Citation Nr: 21002820 Decision Date: 01/15/21 Archive Date: 01/15/21 DOCKET NO. 06-28 179 DATE: January 15, 2021 ORDER A total disability rating based upon individual unemployability due to the Veteran’s service-connected disabilities (TDIU), to include an extraschedular rating for TDIU prior to July 18, 2008, is granted. The issue of entitlement to a disability rating in excess of 20 percent for peripheral neuropathy left lower extremity is dismissed. The issue of entitlement to a rating in excess of 20 percent for carpal tunnel syndrome of the left upper extremity from September 8, 2006 to October 18, 2006, and a compensable rating from December 1, 2006, is dismissed. The issue of entitlement to a rating in excess of 10 percent for carpal tunnel syndrome of the right upper extremity from September 8, 2006 to January 24, 2007 and a compensable rating from March 1, 2007, is dismissed. THE VETERAN’S CONTENTIONS The Veteran seeks entitlement to a disability rating in excess of 20 percent for peripheral neuropathy left lower extremity; a rating in excess of 20 percent for carpal tunnel syndrome of the left upper extremity from September 8, 2006 to October 18, 2006, and a compensable rating from December 1, 2006; a rating in excess of 10 percent for carpal tunnel syndrome of the right upper extremity from September 8, 2006 to January 24, 2007 and a compensable rating from March 1, 2007; and entitlement to TDIU from January 23, 2004. See December 2020 representative’s statement; November 2019 VA Form 9; June 2019 notice of disagreement (NOD). However, the Veteran stated that in the interest of bringing this longstanding litigation to a close, he would accept a grant of TDIU as of September 8, 2006 as a full grant of benefits sought in this case. See December 2020 representative’s statement. The Veteran contends that he has not earned gainful income since 2004. Id. On his TDIU application, he reported that he last worked in February 2003 and became too disabled to work at that time due to diabetes. See VA Forms 21-8940 submitted in February 2012, September 2010, and July 2010. He reported that he was self-employed in heating, ventilation, and air conditioning (HVAC) services until February 2003. He also noted he had HVAC training in May 2009. Id. The Veteran has contended that the evidence shows that the functional limitations of his service-connected diabetes, peripheral neuropathies, and carpal tunnel syndrome, have prevented him from maintaining gainful employment since, at least, 2006. See December 2020 representative’s statement; November 2019 VA Form 9; June 2019 notice of disagreement (NOD). In an August 2007 VA peripheral nerves examination, the Veteran reported that he had not worked since October 2006 due to his hand conditions as he was unable to hold tools. In a July 2010 VA examination, the Veteran reported that he retired in 2006 due to increased fatigue, poor stamina, and loss of mobility. In a November 2010 diabetes mellitus VA examination, the Veteran reported that he retired in January 2006 due to physical problems, including arm weakness, hand weakness, leg weakness, and his diabetes worsening and requiring insulin and the need to eat on a certain schedule. At a June 2014 VA examination, the Veteran reported that he had to quit his position due to his hands as he was unable to hold anything. The Veteran reported that he had a high school education and his work experience was almost exclusively in heating, ventilation, and air conditioning repair. See December 2020 representative’s statement. FINDINGS OF FACT 1. It is reasonably shown that the Veteran’s service-connected disabilities have precluded him from securing or following a substantially gainful occupation since September 8, 2006. 2. In June 2019, the Veteran filed a notice of disagreement in response to a March 2018 rating decision (notification for which is dated July 10, 2018) which purported to appeal the 20 percent rating assigned for peripheral neuropathy of the left leg from January 23, 2004 onward. 3. The March 2018 rating decision (notification for which is dated July 10, 2018) was merely implementing a June 2017 final Board decision and did not adjudicate any question of law or fact. 4. The Veteran did not file a motion for a notice of appeal to the United States Court of Appeals for Veterans Claims (Court), file a motion with the Board requesting reconsideration of the June 2017 Board decision or that the Board decision be vacated, or file a motion alleging clear and unmistakable error (CUE) in the June 2017 Board decision. 5. In a December 2020 statement, the Veteran, through his representative, stated that he would accept a grant of TDIU as of September 8, 2006 as a full grant of benefits sought in this case. CONCLUSIONS OF LAW 1. Since September 8, 2006, the criteria assignment of TDIU due to the Veteran’s service-connected disabilities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.16. 2. The issue of entitlement to a rating in excess of 20 percent for peripheral neuropathy left lower extremity since January 23, 2004, is dismissed. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. 3. The issue of entitlement to a rating in excess of 20 percent for carpal tunnel syndrome of the left upper extremity from September 8, 2006 to October 18, 2006, and a compensable rating from December 1, 2006, is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The issue of entitlement to a rating in excess of 10 percent for carpal tunnel syndrome of the right upper extremity from September 8, 2006 to January 24, 2007 and a compensable rating from March 1, 2007 is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1966 to May 1969. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from June 2004 (diabetes mellitus) and April and September 2007 (carpal tunnel syndrome) rating decisions of the Department of Veterans Affairs (VA) Regional Offices (ROs). The Board denied the Veteran’s claims for service connection for a bilateral hand disorder and for an increased rating for diabetes mellitus in a November 2008 decision. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In a July 2009 Joint Motion for Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the November 2008 decision as to such issues. The Court granted the JMR in a July 2009 Order. In August 2010, the Board remanded the issues of entitlement to service connection for a bilateral hand disorder, entitlement to an increased rating for diabetes mellitus, and TDIU. In May 2012, the Board denied the issues of entitlement to increased ratings for diabetes mellitus and peripheral neuropathy of the left lower extremity, and remanded the issues of entitlement to service connection for a bilateral hand disorder and TDIU. Thereafter, the Veteran appealed to the Court. In a June 2013 JMR, the parties moved the Court to vacate the May 2012 decision as to the issues of entitlement to a disability rating for diabetes mellitus in excess of 20 percent from January 23, 2004 to April 21, 2011; entitlement to a disability rating for left lower extremity peripheral neuropathy in excess of 10 percent from January 23, 2004 to April 12, 2009; and entitlement to a disability rating for left lower extremity peripheral neuropathy in excess of 20 percent from April 13, 2009 to April 21, 2011. The Court granted the JMR in a June 2013 Order. In February 2014, the Board remanded the issues that were the subject of the June 2013 JMR, and observed that the issues of entitlement to service connection for a bilateral hand disorder and TDIU had not yet been recertified to the Board. In a June 2017 Board decision, the Board granted service connection for right and left carpal tunnel syndrome; granted a rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy, effective from January 23, 2004 to April 12, 2009; and denied a rating in excess of 20 percent for left lower extremity peripheral neuropathy for the period from April 13, 2009 to April 21, 2011. In the June 2017 Board decision, the Board also remanded the issue of entitlement to TDIU, to include on an extraschedular basis, for the period since January 23, 2004. In December 2012, the Veteran withdrew his request for a Board hearing. 1. TDIU A Veteran who is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16 (b). TDIU 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 a single service-connected disability ratable at 60 percent or more, or 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). The Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where the percentage requirements of 38 C.F.R. § 4.16(a) are not met, entitlement to TDIU on an extraschedular basis may be considered. 38 C.F.R. § 4.16(b). The claim must first be referred to the Director for extraschedular consideration. Id. Thereafter, the Board may review the decision of the Director and make an independent determination on the matter. Wages v. McDonald, 27 Vet. App. 233, 238 (2015) (holding that the Board conducts de novo review of the Director’s decision denying extraschedular consideration). Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, entitlement to a TDIU is based on an individual’s particular circumstances. See Todd v. McDonald, 27 Vet. App. 79 (2014); see also Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Therefore, in determining whether an individual is unable to follow a substantially gainful occupation, VA must consider a number of factors, including the veteran’s level of education, special training, and previous work experience, but not his or her age or any impairment caused by non-service connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Veteran’s service-connected disabilities, alone, must be sufficiently severe to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Additionally, consideration may be given to the frequency and duration of periods of incapacity or time lost from work due to disability, the Veteran’s employment history and current employment status, and the veteran’s annual income from employment, if any. See Hatlestad, 1 Vet. App. 164 (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer). The term “unemployability,” as used in VA regulations governing total disability ratings, is synonymous with an inability to secure and follow a substantially gainful occupation. For purposes of determining whether a claimant is entitled to a TDIU, marginal employment shall not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). 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 held to exist, on a facts found basis (including but not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. Id. Consideration shall be giving in all claims to the nature of the employment and the reason for termination. Id. The Veteran is in receipt of a combined schedular rating of 100 percent effective April 22, 2011. Between September 8, 2006 and April 22, 2011, the Veteran’s service connected disabilities are: 1) chronic regional insufficiency rated 60 percent from July 18, 2008; 2) coronary artery disease rated 30 percent from May 27, 2010; 3) depressive disorder associated with diabetes mellitus rated 50 percent disabling since July 28, 2010; 4) diabetes mellitus rated 20 percent disabling since May 4, 2001; 5) hypertension rated 10 percent disabling from September 20, 2002 to July 28, 2010; 6) tinnitus rated 10 percent disabling from October 7, 2008; 7) shin spots, hyperkeratotic plagues associated with diabetes mellitus rating noncompensable effective July 28, 2010; 8) peripheral neuropathy of the right lower extremity associated with diabetes mellitus rated 10 percent disabling effective January 23, 2004; 9) peripheral neuropathy of the left lower extremity associated with diabetes mellitus rated 20 percent disabling effective January 23, 2004; 10) carpal tunnel syndrome of the left upper extremity rated 20 percent disabling from September 8, 2006; 100 percent disabling from October 19, 2006; and noncompensable from December 1, 2006; 11) carpal tunnel syndrome of the right upper extremity rated 10 percent disabling since September 8, 2006; 100 percent disabling from January 25, 2007; and noncompensable from March 1, 2007; 12) bilateral hearing loss rated noncompensable from October 7, 2008. Effective July 18, 2008, the Veteran meets the schedular requirements for an award of TDIU due to his chronic renal insufficiency rated 60 percent from July 18, 2008. Prior to July 18, 2008, the Veteran does not meet the schedular requirements for an award of an award of TDIU pursuant to 38 C.F.R. § 4.16(a). As noted above, the Veteran contends that he has not earned gainful income since 2004. See December 2020 representative’s statement. On the Veteran’s TDIU application, he reported that he last worked in February 2003 and became too disabled to work at that time due to diabetes. See VA Forms 21-8940 submitted in February 2012, September 2010, and July 2010. He stated that he was self-employed in HVAC services until February 2003. He also noted he had HVAC training in May 2009. Id. He stated that the evidence shows that the functional limitations of his service-connected diabetes, peripheral neuropathies, and carpal tunnel syndrome, have prevented him from maintaining gainful employment since, at least, 2006. See December 2020 representative’s statement; November 2019 VA Form 9; June 2019 notice of disagreement (NOD). He also noted that he had a high school education and his work experience was almost exclusively in heating, ventilation, and air conditioning repair. See December 2020 representative’s statement. The Board acknowledges that the August 2018 VA examiner determined that the Veteran’s carpal tunnel syndrome did not impact his physical or sedentary employment since January 23, 2004. Further, in September 2019, the claim was referred to the Director, Compensation Services for consideration of entitlement to a TDIU on an extraschedular basis. A negative opinion was provided by the Director, Compensation Services. However, in an August 2007 VA peripheral nerves examination, the Veteran reported that he had not worked since October 2006 due to his hand conditions as he was unable to hold tools. A February 2008 VA diabetes mellitus examination noted significant effects on the Veteran’s occupation including decreased manual dexterity and difficulty reaching. An August 2008 VA examination showed that the Veteran’s carpal tunnel syndrome had significant effects on his occupation as he was only able to lift a maximum of 30 to 40 pounds and for a short amount of time only. In an October 2009 letter, a medical nurse, P.B., determined that the Veteran had been unable to work for the prior three years due to pain in his hands and legs, poor coordination, poor grip, and loss of manual dexterity required in his field of work, due to his diabetic neuropathy. The Social Security Administration (SSA) found the Veteran was disabled effective January 1, 2009 due to a primary diagnosis of diabetic neuropathy and a secondary diagnosis of a back disorder. In a May 2010 letter, a private medical provider, P.C., noted that based on a review of the Veteran’s medical records and the current medical literature on the subject, the Veteran was unemployable since 1998 due to diabetes and associated neuropathy symptoms. He noted that while the Veteran ran his own business and was therefore unable to take medical leave when needed, it was clear that by 1998, he was no longer able to manage this type of work or able to perform even minimal work functions. He noted that the Veteran was easily tired, lost ability to move around and maneuver instruments easily, and required continued rest and pain relief. In a December 2011, P.C., again stated that the Veteran had been unable to secure gainful employment, sedentary or otherwise, due to his diabetes mellitus and associated complications, since at least 1998. P.C. provided another letter in October 2020 letter in which he determined that the Veteran’s service-connected diabetes, peripheral neuropathy, and carpal tunnel syndrome were so severe as to prevent him from any form of employment, including sedentary work, since at least, his diagnosis of carpal tunnel syndrome in 2006. He noted that the Veteran’s symptoms of carpal tunnel syndrome and peripheral neuropathy of the bilateral lower extremities were, at least, moderate. P.C. cites to medical evidence of record in support of his opinion. Further, in a November 2020 letter, a private vocational expert, T.D., determined, based on a review of the Veteran’s medical records, education, and vocational history, that the combination of the Veteran’s impairments had preventing him from participating in gainful employment since at least September 2006. T.D. specifically noted that the Veteran’s work experience and education do not readily translate to sedentary occupational environments, and that he was unemployable due to his service-connected diabetes mellitus, carpal tunnel syndrome, and lower extremity peripheral neuropathy. T.D. also stated that the Veteran worked full time as an HVAC technician with his sons until he was forced to stop working due to his health, and that the Veteran maintains his business license so that his son can continue working. He stated that the Veteran did not earn above marginal income for his work except for four years since he last worked full time in 1998. T.D. noted that the Veteran stopped working altogether in 2008 and had earned no income in 2009. The Board acknowledges that the record contains conflicting evidence regarding the Veteran’s last day of employment. However, to the extent that the Veteran was employed in any capacity from 2006 to 2009, the evidence shows that his earnings were $764 in 2006, $5,195 in 2007; and $8,655 in 2008. The poverty threshold for one person under the age of 65 is $10,488 in 2006; $10,787 in 2007; and $11,201 in 2008. As the 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, the evidence shows that the Veteran’s employment was marginal employment. Further, the evidence shows that the Veteran worked in a protected environment as this was a family business. In light of the Veteran’s contentions and the foregoing evidence in support of his claim, and resolving doubt in the Veteran’s favor as mandated by law (38 U.S.C. § 5107; 38 C.F.R. § 3.102), the Board finds that TDIU is warranted since September 8, 2006. In granting entitlement to TDIU, the Board finds that the Veteran is entitled to TDIU on an extraschedular basis from September 8, 2006 to July 17, 2008 as the evidence shows that the Veteran’s service-connected disabilities at that time (diabetes mellitus, hypertension, peripheral neuropathy of the right and left lower extremities, and carpal tunnel syndrome of the left and right upper extremities) rendered him unemployable. Since July 18, 2008, TDIU is warranted on a schedular basis as the Veteran meets the schedular requirements due to chronic renal insufficiency with hypertension associated with diabetes mellitus rated 60 percent disabling effective July 18, 2008. As noted above, the Veteran contended that in the interest of bringing this longstanding litigation to a close, he would accept a grant of TDIU as of September 8, 2006 as a full grant of benefits sought in this case. See December 2020 representative’s statement. As the Board finds that the evidence supports entitlement to TDIU since September 8, 2006, this represents a complete grant of the benefit sought on appeal and no discussion of the other increased ratings claims on appeal, to include increased ratings for left lower extremity peripheral neuropathy and bilateral carpal tunnel syndrome, is warranted. AB v. Brown, 6 Vet. App. 35, 38 (1993). Further, the Board notes that the Veteran is in receipt of a combined schedular rating of 100 percent effective April 22, 2011. A TDIU is considered a lesser benefit than the 100 percent rating, and the grant of a 100 percent rating generally renders moot the issue of entitlement to a TDIU for the period when the 100 percent rating is in effect. An exception to this is a separate award at the housebound rate or a TDIU predicated on a single disability (perhaps not ratable at the schedular 100-percent level) when considered together with another disability separately rated at 60 percent or greater may warrant payment of special monthly compensation (SMC) under 38 U.S.C. § 1114(s). Bradley v. Peake, 22 Vet. App. 280 (2008). The Board does not consider entitlement to SMC in this case as the Veteran contended that he would accept a grant of TDIU as of September 8, 2006 as a full grant of benefits sought in this case. See December 2020 representative’s statement. 2. Peripheral neuropathy of the left lower extremity In a July 2019 statement labeled as a notice of disagreement (NOD), the Veteran sought a rating in excess of 20 percent for peripheral neuropathy of the left lower extremity from January 23, 2004 onward. The July 2019 statement was filed in response to a March 2018 rating decision. However, the March 2018 rating decision cannot be appealed as it is simply effectuating the Board’s June 2017 decision, which granted a rating of 20 percent, but no higher, for left lower extremity peripheral neuropathy from January 23, 2004 to April 12, 2009 and denied a rating in excess of 20 percent for left lower extremity peripheral neuropathy from April 13, 2009 to April 21, 2011. Thus, there is no rating decision from which disagreement could be appropriately expressed. To allow the Veteran to appeal the March 2018 RO rating decision with respect to the implementation of the Board’s decision would impermissibly obviate the finality of the Board decision on this issue. In general, Board decisions are final as of the date of issuance and mailing. 38 U.S.C. § 7103; 38 C.F.R. § 20.1100. A final Board decision can be challenged in four ways. First, the Court can review a Board decision where the appellant files a Notice of Appeal to the Court within 120 days of notice of the Board decision. Second, the Board can reconsider a Board decision where the appellant files a motion for reconsideration of the decision. Third, the Board can vacate a Board decision where the appellant files a motion to vacate the decision. Fourth, a motion can be filed for revision of a Board decision based on clear and unmistakable error (CUE) in the decision. 38 U.S.C. § 7266; 38 C.F.R. § 20.1403. The Veteran did not take the actions above, and therefore, the June 2017 Board decision is final. 38 U.S.C. § 7104 (b); 38 C.F.R. § 20.1100. Thus, there is no rating decision from which disagreement could be appropriately expressed. Further, the Board finds that the Veteran’s July 2019 statement is not a new claim for an increased rating since April 21, 2011. VA amended its adjudication regulations on March 24, 2015 to require that all claims governed by VA’s adjudication regulations be filed on standard forms prescribed by the Secretary, regardless of the type of claim or posture in which the claim arises. See 79 Fed. Reg. 57660 (Sept. 25, 2014). 3. Carpal tunnel syndrome of the left and right upper extremities As noted above, the Veteran contended that in the interest of bringing this longstanding litigation to a close, he would accept a grant of TDIU as of September 8, 2006 as a full grant of benefits sought in this case. See December 2020 representative’s statement. As the Board finds that the evidence supports entitlement to TDIU since September 8, 2006, this represents a complete grant of the benefit sought on appeal and no discussion of the other increased ratings claims on appeal is warranted. AB v. Brown, 6 Vet. App. 35, 38 (1993). Accordingly, the issues of entitlement to a rating in excess of 20 percent for carpal tunnel syndrome of the left upper extremity from September 8, 2006 to October 18, 2006, and a compensable rating from December 1, 2006; and entitlement to a rating in excess of 10 percent for carpal tunnel syndrome of the right upper extremity from September 8, 2006 to January 24, 2007, and a compensable rating from March 1, 2007, are dismissed as moot. S.C. Krembs Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Samuelson, 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.