Citation Nr: 1800518 Decision Date: 01/05/18 Archive Date: 01/19/18 DOCKET NO. 13-15 611 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial compensable rating for erectile dysfunction. 2. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the right lower extremity. 3. Entitlement to a rating in excess of 10 percent for peripheral neuropathy of the left lower extremity. 4. Entitlement an earlier effective date for diabetes mellitus type II. 5. Entitlement to a total disability rating due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: George T. Sink, Attorney WITNESSES AT HEARING ON APPEAL Appellant and his Spouse ATTORNEY FOR THE BOARD L. Bush, Associate Counsel INTRODUCTION The Veteran served on active duty in the U.S. Army from February 1968 to February 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The Veteran testified before the undersigned Veterans Law Judge in an August 2017 videoconference hearing. A copy of the hearing transcript is associated with the record. FINDINGS OF FACT 1. During his August 2017 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he was withdrawing his appeal for entitlement to an initial compensable rating for erectile dysfunction. 2. The Veteran's peripheral neuropathy of the bilateral lower extremities is manifested by symptoms of moderate incomplete paralysis of the sciatic nerve. 3. The Veteran's original claim of entitlement to service connection for diabetes mellitus, type II was received on November 3, 2003. The RO denied service connection in an August 2004 rating decision. 4. In October 2004, less than a year after the issuance of the rating decision denying service connection, the Veteran submitted his military personnel records which were not of record at the time the rating decision was issued. Thus, the August 2004 rating decision did not become final. 5. As the August 2004 rating decision did not become final, the effective date for service connection for the Veteran's diabetes mellitus, type II is November 3, 2003, the date of his original claim. 6. The Veteran's service-connected disabilities have rendered him incapable of securing or following a substantially gainful occupation for the entirety of the appeal period. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal by the appellant entitlement to an initial compensable rating for erectile dysfunction have been met. 38 U.S.C. § 7105 (b) (2), (d) (5) (2012); 38 C.F.R. § 20.204 (2017). 2. The criteria for a rating of 20 percent, but no higher, for peripheral neuropathy of the right lower extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for a rating of 20 percent, but no higher, for peripheral neuropathy of the left lower extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 3. The criteria for an earlier effective date of November 3, 2003 for the grant of service connection for diabetes mellitus, type II have been met. 38 U.S.C. §§ 5101, 5110, 7105 (2012); 38 C.F.R. §§ 3.1, 3.152, 3.155, 3.400 (2017). 4. The criteria for a TDIU rating have been met. 38 U.S.C. §§ 1155, 5110(a), (b)(2) (2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Withdrawal of Claim The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105 (2012). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2017). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2017). In the present case, the appellant has withdrawn his appeal for entitlement to an initial compensable rating for erectile dysfunction. Hence, there remain no allegations of errors of fact or law for appellate consideration regarding this issue. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Increased Ratings for Peripheral Neuropathy of the Bilateral Lower Extremities The Veteran asserts entitlement to an increased rating for peripheral neuropathy of the bilateral lower extremities. He is currently evaluated at ten percent for each lower extremity pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017), which evaluates the sciatic nerve. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7 (2017). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When a veteran seeks an increased evaluation, it will generally be presumed that the maximum benefit allowed by law and regulation is sought, and it follows that such a claim remains in controversy where less than the maximum benefit available is awarded. See AB v. Brown, 6 Vet. App. 35 (1993). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). Diagnostic Code 8520 for peripheral neuropathy provides that mild incomplete paralysis is rated 10 percent disabling. See 38 C.F.R. § 4.124a, Diagnostic Code 8520. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe paralysis. The term "incomplete paralysis" with this and other peripheral nerve injuries 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 (2017). The Board finds that the probative evidence of record establishes that the Veteran's peripheral neuropathy of the bilateral lower extremities manifested to a level of moderate incomplete paralysis for the entirety of the appeal period. The Veteran reported experiencing pain, tingling, and numbness in his bilateral lower extremities and he was diagnosed with mild bilateral lower extremity sensory polyneuropathy. See December 2009 VA Examination. This diagnosis was the basis of the February 2010 rating decision which granted service connection for peripheral neuropathy of the bilateral lower extremities and for the current evaluations. At a February 2011 VA examination, the Veteran continued to report intermittent tingling and sharp pain in his feet that was getting progressively worse. Although the Veteran averred that his disability had worsened, the RO continued the ten percent per lower extremity evaluations in a September 2011 rating decision. The Veteran timely appealed. The Veteran's wife submitted a statement indicating that he could not walk or get up without pain. See September 2012 Statement in Support of Claim. Another VA examination was provided. The examiner noted that the Veteran experienced moderate intermittent pain, mild parathesias/and or dysesthesias, and mild numbness in both lower extremities. He ultimately determined that the Veteran's bilateral peripheral neuropathy was mild to moderate. See September 2014 VA Examination. The Veteran discussed symptoms of a numbing and burning sensation in both feet and decreased sensation in both feet that spreads to his legs at December 2014 VA Examination. He explained that the bilateral lower extremity peripheral neuropathy made walking difficult due to the pain that developed in his feet. The examiner noted mild parathesias and/or dysesthesias and mild numbness in the bilateral lower extremities. The Veteran testified regarding the severity of his disability at his August 2017 hearing. There, he stated that he cannot stand for more than a half hour, walk more than one hundred feet, or sit for over a half hour at a time. He discussed that he uses a cane due to balance uses and described tingling in his feet and associated leg pain. His wife amended some of his statements, saying that she believed his ability to stand was substantially less than a half hour, in the range of ten to fifteen minutes due to pain. She noted that around that time the Veteran will being to sweat due to pain and discomfort. She similarly noted that the Veteran's ability to walk more than ten minutes was problematic for him. See Hearing Transcript. The Board finds that a 20 percent evaluation per lower extremity is warranted for Veteran's peripheral neuropathy. VA examiners have consistently found wholly sensory, mild or moderate symptoms throughout the appeal period, including decreased sensation, intermittent pain, parathesias/and or dysesthesias, and numbness. Notably, the September 2014 examiner described the Veteran's bilateral peripheral neuropathy as mild to moderate. As previously discussed, when a question arises as to which of two ratings apply under a particular Diagnostic Code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. The Board finds that the medical evidence and lay testimony competently and credibly reflect moderate symptomatology more closely approximated to a twenty percent rating for each lower extremity. The evidence weighs against assigning a rating in excess of 20 percent for each lower extremity at any time during the appeal. Id. Neurological symptoms consisting of sensory disturbances cannot be assessed as posing more than moderate incomplete paralysis. 38 C.F.R. § 4.124a (2017). In this case, the above evidence shows that the Veteran's peripheral neuropathy symptoms generally consisted of sensory disturbances. This evidence weighs against findings of impaired motor function, muscle atrophy, or skin changes in either lower extremity associated with peripheral neuropathy. Given the limitations for peripheral neuropathy ratings based primarily on sensory disturbances, a finding of moderately severe partial paralysis for peripheral neuropathy is not warranted. Id.; 38 C.F.R. §§ 4.3, 4.7, 4.124a, DC 8520 (2017). Earlier Effective Date for Diabetes Mellitus, Type II The Veteran maintains that the effective date of service connection for his diabetes mellitus, type II should be earlier than October 20, 2008. Generally, the effective date for the grant of service connection based upon an original claim or a claim reopened after final disallowance is either the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service; otherwise, it is the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110 (b) (1) (2012); 38 C.F.R. § 3.400 (b) (2017). Section 3.156(c) may apply in cases in which VA receives certain records after it has already issued a decision on a claim. Under 38 C.F.R. § 3.156 (c)(1), "if VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim." As part of the regulation, the Secretary has included a non-exhaustive list of records that could constitute official service department records. Id. However, the applicability of this regulation is tempered by subsection (2), which provides that § 3.156(c) "does not apply to records that VA could not have obtained when it decided the claim because the records did not exist when VA decided the claim" or because the claimant did not "provide sufficient information for VA to identify and obtain the records." 38 C.F.R. § 3.156 (c) (2) (2017). "An award made based all or in part on the records identified by paragraph (c) (1) . . . is effective on the date entitlement arose or the date VA received the previously decided claim, whichever is later." 38 C.F.R. § 3.156 (c) (3) (2017). On November 3, 2003, the RO received a claim for diabetes mellitus, type II from the Veteran. The RO denied the claim in August 2004 on the basis that there were no signs of diabetes mellitus while in service, nor did the Veteran's diabetes manifest to a compensable degree within a year of separation. The RO did not associate the Veteran's military personnel records with his claims file, thus they were not examined prior to the issuance of the rating decision. The Veteran was notified of the denial in the August 2004 rating decision via an August 25, 2004 correspondence. In October 2004, the Veteran submitted a copy of his military personnel record, indicating service in Korea between 1968 and1969. The Veteran sought to re-open his claim in October 2009. Service connection was granted in a February 2010 rating decision with an effective date of October 20, 2008. The Board finds that an earlier effective date of November 3, 2003 is warranted. VA received relevant official service department records in October 2004. See Date Stamp on Envelope. There is no evidence to suggest that VA could not have obtained these records or that the Veteran did not provide sufficient information for VA to identify and obtain them. The February 2010 rating decision which awarded service connection for diabetes mellitus, type II was made based on these records as they showed the Veteran's service in Korea DMZ from 1968 to 1969. Thus, the effective date of the Veteran's claim should be either the date entitlement arose or the date VA received he previously decided claim, whichever is later. Entitlement arose upon the Veteran's diagnosis of diabetes mellitus, type II, which the record shows occurred in the early 1990s. However, the claim was received on November 3, 2003. As November 3, 2003 is the later date, this is the proper effective date of the claim. TDIU When any impairment of mind or body sufficiently renders it impossible for the average person to follow a substantially gainful occupation, that impairment will be found to be causing total disability. 38 C.F.R. § 3.340 (2017). If the schedular rating is less than total, as here, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability. 38 C.F.R. § 4.16 (2017). Due to the increased ratings for the Veteran's peripheral neuropathy and earlier effective date of the Veteran's service-connected diabetes mellitus, type II granted herein, the Veteran meets the schedular requirements for an award of TDIU for the entirety of the appeal period. The question that remains before the Board is whether the Veteran's service-connected disability precluded him from obtaining or engaging in substantially gainful employment prior to July 13, 2015. 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). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19 (2017); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). However, education, training, and past work experience are relevant to the questions. Post-service, the Veteran worked as an overhaul mechanic for thirty-one years. His job involved overhauling machines, textile machines, and other repairs. He stated that he stopped working in August 2002 due to the closing of the department that he worked for, but did not attempt to find another job because of his health conditions. The record reveals that the Veteran has been advised by medical personnel to slow down or stop working as far back as 2002 due to his now service-connected diabetic nephropathy with hypertension. At that time, a letter written by his doctor indicated that the Veteran's hypertension was extremely difficult to control and that it would be in his best interest to find employment in a low stress environment if at all possible. She noted that his blood pressure would continue to be an issue and stated that his elevated blood pressure combined with stress would put him at risk for a stroke. See September 2002 Private Treatment Letter. Further, the Veteran's service-connected peripheral neuropathy of the bilateral upper extremities results in difficulty grasping objects and lifting. His service-connected peripheral neuropathy of the bilateral lower extremities causes difficulty and fatigue in standing or sitting, resulting in the Veteran's need to constantly alternate between the two. His service-connected diabetic retinopathy affects his vision, with the Veteran reporting difficulties reading normal sized print. See VA Examinations and Treatment Records. The Veteran's service-connected disabilities would make it difficult, if not impossible for him to participate in the type of physical labor he performed since service as these positions require physical strength, use of hands and arms for lifting and carrying, as well as for utilizing mechanical tools, and prolonged standing, and walking. Additionally, the Board finds that the Veteran has only engaged in physical positions; he has not engaged in any sedentary work, nor has he been trained to do so. See Hearing Transcript. Based on all the evidence of record, and resolving all doubt in favor of the Veteran, the Board finds that the Veteran is precluded from securing and following substantially gainful employment due to the effects of his service-connected disabilities. The Board finds that the evidence supports that he would be unable to perform labor akin to that which he is educated and trained to perform. Therefore, the Board concludes that TDIU is warranted. The Board has considered the Veteran's claims and assigned the appropriate ratings based on the evidence. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claim for an increased rating. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER The appeal for entitlement to an initial compensable rating for erectile dysfunction is dismissed. A rating of 20 percent, but no higher, for peripheral neuropathy of the right lower extremity is granted. A rating of 20 percent, but no higher, peripheral neuropathy of the left lower extremity is granted. Entitlement to an effective date of November 3, 2003 for service connection for diabetes mellitus, type II is granted. Entitlement to a TDIU is granted. ____________________________________________ Bradley W. Hennings Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs