Citation Nr: 18145996 Decision Date: 10/30/18 Archive Date: 10/30/18 DOCKET NO. 12-23 927 DATE: October 30, 2018 ORDER A rating of 60 percent, but no higher, for the Veteran’s left lower extremity peripheral neuropathy, is granted effective September 19, 2007. A rating of 60 percent, but no higher, for the Veteran’s right lower extremity peripheral neuropathy, is granted effective September 19, 2007. Entitlement to a total disability rating based on individual unemployability (TDIU) from September 19, 2007 is moot. FINDINGS OF FACT 1. Effective September 19, 2007, the Veteran’s left lower extremity peripheral neuropathy has been manifested by moderate neuropathy, decreased muscle strength, and diminished reflexes which most closely approximate to a finding of severe incomplete paralysis of the sciatic nerve. 2. Effective September 19, 2007, the Veteran’s right lower extremity peripheral neuropathy is manifested by moderate neuropathy, decreased muscle strength, and diminished reflexes which most closely approximate to a finding of severe incomplete paralysis of the sciatic nerve. 3. The Veteran’s service connected disabilities total 100 percent effective September 19, 2007. CONCLUSIONS OF LAW 1. Effective September 19, 2007, the criteria for entitlement to a disability evaluation of 60 percent, but no higher, for the Veteran’s service-connected left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 8520. 2. Effective September 19, 2007, the criteria for entitlement to a disability evaluation of 60 percent, but no higher, for the Veteran’s service-connected right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. Part 4, including § 4.7 and Code 8520. 3. The criteria for entitlement to a TDIU have not been met. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran submitted service connection claims for left lower extremity peripheral neuropathy and right lower extremity peripheral neuropathy on September 19, 2007. The claims were denied by way of a January 2009 rating decision. New evidence was received within one year of the rating decision. The RO granted service connection by way of a January 2010 rating decision. It granted a 10 percent rating for each extremity, effective May 28, 2009. The Veteran submitted a November 2010 notice of disagreement, seeking higher ratings. The RO issued a May 2012 statement of the case. The Veteran submitted a July 2012 substantive appeal. In a July 2012 rating decision, the RO recognized that it had made a clear and unmistakable error in the effective date of service connection. It corrected the error so that the effective date of service connection was revised to September 2007 (the date of receipt of the original claim). The Board remanded the issues in May 2015 and February 2017. In September 2018, the RO issued a rating decision in which it increased the Veteran’s ratings to 60 percent in each lower extremity. The effective date of the increase is May 28, 2009. Since the increase is not effective back to the date of the original claim, there are two time periods for consideration. Increased Rating Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where, as in the instant case, the appeal arises from the original assignment of a disability evaluation following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. See Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected left and right lower extremity peripheral neuropathy have been rated by the RO under the provisions of Diagnostic Code 8520, which sets forth the rating criteria for sciatic nerve disorders. Pursuant to Diagnostic Code 8520, a Veteran will receive ratings of 10, 20, 40 or 60 percent for mild, moderate, moderately severe, or severe (with marked muscular atrophy) incomplete paralysis of the sciatic nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8520. A maximum 80 percent evaluation will be awarded for complete paralysis of the sciatic nerve manifested by the foot dangling and dropping, no active movement possible of muscles below the knees, and flexion of the knee weakened or lost. Id.   Effective May 28, 2009 As noted above, the Veteran is in receipt of 60 percent ratings for each lower extremity. To warrant a higher rating, the Veteran’s disability would have to be manifested by complete paralysis of the sciatic nerve manifested by the foot dangling and dropping, no active movement possible of muscles below the knees, and flexion of the knee weakened or lost. The Veteran underwent VA examinations in January 2008 (addendum in February 2008), November 2009, March 2015, December 2017, and September 2018. None of the examiners found symptoms that would warrant a rating in excess of 60 percent. Moreover, neither the Veteran or his representative have argued for a rating in excess of 60 percent. To the contrary, as late as August 2016, the Veteran was requesting ratings of 40 percent. In his October 2018 Brief, the Veteran did not argue in support of ratings in excess of 60 percent. Consequently, the Board finds that the preponderance of the evidence is against a finding that a rating in excess of 60 percent is warranted for the Veteran’s left and right lower extremity peripheral neuropathy Prior to May 28, 2009 The Veteran’s contention is that the 60 percent ratings should date back to September 19, 2007. See Brief. As noted in the introduction, the Veteran’s original claim for service connection was received September 19, 2007. The claim has remained in appellate status ever since that time. When the RO granted service connection, it assigned an effective date of May 28, 2009 but it corrected this mistake by way of a July 2012 rating decision. When the RO increased the Veteran’s ratings to 60 percent, it assigned an effective date of May 28, 2009, stating that this is “the date we received your application for benefits, as your claim has remained open on appeal since that time.” Consequently, it appears that the RO intended for the increase to date back to the original date of the claim but failed to realize that the claim had been on appeal since September 19, 2007. Based on the apparent intent of the RO, the Board finds that the 60 percent rating should date back to the receipt of the original claim: September 19, 2007. Entitlement to a TDIU By way of the above determination, the Board has granted a 60 percent rating for left lower extremity peripheral neuropathy effective September 19, 2007 and a 60 percent rating for right lower extremity peripheral neuropathy effective September 19, 2007. These ratings, in conjunction with other service connected disabilities, yield a 100 percent combined evaluation from September 19, 2007. If VA has found a Veteran to be totally disabled as a result of a particular service-connected disability or combination of disabilities pursuant to the rating schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for TDIU moot where 100 percent scheduler rating was awarded for the same period). Nevertheless, the Court held in Bradley v. Peake, 22 Vet. App. 280 (2008), that there could be a situation where a Veteran has a schedular total rating for a particular service-connected disability, and could establish a TDIU rating for another service-connected disability in order to qualify for SMC under 38 U.S.C. § 1114 (s) by having an “additional” disability of 60 percent or more (“housebound” rate). See 38 U.S.C. § 1114 (s). Thus, under Bradley, even with the assignment of a total schedular rating, the issue of TDIU was potentially not moot. In this case, as of September 19, 2007, the Veteran was service-connected for left lower extremity peripheral neuropathy, rated as 60 percent disabling; right lower extremity peripheral neuropathy, rated as 60 percent disabling; prostate cancer, rated as 20 percent disabling; diabetes mellitus, rated as 20 percent disabling; degenerative disc disease with arthritis, rated as 10 percent disabling; tinnitus, rated as 10 percent disabling; bilateral hearing loss, rated as 0 percent disabling; and erectile dysfunction, rated as 0 percent disabling. He was not in receipt of a schedular total rating for any one service-connected disability. As such, Bradley is not applicable and the issue of entitlement to a TDIU is moot from September 19, 2007 (the date of the claim). Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Prem, Counsel