Citation Nr: 18146833 Decision Date: 11/01/18 Archive Date: 11/01/18 DOCKET NO. 09-44 795 DATE: November 1, 2018 ORDER Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity involving the sciatic nerve for the period since January 30, 2009 is denied. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity involving the sciatic nerve for the period since January 30, 2009 is denied. Entitlement to a total disability rating based on individual employability (TDIU) is denied. Entitlement to service connection for special monthly compensation (SMC) based on aid and attendance or housebound status is denied. FINDINGS OF FACT 1. For the period since January 30, 2009, the Veteran has exhibited symptoms consistent with no more than moderate incomplete paralysis of the sciatic nerve in the left lower extremity. 2. For the period since January 30, 2009, the Veteran has exhibited symptoms consistent with no more than moderate incomplete paralysis of the sciatic nerve in the right lower extremity. 3. For the period prior to September 25, 2013, the Veteran’s service-connected disabilities are not shown by the competent medical evidence of record to result in an inability to obtain or maintain substantially gainful employment so as to warrant referral of a TDIU on an extraschedular basis. 4. For the period since September 25, 2013, the Veteran’s service-connected disabilities do not preclude him from obtaining and retaining substantially gainful employment. 5. The Veteran is not so helpless as to be in need of regular aid and attendance due to his service-connected disabilities, does not have a single service-connected disability rated as 100 percent, and is not substantially confined to his dwelling and the immediate premises as a direct result of service-connected disabilities. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity for the period since January 30, 2009 have not been not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2017). 2. The criteria for a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity for the period since January 30, 2009 have not been not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8620 (2017). 3. The criteria for TDIU have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16, 4.18, 4.19, 4.25 (2017). 4. The criteria for entitlement to SMC based on aid and attendance or housebound status have not been met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.102, 3.350, 3.352(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1975 to August 1977 and from January 1978 to July 1979. This matter initially came before the Board of Veterans’ Appeals (Board) on appeal from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. In February 2013, the Veteran testified at a videoconference conference with the undersigned Veterans Law Judge. A copy of that transcript has been associated with the electronics claims file. In May 2013, the Board remanded these claims for further development. A March 2016 Board decision, in part denied entitlement to ratings in excess of 10 percent for peripheral neuropathy of the left and right lower extremities for the period since January 30, 2009. The Veteran appealed the March 2016 Board decision to the United States Court of Appeals for Veterans Claims (Court). In a September 2016 Joint Motion for Remand, the Court issued an Order that vacated and remanded these claims to the Board for further development. In February 2017 and July 2018, the Veteran provided waivers of consideration of additional evidence by the AOJ associated with the claims file since the last supplemental statement of the case. A July 2017 Board decision, in part granted increased 20 percent ratings for peripheral neuropathy of the left and right lower extremities for the period since January 30, 2009 and denied entitlement to a TDIU. The Veteran appealed the July 2017 Board decision to the Court. In a March 2018 Joint Motion for Remand, the Court issued an Order that vacated the portions of the March 2018 Board decision which denied disability ratings in excess of 20 percent for bilateral peripheral neuropathy of the lower extremities and a TDIU and remanded these claims to the Board for further development. Factual Background On VA examination in March 2009, the motor function of the lower extremities was normal. Using a pin prick test, the sensory function was abnormal with a sensory deficit in both feet. The reflexes were 2+ bilaterally in both the knees and ankles. The examiner noted that the effect of the Veteran’s peripheral neuropathy on his daily activities was moderate. On a December 2010 VA examination, the knee and ankle jerks were 2+ bilaterally. There were no signs of pathologic reflexes, and the examination revealed normal cutaneous reflexes. The range of motion in the hips, knees, and ankles were normal bilaterally and were repeatable and without pain. The strength of the lower extremities was normal throughout except hip flexion was 4/5 bilaterally and hip extension was 4/5 bilaterally. The Veteran had generalized dysthesia of the lower extremities with the right being more affected than the left. The examiner noted that the Veteran’s occupation was not affected by his condition(s). On VA examination in May 2012 VA examination, the examiner noted that the Veteran had moderate constant (may be excruciating at times) pain, intermittent (usually dull) pain, paresthesias and/or dysesthesias, and numbness bilaterally. Muscle strength testing was 5/5 bilaterally in the lower extremities, except knee extension, which was 4/5 bilaterally. There was no muscle atrophy. The reflex exam was normal bilaterally at the knees and ankles. The sensory examination for light touch revealed decreased sensation bilaterally in the upper anterior thigh (L2), thigh/knee (L3/L4), lower leg/ankle (L4/L5/S1), and foot/toes (L5). The sciatic nerve was normal bilaterally. The examiner noted that the Veteran’s peripheral nerve condition had impacted his work as he had not been working since November 2008 due to Limb-Girdle Muscular Dystrophy. At his Board hearing in February 2013, the Veteran testified that he could stand for no more than 10 minutes due to excruciating pain and that the pain in his legs caused him to stumble and fall often. On a VA audiological examination in March 2013, the examiner noted that the Veteran’s service-connected hearing loss and tinnitus impacted his ability to work as he had to constantly ask people to repeat themselves, had trouble hearing soft voices and had headaches and balance issues. In an August 2013 statement, a friend of the Veteran noted that the Veteran had a hard time standing, walking, standing up and sitting down due to his peripheral neuropathy. On VA examination in September 2013, the Veteran did not have constant pain. He had mild intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness bilaterally. Muscle strength was 5/5 in right knee extension, ankle plantar flexion, and ankle dorsiflexion, and was 4/5 in left knee extension, ankle plantar flexion, and ankle dorsiflexion. There was no muscle atrophy. The reflexes were absent bilaterally at the knees and ankles. The sensory examination for light touch revealed normal sensation bilaterally in the upper anterior thigh (L2), thigh/knee (L3/L4), and lower leg/ankle (L4/L5/S1), and decreased sensation bilaterally in the foot/toes (L5). There was a mild incomplete paralysis of the sciatic nerve bilaterally. The September 2013 examiner indicated that Veteran’s peripheral neuropathy was characterized by “numbness and a burning type pain in the lower extremities.” The examiner noted that the Veteran had worked at a steel manufacturing plant and had been in construction all of his life until he stopped working in 2008. Most of his jobs required heavy lifting and strenuous work. The examiner noted that the Veteran’s peripheral nerve condition had impacted his work as he was limited to work requiring no prolonged walking or standing and no heavy lifting or carrying. On VA examination May 2014, the Veteran did not have constant pain. He had mild intermittent pain (usually dull), paresthesias and/or dysesthesias, and numbness bilaterally. Muscle strength was 5/5 in right knee extension, ankle plantar flexion, and ankle dorsiflexion, and was 4/5 in left knee extension, ankle plantar flexion, and ankle dorsiflexion. There was no muscle atrophy. The reflexes were absent bilaterally at the knees and ankles. The sensory exam for light touch revealed normal sensation bilaterally in the upper anterior thigh (L2), thigh/knee (L3/L4), and lower leg/ankle (L4/L5/S1), and decreased sensation bilaterally in the foot/toes (L5). The examiner indicated that there was mild incomplete paralysis of the sciatic nerve bilaterally. The examiner opined that the Veteran’s service-connected disabilities impacted the Veterans’ employment as he was unable to perform duties requiring repetitive bending, stooping, crawling and climbing of stairs. He could not do prolonged walking or standing and was unable to climb ladders, run, lift or carry heavy or moderate weight objects. The examiner noted that the Veteran last worked as a material handler of steel which required heavy lifting, carrying, pushing, pulling, bending and prolonged standing and walking. He would be unable to perform these types of duties. The examiner noted that if the Veteran’s educational and work experience was such that he would be unable to obtain other than this type of work, then he would be unable to obtain or retain substantially gainful employment based upon his service-connected disabilities. A March 2015 private treatment report noted that the Veteran was “doing well, no complaints” as there was no reported pain in the muscles or joints, no limitation of range of motion and no paresthesias or numbness. In October 2015, the Veteran stated that the peripheral neuropathy in his lower extremities caused him to fall and lose his balance and that the peripheral neuropathy in his upper extremities made it difficult for him to pick himself back up. He also had additional limitations as a result of his service-connected lumbar spine disability while his service-connected bilateral hearing loss and tinnitus resulted in constant miscommunication with his wife. The Veteran reported that he was unable to sit for more than 10 minutes before his back became stiff and painful and that it took him 5 minutes to stand from a seated position and could not stand long enough to cook a meal or wash dishes. A January 2016 private treatment report noted a normal wellness examination as the Veteran had full range of motion of his extremities and was noted to be a low risk for falls. A May 2016 private treatment note indicated that the Veteran had a very chronic mild and nondescript limb-girdle muscular dystrophy while a June 2016 private treatment report noted that the Veteran had a constellation of signs and symptoms consistent with a chronic muscular dystrophy not otherwise specified (NOS). In a January 2017 Vocational Employability Assessment, a rehabilitation counselor opined that as a result of the Veteran’s service-connected disabilities, it was more likely than not that the Veteran was unable to secure and follow a substantially gainful occupation, to include sedentary employment, since he was forced to stop working as a warehouse supervisor in November 2008. The correspondence noted that the Veteran last worked as a clerk at the Home Depot in April 2009. The vocational assessment opined that the Veteran would not be able to perform sedentary work in part because of his limitation on sitting and that the Veteran’s history and educational background did not present him with sufficient skills for work classified as sedentary. A March 2017 private wellness examination noted that the Veteran was “doing well, no complaints” as there was no reported pain in the muscles or joints, no limitation of range of motion and no paresthesias or numbness. An April 2017 private treatment report noted that the Veteran reported having severe pain in his back and legs and had experienced a number of falls. Neurologically, there was no numbness, tingling or weakness. A May 2017 follow up treatment report indicated that the Veteran felt “much better” today. It was noted that the Veteran had an injection to his back and his neck pain was much better. He had a full range of motion of his extremities without deformities or edema. A June 2017 private treatment report noted that the Veteran reported that he felt that his neuropathy was impacting his legs as they felt weak and unsteady. He had a cane and a walker at home but he did not use them currently. Examination of the musculoskeletal system revealed no joint or back pain or muscle problems while the neurologic examination revealed no weakness, numbness or tingling. A September 2017 private treatment report noted that there was no reported pain in the muscles or joints, no limitation of range of motion and no paresthesias or numbness. 1. Increased Ratings Laws and Regulations The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claims or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claims, in which case, the claims are denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2012). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran’s entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. The Court also discussed the concept of the “staging” of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. See also Hart v. Mansfield, 21 Vet. App. 505 (2008). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2017). In this case, the Veteran is competent to testify on factual matters of which he has first-hand knowledge. Washington v. Nicholson, 19 Vet. App. 362 (2005). He is also competent to report symptoms of his peripheral neuropathy. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994). The Veteran is competent to describe his symptoms and their effects on employment or daily activities. His statements have been consistent with the medical evidence of record, and are probative for resolving the matters on appeal. The Board will consider not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. On January 30, 2009, the Veteran filed his claim for increased ratings for bilateral peripheral neuropathy of the lower extremities. In the April 2009 rating decision, the RO assigned two 10 percent disability ratings for bilateral peripheral neuropathy of the lower extremities involving the sciatic nerves effective January 30, 2009, under Diagnostic Code 8720 (neuralgia of the sciatic nerve). Given that there is a diagnosis of bilateral paralysis of the sciatic nerve, it is more appropriate to rate the bilateral peripheral neuropathy of the lower extremities under Diagnostic Code 8520. Regardless, the Board notes that Diagnostic Code 8720, neuralgia relating to impairment of the sciatic nerve, and Diagnostic Code 8520, paralysis of the sciatic nerve, are rated identically. Under this code, a 20 percent evaluation is warranted for moderate incomplete paralysis of the sciatic nerve of the lower extremity. A 40 percent evaluation is warranted for moderately severe incomplete paralysis of the sciatic nerve of the lower extremity. A 60 percent evaluation is warranted for severe incomplete paralysis, with marked muscular atrophy, of the sciatic nerve of the lower extremity. An 80 percent evaluation is warranted for complete paralysis of the sciatic nerve of the lower extremity. 38 C.F.R. § 4.124a, Diagnostic Codes 8520, 8720. The term “incomplete paralysis” indicates a degree of lost or impaired function that is substantially less than that which is described in the criteria for an evaluation for complete paralysis of this nerve, whether the less than total paralysis is due to the varied level of the nerve lesion or to partial nerve 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. Complete paralysis of the sciatic nerve is indicated where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild,” “moderate” and “severe” are not defined in the VA Schedule for Ratings 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 (2017). It should also be noted that use of such terminology 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 (2017). The record on appeal demonstrates that, in addition to peripheral neuropathy secondary to hydrocarbon exposure, medical professionals have diagnosed lumbar radiculopathy, diabetic peripheral neuropathy, and myopathy. The Board, however, is precluded from differentiating between symptomatology attributed to a non-service-connected disability and a service-connected disability in the absence of medical evidence which does so. See Mittleider v. West, 11 Vet. App. 181, 182 (1998). In a September 2013 VA examination report, the examiner indicated that the Veteran had overlapping symptoms and physical findings that most likely represented a combination of diagnoses. The examiner noted that since she had not previously examined the Veteran, it was not possible to discern which disorder primarily contributes to the findings. In a May 2014 VA examination, that same examiner reiterated that the Veteran had overlapping symptoms and physical findings that most likely represented a combination of diagnoses. In light of the above, the Board finds that the medical evidence does not differentiate between symptomatology attributed to the service-connected peripheral neuropathy and symptomatology attributed to non-service-connected disorders. Therefore, the Board finds that all neurological symptomatology in the lower extremities will be attributed to the service-connected peripheral neuropathy in the lower extremities. Analysis Based on the evidence, the Board does not find that the Veteran is entitled to evaluations in excess of the current 20 percent disability ratings for his peripheral neuropathy of the bilateral lower extremities for the period since January 30, 2009 as there is no indication that incomplete paralysis is more than moderate to warrant disability ratings in excess of 20 percent. Notably, the record demonstrates that the Veteran had numbness, pain and diminished reflexes in the bilateral lower extremities. However, the Board finds that the severity of the Veteran’s symptoms does not rise above a “moderate” level. While there is some impairment bilaterally, none of the tested areas show more than a moderate impairment. While reflexes and sensation were diminished, neither was fully absent. Similarly, strength was never noted to be less than 4/5 in any of the examination findings. The September 2013 and May 2014 VA examiners also specifically indicated that the Veteran only had mild incomplete paralysis of the sciatic nerve bilaterally, which further supports the conclusion that a higher rating than 20 percent is not warranted for either lower extremity. Moreover, there were no indications of changes in bowel or bladder habits and there is no evidence of incapacitating episodes in the Veteran’s treatment records. The Board notes that an April 2017 private treatment report indicated that the Veteran reported having severe pain in his back and legs and had experienced a number of falls. However, the neurological examination revealed that there was no numbness, tingling or weakness. Additionally, a May 2017 follow up treatment report indicated that the Veteran felt “much better” while a more recent treatment report in September 2017 noted that there was no reported pain in the muscles or joints, no limitation of range of motion and no paresthesias or numbness. As a result, the April 2017 complaints of severe pain in his back and legs appear to be acute as they were medically addressed which resulted in noted improvement. As a result, the Board again finds that the evidence of record does not support ratings of 40 percent for moderately severe symptoms under Diagnostic Code 8520, as the medical evidence as a whole supports a disability picture consistent with no more than moderate incomplete paralysis of the sciatic nerve of the right and left lower extremities. While the Veteran is competent to describe the radiating symptoms, the medical evidence of record demonstrates that manifestations of the Veteran’s service-connected peripheral neuropathy of the left and right lower extremities are wholly sensory and are moderate in degree. In light of his symptoms and clinical findings, the Board concludes that these neurologic abnormalities approximate no more than moderate incomplete paralysis of the sciatic nerve of the left and right lower extremities contemplated by the current 20 percent evaluations assigned for the period since January 30, 2009. 2. TDIU Laws and Regulations A TDIU may be assigned when a 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 disabilities. 38 C.F.R. § 4.16(a) (2017). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. Id. Even if a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), rating boards should refer to the Director, Compensation and Pension Service for extra-schedular consideration all cases where the veteran is unable to secure or follow a substantially gainful occupation by reason of service- connected disability. 38 C.F.R. § 4.16(b) (2017). See also Fanning v. Brown, 4 Vet. App. 225 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. In determining whether unemployability exists, consideration may be given to the Veteran’s level of education, special training and previous work experience, but not to his age or to any impairment caused by nonservice- connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Board emphasizes entitlement to an extraschedular rating under 38 C.F.R. § 3.321(b) (1) and a TDIU extraschedular rating under 38 C.F.R. § 4.16(b), although similar, are based on different factors. See Kellar v. Brown, 6 Vet. App. 157 (1994). An extraschedular rating under 38 C.F.R. § 3.321(b)(1), as discussed above, is based on the fact that the schedular ratings are inadequate to compensate for the average impairment of earning capacity due to the Veteran’s disability. Exceptional or unusual circumstances, such as frequent hospitalization or marked interference with employment, are required. In contrast, 38 C.F.R. § 4.16(b) merely requires a determination that a particular veteran is rendered unable to secure or follow a substantially gainful occupation by reason of his or her service-connected disabilities. See VAOPGCPREC 6-96. Additionally, the Board cannot assign an extraschedular evaluation in the first instance. See Floyd v. Brown, 9 Vet. App. 88 (1996); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Instead, the Board must refer the Veteran’s claims to the Under Secretary for Benefits or Director of Compensation and Pension Service for this special consideration when the issue is either raised by the claimant or is reasonably raised by the evidence of record. See Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). Only after the Director has determined whether an extraschedular evaluation is warranted does the Board have jurisdiction to decide the merits of the extraschedular aspect of the claims. In February 2013, the Veteran testified at a videoconference conference that he stopped working because of his service-connected disabilities. Thus, the issue of entitlement to a total disability rating based on individual unemployability was raised pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). Period prior to September 25, 2013 For the period prior to September 25, 2013, the Veteran was service connected for peripheral neuropathy of the left lower extremity at a 20 percent rating, for peripheral neuropathy of the right lower extremity at a 20 percent rating, for degenerative arthritis of the lumbar spine at a 10 percent rating, for neuropathy of the upper left extremity at a 10 percent rating, for neuropathy of the upper right extremity at a 10 percent rating, for tinnitus at a 10 percent rating, for bilateral hearing loss at a noncompensable evaluation and for erectile dysfunction at a noncompensable evaluation. The Veteran’s had a combined disability rating of 60 percent, with special monthly compensation under 38 U.S.C. § 1114, subsection (k); 38 C.F.R. § 3.350 (a) for loss of a creative organ. The Board observes that for the period prior to September 25, 2013, the Veteran did not have one service-connected disability rated at least 60 percent, or two or more disabilities with a combined rating of at least 70 percent, with one disability rated at 40 percent. As such, the criteria for a schedular TDIU under 38 C.F.R. § 4.16 (a) are not met. On review of the record, the Board finds that for the period prior to September 25, 2013, the Veteran was not unemployable by reason of his service-connected disabilities and that referral to the Director, Compensation and Pension Services, for extra-schedular consideration is thus not warranted. The Veteran has maintained that he is unemployable due to the effects of his service-connected disabilities. The record demonstrates that the Veteran was formerly employed as a material handler of steel and worked primarily in construction. It therefore appears that his prior work experience involved mostly manual labor, and not sedentary work. That alone, however, does not necessarily mean that the Veteran for this time period was not able to secure or follow a substantially gainful sedentary occupation. As noted above, the evidence clearly reveals that for the period prior to September 25, 2013, the Veteran had significant impairment resulting from his service-connected disabilities that had been found to inhibit his ability to work in manual labor jobs. While the Board is sympathetic for the restrictions that encompassed these disabilities, the evidence clearly demonstrates that the Veteran’s service-connected disabilities did not preclude all forms of employment. Notably, the May 2012 VA examiner indicated that the Veteran’s peripheral nerve condition had impacted his work as he had not been working since November 2008. However, the March 2009 VA noted that the effect of the Veteran’s peripheral neuropathy on his daily activities was moderate while the December 2010 VA examiner noted that the Veteran’s occupation was not affected by his condition(s). The Board additionally notes that while the Veteran indicated that his service-connected bilateral hearing loss and tinnitus resulted in constant miscommunication with his wife, these disabilities are not shown to have been either by themselves or in concert with the other service-connected disabilities to preclude him from maintaining all forms of substantially gainful employment. Again, the central inquiry is whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). The Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran’s service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment for the period before September 25, 2013. Accordingly, the Board finds that referral for consideration of entitlement to TDIU on an extraschedular basis is not required. Period Since September 25, 2013 For the period since September 25, 2013, the Veteran is service connected for peripheral neuropathy of the left lower extremity at a 20 percent rating, for peripheral neuropathy of the right lower extremity at a 20 percent rating, for peripheral neuropathy (femoral) of the left lower extremity at a 10 percent rating, for peripheral neuropathy (femoral) of the right lower extremity at a 10 percent rating, for degenerative arthritis of the lumbar spine at a 10 percent rating, for neuropathy of the upper left extremity at a 10 percent rating, for neuropathy of the upper right extremity at a 10 percent rating, for tinnitus at a 10 percent rating, for bilateral hearing loss at a noncompensable evaluation and for erectile dysfunction at a noncompensable evaluation. The Veteran’s currently has a combined disability rating of 70 percent, with special monthly compensation under 38 U.S.C. § 1114, subsection (k); 38 C.F.R. § 3.350 (a) for loss of a creative organ. Notably, in its March 2016 decision, the Board granted separate 10 percent ratings for peripheral neuropathy (femoral) of the left lower extremity and peripheral neuropathy (femoral) of the right lower extremity, both effective September 25, 2013. As a result, the Veteran now has a combined rating of 50 percent for those disorders of common etiology (peripheral neuropathy of the bilateral extremities rated as 20 percent disabling each and peripheral neuropathy (femoral) of the bilateral lower extremities rated each at 10 percent disabling). Accordingly, from September 25, 2013, the Veteran has a combined 70 percent evaluation. In addition, the Veteran has had at least one disability, based on common etiology, rated at 40 percent throughout this period. Therefore, for the period since September 25, 2013, the Veteran’s service-connected disabilities meet the rating percentage threshold for a TDIU. 38 C.F.R. § 4.16(a). Having met the objective criteria for a TDIU, the remaining question before the Board is whether the Veteran’s service-connected disabilities preclude him from securing or following substantially gainful employment. 38 C.F.R. § 3.321, 3.340, 3.341, 4.16. Here, the central inquiry is again whether the Veteran’s service-connected disabilities, alone, are of sufficient severity to preclude him from obtaining and maintaining all forms of substantially gainful employment. See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Considering the governing legal authority in light of the above, the Board finds that the criteria for a TDIU are not met. The Veteran has maintained that he is unemployable due to the effects of his service-connected disabilities. However, most probative evidence clearly demonstrates that the Veteran’s service-connected disabilities do not preclude all forms of employment. As noted above, the Veteran previously worked as a steel handler and last worked as a clerk for Home Depot in April 2009. On his July 2013 VA Form 21-8940, he indicated that he completed 3 years of high school and also achieved a degree in environmental facilities technologies from a trade school in Tucson, Arizona. The Board notes that while the evidence of record does indicate that that Veteran’s service-connected disabilities interfered with employment that required physical exertion, they do not render the Veteran unable to obtain or maintain substantially gainful employment. As noted, the May 2014 VA examiner noted that the Veteran could not do prolonged walking or standing and was unable to climb ladders, run, lift or carry heavy or moderate weight objects and that if the Veteran’s educational and work experience was such that he would be unable to obtain other than this type of work, then he would be unable to obtain or retain substantially gainful employment based upon his service-connected disabilities. Additionally, in a January 2017 Vocational Employability Assessment, a rehabilitation counselor opined that it was more likely than not that the Veteran was unable to secure and follow a substantially gainful occupation, to include sedentary employment as a result of the Veteran’s service-connected disabilities. However, the Board finds that the limitations noted by the VA examiners specifically address the physical limitations surrounding potential employment. Notably, the September 2013 VA examiner also indicated that most of the Veteran’s jobs required heavy lifting and strenuous work and that the Veteran was limited to work requiring no prolonged walking or standing and no heavy lifting or carrying. These noted physical limitations alone again do not necessarily mean that the Veteran is not able to secure or follow a substantially gainful sedentary occupation. In this regard, the Board is cognizant that the conclusion as to whether someone is unemployable is not a medical determination, but rather a legal determination. Thus, the Board has looked to the specific symptoms and manifestations of his service-connected disabilities, particularly with respect to those likely to cause practical functional impairment in an occupational setting. Here, while the Veteran was previously employed in positions that involved physical labor and he has significant limitations with physical labor, it cannot be said, based on the overall degree of disability, that the Veteran is precluded from other forms of substantially gainful employment due to his service-connected disabilities. The Board notes again that the May 2014 VA examiner again opined that if the Veteran’s educational and work experience was such that he would be unable to obtain other than manual type of work, then he would be unable to obtain or retain substantially gainful employment based upon his service-connected disabilities. Additionally, the rehabilitation counselor in a January 2017 Vocational Employability Assessment opined that it was more likely than not that the Veteran was unable to secure and follow a substantially gainful occupation, to include sedentary employment as a result of his service-connected disabilities. The counselor’s conclusions were reached via the rationale that the Veteran would not be able to perform sedentary work in part because of his limitation on sitting and that the Veteran’s history and educational background did not present him with sufficient skills for work classified as sedentary. However, the Board notes that the Veteran completed 3 years of high school and achieved an associate’s degree from a trade school which demonstrates that the Veteran’s background could also be conducive to sedentary labor. Additionally, while the January 2017 Vocational Employability Assessment opined that the Veteran would not be able to perform sedentary work in part because of his limitation on sitting, the Board notes that subsequent treatment records do not demonstrate any limitation on sitting or activities that would inhibit sedentary work. Notably, a June 2017 private treatment report indicated that while the Veteran reported that he felt that his neuropathy was impacting his legs as they felt weak and unsteady, he had a cane and a walker at home but he did not use them currently. Additionally, the examination of the musculoskeletal system revealed no joint or back pain or muscle problems while the neurologic examination revealed no weakness, numbness or tingling. More recently, a September 2017 private treatment report again noted that there was no reported pain in the muscles or joints, no limitation of range of motion and no paresthesias or numbness. Accordingly, while the January 2017 Vocational Employability Assessment opined that the Veteran would not be able to perform sedentary work in part because of his limitation on sitting, more recent treatment records demonstrate no noted functional musculoskeletal limitations or reports of pain in the muscles or joints. Finally, the Board notes that in an October 2015 statement, the Veteran reported that the peripheral neuropathy in his lower extremities caused him to fall and lose his balance and that the peripheral neuropathy in his upper extremities made it difficult for him to pick himself back up. He also had additional limitations as a result of his service-connected lumbar spine disability while his service-connected bilateral hearing loss and tinnitus resulted in constant miscommunication with his wife. The Veteran reported that he was unable to sit for more than 10 minutes before his back became stiff and painful and that it took him 5 minutes to stand from a seated position and could not stand long enough to cook a meal or wash dishes. While noting the Veteran’s contentions regarding the potential combined impact of his service-connected disabilities, the Board finds that the evidence of record does indicate that that Veteran’s service-connected disabilities did not render the Veteran unable to obtain or maintain substantially gainful employment. As noted above, the Veteran contends that his peripheral neuropathy caused him to fall and lose his balance while he had additional limitations due to the combination of his lumbar spine, tinnitus and bilateral hearing loss disabilities. The Veteran also noted having difficulty sitting for long periods of time. However, despite these contentions, the Board finds that the most probative evidence of record weighs heavily against finding that the Veteran’s service-connected disabilities, whether alone or in concert, preclude him from obtaining or engaging in substantially gainful employment. As noted above, the Board again finds that the limitations noted by the VA examiners specifically address the physical limitations surrounding potential employment. Additionally, the most recent medical evidence demonstrates that while the Veteran has experienced limitations such as falls and lack of stability, his combined service-connected disabilities have not rendered unable to obtain or maintain substantially gainful employment. Again, while a June 2017 private treatment report noted that the Veteran reported that he felt that his neuropathy was impacting his legs as they felt weak and unsteady, it was also noted that the Veteran had a cane and a walker at home but did not use them. Furthermore, examinations of the musculoskeletal system in June 2017 and September 2017 revealed no joint or back pain or muscle problems while the neurologic examination revealed no weakness, numbness or tingling. As a result, the Board concludes that the most probative evidence of record weighs heavily against finding that the Veteran’s service-connected disabilities preclude him from obtaining or engaging in substantially gainful employment. Based on the evidence in the claims file, the Board believes that the symptomatology associated with the service-connected disabilities is appropriately compensated via the combined 70 percent rating which he is currently assigned. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: ‘[g]enerally, 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.’ See also Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992) and Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In sum, the Board has found the Veteran to not be unemployable due to his service-connected disabilities. Accordingly, the criteria for entitlement to a TDIU are not met. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine is not applicable and the claim is denied. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Both Periods As a final point, the Board again that the Veteran has been found totally disabled, for SSA purposes. Although VA is required to consider the SSA’s findings, the Board is not bound by the findings of disability and/or unemployability made by other agencies, including SSA. See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Adjudication of VA and SSA claims is based on different laws and regulations. Thus, SSA’s determination has little probative value in this matter, and is not sufficient, in this case, to overcome the other evidence. 3. SMC Aid and Attendance Laws and Regulations The Veteran is seeking SMC based on the need for regular aid and attendance or housebound status as a result of his current disabilities. 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. § 1114 (l) (2012) 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 him or herself or to keep him or herself 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 him or herself 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 or her 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. Under 38 U.S.C. § 1114 (s) (2012), special monthly compensation is payable at the housebound rate if the veteran has a single service-connected disability rated as 100 percent and either of the following are met: (1) there is additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems; or (2) he is permanently housebound by reason of service-connected disability or disabilities. 38 U.S.C. 1114 (s) (2012); 38 C.F.R. § 3.350 (i) (2017). The Veteran is service connected for peripheral neuropathy of the left lower extremity at a 20 percent rating, for peripheral neuropathy of the right lower extremity at a 20 percent rating, for peripheral neuropathy (femoral) of the left lower extremity at a 10 percent rating, for peripheral neuropathy (femoral) of the right lower extremity at a 10 percent rating, for degenerative arthritis of the lumbar spine at a 10 percent rating, for neuropathy of the upper left extremity at a 10 percent rating, for neuropathy of the upper right extremity at a 10 percent rating, for tinnitus at a 10 percent rating, for bilateral hearing loss at a noncompensable evaluation and for erectile dysfunction at a noncompensable evaluation. The Veteran’s currently has a combined disability rating of 70 percent, with special monthly compensation under 38 U.S.C. § 1114, subsection (k); 38 C.F.R. § 3.350 (a) for loss of a creative organ. The Veteran’s June 2009 claim for aid and attendance noted that he was falling more frequently as his balance was off. After falls he indicated that he could not get up on his own without assistance. Additionally, the Veteran indicated that he had problems with dressing and bathing. A May 2015 private treatment report also noted that while the Veteran reported that his mobility was declining, he did not need a wheelchair or a scooter. In a November 2016 statement, the Veteran noted that he tripped and fell approximately 3 times a month and struggled to lift himself up after these falls. He also stated that he could not carry significant weight as he had to have his wife carry groceries into their house. The Veteran noted that he used a walker and could barely drive his car as he had to stop every 20 minutes to stretch his legs. He also needed help getting off of the toilet as he did not have enough strength in his legs to lift himself up. He also placed a stool in his kitchen as he was unable to stand for the time it took to prepare a meal. In the January 2017 Vocational Employability Assessment, the rehabilitation counselor noted that the Veteran reported having difficulty around the house but “did what he could” to help his wife around the house. He also noted that he was able to drive but his driving was limited. The Veteran also indicated that he had difficulty with the daily care activities of bathing, showering and dressing and that he needed assistance in getting up whenever he fell. Given the above, the Board finds that entitlement to SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound is not warranted. All requirements for this benefit on either basis are not met. None of the Veteran’s service-connected disabilities have been assigned a total 100 percent evaluation, so the prerequisite for the disability rating requirement for SMC by reason of the need for regular aid and attendance of another person or by reason of being housebound has not been satisfied. With respect to the Veteran being permanently bedridden, the Board finds that there is no indication that the Veteran is required to remain in bed as a result of his service-connected disabilities. The Board acknowledges that the Veteran does need assistance with some activities of daily living, such as bathing, showering and dressing and that he needed assistance in getting up whenever he fell. However, although limited, the Veteran is still able to help around the house and drive a car as he was not housebound. The Board has considered the Veteran’s contention that his service-connected disabilities cause in his need for regular aid and attendance, but has placed greater probative value competent medical evidence of record, but finds that the preponderance of the evidence is against the claim. Therefore, SMC based on the need for aid and attendance or housebound status is denied. For the reasons outlined above, the evidence does not show that the Veteran’s service-connected disabilities render him in need of regular aid and attendance. In sum, the Board finds that as the preponderance of the evidence is against the claim, the benefit-of-the-doubt rule does not apply, and special monthly compensation based on the need for regular aid and attendance or for being housebound must be denied. 38 U.S.C. § 5107 (b) (2012). MICHAEL LANE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD James A. DeFrank, Counsel