Citation Nr: 1808607 Decision Date: 02/09/18 Archive Date: 02/20/18 DOCKET NO. 13-31 147A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to service connection for heart disease, to include ischemic heart disease (IHD) as secondary to herbicide exposure during military service. 2. Entitlement to an initial evaluation in excess of 10 percent for left lower extremity diabetic peripheral neuropathy prior to July 22, 2014, and in excess of 20 percent thereafter. 3. Entitlement to an initial evaluation in excess of 10 percent for right lower extremity diabetic peripheral neuropathy prior to July 22, 2014, and in excess of 20 percent thereafter. 4. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: The American Legion WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from August 1967 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a Board hearing before the undersigned Veterans Law Judge in October 2017. FINDINGS OF FACT 1. The Veteran has not had IHD at any time from contemporaneous to when he filed his claim to the present. 2. The Veteran's aortic valve sclerosis/aortic arteriosclerotic disease is not shown to have manifested during military service or for many years thereafter. 3. The first factually ascertainable evidence of diabetic peripheral neuropathy of the bilateral lower extremities during the appeal period is on December 15, 2009. 4. For the period prior to July 22, 2014, the Veteran's diabetic peripheral neuropathy disabilities of his lower extremities are not more than mild in severity. 5. For the period of July 22, 2014 through October 24, 2017, the Veteran's diabetic peripheral neuropathy disabilities of his lower extremities are not more than moderate in severity. 6. Beginning October 25, 2017, by resolving doubt in his favor, the Veteran's diabetic peripheral neuropathy disabilities of his lower extremities more closely approximates to moderately severe in severity; there is no evidence throughout the appeal period of any marked muscle atrophy associated with his neurological disabilities. 7. The Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for heart disease, to include aortic valve sclerosis/aortic arteriosclerotic disease, have not been met. 38 U.S.C. §§ 1110, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for establishing separate 10 percent evaluations, beginning December 15, 2009, for the Veteran's bilateral diabetic peripheral neuropathy of his lower extremities have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.400 (2017). 3. For the period of December 15, 2009 through July 21, 2014, the criteria for establishing separate evaluations in excess of 10 percent for the Veteran's diabetic peripheral neuropathy of his bilateral lower extremities have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 4. For the period of July 22, 2014 through October 24, 2017, the criteria for establishing separate evaluations in excess of 20 percent for the Veteran's diabetic peripheral neuropathy of his bilateral lower extremities have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 5. For the period beginning October 25, 2017, the criteria for establishing separate 40 percent evaluations, but no higher, for the Veteran's diabetic peripheral neuropathy of each lower extremity have been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.400, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code 8520 (2017). 6. The criteria for establishing entitlement to TDIU have not been met. 38 U.S.C. §§ 1155, 5107 (2014); 38 C.F.R. §§ 3.102, 4.16 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C. §§ 5103, 5103A (2012) and 38 C.F.R. § 3.159 (2017). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. With respect to the claims herein decided, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159, 3.326 (2017); Service Connection for Heart Disease Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. § 1110 (2012); 38 C.F.R. § 3.303(a) (2017). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). In addition, certain chronic diseases, including arteriosclerosis, myocarditis, and endocarditis (which includes all valvular heart disease), may be presumed to have been incurred during service if the disorder becomes manifest to a compensable degree within one year of separation from active duty. 38 U.S.C. §§ 1101, 1112, 1113, 1137 (2012); 38 C.F.R. §§ 3.307, 3.309 (2017). Additionally, VA has concluded that the Veteran was presumed exposed to herbicides as a result of service in the Republic of Vietnam. See 38 C.F.R. § 3.307(a)(6)(iii) (2017). Herbicide agents are defined by VA regulation as a chemical used in an herbicide used by the United States, specifically noted as: 2,4-D; 2,4,5-T and its contaminant TCDD; cacodylic acid; and, picloram. See 38 C.F.R. § 3.307(a)(6)(i) (2017). VA regulations provide that for a veteran who has been exposed to an herbicide agent, such as that contained in Agent Orange, during military service, service connection for ischemic heart disease (IHD), which includes arteriosclerotic cardiovascular disease including coronary artery disease (CAD), will be presumed. See 38 C.F.R. §§ 3.307(a)(6)(ii), 3.309(e) (2017). Turning to the evidence of record, the Veteran's service treatment records do not document any complaints or treatment for, or diagnoses of, any heart disorders during military service. On separation examination in July 1969, the Veteran's heart was normal and he denied any shortness of breath, pain or pressure in his chest, or palpitation or pounding heart on his Report of Medical History. Following discharge from service, the Veteran initially filed his claim for service connection for heart disease in January 2012. Private treatment records document that in March 2009, the Veteran underwent a cardiac exercise tolerance test, which noted that the Veteran had mild aortic root sclerosis, diastolic dysfunction, mild mitral and tricuspid regurgitation and trace pulmonic insufficiency. The stress test was performed by the Veteran's private physician, Dr. M.K.D. An April 2009 letter from Dr. D.L.B. indicated that a stress test in March 2009 "showed some evidence of ischemia, which was not severe." An April 2009 chest x-ray, however, showed no active cardiopulmonary disease. In an October 2010 letter from VA Dr. R.C. following an Agent Orange Registry examination, there was no notation of any heart disease during that examination. In a May 2011 letter, Dr. M.K.D. stated that she was treating the Veteran for "arteriosclerotic cardiovascular disease (coronary artery disease)," as well as diabetes mellitus, hypothyroidism, hypertension and neuropathy. This letter was obtained with an authorization for release of medical information in February 2012, in which Dr. M.K.D. also hand-wrote that the Veteran had diabetes mellitus, hypothyroidism, hypertension and neuropathy, "which [was] a CAD equivalent." Dr. M.K.D. also provided a February 2012 Heart Disability Questionnaire (DBQ), in which she listed the Veteran's diagnoses of diabetes mellitus, hypothyroidism, hypertension and neuropathy, and checked the box indicating that the Veteran had IHD. She indicated that the Veteran was taking medication for his heart condition, including torsumide (a diuretic for liver disease), pravastatin (for high cholesterol), and coreg (a beta blocker used to treat his hypertension). The Veteran's March 2009 stress test was noted, and that there was evidence of diastolic dysfunction. The Board has reviewed the VA treatment records associated with the claims file; those records generally do not show any heart disorder other than hypertension, although those records do note that the Veteran is being followed by a non-VA cardiologist, Dr. M.K.D. A May 2012 echocardiogram, however, did reveal mild aortic valve sclerosis; a September 2010 VA x-ray revealed no evidence of congestive heart failure or cardiomegaly. In May 2012, the Veteran underwent a VA heart examination. In the report, the examiner indicated that the Veteran did not have IHD. The examiner noted that March 2009 exercise test results, a May 2012 echocardiogram, and a September 2010 chest x-ray. After examination, the examiner found no evidence of IHD and noted that the Veteran had preserved left ventricular function. In September 2012 and March 2013 letters from Dr. M.K.D., she indicated that the Veteran had a long-standing history of diabetes mellitus, hypertension and hypothyroidism, as well as "presumptive" CAD. She noted that additional cardiac testing may be required in those letters. The Veteran testified in his October 2017 hearing that he had CAD, as diagnosed by Dr. M.K.D. in his private treatment records. In November 2017, the Veteran underwent an echocardiogram which indicated mild aortic arteriosclerotic disease, trace tricuspid regurgitation and normal left ventricular systolic functioning. The Veteran additionally underwent a cardiac exercise tolerance test at that time. Dr. M.K.D. noted in those reports that the Veteran's stress test did not reveal any significant changes consistent with ischemia and there were no significant reversible perfusion defects that would be concerning for ischemia. The Veteran was also noted to have mild aortic arteriosclerotic disease at that time. Dr. M.K.D. submitted another heart DBQ in December 2017, at which time she noted the Veteran had diagnoses of hypertension and arteriosclerotic cardiovascular disease since March 2014. With regard to the history of the heart disease diagnosis, she noted the history of diabetes, hypothyroidism, chronic kidney disease and neuropathy. She then checked the box noting that the Veteran's noted conditions did not qualify within the generally accepted medical definition of IHD. (Emphasis added.) She noted that the Veteran's heart condition required continuous medication, but did not indicate what those medications were. She indicated that the Veteran had a heart valve condition involving the aortic and tricuspid valves, noting tricuspid trace regurgitation and mild aortic arteriosclerotic disease. She noted the November 2017 stress test and echocardiogram, noting that the stress test was negative for ischemia. The Board notes that the Veteran indicated that he receives benefits from the Social Security Administration (SSA), although SSA indicated in June 2012 and September 2015 that any records related to any claim for disability benefits had been destroyed and were unavailable. Based on the foregoing evidence, the Board must deny the claim of service connection for heart disease. In this case, the Board reflects that although the Veteran has asserted that he had IHD and/or CAD during the appeal period, such an assertion is based on his treatment with Dr. M.K.D., as noted in his October 2017 hearing. Likewise, it appears that any notation by VA and/or other private physicians in the record also relied upon the testing and diagnosis of Dr. M.K.D. when referencing discussion of the Veteran's cardiac condition. However, it appears that Dr. M.K.D. has not specifically diagnosed the Veteran with CAD/IHD at any time during the appeal period. Rather, it appears that Dr. M.K.D. diagnosed the Veteran with CAD/IHD on an "equivalent" to CAD based on his diabetes, hypothyroidism, neuropathy and hypertensive diagnoses. Such is made particularly clear in Dr. M.K.D.'s September 2012 and March 2013 letters. When Dr. M.K.D. finally performed testing in November 2017, the stress test conducted at that time particularly noted that the Veteran's heart disorder was not ischemic in nature. Dr. M.K.D.'s notation in the December 2017 DBQ further notes that the Veteran's heart disorder was not ischemic in nature. In light of the above, the Board cannot find at this time that the Veteran has a heart disorder that is properly been diagnosed as ischemic heart disease and presumptive service connection must be denied on that basis. See 38 C.F.R. §§ 3.307, 3.309. The Board does find, however, that the record does demonstrate a current non-ischemic heart disorder-aortic valve sclerosis/aortic arteriosclerotic disease-during the appeal period. However, there is no evidence of that disorder being diagnosed during military service or for many years thereafter. See Maxson v. West, 12 Vet. App. 453 (1999), aff'd, 230 F.3d 1330 (Fed. Cir. 2000) (a significant lapse in time between service and post-service medical treatment may be considered as part of the analysis of a service connection claim, which weighs against the claim). The Board acknowledges that the Veteran has asserted that his heart disorder is related to hypertension, his hypertension is not a service-connected disability at this time and service connection on that basis must also be denied at this time. See 38 C.F.R. § 3.310. Regarding herbicide exposure and/or relationship to diabetes and associated neuropathy, in Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010) and Colantonio v. Shinseki, 606 F.3d 1378 (Fed. Cir. 2010), the Federal Circuit held that while there were must be "medically competent" evidence of a current disability, "medically competent evidence is not required to indicate that the current disability may be associated with service." Colantonio, 606 F.3d at 1382; Waters, 601 F.3d at 12. On the other hand, a conclusory generalized lay statement suggesting a nexus between a current disability and service would not suffice to meet the standard of subsection (B), as this would, contrary to the intent of Congress, result in medical examinations being "routinely and virtually automatically" provided to all veterans claiming service connection. Waters, 601 F.3d at 1278-1279. In this case, the Veteran stated in his April 2013 statement that his heart disease was "clearly" related to his diabetes and associated neuropathy. He also has generally asserted throughout the appeal, particularly in his January 2010 claim, that his heart disease was related to his herbicide exposure during military service. Although the Veteran has made such statements, those statements are no more than conclusory without anything more. As such, the Veteran's statements do not trigger VA's duty to provide an examination or obtain a medical opinion in this case. In conclusion, as there is no evidence of any diagnosis during service or within one year of discharge therefrom, and there is no evidence linking that disorder to the Veteran's period of military service, service connection for aortic valve sclerosis/aortic arteriosclerotic disease must also be denied at this time based on the foregoing evidence. See 38 C.F.R. §§ 3.303, 3.307, 3.309. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. Increased Evaluation for Diabetic Peripheral Neuropathy of the Bilateral Lower Extremities Disability ratings are determined by applying the criteria set forth in the 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). 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. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran has been service connected for diabetic peripheral neuropathy of the bilateral lower extremities since August 4, 2010; he has been assigned separate 10 percent evaluations for his right and left lower extremity diabetic peripheral neuropathy, respectively, for the period prior to July 22, 2014, and beginning that date, those evaluations were increased to 20 percent disabling. Those evaluations were assigned under Diagnostic Code 8520 throughout the appeal period. Under Diagnostic Code 8520, which rates injuries to the sciatic nerve, a 10 percent rating is warranted for a mild incomplete paralysis. Moderate incomplete paralysis warrants a rating of 20 percent. Moderately severe incomplete paralysis warrants a 40 percent evaluation. Severe incomplete paralysis, with marked muscular atrophy, warrants a 60 percent evaluation. And finally, complete paralysis, defined as: the foot dangles and drops, no active movement possible of muscles below the knee, or flexion of the knee weakened or (very rarely) lost, warrants an 80 percent evaluation. See 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). In an August 4, 2010 statement, the Veteran filed an informal claim for increased evaluation for his service-connected diabetes mellitus and its associated complications. He indicated in a formal claim form, VA Form 21-526, received later that same month that he had neuropathy at that time. Subsequently, the Veteran submitted private treatment records from Dr. A.L., including an October 2010 letter, which indicated that the Veteran had diabetic neuropathy; with that letter, Dr. A.L. submitted an August 2004 electromyogram (EMG) which indicated bilateral involvement of more than one nerve in any extremity that suggested a peripheral neuropathy; it also indicated bilateral tarsal tunnel syndrome and an injury at the L4-5 nerve roots. The Veteran underwent a VA neurological examination in November 2010. During the examination, the Veteran indicated that he had numbness and tingling of the bilateral lower extremities, which he had been experiencing with paresthesias since 2001 from his bilateral feet to his ankles. He noted that it occurred all day every day, without any treatment but a prescription for diabetic shoes; due to insurance reasons, he had not obtained those shoes at that time. The examiner indicated that his neuropathy involved the L4-S1 nerve roots. On examination, the examiner noted mild decreased sensation to light touch and monofilament testing in the L4-S1 nerve root distribution bilaterally. The examiner noted that there was no functional impairment of his activities of daily living. The Veteran underwent a VA examination of his diabetes mellitus in May 2012; during that examination, it was noted that he had diabetic peripheral neuropathy of his bilateral lower extremities. The Veteran reported bilateral numbness of his lower extremities and discomfort with prolonged standing for more than a few minutes. The Veteran reported mild intermittent pain and numbness of his bilateral lower extremities, but denied constant pain or paresthesias and/or dysesthesias. On examination, muscle strength and reflex testing were normal. The Veteran had decreased light touch/monofilament testing in the ankle/lower legs and feet/toes bilaterally. His position sense, vibration sense and cold sense were normal; there was no muscle atrophy. The examiner concluded that the Veteran's diabetic peripheral neuropathy of the bilateral lower extremities was mild incomplete paralysis of the sciatic nerves bilaterally. Finally, the examiner noted there was no functional impairment of the Veteran's ability to work as a result of his diabetic peripheral neuropathy disabilities. In a private June 2012 treatment record from Dr. M.W., neurological testing of the Veteran's bilateral lower extremities, including his feet, was normal. In his April 2013 notice of disagreement, the Veteran reported more frequent tingling, numbness and pain of his feet and toes. In a July 22, 2014 VA examination of his diabetic peripheral neuropathy, it was reported that the Veteran had moderate intermittent pain and paresthesias and/or dysesthesias of his bilateral lower extremities. On examination, muscle strength testing was normal, although he had decreased reflexes throughout with an absence reflex of his bilateral ankles. The Veteran had decreased light touch/monofilament testing of the ankles/lower leg and feet/toes bilaterally, as well as decreased vibration and cold senses of his bilateral lower extremities. There was no muscle atrophy. The examiner concluded that the Veteran's diabetic peripheral neuropathy of the bilateral lower extremities was moderate incomplete paralysis of the sciatic nerves bilaterally. No EMG was performed at that time. Finally, the examiner noted there was no functional impairment of the Veteran's ability to work as a result of his diabetic peripheral neuropathy disabilities. In his October 2017 hearing, the Veteran reported that he cannot climb stairs because of his constant burning and numbness in his feet; his right was worse than his left. He also reported being unable to walk long distances. He reported both of his bilateral lower extremities had gotten worse, including more pain and numbness, since his last VA examination, although he stated that he would be providing an updated DBQ related to his peripheral neuropathy disabilities. He finally stated that he sometimes could not feet his right foot when he walked. The Veteran submitted a December 14, 2017 diabetic peripheral neuropathy DBQ from his private physician, Dr. A.L. Dr. A.L. noted that the Veteran had diabetic peripheral neuropathy, noting progressive bilateral numbness of his feet, with burning, tingling and pain despite taking Neurontin. The Veteran reported severe constant pain and numbness of his bilateral lower extremities, although he denied any intermittent pain or paresthesias and/or dysesthesias at that time. On examination, the Veteran had decreased muscle strength, reflex and light touch/monofilament, position sense, cold sense and vibration sense testing of his bilateral lower extremities. There was no muscle atrophy noted. Dr. A.L. indicated that the Veteran's bilateral tibial nerve was affected, although he did not indicate the severity of the paralysis due to the Veteran's diabetic peripheral neuropathy in the DBQ report. No EMG was noted at that time. Finally, Dr. A.L. noted that the Veteran had difficulty standing and walking due to his pain and numbness associated with his diabetic peripheral neuropathy disabilities, which would affect his ability to work. The Board notes that the Veteran indicated that he receives benefits from SSA, although SSA indicated in June 2012 and September 2015 that any records related to any claim for disability benefits had been destroyed and were unavailable. The Board has additionally reviewed the VA treatment records associated with the claims file; those records generally show treatment for peripheral neuropathy throughout the appeal period. The treatment records document substantially similar symptomatology as noted in the above records. However, the first notation of any peripheral neuropathy in those records is on December 15, 2009. Based on the foregoing evidence, the Board initially finds that this case stems from a claim for increased evaluation for the Veteran's diabetes mellitus and associated complications received on August 4, 2010. Thus, the Board is compelled to review the evidence in this case and to assign an increased evaluation when it is factually ascertainable that an increase in a disability occurred in the one year prior to receipt of the claim. After such review, the Board finds that it is factually ascertainable that the Veteran had peripheral neuropathy beginning on December 15, 2009. Accordingly, as an initial matter, the Board assigns initial 10 percent evaluations for the Veteran's bilateral diabetic peripheral neuropathy of the bilateral lower extremities as of that date. See 38 C.F.R. § 3.400(o) (2017). Turning to the period of December 15, 2009 through July 22, 2014, the Board finds that an evaluation in excess of 10 percent is not warranted. Throughout that period, the evidence of record discloses that the Veteran's diabetic peripheral neuropathy was only of mild severity. The first evidence of any increase to moderate severity of his diabetic peripheral neuropathy disability was in the July 22, 2014 VA examination. Accordingly, the Board finds that an evaluation in excess of 10 percent prior to July 22, 2014 must be denied. However, beginning October 25, 2017-the date of the Veteran's hearing before the Board-the Board finds that 40 percent evaluations, but no higher, are warranted for the Veteran's diabetic peripheral neuropathy of his lower extremities. The Board specifically acknowledges the Veteran's reports of severe symptoms during that examination, particularly respecting paresthesias and/or dysesthesias and constant pain. Although Dr. A.L. did not comment as to the severity of the neurological impairment in the December 2017 DBQ, by resolving reasonable doubt in favor of the Veteran, the Board finds that the functional impairment-including his limitation on standing and walking, as well as his numbness, tingling, pain and other noted symptoms on examination-more closely approximates to moderately severe incomplete paralysis of the Veteran's sciatic nerves at that time. The Board awards the date of the Board hearing for the increased evaluations in this case, as that is the first date on which the Board can find that an increase in symptomatology had occurred; it is on that date that the Veteran indicated that his symptomatology had worsened and was severe in nature and that he would be obtaining and submitting additional evidence to substantiate that increase in symptomatology. Prior to that date, there is no evidence of that the severity of his neurological disabilities was any more than moderate. Although the Veteran reported severe symptoms during his December 2017 DBQ examination, the Board cannot award an evaluation in excess of 40 percent at this time, as Dr. A.L. was clear that there was no muscle atrophy present at that time. An award of 60 percent under Diagnostic Code 8520 requires severe incomplete paralysis with (Emphasis added) marked muscular atrophy, which is not present at any time during the appeal period. In short, the Board finds that separate 10 percent evaluations are warranted for the Veteran's diabetic peripheral neuropathy of the bilateral lower extremities for the period of December 15, 2009 through July 21, 2014; separate 20 percent evaluations are warranted for the period of July 22, 2014 through October 24, 2017; and, beginning October 25, 2017, separate 40 percent evaluations, but no higher, are warranted. In all other respects, evaluations in excess of those assigned are denied at this time based on the evidence of record at this time. See 38 C.F.R. §§ 3.400, 4.7, 4.124a, Diagnostic Code 8520. In reaching the above conclusions, the Board has appropriately applied the benefit of the doubt doctrine in this case. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Entitlement to TDIU VA will grant TDIU when the evidence shows that the Veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). There are two regulatory subsections that allow for a TDIU. The first, called a "schedular TDIU," is found at 38 C.F.R. § 4.16(a) and requires that certain disability rating percentages be in place. Either the Board or the AOJ can grant a schedular TDIU in the first instance. The second, called an "extraschedular TDIU," is found at 38 C.F.R. § 4.16(b). It does not have the percentage requirement but cannot be granted by the Board or the AOJ in the first instance, it must be submitted to VA's Director, Compensation Service in the first instance. 38 C.F.R. § 4.16(b). The schedular TDIU subsection provides that a total disability rating for compensation may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. If there is only such disability, this disability shall be ratable at 60 percent or more, and that, if there are two or more disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Marginal employment shall not be considered substantially gainful employment for purposes of entitlement to TDIU. Id. Marginal employment generally shall be deemed to exist when a veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Id. Marginal employment may also be established, on a facts-found basis, when earned annual income exceeds the poverty threshold, including but not limited to employment in a protected environment such as a family business or sheltered workshop. Id. Consideration must be given in all claims to the nature of the employment and the reason for termination. Id. Throughout the appeal period, the Veteran's diabetes mellitus with associated chronic renal failure, diabetic peripheral neuropathy of the bilateral lower extremities, and erectile dysfunction have combined to at least a single 60 percent disability rating. Accordingly, the Board finds that the Veteran meets the schedular criteria for TDIU throughout the appeal period. See 38 C.F.R. § 4.16(a). Turning to the evidence of record, the Veteran submitted an Application for TDIU, VA Form 21-8940, in January 2012, at which time he asserted that his diabetes mellitus and associated renal failure and peripheral neuropathy precluded him from obtaining and maintaining substantially gainful employment. He indicated that he had not worked since 1997, as he had been in receipt of SSA disability benefits since that time. The Veteran reported that he had only completed a high school education. In his October 2017 hearing, the Veteran asserted that his service-connected disabilities prevented him from working, because he was tired daily, requiring a nap every day for variable amounts of time. The Veteran indicated at his hearing that he was a supervisor in 1997 prior to leaving his job at that time. He denied any college education, although he reported that early in his career he had some experience as a welder. The Veteran further testified at his hearing that he stopped working in 1997 due to problems with his liver, diabetes, and other medical problems; he stated that he was a bus driver and supervisor at that time and that he could not safely drive a bus due to his medical problems beginning in 1996. Based on those medical problems, the Veteran testified that he was awarded SSA disability benefits since July 1997. He indicated that he had diabetes prior to 1997. Regarding the Veteran's testimony, the Board reflects that although the Veteran may have had diabetes mellitus prior to 1997, his other diabetic complications such as the chronic renal failure and diabetic peripheral neuropathy were not present back in 1997 when he was awarded SSA disability benefits. Although the Veteran indicated that he receives benefits from SSA and has been in receipt of those disability benefits since 1997, SSA indicated in June 2012 and again in September 2015 that any records related to the Veteran's claim for disability benefits had been destroyed and were unavailable. Throughout the appeal period, the Board reflects that the Veteran is shown to have fatigue/tiredness and dyspnea (shortness of breath) with physical exertion related to his nonservice-connected heart valve and/or obstructive sleep apnea disorders. Regarding the Veteran's diabetes and associated complications, the November 2010 VA examiner noted that the Veteran was not functionally impaired in his ability to perform his activities of daily living as a result of his diabetes mellitus and associated neurological disabilities. In fact, that examiner noted that the Veteran reported having a "mild difficulty performing his previous occupation as a result of his diabetes mellitus but his employment was also affected by multiple other medical conditions" as well. The November 2010 examiner therefore concluded that he could not state the degree to which the Veteran's diabetes and associated complications affected his employability without resorting to mere speculation. In a May 2011 VA examination, it was noted that the Veteran had chronic renal failure due to his diabetes mellitus; the Veteran denied any anorexia, weight gain, nausea, vomiting, fever, chills, weakness, fatigue or lethargy, flank or back pain, or lower abdominal or pelvic pain at that time. The examiner noted having to urinate 6-7 times a day and 0-1 times at night, with a normal flow pattern without urgency or dysuria. His chronic renal failure did not require ambulation aids or bedrest within the last year. The Veteran was independent in his activities of daily living. In a November 2011 opinion by private physician, Dr. J.S., it was noted that the Veteran required either insulin and a restricted diet, or an oral hypoglycemic agent and restricted diet to treat his diabetes. In May 2012, the VA examiner noted only that the Veteran's diabetes was managed by restricted diet and did not require the regulation of activities. The examiner noted the Veteran's kidney, peripheral neuropathy and erectile dysfunction complications on examination. The Board reflects that the peripheral neuropathy examination in May 2012 was discussed above, and the kidney examination was the same May 2011 examination report. The May 2012 examiner concluded that the Veteran's diabetes mellitus, peripheral neuropathy and erectile dysfunction disabilities did not impact his ability to work; he was again noted to be independent in his activities of daily living. In a June 2012 statement, the Veteran asserted that he should be awarded TDIU because he has been granted permanent disability by SSA since 1997 and that he was still unable to work. He indicated that he had ongoing doctor's appointments and that he had to try and maintain his health for him and his family. In his April 2013 notice of disagreement and September 2015 VA Form 9, the Veteran made substantially similar statements with regard to his TDIU claim. The July 2014 VA examination of the Veteran's diabetic peripheral neuropathy is discussed in detail above; as noted above, that examiner found that the Veteran's peripheral neuropathy did not impact his ability to work. In November 2015, the Veteran underwent a VA kidney examination, at which time he was diagnosed with diabetic nephropathy. The Veteran was noted to have persistent proteinuria and edema, although he did not require regular dialysis, and did not have frequent attacks of colic with infection or symptomatic renal tubular disorder. The examiner found that the Veteran's kidney disease would not impact his ability to work. He was noted to be a retired transportation supervisor. Finally, the Veteran submitted December 2017 diabetes mellitus, diabetic peripheral neuropathy, and diabetic nephropathy DBQ's from his private physicians. The Board notes that the diabetic peripheral neuropathy DBQ was discussed above. With regard to his diabetes mellitus, it was noted that his diabetes was managed by restricted diet and prescribed oral hypoglycemic agents; he did not require the regulation of activities and did not need to frequently see his diabetic care provider. Regarding his nephropathy, the Veteran's private physician noted that he did not require regular dialysis, but did have recurring proteinuria, slight edema and limitation of exertion due to his renal disease. The examiner noted that the Veteran's kidney disease as having stable functioning. The Veteran's private physicians all noted in the December 2017 DBQ's that the Veteran's diabetic disability and his associated diabetic peripheral neuropathy and diabetic nephropathy did not impact his ability to work. The Board has reviewed the other VA and private treatment records in the claim file. Generally, those records demonstrate continued treatment that is substantially similar to that noted above; those records also do not contain any opinions from those providers related to the Veteran's employability as a result of solely his service-connected disabilities. In this case, the Veteran's main contention for award of TDIU is that he has been unable to work since 1997 and that SSA had previously found him to be permanently disabled. The Board must note that VA is not bound by the determinations of SSA. See 38 U.S.C. 7104 (c); 38 C.F.R. § 19.5; Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); Bernard v. Brown, 4 Vet. App. 384, 394 (1993); see also Murinczak v. Derwinski, 2 Vet. App. 363, 370 (1992) (while VA is not bound by the determination made by SSA, although such evidence is "pertinent"); Martin v. Brown, 4 Vet. App. 136, 140 (1993); cf. Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010) (VA has a duty to assist the Veteran in obtaining SSA records if such are determined to be reasonably relevant to the claim). Although the Board acknowledges that SSA has found the Veteran disabled and awarded him disability benefits, the available evidence of record-including, significantly, the Veteran's own statements-revealed that SSA's finding was based on his nonservice-connected liver disorder (hepatitis and its incumbent effects) as well as a variety of other medical conditions, and not solely based on his service-connected disabilities. With respect to the Veteran's long-standing history of diabetes and although his diabetes may have been one of the medical conditions that was considered in SSA's finding, the Veteran's statements and the other findings of record make clear that his service-connected diabetes mellitus-again, by his own admission in the November 2010 VA examination-only presented a mild difficulty in his ability to work at any point during the appeal period. As to the Veteran's contentions that he is unable to work due to shortness of breath and tiredness, the Board finds those symptoms have been attributed to his nonservice-connected heart valve and obstructive sleep apnea disorders, and not related to his service-connected disabilities. The Board does recognize that the Veteran's service-connected diabetic peripheral neuropathy and renal disease would provide impediments to physical employment in this case, given the limitation on exertion and prolonged standing and walking, as well as climbing stairs noted in the evidence above. However, the Veteran's previous work experience demonstrates that he worked mainly in a sedentary position in which the Veteran's physical limitations would not provide any impediment to employability. Rather, it is clear to the Board that the multitude of private and VA examiners who have examined the Veteran in this case all agreed that his diabetic and associated disabilities would not impact his ability to work. Based on all of the evidence of record, the Board concludes that the Veteran's service-connected disabilities do not preclude him from securing and following a substantially gainful occupation at any time during the appeal period. Accordingly, the claim for entitlement to TDIU must therefore be denied at this time on the basis of the evidence of record. See 38 C.F.R. §§ 3.102, 4.16. In reaching that conclusion, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102. ORDER Service connection for heart disease, to include aortic valve sclerosis/aortic arteriosclerotic disease, is denied. Separate 10 percent evaluations, but no higher, for diabetic peripheral neuropathy of the bilateral lower extremities, for the period of December 15, 2009 through July 21, 2014, are granted, subject to the regulations governing the disbursement of monetary benefits. Separate evaluations in excess of 20 percent for diabetic peripheral neuropathy of the bilateral lower extremities, for the period of July 22, 2014 through October 24, 2017, are denied. Separate 40 percent evaluations, but no more, for diabetic peripheral neuropathy of the bilateral lower extremities, for the period beginning October 25, 2017, are granted, subject to the regulations governing the disbursement of monetary benefits. Entitlement to TDIU is denied. ______________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs