Citation Nr: 1330308 Decision Date: 09/20/13 Archive Date: 09/25/13 DOCKET NO. 04-08 962 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUES 1. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the left lower extremity. 2. Entitlement to an initial evaluation in excess of 10 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Appellant represented by: Kathy A. Lieberman, Attorney at Law ATTORNEY FOR THE BOARD Paul S. Rubin, Counsel INTRODUCTION The Veteran had active service in the U.S. Army from December 1963 until November 1965. This matter comes before the Board of Veterans' Appeals (Board) from January 2003 and July 2005 rating decisions of the Department of Veterans Affairs (VA), Regional Office (RO) in San Juan, Puerto Rico. This case was previously before the Board in October 2007, at which time the Board issued a decision denying the current three claims at issue, as well as several other claims. The Veteran did not contest the Board's denial of the claims for increased ratings for diabetes mellitus and a depressive disorder. However, the Veteran appealed the Board's decision to deny the current three claims at issue to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a June 2008 Order and Joint Motion, the Court vacated the Board's decision as to the right and left lower extremity peripheral neuropathy and TDIU issues and remanded these issues to the Board to provide adequate reasons and bases for its findings. Specifically, the Court pointed out that the Board misapplied the case of Mittleider v. West, 11 Vet. App. 181, 182 (1998), in that the Board attempted to differentiate between symptomatology of the Veteran's service-connected peripheral neuropathy as the result of service-connected diabetes vs. his nonservice-connected neuropathy due to degenerative disc disease of the low back, in the absence of medical evidence specifically making this distinction. The Court also noted that his TDIU claim was inextricably intertwined with his increased rating claims for peripheral neuropathy, and must be vacated and remanded as well. Upon return from the Court, in October 2008 and July 2009, the Board remanded the case to the Appeals Management Center (AMC), in Washington, D.C., for further development in accordance with the Court's instructions. After completion of this development, the case has now returned to the Board for further disposition. A review of the Virtual VA paperless claims processing system and the Veterans Benefits Management System (VBMS) reveals additional, pertinent VA treatment records dated from 2009 to 2013. The RO did not have the opportunity to review these additional records when readjudicating the present claims on appeal. In addition, these records are not accompanied by a waiver of RO consideration. However, since the Board is granting the benefits sought on appeal - entitlement to a TDIU and increased ratings for peripheral neuropathy to both feet, the veteran is not prejudiced by the Board's initial consideration of this evidence. See 38 C.F.R. § 20.1304(c) (2012). See also Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). FINDINGS OF FACT 1. The evidence of record demonstrates "moderate" peripheral neuropathy in the lower extremities, associated with the service-connected diabetes mellitus. 2. As of March 9, 2004, the Veteran has following service-connected disabilities: depressive disorder, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; erectile dysfunction, rated as 0 percent disabling; and diabetic nephropathy, rated as 0 percent disabling. With consideration of the bilateral factor, as of March 9, 2004, the combined service-connected disability rating is 70 percent, meeting the schedular percentage criteria for TDIU for a single disability of common etiology (under the combined rating table). 3. With regard to a TDIU, there is an approximate balance of favorable and unfavorable evidence insofar as whether the combination of the Veteran's service-connected disabilities prevent him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria are met for a higher initial disability rating of 20 percent, but no greater, for peripheral neuropathy of the left lower extremity. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2012). 2. The criteria are met for a higher initial disability rating of 20 percent, but no greater, for peripheral neuropathy of the right lower extremity. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.120, 4.123, 4.124a, Diagnostic Code 8520 (2012). 3. Resolving all reasonable doubt in his favor, the criteria for entitlement to TDIU are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.1, 4.3, 4.16, 4.19, 4.25, 4.26 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist With regard to the TDIU issue on appeal being granted, review of the claims folder reveals compliance with the Veterans Claims Assistance Act of 2000 (VCAA), 38 U.S.C.A. § 5100 et seq. See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The duty to notify for the TDIU issue was accomplished by way of VCAA letters from the RO to the Veteran dated in January 2005 and March 2009. In any event, if any defect in VCAA notice or assistance is found, such defect is not prejudicial to the Veteran, given the completely favorable disposition of the TDIU issue on appeal. Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). With regard to the remaining higher initial rating issues for peripheral neuropathy of the feet, review of the claims folder also reveals compliance with the VCAA. Specifically, the duty to notify was accomplished by way of VCAA letters sent from the RO to the Veteran dated in September 2002, January 2005, March 2006, and March 2009. These letters satisfied the notification requirements of the VCAA consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) by: (1) informing the Veteran about the information and evidence not of record that was necessary to substantiate his initial service connection and subsequent higher initial rating claims; (2) informing him about the information and evidence the VA would seek to provide; and (3) informing him about the information and evidence he was expected to provide. See also Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). In addition, the March 2006 and March 2009 VCAA letters provided the Veteran with notice of the type of evidence necessary to establish a disability rating and effective date. Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). Moreover, the increased rating issues for peripheral neuropathy of the lower extremities arise from disagreement with the initial evaluation following the grant of service connection in a January 2003 rating decision. Both the Court and the Federal Circuit Court of Appeals (Federal Circuit Court) have held that, once service connection is granted the claim is substantiated, additional VCAA notice is not required, and any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). See also VAOPGCPREC 8-2003 (December 22, 2003). In summary, the Veteran has received all required VCAA notice in this case. With regard to the timing of notice, VCAA notice should be provided to a claimant before the initial unfavorable rating decision on a claim. Pelegrini II, 18 Vet. App. at 120 (2004). In the present case, the Board notes that the RO did not provide the Veteran with all VCAA notice prior to the January 2003 rating decision on appeal. But in Pelegrini II, the Court also clarified that, in these situations, VA does not have to vitiate that decision and start the whole adjudicatory process anew, as if that decision was never made. Id. Rather, VA need only ensure the Veteran receives (or since has received) content-complying VCAA notice, followed by readjudication of his claims, such that he is still provided proper due process. In other words, he must be given an opportunity to participate effectively in the processing of his claims. The Federal Circuit Court has further held that a Statement of the Case (SOC) or Supplemental SOC (SSOC) can constitute a "readjudication decision" that complies with all applicable due process and notification requirements if adequate VCAA notice is provided prior to the SOC or SSOC. Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV). In fact, as a matter of law, VA may cure a timing of notice defect by taking proper remedial measures, such as issuing a fully compliant VCAA notice followed by readjudication, to include a SOC or SSOC. See also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). In the instant case, the timing error was cured. After providing additional VCAA notice on multiple occasions, the RO readjudicated the higher initial rating claims in SSOCs, to include the most recent May 2010 SSOC. Thus, the timing defect in the notice has been rectified. Prickett, 20 Vet. App. at 376; see also Shinseki v. Sanders, 556 U.S. 396 (2009) (an error in VCAA notice should not be presumed prejudicial and the burden of showing harmful error rests with the party raising the issue, to be determined on a case-by-case basis). With respect to the duty to assist, the RO has obtained the Veteran's service treatment records, VA inpatient and outpatient treatment records, and private medical evidence, as identified and authorized by the Veteran. For his part, the Veteran has submitted personal statements, argument from his representative, private medical evidence, and duplicate medical records. He has not identified any additional, outstanding evidence that is relevant to his claims being decided herein. The Board emphasizes that the Veteran is represented by an attorney as well. The Veteran was also afforded VA examinations in December 2001, December 2002, June 2005, and November 2008 to ascertain the current severity of his lower extremity peripheral neuropathy disability. The Board finds that the VA examinations obtained in this case are adequate, as they are predicated on a review of the claims file and all pertinent evidence of record as well as on a physical examination and fully address the rating criteria that are relevant to rating the disabilities in this case. The need for a more contemporaneous examination occurs only when the evidence indicates that the current rating may be incorrect or when the evidence indicates there has been a material change in the disability. See 38 C.F.R. § 3.327(a); Palczewski v. Nicholson, 21 Vet. App. 174, 182-83; VAOPGCPREC 11-95 (1995) (a new examination is appropriate when there is an assertion of an increase in severity since the last examination). There is no probative indication that the current evidence is insufficient to evaluate the peripheral neuropathy disability. In this regard, the evidence of record subsequent to the last VA examination, including VA treatment records dated from 2008 to 2013, do not establish a material change in the severity of the Veteran's service-connected disabilities beyond the 20 percent ratings currently being granted. Therefore, a new VA examination to rate the severity of his peripheral neuropathy disability is not warranted by the evidence of record. With regard to the previous October 2008 and July 2009 Board remands, the Board finds that the RO/AMC substantially complied with the Board's remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). See also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance would be required, not strict compliance). Specifically, pursuant to the remands, the AMC provided an SSOC to the Veteran; secured additional VA treatment records; and, afforded the Veteran a VA examination to rate the current extent and severity of his service-connected peripheral neuropathy disability. As such, the RO has substantially complied with the Board's instructions. The Board is therefore satisfied that the RO has provided all assistance required by the VCAA. 38 U.S.C.A. § 5103A (West 2002 & Supp. 2012). Governing Laws and Regulations for Increased Ratings 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. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and coordination of rating with impairment of function. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). VA regulation indicates that the Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). In essence, lay testimony is competent when it regards the readily observable features or symptoms of injury or illness. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331, 1336-37; Layno v. Brown, 6 Vet. App. 465, 469 (1994). Analysis - IR Peripheral Neuropathy The Veteran's peripheral neuropathy of both the right and left lower extremity is currently evaluated as 10 percent disabling for each lower extremity under Diagnostic Code 8520, incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a. The respective 10 percent disability ratings are effective from June 28, 2001 - the date service connection was granted for the underlying type II diabetes mellitus. The Veteran has appealed the January 2003 rating decision that granted service connection with 10 percent ratings assigned for each lower extremity. This could result in "staged ratings" based upon the facts found during the period in question. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). That is to say, the Board must consider whether there have been times since the effective date of his award when his disability has been more severe than at others. Id. Under Diagnostic Code 8520, mild incomplete paralysis of the sciatic nerve, and therefore also neuritis and neuralgia of that nerve, warrants a 10 percent rating; moderate incomplete paralysis warrants a 20 percent rating; moderately severe incomplete paralysis warrants a higher 40 percent rating; and severe incomplete paralysis of the sciatic nerve with marked muscular atrophy warrants a 60 percent rating. With complete paralysis of the sciatic nerve, which warrants an 80 percent rating, the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. 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. When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. 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. 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. Special consideration should be given to any psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull. 38 C.F.R. § 4.120. The words "slight," "mild," "moderate" and "severe" as used in the various diagnostic codes are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The evidence of record supports "moderate" neurological impairment due to peripheral neuropathy, warranting separate, higher initial 20 percent ratings for the right and left lower extremities. 38 C.F.R. § 4.7. Specifically, a December 2001 VA spine examiner noted the Veteran's complaints of numbness, pain, and diminished reflexes in the lower extremities. A December 2002 VA examiner observed bilateral lower extremity numbness, tingling, fatigue, weakness (strength was 4/5), sensory deficit, and diminished reflexes. The Veteran used a crutch. The Veteran was diagnosed with peripheral neuropathy in the lower extremities likely secondary to his service-connected diabetes mellitus. A June 2005 VA examiner recorded bilateral lower extremity weakness, numbness, nocturnal cramps, reduced sensation, diminished reflexes, with "mild to moderate" impairment with activities of daily living and work. The Veteran takes 300mg of gabapentin daily to treat his peripheral neuropathy. A November 2008 VA examiner initially mentioned the Veteran's complaints of numbness and pain in the lower extremities. Testing of the left lower extremity revealed weakness (strength was 4/5). There was a positive left leg raise. The gait was abnormal. Both lower extremities displayed diminished reflexes, decreased vibration and sensation, with "mild to moderate" impairment in activities of daily living. A November 2009 VA pain management note documented "continuous pain" in the feet. A January 2010 VA podiatry consult on Virtual VA documented painful and numb feet and ankles "all the time" due to diabetic neuropathy. The Veteran was ordered special diabetic shoes. Thus, based on the above evidence, separate higher 20 percent ratings are warranted under Diagnostic Code 8520 for "moderate" peripheral neuropathy of the lower extremities. 38 C.F.R. § 4.3. In making this determination, the Board acknowledges that during the course of the appeal, upon remand, the Board has attempted to differentiate between symptomatology of the Veteran's service-connected peripheral neuropathy as the result of service-connected diabetes vs. his nonservice-connected neuropathy due to degenerative disc disease of the low back. When it is not possible through medical evidence to separate the effects of a service-connected condition versus a nonservice-connected condition, 38 C.F.R. § 3.102 requires that reasonable doubt be resolved in the veteran's favor, thus attributing such signs and symptoms to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (citing 61 Fed. Reg. 52,698 (1996)). On this issue, the November 2008 VA examiner assessed that the Veteran's nonservice-connected lumbar spine caused pain and problems with mobility in the lower extremities that were independent from and not related to the service-connected diabetic peripheral neuropathy condition. However, the November 2008 VA examiner provided no rationale for her conclusion. Moreover, in contrast, the December 2002 VA examiner concluded that the Veteran's symptoms of bilateral lower extremity numbness, tingling, fatigue, weakness (strength was 4/5), sensory deficit, and diminished reflexes were from his service-connected diabetic peripheral neuropathy. In the January 2003 rating decision, the RO already service-connected the Veteran for all of his lower extremity symptomatology. Overall, both the service-connected diabetic peripheral neuropathy and the nonservice-connected low back radiculopathy appear to be characterized by overlapping symptomatology that is difficult to medically distinguish. Therefore, reasonable doubt will be resolved in the Veteran's favor, and the Board will attribute all of the lower extremity symptoms described above to the service-connected diabetic peripheral neuropathy. However, the evidence of record does not reflect higher separate ratings above the separate 20 percent ratings assigned for the Veteran's bilateral lower extremity peripheral neuropathy. 38 C.F.R. § 4.7. In other words, the medical and lay evidence of record does not establish manifestations consistent with "moderately severe" or "severe" peripheral neuropathy. The Veteran's lay statements and the medical evidence of record document that there was no atrophy, no abnormal muscle tone or bulk, no complete paralysis, and no foot drop of the lower extremities. Specifically, a December 2001 VA spine examiner found no muscle atrophy in the lower extremities. In fact, another December 2001 VA examiner found no objective evidence of neurological deficits in the lower extremities at that time. VA primary care treatment notes dated in February 2002, June 2002, May 2004, January 2008, April 2009, July 2009, and November 2009 assessed no gross motor or sensory deficit. Tone was adequate, and there were no deformities. A November 2008 VA examiner assessed no atrophy and no abnormal tone. A July 2009 VA pharmacy note reflected only numbness and tingling in the lower extremities, with no other complaints. Overall, such findings do not reflect "moderately severe" or "severe" peripheral neuropathy that could entitle him to higher ratings above 20 percent for both lower extremities. With regard to lay evidence, although the Veteran is competent and credible to describe his bilateral lower extremity peripheral neuropathy symptomatology (see Barr v. Nicholson, 21 Vet. App. 303, 310 (2007)), the lay statements of the Veteran and his attorney do not provide any description of symptoms that would be indicative of ratings above 20 percent for each lower extremity. In fact, the Board's assignment of separate 20 percent ratings in the present case may be somewhat generous. As such, separate initial 20 percent ratings, but no greater, for "moderate" peripheral neuropathy of the lower extremities associated with the Veteran's diabetes mellitus disability are granted. 38 C.F.R. § 4.3. Fenderson Consideration Th separate 20 percent ratings are effective throughout the entire appeal period from June 28, 2001. It is not necessary to "stage" the Veteran's ratings, as his peripheral neuropathy symptoms have been fairly consistent at the 20 percent level for each lower extremity during the course of the appeal. Fenderson, 12 Vet. App. at 126. Extraschedular Consideration Initially, since the neurological rating criteria reasonably describe the claimant's disability level and symptomatology, the Veteran's disability picture is contemplated by the Rating Schedule, such that the assigned schedular evaluation is, therefore, adequate, and no referral is required. Thun v. Peake, 22 Vet. App. 111, 115-116 (2008); VAOPGCPREC 6-96. The evidence fails to show anything unique or unusual about the Veteran's peripheral neuropathy disability that would render the schedular criteria inadequate. There are no additional symptoms due to his peripheral neuropathy that are not addressed by the Rating Schedule. Moreover, to the extent that the Veteran's peripheral neuropathy interferes with his employability and activities of daily life, such interference is contemplated by the separate 20 percent schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10. Generally, the degrees of disability specified in the Rating Schedule are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1; VAOPGCPREC 6-96. See also, Bagwell v. Brown, 9 Vet. App. 337, 338 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The Board is aware of the Court's recent holding that VA's disability-by-disability interpretation of § 3.321(b)(1) was consistent with its statutory and regulatory scheme. Johnson v. Shinseki, No. 10-1785 (Vet. App. Mar. 27, 2013). Thus, the Board does not have to consider the Veteran's other multiple service-connected disabilities on a collective basis when determining whether an extraschedular referral is warranted here. Governing Laws and Regulations for TDIU 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. Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). A TDIU may be assigned 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). 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, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. But for the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Id. Entitlement to a total rating must be based solely on the impact of the veteran's service-connected disabilities on his ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340 , 3.341, 4.16. 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, 529 (1993). For VA purposes, the term "unemployability" is synonymous with an inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91; 57 Fed. Reg. 2317 (1992). Consideration may be given to the veteran's level of education, special training, and previous work experience in arriving at a conclusion. However, individual unemployability must be determined without regard to any nonservice-connected disabilities or the Veteran's advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he can find employment. Van Hoose, 4 Vet. App. at 363. Thus, the Board must evaluate whether there are circumstances in the Veteran's case, apart from any non-service-connected conditions and advancing age, which would justify a TDIU rating. 38 C.F.R. §§ 3.341(a), 4.16(a), 4.19. See Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. Analysis - TDIU Based on the above findings in the present decision, as of March 9, 2004, the Veteran has following service-connected disabilities: depressive disorder, rated as 30 percent disabling; diabetes mellitus, rated as 20 percent disabling; peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; erectile dysfunction, rated as 0 percent disabling; and diabetic nephropathy, rated as 0 percent disabling. The combined service-connected disability rating is 70 percent with consideration of the bilateral factor (under the combined rating table) and all of his disabilities are considered as one single disability due to their common etiology. 38 C.F.R. §§ 4.16(a), 4.25, 4.26. Therefore, as of March 9, 2004, the schedular percentage criteria for TDIU are met. 38 C.F.R. § 4.16(a). Consequently, the only remaining question is whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Id. Throughout the entire appeal period, the evidence of record is mixed with respect to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities for purposes of a TDIU rating. In analyzing the evidence, the Board must determine, as a question of fact, both the weight and credibility of the evidence. Equal weight is not accorded to each piece of evidence contained in a record; every item does not have the same probative value. The Board must account for the evidence which it finds to be persuasive or unpersuasive, analyze the credibility and probative value of all material evidence submitted by and on behalf of a claimant, and provide the reasons for its rejection of any such evidence. See Struck v. Brown, 9 Vet. App. 145, 152 (1996); Caluza v. Brown, 7 Vet. App. 498, 506 (1995); Gabrielson v. Brown, 7 Vet. App. 36, 40 (1994); Abernathy v. Principi, 3 Vet. App. 461, 465 (1992); Simon v. Derwinski, 2 Vet. App. 621, 622 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164, 169 (1991). As to the favorable evidence in support of a TDIU, credible lay statements and argument from the Veteran and his attorney throughout the course of the appeal provide some support for his claim. The Veteran contends that he is unable to handle or secure gainful employment due to his service-connected depressive disorder, diabetes mellitus, and lower extremity peripheral neuropathy disabilities. He alleges that he last worked on a full-time basis in 2001 as a nurse assistant in a nursing home. Previously, he has worked in local government as a citizen's problem coordinator, as a manager of a Gordon's Jewelry store, as a construction worker, as a security guard, and as a book packer. The Veteran indicates that symptoms of his service-connected diabetes mellitus with peripheral neuropathy cause altered gait, difficulty moving, weakness, fatigue, and preclude any physical employment involving sustained exertion. He says he cannot work in any field with heavy, medium, or light exertion. His service-connected psychiatric problems cause memory lapses, lack of motivation, poor concentration, and irritability. The medications he takes to treat his service-connected disorders also precipitate dizziness, nausea, drowsiness, headache, making it difficult to concentrate. He believes that the limits of his education and work experience would hinder both physical and sedentary employment. The Veteran completed high school and one year of college. He is currently 67 years of age. See February 2005 VA Form 21-8940 (Application for Increased Compensation Based on Unemployability); December 2012 VA examination; July 2010 attorney letter; March 2003 Social Security Administration (SSA) Disability determination. As to the favorable evidence in support of a TDIU, in March 2003, the SSA granted disability benefits for lumbar, lower extremity, and mental impairments. Although the SSA considered his lower extremity radiculopathy in the context of his nonservice-connected lumbar spine, the Board has considered this symptomatology to also be caused by his service-connected diabetic peripheral neuropathy. The SSA observed that the Veteran's combination of impairments required frequent treatment and medication. He has an impaired gait and uses an assistive device to ambulate. His depressive disorder precludes skilled or semiskilled functions as well. He cannot perform his past relevant work as light to medium exertion is beyond his residual functional capacity. He acquired certain skills in his past work experience, but considering his narrow residual functional capacity, these skills are not transferable to sedentary type work. In determining that the Veteran was disabled, the SSA considered his functional capacity, education, age, and work experience. While the decision by SSA on a claim before that agency is not controlling with respect to VA's determination on a claim, the SSA's determination regarding the Veteran's unemployability and the reasons for that determination are pertinent for VA purposes. Murincsak v. Derwinski, 2 Vet. App. 363 (1992); Masors v. Derwinski, 2 Vet. App. 181, 187-88 (1992). In this case, the SSA's disability determination provides significant evidence in support of the Veteran's TDIU claim. As to the favorable evidence in support of a TDIU, in a June 2011 VA psychiatric note, a VA psychiatrist assessed that the Veteran "continues" to be unable to work due to his multiple medical conditions, including his service-connected diabetes mellitus, depressive disorder, and diabetic neuropathy. As to the favorable evidence in support of a TDIU, in a May 2008 private treatment letter, Dr. J.D., MD., stated that the Veteran was his patient, suffering from multiple medical conditions. Dr. J.D. opined that the Veteran was disabled and unable to work, in part due to his service-connected diabetes mellitus and diabetic neuropathy, which also worsens the effects of his nonservice-connected lumbar spine and radiculopathy. In short, there is clear, credible, and probative medical and lay evidence in support of the claim for entitlement to TDIU. The Board now turns to evidence of record that is against the award of a TDIU rating. As to the negative evidence against a TDIU award, a November 2008 VA examiner remarked that after a review of the Veteran's history and a physical examination, the Veteran is able to obtain, perform, and secure a job requiring a light or sedentary and/or semi-sedentary type work. For example, he could work as a clerk in an office or answering a telephone. As to the negative evidence against a TDIU award, a December 2009 VA examiner came to a similar conclusion after a review of the Veteran's history and a physical examination. The VA examiner believed that the Veteran's service-connected conditions were stable enough that they did not preclude the Veteran from working. The Board acknowledges that the Veteran appears able to perform certain aspects of daily living. However, the law recognizes that a person may be too disabled to engage in employment, although he or she is fairly comfortable at home or upon limited activity, such as the Veteran in this case. See 38 C.F.R. § 4.10. A Veteran also does not have to prove that he or she is 100 percent unemployable in order to establish an inability to maintain a substantially gainful occupation, as required for a TDIU award pursuant to 38 C.F.R. § 3.340(a). Roberson v. Principi, 251 F.3d 1378, 1385 (Fed. Cir. 2001). The severity of several of the Veteran's nonservice-connected disorders and the Veteran's advancing age (67) are factors that can also affect his ability to work. However, as noted, advancing age and nonservice-connected disorders may not be considered for purposes of assigning a TDIU rating. 38 C.F.R. § 4.19. Although there is also some evidence of record that the Veteran may have simply retired in 2001 due to his advancing age, voluntary retirement does not necessarily show employability and should not be used as the only evidence of employability. Careful consideration has been given here to distinguishing a worsened disability that would now cause unemployability from prior unemployment simply due to retirement. Here, the available evidence has shown that, regardless of the reasons for the Veteran's earlier retirement in 2001, he currently would not be able to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. 38 C.F.R. § 4.16(a). As to nonservice-connected disorders, there is evidence that significant nonservice-connected disorders such as his lumbar spine greatly impact his employability. In any event, even without consideration of the effects of his age and nonservice-connected disorders, the evidence of record clearly shows the Veteran's service-connected disabilities, standing alone, prevent him from securing employment. 38 C.F.R. § 4.16(a), 4.19. See also Blackburn v. Brown, 4 Vet. App. 395, 398 (1993); Van Hoose v. Brown, 4 Vet. App. 361 (1993). As currently codified, VA law defines the "benefit of the doubt" doctrine as: When, after consideration of all evidence and material of record in this case before the Department with respect to benefits under laws administered by the Secretary, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination in the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b). See also 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Based on the foregoing, the Board finds that there is an approximate balance of positive and negative evidence. The contrasting medical and lay evidence of record are all probative. In such situations, the benefit of the doubt is resolved in the Veteran's favor. Therefore, the Board concludes that the Veteran's service-connected disabilities prevent him from securing or following substantially gainful employment. 38 C.F.R. § 4.16. Accordingly, entitlement to a TDIU is granted. In making this determination, the Board emphasizes that in the present case, the TDIU award is based on the combined effects of the Veteran's service-connected diabetes mellitus, diabetic neuropathy, and depressive disorder disabilities, as opposed to any single disability. See Guerra v. Shinseki, 642 F.3d 1046 (Fed. Cir. 2011); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 293 (2008). ORDER An initial 20 percent rating for peripheral neuropathy of the left lower extremity is granted, subject to the laws and regulations governing the payment of VA compensation. An initial 20 percent rating for peripheral neuropathy of the right lower extremity is granted, subject to the laws and regulations governing the payment of VA compensation. Entitlement to a TDIU is granted, subject to the regulations governing the payment of VA monetary benefits ____________________________________________ CHERYL L. MASON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs