Citation Nr: 21065060 Decision Date: 10/23/21 Archive Date: 10/23/21 DOCKET NO. 16-20 154 DATE: October 23, 2021 ORDER Entitlement to an effective date of March 7, 2012, but no sooner, for the grant of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. Entitlement to an initial rating in excess of 30 percent, but no higher, for right lower extremity diabetic peripheral neuropathy is granted. Entitlement to an initial rating of 40 percent, but no higher, for left lower extremity diabetic peripheral neuropathy is granted. FINDINGS OF FACT 1. The Veteran met the schedular requirements for entitlement to a TDIU beginning March 7, 2012. 2. The competent evidence of record indicates that the Veteran's service-connected disabilities rendered him unable to sustain gainful employment since March 7, 2012. 3. Throughout the period on appeal, the Veteran's right lower extremity diabetic peripheral neuropathy was productive of severe incomplete paralysis without evidence of complete paralysis. 4. Throughout the period on appeal, the Veteran's left lower extremity diabetic peripheral neuropathy was productive of moderately-severe incomplete paralysis, without evidence of complete paralysis without marked atrophy. CONCLUSIONS OF LAW 1. The criteria for an effective date of March 7, 2012, but no sooner, for the grant of entitlement to a TDIU have been met. 38 U.S.C. §§ 5101(a), 5110; 38 C.F.R. §§ 3.155, 3.156, 3.157, 3.159, 3.321, 3.341, 3.400, 4.16. 2. The criteria for an initial rating of 30 percent, but no higher for right lower extremity diabetic neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1,--4.14, 4.123, 4.124a, Diagnostic Code 8621. 3. The criteria for an initial rating of 40 percent, but no higher for left lower extremity diabetic neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102 4.14.14, 4.123, 4.124a, Diagnostic Code 8620. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from April 1968 to March 1970. He died in August 2019. His surviving spouse has been properly substituted in the appeal. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). An April 2020 Board decision denied, in pertinent part, the claims on appeal. The Veteran appealed the Board's April 2020 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2021, the Court granted the parties' Joint Motion for Partial Remand (JMPR), which vacated the Board's April 2020 decision with regard to the claims on appeal and remanded that portion of the appeal. The case has now been returned to the Board for further appellate action. The appellant's attorney requested a hearing in this matter in April 2021. In a June 2021 letter, the appellant was notified that a hearing was scheduled in September 2021. The appellant's attorney withdrew this request for a hearing in a September 2021 submission. The Board will therefore proceed with its adjudication. Effective Date The Veteran asserts that an effective date of March 7, 2012, is warranted for the grant of a TDIU, as he met the schedular criteria as of that date. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows a veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not sufficient. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether the Veteran can find employment. See 38 C.F.R. § 4.16(a); see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). In arriving at a conclusion, consideration may be given to the veteran's level of education, special training, and previous work experience, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for Veterans Claims has held that the term "unable to secure and follow a substantially gainful occupation" in 38 C.F.R. § 4.16 has two components. First, there is an economic component which essentially contemplates an occupation earning more than marginal income (outside of a protected environment) as determined by the United States Department of Commerce as the poverty threshold for one person. Second, there is a non-economic component dealing with the individual veteran's ability to "follow and secure" employment. For the second component, attention must be given to: (a) the veteran's history, education, skill and training, (b) the veteran's 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, with relevant factors such as lifting, bending, sitting, standing, walking, climbing, grasping, typing, reaching, auditory and visual, and (c) whether the veteran has the mental ability to perform the type of activities required by the occupation at issue, with relevant factors such as memory, concentration, and ability to adapt to change, handle work place stress, get along with coworkers and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). If there is only one service-connected disability, it must be rated at least 60 percent disabling to qualify for TDIU benefits; if there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Here, beginning on March 7, 2013, the Veteran was in receipt of a 60 percent rating for his residuals status-post coronary artery bypass surgery and implantation of pacemaker. As such, since March 7, 2012, the Veteran has met the TDIU requirement of a single service-connected disability rated at 60 percent or more. 38 C.F.R. § 4.16(a). The Veteran reported that he last worked full-time in 1993, at which time he became too disabled to work as a result of his service-connected disabilities. The record also reflects that the Veteran was self-employed as a farmer. Prior to this, the Veteran worked for a brief time as a truck driver. The record evidence shows that he has a high school education. "Marginal employment," for example, as a self-employed worker or at odd jobs or while employed at less than half of the usual remuneration, 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. Marginal employment may also be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 38 C.F.R. §§ 4.16(a), 4.18. When there is an approximate balance of positive and negative evidence as to any issue material to the determination of a matter, VA will resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). By way of background, the Veteran filed claim for entitlement to service connection for a heart disability, blackouts, hepatitis, pituitary tumor, gallbladder disability, kidney disability, and bilateral upper and lower extremity numbness, in February 2010. In a July 2010 rating decision, the RO granted entitlement to service connection for diabetes mellitus and assigned a 10 percent rating, effective February 19, 2010. In that decision, the RO also denied the claims for entitlement to service connection for a pituitary tumor, hepatitis, blackouts, and a gallbladder disability. In a September 2010 rating decision, the RO denied entitlement to service connection for bilateral carpal tunnel syndrome and bilateral lower extremity numbness. In a November 2010 rating decision, the RO granted entitlement to service connection for coronary artery disease and assigned a 30 percent rating, effective February 19, 2010. The Veteran was provided notice of these decisions and his appellate rights but did not appeal these decisions or submit new and material evidence within one year of the decisions. Therefore, the decisions are final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. On March 7, 2013, the Veteran submitted a claim for entitlement to increased ratings for his coronary artery disease and diabetes mellitus. In an April 2012 rating decision, the RO granted entitlement to a rating of 60 percent for coronary artery disease, and entitlement to a rating of 20 percent for diabetes mellitus, effective March 7, 2012, respectively. In a September 2014 rating decision, entitlement to a TDIU was granted effective April 21, 2014, the date that the RO received the Veteran's VA Form 21-8940 (Application for Increased Compensation Based on Unemployability). The Board finds that the Veteran's service-connected disabilities impaired his employment since March 7, 2012. In this regard, the Board notes that the Veteran has experienced significant impairment related to his service-connected disabilities throughout the period on appeal. To that end, at an April 2014 VA examination, the examiner reported that the Veteran's coronary artery disease impacted his ability to work in that he was unable to take care of his cattle and chickens on his own. As noted below, the Veteran's bilateral lower extremity peripheral neuropathy had resulted in pain and numbness caused by prolonged sitting, standing and walking. The Board notes that the Veteran had been employed briefly as a truck driver and that he worked on a farm; however, the appellant described the Veteran's farm work as merely a hobby and not a profession. The Board finds that given the Veteran's background and limitations, the Veteran would not be able to secure or maintain such employment. To that end, the Board notes that such professions of truck driver and farmer undoubtedly require prolonged walking, sitting, and standing, as well as a potential for strenuous activity. Thus, the Board finds that the impairment caused by the Veteran's various service-connected disabilities prevented him from securing and maintaining employment consistent with his industrial background and education beginning March 7, 2012. Thus, based on the above, the Board finds that at the time of receipt of the Veteran's March 7, 2012 claim for increased ratings, his service-connected disabilities had rendered him unemployable. As such, the award of an earlier effective date of March 7, 2012, but no sooner, is warranted for entitlement to a TDIU. The Board need not consider an effective date prior to that date, as review of the record does not indicate that the Veteran met the schedular requirements for entitlement to a TDIU prior to March 7, 2012, or any prior unadjudicated TDIU claims. Furthermore, the Board notes that in the March 2021 informal hearing presentation submitted by the appellant's representative, he asserted that the appellant sought an earlier effective date of March 7, 2012. Thus, given the record before it, the Board trusts that both the appellant and her counsel are satisfied with this decision, such that this decision will end the current appeal. See Massie v. Shinseki, 25 Vet. App. 123, 131 (2011) ("[T]he Board... was entitled to assume that the arguments presented by [the appellant] were limited for whatever reason under the advice of counsel and that those were the theories upon which he intended to rely."), aff'd, 724 F.3d 1325 (Fed. Cir. 2013); Mason v. Shinseki, 25 Vet. App. 83, 95 (2011) (holding that "the Court will not invent an argument for a represented party who had ample opportunity and resources to make that same argument, but, for whatever reason-be it strategy, oversight, or something in between-did not do so"); Robinson v. Peake, 21 Vet. App. 545, 554 (2008) ("The presence of [an] attorney throughout the appeals process before the Agency is a significant factor... [w]e presume that [the] attorney, an experienced attorney in veteran's law, says what he means and means what he says"), aff'd sub nom. Robinson v. Shinseki, 557 F.3d 1355 (Fed. Cir. 2009). As such, this grant is considered a full grant of the issue on appeal. Accordingly, the Board finds that an effective date of March 7, 2012, but no sooner, for the granted of entitlement to TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. Increased Rating Claims 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 (Rating Schedule). 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. Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). VA's determination of the present level of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased-rating claim has been pending. Hart v. Nicholson, 21 Vet. App. 505, 509 (2007). 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 concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered 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 in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disability. 38 C.F.R. § 4.14. It is possible for a Veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes, however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no obligation to discuss, in detail, the extensive evidence of record. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that the Board must review the entire record but does not have to discuss each piece of evidence). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as it relates to the Veteran's claims. Right and Left Lower Extremity Diabetic Peripheral Neuropathy The Veteran and appellant have asserted that the Veteran should have had higher ratings for his right and left lower extremity diabetic peripheral neuropathy disabilities as his symptoms were worse than those contemplated by the currently assigned ratings. During the period on appeal, the Veteran's right lower extremity diabetic peripheral neuropathy is presently rated 20 percent under Diagnostic Code 8621, which addresses paralysis of the sciatic nerve. The Veteran's left lower extremity peripheral neuropathy is rated 20 percent under Diagnostic Code 8620, which addresses paralysis of the external popliteal nerve. Under Diagnostic Code 8620, for neuritis of the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted when there is moderate incomplete paralysis. A 40 percent rating is warranted when there is moderately-severe incomplete paralysis. A 60 percent rating is warranted when there is severe incomplete paralysis, with marked muscular atrophy. Complete paralysis warrants an 80 percent rating where the foot dangles and drops, there is no active movement possible of muscle below the knee and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under Diagnostic Code 8621, for neuritis of the external popliteal nerve (common peroneal), a 20 percent rating is warranted for moderate incomplete paralysis of the nerve. A 30 percent rating is warranted for severe incomplete paralysis. A 40 percent rating is warranted for complete paralysis with foot drop and slight droop of first phalanges of all toes, cannot dorsiflex the foot, extension of proximal phalanges of toes lost; abduction of foot lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, Diagnostic Code 8621. Under 38 C.F.R. § 4.124a , 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. When the involvement is wholly sensory, the rating should be for the mild, at most, the moderate degree. The ratings for peripheral nerves are for unilateral involvement; when bilateral, combine with application of the bilateral factor. Words such as "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. Use of terminology such as "severe" by VA examiners and others, although 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. When the involvement is wholly sensory, the rating should be for mild, or at most, the moderate degree. See Note at "Diseases of the Peripheral Nerves" in 38 C.F.R. § 4.124(a). In rating peripheral nerve disability, neuritis-characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating-is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe, incomplete paralysis. The maximum rating to be assigned for neuritis not characterized by organic changes referred to in this section will be that for moderate incomplete paralysis, or with sciatic nerve involvement, for moderately severe incomplete paralysis. 38 C.F.R. § 4.123. In October 2012, the Veteran submitted correspondence from a private physician showing that he complained of lower extremity pain and burning. He reported deep aching, tingling and a burning sensation in his feet bilaterally, which he described as moderate-to-severe in nature. On examination, the physician found paresthesia to light touch involving the toes but noted grossly intact motor function in the lower extremities, without obvious atrophy. An electromyography (EMG) examination of the bilateral lower extremities and corresponding paraspinal musculature was within normal limits. The final assessment was generalized polyneuropathy. In June 2013, the Veteran submitted another assessment by a private provider who referred to the October 2012 EMG and noted "extreme" neuropathy noted in both legs. The examiner once more noted moderate to moderately severe bilateral median neuropathies at the level of his wrists but did not make such an assessment with regard to his lower extremities. At a February 2014 VA examination, the examiner noted that he went over the Veteran's history with him and indicated that the Veteran's pacemaker was a contraindication to nerve conduction study (NCS) testing. The examiner reported that after informing the Veteran of this, the Veteran declined physical examination as well as EMG/NCS testing. Notably, the Veteran denied that he refused any testing at this examination and without any way to resolve the issue, the Board will afford the Veteran the benefit of the doubt that the lack of testing was unrelated to any refusals made by the Veteran. At that time, the Veteran reported that he experienced bilateral foot to knee numbness following prolonged sitting. He indicated that he experienced shin pain following prolonged walking and standing. The examiner noted that he examined the Veteran in April 2012 and that his symptoms were largely unchanged from 2010 notes, and that he did a limited examination which was remarkable for essentially normal sural sensory potentials. The examiner noted that another EMG could not be conducted as the Veteran had a pacemaker in situ but referred frequently to the October 2012 EMG report noting burning sensation in the feet which was moderate to severe in nature as well as generalized weakness. The examiner reported that the Veteran's bilateral lower extremities and corresponding paraspinal musculature were within normal limits. The examiner concluded that an opinion could not be offered as to the severity of the bilateral lower extremities as the Veteran refused an EMG due to his pacemaker. The Board notes that there were no relevant findings related to reflexes during this appeal period. Based on the evidence, lay and medical, the Board finds that ratings of 30 percent and 40 percent for the Veteran's diabetic peripheral neuropathy of the right and left lower extremities, respectively, are warranted. With regard to his right lower extremity, the Board finds that this disability was manifested by severe incomplete paralysis of the external popliteal nerve throughout the period on appeal. With regard to his left lower extremity diabetic peripheral neuropathy, the Board finds that this disability was manifested by moderately-severe incomplete paralysis of the sciatic nerve throughout the period on appeal. To these ends, the record reflects consistent reports of pain and numbness in the bilateral lower extremities following unavoidable daily activities such as sitting, standing and walking. The Veteran described these impairments as resulting in significant difficulty with ordinary functions of daily life. Therefore, the Board affords the Veteran, and now appellant, the benefit of the doubt that the impairment associated with these two disabilities was more productive of severe right lower extremity impairment and moderately-severe left lower extremity impairment. However, the Board finds that higher ratings are not warranted. In this regard, a 60 percent rating pursuant to Diagnostic Code 8620 requires incomplete paralysis with marked muscular atrophy. Here, there is no evidence of marked muscular atrophy. Additionally, a 40 percent rating pursuant to Diagnostic Code 8621 required complete paralysis, which was not shown at any point throughout the period on appeal. The Board acknowledges the Veteran's and appellant's statements that the Veteran's bilateral lower extremity diabetic peripheral neuropathy are more severe than evaluated. The Veteran is competent to report his symptoms and has presented credible statements in this regard. Layno v. Brown, 6 Vet. App. 465 (1994). The Board finds, however, that neither the Veteran's statements nor medical evidence demonstrates that the criteria for higher ratings than those assigned have been met. The Board also acknowledges that the Veteran's VA treatment records note complaints of and treatment for his bilateral lower extremity diabetic peripheral neuropathy disabilities. However, these records do not address the specific rating criteria necessary to determine severity. In determining the actual degree of disability, the examination findings are more probative of the degree of impairment. The Board has considered whether a staged rating under Hart, supra, are warranted, however, the Board finds that his symptomatology was stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. Further, neither the Veteran or appellant, or her representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). In sum, the Board finds that the evidence supports the awards of a 30 percent rating, but no higher, for right lower extremity diabetic peripheral neuropathy, and a 40 percent rating, but no higher, for left lower extremity diabetic peripheral neuropathy. In denying higher ratings, the Board finds that the preponderance of the evidence is against such aspect of the Veteran's claims. Therefore, in denying increased ratings, the benefit of the doubt doctrine is not applicable, and the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher O'Donnell, 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.