Citation Nr: 1754775 Decision Date: 11/30/17 Archive Date: 12/07/17 DOCKET NO. 12-20 918A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a disability rating in excess of 20 percent for service-connected right lower extremity peripheral neuropathy. 2. Entitlement to a disability rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy. 3. Entitlement to an increased disability rating in excess of 20 percent for service-connected right upper extremity peripheral neuropathy. 4. Entitlement to an increased disability rating in excess of 20 percent for service-connected left upper extremity peripheral neuropathy. 5. Entitlement to an effective date earlier than April 9, 2013 for the assignment of a 20 percent disability rating for service-connected right lower extremity peripheral neuropathy. 6. Entitlement to an effective date earlier than April 9, 2013 for the assignment of a 20 percent disability rating for service-connected left lower extremity peripheral neuropathy. 7. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. 8. Entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. L. Marcum, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1971 to July 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from February 2012, February 2014, and February 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Detroit, Michigan. In April 2013, the Veteran filed claims seeking increased disability ratings for his service-connected peripheral neuropathy of the bilateral upper and lower extremities. In its February 2014 rating decision, the RO increased the disability ratings for the Veteran's service-connected left and right lower extremity peripheral neuropathy disabilities from 10 to 20 percent, effective April 9, 2013. The RO also continued the previously assigned 20 percent disability ratings for the Veteran's service-connected right and left upper extremity peripheral neuropathy disabilities. As the Veteran has not received a total grant of benefits sought on appeal for the service-connected disabilities affecting his upper and lower extremities, these issues remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Additionally, when the Veteran submitted his March 2014 notice of disagreement contesting the RO's February 2014 rating decision, he raised the issues of entitlement to "increased evaluations and earlier effective dates" for his service-connected peripheral neuropathy of the bilateral upper and lower extremities. In a May 2016 statement of the case (SOC), the RO indicated that the Veteran's service-connected peripheral neuropathy for both lower extremities had increased from 10 percent to 20 percent, effective April 9, 2013. The RO also indicated that the previously assigned 20 percent disability ratings for the Veteran's service-connected right and left upper extremity peripheral neuropathy were continued. In a June 2016 SOC, the RO specifically noted that the Veteran's service-connected right and left lower extremity peripheral neuropathy had increased from 10 percent disabling to 20 percent disabling, effective April 9, 2013, the date the RO received the claims. After reviewing the evidence of record, the RO determined that the available evidence did not show objective findings which would warrant entitlement to earlier effective dates for those increased evaluations. In a June 2016 notice letter, the RO informed the Veteran that his earlier effective date claims were partially invalid. The RO incorrectly stated that the previously assigned evaluations for right and left lower extremity peripheral neuropathy were confirmed and continued in the February 2014 rating decision. As discussed above, those disability ratings were increased in the February 2014 rating decision, and the RO was actually referring to the previously assigned evaluations for right and left upper extremity peripheral neuropathy that were confirmed and continued in the that decision. Despite the mistake in the June 2016 notice letter, the RO correctly noted that the December 2010 rating decision had established an effective date of August 6, 2010, the date the Veteran's claim for diabetes mellitus, type II, and the associated complications, was received. The RO also correctly stated that the Veteran had not filed a notice of disagreement contesting that decision and that the December 2010 rating decision became final in December 2011, one year following the issuance of the December 2010 rating decision. The RO informed the Veteran that, absent a request to revise the December 2010 rating decision based on clear and unmistakable error (CUE), the claim for an earlier effective date on a final rating decision would not be accepted. The Board notes that a claimant may not properly file, and VA has no authority to adjudicate, a freestanding earlier effective date claim in an attempt to overcome the finality of an unappealed Board decision. See Rudd v. Nicholson, 20 Vet. App. 296 (2006) (finding that only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). In this case, the Veteran has not requested that the RO revise the December 2010 rating decision based on CUE. In a June 2016 substantive appeal to the Board, the Veteran indicated that he was appealing for an effective date earlier than April 9, 2013 for the assignment of 20 percent disability ratings for service-connected right and left lower extremity peripheral neuropathy. Accordingly, the earlier effective date issues on appeal are limited to consideration of the RO's grant of increased ratings for the Veteran's service-connected peripheral neuropathy of his left and right lower extremities. In October 2016, the Veteran filed claim for entitlement to special monthly compensation (SMC) based upon the need for regular aid and attendance of another person or by reason of being housebound. A rating decision of February 2017 denied the Veteran's claim. The Veteran filed a notice of disagreement in April 2017. The RO issued a Statement of the Case (SOC) in June 2017, and the Veteran perfected an appeal by filing a VA Form 9 in July 2017. Notably, he did not request a hearing in conjunction with that appeal. While the issue has not been certified to the Board, certification by the RO is an administrative procedure, not jurisdictional. A failure to certify an issue does not deprive the Board of jurisdiction of an issue properly appealed. See 38 C.F.R. § 19.35 (2017). Accordingly, the Veteran's July 2017 appeal with respect to his claim for SMC based upon the need for regular aid and attendance of another person or by reason of being housebound is before the Board. It will be addressed in the Remand portion of the decision below. Finally, the Board notes that the Veteran filed a claim of entitlement to service connection for residuals of a stroke, to include as secondary to service-connected diabetes mellitus, neuropathy of the upper and lower extremities, and asthma. This issue was raised in February 2017 but not 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. 38 C.F.R. § 19.9(b) (2017). FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's right lower extremity peripheral neuropathy has been shown to be manifested by no more than moderate incomplete paralysis. 2. Throughout the appeal period, the Veteran's left lower extremity peripheral neuropathy has been shown to be manifested by no more than moderate incomplete paralysis. 3. During the appeal period, the Veteran's right upper extremity peripheral neuropathy has been shown to be manifested by no more than mild incomplete paralysis. 4. During the appeal period, the Veteran's left upper extremity peripheral neuropathy has been shown to be manifested by no more than mild incomplete paralysis. 5. A formal claim for an increased evaluation for peripheral neuropathy of the left lower extremity was received by VA on April 9, 2013, and entitlement to a 20 percent evaluation for peripheral neuropathy of the left lower extremity was shown on a November 19, 2013 VA examination. 6. A formal claim for an increased evaluation for peripheral neuropathy of the right lower extremity was received by VA on April 9, 2013, and entitlement to a 20 percent evaluation for peripheral neuropathy of the right lower extremity was shown on a November 19, 2013 VA examination. 7. The Veteran's service-connected disabilities do not render him unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 20 percent for service-connected right lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 2. The criteria for a disability rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a disability rating in excess of 20 percent for service-connected peripheral neuropathy of the right upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8513 (2017). 4. The criteria for a disability rating in excess of 20 percent for service-connected peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code 8513 (2017). 5. The criteria for an effective date earlier than April 9, 2013, for the assignment of a 20 percent disability rating for service-connected left lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 5101, 5108, 5110, 7104 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400 (2017). 6. The criteria for an effective date earlier than April 9, 2013, for the assignment of a 20 percent disability rating for service-connected right lower extremity peripheral neuropathy have not been met. 38 U.S.C.A. §§ 5101, 5108, 5110, 7104 (West 2014); 38 C.F.R. §§ 3.151, 3.155, 3.310, 3.400 (2017). 7. The criteria for a total rating based on individual unemployability due to service-connected disability (TDIU) have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veteran has not alleged any failures on the part of VA in complying with the Veterans Claims Assistance Act. Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). II. Increased Rating Claims The Veteran is seeking increased disability ratings for his service-connected left and right upper and lower extremity peripheral neuropathy disabilities. Disability ratings are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C.A. § 1155. A disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Thus, although the Board has thoroughly reviewed all evidence of record, the more critical evidence consists of the evidence generated during the appeal period. Further, the Board must evaluate the medical evidence of record since the filing of the claim for increased rating and consider the appropriateness of a "staged" rating (i.e., the assignment of different ratings for distinct periods of time, based on the facts). See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. §4.3. A. Peripheral Neuropathy - Left and Right Upper Extremities The Veteran's service-connected left and right upper extremity peripheral neuropathy disabilities have both been rated 20 percent disabling under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8513. Diagnostic Code 8513 provides ratings for paralysis of all radicular nerve groups. Different ratings are available for the dominant (major) and non-dominant (minor) side. 38 C.F.R. § 4.65. Here, the medical evidence reflects the Veteran is right-hand dominant, and therefore the ratings for the major side must be considered. Under Diagnostic Code 8513, a 20 percent rating is assigned for "mild" incomplete paralysis of the minor and major upper extremity. A 30 percent evaluation is assigned for "moderate" incomplete paralysis of the minor upper extremity and a 40 percent rating is assigned for moderate incomplete paralysis of the major upper extremity. A 60 percent rating is warranted for "severe" incomplete paralysis of the minor extremity, and an 80 percent rating is warranted for severe incomplete paralysis of the major extremity. Complete paralysis is rated 80 percent disabling for the minor upper extremity and 90 percent disabling for the major upper extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Board observes that the terms "mild," "moderate," and "severe" are not defined in the regulations. 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. Although the use of the terms "mild," "moderate," and "severe" by VA examiners and others is evidence to be considered by the Board, it is not dispositive of the issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In April 2013, the Veteran filed his present claim seeking increased disability ratings for his service-connected left and right upper extremity peripheral neuropathy. In November 2013, the Veteran presented for a VA examination. The examiner found that the Veteran had no constant pain, intermittent pain, paresthesias/ dysesthesias, or numbness in his left and right upper extremities. Muscle strength and reflex examinations were normal. Sensory examination was normal in most categories affecting the Veteran's upper extremities. Phalen's and Tinel's sign testing was negative. After thoroughly examining the Veteran, the examiner reported that the Veteran had mild incomplete paralysis of the left ulnar nerve; mild incomplete paralysis of the right upper radicular group (5th and 6th cervicals) nerve; and mild incomplete paralysis of the left and right middle radicular group nerves. After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of disability ratings in excess of 20 percent for left or right upper extremity peripheral neuropathy at any time during the appeal period. Throughout the appeal period, the Veteran's right and left upper extremity peripheral neuropathy has been manifested by symptoms that have been no more than mild in nature. Specifically, the April 2013 VA examiner found that the Veteran did not have constant pain, intermittent pain, paresthesias/ dysesthesias, or numbness in his left and right upper extremities. Muscle strength and reflexes were normal. Sensory examination was normal in most categories affecting the Veteran's upper extremities. The examiner concluded that the Veteran had mild incomplete paralysis of the left ulnar nerve; mild incomplete paralysis of the right upper radicular group (5th and 6th cervicals) nerve; and mild incomplete paralysis of the left and right middle radicular group nerves. Based on the foregoing, the Board finds that the Veteran's peripheral neuropathy of the left and right upper extremities has been primarily characterized as "mild" in severity throughout the appeal period. Likewise, the evidence does not suggest that the Veteran's peripheral neuropathy affecting his left and right upper extremities has ever been moderate in nature during the appeal period. As such, the next-higher rating is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8513. The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms. In this case, the Board finds no other provision upon which a higher rating could be assigned for the Veteran's left or right upper extremity peripheral neuropathy. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board has considered other potentially applicable diagnostic codes but finds that the Veteran's symptoms do not warrant higher evaluations under these codes. See 38 C.F.R. § 4.124a, Diagnostic Code 8510, 8511, 8516 (2017). In sum, disability ratings in excess of 20 percent are not warranted for the Veteran's left and right upper extremity peripheral neuropathy at any time during the appeal period. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). B. Peripheral Neuropathy - Left and Right Lower Extremities The Veteran's service-connected left and right lower extremity peripheral neuropathy disabilities have both been rated 20 percent disabling under the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8520. Diagnostic Code 8520 provides the rating criteria for evaluation of paralysis of the sciatic nerve. Under this provision, moderate incomplete paralysis warrants a 20 percent disability evaluation; moderately-severe incomplete paralysis warrants a 40 percent evaluation; and, severe, with marked muscular atrophy, incomplete paralysis warrants a 60 percent disability evaluation. An 80 percent evaluation is warranted for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, with flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The term "incomplete paralysis," with these and other peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type 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 wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. 38 C.F.R. § 4.124a. 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. As previously noted, the words "mild," "moderate," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. 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. It should also be noted that use of terminology such as "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. In April 2013, the Veteran filed his present claim seeking increased disability ratings for his service-connected left and right lower extremity peripheral neuropathy. In November 2013, the Veteran presented for another VA examination. The VA examiner noted the Veteran's subjective complaints of mild pain, paresthesias, and moderate numbness in his right and left lower extremities, to include numbness and tingling in both feet and ankles. On evaluation, sensation to light touch was intact at the Veteran's thighs, knees, and ankles, but diminished at his toes. Trophic changes were also noted below the Veteran's ankles. Muscle strength and reflexes were within normal limits. The examiner found that the Veteran had mild constant pain, intermittent pain, and paresthesias/dysesthesias and moderate numbness in his left and right lower extremities. Sensory examination was normal in most categories but decreased for the Veteran's feet/toes. Phalen's and Tinel's sign testing was negative. Based on the foregoing, the examiner assessed the Veteran as having moderate incomplete paralysis of the left and right lower extremity sciatic nerves. After reviewing the evidence of record, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 20 percent for service-connected peripheral neuropathy affecting the left and right lower extremities. During the appeal period, the Veteran's left and right extremity peripheral neuropathy disabilities have been manifested by symptoms that were no more than moderate in nature. On April 2013 evaluation, sensation to light touch was intact at the Veteran's thighs, knees, and ankles, but diminished at his toes. The VA examiner reported that trophic changes were noted below the Veteran's ankles. Muscle strength and reflexes were within normal limits. The examiner found that the Veteran had mild constant pain, intermittent pain, and paresthesias/dysesthesias and moderate numbness in his left and right lower extremities. Sensory examination was normal in most categories but decreased for the Veteran's feet/toes. The examiner assessed the Veteran as having moderate incomplete paralysis of the left and right lower extremity sciatic nerves. Under these circumstances, the Board finds that the evidence of record demonstrates that the Veteran's left and right extremity peripheral neuropathy has only been manifested by moderate symptoms throughout the appeal period. Additionally, the evidence does not suggest that the Veteran's peripheral neuropathy of the right and left lower extremities has been severe in nature at any time during the appeal period. As such, the next-higher rating is not warranted during the period. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The Board has considered whether a higher rating by analogy is available through another other diagnostic code that considers similar symptoms. In this case, the Board finds no other provision upon which a higher rating could be assigned for the Veteran's left and right lower extremity peripheral neuropathy. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In sum, disability ratings in excess of 20 percent are not warranted for the Veteran's service-connected peripheral neuropathy of the left and right lower extremities. As the preponderance of the evidence is against the claims, the benefit of the doubt rule is not applicable. See 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). III. Earlier Effective Date Claims The Veteran is seeking entitlement to an effective date earlier than August 6, 2010 for the assignment of 20 percent disability ratings for service-connected right and left lower extremity peripheral neuropathy. Except as otherwise provided, the effective date of an evaluation and award of compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400. After a final disallowance of a claim, the effective is the date of receipt of the new claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(q)(2). A rating decision becomes final if the veteran does not timely perfect an appeal of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.200, 20.302. A claim that is the subject of a final decision can be reopened upon the submission of new and material evidence. 38 U.S.C.A. § 5108. A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p). The applicable statutory and regulatory provisions require that VA look to all communications from a veteran and which may be interpreted as applications or claims - formal and informal - for benefits. See 38 U.S.C.A. § 5110(b)(3); 38 C.F.R. §§ 3.1(p), 3.155(a). Informal claims were recognized prior to March 24, 2015, after which a proper claim form must be filed. Prior to March 24, 2015, according to 38 C.F.R. § 3.157(b), once a claim for compensation was allowed, receipt of a VA outpatient or hospital examination or admission to a VA hospital would be accepted as an informal claim for increased benefits. See Servello v. Derwinski, 3 Vet. App. 196, 199 (1992). The date on the VA outpatient or hospital examination will be accepted as the date of claim. 38 C.F.R. § 3.157(b). When the evidence is from a private physician, the date of receipt of such evidence will be accepted as the date of receipt of an informal claim. Id. at (b)(2). Since March 24, 2015, when medical records indicate an increase in a disability, receipt of such medical records may be used to establish effective date(s) for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of the date of the report of examination, hospitalization, or medical treatment. The provisions of this paragraph apply only when such reports relate to examination or treatment of a disability for which service-connection has previously been established. 38 C.F.R. § 3.400(o)(2) (effective from March 24, 2015); 79 Fed. Reg. 57660, Standard Claims and Appeals Forms (Sept. 25, 2014) (to the extent a record that itself constitutes a claim is in existence as of the date this rule becomes effective and has not been identified and acted upon, this rule cannot extinguish that record's status as a claim under the law that was in effect as of the time that record was created, to the extent it is ever identified as claim). An effective date for an increased rating should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined to determine the date that the disability first manifested. Accordingly, the effective date for an increased rating - as well as for an initial rating or for staged ratings - is predicated on when the increase in the level of disability can be ascertained. Swain v. McDonald, 27 Vet. App. 219, 224 (2015); DeLisio v. Shinseki, 25 Vet. App. 45, 56 (2011). In determining when an increase is "factually ascertainable," all of the evidence must be reviewed, including testimonial evidence and expert medical opinions, and an effective date must be assigned based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35-36 (2000); VAOPGCPREC 12-98. Thus, "it is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010); see also Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014). A veteran bears the evidentiary burden to establish all elements of a claim. Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. Fagan, 573 F.3d at 1287 (quoting 38 U.S.C.A. § 5107(b)). In this case, the Board finds that earlier effective dates for the award of 20 percent disability ratings for the service-connected peripheral neuropathy affecting the Veteran's right and left lower extremities are not assignable. The Veteran filed an original claim of service connection for right and left lower extremity peripheral neuropathy in August 2010. The RO granted the claims in a December 2010 rating decision and assigned 10 percent disability ratings to the Veteran's right and left lower extremity peripheral neuropathy, effective August 6, 2010. The Veteran did not appeal that decision. Based on this sequence of events, the Board finds that the original claim became final. 38 U.S.C.A. § 7105(b) (West 2014); 38 C.F.R. § 3.104 (2017). The Board observes that the Veteran has not asserted clear and unmistakable error with regard to the December 2010 rating decision. 38 C.F.R. § 3.105(a). Because the December 2010 rating decision became final, the effective date for an increased rating in this case is the earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability occurred if a claim is received within one year from such date; otherwise, the effective date for increased rating is the date of receipt of the claim for increase. 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2); Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010). In general, "date of receipt" means the date on which a claim, information, or evidence was received by VA. 38 C.F.R. § 3.1(r) (2017). On April 9 2013, the Veteran filed claims for increased ratings for the service-connected peripheral neuropathy affecting his right and left lower extremities. In a February 2014 rating decision, the RO increased the disability ratings for the Veteran's service-connected right and left upper extremity peripheral neuropathy from 10 to 20 percent, effective April 9, 2013, the date of claims. The Veteran appealed for higher ratings and earlier effective dates. As a threshold matter in this case, the evidence does not show that entitlement to 20 percent disability ratings arose prior to April 9, 2013. The 20 percent ratings were assigned on the basis of the October 2013 VA examiner's finding of trophic changes and decreased sensation in both of the Veteran's lower extremities resulting in "moderate" incomplete paralysis of the sciatic nerve in both knees. Prior to that examination, the evidence of record only showed peripheral neuropathy symptoms that were "mild" in nature. Based on a longitudinal review of the record, the Board finds that April 9, 2013 was the earliest communication received after the final December 2010 rating decision that could be construed as a new formal or informal claim for an increased disability rating for the service-connected peripheral neuropathy affecting the Veteran's right and left lower extremities. In sum, the Board finds that April 9, 2013, is the earliest possible effective date for the grant of the 20 percent ratings for service-connected right and left lower extremity peripheral neuropathy. Additionally, the weight of the evidence does not establish a factually ascertainably increase in the Veteran's right and left lower extremity peripheral neuropathy disabilities prior to April 9, 2013. Consequently, the claims for effective dates earlier than April 9, 2013, must be denied. IV. TDIU Claim VA disability ratings are based, as far as practicable, on the average impairment of earning capacity attributable to disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 4.1, 4.10 (2017). Generally, the degrees of disability specified 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. Id. Where the schedular rating is less than total, a total disability rating may nonetheless 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 disability; provided that, in pertinent part, if there is only one such disability, the disability shall be rated at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability rated 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341(a), 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, will be considered as one disability. It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. Thus, in any case where the veteran is unemployable by reason of service-connected disabilities but has failed to meet the percentage standards discussed above, rating boards will submit the case to the Director, Compensation and Pension Service, for extra-schedular consideration under 38 C.F.R. § 4.16(b). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. See 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 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 level of education, special training, and previous work experience in arriving at a conclusion. Individual unemployability, however, must be determined without regard to any nonservice-connected disabilities or advancing age. 38 C.F.R. §§ 3.341(a), 4.16, 4.19 (2017); 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 maintain 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. The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C.A. § 5107(b). Under that provision, VA shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b) (West 2014); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the assignment of a TDIU. The record shows that service connection is currently in effect for (1) diabetes mellitus, type II, with erectile dysfunction, rated as 20 percent disabling; (2) peripheral neuropathy of the right upper extremity, rated as 20 percent disabling; (3) peripheral neuropathy of the left upper extremity, rated as 20 percent disabling; (4) peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; (5) peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; and (6) bronchial asthma, rated as 10 percent disabling. A review of the evidence indicates that he Veteran had a combined a combined rating of 70 percent from August 6, 2010, and a combined rating of 80 percent from April 9, 2013. Thus, the Veteran meets the percentage requires for a TDIU. Although the Veteran meets the percentage requirements set forth in section 4.16(a) for consideration of TDIU, the Board finds that the evidence establishes that the Veteran's service-connected disabilities have not rendered him unable to secure or follow a substantially gainful occupation during the pendency of the claim. In December 2010, the Veteran completed and returned a VA Form 21-8940 (Veterans Application of Increased Compensation Based on Unemployability) provided to him in connection with his claim. He indicated that he last worked full-time in August 2008 and that he became too disabled to work at that time. He also indicated that his diabetes, upper and lower extremity peripheral neuropathy, and bronchial asthma prevented him from securing or following any substantially gainful employment. Available medical evidence, including VA medical examination reports, demonstrates limitation caused by the Veteran's service-connected disabilities; however, the evidence does not indicate that the Veteran's service-connected disabilities render him unable to secure or follow a substantially gainful occupation. At his November 2010 VA examination, the VA examiner found that the Veteran's peripheral nerve disorder did not impact his ability to work or perform usual daily activities. In the October 2011 VA examination report, it was noted that the Veteran continued to have symptoms related to bronchial asthma since the previous VA examination dated in March 2010 when the Veteran was diagnosed as having moderate and persistent bronchial asthma. The examiner noted that the Veteran was experiencing more asthma symptoms on an average of three to four times a month, chronic cough and minimal expectoration, and shortness of breath in between asthma attacks. The examiner indicated that the Veteran could not walk more than 1/4 mile and he could not climb more than one flight of stairs at a stretch. The examiner noted that there had been no frequent ER visits urgent care visits or hospitalizations for the management of asthma. Moreover, the examiner found that there was no restriction of simple daily routine activities. The October 2011 VA examiner also reported that the Veteran continued to follow a diabetic diet for his diabetes. The Veteran reported that he experiences hypoglycemic episodes on an average of once in a week and he knows how to manage them. The Veteran denied experiencing any diabetic coma, ketoacidosis, or frequent hospitalizations for the management of diabetes mellitus, especially since the previous VA examination dated in November 2010. Lastly, the October 2011 VA examiner reported that the Veteran continues to have tingling and numbness of both hands and feet almost daily and that his symptoms were gradually progressing. The examiner noted that moderate activities cause more symptoms. The examiner indicated that the Veteran is not wearing any braces or splints and there is no restriction of daily routine simple activities. The examiner found no evidence of major incapacitating episodes or flare-ups. The Veteran reported experiencing chronic weakness and fatigue. However, the examiner indicated that there was no restriction of activities on account of diabetes mellitus. Based on a thorough assessment of the Veteran, the examiner concluded that the Veteran's service-connected medical conditions "are not likely preventing him from doing his daily routine, simple activities, and light-duty sedentary jobs." In November 2013, the Veteran underwent a VA examination of his diabetes mellitus and peripheral neuropathy. After conducting a thorough evaluation of the Veteran, the VA examiner concluded that the Veteran's diabetes mellitus, Type II, and related complications impacted his ability to work. With regard to the peripheral nerve conditions, the examiner indicated that the functional limitations on employment consisted of the Veteran being "unable to stand/walk safely without assistance for [an] extended period of time." Although the November 2010, October 2011, and November 2013 VA examiners noted limitations caused by the Veteran's service connected disabilities, the examiners did not conclude that the Veteran was unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities. The Board acknowledges that the Veteran's service-connected disabilities clearly result in employment limitations. As set forth above, however, he has been in receipt of a combined 70 percent rating from August 6, 2010, and a combined rating of 80 percent since April 9, 2013. Thus, the Veteran meets the percentage requires for a TDIU. A high rating in itself is recognition that the impairment makes it difficult to obtain or maintain 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 or currently maintains substantially gainful employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Additionally, there is no indication that the combined effects of the Veteran's service-connected disabilities would prevent him from securing and maintaining substantially gainful employment, especially a light-duty sedentary job. The Board has carefully considered Veteran's statements regarding the effects of his disabilities on his employability. Although the Veteran experiences pain, numbness, tingling, and functional loss as a result of his service-connected disabilities, as set forth above, the Veteran's diabetes mellitus, type II, with erectile dysfunction is rated as 20 percent disabling; his peripheral neuropathy of the right upper extremity is rated as 20 percent disabling; his peripheral neuropathy of the left upper extremity is rated as 20 percent disabling; his peripheral neuropathy of the right lower extremity is rated as 20 percent disabling; his peripheral neuropathy of the left lower extremity is rated as 20 percent disabling; and his bronchial asthma is rated as 10 percent disabling. As with the Veteran's combined ratings, these separate ratings are, in themselves, recognition that the impairment associated with these disabilities and their impact on the Veteran's ability to obtain or maintain employment. The ultimate question, however, is whether the Veteran's service-connected disabilities, without regard to any nonservice-connected disabilities, prevent him from securing or following a substantially gainful occupation, including a sedentary position. Van Hoose, 4 Vet. App. at 363. As previously discussed, multiple VA examinations have indicated that, although the Veteran is impaired as a result of service-connected disabilities, he is not precluded from obtaining or maintaining substantially gainful employment, including a light-duty sedentary job. The Board has assigned these examination reports great probative value, as they were based on an examination of the Veteran and a review of the pertinent evidence of record. In addition, the examiners addressed the question of employability directly and their opinions are consistent. For the foregoing reasons, the Board concludes that the preponderance of the evidence is against the claim of entitlement to TDIU. The benefit-of-the-doubt doctrine is therefore not for application, and the claim must be denied. See 38 U.S.C.A. § 5107(b). ORDER A disability rating in excess of 20 percent for service-connected right lower extremity peripheral neuropathy is denied. A disability rating in excess of 20 percent for service-connected left lower extremity peripheral neuropathy is denied. A disability rating in excess of 20 percent for service-connected right upper extremity peripheral neuropathy is denied. A disability rating in excess of 20 percent for service-connected left upper extremity peripheral neuropathy is denied. An effective date earlier than April 9, 2013 for the assignment of a 20 percent rating for service-connected right lower extremity peripheral neuropathy is denied. An effective date earlier than April 9, 2013 for the assignment of a 20 percent rating for service-connected left lower extremity peripheral neuropathy is denied. A TDIU due to service-connected disabilities is denied. REMAND The Veteran is seeking entitlement to SMC. The Veteran contends that he requires regular aid and attendance of his family members after he experienced a stroke that resulted in left-sided weakness and made it difficult to ambulate. Special monthly compensation is payable if as the result of service connected disability, the veteran has suffered the anatomical loss or loss of use of both feet, or of one hand and one foot, or is blind in both eyes, with 5/200 visual acuity or less, or is permanently bedridden or so helpless as to be in need of regular aid and attendance. See 38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. § 3.350 (2017). The criteria for determining that a veteran is so helpless as to be in need of regular aid and attendance are contained in 38 C.F.R. § 3.352(a) (2017). Determinations as to the need for aid and attendance are factual in nature and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as the: (1) Inability of the claimant to dress or undress himself or to keep himself ordinarily clean and presentable; (2) frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; (3) inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; (4) inability to attend to the wants of nature; or (5) incapacity, either physical or mental, that requires care or assistance on a regular basis to protect the claimant from hazards or dangers incident to his daily environment. 38 C.F.R. § 3.352. It is not required however that all of the disabling conditions enumerated be present before a favorable rating may be made. The particular personal functions which the claimant is unable to perform should be considered in connection with his or her condition as a whole, and the need for aid and attendance must be regular, not that there be a constant need. 38 C.F.R. § 3.352(a) (2017). An individual who is bedridden by reasons of service connected disability shall also be considered to require regular aid and attendance. "Bedridden" constitutes a condition that through its essential character actually requires that an individual remain in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed bedrest for a lesser or greater portion of the day to promote convalescence or cure will not suffice. Id. The Veteran is service-connected for the following disabilities: (1) diabetes mellitus, type II, with erectile dysfunction, rated as 20 percent disabling; (2) peripheral neuropathy of the right upper extremity, rated as 20 percent disabling; (3) peripheral neuropathy of the left upper extremity, rated as 20 percent disabling; (4) peripheral neuropathy of the right lower extremity, rated as 20 percent disabling; (5) peripheral neuropathy of the left lower extremity, rated as 20 percent disabling; and (6) bronchial asthma, rated as 10 percent disabling. The Veteran's current combined disability rating is 80 percent beginning April 9, 2013. VA treatment records reflect that the Veteran requires the aid and attendance of another person to accomplish activities of his daily living such as toileting and bathing after he experienced a cerebral infarction (stroke). The treatment records also reflect that the Veteran walk very slowly with a walker. At a VA Aid and Attendance Exam in October 2016, the examiner specifically reported that the Veteran's need for aid and attendance was solely due to his stroke residuals. The Veteran's service-connected disabilities of diabetes mellitus, type II, and diabetic neuropathy were identified, along with the Veteran's nonservice-connected ischemic heart disease/peripheral vascular disease and hypertension. However, the examiner did not indicate whether these diagnosed disabilities resulted in the Veteran's need for assistance. Instead, the examiner reported that the Veteran was able to feed himself but was unable to prepare his own meals due to his recent stroke. The examiner found that the Veteran needed assistance bathing and tending to hygiene needs due to his recent stroke. The examiner reported that the Veteran was not legally blind, did not require nursing home care, did not require medication management, and was able to manage his own financial affairs. The examiner noted that the Veteran's stroke resulted in left grip weakness which restricted his ability to grip, perform fine movements, feed himself, button clothing, shave, or attend to the needs of nature. The examiner also opined that the Veteran's stroke resulted in left leg weakness affecting weight-bearing, balance, and propulsion. In February 2017, the Veteran filed a claim seeking entitlement to service connection for residuals of a stroke, to include as secondary to service-connected diabetes mellitus, neuropathy of the upper and lower extremities, and asthma. The Board notes that this claim has not yet been adjudicated by the AOJ and is being referred for appropriate action. Given the significance that the Veteran's recent stroke played in the October 2016 VA examiner's findings, the Board finds that the Veteran's claim of entitlement to SMC based on the need for aid and attendance/housebound is inextricably intertwined with the referred service connection claim above. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). Consequently, adjudication of the claim at issue must be deferred pending adjudication of the stroke disability claim. Accordingly, the case is REMANDED for the following actions: 1. After complying with the duties to notify and assist, adjudicate the claim of entitlement to service connection for residuals of a stroke, to include as secondary to service-connected diabetes mellitus, neuropathy of the upper and lower extremities, and asthma. 2. Then, readjudicate the claim of entitlement to SMC based on the need for aid and attendance. If the benefits sought on appeal are not granted in full, issue a supplemental statement of the case; and return this appeal to the Board, if otherwise in order. 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 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). ______________________________________________ Cynthia M. Bruce Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs