Citation Nr: 18115995 Decision Date: 07/03/18 Archive Date: 07/03/18 DOCKET NO. 13-25 021A DATE: July 3, 2018 ORDER Service connection for right upper extremity peripheral neuropathy is denied. Service connection for left upper extremity peripheral neuropathy is denied. A rating in excess of 10 percent for right lower extremity peripheral neuropathy is denied. A rating in excess of 10 percent for left lower extremity peripheral neuropathy is denied. A total disability rating based on individual unemployability as a result of service connected disabilities prior to December 30, 2011, is denied. FINDINGS OF FACT 1. The Veteran is not shown to have a diagnosis of bilateral upper extremity peripheral neuropathy. 2. The Veteran’s bilateral lower extremity peripheral neuropathy is characterized by mild incomplete paralysis of the sciatic nerve; moderate incomplete paralysis was not shown. 3. Prior to July 30, 2010, the Veteran did not meet the schedular rating criteria for a total disability rating based on individual unemployability as a result of service connected disabilities (TDIU). 4. From July 30, 2010, to December 30, 2011, the Veteran’s service-connected disabilities are not shown to have precluded the Veteran from obtaining or maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for service connection for right upper extremity peripheral neuropathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 2. The criteria for service connection for left upper extremity peripheral neuropathy have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. 3. The criteria for an initial disability rating in excess of 10 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8520. 4. The criteria for an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.124a, Diagnostic Code 8520. 5. Prior to December 30, 2011, the criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5103, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service in the Army from September 1966 to April 1969, to include service in the Republic of Vietnam. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may also be established under 38 C.F.R. § 3.303(b), where a condition in service is noted but is not, in fact, chronic, or where a diagnosis of chronicity may be legitimately questioned. The continuity of symptomatology provision of 38 C.F.R. § 3.303(b) has been interpreted as an alternative to service connection only for the specific chronic diseases listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 718 F.3d 1331 (Fed. Cir. 2013). The Veteran filed his request to reopen his service connection claim for bilateral upper extremity peripheral neuropathy in July 2010, which was denied in a March 2011 rating decision. In April 2016, the Board granted reopening the Veteran’s service connection claim for bilateral upper extremity peripheral neuropathy and remanded the claim for further development. The Veteran’s STRs do not show complaints, treatment, or diagnoses for bilateral upper extremity peripheral neuropathy during his active service. The Veteran’s medical records after his separation from service do not show any complaints, treatment, or diagnosis of bilateral upper extremity peripheral neuropathy. December 2010 and July 2016 VA examiners reported that the Veteran did not have a diagnosis of bilateral upper extremity peripheral neuropathy. In January 2018, the Veteran was afforded another VA examination. He did not describe any symptoms of neuropathy in either upper extremity. The VA examiner reported that the Veteran did not have a diagnosis of bilateral upper extremity peripheral neuropathy. As such, the record does not show any current diagnosis of bilateral upper extremity peripheral neuropathy. While the Veteran asserted that he has bilateral upper extremity peripheral neuropathy, the diagnosis of this condition requires clinical testing and medical expertise, and cannot simply be diagnosed by lay observation alone; and the Veteran is not considered competent (meaning medically qualified by training or experience) to diagnose such disabilities to service. See Jandreau, 492 F.3d 1372; Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); and 38 C.F.R. § 3.159(a)(2). As such, there is then no need to address whether his lay statements in this regard are also credible. Id. In the absence of proof of a current disability, there can be no valid claim for service connection. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Giplin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). The requirement that a current disability be present is satisfied “when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim...even though the disability resolves prior to the Secretary’s adjudication of the claim.” McClain v. Nicholson, 21 Vet. App. 319 (2007); see also Romanowsky v. Shinseki, 26 Vet. App. 289 (2013). Here, the medical evidence fails to show the presence of peripheral neuropathy in either upper extremity. Accordingly, the Board finds that the evidence is against the claim and entitlement to service connection for bilateral upper extremity peripheral neuropathy is denied. Increased Ratings Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Service connection was granted for right lower extremity peripheral neuropathy by a March 2011 rating decision and assigned an initial rating of 10 percent effective April May 9, 2011. Service connection was granted for left lower extremity peripheral neuropathy by an August 2013 rating decision and assigned an initial rating of 10 percent effective July 30, 2010, the date the Veteran filed his service connection claim for diabetes. He was also granted an earlier effective date of July 30, 2010, for the assignment of the 10 percent rating for his left lower extremity peripheral neuropathy. The Veteran disagrees with the assigned ratings. The Veteran’s bilateral lower extremity peripheral neuropathy is rated under Diagnostic Code 8520, which evaluates paralysis of the sciatic nerve. Mild incomplete paralysis of the affected nerve is rated 10 percent disabling, moderate incomplete paralysis of the affected nerve is rated 20 percent disabling, moderately severe incomplete paralysis of the affective nerve is rated 40 percent disabling, severe incomplete paralysis with marked muscle atrophy is rated 60 percent disabling, and complete paralysis of the affected nerve is rated 80 percent disabling. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The words “mild,” “moderate,” “moderately severe,” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence for “equitable and just decisions.” 38 C.F.R. § 4.6. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. The Veteran’s treatment records do not show any findings equivalent to moderate incomplete paralysis of the sciatic nerve. In December 2010, the Veteran was afforded a VA examination. The examiner reported that there was no evidence of peripheral neuropathy in his lower extremities. In July 2016, the Veteran was afforded a VA examination. The Veteran showed reduced 4+/5 strength in his hip flexion, otherwise he retained normal 5/5 strength in his lower extremities. He had absent left lower extremity vibration sense and absent bilateral lower extremity cold sensation. The examiner reported that there was no evidence of peripheral neuropathy in the Veteran’s lower extremities. In January 2018, the Veteran was afforded a VA examination. The Veteran reported that the bottoms of this feet and toes were a little numb and had been present for several years. After conducting an examination, the examiner indicated that the Veteran had mild numbness in his bilateral lower extremities. The Veteran retained normal 5/5 strength with no muscle atrophy. He had reduced knee and ankle reflexes. He had decreased sensation in his feet and toes. The examiner indicated that the veteran had mild incomplete paralysis of the sciatic nerve bilaterally. Thus, applying the regulations to the facts in the case, the Board finds that the criteria for a disability rating in excess of 10 percent are not met for the Veteran’s bilateral lower extremity peripheral neuropathy. The evidence of record simply does not support a 20 percent rating under Diagnostic Code 8520, which would be warranted if moderate incomplete paralysis of the affected nerve was shown. At the January 2018 VA examination, the VA examiner did not find symptomatology consistent with moderate incomplete paralysis. The Board has considered all other potentially applicable Diagnostic Codes, but has found that no other Diagnostic Codes would result in a more favorable finding. Accordingly, the criteria for a rating in excess of 10 percent for the Veteran’s bilateral lower extremity peripheral neuropathy have not been met, and the claims are denied. TDIU Total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 3.340. Total disability ratings 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, provided that, if there is only one such disability, the disability shall be ratable at 60 percent or more, and that, if there are two or more service-connected disabilities, at least one must be rated at 40 percent or more and the combined rating must be 70 percent or more. 38 C.F.R. § 4.16(a). If, however, the veteran does not meet these required percentage standards set forth in 38 C.F.R. § 4.16(a), he still may receive a TDIU on an extraschedular basis if it is determined that he is unable to secure or follow a substantially gainful occupation by reason of his service-connected disabilities. 38 C.F.R. § 4.16(b); See also Fanning v. Brown, 4 Vet. App. 225 (1993). Thus, there must be a determination as to whether there are circumstances in this case, apart from any non-service connected conditions and advancing age, which would justify a total rating based on unemployability. See Hodges v. Brown, 5 Vet. App. 375 (1993); Blackburn v. Brown, 4 Vet. App. 395 (1993). Being unable to maintain substantially gainful employment is not the same as being 100 percent disabled. “While the term ‘substantially gainful occupation’ may not set a clear numerical standard for determining TDIU, it does indicate an amount less than 100 percent.” Roberson v. Principi, 251 F.3d 1378 (Fed Cir. 2001). Assignment of a TDIU evaluation requires that the record reflect some factor that “takes the claimant’s case outside the norm” of any other veteran rated at the same level. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A disability rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Id. The Board is precluded from assigning an extraschedular rating in the first instance. See Bagwell v. Brown, 9 Vet. App. 237, 238-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008); see also Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Prior to July 30, 2010, the Veteran did not meet the schedular requirements for a TDIU. His only service connected disability was a heart disability rated at 30 percent disabling. Therefore, the Veteran did not have a single disability rated at 60 percent or more nor did he have two more disabilities where at least one disability was rated at 40 percent or more with sufficient additional disability to bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). From July 30, 2010, to December 30, 2011, the Veteran’s service-connected disabilities were a heart disability rated at 30 percent disabling, diabetes rated at 20 percent disabling, right lower extremity peripheral neuropathy rated at 10 percent disabling, and left lower extremity radiculopathy rated at 10 percent disabling. The Veteran was granted service-connection for his bilateral lower extremity peripheral neuropathy as secondary to his service-connected diabetes. Accordingly, these conditions are considered a single disability for TDIU purposes as they share a common etiology. See 38 C.F.R. § 4.16(a). His diabetes and bilateral lower extremity peripheral neuropathy combine for a 40 percent disability rating. 38 C.F.R. § 4.25. His disabilities resulting from a common etiology are rated at 40 percent, which combined with the Veteran’s heart disability rated at 30 percent resulting in a combined 70 percent rating. Id. As such, he met the schedular requirements for a TDIU from July 30, 2010, to December 30, 2011. In a VA Form 21-8940, Application for Increased Compensation Based on Unemployability, received in June 2011, the Veteran reported that he last worked in 1995 because he became too disabled to work. He reported that last worked as a welder. He indicated that he had a high school education. A review of the competent evidence of record, which includes the Veteran’s VA treatment records and his lay statements, when taken in total, does not suggest unemployability as a result of his service connected disabilities from July 30, 2010, to December 30, 2011. In January 2018, the Veteran was afforded a VA examination. The VA examiner reviewed the Veteran’s claims file, interviewed the Veteran, and conducted an examination. The Veteran reported that he stopped working due to the effects of the fumes on his lungs resulted in breathing difficulties. He denied having any other medical reason for not working as a welder. The record contains no suggestion that the Veteran’s heart disability and diabetes with bilateral lower extremity peripheral neuropathy prevented him from obtaining or maintaining substantially gainful employment. The medical evidence weighs against the Veteran’s claim for a TDIU from July 30, 2010, to December 30, 2011. The Veteran reported that he stopped working as a welder due to his respiratory condition, which was not granted service connection until December 30, 2011, and denied having any other medical reason for not working as a welder. The Veteran has not submitted any medical opinion regarding any inability to sustain substantial gainful employment due to his service-connected disabilities from July 30, 2010, to December 30, 2011. While the Board does not wish to minimize the nature and extent of the Veteran’s overall disability, the evidence of record does not support his claim that his service-connected disabilities alone were sufficient to produce unemployability from July 30, 2010, to December 30, 2011. Although they produced some impairment, the evidence does not reflect gainful employment was precluded solely due to the Veteran’s service-connected disabilities. In addition, the Veteran has not identified or submitted any competent evidence demonstrating that his service-connected disabilities, individually or in concert, precluded him from securing and maintaining substantially gainful employment and entitle him to a TDIU from July 30, 2010, to December 30, 2011. Indeed, given his high school education, the Board does not believe that the Veteran’s service-connected disabilities would have prevented him from obtaining or maintaining substantially gainful employment at any exertional level from July 30, 2010, to December 30, 2011. Accordingly, a TDIU is not warranted prior to December 30, 2011, and the Veteran’s claim is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Berryman, Associate Counsel