Citation Nr: 1802573	
Decision Date: 01/11/18    Archive Date: 01/23/18

DOCKET NO.  05-26 341	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico


THE ISSUES

1. Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus, type 2.

2. Entitlement to an initial rating higher than 40 percent for right lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease associated with diabetes mellitus, type 2.

3. Entitlement to an initial rating higher than 40 percent for left lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease associated with diabetes mellitus, type 2.

4. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to December 29, 2015.



REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

L. Edwards Andersen, Counsel


INTRODUCTION

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2017).  38 U.S.C. § 7107(a)(2) (West 2012).

The Veteran had active service from August 1965 to July 1968.  

This matter comes before the Board of Veterans' Appeals (BVA or Board) from a May 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico, which granted service connection for diabetes mellitus, type 2, and denied the claim of entitlement to service connection for diabetic peripheral neuropathy. 

In a July 2009 rating decision, the RO granted service connection for carotid artery disease as a complication of the Veteran's diabetes mellitus, type 2. The condition was found to be non-compensable and included with the evaluation of the service-connected diabetes mellitus, type 2.

The Board remanded the claims in November 2008 and December 2011. In October 2012, the Board again remanded the issues of entitlement to a separate compensable evaluation for carotid artery disease as secondary to diabetes mellitus, service connection for peripheral neuropathy of the upper and lower extremities as due to diabetes mellitus, and entitlement to a TDIU.
In a May 2016 rating decision, the RO granted service connection for peripheral neuropathy of the bilateral lower extremities, and assigned 10 percent disability ratings for each lower extremity affecting the sciatic nerve and anterior crural nerve-femoral. The May 2016 rating decision also granted separate compensable evaluations for right and left lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease associated with diabetes mellitus, type 2. A 40 percent evaluation was assigned for both extremities effective December 29, 2015. The May 2016 rating decision also awarded entitlement to TDIU, effective December 29, 2015. 

In June 2017, the Board remanded these claims for additional development. That development having been completed, the claims are now ready for appellate review.


FINDINGS OF FACT

1. The preponderance of the evidence reflects that the Veteran is not diagnosed with peripheral neuropathy of the bilateral upper extremities.

2. The Veteran's right lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease, associated with diabetes mellitus, type 2, is not manifested by claudication on walking less than 25 yards on a level grade at 2 miles per hour.

3. The Veteran's left lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease, associated with diabetes mellitus, type 2, is not manifested by claudication on walking less than 25 yards on a level grade at 2 miles per hour.

4. Prior to December 29, 2015, the Veteran's service-connected disabilities do not meet the requisite schedular percentages for entitlement to a TDIU.

5. Prior to December 29, 2015, the evidence of record does not demonstrate the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities.


CONCLUSIONS OF LAW

1. Service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus, type 2, is not established. 38 U.S.C. §§ 1110, 5107 (West 2012); 38 C.F.R. §§ 3.303, 3.310 (2017).

2. The criteria for an initial rating higher than 40 percent for right lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease, associated with diabetes mellitus, type 2, are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7114 (2017).

3. The criteria for an initial rating higher than 40 percent for left lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease, associated with diabetes mellitus, type 2, are not met. 38 U.S.C. §§ 1155, 5107 (West 2012); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7114 (2017).

4. Prior to December 29, 2015, the criteria for a TDIU are not met. 38 U.S.C. § 1155 (West 2012); 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.3, 4.16 (2017).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  Duties to Notify and Assist

As set forth in the Veterans Claims Assistance Act of 2000 (VCAA), the Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2012). The Veteran received notice in February 2003 and December 2008. 

The Board notes that where the underlying claim for service connection has been granted and there is disagreement regarding a downstream issue, such as entitlement to higher initial ratings, the claim as it arose in its initial context has been substantiated and there is no need to provide additional VCAA notice concerning the downstream issue. Goodwin v. Peake, 22 Vet. App. 128, 134 (2008); Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, the provisions of 38 U.S.C. § 7105 (d) require VA to issue a statement of the case (SOC) concerning the downstream issue if the disagreement is not resolved. The Veteran received a SOC in May 2016.

The VA also has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records, pertinent medical records and providing an examination when necessary. Bernard v. Brown, 4 Vet. App. 384 (1993).

Service treatment records are associated with the claims file, as are post-service treatment records and VA examinations. There is no indication that there are any outstanding pertinent documents or records that have not been obtained, or that are not adequately addressed in documents or records contained within the claims folder. 

For the issues decided herein, the evidence indicates that there has been substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998); see also Dyment v. West, 13 Vet. App. 141 (1999) (holding that another remand is not required under Stegall where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The VA's duty to assist in the development of the claims is complete, and no further notice or assistance to the Veteran is required to fulfill the duty. 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).

In light of the foregoing, the Board finds that there is no further action to be undertaken to comply with the provisions of 38 U.S.C. § 5103 (a), § 5103A, or 38 C.F.R. § 3.159, and that the Veteran will not be prejudiced by the Board's adjudication of the claims.

II.  Entitlement to Service Connection for Peripheral Neuropathy of the Bilateral Upper Extremities

The Veteran seeks entitlement to service connection for peripheral neuropathy of the bilateral upper extremities.

Applicable Laws

The Board notes that it has thoroughly reviewed the record in conjunction with this case. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the Board's analysis below will focus specifically on what the evidence shows, or fails to show, on the claims. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant).

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303 (a). Establishing service connection requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F.3d 604 (Fed.Cir.1996) (table); see also Hickson v. West, 12 Vet. App. 247, 253 (1999); 38 C.F.R. § 3.303. 

Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Alternatively, service connection may be established under 38 C.F.R. § 3.303 (b) by (a) evidence of (i) the existence of a chronic disease in service or during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or (b) when a chronic disease is not present during service, evidence of continuity of symptomatology. The use of continuity of symptomatology to establish service connection is limited only to those diseases listed at 38 C.F.R. § 3.309 (a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). 

Service connection may be granted on a secondary basis for disability that is proximately due to, the result of, or aggravated by a service-connected disability. 38 C.F.R. § 3.310 (a) and (b) (2017). See also Allen v. Brown, 7 Vet. App. 439, 448 (1995). 

In order to establish entitlement to service connection on a secondary basis, there must be evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. Id.  

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To do so, the Board must assess the credibility and weight of all the evidence, including the medical evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. See Masors v. Derwinski, 2 Vet. App. 181 (1992).

The Board must weigh any competent lay evidence and make a credibility determination as to whether it supports a finding of service incurrence; or, if applicable, continuity of symptomatology; or both, sufficient to establish service connection. See Barr v. Nicholson, 21 Vet. App. 303 (2007); see also Layno, supra. The credibility of lay evidence may not be refuted solely by the absence of corroborating contemporaneous medical evidence, but it is a factor. Davidson v. Shinseki, 581 F.3d at 1313, 1316 (Fed. Cir. 2009). Other credibility factors are the lapse of time in recollecting events attested to, prior conflicting statements as opposed to consistency with other statements and evidence, internal consistency, facial plausibility, bias, interest, the length of time between alleged incurrence of disability and the earliest or first corroborating medical or lay evidence thereof, and statements given during treatment (which are usually given greater probative weight, particularly if close in time to the onset thereof).

Facts & Analysis

Unfortunately, the preponderance of the evidence indicates the Veteran is not diagnosed with peripheral neuropathy of the bilateral upper extremities, post service.

The Veteran was afforded a VA examination in February 2003; the examiner noted that the Veteran did not have any clinical, subjective or objective signs of a peripheral neuropathy at the time.

The Veteran was afforded a VA examination in February 2004; he reported subjective symptoms in the lower extremities. There were no noted symptoms or diagnosis of peripheral neuropathy of the upper extremities.

The Veteran was afforded a VA examination in November 2004. He reported numbness and a prickling sensation in the hands; however, there was no evidence of peripheral neuropathy by electrodiagnosis in any of the extremities. Nerve conduction studies were normal. 

The Veteran was afforded a VA examination in January 2006; there was no evidence of diabetic peripheral neuropathy. 

In a December 2011 letter from the Veteran's physician, it was noted that the Veteran experienced fatigue, numbness, pain, and paresthesias of a pin and needle type sensation in his lower and upper extremities. The physician stated that it is more probable than not that the Veteran had diabetic neuropathy. 

The Veteran was afforded a VA examination in December 2015. It was noted that the Veteran had diabetic neuropathy of the lower extremities; however, the Veteran denied symptoms in the upper extremities other than sporadic joint pain. Electromyogram (EMG) testing revealed normal upper extremities. The examiner indicated that the Veteran did not have diabetic neuropathy of the bilateral upper extremities. 

The Board finds that the preponderance of the medical evidence indicates that the Veteran does not have a credible post-service diagnosis of peripheral neuropathy of the bilateral upper extremities. In terms of evidence, the Board recognizes the December 2011 letter from the Veteran's physician indicating that it was more probable than not that he had diabetic neuropathy, but the physician did not specify whether the Veteran had neuropathy of the upper or lower extremities. Furthermore, numerous treatment records and VA examinations indicate that the Veteran does not have a diagnosis of peripheral neuropathy of the bilateral upper extremities. Although the Veteran has subjectively complained of upper extremity symptoms on occasion, the Board finds it highly probative that there was no objective evidence of peripheral neuropathy of the bilateral upper extremities upon repeated examinations and testing. Importantly, the December 2011 letter indicating the Veteran likely had diabetic neuropathy does not indicate what type of testing, if any, was completed to diagnose the Veteran. The December 2011 note did not cite to any objective medical findings or testing supportive of neuropathy of the upper extremities, whereas the VA examinations concluded that the Veteran did not have peripheral neuropathy of the upper extremities after thorough physical examinations and testing, including EMG testing; therefore, the Board finds that the December 2011 assessment is outweighed by the remaining objective evidence of record, which indicates the Veteran does not have a diagnosis of peripheral neuropathy of the bilateral upper extremities. For these reasons, the Board concludes that the evidence does not demonstrate that the Veteran has a diagnosis of peripheral neuropathy of the bilateral upper extremities. 

The Board notes that the Veteran asserts he suffers from peripheral neuropathy of the bilateral upper extremities. Complaints, however, are not enough to establish service connection. There must be competent evidence of a current disability resulting from that condition or injury. See Sanchez-Benitez v. West, 13 Vet. App. 282, 285 (1999) ("pain alone, without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted.").  Moreover, while the Veteran is competent to report on symptoms, he is not competent to opine on the complex medical determination as to whether such symptoms are attributable to a particular neurological disease. See Layno v. Brown, 6 Vet. App. 465 (1994); Kahana v. Shinseki, 24 Vet. App. 428 (2011).

The Board finds that the most probative evidence consists of the medical records. The Board notes "Congress specifically limits entitlement to a service-connected disease or injury where such cases have resulted in a disability...in the absence of a proof of present disability there can be no claim." Brammer v. Derwinski, 3 Vet. App. 223, 225. Here, the preponderance of the evidence indicates the Veteran does not have a diagnosis of peripheral neuropathy of the bilateral upper extremities.

The Board finds that the claim must be denied. In sum, as there is no persuasive evidence of a current diagnosis, service connection for peripheral neuropathy of the bilateral upper extremities is not warranted. See Brammer, 3 Vet. App. at 225; McClain, 21 Vet. App. 319, 323 (2007); 38 C.F.R. § 3.304 (f).



III.  Increased Ratings

The Veteran seeks entitlement to initial ratings higher than 40 percent for right and left lower extremity peripheral artery disease and atherosclerotic vascular disease, manifested as carotid artery disease associated with diabetes mellitus, type 2.

Applicable Laws

Disability ratings are based on the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 

In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when the current appeal arises from the initially assigned rating, consideration must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Moreover, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The Board has considered the entire record, including the Veteran's VA clinical records, which include a February 2012 VA podiatry consult that reflected weak pedal pulses, bilaterally, hypoactive deep tendon reflexes, and diagnoses of mild tyloma and mild tinea pedis, and private treatment records. These records show complaints and treatment, but will not be further referenced in detail. The Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Therefore, the Board will discuss the evidence pertinent to the rating criteria and the current disability.
Facts & Analysis

Service connection for peripheral artery disease of the right and left lower extremities and atherosclerotic vascular disease manifested as carotid artery disease, as secondary to the service-connected disability of diabetes mellitus, type 2, was granted in a May 2016 rating decision, at which time 40 percent ratings were assigned, effective December 29, 2015, the date on which it was factually ascertainable that separate compensable ratings were warranted.

The Veteran is rated under 38 C.F.R. § 4.104, Diagnostic Code 7114.  A 20 percent rating is warranted when there is claudication on walking more than 100 yards, and either diminished peripheral pulses or ankle/brachial index of 0.9 or less.  A 40 percent rating is warranted when there is claudication on walking between 25 and 100 yards on a level grade at 2 miles per hour, and trophic changes (thin skin, absence of hair, dystrophic nails) or ankle/brachial index of 0.7 or less. A 60 percent rating is warranted when there is claudication on walking less than 25 yards on a level grade at 2 miles per hour, and either persistent coldness of the extremity or ankle/brachial index of 0.5 or less. A 100 percent rating is warranted when there is ischemic limb pain at rest, and either deep ischemic ulcers or ankle/brachial index of 0.4 or less. 38 C.F.R. § 4.104, Diagnostic Code 7114.

The ankle/brachial index (ABI) is the ratio of the systolic blood pressure at the ankle (determined by Doppler study) divided by the simultaneous brachial artery systolic blood pressure. The normal index is 1.0 or greater. Id. at Note (1).

The criteria listed in Diagnostic Code 7114 are conjunctive, as evidenced by the use of the word "and." See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991); Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007) (finding that the use of the conjunctive "and" in the criteria for a 40 percent rating for diabetes - "insulin, restricted diet, and regulation of activities" - meant that entitlement to that rating required all three criteria to be met). That is, in order to satisfy the criteria for a higher 60 percent rating, the Veteran must demonstrate claudication on walking less than 25 yards and either 1) persistent coldness of the left lower extremity, or 2) ABI of 0.5 or less.

First, the evidence indicates that the Veteran suffers from persistent coldness of the right and left lower extremity. See December 2015 VA examination. Therefore, this portion of the criteria for a rating of 60 percent is met. 

Unfortunately, however, the evidence does not indicate the Veteran suffers from claudication on walking less than 25 yards on either lower extremity. October 2014, May 2015, August 2015, and April 2017 VA treatment notes indicate the Veteran did not report any claudication. The December 2015 VA examination noted claudication on walking over 100 yards, bilaterally. During the December 2015 VA examination, the Veteran himself reported claudication upon walking long distances and upon standing for long periods of time. Therefore, the claudication on walking less than 25 yards requirement for warranting a rating of 60 percent is not met or more nearly approximated for the right or left lower extremity.

The Board recognizes the Veteran's statements attesting to his symptoms. The Board notes that laypersons can attest to observable symptomatology. In addition, the Veteran's statements describing his symptoms are considered competent evidence. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007), Layno v. Brown, 6 Vet. App. 465, 469 (1994), see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2007). These statements, however, must be viewed in conjunction with the objective medical evidence as required by the rating criteria. In this regard, the objective medical evidence, including the VA treatment records and the VA examination reports, include the information necessary to rate the Veteran's disabilities in accordance with the rating criteria and the VA examiners considered the Veteran's reported symptomatology when providing their assessments. While the Veteran is competent to report on the presence of certain symptoms, the objective medical evidence of record provided the precise measurements as to the number of yards the Veteran can walk before claudication develops. Pursuant to the relevant diagnostic criteria, the precise distance with regard to the number of yards and/or miles the Veteran can walk before the onset of claudication must be provided in order to determine whether a higher rating is warranted. Furthermore, the Veteran himself reported that he is able to walk long distances before experiencing claudication. Thus, when considering the overall evidence of record, including the Veteran's statements, the Veteran's disabilities do not warrant initial disability ratings in excess of 40 percent.

In conclusion, the Board notes that the December 2015 VA examination indicates that the Veteran experiences persistent coldness in his right and left lower extremities. This satisfies one portion of the criteria for a 60 percent rating. However, as the Veteran does not suffer from claudication after walking less than 25 yards on level ground at 2 miles per hour, the full criteria for a higher 60 percent rating for either the right of left lower extremity have not been met. 

For these reasons, the Board finds that an initial disability rating higher than 40 percent for the Veteran's peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease associated with diabetes mellitus, type 2, of the right and left lower extremities have not been met. Therefore, the Veteran's claims for an increase must be denied. There is no reasonable doubt to be resolved in this case. 38 U.S.C. § 5107 (b) (West 2012); 38 C.F.R. § 3.102 (2017); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

IV. Entitlement to a TDIU, Prior to December 29, 2015

The Veteran seeks entitlement to a TDIU, prior to December 29, 2015. The Board notes that entitlement to a TDIU was granted in a May 2016 rating decision, effective December 29, 2015.

A total disability rating may be assigned where the schedular rating is less than total when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that, if there is only one such disability, this disability shall be ratable at 60 percent or more, or if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16 (a). Nevertheless, even when a Veteran does not meet the percentage standards for schedular TDIU, he may be considered for TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). However, the Board does not have the authority to assign extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16 (b). 

Prior to December 29, 2015, the Veteran is service connected for diabetes mellitus, type 2, rated as 20 percent disabling. The Veteran has a combined rating of 20 percent, prior to December 29, 2015. As such, the Veteran does not meet the minimum rating requirements of 38 C.F.R. § 4.16 (a). Consequently, the Board must consider whether referral to the Director of Compensation Service for extraschedular consideration is warranted.

An assessment for extraschedular referral requires consideration of the Veteran's service-connected disabilities, employment history, educational and vocational attainment and all other factors having a bearing on the issue. 38 C.F.R. § 4.16 (b). Unemployability associated with advancing age or intercurrent (i.e. non-service connected) disability may not be used as a basis for a total disability rating. 38 C.F.R. § 4.19. The fact that a Veteran is unemployed or has difficulty obtaining employment is not enough, as a schedular rating provides recognition of such. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The schedular criteria contemplate compensating a Veteran for considerable loss of working time from exacerbations proportionate to the severity of the disability. See 38 C.F.R. § 4.1. The ultimate question is whether the Veteran, because of service-connected disabilities, is incapable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose, 4 Vet. App. at 363. 

Referral for entitlement to TDIU on an extraschedular basis prior to December 29, 2015 has been considered, but there is no persuasive credible evidence that the Veteran was unemployable due to his service-connected disabilities. 

Review of the evidence of record demonstrates that the Veteran has a high school diploma. In his September 2012 application for unemployability benefits, he reported that he last worked on a full-time basis in January 1996, as a police officer. It was noted that he receives retirement pay.

The Veteran was provided with VA examinations that addressed the functional impact of his diabetes during the appeal period.

The Veteran was afforded a VA examination in January 2006. It was noted that he did not have any restriction of activities due to his diabetes.  

During a May 2009 VA examination, the Veteran reported working as a police officer, but that he retired in 1996 due to his age or duration of work.

The Veteran's representative cites to the December 2011 statement from the Veteran's treating physician as evidence that the Veteran has been unable to obtain employment since at least December 2011 due to his service-connected disabilities. See October 2017 Informal Hearing Presentation. The Board has reviewed this evidence, however, while the December 2011 letter from Dr. O. describes the severity of the Veteran's various disorders, prior to December 29, 2015, the Veteran was service-connected solely for diabetes mellitus, type 2, and Dr. O.'s letter and the other evidence does not persuasively show the severity of the carotid artery disease warranted a separate compensable evaluation.  The letter from Dr. O. does not include any evidence or a medical opinion indicating that the Veteran was unemployable at the time due solely to his service-connected disability of diabetes mellitus, type 2.

The Board also acknowledges the Veteran's lay statements. However, the Board attaches greater probative weight to the VA medical evidence of record, the objective findings of which show his contentions are not proportionate to his actual functional ability.  The Board acknowledges the Veteran's service-connected diabetes mellitus, type 2, may cause occupational impairment.  While the Board recognizes the evidence of record shows the Veteran's employment as a police officer required physical activity, the evidence also establishes that he was able to maintain this position for 28 years.

Accordingly, the Board finds the preponderance of the evidence is against the Veteran's claim that he was not capable of performing the physical and/or mental acts required by employment, prior to December 29, 2015, due to service connected disability. As the preponderance of the evidence is against his claim, a schedular TDIU is not warranted prior to December 29, 2015, and referral for consideration of extraschedular TDIU, prior to December 29, 2015, is also not warranted. While the Board has considered the applicability of the benefit of the doubt doctrine, it is not applicable because the preponderance of the evidence is against his claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102.

The Board is grateful to the Veteran for his honorable service, and regrets that a more favorable outcome could not be reached.


ORDER

Entitlement to service connection for peripheral neuropathy of the bilateral upper extremities, to include as secondary to service-connected diabetes mellitus, type 2, is denied.

Entitlement to an initial rating higher than 40 percent for right lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease associated with diabetes mellitus, type 2, is denied.

Entitlement to an initial rating higher than 40 percent for left lower extremity peripheral artery disease and atherosclerotic vascular disease manifested as carotid artery disease associated with diabetes mellitus, type 2, is denied.

Entitlement to a TDIU, prior to December 29, 2015, is denied.



______________________________________________
TANYA SMITH
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs