Citation Nr: 1604195 Decision Date: 02/04/16 Archive Date: 02/11/16 DOCKET NO. 08-13 074A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the right upper extremity. 2. Entitlement to an increased rating in excess of 20 percent for peripheral neuropathy of the left upper extremity. 3. Entitlement to a total disability rating based on individual unemployablity due to service-connected disabilities (TDIU). 4. Entitlement to an increased rating for service connected diabetes mellitus Type II with hypertension and erectile dysfunction, currently evaluated as 40 percent disabling. REPRESENTATION Veteran represented by: Christopher Loiacono, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Betty Lam, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1969 to September 1972 and from June 1976 to February 1977. These matters come before the Board of Veterans' Appeal (Board) on appeal from the rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In a September 2009 rating decision, the RO proposed severing service connection for peripheral neuropathy of the upper extremities and denied entitlement to a TDIU. In a January 2010 rating decision, the RO severed service connection for peripheral neuropathy of the upper extremities. In July 2012, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge at the RO in Waco, Texas. A transcript of this hearing has been associated with the claims file. In November 2012, the Board restored service connection for peripheral neuropathy of the upper extremities and remanded the claim for a TDIU. In a January 2013 rating decision, the RO implemented the Board's decision and restored service connection for peripheral neuropathy of the upper extremities effective May 1, 2010. In March 2013, the Veteran filed a notice of disagreement with the current evaluation for diabetes mellitus rated at 40 percent and peripheral neuropathy of the "left upper extremity," each rated at 20 percent disabling. The Board notes that the Veteran listed the left upper extremity twice in his notice of disagreement, however it appears that he meant to appeal both the right and left upper extremity. See March 2013 NOD; March 2015 Substantive Appeal. In January 2015, the RO issued a supplemental statement of the case (SSOC) that denied entitlement to a TDIU. In February 2015, the RO issued a statement of the case (SOC) that continued the evaluation of peripheral neuropathy of the right and left upper extremities, each rated as 20 percent disabling. The claim has now returned to the Board for appellate consideration. This appeal was processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The issue of entitlement to an increased rating in excess of 40 percent for service-connected diabetes mellitus, type II is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's right upper extremity radiculopathy associated with his diabetes mellitus is productive of mild, incomplete paralysis of the median and ulnar nerve. 2. Throughout the period on appeal, the Veteran's left upper extremity radiculopathy associated with his diabetes mellitus is productive of mild, incomplete paralysis of the median and ulnar nerve. 3. The Veteran's service-connected disabilities have been shown to prevent him from securing and following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 20 percent for right upper extremity radiculopathy associated with the Veteran's diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8512 (2015). 2. The criteria for an evaluation in excess of 20 percent for left upper extremity radiculopathy associated with the Veteran's diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. Part 4, including §§ 4.7, 4.124a, Diagnostic Code 8512 (2015). 3. The criteria for entitlement to a total disability rating based on unemployability due to service-connected disabilities have been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.25, 4.26 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2015). Proper notice from VA must inform the claimant of any information and medical or lay 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. 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In this decision, the Board grants the Veteran's claim for TDIU. This award represents a complete grant of the benefits sought on appeal. Thus, any deficiency in VA's compliance is deemed to be harmless error, and any further discussion of VA's responsibilities is not necessary. With regards to his claims of entitlement to ratings in excess of 20 percent for service-connected peripheral neuropathy of the right and left upper extremity, the Veteran's appeal arises from disagreement with the January 2013 rating decision that implemented the Board's decision and restored service connection for peripheral neuropathy of the upper extremities effective May 1, 2010. Specifically, the Veteran disagrees with the 20 percent evaluation for his service-connected peripheral neuropathies affecting the left upper and right upper extremities. While the record does not show that the Veteran was provided with additional VCAA notice thereafter, the Board finds no prejudicial error. In connection with the TDIU claim, the Veteran was provided general notice of how VA determines disability ratings and assigns effective dates in a June 2009 letter. Moreover, the Veteran has demonstrated through statements and testimony that he has actual knowledge of the evidence necessary to substantiate a claim for an increased rating. Next, VA has a duty to assist the Veteran in the development of the claims. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's VA and private treatment records, Social Security Administration (SSA) records, and VA examination reports. Additionally, the Veteran was afforded VA examinations in February 2009, August 2009, and December 2014 to evaluate the severity of his service-connected peripheral neuropathy of the upper extremities. The Board finds that the VA examinations are adequate because, as discussed below, they are based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and because they provide detail sufficient to allow the Board to make a fully informed determination. Barr v. Nicholson, 21 Vet. App. 303 (2007) (citing Ardison v. Brown, 6 Vet. App. 405, 407 (1994)). Furthermore, the Veteran has not asserted, and the evidence does not show, that his symptoms have materially worsened since the most recent December 2014 evaluation. See 38 C.F.R. §§ 3.326, 3.327 (reexaminations will be requested whenever VA determines there is a need to verify the current severity of a disability, such as when the evidence indicates there has been a material change in a disability or that the current rating may be incorrect.); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). The Board accordingly finds no reason to remand for further examination. Also, the Board finds no harmful error under Bryant v. Shinseki, 23 Vet. App. 488 (2010). Finally, the Board finds that there was substantial compliance with the November 2012 remand directives. A remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). Nonetheless, it is only substantial compliance, rather than strict compliance, with the terms of a remand that is required. See D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (finding substantial compliance where an opinion was provided by a neurologist as opposed to an internal medicine specialist requested by the Board); Dyment v. West, 13 Vet. App. 141 (1999). For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001). II. Peripheral Neuropathy of the Right and Left Upper Extremities The Veteran is seeking higher ratings for his peripheral neuropathy of the right and left upper extremities. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the most recent evidence is generally the most relevant, as the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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 (2015). 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. 38 C.F.R. § 4.124a (2015). When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. 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. 38 C.F.R. § 4.123 (2015). Diagnostic Code 8511 provides the rating criteria for paralysis of the nerves of the middle radicular group where incomplete paralysis of the major extremity is rated 20 percent when mild, 40 percent when moderate, and 50 percent when severe. A 70 percent rating is warranted for complete paralysis. Complete paralysis contemplates that adduction, abduction, and rotation of the arm, flexion of the elbow, and extension of the wrist is lost or severely affected. 38 C.F.R. § 4.124a. Diagnostic Code 8512 provides the rating criteria for paralysis of the nerves of the lower radicular group, where incomplete paralysis of the major extremity is rated 20 percent when mild, 40 percent when moderate, and 50 percent when severe. A 70 percent rating is warranted for complete paralysis, with all intrinsic muscles of the hand and some or all flexors of the wrist and fingers paralyzed (substantial loss of use of the hand). 38 C.F.R. § 4.124a. The Board notes that the terms "mild," "moderate," "moderately severe," and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6 (2015). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2 , 4.6. The Board has thoroughly reviewed the evidence of record. Private treatment records from the Physician Medicine Associates dated in June 2008 provided that electromyography (EMG) studies were abnormal and suggest left and right median nerve sensory and motor neuropathy at the wrist. The physician also noted a history of chronic neck pain that radiates to the shoulders. The Veteran reported a two year history of hand tingling and numbness that has progressed and he has difficulty flexing the right third digit. The Veteran reported that his thumbs are sore and that he has paresthesia that are significant at night and increase in severity with physical activity and in particular, when he applies a strong grip on different objects. The Veteran denied any trauma except for the accident he had a couple of days ago. The Veteran denies any pain except the trauma of his accident. A physical examination revealed no significant edema or deformities of the hands. The physician observed that a motor examination was difficult to evaluate due to pain with motion. However, a sensory examination showed decreased sensation to pinprick in the first, second, and third digit of both hands. Muscle strength reflexes were found to be "hypoactive" in the upper limbs. A February 2009 VA examination confirmed a diagnosis of peripheral neuropathy of the lower and upper extremities is at least as likely as not secondary to diabetes. The Veteran reported having symptoms of numbness and tingling in his fingers and hands that are exacerbated at night and with excessive physical activity. He also noted decreased grip strength when he grips the steering wheel while driving a bus at work. A physical examination revealed that the Veteran is left handed. A deep tendon reflex examination of the upper extremities revealed normal findings, however, the Veteran was unable to flex his joints completely. A sensory examination revealed decreased sensation to pinprick in the first, second, and third digits of both hands. A July 2009 VA examination report continued to show the Veteran's complaint of difficulty gripping the steering wheel due to stiffness in his fingers. A peripheral nerve examination of the upper extremities revealed numbness and weakened grip. The examiner provided a diagnosis of carpal tunnel syndrome status post hand surgery. A sensory examination to include vibration and light touch revealed normal findings in the fingers. The examiner concluded that the stiffness the Veteran experiences in his fingers is due to osteoarthritis rather than peripheral neuropathy due to diabetes. However, the examiner also found that the Veteran could have peripheral neuropathy secondary to another disorder. In this regard, the examiner found that his obesity is a major limiting factor because it impairs his stamina for anything more than sedentary physical activity. An August 2009 addendum provided that after a review of the Veteran's medical history and July 2009 VA examination, a consensus was reached between Dr. M and Dr. H that the Veteran had neuropathy of the upper extremities related to a previously diagnosed carpal tunnel syndrome and not his diabetes. Based on these findings, a September 2009 rating decision proposed to sever service connection for peripheral neuropathy of the right and left upper extremities. However, in June 2010, the Veteran provided private treatment records from Dr. T.P. in support of his contention that the Veteran had peripheral neuropathy associated with his diabetes. Specifically, a July 2008 private opinion stated a history of intermittent and now progressive numbness, tingling, and pain in both hands that were consistent with carpal tunnel syndrome, but might also be associated with diabetic neuropathy. Subsequently, a January 2011 EMG confirmed the abnormal findings of sensory ulnar nerve neuropathy and "possible peripheral neuropathy" and a private physician opined that the Veteran had both peripheral neuropathy and carpal tunnel syndrome, and the physician also opined that the carpal tunnel syndrome was also a complication of the Veteran's diabetes. A July 2012 private examination report from Dr. L.B.R. provided that the Veteran had diabetic neuropathy that began around 2008. The Veteran currently complained of decreased grip strength and aching discomfort in his forearm and hands, but he denied numbness or paresthesia. The Veteran had difficult holding the steering wheel and the telephone to his ears for more than a few minutes due to pain and weakness in his hands. The Veteran also complained of stiffness and soreness in his hands as well as difficulty making a fist and extending his fingers and palms. A neurological examination revealed a two-point discrimination in the hands while the fingers were found to be normal. A light touch examination of the hands was also found to be normal. The physician concluded that the Veteran had "stiff hand" syndrome, also known as diabetic cheiroarthropathy characteristic of diabetes. The Veteran also had "prayer sign" hands reflected as inability to fully extend the joints of the fingers. He also had finger contractures attributed to excessive dermal collagen and cross links as well as increase dermal hydration resulting in injury to the thickened skin around the joints. A July 2012 diabetes mellitus impairment questionnaire from the Veteran's primary care manager, L.S., noted that the Veteran has "moderate" peripheral neuropathy in the right and upper extremities secondary to his diabetes. However, the clinician provided objective findings to include lower extremity paresthesia, pain, and limited range of motion, without providing any objective findings for the upper extremities. At the July 2012 Board hearing, the Veteran testified that his peripheral neuropathy symptoms consisted of the same burning or heated sensation in his feet and hands. The Veteran reported symptoms of twitching and pain in the forearms, decreased grip strength, finger numbness that are not related to carpal tunnel syndrome. The Veteran testified that his carpal tunnel syndrome resolved after surgery, but the pain and decreased grip in his hands remain due to his diabetes. In a November 2012 decision, the Board restored the Veteran's service connection for peripheral neuropathy of the upper extremities. Most recently, the Veteran was afforded another VA neurological examination in December 2014. The claims file was reviewed and the examiner clearly outlined the Veteran's medical history. The VA examiner found no symptoms of pain, paresthesia and/or dysesthesias in the upper extremities, although "mild" numbness symptoms were found in right and left upper extremities. The Veteran's other symptoms include his reported occasional weakness in the bilateral upper extremities and dropping things at times. A neurological examination, to include strength, deep tendon reflexes, light touch, and vibration sensation all resulted in normal findings for the right and left upper extremities. The examiner concluded that the Veteran has right and left upper extremity diabetic peripheral neuropathy. Specifically, the radial nerve was found to be "normal" while the median nerve was described as "mild" and "incomplete" paralysis. The examiner referenced the July 2011 EMG study which provided abnormal results for the right and left upper extremities. He commented that the EMG suggests mild right and left medial nerve sensory neuropathy that is slightly worse in the left upper extremity. There is no motor involvement in either nerve. The electrodiagnosis evidence is consistent with bilateral sensory ulnar nerve neuropathy and possible peripheral polyneuropathy. The Board finds that the more probative medical evidence of record reflects that the Veteran's peripheral neuropathy of the upper extremities has resulted in disability comparable to no more than mild incomplete paralysis of the lower radicular groups. In so finding, the Board observes that the most recent VA examiner found that the Veteran had no objective evidence of pain, parasthesias and/or dysesthesias in the upper extremities, although "mild" numbness symptoms were found in the right and left upper extremities. The record does reflect a finding of stiffness in the fingers being attributable to osteoarthritis in July 2009, although the July 2012 exam noted that the Veteran had "stiff hand" syndrome, also known as diabetic cheiroarthropathy characteristic of diabetes. Also, the Board recognizes the Veteran's complaints of pain, but pain alone does not necessarily warrant a higher rating; rather, the determinative question is the overall functional impairment caused by the disability. See generally Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Here, after a comprehensive review of the Veteran's medical history and examination findings, the December 2014 VA examiner concluded that the Veteran's upper extremity diabetic peripheral neuropathy was productive of impairment associated with "mild" and "incomplete" paralysis of the median nerve. Although the July 2012 diabetes mellitus impairment questionnaire described that the Veteran had "moderate" peripheral neuropathy of his upper extremities, he provided no objective findings. Thus, the Board cannot find the conclusion of moderate impairment persuasive in regard to the determination of the Veteran's overall impairment associated with his disability. The Veteran has described weakness and decreased grip strength but the probative objective findings show that the resulting impairment is not moderate in degree. It was ultimately determined by the December 2014 VA examiner that there is no motor involvement of the nerves. As such, the Board finds that a rating in excess of 20 percent is not warranted. In so finding, the Board notes that the Veteran is competent to report on symptoms and credible in his belief that he is entitled to a higher rating. His competent and credible lay evidence, however, is outweighed by competent and credible medical evidence that evaluates the true extent of the upper extremity impairment based on objective data coupled with the lay complaints. In this regard, the Board notes that the VA examiners have the training and expertise necessary to administer the appropriate tests for a determination of the type and degree of the impairment associated with the Veteran's complaints, and to provide the requisite information for an evaluation of the disability under the rating schedule. For these reasons, greater evidentiary weight is placed on the VA examination findings in regard to the type and degree of impairment. The above determinations are based upon consideration of applicable provisions of VA's rating schedule. Additionally, the Board finds that there is no showing that, at any pertinent point, the disability under consideration reflected so exceptional or so unusual a disability picture as to warrant the assignment of any higher rating on an extra-schedular basis. See 38 C.F.R. § 3.321. The threshold factor for extra-schedular consideration is a finding on the part of the RO or the Board that the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability at issue are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). See also 38 C.F.R. § 3.321(b)(1); VA Adjudication Procedure Manual, Pt. III, Subpart iv, Ch. 6, Sec. B(5)(c). Therefore, initially, there must be a comparison between the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for this disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned rating is therefore adequate, and no referral for extra-schedular consideration is required. See VAOGCPREC 6-96 (Aug. 16, 1996). Thun v. Peake, 22 Vet. App. 111 (2008). If the rating schedule does not contemplate the claimant's level of disability and symptomatology, and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms" (including marked interference with employment and frequent periods of hospitalization). 38 C.F.R. § 3.321(b)(1). If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step: a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating. See Thun, 22 Vet. App. at 111. In this case, the Board finds that the schedular criteria are adequate to rate the disability under consideration at all pertinent points. The rating schedule fully contemplate the described symptomatology, to include pain, functional impairment, numbness and sensory deficits, and provides for ratings higher than that assigned based on more significant impairment. Notably, there is no medical indication or argument that the rating schedule is inadequate to evaluate the disability under consideration. The Board further notes that under Johnson v. McDonald, 762 F3.d 1362 (2014), a Veteran may be awarded an extra-schedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the symptoms associated with service-connected disabilities experienced. In this case, there is no additional impairment that has not been attributed to a specific, compensable disability. Accordingly, this is not an exceptional circumstance in which extra-schedular consideration may be required to compensate the Veteran for disability that can be attributed only to the combined effect of multiple conditions. Thus, the threshold requirement for invoking the procedures set forth in 38 C.F.R. § 3.321(b)(1) is not met, and referral of the matter for extra-schedular consideration is not met. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For all the foregoing reasons, the Board finds that there is no basis for staged rating of the Veteran's peripheral neuropathy of the upper extremities, and that the claim for a rating in excess of 20 percent for the disability must be denied. In reaching these conclusions, the Board has considered the applicability of the benefit-of-the doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating at any pertinent point. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). III. TDIU VA will grant a total rating for compensation purposes based on unemployability (TDIU) when the evidence shows that a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For a veteran to prevail on a claim for a TDIU, the sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether the veteran can find employment. Van Hoose v. Brown, 4 Vet. App. 361 (1993). In determining whether a veteran is entitled to a TDIU, consideration may be given to a veteran's level of education, special training, and previous work experience, but not to his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In determining whether an appellant is entitled to a TDIU, the veteran's nonservice-connected disabilities and advancing age may not be considered. 38 C.F.R. § 4.19. Here, the Veteran is no longer employed. In an application for increased compensation based on unemployability received in June 2009, the Veteran reported that he was last employed in March 2009 as an airport bus driver. He reported that he had completed high school but he denied receiving any other education or training. The Veteran reported that his service-connected diabetes and peripheral neuropathies prevented him from securing and maintaining substantially gainful employment. Furthermore, the Veteran is currently in receipt of an 80 percent total combined rating disability evaluation. He is assigned a 40 percent disability rating for diabetes mellitus, type II with hypertension and erectile dysfunction; a 20 percent disability rating for peripheral neuropathy of the right lower extremity associated with diabetes; a 20 percent disability rating for peripheral neuropathy of the left lower extremity associated with diabetes; a 20 percent disability rating for peripheral neuropathy of the right upper extremity associated with diabetes; and a 20 percent disability rating for peripheral neuropathy of the left upper extremity associated with diabetes. Additionally, the Board notes that, though his disability ratings have had minor variations throughout the course of the appeal, the Veteran has been in receipt of at least a 70 percent total combined disability rating (with a qualifying single disability rated at least 40 percent) since June 26, 2008, well before the Veteran filed his current claim for a TDIU filed in June 2009. Hence, he has met the schedular criteria under 38 C.F.R. § 4.16(a) for consideration of TDIU for all periods under consideration. Therefore, the determinative issue is whether the Veteran is shown to be unable to secure and follow a substantially gainful occupation due to his service-connected disabilities. In this case, the evidence is at least in equipoise regarding the Veteran's inability to obtain and maintain substantially gainful employment consistent with his education and occupational experience because of his service-connected disabilities. Initially, in July 2012, the Veteran testified at a Board hearing. At that time, the Veteran indicated that his diabetes is controlled by restrictive diet, activities, and insulin twice a day. The Veteran also reported that the insulin has side effects that include loss of energy and feeling tired. The Veteran testified that he is unable to drive due to his high blood pressure. With regards to his peripheral neuropathy, the Veteran reported symptoms of painful, burning feet and forearms. The Veteran reported that he last worked in May 2009 as an airport bus driver. He retired because he could no longer perform the job and that he missed too much work due to his illness. Specifically, he reported that he was unable to carry passenger luggage, keep his shoes on, or stand in the lobby to assist passengers. The Veteran reported that he is receiving Social Security Administration (SSA) benefits for his diabetes condition and that he attempted to get VA vocational rehabilitation in 2009 but was denied due to the fact that he is totally disabled. The Veteran was afforded another VA examination in conjunction with his claim in March 2013. The examiner reviewed the claims file and performed a physical examination on the Veteran. The examiner found that the Veteran's diabetes mellitus, although uncontrolled, does not inhibit him from obtaining and maintaining gainful employment. By way of rationale, the examiner provided that the Veteran's condition does not have any special regulation of activities and the diabetes does not adversely affect his functional capacity. Instead, his functional capacity is limited to osteoarthritis of his fingers and morbid obesity. In December 2014, the Veteran was afforded a VA examination concerning his service-connected diabetes mellitus, type II. The examiner noted the Veteran's diabetes treatment consisted of restrictive diet, insulin (20 units each morning, 24 units at noon, and 30 units every night), but no regulation of activities. The Veteran is required to visit his diabetic care provider less than twice a month for episodes of ketoacidosis and hypoglycemia. The Veteran's diabetic complications also include diabetic peripheral neuropathy and erectile dysfunction. A diabetic sensory examination showed symptoms of mild intermittent pain in the right and left lower extremities, mild numbness in the right and left upper extremities, and his other symptoms include decreased ability to pronate the upper extremities and burning and hyperesthesia of the feet. A neurologic examination also showed decrease deep tendon reflexes in the bilateral knees and ankles. Light touch examination showed decrease sensation in the ankles, feet, and toes. Vibration sensation testing revealed absent sensation in the right and left lower extremities. Finally, his upper extremities diabetic peripheral neuropathies were characterized by incomplete, mild paralysis, while the lower extremities were described as incomplete, moderate paralysis. The examiner did not find that the Veteran's peripheral neuropathy resulted in any functional impact on the Veteran's ability to work. The Veteran was afforded a VA examination concerning the severity of his erectile dysfunction. The examiner noted that the Veteran's symptoms included voiding dysfunction causing urine leakage. The Veteran has increased urinary frequency, specifically, nighttime awakening to void three to four times. The examiner did not find that the Veteran's residuals result in any functional impact on the Veteran's ability to work. Instead, the examiner remarked that the Veteran is currently retired since June 2009 of his own volition due to inability to perform job functions. The Veteran was afforded a VA examination concerning his hypertension. The Veteran was noted to be on a continuous medication plan for his hypertension to include hydrochlorothiazide and Lisinopril. The examiner did not find that the Veteran's hypertension resulted in any functional impact on the Veteran's ability to work. The examiner stated that the Veteran's hypertension is controlled by two anti-hypertensive medications. Based on the evidence of record, and resolving doubt in the Veteran's favor, the Board finds that he is unemployable due to his service-connected disabilities, specifically his service-connected diabetes mellitus, type II with hypertension and associated peripheral neuropathies. The Veteran has consistently reported that he is unable to work due to his service-connected disabilities. Also, the Veteran reported that he completed high school but went no further in his education. As noted, the Veteran's diabetes requires insulin, hypertension medication, and a restrictive diet, while his peripheral neuropathies prevented him from being able to continue to perform the tasks required of a bus driver, and there is no indication that the Veteran has any additional vocational training or skills that would allow for gainful employment in sedentary work. Moreover, his symptoms from his service-connected peripheral neuropathy of the bilateral upper and lower extremities make working in an environment where he would have to drive, stand, and assist passengers with luggage difficult. The Board recognizes that the VA examiners who have conducted the examinations throughout the course of the appeal have opined that the Veteran's service-connected disabilities individually do not result in any functional impact on the Veteran's ability to work. The Board, however, notes that the ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; rather, that determination is for the adjudicator. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Board finds that the Veteran's service connected disabilities cumulatively significantly impact his ability to perform the physical acts required by employment. Coupled with the fact of the Veteran's education and work history, the Board finds that his suitable employment options are severely limited. The record tends to show that the Veteran has no specific skills to re-enter the work force and secure other gainful employment. Therefore, given the severity of the Veteran's service-connected diabetes and the limitations caused by that disability in conjunction with the physical limitations caused by his peripheral neuropathy disabilities and his education and work history, the Board resolves reasonable doubt in favor of the Veteran and finds that his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. See Moore v. Derwinski, 1 Vet. App. 356, 359 (1991) ("[A] mere theoretical ability to engage in substantial gainful employment is not sufficient... The test is whether a particular job is realistically within the physical and mental capabilities of the claimant."). Accordingly, the Board finds that entitlement to a TDIU is warranted. ORDER A rating in excess of 20 percent for peripheral neuropathy of the right upper extremity is denied. A rating in excess of 20 percent for peripheral neuropathy of the left upper extremity is denied. Entitlement to a TDIU is granted, subject to the law and regulations governing the payment of monetary benefits. REMAND The record shows that in a January 2013 rating decision, the RO granted an increased rating for the Veteran's service-connected diabetes mellitus to 40 percent effective July 3, 2012. The Veteran filed a notice of disagreement with the evaluation of diabetes mellitus in March 2013. The RO has not issued a statement of the case on this matter. Therefore, the Board directs that the RO issue a SOC, as directed below, in accordance with 38 C.F.R. §§ 19.26, 19.29 (2015) and Manlincon v. West, 12 Vet. App. 238 (1999). Accordingly, the case is REMANDED for the following action: The RO should issue a statement of the case to the Veteran and his representative concerning the issue of entitlement to an increased rating in excess of 40 percent for service-connected diabetes mellitus, type II in response to a notice of disagreement filed by the Veteran in March 2013. Thereafter, the Veteran and his representative shall be afforded the appropriate period of time within which to respond. If, and only if, he perfects an appeal by the submission of a timely substantive appeal should this claim be returned to the Board for further appellate review. 38 C.F.R. §§ 20.202, 20.302 (2015). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). (CONTINUED ON NEXT PAGE) This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ TANYA SMITH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs