making reasonable efforts to identify and obtain relevant records in support of the Veteran's claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The claims file contains the Veteran's service treatment records, service personnel records, VA treatment records, private treatment records, VA examination reports, lay statements from the Veteran, and Social Security Administration records. Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim. As noted in the Introduction above, this claim was previously remanded in August 2009 and December 2011. The Board determined in December 2011 that the VA neurological examination provided to the Veteran in May 2010 did not address all of the requested information. Namely, the Board determined there were four deficiencies: 1) the examiner failed to characterize the Veteran's impairments as either mild, moderate, or severe incomplete paralysis or complete paralysis of the affected nerve; 2) the neurological examination failed to include motor examination of the Veteran's right upper extremity; 3) a sensory examination of the Veteran's left upper extremity was not completed; and 4) the nerve conduction study performed in conjunction with the examination failed to include an assessment of the Veteran's left upper extremity. As such, the Board remanded these issues in December 2011 to provide the Veteran with a new VA examination. The Board notes that the Court has held that "only substantial compliance with the terms of the Board's engagement letter would be required, not strict compliance." See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268) violation when the examiner made the ultimate determination required by the Board's remand). Pursuant to the December 2011 remand, the Veteran underwent a VA Disability Benefits Questionnaire examination of the peripheral nerves conditions in March 2012. The examiner conducted a thorough motor and sensory examination of the Veteran's upper and lower extremities. While the examiner did not conduct a nerve conduction study of the Veteran's left upper extremity as instructed by the Board in December 2011, the examiner completed a severity evaluation of the nerves affected in the upper and lower extremities. This comprehensive evaluation indicated whether there was complete or incomplete paralysis and if incomplete paralysis was identified, whether it was mild, moderate or severe. This study provided the Board with adequate information to rate the Veteran's disabilities. Based on the foregoing, the Board finds that the AMC substantially complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the appellant the right to compliance with its remand orders). The Veteran has been afforded a hearing before a the undersigned Veterans Law Judge (VLJ) in which he presented oral argument in support of his claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c) (2) (2012) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ did not specifically note the bases of the prior determinations or the elements that were lacking to substantiate the Veteran's increased rating claim. The VLJ asked specific questions, however, directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating. The VLJ also sought to identify any pertinent evidence not currently associated with the claims. Accordingly, the Veteran is not shown to be prejudiced on this basis. Finally, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim. As such, the Board finds that no further action pursuant to Bryant is necessary. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007). Importantly, the Board notes that the Veteran is represented in this appeal. See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006). The Veteran has submitted argument and evidence in support of the appeal. Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claims such that the essential fairness of the adjudication is not affected. Consequently, the duty to notify and assist has been satisfied as to the claims now being finally decided on appeal. Smith v. Gober, 14 Vet. App. 227 (2000); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Merits of the Claims Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. Separate Diagnostic Codes identify various disabilities and the criteria for specific ratings for the disabilities. The percentage ratings represent as far as practicably can be determined the average impairment in earning capacity due to a service-connected disability. 38 U.S.C.A. § 1155. The evaluation assigned is determined by comparing the extent to which a Veteran's service-connected disability impairs his ability to function under the ordinary conditions of daily life, as demonstrated by the Veteran's symptomatology, with the schedule of ratings. Id.; 38 C.F.R. § 4.10; see Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Examination reports must be interpreted, and if necessary reconciled, into a consistent picture so that the evaluation rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2. If two disability evaluations are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. However, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). However, as with some of the Veteran's claims on appeal (as in this case), where the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time with consideration given to the propriety of staged ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The benefit of the doubt is given to the Veteran when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the Veteran prevails when the evidence supports his claim or is in relative equipoise but does not prevail when the preponderance of the evidence is against the claim. Id. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment and motor function, trophic changes, or sensory disturbances. 38 C.F.R. § 4.120. Under 38 C.F.R. § 4.124a, disability from neurological disorders is rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. With partial loss of use of one or more extremities from neurological lesions, rating is to be by comparison with mild, moderate, severe, or complete paralysis of the peripheral nerves. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. Note: Combined nerve injuries should be rated by reference to the major involvement, or if sufficient in extent, consider radicular group ratings. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. In rating peripheral nerve disability, 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. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. Neuritis, whether cranial or peripheral, is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.123. The maximum evaluation for neuritis characterized by organic changes such as loss of reflexes, muscle atrophy, sensory disturbances, and constant pain which is at times excruciating is equal to that for severe incomplete paralysis of the nerve. Id. The maximum rating for neuritis not characterized by such organic changes is equal to that for moderately severe incomplete paralysis for the sciatic nerve and moderate severe incomplete paralysis for all other nerves. Id. Neuralgia, whether cranial or peripheral, characterized usually by a dull and intermittent pain also is rated on the scale provided for injury of the nerve involved. 38 C.F.R. § 4.124. The maximum evaluation is equal to that for moderate incomplete paralysis of the nerve. Id. If tic doulourex or trifacial neuralgia is present, however, the rating may equal complete paralysis of the nerve. Id. Partial loss of use of one or more extremities from neurological lesions further is rated by comparison with mild, moderate, and severe incomplete paralysis or complete paralysis of the peripheral nerves. 38 C.F.R. § 4.124a. Although all the evidence has been reviewed, only the most relevant and salient evidence is discussed below. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Upper extremities The Veteran's peripheral neuropathy of the upper extremities was rated under Diagnostic Code 8715, used for rating neuralgia of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8715 (2012). A 10 percent rating is warranted for mild incomplete paralysis of the median nerve of either upper extremity. A 20 percent rating is warranted for moderate incomplete paralysis of the minor upper extremity. A 30 percent rating is warranted for moderate incomplete paralysis of the major upper extremity. A 40 percent rating is warranted for severe incomplete paralysis of the minor upper extremity. A 50 percent rating is warranted for severe incomplete paralysis of the major upper extremity. A 60 percent rating is warranted for complete paralysis of the minor upper extremity with the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angles to palm; flexion of wrist weakened; pain with trophic disturbances. A 70 percent rating is warranted for complete paralysis of the major upper extremity. 38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8615, 8715 (2012). The evidence in this case indicates that the Veteran is right handed. As the Veteran is service-connected for peripheral neuropathy in both upper extremities, for the right arm, the Board will apply the criteria applicable to the major extremity, and for the left arm, the Board will apply the criteria applicable to the minor extremity. 38 C.F.R. § 4.69 (2012). In June 2005, the Veteran underwent a VA neurological examination and a VA examination of his joints. In both examination, the Veteran stated while he experienced weakness and pain in his upper and lower extremities, it was more severe in his lower extremities. An examination of his upper extremities revealed his deep tendon reflexes were 1+ to 2 at the biceps and trace at the brachial radialis. Power in the upper extremities was normal. Treatment records from Blanchfield Army Community Hospital dated March 2008 indicate the Veteran complained of painful neuropathy. A physical examination revealed no focal motor weakness. The touch and position sensation were preserved in the fingers. The examiner acknowledged the Veteran's history of small fiber peripheral neuropathy but noted that he had normal proprioception and touch sensation on all extremities. An April 2008 record indicated the Veteran had a normal nerve conduction study of the bilateral upper extremities. The examiner noted that this study did not explain the Veteran's symptoms of absence of sensation in the hands. In April 2008, the Veteran was afforded a general VA examination where he reported pain, stiffness, swelling, and other symptoms in his wrists, fingers and shoulders bilaterally. A history of paresthesias and numbness in the forearms and hands was noted. The examiner determined there were no problems with the hands bilaterally or flare-ups of hand disease. The deep tendon reflexes of the triceps, biceps, and brachioradialis were 2+, bilaterally, with no motor loss. As previously stated, the Veteran was afforded a VA peripheral neuropathy examination in May 2010. Here the Veteran reported symptoms of weakness, numbness, paresthesias, dysesthesias, and impaired coordination in this hands and fingers, bilaterally. A physical examination revealed there was no functional or clinical impairment of the entire upper extremity, bilaterally. Sensory function testing of the right upper extremity revealed normal vibration, pain, light touch, and position sense. There was no presence of muscle atrophy, abnormal muscle tone or bulk, tremors, tic or other abnormal movements, and the function of any joint was not affected by a nerve disorder. Electromyography and nerve conduction tests were conducted. All results were normal. Finally, pursuant to the December 2011 Board remand, the Veteran was afforded another VA examination on his peripheral nerve conditions. A diagnosis of peripheral neuropathy of the upper extremities, bilaterally, was confirmed. The Veteran did not have constant pain of the upper extremities but did have moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The muscle strength tests indicated normal strength bilaterally for elbow flexion, elbow extension, wrist flexion, and wrist extension. The Veteran's grip and pinch had active movement against some resistance. The Veteran's deep tendon reflexes were normal. A sensory examination revealed normal light touch sensation of the shoulder area, inner and outer forearm, but was decreased for the hand/fingers. The Phalen's sign and Tinel's sign tests for the medial nerve were negative. A severity evaluation for the nerves affected in the upper extremities revealed the Veteran's radial nerve, ulnar nerve, musculocutaneous nerve, circumflex nerve, long thoracic nerve, upper radicular group, middle radicular group, and lower radicular groups were normal. However, the examiner determined that the Veteran had mild incomplete paralysis of the median nerve, bilaterally. The examiner determined that this condition impacts the Veteran's ability to work from the symptoms of pain, numbness, tingling increase upon writing, grasping, prolonged sitting, standing, and walking. The Board notes that the medical evidence indicates that the Veteran has peripheral neuropathy in both the right and left upper extremities, which results in pain, paresthesias, and decreased sensation. There is no evidence, however, of muscle atrophy. The Board therefore finds that the Veteran's peripheral neuropathy of the right and left upper extremities is primarily sensory in nature and compatible with an incomplete paralysis of the median nerve that is mild in degree. Accordingly, the Board finds that a rating in excess of 10 percent is not warranted for either extremity, regardless of whether it is a major or minor extremity. The Board finds no evidence of organic changes, such as muscle atrophy or trophic changes, which would warrant a higher rating or demonstrate more than a mild degree of incomplete paralysis of the median nerve. The Board concludes that the evidence does not demonstrate that the Veteran's peripheral neuropathy of the right upper extremity and the left upper extremity approximates moderate incomplete neuritis, or neuralgia, such that an increased evaluation would be warranted under Diagnostic Codes 8615 or 8715. The evidence demonstrates that the Veteran has some decreased sensation, bilaterally, and essentially normal strength in each upper extremity. Accordingly, the Board finds that the Veteran's peripheral neuropathy of the right upper extremity and peripheral neuropathy of the left upper extremity at most approximates mild incomplete neuritis, or neuralgia of the median nerve, as contemplated by these diagnostic codes. 38 C.F.R. § 4.124a, Diagnostic Codes 8615, 8715. The Board has considered the lay statements of the Veteran that a higher rating is warranted based on the extent of his disabilities, however, irrespective of the Veteran's assertion, the Board finds that the most probative evidence is the objective medical evidence of record which fails to demonstrate that higher ratings are warranted.. As the preponderance of the evidence is against the claim for a rating in excess of 10 percent for peripheral neuropathy of the right upper extremity and the claim for a rating in excess of 10 percent for peripheral neuropathy of the left upper extremity, respectively, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). Lower extremities The RO has rated the Veteran's peripheral neuropathy of the right and left lower extremities under Diagnostic Code 8520 which provides the rating criteria for paralysis of the sciatic nerve. Complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Disability ratings of 10 percent, 20 percent and 40 percent are assignable for incomplete paralysis which is mild, moderate or moderately severe in degree, respectively. A 60 percent rating is warranted for severe incomplete paralysis with marked muscle atrophy. 38 C.F.R. § 4.124a, Diagnostic Code 8520. Turning to the evidence of record, the Veteran was treated at the Blanchfield Army Community Hospital in May 2005 where he reported pain and weakness in his legs and feet. Physical examination revealed his motor strength was normal. He was able to toe walk, heel walk, and perform a deep knee bend. He was reluctant to tandem gait due to stress on his ankles. Sensory examination revealed decreased pinprick and light touch distally over the toes, to the mid dorsum of the feet but normal temperature, joint position, and vibration sensation throughout. The deep tendon reflexes were +2 and symmetrical, including ankle jerks. The gait and stance was normal. The examiner stated there was no evidence of a neurological cause for his symptoms. The Veteran underwent a VA examination in June 2005 where he reported pain and weakness in his feet and ankles. He stated he has trouble walking because of this and falls occasionally. His pain is a 5 on a scale of 10 and often an 8 out of 10 in severity and experiences about two bad days a week. The Veteran is currently treated with numerous pain medications. The examiner noted that the Veteran's workups including EMGs have been normal but still he has been experiencing unexplained weakness in his lower extremities as well as pain in his lower extremities, especially his right ankle and foot. A physical examination revealed normal bulk and muscle tone. Deep tendon reflexes were 2+ at the patella and absent or nearly so at the Achilles. The plantar responses were downgoing. Power in the lower extremities was notable for an inability to sustain forceful contracts sometimes because of pain. This was most notable in the dorsiflexes of the ankles and the extensor hallucis longus. Sensory testing revealed a distal decrease appreciation of pinprick although this was slight. Light touch was well-perceived in the feet. Proprioception was intact and coordination testing was unremarkable. The Veteran's gait was antalgic. The examiner determined that the Veteran had some signs consistent with neuropathy including distal decreased deep tendon reflexes and distal sensory changes although the neurological signs were relatively modest while the symptomatology is severe. The detailed investigations including EMG and nerve conduction studies failed to define a cause for these symptoms. In April 2006, the Veteran's private examiner, Dr. W. J. N., noted a diagnosis of small fiber neuropathy. The sural nerve biopsy was normal. Pain was constant which was more joint-like with no true parathesia but hand numbness was present. The Veteran underwent a general VA examination in April 2008 where the Veteran's neurologic review indicated he had a history of weakness or paralysis where his knees gave way. A physical examination revealed his gait was normal. Musculoskeletal examination revealed his muscle strength in the lower extremities was normal. He had normal coordination with no evidence of sensory loss, and the Babinski sign was negative, bilaterally. The deep tendon reflexes for knee and ankle jerk were 2+, bilaterally. There was no motor loss. Treatment records from Blanchfield Army Community Hospital from March 2008 to May 2008 indicate the Veteran reported painful paresthesias in the feet and legs. The Veteran underwent a nerve conduction study in April 2008 where the left lower extremity was normal. The sensory study of the right lower extremity was limited. The absence of a response to the sural nerve stimulation was due to the sural nerve biopsy done in the past. The examiner noted that this study did not explain the Veteran's symptoms of absence of sensation in the feet. VA treatment record from October 2008 indicated the Veteran's gait is abnormal secondary to peripheral neuropathy. In April 2009, the Veteran reported he has increased pain in his lower extremities. According to the May 2010 VA peripheral neuropathy examination, the Veteran reported weakness, numbness, paresthesias, dysesthesias, and pain in the ankles and toes, bilaterally. A motor examination for the lower right extremity revealed complete muscle strength with no functional or clinical impairment. The sensory function report indicated the Veteran's vibration, pain, light touch, and position sense in the lower extremities was decreased, bilaterally. There was no presence of muscle atrophy, abnormal muscle tone or bulk, tremors, tic or other abnormal movements, and the function of any joint was not affected by a nerve disorder. However, the gait and balance were not normal. Electromyography and nerve conduction tests were conducted. All results were normal. As previously stated, the Veteran underwent another VA examination in March 2012 pursuant to the December 2011 Board remand. The Veteran's diagnosis of peripheral neuropathy of the bilaterally lower extremities was confirmed. The Veteran did not have constant pain of the lower extremities but did have moderate intermittent pain, paresthesias and/or dysesthesias, and numbness. The muscle strength testing indicated normal strength for knee extension, ankle plantar flexion, and ankle dorsiflexion. The Veteran did not have any muscle atrophy. The Veteran's knee and ankle demonstrated normal reflexes. The Veteran's sensory examination revealed normal upper anterior thigh, thigh/knee, and lower leg/ankle. There was however, decreased sensation for light touch in the foot/toes. The Veteran did not have any trophic changes attributable to peripheral neuropathy. His gait was abnormal demonstrated by poor propulsion, and he loses his balance. The Veteran's severity evaluation for the lower extremity nerves shows incomplete mild paralysis of the sciatic nerves, bilaterally. The external popliteal nerve, musculocutaneous nerve, anterior tibial nerve, internal popliteal nerve, posterior tibial nerve, anterior crural nerve, internal saphenous nerve, obturator nerve, external cutaneous nerve of the thigh, and ilio-inguinal nerves were normal, bilaterally. The Veteran reported that he occasionally uses a cane for ambulation. He did not have any other pertinent physical findings, complications, conditions, signs or symptoms The Board notes that the medical evidence as a whole demonstrates that the Veteran's service-connected peripheral neuropathy of the right lower extremity and his peripheral neuropathy of the left lower extremity are no more than 20 percent disabling, respectively, under Diagnostic Code 8520. The evidence of record supports a conclusion that the Veteran has diabetic neuropathy in both the right and left lower extremities, which results in pain and decreased sensation. There is no evidence, however, of decreased strength or muscle atrophy. The objective medical evidence fails to demonstrate the Veteran has symptoms associated with moderately severe incomplete paralysis of any affected nerve. The Board finds that the evidence fails to indicate that the Veteran has moderately severe incomplete paralysis of the sciatic nerve of the right lower extremity and left lower extremity as required for 40 percent ratings, respectively, under Diagnostic Code 8520. The Board has also considered rating the Veteran's service-connected peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity under a different Diagnostic Code, but finds none that may be assigned on the facts of record or which would avail the Veteran of a higher disability rating. As the preponderance of the evidence is against the claim for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity and the claim for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity, respectively, the benefit-of-the-doubt rule does not apply, and the claims must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet.App. 49 (1990). TDIU Rating The Veteran was discharged from service on February 27, 2005. Since that time the Veteran has not been engaged in a substantially gainful occupation. The Veteran claims that his service-connected disabilities, to include his service-connected upper and lower extremities disability, prevent him from being able to engage in a substantially gainful occupation. A claim for an increased rating, encompasses a claim for a TDIU rating. See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the Board will adjudicate this issue below. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. 38 U.S.C.A. § 1155 (West 2002). Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). Total disability may or may not be permanent. Id. A total disability rating for compensation purposes may be assigned on the basis of individual unemployability - that is, when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one such disability, it must be rated at 60 percent or more; 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. Id. Disabilities of one or bother upper extremities, or of one or both lower extremities including the bilateral factor, if applicable is considered one disability. As such, the Veteran's service-connected lower extremity disabilities, rated 20 percent each, meets the criteria for a single disability rated 40 percent. In other words, he has one disability rated as 40 percent disabling. In evaluating a veteran's employability, consideration may be given to his level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or impairment caused by non service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. "Substantially gainful employment" is that 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). As further provided by 38 C.F.R. § 4.16(a), "[m]arginal employment shall not be considered substantially gainful employment. In this case, the veteran contends he is unable to maintain substantially gainful employment due to his service-connected disabilities. The veteran is service-connected for a back disability, atonic hypotonic contractile bladder, a psychiatric disorder, progressive peripheral idiopathic polyneuropathy of the right and left lower extremity, progressive peripheral idiopathic polyneuropathy of the right and left upper extremity, tinnitus, status post subacromial bursectomy and resection of the right distal clavicle (right shoulder disorder) and hypertension. He has a combined service-connected rating of 80 percent from February 2005 and 90 percent effective from April 2008. As stated above, he meets the scheduler criteria for TDIU under 38 C.F.R. § 4.16(a). That said, in order for the veteran to be entitled to TDIU, the record must still establish that he is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. See 38 C.F.R. § 4.16(a). The veteran served in the military for 20 years as an electronics technician. He reported completing 4 years of college. He related that he had training, education and experience in micromini repair, fiber optic and cable repair. He reports that he was also an inspector and technical instructor. He also reports working in fire control. He related that due to his service-connected disability that he could not sit, stand or walk for very long and that he had to spend most of his time in bed. See, the Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) dated in May 2006 and October 2008. His DD 214 Form shows that his military occupational specialty (MOS) included the following: advanced tomahawk weapon control system operator and maintenance technician; Tomahawk weapon system maintenance technician, miniature/micro-miniature electronic repair inspector and instructor. The Veteran retired from the military due to disability. See DD 214 Form. He testified at the May 2009 Travel Board hearing that during the last year of his military service, he did not work due to medical disability and that he had not worked since being discharged from service. During his hearing, the Veteran reported that he was granted Social Security Disability benefits due to disability which included his service-connected arms, legs and back, as well as nonservice-connected leukemia and that this award was granted effective from his discharge from service. An April 2009 SSA decision confirms that the Veteran was awarded benefits from February 2005. It was found that he had severe impairments which included peripheral polyneuropathy, myelogenous leukemia and depression. The records show that the Veteran takes pain medication for his back disability, as well as for his service-connected upper and lower polyneuropathy. The Veteran reported that his illnesses, injuries or conditions affected the following: lifting, squatting, bending, standing, reaching, walking, sitting, kneeling, talking, hearing, stair climbing, seeing, memory, completing tasks, concentration, understanding (sometimes), following instructions, using hands and getting along with others. The Board finds that the Veteran is competent to state the difficulties he has as a result of his service-connected disabilities. The Board finds his assertion that his service-connected back and lower extremity disability prevents him from being able to stand, sit, or walk for a significant period of time to be credible. The record shows that he has pain and weakness in the lower and upper extremities and that he also experiences back pain. The Veteran reports that he takes medication for these impairments and he has offered credible testimony that the medication caused some cloudiness of [thought] and made it difficult for him to concentrate. The Board finds that the Veteran's physical limitations caused by the service-connected upper and lower extremity polyneuropathy and back disabilities, in connection with his other service-connected disabilities, to include his psychiatric impairment, prevents all forms of a substantially gainful occupation effective from February 28, 2005. As such, the Board finds that the criteria for a TDIU rating have been met, effective from February 28, 2005. Extraschedular Consideration The Board finds that the Veteran's peripheral neuropathy in the upper and lower extremities, bilaterally, does not warrant referral for extraschedular consideration. In exceptional cases where schedular ratings are found to be inadequate, consideration of an extraschedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extraschedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran's disability picture is adequately contemplated by the rating schedule. Id. If not, the second step is to determine whether the claimant's exceptional disability picture exhibits other related factors identified in the regulations as "governing norms." Id; see also 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Board finds that the evidence does not warrant referral of the Veteran's claims for extraschedular consideration. The level of severity of peripheral neuropathy for the upper and lower extremities, bilaterally, is adequately contemplated by the applicable diagnostic criteria. The criteria provide for a higher rating, but as has been thoroughly discussed above, the ratings assigned herein are appropriate. Here, the Veteran has described symptomatology involving pain, weakness and numbness, which fit appropriately with the criteria found in the relevant Diagnostic Codes for the disability at issue. Therefore, the threshold factor for extraschedular consideration under step one of Thun has not been met, and the Board need not reach the second step of the Thun analysis, that is, whether the disability picture is exceptional. As the disability picture is contemplated by the Rating Schedule, the CONTINUE ON THE NEXT PAGE assigned schedular rating is, therefore, adequate. Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the left upper extremity is denied. Entitlement to an initial disability rating in excess of 10 percent for service-connected peripheral neuropathy of the right upper extremity is denied. Entitlement to an initial disability rating in excess of 20 percent for service-connected peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial disability rating in excess of 20 percent for service-connected peripheral neuropathy of the right lower extremity is denied. A TDIU rating is granted effective February 28, 2005. ____________________________________________ K. OSBORNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs