Citation Nr: 21004925 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 20-24 962 DATE: January 28, 2021 ORDER Entitlement to an initial disability rating in excess of 20 percent for left upper extremity peripheral neuropathy is denied. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity peripheral neuropathy, sciatic nerve, is denied. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy, femoral nerve, is denied. Entitlement to an effective date earlier than March 31, 2014, for the grant of service connection for left upper extremity peripheral neuropathy is denied. Entitlement to an effective date earlier than March 31, 2014, for the grant of service connection for left lower extremity peripheral neuropathy, sciatic nerve, is denied. Entitlement to an effective date earlier than March 31, 2014, for the grant of service connection for left lower extremity peripheral neuropathy, femoral nerve, is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), is granted. FINDINGS OF FACT 1. The Veteran’s left upper extremity peripheral neuropathy for paralysis of the median nerve is manifested by moderate incomplete paralysis. 2. The Veteran’s left lower extremity peripheral neuropathy for paralysis of the sciatic nerve is manifested by moderate incomplete paralysis. 3. The Veteran’s left lower extremity peripheral neuropathy for paralysis of the femoral nerve is manifested by moderate incomplete paralysis. 4. The Veteran, who had active duty service from October 1965 to October 1967, initiated his claim for service connection for peripheral neuropathy of the left upper, left lower sciatic, and left lower femoral nerve neuropathy on March 31, 2014, which is the earliest possible date for which service connection may be awarded in the instant matter. 5. The Veteran has met schedular TDIU since March 31, 2014 and has been unemployed prior to and since that time. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 20 percent for the left upper extremity peripheral neuropathy for paralysis of the median nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8515. 2. The criteria for a rating in excess of 20 percent for the Veteran’s left lower extremity peripheral neuropathy for paralysis of the sciatic nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8520. 3. The criteria for a rating in excess of 10 percent for the Veteran’s left lower extremity peripheral neuropathy for paralysis of the femoral nerve are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.124a, Diagnostic Code 8526. 4. The criteria for an effective date earlier than March 31, 2014, for the grant of service connection for peripheral neuropathy of the left upper, left lower sciatic, and left lower femoral nerve associated with diabetes mellitus are not met. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 5. The criteria for an award of TDIU since March 31, 2014 are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1965 to October 1967. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in March 2019. The claim was remanded for additional development, to include a VA examination for diabetes, as associated with the neuropathy. A VA examination for diabetes has not been completed, however, upon reconsideration the Board finds there is sufficient evidence of record to adjudicate the claim, as the Board is awarding TDIU. Therefore, the Board finds that the RO substantially complied with the March 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). The issue of TDIU entitlement is being considered as a component of the increased rating claims in accordance with Rice v. Shinseki, 22 Vet. App. 447 (2009) (where there is evidence of unemployability raised by the record during a rating appeal period, the TDIU is an element of an initial rating or increased rating). Increased Rating Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. The evaluation of the same disability under various diagnoses, and the evaluation of the same manifestation under different diagnoses, are to be avoided. 38 C.F.R. § 4.14. The Veteran’s entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding service origin, the degree of disability, or any other point, such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to an initial disability rating in excess of 20 percent for left upper extremity peripheral neuropathy 2. Entitlement to an initial disability rating in excess of 20 percent for left lower extremity peripheral neuropathy, sciatic nerve 3. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy, femoral nerve The Veteran claims a rating in excess of 20 percent for the left upper median and left lower sciatic nerve is warranted. He also claims a rating in excess of 10 percent for the left lower femoral nerve is warranted. He has not articulated an argument or explanation for why the current ratings are not appropriate. The Veteran’s left side is considered the minor extremity. The Board notes the July 2017 rating decision granted service connection for the left upper extremity with a 20 percent evaluation; left lower extremity for the sciatic nerve at 20 percent, and left lower extremity femoral nerve at 10 percent evaluation, all effective March 31, 2014. The Veteran’s left upper extremity peripheral neuropathy is rated under DC 8515 for paralysis of the median nerve. See 38 C.F.R. § 4.124a. Under DC 8515, incomplete paralysis of the median nerve of the minor hand warrants a 10 percent rating when mild, a 20 percent rating when moderate, and a 40 percent rating when severe. Complete paralysis of the median nerve of the minor hand warrants a 60 percent rating. 38 C.F.R. § 4.124a, Diagnostic Code 8515. The Veteran’s left lower extremity peripheral neuropathy is rated under DC 8520 for paralysis of the sciatic nerve. See 38 C.F.R. § 4.124a. Under DC 8520 incomplete paralysis of the sciatic nerve is rated as 10 percent for mild, 20 percent for moderate, 40 percent for moderately severe, and 60 percent for severe incomplete paralysis with marked muscular atrophy. Complete paralysis is rated 80 percent, and is manifested by the foot dangling and dropping, no active movement possible of the muscles below the knee, and flexion of the knee weakened and (very rarely) lost. 38 C.F.R. § 4.124a, DC 8520. The Veteran’s left lower extremity peripheral neuropathy is rated under DC 8526 for paralysis of the anterior crural (femoral) nerve. See 38 C.F.R. § 4.124a. Under DC 8526 incomplete paralysis of the femoral nerve is rated as 10 percent for mild, 20 percent for moderate, and 30 percent for severe. Complete paralysis of the quadriceps extensor muscles is rated 40 percent. 38 C.F.R. § 4.124a, DC 8526. Under the provisions of 38 C.F.R. § 4.124a, 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. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Turning to the relevant evidence of record, during a November 2014 VA examination for diabetes the examiner noted examination findings are not consistent with a diagnosis of diabetic neuropathy. The Veteran was diagnosed with diabetes mellitus, coronary artery disease, and hypertensive heart disease. Furthermore, the examiner noted the Veteran’s report of numbness and tingling in the left upper and lower extremities are due to a stroke. A June 2017 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The Veteran was reported to be right-hand dominant. He was diagnosed with diabetic peripheral neuropathy of the left upper and left lower extremity. There was no muscle atrophy. The left upper extremity consisted of moderate incomplete paralysis for the median nerve. The left lower extremity consisted of moderate incomplete paralysis for the sciatic nerve. The left lower extremity consisted of moderate incomplete paralysis for the femoral nerve. The examiner found the left upper and left lower peripheral neuropathy are caused by the Veteran’s stroke and diabetes. The examiner determined the diabetic peripheral neuropathy would affect a job requiring prolonged standing, walking, and lifting. In October 2020 VA treatment records, the Veteran reported medication has helped his neuropathy. The Board has reviewed all of the lay and medical evidence of record in conjunction with the applicable laws and regulations and finds the Veteran’s left upper and lower extremity peripheral neuropathy are adequately evaluated. For the Veteran’s left upper extremity peripheral neuropathy for paralysis of the median nerve, higher ratings are available for severe incomplete paralysis or complete paralysis. The evidence has not reflected such manifestations. The June 2017 VA examination reflected moderate incomplete paralysis of the median nerve. For the Veteran’s left lower extremity peripheral neuropathy for paralysis of the sciatic nerve, higher ratings are available for moderately severe incomplete paralysis, severe incomplete paralysis, or complete paralysis. The evidence has not reflected such manifestations. The June 2017 VA examination reflected moderate incomplete paralysis of the sciatic nerve. For the Veteran’s left lower extremity peripheral neuropathy for paralysis of the femoral nerve, higher ratings are available for moderate incomplete paralysis, severe incomplete paralysis, or complete paralysis. The evidence has not reflected such manifestations. The June 2017 VA examination reflected moderate incomplete paralysis of the femoral nerve. The remaining record reflects no medical evidence or other such competent evidence contradicting the findings on the June 2017 VA examination. Therefore, the evidence of record establishes that the Veteran’s left upper extremity peripheral neuropathy for paralysis of the median nerve and the sciatic nerve adequately has been evaluated at 20 percent and most closely resembles the rating criteria for that percentage. See 38 C.F.R. § 4.124a, DC 8515, 8520. Likewise, the Veteran’s left lower extremity peripheral neuropathy for paralysis of the femoral nerve adequately has been evaluated at 10 percent and most closely resembles the rating criteria for that percentage. Therefore, increased ratings for the left upper and lower extremities are not warranted. Effective Date 4. Entitlement to an effective date earlier than March 31, 2014, for the grant of service connection for left upper extremity peripheral neuropathy 5. Entitlement to an effective date earlier than March 31, 2014, for the grant of service connection for left lower extremity peripheral neuropathy, sciatic nerve 6. Entitlement to an effective date earlier than March 31, 2014, for the grant of service connection for left lower extremity peripheral neuropathy, femoral nerve The Veteran contends he is warranted an earlier effective date for the grant of service connection for peripheral neuropathy of the left upper, left lower sciatic, and left lower femoral nerve is warranted. He has not articulated a particular argument as to why an earlier effective date is warranted. For the reasons discussed below, an earlier effective date is not warranted. The law regarding effective dates provides that, unless specifically provided otherwise, the effective date of an award based on an original claim, a claim reopened after final adjudication, or a claim for increase, of compensation, dependency and indemnity compensation, or pension, shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. 38 U.S.C. § 5110(a). The effective date of an award of disability compensation to a veteran shall be the day following the date of discharge or release if application therefor is received within one year from such date of discharge or release. 38 U.S.C. § 5110(b)(1). This statutory provision is implemented by a regulation which provides that the effective date of an evaluation and award of compensation based on an original claim or a claim reopened after final disallowance, will be the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 C.F.R. § 3.400 (See 38 C.F.R. § 3.400(b)(2) for disability compensation claims). A specific claim in the form prescribed by the Secretary must be filed in order for benefits to be paid or furnished to any individual under the laws administered by VA. 38 U.S.C. § 5101 (a); 38 C.F.R. § 3.151 (a). The term “claim” or “application” means a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1 (p). In this case on March 31, 2014, many years post service separation, the Veteran filed a service connection claim for diabetes associated with herbicide exposure and neuropathy among other claims. A July 2014 rating decision granted the diabetes claim and assigned a March 31, 2014 effective date. A December 2014 rating decision denied the neuropathy claims. On January 7, 2015 the Veteran filed a notice of disagreement with the denial of service connection claims for peripheral neuropathy. The July 2017 rating decision granted the peripheral neuropathy claims associated with diabetes and assigned a March 31, 2014 effective date. The evidence indicated the Veteran had neuropathy when he was service-connected for diabetes and disagreed with the neuropathy claim denial within a year of the diabetes rating decision. The Board notes there is no evidence that the Veteran had a pending claim prior to the one received on March 31, 2014. The RO assigned the effective date based on the application date. Therefore, the Veteran is in receipt of the earliest date possible for the peripheral neuropathy of the left upper, left lower sciatic, and left lower femoral nerve claims. Although previous final determinations may be overturned with evidence of CUE, the Board notes that the left upper and lower extremity peripheral neuropathy are initial claims. Therefore, there is no prior determination in which the Veteran or his representative may allege CUE. To the extent that the Veteran is arguing he had peripheral neuropathy associated with diabetes prior to the March 31, 2014 application date, the Board finds this argument does not warrant an earlier effective date. The pertinent legal authority governing effective dates is clear and specific, and the Board is bound by such authority. While the disability itself may have manifested earlier, this does not decide the effective date in this case; the date of claim does. The controlling regulation clearly and specifically provides that the effective date shall be the date of receipt of the appellant’s claim or the date on which entitlement arose, whichever is later. 38 C.F.R. § 3.400(b)(2)(i). While the law requires VA to give a sympathetic reading to a veteran’s filings by determining all potential claims raised by the evidence, and applying all relevant laws and regulations, it is well settled that an intent to apply for benefits is an essential element of any claim, whether formal or informal, and, further, the intent must be communicated in writing. Criswell v. Nicholson, 20 Vet. App. 501 (2006), citing MacPhee v. Nicholson, 459 F.3d 1323, 1326-27 (Fed.Cir.2006) (holding that the plain language of the regulations require a claimant to have an intent to file a claim for VA benefits); also citing Rodriguez v. West, 189 F.3d 1351, 1353 (Fed.Cir.1999) (noting that even an informal claim for benefits must be in writing); also citing Brannon v. West, 12 Vet. App. 32, 35 (1998). On these facts, because the earliest effective date legally possible has been assigned under 38 C.F.R. §§ 3.400, and no effective date for the award of service connection earlier than March 31, 2014 (date of receipt of claim for service connection) is assignable, the appeal for an earlier effective date as to the issue of service connection for peripheral neuropathy of the left upper, left lower sciatic nerve, and left lower femoral nerve is without legal merit, and must be denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law is dispositive, the claim must be denied due to a lack of legal merit). Accordingly, the Board concludes that an effective date prior to March 31, 2014, for the award of service connection for peripheral neuropathy of the left upper, left lower sciatic nerve, and left lower femoral nerve associated with diabetes is not warranted as a matter of law. 7. Entitlement to a TDIU The Veteran contends a TDIU is warranted. The Board agrees. Total disability means that there is present any impairment of mind or body sufficient to render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. §§ 3.340, 4.15. Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). In Ray v. Wilkie, 31 Vet. App. 58 (2019), the United States Court of Appeals for Veterans Claims (Court) explained that substantially gainful employment contains economic and noneconomic components. Ray v. Wilkie, No. 17-0781, March 14, 2019. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. Id. In making this determination, consideration may be given to factors such as the veteran’s level of education, special training, and previous work experience, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A veteran is totally disabled if his service-connected disability or combination of service-connected disabilities is rated at 100 percent pursuant to the Schedule for Rating Disabilities. 38 C.F.R. § 3.340(a)(2). Even if a veteran is less than 100 percent disabled, he still is deemed totally disabled under the Schedule for Rating Disabilities if he satisfies two requirements. 38 C.F.R. § 4.16(a). First, the veteran must meet a minimum percent evaluation. If he has one service-connected disability, it must be evaluated at 60 percent or more. If he has two or more service-connected disabilities, at least one disability must be evaluated at 40 percent or more and the combined evaluation of all the disabilities must be 70 percent or more. The following will be considered as one disability with respect to the minimum percent evaluation: (1) disabilities of one or both upper extremities or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system (e.g., orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric), (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. Second, the veteran must be found to be unable to secure and follow a substantially gainful occupation as a result of his service-connected disability or disabilities. Id. In determining whether a TDIU is warranted, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded the claimant. Turning to the evidence, a January 2016 private psychologist, H.H.G., opined the Veteran’s psychiatric diagnoses prevents him from sustaining and maintaining meaningful gainful employment. The Veteran reported he has received benefits from the Social Security Administration since 2013. A June 2017 VA examination report indicated review of the Veteran’s claims file, recounted the Veteran’s history, and recited his complaints. The examiner determined the diabetic peripheral neuropathy would affect a job requiring prolonged standing, walking, and lifting. The Veteran submitted an October 2019 VA 21-8940 form (claim for TDIU) indicating the all of the service-connected disabilities have prevented him from securing or following any substantially gainful occupation. The Veteran’s education consists of 4 years of college with A and P training. He asserts the first date these disabilities affected his full-time employment and the date he last worked was in June 2003. Prior work experience included full time work as a mechanic for United Airlines from June 1990 to June 2003. A December 2020 Social Security Administration inquiry revealed the Veteran has been disabled since September 2011. The diagnoses associated with the benefits were not listed. The record reflects the Veteran is service-connected for coronary artery disease, rated at 30 percent effective March 31, 2014; type II diabetes mellitus (DM), rated at 20 percent effective March 31, 2014; left upper extremity peripheral neuropathy associated with the DM, rated at 20 percent effective March 31, 2014; left lower extremity peripheral neuropathy sciatic nerve associated with the DM, rated at 20 percent effective March 31, 2014; left lower extremity peripheral neuropathy femoral nerve associated with the DM, rated at 10 percent effective March 31, 2014; and non-compensable unspecified depressive disorder effective September 2, 2014. The total combined disability rating is 70 percent effective March 31, 2014. Although the Veteran does not have at least one disability evaluated at 40 percent as required for multiple disabilities, the Board finds schedular is still met. As noted above, the Veteran can meet the minimum percent evaluation in multiple ways. Specifically, disabilities resulting from common etiology or a single accident, applies. In this case the Veteran is service-connected for DM evaluated at 20 percent; left upper extremity peripheral neuropathy associated with the DM evaluated at 20 percent; left lower extremity peripheral neuropathy sciatic nerve associated with the DM, evaluated at 20 percent; and left lower extremity peripheral neuropathy femoral nerve associated with the DM evaluated at 10 percent. Under the combined rating table of 38 C.F.R. § 4.25, those disabilities are rated together at 54 percent, which is rounded down to 50 percent. Therefore, the Veteran has a single disability evaluated at 50 percent which meets schedular in accordance with 38 C.F.R. § 4.16(a). Therefore, schedular has been met from March 31, 2014. The question of the ability to engage in a substantially gainful occupation must be looked at in a practical manner, and mere theoretical ability to engage in substantial gainful employment is not a sufficient basis to deny benefits. The test is whether a particular job is realistically within the physical and mental capabilities of the claimant. Moore v. Derwinski, 1 Vet. App. 356, 359 (1991), citing Timmerman v. Weinberger, 510 F.2d 439, 442 (8th Cir. 1975). The Veteran has not worked full time since 2003. The record reflects that the Veteran had 4 years of college with airframe and powerplant training. Post-military, his place of employment, as a mechanic, was physical in nature. Also, his training is limited to mechanical maintenance. The January 2016 private psychologist, H.H.G., opined the Veteran’s psychiatric diagnoses prevents him from sustaining and maintaining meaningful gainful employment. Furthermore, the June 2017 VA examiner determined the diabetic peripheral neuropathy would affect a job requiring prolonged standing, walking, and lifting. Accessing the ability to engage in a substantially gainful occupation in a practical manner, the Board finds the Veteran is unable to work. Given his training and work experience is specific mechanical vocation, this is certainly significantly impacted by his physical limitations with his peripheral neuropathy. Moreover, the is medical evidence demonstrating that his service-connected psychiatric disability significantly affects his ability to work. For all these reasons, it is impracticable for him to find a substantially gainful occupation. Accordingly, the Board finds that the evidence is at least in equipoise to support the Veteran’s contention that he is unemployable due to the effects of his service-connected disabilities. Thus, from March 31, 2014 entitlement to schedular TDIU under 38 C.F.R. § 4.16(a), is granted. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Jackman, 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.