Citation Nr: 18156006 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 16-18 637 DATE: December 6, 2018 ORDER Entitlement to a 10 percent rating, but no higher, from August 25, 2014 for left upper extremity (LUE) peripheral neuropathy is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 20 percent prior to August 25, 2014 for LUE peripheral neuropathy is denied. Entitlement to a 10 percent rating, but no higher, from August 25, 2014 for right upper extremity (RUE) peripheral neuropathy is granted, subject to the rules and regulations governing the award of monetary benefits. Entitlement to a rating in excess of 30 percent prior to August 25, 2014 for RUE peripheral neuropathy is denied. Entitlement to a total disability based on individual unemployability (TDIU) due to service-connected disabilities prior to September 1, 2014 and from March 20, 2017 is dismissed as moot. Entitlement to a TDIU from September 1, 2014 to March 20, 2017 is granted subject to the rules and regulations governing the award of monetary benefits. FINDINGS OF FACT 1. Prior to August 25, 2014, the Veteran’s LUE and RUE peripheral neuropathy was not characterized by more than moderate symptomatology. 2. From August 25, 2014, the evidence is at least in equipoise as to whether the Veteran’s LUE and RUE peripheral neuropathy caused no more than mild symptomatology. 3. Prior to September 1, 2014 and from March 20, 2017, the Veteran was in receipt of a 100 percent schedular rating for his service-connected disabilities. 4. From September 1, 2014 to March 20, 2017, the Veteran’s service-connected disabilities precluded substantial gainful employment. CONCLUSIONS OF LAW 1. Prior to August 25, 2014, the criteria for a rating in excess of 20 percent for LUE peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8515. 2. From August 25, 2014, the criteria for a 10 percent rating, but no higher, for LUE peripheral neuropathy are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, DC 8515. 3. Prior to August 25, 2014, the criteria for a rating in excess of 30 percent rating for RUE peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, DC 8515. 4. From August 25, 2014, the criteria for a 10 percent rating, but no higher, for RUE peripheral neuropathy are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. § 4.124a, DC 8515. 5. Prior to September 1, 2014 and from March 20, 2017, the issue of entitlement to TDIU is moot. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. 6. For the period from September 1, 2014 to March 20, 2017, the criteria for a TDIU are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.16 (a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty January 1965 to October 1966. In the appealed September 2014 rating decision, the previously assigned 30 percent rating for the Veteran’s RUE peripheral neuropathy and the previously assigned 20 percent rating for LUE peripheral neuropathy were decreased to noncompensable ratings, both effective August 25, 2014. The Board has considered whether these changes constitute rating reductions subject to the special provisions of 38 C.F.R. § 3.105(e). They do not, as the changes did not affect the combined disability rating or level of compensation paid to the Veteran. See VAOPGCPREC 71-91 (1991). Nevertheless, the propriety of the assigned ratings for the Veteran’s RUE and LUE peripheral neuropathy remain before the Board. With regard to the issue of entitlement to a TDIU, the Board finds that this issue is part and parcel to the increased rating claim on appeal and is therefore appropriately considered herein. See Rice v. Shinseki, 22 Vet. App. 447 (2009). 1. Entitlement to higher ratings for LUE and RUE peripheral neuropathy. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as “staging the ratings.” See Fenderson v. West, 12 Vet. App. 119 (1999); see also Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. The Veteran’s LUE and RUE peripheral neuropathies are rated under DC 8515. Under DC 8515 for paralysis of the median nerve, a 10 percent rating is warranted for mild incomplete paralysis of both the minor and major extremities; 20 percent and 30 percent ratings are warranted for moderate incomplete paralysis of the minor and major extremity, respectively; 40 percent and 50 percent ratings are warranted for severe incomplete paralysis of the minor and major extremity, respectively; and 60 percent and 70 percent ratings are warranted for complete paralysis of the minor and major extremity, respectively, the hand inclined to the ulnar side, the index and middle fingers more extended than normally, considerable atrophy of the muscles of the thenar eminence, the thumb plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of index finger and feeble flexion of middle finger, cannot make a fist, index and middle fingers remain extended; cannot flex distal phalanx of thumb, defective opposition and abduction of the thumb, at right angle to palm; flexion of wrist weakened; and pain with trophic disturbances. 38 C.F.R. § 4.124a. The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. As an initial matter, the Board notes that the Veteran’s claims for increased ratings for his LUE and RUE peripheral neuropathy were received on March 10, 2014. At that time, his LUE peripheral neuropathy was rated 20 percent and his RUE peripheral neuropathy was rated 30 percent. From August 25, 2014, the Veteran has been assigned noncompensable ratings for both his LUE and RUE peripheral neuropathy. The Veteran asserts, however, that higher ratings are warranted. In an increased rating claim, the Board must consider the evidence of disability during the period one year prior to the application. Hazan v. Gober, 10 Vet. App. 511 (1997). In July 2012, the Veteran underwent a VA examination to evaluate his bilateral peripheral neuropathy. The examiner documented moderate intermittent pain, moderate paresthesias and/or dysesthesias, and moderate numbness. The Veteran also demonstrated decreased strength, reflexes, and sensation to light touch. No muscle atrophy was documented. The examiner indicated that the Veteran had moderate incomplete paralysis of the left upper radicular group. Thereafter, the record is silent for symptomatology associated with the Veteran’s bilateral peripheral neuropathy until July 2014 when he reported pins and needle like pain. See July 2014 VA Treatment records. On August 25, 2014, the Veteran was provided a VA examination to evaluate his bilateral peripheral neuropathy. The examiner documented mild paresthesias and/or dysesthesias and mild numbness. The examiner also documented no decreased strength or sensation and no muscle atrophy. The Veteran indicated that he was right handed and he had no symptoms of neuropathy in the hands/upper extremities. VA treatment records indicate that following the August 2014 VA examination, the Veteran’s neuropathy was controlled on gabapentin. After considering the evidence of record under the regulations as specifically set forth under 38 C.F.R. § 4.124a, the Board finds that, prior to August 25, 2014, the severity of the Veteran’s bilateral upper extremity peripheral neuropathy was not productive of severe symptomatology or severe incomplete paralysis (i.e., 50 percent rating for major extremity and 40 percent rating for minor extremity). As such, for the period prior to August 25, 2014, a higher 40 percent rating for LUE peripheral neuropathy and/or a higher 50 percent rating for RUE peripheral neuropathy is not warranted. From August 25, 2014, however, the Board finds the evidence is at least in equipoise as to whether the Veteran’s LUE and RUE peripheral neuropathy was productive of mild symptomatology. Chiefly, the Veteran demonstrated bilateral upper extremity mild paresthesias and/or dysesthesias and mild numbness. Such symptoms are commensurate to 10 percent ratings for both minor and major extremities under DC 8515. Accordingly, from August 25, 2014, 10 percent ratings are assigned for LUE and RUE peripheral neuropathy. Ratings in excess of 10 percent are not warranted because the evidence does not show that from August 25, 2014, the Veteran’s LUE and RUE peripheral neuropathy have been manifested by moderate incomplete paralysis. The Board acknowledges that the representative, by and on behalf of the Veteran, contends that the Veteran’s symptoms were more severe than represented in the August 2014 VA examination. See August 2018 Appellate Brief. However, to that end, although the Veteran is able to comment as to the perceived severity of his symptoms, the Board emphasizes that he and his representative are not competent to opine as to the severity of the Veteran’s peripheral neuropathy. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board also acknowledges that the most recent VA examination is several years old. However, neither the Veteran nor his representative has asserted that the Veteran’s bilateral upper extremity peripheral neuropathy has worsened since the prior examination. Moreover, the VA treatment records do not show that the severity has increased. The Board emphasizes that the passage of time alone, without an allegation of worsening since the last VA examination, does not warrant a new examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Therefore, the Board concludes that additional development is not required. 2. Entitlement to a TDIU. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340(a)(1). A total disability rating for compensation purposes may be assigned on the basis of individual unemployability when the 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). In such an instance, 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, and sufficient additional disability must bring the combined rating to 70 percent or more. Id. The Board must evaluate whether there are circumstances in the Veteran’s case, apart from any nonservice-connected conditions and advancing age, which would justify a TDIU. 38 C.F.R. §§ 3.341(a), 4.19; see Van Hoose v. Brown, 4 Vet. App. 361 (1993); see also Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). The Veteran’s service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. 38 C.F.R. § 4.16(b). The Board also notes that for the period prior to September 1, 2014 and from March 20, 2017, the Veteran has been awarded a 100 percent rating for prostate cancer. Although the receipt of a 100 percent disability evaluation does not necessarily moot the issue of entitlement to a TDIU, for these periods, the Veteran was also awarded special monthly compensation (SMC) under 38 U.S.C. § 1114(s), based on his 100 percent schedular rating for prostate cancer and additional disabilities that are independently rated at 60 percent or more. As such, the Veteran’s claim for a TDIU from July 5, 2012 to September 1, 2014 and from March 20, 2017 is also rendered moot. See Bradley v. Peake, 22 Vet. App. 280 (2008); see also Buie v. Shinseki, 24 Vet. App. 242 (2010). Therefore, the remaining period for consideration of entitlement to a TDIU is from September 1, 2014 to March 20, 2017. From September 1, 2014 to March 20, 2017, the Veteran was service-connected for dysthymic disorder (70 percent), prostate cancer (40 percent from September 1, 2014 and 60 percent from December 8, 2015), diabetes mellitus type II (20 percent), left lower extremity (LLE) peripheral neuropathy (20 percent), right lower extremity (RLE) peripheral neuropathy (20 percent), RUE peripheral neuropathy (10 percent, as of the date of this decision), and LUE peripheral neuropathy (10 percent, as of the date of this decision). These disabilities result in a 90 percent combined disability rating. Accordingly, from September 1, 2014 to March 20, 2017, the Veteran has met the schedular requirements for assignment of a TDIU under 38 C.F.R. § 4.16(a). Therefore, the pertinent question is whether these disabilities preclude substantially gainful employment. The record indicates that the Veteran left high school in the ninth grade, with no further education. See July 2014 VA Examination report. The Board finds that the collective impairment of the Veteran’s service-connected disabilities renders him unable to obtain and maintain any form of gainful employment. In this regard, in a September 2014 VA examination, the examiner determined that the Veteran was precluded from performing physical employment that requires push/pull, lift/carry due to lower extremity peripheral neuropathy and prostate cancer, but would not be prevented from performing sedentary work. However, the Veteran’s July 2012 and July 2014 VA psychological examinations indicate that he is even more limited. Namely, the Veteran’s psychiatric symptomatology consisted of depressed mood, anxiety, chronic sleep impairment, impaired short/long term memory, impaired judgment, disturbance of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, and difficulty in adapting to stressful circumstances. See July 2014 VA Examination report. Such symptoms result in decreased work efficiency and ability to perform occupational tasks and would further limit the Veteran’s ability to perform sedentary work. Based on the foregoing, the Board finds that the evidence supports a finding of unemployability. Chiefly, the Veteran has significant occupational limitations due to physical disabilities that would severely impact his ability to perform physical labor. He also has psychiatric limitations and little education which suggests unsuitability for sedentary employment. Accordingly, the Board finds that entitlement to a TDIU is warranted for the period from September 1, 2014 to March 20, 2017. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. E. Metzner, Associate Counsel