Citation Nr: 18152590 Decision Date: 11/23/18 Archive Date: 11/23/18 DOCKET NO. 16-16 987 DATE: November 23, 2018 ORDER A rating in excess of 20 percent for diabetes mellitus with diabetic retinopathy for the period prior to March 23, 2012, is denied. A rating in excess of 20 percent for the period from March 24, 2012 to August 2, 2018, for diabetes mellitus is denied. A rating in excess of 40 percent for the period since August 2, 2012, for diabetes mellitus is denied. A separate compensable rating for the period prior to March 23, 2012, diabetic retinopathy is denied. A separate rating of 10 percent, but not greater, for the period since March 23, 2012, for diabetic retinopathy is granted, subject to the law and regulations governing payment of monetary benefits. A rating in excess of 40 percent for peripheral neuropathy of the right (major) upper extremity is denied. A rating in excess of 30 percent for peripheral neuropathy of the left (minor) upper extremity is denied. A separate 10 percent rating for peripheral neuropathy of the right lower extremity is granted, subject to the law and regulations governing payment of monetary benefits, for the period from December 6, 1999 to July 10, 2011. A separate 10 percent rating for peripheral neuropathy of the left lower extremity is granted, subject to the law and regulations governing payment of monetary benefits, for the period from December 6, 1999 to July 10, 2011. A rating of 20 percent, but not more, the entire period on appeal, for peripheral neuropathy of the right lower extremity is granted, subject to the law and regulations governing payment of monetary benefits, for the period since July 11, 2011. A rating of 20 percent, but not more, the entire period on appeal, for peripheral neuropathy of the left lower extremity is granted, subject to the law and regulations governing payment of monetary benefits, for the period since July 11, 2011. A compensable rating for erectile dysfunction is denied. A TDIU prior to August 31, 2010, is denied. FINDINGS OF FACT 1. For the period prior to March 23, 2012, the Veteran’s diabetes mellitus, with diabetic retinopathy required the use of insulin and a restricted diet; regulation of activities has not been shown. 2. For the period from March 24, 2012 to August 2, 2018, the Veteran’s diabetes mellitus, required the use of insulin and a restricted diet; regulation of activities has not been shown. 3. For period since August 2, 2018, the Veteran’s diabetes mellitus required the use of insulin more than twice daily, restricted diet, and regulation of activities, without episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider. 4. For the period prior to March 23, 2012, the criteria for a separate compensable rating for diabetic neuropathy has not been shown. 5. For the period since March 24, 2012, a separate compensable rating of 10 percent, but not more, for diabetic retinopathy, is warranted. 6. For the period on appeal, the competent and credible evidence of record does not reflect the peripheral neuropathy of the right upper extremity (major) was manifested by severe incomplete paralysis. 7. For the period on appeal, the competent and credible evidence of record does not reflect the peripheral neuropathy of the left upper extremity (minor) was manifested by severe incomplete paralysis. 8. Prior to July 11, 2011, the competent and credible evidence of record reflects the Veteran has peripheral neuropathy of the right lower extremity lower extremity. 9. Prior to July 11, 2011, the competent and credible evidence of record reflects the Veteran has peripheral neuropathy of the left lower extremity lower extremity 10. Since July 11, 2011, the competent and credible evidence of record reflects the peripheral neuropathy of the right lower extremity was manifest by moderate incomplete paralysis of the right lower extremity, but not severe. 11. Since July 11, 2011, the competent and credible evidence of record reflects the peripheral neuropathy of the left lower extremity was manifest by moderate incomplete paralysis of the right lower extremity, but not severe. 12. Throughout the appeal period, the Veteran’s erectile dysfunction is manifested by difficulty in achieving erections, but without any deformity. 13. The overall competent evidence does not show that the Veteran’s service-connected disabilities, alone or in the aggregate, render him unable to secure or follow a substantially gainful employment prior to August 31, 2010. CONCLUSIONS OF LAW 1. For the period prior to March 23, 2012, a rating in excess of 20 percent for diabetes mellitus, with diabetic retinopathy has not been met. 38 U.S.C. § 1155(2012); 38 C.F.R. 4.119, Diagnostic Code 7913. 2. For the period from March 24, 2012 to August 2, 2018, a rating in excess of 20 percent for diabetes mellitus has not been met. 38 U.S.C. § 1155(2012); 38 C.F.R. 4.119, Diagnostic Code 7913. 3. For the period since August 2, 2018, a rating in excess of 40 percent for diabetes mellitus has not been met. 38 U.S.C. § 1155(2012); 38 C.F.R. 4.119, Diagnostic Code 7913. 4. For the period prior to March 23, 2012, a separate compensable rating for diabetic retinopathy has not been met. 38 U.S.C. § 1155(2012); 38 C.F.R. 4.79, Diagnostic Code 6009. 5. For the period since March 23, 2012, a 10 percent compensable rating for diabetic neuropathy has been met. 38 U.S.C. § 1155(2012); 38 C.F.R. 4.79, Diagnostic Code 6009. 6. The criteria for a rating in excess of 40 percent for peripheral neuropathy of the right (major) upper extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8513 (2017). 7. The criteria for a rating in excess of 30 percent for peripheral neuropathy of the left (minor) upper extremity are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8513 (2017). 8. The criteria for a separate compensable rating of 10 percent for mild peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a; 4.124a, Diagnostic Code 8520 (2017). 9. The criteria for a separate compensable rating of 10 percent for mild peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a; 4.124a, Diagnostic Code 8520 (2017). 10. The criteria for a rating of 20 percent, but not greater, for the period since July 11, 2011, for peripheral neuropathy of the right lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 11. The criteria for a rating in excess of 20 percent, but not greater, for the period since July 11, 2011, for peripheral neuropathy of the left lower extremity are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code 8520 (2017). 12. The criteria for an initial higher (compensable) rating for erectile dysfunction have not been met. 38 U.S.C. 1155, 5107 (2012); 38 C.F.R. §§ 4.20, 4.31, 4.115b, Diagnostic Code, 7522 (2017). 13. The criteria for a TDIU rating prior to August 31, 2010, have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 3.102, 3.340, 3.341, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1966 to April 1967 and from April 1970 to February 1971, with service in the Republic of Vietnam. His decorations include the Combat Infantryman Badge. The Veteran presented sworn testimony at a hearing before the undersigned in February 2017. This appeal was remanded by the Board in May 2017. Increased Rating The Board is charged with the duty to assess the credibility and weight given to evidence. Madden v. Gober, 125 F.3d 1477, 148 (Fed. Cir. 1997), cert. denied, 523 U.S. 1046 (1998); Wensch v. Principi, 15 Vet. App. 362, 367 (2001). Indeed, in Jefferson v. Principi, 271 F.3d 1072 (Fed. Cir. 2001), the United States Court of Appeals for the Federal Circuit (Federal Circuit), citing its decision in Madden, recognized that that Board had inherent fact-finding ability. Id. at 1076; see also 38 U.S.C. § 7104 (a). Moreover, the United States Court of Appeals for Veterans Claims (Court) has declared that in adjudicating a claim, the Board has the responsibility to weigh and assess the evidence. Bryan v. West, 13 Vet. App. 482, 488-89 (2000); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992). As a finder of fact, when considering whether lay evidence is satisfactory, the Board may also properly consider internal inconsistency of the statements, facial plausibility, consistency with other evidence submitted on behalf of the appellant, and the appellant’s demeanor when testifying at a hearing. See Dalton v. Nicholson, 21 Vet. App. 23, 38 (2007); Caluza v. Brown, 7 Vet. App. 498, 511 (1995), aff’d per curiam, 78 F.3d 604 (Fed. Cir. 1996). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran’s particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d at 1377 (Fed. Cir. 2007) (holding that “[w]hether lay evidence is competent and sufficient in a particular case is a factual issue to be addressed by the Board”). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107 (b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations applies, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person’s ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The degree of impairment resulting from a disability is a factual determination and generally the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). The Court has held that “staged” ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Diabetes Mellitus The Veteran was granted service connection for diabetes mellitus, type II, with diabetic neuropathy effective December 1999. The Veteran was granted a 20 percent rating because the evidence showed that the Veteran was required to use insulin, have a restricted diet, but regulation of activities was not present. Effective August 2018, the RO increased the Veteran’s evaluation to 40 percent, due to evidence showing that the Veteran required insulin, regulation of activities, and required more than one daily injection of insulin. Thus, both periods of are being reviewed to determine if an increase is appropriate. In a December 2012, notice of disagreement, the Veteran argued that his diabetic retinopathy should have been rated separately for the period prior to July 30, 2018. As such, the Board has reflected this request by the Veteran in the issues section above. Under DC 7913, the criteria for a 10 percent rating require that diabetes mellitus be manageable by restricted diet only. The criteria for a 20 percent rating are diabetes mellitus requiring insulin and restricted diet; or, an oral hypoglycemic agent and restricted diet. The criteria for a 40 percent rating are diabetes mellitus requiring insulin, restricted diet, and regulation of activities. The criteria for a 60 percent rating are diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. Regulation of activities means avoidance of strenuous occupational and recreational activities. A 100 percent rating requires even more, totally disabling symptomatology. Period Prior to 2018. A review of the treatment notes prior to August 2018 show that the Veteran’s diabetic mellitus was not managed by insulin and a restricted diet until a February 2011 VA examination. At the time of this examination it was noted that he Veteran was on a restricted diet, taking insulin and Metformin to manage his disability. There was no evidence that the Veteran’s physical activities were restricted. The Veteran underwent another VA examination in September 2012, noting that the Veteran was now prescribed insulin more than once per day and he was still on a restricted diet. However, there was still no notation of having to regulate his activities because of diabetes mellitus. During a neurology consult in April 2012, the Veteran subjectively complained that his diabetes mellitus had worsened and was getting worse. The examiner agreed that this diabetic lower extremity neuropathy was worsening. A September 2012 VA examination for the Veteran’s diabetes specifically stated that the Veteran did not have to regulate his activities In January 2014, VA treatment notes stated that the Veteran did not follow a diabetic diet, and that he was active and did all the activities of daily living around his home. The same assessment was provided in October 2013 and June 2013. In October 2015, the Veteran underwent a VA examination for his diabetes mellitus, and it was noted that the Veteran did not require regulation of his activities as part of his medical management of diabetes. Based on the evidence of record, the Board finds that an increased rating for this period is not warranted. Other than the Veteran’s statements that he restricted his activities due to his diabetes mellitus, the evidence of record does not support him. The evidence repeatedly shows, that during this period the Veteran’s wife was ill and he was responsible for all the activities of daily living. Further, there is evidence that he spent an extensive amount of time going back and forth to hospitals and later to hospice care. There are several notations that the Veteran had a hard time managing is disability during this time, because of the stress of his wife’s illness and odd hours staying with her at the hospital. However, the evidence does not support an increased evaluation for this period. The Board thus finds that the Veteran’s diabetes has not met the criteria for a higher rating under DC 7913 for this period because the criteria are successive in nature and regulation of activities is to be shown by medical evidence. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). As the preponderance of the evidence is against an increased rating during this period, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Period Since 2018 As noted above, the Veteran’s diabetes mellitus rating was increased to 40 percent effective August 2, 2018. The Board will evaluate the evidence to determine when a higher rating is warranted. As part of his claim, the Veteran underwent another VA examination in August 2018. The examiner noted that the Veteran had diabetes mellitus with diabetic retinopathy that required insulin more than once daily, regulation of activities, and a restricted diet. The examiner noted that the Veteran visits his diabetic care provided for episodes of ketoacidosis or hypoglycemia less that twice per month. There were no hospitalizations noted for ketoacidosis or hypoglycemia. The Veteran was not diagnosed with renal dysfunction but his diabetic neuropathy and retinopathy, as well as his erectile dysfunction were noted. No other pertinent physical findings, complications, conditions, signs, symptoms, or scars were noted on the examination. The examiner concluded by noting that the functional impact of the Veteran’s disability is significant due to his insulin As there is no evidence that the Veteran had episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, the Board finds that a rating in excess of 40 percent is not warranted for the period since August 2, 2018. The Board accordingly finds that the Veteran’s diabetes has not met the criteria for a 60 percent or higher rating under DC 7913 for this period because the criteria are successive in nature and regulation of activities is to be shown by medical evidence. See Camacho v. Nicholson, 21 Vet. App. 360, 366 (2007). As the preponderance of the evidence is against an increased rating during this period, the benefit-of-the-doubt doctrine does not apply. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Diabetic Retinopathy The Veteran is service connected for diabetic retinopathy that is related to his service connected diabetes mellitus. This disability has been rated as non-compensable from July 11, 2011 to July 30, 2018 and as 10 percent disabling since July 31, 2018. The Board finds that the Veteran’s diabetic retinopathy was not given a separate rating initially because the RO found it to be noncompensably disabling. However, the Board finds that a separate compensable rating for the period since March 23, 2012, is warranted. Diabetic retinopathy is rated under 38 C.F.R. § 4.79, Diagnostic Code 6006, which directs that eye disabilities are to be rated on the basis of either visual impairment or on incapacitating episodes according to a General Rating Formula, whichever results in a higher rating. Prior to July 2011, the Veteran’s retinopathy was not rated as a separate disability. However, the Board notes that in November 2002, the Veteran’s diabetic retinopathy was described as mild by the VA examiner. The Veteran’s vision acuity at this time over 20/30 in the right eye and 20/20 in the left eye at distance. A review of the Veteran’s VA treatment notes, show that in February 2012 he had moderate nonproliferative diabetic retinopathy and blurred vision. In November 2012, a treatment note states that he has very mild nonproliferative diabetic retinopathy that was not affecting his vision. In March 2012, a VA eye examination noted that the Veteran’s diabetic retinopathy was moderate. The examiner diagnosed the Veteran with diabetic retinopathy as well as diabetic neuropathy and erectile dysfunction. In September 2012, the Veteran’s bilateral diabetic retinopathy was evidenced by pain, redness, swelling, discharge, pain that runs across the eyes and is relieved by opening and closing the eye lids. His retinopathy was described as mild. In March 2014, the Veteran’s diabetic retinopathy was noted as mild to moderate. In October 2015, the Veteran underwent a VA examination for his diabetic retinopathy and the examiner noted it was mild. At the Veteran’s VA examination that took place in July 2018, the results of his eye examination showed that his diabetic retinopathy had increased in severity. The Veteran underwent a field vision test that provided objective testing of the current severity of his disability. At the time of the examination, in addition to the Veteran’s diagnosis of diabetic retinopathy, there was an additional diagnosis of keratitis in both eyes as well as macular degeneration in both eyes. Additionally, glare sensitivity as noted in both eyes. At the conclusion of the examination, it was noted that the Veteran’s condition had worsened. After reviewing the evidence of record the Board finds the Veteran is entitled to a separate compensable rating for diabetic retinopathy from March 2012 the Veteran’s diabetic retinopathy was worsening in severity, and was growing from mild to moderate. As such, the Board finds that from March 23, 2012 the Veteran met the criteria for a separate compensable rating for diabetic neuropathy at 10 percent disabling. For the period since August 2, 2018, the evidence does not support a higher evaluation. There is no evidence that the Veteran’s vision acuity had worsened or that he had incapacitating episodes having a total duration of two weeks, but less than four in the previous 12 months. Upper Extremity Peripheral Neuropathy The Veteran’s right upper extremity has been rated as 40 percent disabling since August 2, 2018. The Veteran’s left upper extremity has been rated as 30 percent disabling since August 2, 2018. The Veteran has been rated under 8513 which covers all radicular group. Under Diagnostic Code 8513, a 20 percent evaluation is assigned for mild incomplete paralysis of all radicular groups in the major or minor extremity. 38 C.F.R. § 4.124a. Moderate neuropathy warrants a 40 percent evaluation for the major extremity, and a 30 percent evaluation for the minor extremity. Severe neuropathy warrants a 70 percent evaluation for the major extremity, and a 60 percent evaluation for the minor extremity. With complete paralysis of all radicular groups in the major extremity, a 90 percent evaluation is assigned, and an 80 percent evaluation is assigned for the minor extremity. At the examination that took place in August 2018, constant pain was noted as being mild and having moderate intermittent pain in the bilateral upper extremities. He also reported moderate paresthesias and/or dysesthesias in bilateral upper extremities. His neurological testing showed less than normal grip strength bilaterally. The examiner also noted decreased sensations in the bilateral upper extremities as well as decreased sensation. The Veteran was diagnosed with upper extremity diabetic peripheral neuropathy of the median nerve, moderate and of the ulnar nerve, moderate. The Board finds that an increased evaluation for right upper extremity neuropathy and for left upper extremity neuropathy have not been described as severe at any point during the appeal period. As such, the Board finds that neither his left or right upper extremity neuropathy meets or more nearly approximates higher evaluation during the appeal period. Lower Extremity Peripheral Neuropathy For the period from December 6, 1999 to July 11, 2011, the Veteran was not in receipt of a compensable rating for lower extremity peripheral neuropathy. The Veteran’s right lower extremity has been rated as 10 percent disabling from July 11, 2011 to August 1, 2018 and 20 percent disabling since August 2, 2018. The Veteran’s left lower extremity has been rated as 10 percent disabling from July 11, 2011 to August 1, 2019 and 20 percent disabling since August 2, 2018. The Veteran’s left and right lower extremity peripheral neuropathy has been evaluated pursuant to the criteria found at 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under this Code, complete paralysis of the sciatic nerve, which is rated as 80 percent disabling, contemplates foot dangling and dropping, no active movement possible of muscles below the knee, and flexion of the knee weakened or (very rarely) lost. Incomplete paralysis of the sciatic nerve warrants a 60 percent evaluation if it is severe with marked muscular dystrophy, a 40 percent evaluation if it is moderately severe, a 20 percent evaluation if it is moderate or a 10 percent evaluation if it is mild. For the period prior to July 11, 2011, the Board finds that separate compensable ratings for right and left lower extremity peripheral neuropathy is warranted. VA treatment notes from August 1999 note the Veteran’s complaints of burning and stinging that radiates bilaterally. As such, the Board finds that the impairment indicated more nearly approximates the criteria of mild incomplete paralysis than not; which, in turn, corresponds to the criteria for a 10 percent rating pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8520. Resolving all reasonable doubt in favor of the Veteran, the Board finds he is entitled to separate ratings of 10 percent for mild incomplete paralysis of the right and left lower extremities. See 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7. For the period July 11, 2011 to August 1, 2018, the Veteran began reporting numbness in his feet. In November 2011, he stated that he had pain and numbness in both feet. In February 2012, he had continued complaints on diabetic neuropathy of his feet. In March 2012, the Veteran was complaining neuropathic pain in his knees and moving down to his feet. The assessment was that his diabetes was uncontrolled, primarily due to the Veteran not following his prescribed insulin regimen. A February 2011 VA treatment note from the diabetic control center notes that the Veteran was complaining of pain in his legs and achiness. In April 2011, he reported numbness in both feet as well as tingling. In April 2012, a VA neurologist noted that the Veteran’s lower extremity peripheral neuropathy had worsened and was worsening. He complained of numbness and burning sensation in his feet bilaterally. He also reported that the numbness and tingling extended to his upper thigh. On this date, the Veteran stated that he subjectively felt as though his diabetes was worsening. An September 2012 VA examiner noted that the Veteran had moderate right and left lower extremity neuropathy, as well as moderate paresthesias/dysesthesias and numbness bilaterally. In October 2015, the Veteran underwent a VA examination for his diabetic neuropathy of his lower extremities and it was noted that he had mild paresthesias/dysesthesias and numbness bilaterally as well as decreased sensation. The examiner diagnosed mild neuropathy of the sciatic nerve bilaterally. At the examination that took place in August 2018, constant pain was noted as being severe in the bilateral lower extremities. He also reported severe paresthesias and/or dysesthesias in bilateral lower extremities as well as severe numbness. His neurological testing showed less than normal knee extension, knee flexion, ankle flexion, and ankle dorsiflexion. The Veteran was diagnosed with lower extremity diabetic peripheral neuropathy of the sciatic nerve, moderate and of the femoral nerve, moderate. The Board finds that for the entire period on appeal, a rating of 20 percent more closely approximates the severity of the Veteran’s left and right lower extremity peripheral neuropathy. However, the Board finds that a rating in excess of 20 percent is not warranted, because there is no evidence that the Veteran’s disabilities are severe, or that he incomplete paralysis of the sciatic nerve that is marked by muscular dystrophy. Thus, rating in excess of 20 percent are not warranted under Diagnostic Code 8520. Erectile Dysfunction The Veteran is service connected for erectile dysfunction related to his diabetes mellitus that has been rated as non-compensable since August 2, 2018. When a condition is not listed in the schedule, it will be permissible to rate it under a closely-related disease or injury in which not only the functions affected, but also the anatomical localization and symptomatology are closely analogous. 38 C.F.R. § 4.20 (2017). The Veteran’s service- connected erectile dysfunction may be rated by analogy to penis deformity, with loss of erectile power. 38 C.F.R. §§ 4.20, 4.115(b) Diagnostic Code 7522 (2017). Diagnostic Code 7522 provides a single 20 percent rating where the evidence shows deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115(b), Diagnostic Code 7522. When the requirements for a compensable rating of a diagnostic code are not shown, a non-compensable rating is assigned. 38 C.F.R. § 4.31. As part of his claim, the Veteran underwent a VA examination in August 2018 to determine the severity of his erectile dysfunction. It was noted that the Veteran was diagnosed with erectile dysfunction in 2008. The Veteran is not able to achieve or maintain an erection. At the examination the Veteran refused to have his penis examined; however, the Veteran reported normal anatomy with no penile deformity or abnormality. The medical evidence does not show any penile deformity. Although there is evidence of the Veteran reporting an inability to achieve and/or maintain erections, there is essentially no evidence of any testicular or penile deformities. Absent evidence of penile deformity, even though there is erectile dysfunction, a compensable rating is not warranted under Diagnostic Code 7522. As the requirements for a compensable rating under Diagnostic Code 7522 are not met, a noncompensable (0 percent) rating is proper pursuant to 38 C.F.R. § 4.31. As this is an initial rating case, consideration has been given to “staged ratings” (different percentage ratings for different periods of time, since the effective date of service connection, based on the facts found). Fenderson, 12 Vet. App. at 119. However, staged ratings are not indicated here as the Board finds that the Veteran’s erectile dysfunction has been 0 percent disabling throughout the appeal. As the preponderance of the evidence is against a compensable rating for erectile dysfunction, the benefit-of-the-doubt rule does not apply, and the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert, 1 Vet. App. at 49. Entitlement to an earlier effective date for TDIU The Veteran has asserted entitlement to a TDIU prior to August 31, 2010. A TDIU rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16 (a). For the purpose of establishing one 60 percent disability, or one 40 percent disability in combination, disabilities affecting a single body system are considered as one disability. Id. Disabilities that are not service connected cannot serve as a basis for a TDIU rating. 38 C.F.R. §§ 3.341, 4.19. The provisions governing the assignment of the effective date of an increased rating are set forth in 38 U.S.C. § 5110 (a), (b)(2) and 38 C.F.R. § 3.400 (o). A claim for a TDIU rating is a claim for an increased rating. Dalton v. Nicholson, 21 Vet. App. 23, 31-32 (2007); see also Hurd v. West, 13 Vet. App. 449, 451-52 (2000); Norris v. West, 12 Vet. App. 413, 420 (1999). Generally, the effective date of an award of increased compensation “shall not be earlier than the date of receipt of the application thereof.” 38 U.S.C. § 5110 (a). This statutory provision is implemented by regulation that provides that the effective date for an award of increased compensation will be the date of receipt of claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400 (o)(1). However, an exception is available when the evidence demonstrates that a factually ascertainable increase in disability occurred within the one-year period preceding the date of receipt of a claim for increased compensation. If an increase in disability occurred within one year prior to the claim, the increase is effective as of the date the increase was “factually ascertainable.” 38 U.S.C. § 5110 (b)(2); Dalton, 21 Vet. App. at 31-32; Harper v. Brown, 10 Vet. App. 125 (1997); 38 C.F.R. § 3.400 (o)(1)(2); VAOPGCPREC 12-98 (1998). The United States Court of Appeals for the Federal Circuit has explained that the provisions of 38 U.S.C. § 5110 governing the effective date to be assigned for an increased rating require “that a veteran’s claim for increased disability compensation must be filed within one year of an increase in the disability, as shown by the evidence, in order to obtain an effective date earlier than the date of the claim. “Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (explaining the legislative intent to provide veterans with a one-year grace period for filing their claims). The Board notes that prior to August 31, 2010, the Veteran was service connected for bilateral hearing loss rated as non-compensable, bilateral tinnitus rated as 10 percent disabling, and diabetes mellitus, with retinopathy rated as 20 percent disabling. The Veteran’s overall rating for the period prior to August 31, 2010 was 40 percent. As such, for the period prior to August 31, 2010, the Veteran did not meet the schedular criteria for an award for TDIU and noting herein has changed his rating prior to August 31, 2010. See 38 C.F.R. § 4.16. TDIU may be awarded on an extra-schedular basis if a Veteran fails to meet the applicable percentage standards set forth in 38 C.F.R. § 4.16 (a), but is still unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16 (b). It is the established policy of the Veterans Administration that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). Therefore, in cases where a veteran is unemployable by reason of service-connected disabilities but fails to meet the percentage standards set forth in 38 C.F.R. § 4.16 (a), the case should be submitted to the Director, Compensation and Pension Service for extraschedular consideration. Id. During a psychiatry visit at a VA facility in November 2001, the Veteran stated that he was involved in an accident in 1989 and had to stop working shortly thereafter. However, he did not did not indicate that he stopped working due to a service connected disability. Prior to August 31, 2010, the Veteran did not state that he was not able to work due his service connected disabilities, and he did not meet the schedular requirements for entitlement to a TDIU. As such, the finds that the weight of the evidence show that his service-connected disabilities did not prevent him from obtaining or maintaining substantially gainful employment. Thus, referral for extraschedular consideration is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. Anderson