Citation Nr: 21063608 Decision Date: 10/14/21 Archive Date: 10/14/21 DOCKET NO. 16-05 653 DATE: October 14, 2021 ORDER Effective April 8, 2014, a rating of 40 percent for diabetic peripheral neuropathy of the right lower extremity is granted. Effective April 8, 2014, a rating of 40 percent for diabetic peripheral neuropathy of the left lower extremity is granted. Effective April 5, 2021, entitlement to a rating in excess of 40 percent for diabetic peripheral neuropathy of the right lower extremity is denied. Effective April 5, 2021, entitlement to a rating in excess of 40 percent for diabetic peripheral neuropathy of the left lower extremity is denied. Effective April 8, 2014, a total disability rating based on individual unemployability (TDIU) due to the diabetic disease process is granted. FINDINGS OF FACT 1. Effective April 8, 2014, the evidence demonstrates the Veteran's peripheral neuropathy of the right lower extremity has been productive of moderately severe incomplete paralysis. 2. Effective April 8, 2014, the evidence demonstrates the Veteran's peripheral neuropathy of the left lower extremity has been productive of moderately severe incomplete paralysis. 3. At no time during the period on appeal has the Veteran's peripheral neuropathy of the right lower extremity been productive of severe incomplete paralysis with marked muscular atrophy. 4. At no time during the period on appeal has the Veteran's peripheral neuropathy of the left lower extremity been productive of severe incomplete paralysis with marked muscular atrophy. 5. Effective April 8, 2014, the Veteran's service-connected diabetes, to include the diabetic disease process, precludes him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. Effective April 8, 2014, the criteria for a 40 percent rating for right lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. Effective April 8, 2014, the criteria for a 40 percent rating for left lower extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.124a, DC 8520. 3. The criteria for a rating in excess of 40 percent for right lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.124a, DC 8520. 4. The criteria for a rating in excess of 40 percent for left lower extremity peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.6, 4.7, 4.124a, DC 8520. 5. Effective April 8, 2014, the criteria for the grant of TDIU have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1968 to May 1969, including service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes VA received the Veteran's increased rating claim for diabetes mellitus, and associated peripheral neuropathy, on April 8, 2014. Further, the issue of entitlement to TDIU is part and parcel of the April 2014 increased rating claim pursuant to Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Thus, the period on appeal is from April 8, 2014, through present. The Veteran and K.F., a nurse, presented sworn testimony at a hearing before the undersigned Veterans Law Judge in August 2019. The Board remanded the issues on appeal for further development in October 2019 and March 2021. During the pendency of the appeal, in a September 2015 rating decision, the RO granted service connection for diabetic peripheral neuropathy of the right and left lower extremity and assigned ratings of 10 percent effective November 20, 2014, the date peripheral neuropathy was diagnosed. In an April 2021 rating decision, the RO increased the ratings for diabetic peripheral neuropathy of the right and left lower extremity from 10 to 40 percent, granted TDIU effective April 5, 2021. Inasmuch as the April 2021 rating decision granted TDIU effective April 5, 2021, the matter of entitlement to TDIU has been recharacterized as entitlement to TDIU prior to April 5, 2021. See Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper v. Wilkie, 30 Vet. App. 356 (2018). Increased Rating 1. Entitlement to a rating in excess of 10 percent prior to April 5, 2021, for diabetic peripheral neuropathy of the right lower extremity. 2. Entitlement to a rating in excess of 10 percent prior to April 5, 2021, for diabetic peripheral neuropathy of the left lower extremity. 3. Entitlement to a rating in excess of 40 percent for diabetic peripheral neuropathy of the right lower extremity. 4. Entitlement to a rating in excess of 40 percent for diabetic peripheral neuropathy of the left lower extremity. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's diabetic peripheral neuropathy of the right and left lower extremity were each rated at 10 percent prior to April 5, 2021, and 40 percent thereafter, under Diagnostic Code 8520. Diagnostic Code 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve, 20 percent for moderate incomplete paralysis of the sciatic nerve, 40 percent for moderately severe incomplete paralysis of the sciatic nerve, and 60 percent for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. A rating of 80 percent is warranted for complete paralysis of the sciatic nerve, characterized by the foot dangles and drops, no active movement possible of muscles below the knee, flexion of the knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a, Diagnostic Code 8520. The preface to 38 C.F.R. § 4.124a states that when the involvement is wholly sensory, the rating should be for the mild, or at the most, the moderate degree. In addition, the preface states that the term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. The Board acknowledges that the terms "mild," "moderate," and "severe" are not defined in the rating schedule. 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. The use of terminology such as "moderate" or "severe" by VA examiners and others, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Veteran contends he is entitled to ratings in excess of 10 percent prior to April 5, 2021, and in excess of 40 percent thereafter for diabetic peripheral neuropathy of the right and left lower extremity. Specifically, the Veteran stated bilateral leg and foot pain, stiffness, and tingling are present most days and makes it difficult to walk. He also reported his prescribed pain medication, including taking Gabapentin twice per day, prevents him from engaging in a lot of activities. See February 2016, VA Form 9; VA Forms 21-4138 dated December 2014, January 2015, and February 2016. Based on the evidence of record, the Board finds ratings of 40 percent, but no higher, for diabetic peripheral neuropathy of the right and left lower extremity are warranted effective April 8, 2014. At the outset, the Board notes that the Veteran's right and left lower extremity neuropathy has not been manifested by muscle atrophy or complete paralysis at any point during the appeal period. Therefore, entitlement to ratings of 60 or 80 percent for incomplete and complete paralysis, respectively, under Diagnostic Code 8520, are not warranted. The Veteran had three VA peripheral nerve examinations. In the September 2015 examination, the Veteran reported muscle cramps and fatigue prevent him from distance walking. The VA examiner found the Veteran's reported lower extremity muscle cramps, tingling, impaired balance, and fatigue were manifestations of his service-connected diabetes mellitus. The VA examiner also found mild intermittent pain and paresthesias in the bilateral lower extremities; no numbness or constant pain; normal reflexes and flexion; no muscle atrophy; decreased sense of touch, vibration sensation, and cold sensation; and mild incomplete paralysis of the bilateral sciatic nerve. In December 2019, the Veteran stated he retired as a miner and heavy equipment operator because of reduced sensation and occasional numbness in his feet and the inability to feel sharp or irregular shaped objects through his boots. In April 2021, a VA examiner diagnosed diabetic peripheral neuropathy of the bilateral lower extremities as of 2011. The Veteran reported pain, numbness, and tingling in his lower legs and feet; inability to climb a step ladder or walk due to pain from his knees down; swelling and no feeling in his feet; and episodes of stumbling and falling due to lack of a good base of lower body support. The examiner found constant, moderate pain in the bilateral lower extremities; severe paresthesias and/or dysesthesias and numbness in the bilateral lower extremities; no muscle atrophy; normal deep tendon reflexes and muscle strength; no sensation to light touch in the ankle, lower legs, feet, or toes; decreased sensation in the knees and thighs; decreased position sense in the lower extremities; no vibration sense or cold sensation in the lower extremities; and almost complete loss of lower extremity hair, smooth and shiny skin. Moderately severe incomplete paralysis of the sciatic nerve was indicated for the lower extremities. Based on the medical and lay evidence of record, the Board finds that the Veteran's right and left lower extremity peripheral neuropathy most closely approximates moderately severe incomplete paralysis throughout the appeal period as peripheral neuropathy was diagnosed in 2011; he stopped working in 2010 due to numbness, pain, and stiffness in his legs and feet; experiences bilateral leg and foot pain, stiffness, and tingling on most days; has difficulty walking; pain medication for his lower extremities prevents him from engaging in activities; and has decreased to no sensation in his lower extremities. See e.g., VA examinations dated September 2015, December 2019, and April 2021; August 2019, Hearing transcript; February 2016, VA Form 9; VA Forms 21-4138 dated December 2014, January 2015, and February 2016; March 2014, VA treatment record. Accordingly, effective April 8, 2014, 40 percent ratings for the Veteran's diabetic peripheral neuropathy of the right and left lower extremity are warranted. The Board finds the Veteran is not entitled to ratings in excess of 40 percent for his right or left lower extremity diabetic peripheral neuropathy for any period during the appeal. The evidence of record reveals that the Veteran's right and left lower extremity peripheral neuropathy are manifested by constant moderate pain in the bilateral lower extremity and severe paresthesias and/or dysesthesias and numbness. There is no evidence specifically indicating the Veteran's peripheral neuropathy was any more severe than moderately severe. There is no evidence the right and left lower extremity peripheral neuropathy are manifested by muscle atrophy, or complete paralysis. See, e.g., September 2015, VA diabetic neuropathy examination (finding normal strength in the lower extremities, normal to decreased deep tendon reflexes, and no muscle atrophy); December 2019, VA examination (finding normal strength in the lower extremities, absent deep tendon reflexes, and no muscle atrophy); and April 2021, VA examination (finding normal strength in the lower extremities, normal deep tendon reflexes, and no muscle atrophy). Accordingly, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 40 percent for right and left lower extremity diabetic peripheral neuropathy. TDIU 5. Entitlement to TDIU prior to April 5, 2021. The Veteran asserts that his service-connected disabilities prevent him from obtaining and retaining substantially gainful employment. Specifically, he stated that he left the workplace due to pain and numbness in his legs and feet. See August 2019, Hearing transcript. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to a veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to their age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). To qualify for a total rating for compensation purposes, the evidence must show: (1) a single disability rated as 100 percent disabling; or (2) that the veteran is unable to secure or follow a substantially gainful occupation as a result of his service-connected disabilities and there is one disability ratable at 60 percent or more, or, if more than one disability, at least one disability ratable at 40 percent or more and a combined disability rating of 70 percent. 38 C.F.R. § 4.16(a). Here, the Board granted ratings of 40 percent for the Veteran's service-connected diabetic peripheral neuropathy of the right and left lower extremity effective April 8, 2014; thus, the criteria set forth in 38 C.F.R. § 4.16(a) is satisfied. Unlike the regular disability rating schedule, which is based on the average work-related impairment caused by a disability, "entitlement to TDIU is based on an individual's particular circumstance." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009) (quoting Thun v. Peake, 22 Vet. App. 111, 116 (2008)); see also Todd, 27 Vet. App. at 85-86. Thus, when adjudicating a TDIU claim, VA must consider the individual Veteran's education, training, and work history. Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (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); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran's master's degree in education and his part-time work as a tutor). In determining whether a veteran can secure and follow a substantially gainful occupation, attention must be given to the veteran's history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy) required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning lifting, bending, sitting, standing, walking, climbing, grasping, typing, and reaching, as well as auditory and visual limitations; and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Factors that may be relevant include, but are not limited to, the veteran's limitations, if any, concerning memory, concentration, ability to adapt to change, handle workplace stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). After review of the evidence of record and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected diabetic peripheral neuropathy of the right and left extremity prevents him from securing and following substantially gainful employment. In this regard, the Veteran has credibly reported that he completed high school and did not have any additional education or training before or since he became disabled. The Veteran last worked full time in August 2010 as a coal mining heavy equipment mechanic but had to stop working due to diabetic peripheral neuropathy of the lower extremities. The Veteran also stated peripheral neuropathy prevents causes continuous pain, numbness, stiffness, weakness, and instability in his lower extremities, as well as difficulty walking. See September 2019, VA Form 21-8940; VA Forms 21-4138 dated December 2014, January 2015, and September 2019; August 2019, Board hearing. VA examinations dated July 2011, September 2015, December 2019, and April 2021, indicate the Veteran's reports of retiring as a coal miner and heavy mechanic due to lower extremity weakness, pain, numbness, muscle cramps, tingling, fatigue, lack of sensation in his lower legs and feet, and imbalance. In the April 2021 VA examination, the VA examiners found the Veteran was unable to work as a miner or heavy equipment mechanic because diabetic peripheral neuropathy prevents him from climbing up the step to get in the truck due to pain, makes him unable to feel when he steps on an object (including sharp objects), lack of sensation in his feet causes falls and impedes his ability to walk so he must watch his feet in order to make sure he is stepping correctly, and cramping in his calves makes it difficult to operate machinery. In light of the evidence of record, the Board finds service-connected diabetic peripheral neuropathy of the right and left extremities prevents the Veteran from obtaining and maintaining substantially gainful employment. The Board notes that the determination of whether a Veteran is unable to secure or follow substantially gainful occupation due to service-connected disabilities is a factual question rather than a medical one. Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Additionally, the Board affords significant probative value to the Veteran's lay statements and medical opinions regarding the Veteran's bilateral lower extremity symptoms of cramping, numbness, tingling, constant pain, and fatigue that impact the Veteran's ability to function and concentrate; and lack of sensation in his lower legs and feet that causes imbalance, difficulty walking and climbing, and increase his chances of injury, which are relevant to sedentary, non-sedentary, skilled, or unskilled labor. Further, the Board notes that there is no evidence that the Veteran has any experience or training in sedentary work or any unskilled labor. Accordingly, resolving all reasonable doubt in favor of the Veteran, the Board finds that an award of TDIU is warranted effective April 8, 2014. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board finds than an effective date prior to April 8, 2014, for the grant of TDIU is not warranted. The Board acknowledges that the Veteran has not worked fulltime since 2010. However, in order to be entitled to an earlier effective date for TDIU, an increase in the veteran's service-connected disability must have occurred during the one-year period prior to the date of the veteran's claim to receive the benefit of an earlier effective date. See Gaston v. Shinseki, 605 F.3d 979, 984 (Fed. Cir. 2010) (discussing 38 U.S.C. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2)). Here, prior to April 8, 2014, service connection was in effect only for diabetes mellitus, type II and hypertension. The evidence of record does not indicate the Veteran's diabetic peripheral neuropathy increased in severity during the year prior to April 8, 2014, such that the increase precluded all substantially gainful employment. Indeed, the Veteran stated that he stopped working due to pain and numbness in his lower extremities in 2010 and diabetic peripheral neuropathy was not diagnosed until 2011. See August 2019, Hearing transcript; April 2021, VA examination. Accordingly, the Board finds that an effective date for TDIU prior to April 8, 2014, is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Straughn, 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.