Citation Nr: 21001347 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 16-43 772 DATE: January 7, 2021 ORDER Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) with depressive disorder is dismissed. Entitlement to a rating in excess of 10 percent for left upper extremity diabetic peripheral neuropathy and carpal tunnel syndrome is denied. Entitlement to a rating in excess of 10 percent for right upper extremity diabetic peripheral neuropathy is denied. Entitlement to a rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy is denied. Entitlement to a rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities, prior to January 22, 2018, is denied. FINDINGS OF FACT 1. In April 2019, the Veteran submitted testimony on the record at the Board hearing that he wanted to withdraw his appeal with respect to his increased rating claim for PTSD. 2. The Veteran’s diabetic peripheral neuropathy and carpal tunnel syndrome of the left upper extremity is manifested by mild, incomplete paralysis. 3. The Veteran’s diabetic peripheral neuropathy of the right upper extremity is manifested by mild, incomplete paralysis. 4. The Veteran’s diabetic peripheral neuropathy of the left lower extremity is manifested by mild, incomplete paralysis. 5. The Veteran’s diabetic peripheral neuropathy of the right lower extremity is manifested by mild, incomplete paralysis. 6. The Veteran’s service-connected disabilities did not preclude him from securing and following substantially gainful employment prior to January 22, 2018. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal by the Veteran on the issue of entitlement to an increased rating for PTSD have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a rating in excess of 10 percent for left upper extremity diabetic peripheral neuropathy and carpal tunnel syndrome have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515. 3. The criteria for a rating in excess of 10 percent for right upper extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8515. 4. The criteria for a rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 5. The criteria for a rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124a, Diagnostic Code 8520. 6. The criteria for entitlement to a TDIU, prior to January 22, 2018, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 1964 to April 1966. The matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2014 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In April 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A copy of the proceeding is associated with the electronic claims file. The Board notes that additional VA treatment records have been added to the claims file that has not been considered by the Agency of Original Jurisdiction (AOJ). However, review of this evidence reveals that it is cumulative or duplicative of evidence previously of record or related to other disabilities. The Veteran changed representatives after the hearing with the undersigned. The Veteran’s current representative was provided notice of the docketing of this appeal. 1. Entitlement to a rating in excess of 50 percent for PTSD. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 19.55. Withdrawal may be made by the appellant or by his or her authorized representative. Id. Withdrawal of a claim must be “explicit, unambiguous, and done with a full understanding of the consequences of such action.” See generally Acree v. O’Rourke, 891 F.3d 1009 (Fed. Cir. 2018); DeLisio v. Shinseki, 25 Vet. App. 45, 47 (2011). In this case, the Veteran withdrew the issue of a rating in excess of 50 percent for PTSD at the April 2019 Board hearing. The Board finds that the statements made at the Board hearing satisfy the Acree and DeLisio criteria; hence, there remain no allegations of errors of fact or law for appellate consideration as it relates to this issue. Accordingly, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed without prejudice. 2. Entitlement to a rating in excess of 10 percent for left upper extremity diabetic peripheral neuropathy and carpal tunnel syndrome. 3. Entitlement to a rating in excess of 10 percent for right upper extremity diabetic peripheral neuropathy. 4. Entitlement to a rating in excess of 10 percent for left lower extremity diabetic peripheral neuropathy. 5. Entitlement to a rating in excess of 10 percent for right lower extremity diabetic peripheral neuropathy. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s diabetic peripheral neuropathy of the right and left upper extremities have each been evaluated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8515. The criteria for Diagnostic Code 8515 provide for a 10 percent rating for mild incomplete paralysis of the median nerve for both the major and minor extremities. Moderate incomplete paralysis in the major extremity warrants a 30 percent rating, and 20 percent in the minor. Severe incomplete paralysis in the major extremity warrants a 50 percent rating, a 40 percent in the minor. Complete paralysis of the median nerve warrants a 70 percent rating in the major extremity, and 60 percent in the minor extremity. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Veteran’s diabetic peripheral neuropathy of the right and left lower extremities have each been evaluated as 10 percent disabling under 38 C.F.R. § 4.124a, Diagnostic Code 8520. Under Diagnostic Code 8520, mild incomplete paralysis warrants a 10 percent disability rating. Moderate incomplete paralysis warrants a 20 percent disability rating. Moderately severe incomplete paralysis warrants a 40 percent disability rating. Severe incomplete paralysis with marked muscular atrophy, warrants a 60 percent rating. Complete paralysis of the sciatic nerve is evidenced by the foot dangled and dropped, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost and warrants an 80 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8520. For diseases of the peripheral nerves, disability ratings are based on whether there is complete or incomplete paralysis of the particular nerve. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. See 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. When the involvement is wholly sensory, the rating should be for mild, or at the most, the moderate degree. Id. The Board observes that the words “mild,” “moderate” 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, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6. At a June 2014 VA examination, the Veteran complained of aching in his hands for many years and numbness in his feet and lower leg. The Veteran was found to have mild constant pain of the bilateral upper and left lower extremities. He was not found to have any intermittent pain, paresthesias and/or dysesthesias of the bilateral upper or lower extremities and exhibited moderate numbness of the bilateral lower extremities. Muscle strength testing was normal bilaterally. Deep tendon reflex testing was decreased in the bilateral biceps, triceps, and brachioradialis and was absent in the bilateral knees and ankles. Light touch/monofilament testing was normal. Vibration sensation testing of the bilateral upper extremities was normal but was decreased in the bilateral lower extremities. The examiner stated that the Veteran did not have an upper extremity diabetic peripheral neuropathy. The examiner further found that the Veteran did have lower extremity diabetic peripheral neuropathy but that the sciatic and femoral nerves were normal bilaterally. The examiner remarked that the Veteran had mild sensory neuropathy in the lower extremities affecting the distal sensory terminals of the sciatic nerves but that there was no evidence of a clinical upper extremity neuropathy. Private treatment records from June 2014 show that the Veteran reported numbness of the entire left lower extremity. A June 2014 evaluation by a different private physician showed that the Veteran had a decreased response to tactile sensation of the upper and lower extremities. VA treatment records contain complaints of decreased sensation in the bilateral feet related to diabetes mellitus. Sensory testing has revealed loss of protective sensation of the bilateral lower extremities. The Veteran has also reported “tingling” of the upper extremities. In his September 2016 VA Form 9, the Veteran reported difficulty maintaining his grip and frequent pain in his arms. With respect to his diabetic neuropathy of the lower extremities, the Veteran reported frequent falls and challenges climbing stairs, as his legs get stiff. On review of the record, the Board finds that Veteran’s bilateral upper and lower extremity diabetic peripheral neuropathy does not warrant ratings higher than 10 percent for the entire appellate period. There is no competent evidence to support a finding that the Veteran has worse than mild, incomplete paralysis of the upper and lower extremities. 38 C.F.R. § 4.124a, Diagnostic Codes 8515, 8520. As mentioned, when the involvement is wholly sensory, no more than a moderate degree should be assigned. Here, the Veteran’s symptoms are almost entirely sensory. In making these determinations, the Board has reviewed all the evidence of record, both medical and lay evidence, regarding the frequency, duration, and severity of the Veteran’s symptoms. The Veteran indicated at the April 2019 Board hearing, that he was seeking entitlement to special monthly compensation (SMC) based on loss of use of his hands and feet. The record reflects that the Veteran was involved in a motor vehicle accident in September 2017 and that he is now a quadriplegic. An August 2018 diabetes mellitus examination noted that the Veteran has diabetic neuropathy but the injuries he suffered in the September 2017 motor vehicle accident “makes exam for diabetic peripheral neuropathy not possible as now there are superimposed findings from quadraplegia [sic].” August 2018 VA examination at 2. The record prior to this injury considered the severity of the service-connected disability. During the appeal period, the record provided evidence of the severity of the service-connected disability. Although the Board has carefully considered the contention that due to the current inability to separate symptoms related to the post-service injury and the service-connected disability, all symptoms should be rated, the Board finds this contention not supported in the competent medical evidence. As noted, during the appeal period, the record does contain evidence that evaluates only the service-connected manifestations and the competent evidence does not reflect that there has been an increased since that examination of the underlying service-connected disability. Due to the complex nature of this determinations, the Board finds that the Veteran’s lay contentions are not competent to attest to severity of the underlying service-connected disability in contrast to the post-service, superimposed injury. The Board has sympathetically and liberally considered the evidence of record. The preponderance of the evidence weighs against a finding of greater disability related to service-related disability. The evidence reflects the greater level of disability is attributable to non-service related injury, and does not provide a basis for finding that the Veteran’s loss of use in the extremities is related to the service-connected disability. On this basis, the Board finds that increased ratings to include SMC, is not warranted. Accordingly, the Board finds that ratings higher than 10 percent for diabetic peripheral neuropathy of the bilateral upper and lower extremities are not warranted. Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 4.3. 6. Entitlement to a TDIU due to service-connected disabilities. The Veteran contends that he is entitled to a TDIU prior to January 22, 2018. The Board notes that a single 100 percent rating for atherosclerotic cardiovascular disease with congestive heart failure is in effect from January 22, 2018 and that the Veteran is in receipt of SMC at the aid and attendance/housebound rate as of that date. Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of (1) a single service-connected disability ratable at 60 percent or more, or (2) as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Entitlement to a TDIU requires the presence of impairment so severe that it is impossible for the average person to secure and follow a substantially gainful occupation. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the veteran’s level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. Here, the service-connected disabilities meet the schedular criteria. The Veteran’s service-connected disabilities include PTSD, rated as 50 percent disabling; diabetes mellitus type II, rated as 20 percent disabling; diabetic neuropathy of the right upper extremity, rated as 10 percent disabling; diabetic neuropathy and carpal tunnel syndrome of the left upper extremity, rated as 10 percent disabling; diabetic neuropathy of the right lower extremity, rated as 10 percent disabling; and diabetic neuropathy of the left lower extremity, rated as 10 percent disabling. The Veteran’s combined rating was 80 percent. 38 C.F.R. § 4.25. The Veteran filed an Application for Increased Compensation Based on Unemployability (Form 21-8940) in June 2013 indicating that he was presently self-employed as a used car salesman and had been so employed since July 1997. He also submitted a second Form 21-8940 in August 2015 indicating that he stopped working as a used car dealer in June 2013. He stated that he last worked full-time in May 1996 as a systems engineer, that he became too disabled to work in June 2000, and that his disabilities affected his full-time employment in August 2005. The Veteran reported that he has a high school education with two years of college education and indicated that he had not had any education and training after he became too disabled to work. He stated that his PTSD and diabetic peripheral neuropathy of the upper and lower extremities prevent him from securing or following substantially gainful occupation. The Veteran was afforded a VA PTSD examination in June 2014. He reported that he owned a car lot and sold cars for several years but had to give up the business because of his health issues, including difficulty walking and sensitivity to the sun. He reported frustration with others “stealing from him” but indicated that he tried to be civil and cordial to customers. The Veteran denied having significant interpersonal activities. The VA examiner noted that if the Veteran were employed, “he would likely experience occasional mild PTSD-related difficulty with respect to interacting with others due to low frustration tolerance and tolerating noisy environments.” June 2014 VA PTSD examination at 6. In the June 2014 VA diabetic peripheral neuropathy examination, the VA examiner stated that the Veteran’s diabetic peripheral neuropathy did not impact his ability to work. At a January 2016 VA PTSD examination, the Veteran again reported that he owned the car lot from 1998 until his health failed him in approximately 2012, adding that he began having trouble with prolonged sitting, standing, and back problems. With respect to his occupational functioning, the VA examiner stated that “Veteran may have difficulty in positions with high emotional, social, or cognitive demands. Due to irritability, he may have intermittent difficulties in interactions with others. Sleep disruption may reduce daytime efficiency/productivity.” January 2016 VA PTSD examination at 7. On his September 2016 VA Form 9, the Veteran stated that he has not maintained steady employment since 2013 due to his PTSD and peripheral neuropathy and that he was unable to find a job that he could do with his current disabilities. At the April 2019 Board hearing, the Veteran testified that his PTSD, peripheral neuropathy, and diabetes mellitus impacted his decision-making and concentration when he worked as an assistant engineer. The Veteran’s wife also testified that the Veteran was frustrated and confused and took time off work because he was unable to do his job or needed to relax. The Board notes that it appears that the Veteran was referencing his work at United Space which, per the January 2016 VA PTSD examination, ended in approximately 1996 before service connection was in effect for any disabilities. Considering the totality of the evidence of record, the Board acknowledges that the Veteran’s PTSD and other disabilities interfered with employment but finds that they did not preclude employment. To that end, the disability rating to the Veteran’s assigned PTSD contemplates that he will have impairment in his earning capacity. While the Board does not doubt that the Veteran’s service-connected disabilities had an effect on his employability, the evidence of record weighs against the contention that his service-connected disabilities alone were of such severity so as to preclude his participation in any form of substantially gainful employment prior to January 22, 2018. Based on the evidence in the claims file, the Board finds that the symptomatology associated with the service-connected disabilities was appropriately compensated via the combined 80 percent rating which was assigned. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Considering the VA examinations of record and the discussion of symptomology contained therein and the lay statements of record, the Board finds the evidence weighs against a finding that the service-connected disabilities prevented substantially gainful employment prior to January 22, 2018.   Thus, the Board finds that the evidence of record does not indicate that TDIU was warranted prior to January 22, 2018. See 38 C.F.R. § 4.16(a). For this reason, this claim is denied. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Robinson, Associate 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.