Citation Nr: 21000158 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 19-22 794 DATE: January 4, 2021 ORDER A rating of 40 percent, but no higher, for right upper extremity (major) peripheral neuropathy is granted. A rating of 30 percent, but no higher, for left upper extremity (minor) peripheral neuropathy is granted. A rating in excess of 20 percent for right lower extremity internal popliteal (tibial) nerve peripheral neuropathy is denied. A rating in excess of 20 percent for left lower extremity tibial nerve peripheral neuropathy is denied. A rating in excess of 20 percent for right lower extremity anterior crural (femoral) nerve peripheral neuropathy is denied. A rating in excess of 20 percent for left lower extremity femoral nerve peripheral neuropathy is denied. A rating of 10 percent, but no higher, for hypertension is granted. Special monthly compensation (SMC) based on the need for aid and attendance is granted. SMC at a higher rate based on housebound status is denied. A total disability rating based on individual unemployability (TDIU) prior to February 23, 2018, is denied. FINDINGS OF FACT 1. The competent and probative evidence is at least in equipoise as to whether the Veteran’s right upper extremity peripheral neuropathy is manifest by moderate incomplete paralysis of the lower radicular group. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran’s left upper extremity peripheral neuropathy is manifest by moderate incomplete paralysis of the lower radicular group. 3. The weight of the competent and probative evidence is against finding peripheral neuropathy causes moderately severe incomplete paralysis of the right lower extremity tibial nerve. 4. The weight of the competent and probative evidence is against finding peripheral neuropathy causes moderately severe incomplete paralysis of the left lower extremity tibial nerve. 5. The weight of the competent and probative evidence is against finding peripheral neuropathy causes moderately severe incomplete paralysis of the right lower extremity femoral nerve. 6. The weight of the competent and probative evidence is against finding peripheral neuropathy causes moderately severe incomplete paralysis of the left lower extremity femoral nerve. 7. The competent and probative evidence is at least in equipoise as to whether the Veteran needed continuous medication for control of hypertension during the period on appeal. 8. The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment. 9. The weight of the competent and probative evidence is against finding that the Veteran’s service-connected disabilities, separate and distinct from those which render him in need of aid and attendance, result in anatomical loss or loss of use of the hands, arms, feet, or legs, or blindness. 10. The weight of the competent and probative evidence is against finding that the Veteran’s service-connected disabilities render him housebound. 11. The weight of the competent and probative evidence is against finding that the impairment caused by the Veteran’s service-connected disabilities precluded substantially gainful employment prior to February 23, 2018. CONCLUSIONS OF LAW 1. The criteria for a rating of 40 percent, but no higher, for right upper extremity peripheral neuropathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, Diagnostic Codes (DC) 8512. 2. The criteria for a rating of 30 percent, but no higher, for left upper extremity peripheral neuropathy met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DC 8512. 3. The criteria for a rating in excess of 20 percent for right lower extremity tibial nerve peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DC 8524. 4. The criteria for a rating in excess of 20 percent for left lower extremity tibial nerve peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DC 8524. 5. The criteria for a rating in excess of 20 percent for right lower extremity femoral nerve peripheral neuropathy not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DC 8526. 6. The criteria for a rating in excess of 20 percent for left lower extremity femoral nerve peripheral neuropathy are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.123, 4.124, 4.124a, DC 8526. 7. The criteria for a rating of 10 percent, but no higher, for hypertension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, DC 7101. 8. The criteria for SMC based on the need for regular aid and attendance are met. 38 U.S.C. §§ 1114, 5107(b); 38 C.F.R. §§ 3.350, 3.352. 9. The criteria for an award of SMC at a higher rate based on housebound status are not met. 38 U.S.C. § 1114; 38 C.F.R. § 3.350. 10. The criteria for a TDIU are not met prior to February 23, 2018. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1968 to January 1970. This case is before the Board of Veterans’ Appeals (Board) on appeal from a January 2019 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further development in February 2020. As the requested development has been completed, no further action to ensure compliance with the remand directives is required. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, VA will assign the higher evaluation if the disability picture more nearly approximates the criteria required for that rating. Otherwise, it will assign the lower rating. 38 C.F.R. § 4.7. VA resolves any reasonable doubt regarding the degree of disability in favor of the Veteran. 38 C.F.R. § 4.3. In the case of an initial rating, the entire evidentiary record from the time of a veteran’s claim for service connection to the present is of importance in determining the proper evaluation of the disability. Fenderson v. West, 12 Vet. App. 119 (1999). Where a claimant appeals the denial of a claim for an increased disability rating for a disability for which service connection was in effect before he filed the claim for increase, the present level of disability is the primary concern, and past medical reports should not be given precedence over current medical findings. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the rating period on appeal, the Board can assign different or “staged” ratings for such different periods. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). In evaluating a disability, the current examination reports in light of the whole recorded history are considered to ensure that the current rating accurately reflects the severity of the disorder. The medical, as well as industrial history, is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one disorder is not duplicative of the symptomatology of the other disorder. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Veterans are competent to report observable symptoms in the realm of their personal knowledge. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The standard of proof to be applied in decisions on claims for VA benefits is set forth in 38 U.S.C. § 5107(b). Under that provision, VA shall consider all information including lay and medical evidence of record in a case before the Secretary concerning benefits under laws the Secretary administers. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The higher evaluation will be assigned when two disability evaluations are potentially applicable, and the disability picture more nearly approximates the criteria for the higher rating. 3 8 C.F.R. § 4.7. VA has an independent obligation to consider all potentially applicable provisions of law and regulation and to apply the diagnostic criteria in a manner that maximizes benefits. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); Bradley v. Peake, 22 Vet. App. 280 (2008). 1. Right upper extremity peripheral neuropathy. 2. Left upper extremity peripheral neuropathy. The Veteran has a 20 percent disability rating for both his right and left upper extremity peripheral neuropathy under Diagnostic Code 8513. 38 C.F.R. § 4.124a. The evidence demonstrates the upper extremity peripheral neuropathy affects the Veteran’s radial/musculospiral, median, and ulnar nerves bilaterally. Diseases affecting the nerves are rated based on the degree of paralysis, neuritis, or neuralgia under 38 C.F.R. §§ 4.123, 4.124, and 4.124a. Under Diagnostic Code 8512 for the lower radicular group, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis manifests in paralysis of all intrinsic muscles of the hand, and some or all of flexors of wrist and fingers, and it is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a, DC 8512. The radial nerve, median nerve, and ulnar nerve make up the lower radicular group. Under Diagnostic Code 8513 for all radicular groups, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Complete paralysis is rated as 90 percent for the major extremity and 80 percent for the minor extremity. 38 C.F.R. § 4.124a, DC 8513. Under Diagnostic Codes 8514 for the radial nerve, mild incomplete paralysis is rated as 20 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. Lesions involving only “dissociation of extensor communis digitorum” and “paralysis below the extensor communis digitorum” will not exceed the rating for moderate incomplete paralysis. 38 C.F.R. § 4.124a, DC 8514. Under Diagnostic Codes 8515 for the median nerve, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a, DC 8515. Under Diagnostic Codes 8516 for the ulnar nerve, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity. Moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity. Severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Complete paralysis is rated as 60 percent for the major extremity and 50 percent for the minor extremity. 38 C.F.R. § 4.124a, DC 8516. The terms “major” and “minor” are used in the rating criteria to refer to the dominant or non-dominant upper extremity. See 38 C.F.R. § 4.69. The record reflects that the Veteran is right hand dominant. 09/15/2020, C&P Exam. The Rating Schedule does not define the words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes. Regulations provide that ratings for peripheral neurological disorders are assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 levels of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with the application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” Moderate incomplete paralysis is typically medically graded as significantly disabling and may be demonstrated by combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. In Miller v. Shulkin, the Court held that “[a]lthough the note preceding § 4.124a directs the claims adjudicator to award no more than a 20% disability rating for incomplete paralysis of a peripheral nerve where the condition is productive of wholly sensory manifestations, it does not logically follow that any claimant who also exhibits non-sensory manifestations must necessarily be rated at a higher level.” 28 Vet. App. 376, 380 (2017). Neuritis characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis. The maximum rating assigned for neuritis not characterized by such organic changes will be that for moderate, or with sciatic nerve involvement, for moderately severe, incomplete paralysis. 38 C.F.R. § 4.123. Neuralgia, cranial or peripheral, usually characterized by a dull and intermittent pain, of typical distribution to identify the nerve, is rated on the same scale, with a maximum equal to moderate incomplete paralysis. 38 C.F.R. § 4.124. A review of the record demonstrates a disability rating of 40 percent, but no higher, is warranted for right upper extremity peripheral neuropathy, and a rating of 30 percent, but no higher, is warranted for left upper extremity peripheral neuropathy under Diagnostic Code 8512 for the lower radicular group. The September 2020 VA examination showed normal muscle strength and reflexes in all extremities and no muscle atrophy. The examiner found symptoms of moderate constant pain, moderate paresthesias and dysesthesias, and moderate numbness in all extremities. Regarding trophic changes, the Veteran has no hair and shiny skin. Regarding sensory disturbance, the examination demonstrated decreased sensation in the hands and fingers (C6-8) and normal sensation in the shoulder area (C5) and forearms (C6/T1). The September 2020 VA examiner determined the Veteran had incomplete paralysis of moderate severity of the radial, median, and ulnar nerves. 09/15/2020, C&P Exam. Based on the above, the disability is primarily manifested by trophic changes, sensory disturbance of hand and fingers, and moderate constant pain. The most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, loss of reflexes, muscle atrophy, or complete paralysis. The level of impairment of the upper extremity is most analogous to moderate incomplete paralysis. As the impairment of the radial, median, and ulnar nerves make up the lower radicular group, one rating given under Diagnostic Code 8512 for the lower radicular group is most appropriate. The Veteran’s upper extremity peripheral neuropathy does not manifest in symptoms better characterized by neuritis or neuralgia such as loss of reflexes, muscle atrophy, or dull and intermittent pain. See 38 C.F.R. §§ 4.123, 4.124. In light of the preceding, the competent and probative evidence is at least in equipoise as to whether the Veteran has moderate incomplete paralysis of the lower radicular group bilaterally. Under Diagnostic Code 8512, a rating of 40 percent, but no higher, is warranted for the right upper extremity (major), and a rating of 30 percent, but no higher, is warranted for the left upper extremity (minor). The Veteran’s reports of constant pain and numbness support of finding that the symptoms more closely approximate moderate incomplete paralysis of the bilateral upper extremities. Moderate constant pain, moderate paresthesias and/or dysesthesias, moderate numbness, and decreased sensation to light touch are contemplated by the ratings for moderate incomplete paralysis of the lower radicular group. In finding that a higher rating is not warranted, the weight of the competent and probative evidence is against finding muscle atrophy, weakness, loss of strength, functional loss, or absence of reflexes. All other potentially applicable diagnostic codes have been considered, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service-connected. Therefore, a separate or higher rating under a different diagnostic code is not warranted. 3. Right lower extremity tibial nerve peripheral neuropathy. 4. Left lower extremity tibial nerve peripheral neuropathy. 5. Right lower extremity femoral nerve peripheral neuropathy. 6. Left lower extremity femoral nerve peripheral neuropathy. The Veteran’s bilateral lower extremity internal popliteal (tibial) nerve peripheral neuropathy is rated at 20 percent disabling each under Diagnostic Code 8524. His right lower extremity anterior crural (femoral) nerve peripheral neuropathy and left lower extremity posterior tibial nerve peripheral neuropathy are rated under Diagnostic Code 8526. See 38 C.F.R. § 4.124a. The evidence demonstrates the lower extremity peripheral neuropathy affects the Veteran’s deep peroneal (anterior tibial), tibial, posterior tibial, femoral nerve, and internal saphenous nerves bilaterally. Under Diagnostic Code 8523 for paralysis of the anterior tibial nerve, mild incomplete paralysis is noncompensable. Moderate incomplete paralysis is rated as 10 percent disabling. Severe incomplete paralysis is rated as 20 percent disabling. Complete paralysis is rated as 30 percent disabling and is manifest by loss of dorsal flexion of the foot. 38 C.F.R. § 4.124a, DC 8523. Under Diagnostic Code 8524 for paralysis of the tibial nerve, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 disabling. Complete paralysis is rated as 40 disabling and manifests by loss of plantar flexion, loss of all frank adduction of the foot, no flexion and separation of toes, inability to move a muscle in the sole, and lesions of the nerve high in the popliteal fossa. 38 C.F.R. § 4.124a, DC 8524. Under Diagnostic Code 8525 for paralysis of the posterior tibial nerve, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 10 percent disabling. Severe incomplete paralysis is rated as 20 disabling. Complete paralysis is rated as 30 disabling and manifests by paralysis of all muscles of the sole, frequent painful paralysis of a causalgic nature, inability to flex toes, weakened adduction, and impaired plantar flexion. 38 C.F.R. § 4.124a, DC 8525. Under Diagnostic Code 8526 for paralysis of the femoral nerve, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Severe incomplete paralysis is rated as 30 percent disabling. Complete paralysis is rated as 40 percent disabling and manifest by paralysis of quadriceps extensor muscles. 38 C.F.R. § 4.124a, DC 8526. Under Diagnostic Code 8527 for paralysis of the internal saphenous nerve, mild to moderate incomplete paralysis is noncompensable. Severe incomplete to complete paralysis is rated as 10 percent disabling. 38 C.F.R. § 4.124a, DC 8527. As previously described, the September 2020 VA examination showed normal muscle strength and reflexes in all extremities and no muscle atrophy. The examiner found symptoms of moderate constant pain, moderate paresthesias and dysesthesias, and moderate numbness in all extremities. Regarding trophic changes, the Veteran has no hair and shiny skin. The examiner noted, however, that the Veteran’s symptoms in his legs are similar but worse and more intense than in his upper extremity. 09/15/2020, C&P Exam. Regarding sensory disturbance, the examination demonstrated sensation absent from the foot and toes (L5), decreased sensation in the thigh and knee (L3/4) and lower leg and ankle (L4/L5/S1), and normal sensation in the upper anterior thigh (L2). Id. The September 2020 VA examiner determined the Veteran had incomplete paralysis of moderate severity of the anterior tibial, tibial, posterior tibial, femoral nerve, and internal saphenous nerves bilaterally. The sciatic, external popliteal (common peroneal), musculocutaneous (superficial peroneal), obturator nerve, external cutaneous nerve of the thigh, and illio-inguinal nerve were all found normal. Id. Based on the above, lower extremity peripheral neuropathy primarily affects the Veteran’s feet and toes (L5), but also his thighs and knees (L3/4) and lower legs and ankles (L4/L5/S1). The lower extremity peripheral neuropathy is primarily manifest by no hair and shiny skin, moderate constant pain, moderate paresthesias and dysesthesias, and moderate numbness. The most probative evidence of record is against a finding that the disability is manifest by impairment of motor functions, loss of reflexes, loss of strength, muscle atrophy, functional loss, or complete paralysis. The level of impairment lower extremity peripheral neuropathy causes is thus most analogous to moderate incomplete paralysis in the three areas of the Veteran’s lower extremity, bilaterally. As the symptoms are wholly sensory, a finding of incomplete severe paralysis is not warranted. The Veteran’s lower extremity peripheral neuropathy does not manifest in symptoms better characterized by neuritis or neuralgia such as loss of reflexes, muscle atrophy, or dull and intermittent pain. See 38 C.F.R. §§ 4.123, 4.124. The impairment caused by the anterior tibial, tibial, and posterior tibial nerves are overlapping and intertwined as the symptoms associated with the disorder in those nerves are primarily in the feet and toes (L5) and also the lower legs and ankles (L4/L5/S1). One rating given under Diagnostic Code 8524 for the tibial nerve encompasses all the Veteran’s peripheral neuropathy symptoms in his feet, toes, lower legs, and ankles and result in a disability rating more favorable than that in Diagnostic Codes 8523 or 8525. See Esteban, 6 Vet. App. at 262; 38 C.F.R. § 4.14. Under Diagnostic Code 8524, a rating in excess of 20 percent for incomplete moderate peripheral neuropathy is not warranted. The impairment caused by the femoral and internal saphenous nerves are overlapping and intertwined as the symptoms associated with the disorder in those nerves are primarily in the thighs and knees (L3/4). One rating given under Diagnostic Code 8526 for the femoral nerve encompasses all the Veteran’s peripheral neuropathy symptoms in his thighs and knees and results in a disability rating more favorable than that in Diagnostic Code 8527. Under Diagnostic Code 8526, a rating in excess of 20 percent for incomplete moderate peripheral neuropathy is not warranted. All other potentially applicable diagnostic codes have been considered, but separate analogous evaluations for each nerve are not appropriate because they merely evaluate the same symptoms under various diagnoses. See 38 C.F.R. § 4.14. Therefore, a separate or higher rating under a different diagnostic code is not warranted. The preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for bilateral peripheral neuropathy of the tibial and femoral nerves. In denying higher ratings, the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 7. Hypertension. Hypertension is rated under 38 C.F.R. § 4.104, DC 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A review of the record demonstrates the criteria for a 10 percent rating under DC 7101 are met. The Veteran has been taking the medication, Lisinopril, for his hypertension during the entire period on appeal. 09/17/2020, CAPRI; 09/18/2018, CAPRI. In November 2019, the Veteran also started taking Apixaban for nonvalvular atrial fibrillation. 09/17/2020, CAPRI. A September 2017 treatment note indicates the Veteran was taking blood pressure medication as directed, and his blood pressure reading measured systolic pressure predominantly around the 120s and diastolic pressure predominantly in the 70s. 09/18/2018, CAPRI. During the period on appeal, the Veteran’s systolic pressure was predominantly well under 160 and diastolic pressure well under 100: September 2018 (high of 130/82, 30-day average of 118/72), November 2018 to December 2018 (high of 136/86, 30-day average of 119/ 77), February 2019 to March 2019 (high of 130/88, 30-day average of 110/79), April 2019 to May 2019 (high of 122/78, 30-day average of 112/74), June 2019 to July 2019 (high of 126/84, 30-day average of 115/77), July 2019 to August 2019 (high of 118/78, 30-day average of 115/77), October 2019 to November 2019 (high of 176/80, 30-day average of 125/76), January 2020 (high of 122/81, 30-day average of 117/77), March 2020 (high of 166/86, 30-day average of 121/77), and April 2020 to May 2020 (high of 158/87, 30-day average of 133/83). 09/17/2020, CAPRI; 03/27/2020, CAPRI; 06/17/2019, CAPRI; 01/03/2019, CAPRI; 10/20/2018, CAPRI. The record demonstrates that the Veteran commenced treatment at a VA Medical Center in July 2002, after five years of not receiving medical care. The treatment note contains a blood pressure reading of 160/110, and the Veteran, at that appointment, reported he found consistently high blood pressure while treating himself. See 07/06/2006, Medical Treatment Record – Government Facility. Considering the evidence during the appeal period and the Veteran’s complete medical history, the evidence of record is at least in equipoise as to whether the Veteran’s hypertension has manifested in the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, corresponding to the criteria for a rating of 10 percent, but no higher, under DC 7101. A higher 20 percent rating under DC 7101 is not warranted unless diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. At no point during the period on appeal has the Veteran’s blood pressure been measured at that level; accordingly, his hypertension does not more nearly approximate the criteria corresponding to a 20 percent rating. A rating of 10 percent, but no higher, is warranted. SMC 8. Entitlement to SMC based on the need for aid and attendance. “SMC is available when, ‘as the result of service-connected disability,’ a veteran suffers additional hardships above and beyond those contemplated by VA’s schedule for rating disabilities.” Breniser v. Shinseki, 25 Vet. App. 64, 68 (2011) (citing 38 U.S.C. § 1114(k)-(s)). Section 1114(l) provides five distinct ways for a veteran, “as the result of service-connected disability,” to qualify for this rate of SMC—(1) anatomical loss or loss of use of both feet; (2) anatomical loss or loss of use of one hand and one foot; (3) blindness in both eyes with 5/200 visual acuity or less; (4) being permanently bedridden; or (5) having “such significant disabilities as to be in need of regular aid and attendance.” 38 U.S.C. § 1114(l). The following basic considerations are critical in determining the need for the regular aid and attendance of another person: the inability of the veteran to dress or undress him or herself, or to keep him or herself ordinarily clean and presentable; the frequent need of adjustment of any special prosthetic or orthopedic appliances which because of the particular disability cannot be done without aid (this will not include the adjustment of appliances which normal persons would be unable to adjust without aid, such as supports, belts, lacing at the back, etc.); the inability of the claimant to feed him or herself through the loss of coordination of upper extremities or extreme weakness; inability to attend to the wants of nature; or incapacity, physical or mental, which requires care or assistance regularly to protect the claimant from hazards or dangers incident to his or his daily environment. 38 C.F.R. § 3.352(a). Determinations as to the need for aid and attendance must be based on actual requirements of personal assistance from others. Id. A finding of all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) is not required for a favorable rating. The personal functions which a veteran is unable to perform should be considered in connection with his or her condition as a whole. That the evidence establishes that a veteran is so helpless as to need regular aid and attendance is necessary, not that there is a constant need. Id. “Bedridden” will be a proper basis for the determination for the need for aid and attendance. “Bedridden” will be that condition which, through its essential character, requires that the claimant remains in bed. The fact that a claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a). In Turco v. Brown, 9 Vet. App. 222, 224-25 (1996), the United States Court of Appeals for Veterans Claims (Court) held that it was not required that all of the disabling conditions enumerated in the provisions of 38 C.F.R. § 3.352(a) be found to exist to establish eligibility for aid and attendance and that such eligibility required at least one of the enumerated factors be present. A review of the record demonstrates that the criteria for SMC based on the need for aid and attendance are met. The Veteran currently has the following service-connected disabilities: diabetes mellitus type II (20 percent), right upper extremity peripheral neuropathy (40 percent), left upper extremity peripheral neuropathy (30 percent), right lower tibial nerve extremity peripheral neuropathy (20 percent), left lower extremity tibial nerve peripheral neuropathy (20 percent), right lower extremity femoral nerve peripheral neuropathy (20 percent), left lower extremity femoral nerve peripheral neuropathy (20 percent), and hypertension (10 percent). The September 2020 VA examination indicates that the Veteran’s service-connected peripheral neuropathy results in balance instability. 09/15/2020, C&P Exam. VA treatment records indicate the Veteran fell in September 2017 and was not found until six days later, which resulted in a significant deterioration of his physical condition. 03/27/2020, CAPRI. A May 2020 questionnaire regarding the Veteran’s ability to perform his activities of daily living (ADLs) safely and independently indicated the Veteran had a Morse Fall Scale score of 45 out of 105 based on a history of falling and an impaired gait; scores between 25 and 50 show a low fall risk. The Veteran requires assistance in preparing meals, bathing, tending to hygiene needs due to his physical condition, including morbid obesity. He has a live-in home health aide (HHA) caregiver to assist him with his ADLs. A May 2020 treatment note indicates that the Veteran will be receiving a power wheelchair evaluation, and that he had several falls due to difficulty with mobility, but he suffered no injuries. 05/19/2020, CAPRI. In light of the foregoing, although the Veteran was recently found to be a low fall risk, the evidence of the record demonstrates the Veteran is a fall risk and in large part due to his service-connected peripheral neuropathy. The competent and probative evidence is at least in equipoise as to whether the Veteran’s service-connected disabilities render him so incapable of performing the activities of daily living that he requires care or assistance on a regular basis to protect him from hazards or dangers incident to his daily environment; thus, SMC based on the need for aid and attendance is warranted. See 38 U.S.C. § 1114; 38 C.F.R. § 3.352. 9. Entitlement to SMC based on housebound status. Under 38 U.S.C. § 1114(s), SMC is payable if the veteran is permanently housebound. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The law provides for two avenues through which to receive this benefit: “statutorily housebound,” see 38 C.F.R. § 3.350(i)(1), and “housebound-in-fact,” see 38 C.F.R. § 3.350(i)(2). Under both avenues, the veteran must first have a single service-connected disability rated as 100 percent disabling. 38 C.F.R. § 3.350(i). To be found statutorily housebound, the veteran must have additional service-connected disability or disabilities independently ratable at 60 percent, separate and distinct from the 100 percent service-connected disability and involving different anatomical segments or bodily systems. 38 C.F.R. § 3.350(i)(1). To be found housebound-in-fact, the veteran must be permanently housebound by reason of service-connected disability or disabilities. 38 C.F.R. § 3.350(i)(2). This requirement is met when the veteran is substantially confined as a direct result of service-connected disabilities to his or her dwelling and the immediate premises or, if institutionalized, to the ward or clinical areas, and it is reasonably certain that the disability or disabilities and resultant confinement will continue throughout his or her lifetime. Id. In Bradley v. Peake, the Court held that if the evidence supports a finding of TDIU based solely upon a single service-connected disability, then such a TDIU rating may serve as the factual predicate for an award of SMC under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280, 293 (2008). The Veteran does not have a service-connected disability rated at 100 percent; however, he receives a 100 percent rating based on TDIU. The weight of the competent and probative evidence is against finding one of the Veteran’s service-connected disabilities, alone, precludes him from maintaining gainful employment. The Veteran’s highest-rated disability, right upper extremity peripheral neuropathy, is rated as 40 percent disabling. In other words, the additional service-connected disability is not independently ratable at 60 percent or more; thus, the criteria for SMC based on statutory housebound status are not met. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). The Veteran’s service-connected disabilities were also all found to independently not impact his ability to work. See 09/15/2020, C&P Exam; 05/28/2020, C&P Exam; 02/08/2016, C&P Exam. The record does not contradict these VA examinations’ findings. The record also demonstrates the Veteran has a full mental and cognitive capacity and is able to manage his own finances and take his medication independently. 03/27/2020, CAPRI. The weight of the competent and probative evidence is against finding that the Veteran is substantially confined to his home due to his service-connected disabilities. Notably, the Veteran is able to leave his home for medical appointments, which weighs against finding that he is housebound in fact. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). SMC based on housebound status is therefore not warranted. TDIU 10. Entitlement to TDIU prior to February 23, 2018. VA may grant a total disability rating where the schedular rating is less than 100 percent, and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16. Generally, to be eligible for TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. 38 C.F.R. § 4.16(a). If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. The Veteran’s service-connected disabilities prior to February 23, 2018, include diabetes mellitus type II (20 percent), peripheral neuropathy right upper extremity (noncompensable), peripheral neuropathy left upper extremity (noncompensable), peripheral neuropathy right lower extremity (10 percent), peripheral neuropathy left lower extremity (10 percent), and hypertension (noncompensable), which combined for a 40 percent disability rating. Prior to February 23, 2018, the percentage threshold for schedular TDIU was not met. See 38 C.F.R. § 4.25. If a veteran fails to meet the applicable percentage standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities. 38 C.F.R. § 4.16(b). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The question is whether veterans can perform the physical and mental acts required by employment, not whether they can find employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15, 4.16(a)). The Board must therefore evaluate whether there are circumstances, apart from any non-service-connected conditions and advancing age, which would justify a total rating based on unemployability. See id.; see also 38 C.F.R. § 4.16(b). In making this determination, consideration may be given to his or her level of education, special training, and previous work experience, but not to his or her age or occupational impairment caused by non-service-connected disabilities. It should additionally be noted that marginal employment or employment provided on account of disability or special accommodation is not substantially gainful. See 38 C.F.R. §§ 3.341, 4.16, 4.18, 4.19; Hersey v. Derwinski, 2 Vet. App. 91, 94 (1992); Faust v. West, 13 Vet. App. 342 (2000). Entitlement to TDIU is based on an individual’s particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). A review of the record demonstrates the Veteran’s service-connected disabilities did not render him unable to secure and maintain substantially gainful employment prior to February 23, 2018. The record demonstrates that the Veteran worked as a camera repairman until his retirement in 2005 due to always feeling tired. 08/21/2006, VA Examination. The Veteran also stated he quit working to take care of his father. 05/04/2012, CAPRI. The occupational impairment caused by the Veteran’s service-connected bilateral upper and lower extremity peripheral neuropathy, diabetes, and hypertension prior to February 23, 2018, is recognized; however, he was compensated for those limitations, as the percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from service-connected disabilities and the residual conditions in civilian occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In summary, regarding his unique circumstances, including his education, work experience, and impairment from service-connected disabilities, the competent and credible evidence weighs against finding the Veteran unemployable prior to February 23, 2018, due exclusively to his service-connected peripheral neuropathies, diabetes, and hypertension. There is simply no evidence that the (Continued on next page) Veteran is rendered unemployable prior to February 23, 2018, due solely to his peripheral neuropathies, diabetes, and hypertension. JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Costa, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.