Citation Nr: 21076812 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 20-30 419 DATE: December 27, 2021 ORDER Entitlement to a rating in excess of 10 percent for right upper extremity peripheral neuropathy prior to December 7, 2017 is denied. Entitlement to a rating in excess of 20 percent for right upper extremity peripheral neuropathy from December 7, 2017 to October 19, 2021 is denied. Entitlement to a rating in excess of 30 percent for right upper extremity peripheral neuropathy from October 20, 2021 is denied. Entitlement to a rating in excess of 10 percent for left upper extremity peripheral neuropathy prior to December 7, 2017 is denied. Entitlement to a rating in excess of 20 percent for left upper extremity peripheral neuropathy from December 7, 2017 is denied. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy prior to December 7, 2017 is denied. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy from December 7, 2017 is denied. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy prior to December 7, 2017 is denied. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy from December 7, 2017 is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), from the earlier effective date of March 16, 2016, is granted. FINDINGS OF FACT 1. Prior to December 7, 2017, the Veteran's right (dominant) upper extremity diabetic neuropathy is characterized by mild incomplete paralysis of the ulnar nerve. 2. From December 7, 2017 to October 19, 2021, the Veteran's right (dominant) upper extremity diabetic neuropathy is characterized by mild incomplete paralysis of the radial nerve. 3. From October 20, 2021, the Veteran's right (dominant) upper extremity diabetic neuropathy is characterized by moderate incomplete paralysis of the radial nerve. 4. Prior to December 7, 2017, the Veteran's left upper extremity diabetic neuropathy is characterized by mild incomplete paralysis of the ulnar nerve. 5. From December 7, 2017, the Veteran's left upper extremity diabetic neuropathy is characterized by mild incomplete paralysis of the radial nerve. 6. Prior to December 7, 2017, the Veteran's right lower extremity diabetic neuropathy is characterized by mild incomplete paralysis of the sciatic nerve. 7. From December 7, 2017, the Veteran's right lower extremity diabetic neuropathy is characterized by moderate incomplete paralysis of the sciatic nerve. 8. Prior to December 7, 2017, the Veteran's left lower extremity diabetic neuropathy is characterized by mild incomplete paralysis of the sciatic nerve. 9. From December 7, 2017, the Veteran's left lower extremity diabetic neuropathy is characterized by moderate incomplete paralysis of the sciatic nerve. 10. Since March 16, 2016, the Veteran's service-connected disabilities prevented him from obtaining or retaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 10 percent for right upper extremity diabetic neuropathy prior to December 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, Diagnostic Code (DC) 8516. 2. The criteria for a rating in excess of 20 percent for right upper extremity diabetic neuropathy from December 7, 2017 to October 19, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8514. 3. The criteria for a rating in excess of 30 percent for right upper extremity diabetic neuropathy from October 20, 2021 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8514. 4. The criteria for a rating in excess of 10 percent for left upper extremity diabetic neuropathy prior to December 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8516. 5. The criteria for a rating in excess of 20 percent for left upper extremity diabetic neuropathy from December 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8514. 6. The criteria for a rating in excess of 10 percent for right lower extremity diabetic neuropathy prior to December 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8520. 7. The criteria for a rating in excess of 20 percent for right lower extremity diabetic neuropathy from December 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8520. 8. The criteria for a rating in excess of 10 percent for left lower extremity diabetic neuropathy prior to December 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8520. 9. The criteria for a rating in excess of 20 percent for left lower extremity diabetic neuropathy from December 7, 2017 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.10, 4.123, 4.124, 4.124a, DC 8520. 10. The criteria for entitlement to a TDIU, from the earlier effective date of March 16, 2016, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United Stated Army from September 1966 to July 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2017 and November 2019 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously remanded by the Board in an April 2021 decision for additional development. In a September 2020 Decision Review Officer decision, the RO granted an increased rating to 20 percent for the Veteran's diabetic peripheral neuropathy of the right upper, left upper, right lower, and left lower extremities effective December 7, 2017. However, as the increase did not constitute a full grant of the benefits sought, the Veteran's claims for increased ratings remained in appellate status. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Ratings are assigned based on the average impairment of earning capacity resulting from a service-connected disability. 38 C.F.R. § 4.1. Where two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 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 "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008). Regarding the DCs related to neurologic disabilities, the words "mild," "moderate," and "severe" as used in the various DCs are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. 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 is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). 1. Entitlement to a rating in excess of 10 percent for right upper extremity peripheral neuropathy prior to December 7, 2017 2. Entitlement to a rating in excess of 20 percent for right upper extremity peripheral neuropathy from December 7, 2017 to October 19, 2021 3. Entitlement to a rating in excess of 30 percent for right upper extremity peripheral neuropathy from October 20, 2021 4. Entitlement to a rating in excess of 10 percent for left upper extremity peripheral neuropathy prior to December 7, 2017 5. Entitlement to a rating in excess of 20 percent for left upper extremity peripheral neuropathy from December 7, 2017 The Veteran seeks an increased rating for his service-connected bilateral upper extremity diabetic neuropathy. The bilateral upper extremity neuropathy has been rated at 10 percent disabling since October 31, 2012 to December 7, 2017, pursuant to DC 8516. From December 8, 2017, it has been rated 20 percent disabling, pursuant to DC 8514. Following a remand of the claims in the April 2021 Board decision, the Veteran's right upper extremity diabetic neuropathy was granted an increased rating to 30 percent disabling, effective October 20, 2021. The Veteran is right hand dominant. DC 8514 provides ratings for the paralysis of the radial nerve. 38 C.F.R. § 4.124a. For the dominant extremity (in this case the Veteran's right extremity), the code provides for a 20 percent rating for mild incomplete paralysis, a 30 percent rating for moderate incomplete paralysis, 50 percent for severe incomplete paralysis, and a 70 percent rating for complete paralysis of the radial nerve manifested by a list of impairments to the hand. Similarly, for the non-dominant, left upper extremity, 20 percent ratings are available for mild or moderate incomplete paralysis, a 40 percent rating is available for severe incomplete paralysis, and a 60 percent rating is available for complete paralysis. Paralysis of the ulnar nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, DC 8516. Under these criteria, mild incomplete paralysis is rated as 10 percent for both the major and minor extremity, moderate incomplete paralysis is rated as 30 percent for the major extremity and 20 percent for the minor extremity, and severe incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Complete paralysis is rated as 60 percent for the major extremity and 50 percent for the minor extremity. 38 C.F.R. § 4.124a. Prior to December 7, 2017, the Veteran was afforded VA examinations for diabetic sensory-motor peripheral neuropathy in November 2016 and May 2017. During the November 2016 VA neuropathy examination, the Veteran was noted to have no pain the upper extremities, no intermittent pain, no paresthesias/dysesthesias, severe numbness in the right upper extremity and moderate numbness in the left upper extremity. The severity of the radial nerve of the upper extremities were noted as mild for the right upper extremity and mild for the upper left extremity. The median and ulnar nerves were normal. Subsequently, in the May 2017 VA neuropathy examination, the Veteran only exhibited mild numbness in the upper left and right extremities. The severity of the upper right extremity and upper left extremity was noted as mild for the ulnar nerve. The radial and median nerves were normal. Therefore, the preponderance of the evidence showed that the Veteran's bilateral upper extremity diabetic neuropathy does not warrant a rating in excess of 10 percent prior to December 7, 2017, pursuant to DC 8516. For the period since December 7, 2017, the Veteran has been rated at 20 percent disabling for his bilateral upper extremity diabetic neuropathy. See September 2020 Rating Decision. The Veteran was afforded a VA diabetic neuropathy examination in March 2018, in which he was documented to have moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the upper extremities. The VA examiner indicated that the severity of the bilateral upper extremity diabetic neuropathy was mild incomplete paralysis for the radial nerve, and mild incomplete paralysis for the median nerve. The ulnar nerve was normal. Subsequent to the April 2021 Board remand, the Veteran was provided another VA diabetic neuropathy examination in October 2021, in which he was documented to have moderate constant pain in both upper extremities, severe intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness in the upper extremities. The Veteran's severity of the radial nerve upper extremity diabetic neuropathy was noted as moderate incomplete paralysis for both upper extremities. The median nerve and ulnar nerves were noted as normal. The Veteran was granted a 30 percent rating for the right (dominant) upper extremity diabetic neuropathy, effective October 20, 2021. Given the totality of the evidence discussed above, the Board finds that a rating in excess of 20 percent for the bilateral upper extremity diabetic neuropathy is not warranted from December 7, 2017, and a rating in excess of 30 percent for the right upper extremity diabetic neuropathy is also not warranted from October 20, 2021. In reaching these determinations, the Board finds that the record is uniform in showing that the Veteran does not have complete paralysis. Moreover, the Board finds that the totality of the adverse symptomatology attributed to the Veteran's neurological symptoms as seen at his VA examinations (i.e., pain and numbness) is best characterized as no more than mild incomplete paralysis from December 7, 2017 for the left upper extremity; for the right upper extremity, the neurological symptoms are best characterized as no more than mild incomplete paralysis from December 7, 2017 to October 19, 2021 and no more than moderate incomplete paralysis from October 20, 2021. The Board acknowledges the Veteran's lay statements regarding his observable symptoms. However, because the preponderance of the evidence does not support the Veteran experiences moderate incomplete paralysis in either the right upper extremity or the left upper extremity, or severe incomplete paralysis in the right upper extremity from October 20, 2021, the Board finds that the preponderance of the evidence shows that a rating in excess of 30 percent for the right upper extremity and a rating in excess of 20 percent for the left upper extremity is not warranted under DC 8514. 6. Entitlement to a rating in excess of 10 percent for right lower extremity peripheral neuropathy prior to December 7, 2017 7. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy from December 7, 2017 8. Entitlement to a rating in excess of 10 percent for left lower extremity peripheral neuropathy prior to December 7, 2017 9. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy from December 7, 2017 The Veteran seeks an increased rating for his service-connected bilateral lower extremity diabetic neuropathy. The bilateral lower extremity neuropathy has been rated at 10 percent disabling since October 31, 2012 to December 7, 2017, pursuant to DC 8520. DC 8520 provides a 10 percent rating for mild incomplete paralysis of the sciatic nerve in either lower extremity; a 20 percent rating for moderate incomplete paralysis of the sciatic nerve; a 40 percent rating for moderately severe incomplete paralysis of the sciatic nerve; a 60 percent rating for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy; and a maximum 80 percent rating for complete paralysis of the sciatic nerve that is characterized by a foot that dangles and drops, no active movement possible of muscles below the knee, and flexion of the knee that is weakened or lost. Prior to December 7, 2017, the Veteran was afforded VA examinations for his diabetic peripheral neuropathy in November 2016 and in May 2017. During the November 2016 VA diabetic neuropathy examination, the Veteran was noted to have mild intermittent pain and moderate numbness in both lower extremities. The examiner noted the severity of the lower extremity neuropathy as moderate incomplete paralysis of the sciatic nerve. Subsequently, in the May 2017 VA diabetic neuropathy examination, the Veteran exhibited mild lower extremity numbness, with no lower extremity pain or paresthesias/dysesthesias; the severity of the right and left lower extremity was noted as mild. Therefore, the preponderance of the evidence showed that the Veteran's bilateral lower extremity diabetic neuropathy does not warrant a rating in excess of 10 percent prior to December 7, 2017. For the period since December 7, 2017, the Veteran has been rated at 20 percent disabling for his bilateral lower extremity diabetic neuropathy. See September 2020 Rating Decision. The Veteran was afforded a VA diabetic neuropathy examination in March 2018, in which he was documented to have no constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. The VA examiner indicated that Veteran did not have lower extremity diabetic neuropathy of the sciatic or femoral nerve. No other neurologic abnormalities or findings related to the back disability were found. Veteran was provided another VA diabetic neuropathy examination in October 2021, in which he was documented to have moderate lower extremity constant pain, severe intermittent pain, mild lower extremity paresthesias/dysesthesias, and moderate lower extremity numbness. The VA examiner indicated that the severity of the lower extremity diabetic neuropathy was moderate for the lower extremities. No other neurologic abnormalities or findings related to the back disability were found. In light of the above, a higher rating for the right and left lower extremities under DC 8520 is not warranted since December 7, 2017, because moderately severe incomplete paralysis and severe incomplete paralysis of the sciatic nerve were not shown. Therefore, the Board concludes that the evidence does not warrant ratings in excess of 20 percent from December 7, 2017, as the Veteran's radicular symptoms do not rise to the level of moderately severe. 10. Entitlement to a total disability rating based on individual unemployability (TDIU), from the earlier effective date of March 16, 2016 In a November 2019 rating decision, the RO granted entitlement to a TDIU, effective December 7, 2017. However, once entitlement to a TDIU is put in issue as part of a claim for a higher initial rating/increased rating and the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal. See Harper v. Wilkie, 30 Vet. App. 356 (2018). The Board notes that a request for a TDIU (whether expressly raised or implied by the record) is not a separate claim for benefits. Rather, it is an attempt to obtain an appropriate rating, either as part of the initial adjudication of a claim or as part of a claim for an increased rating. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). Once the issue of entitlement to a TDIU is raised, it is "part of the claim for benefits for the underlying disability." Id. O nce entitlement to a TDIU is at issue as part of a claim for an increased rating, a claimant need not appeal a denial by the AOJ for the issue to remain in appellate status. Payne v. Wilkie, 31 Vet. App. 373 (2019); Harper. Thus, where, as here the AOJ fails to grant the benefit in full (i.e., entitlement to a TDIU for the entire period on appeal), that portion of the claim that remains unresolved is still on appeal. The claim for entitlement to TDIU prior to December 7, 2017, was remanded by the Board in April 2021 as being inextricably intertwined with the increased rating claims for Veteran's service-connected peripheral neuropathy disabilities. Total disability ratings for compensation 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 service-connected disabilities, provided that if there is only one such disability, this disability shall be ratable at 60 percent or more, and that, 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). VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that the veteran is precluded, by reason of his service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 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, but not to his age or the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. 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." Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 work-place stress, get along with coworkers, and demonstrate reliability and productivity. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). The ultimate question of whether a Veteran is capable of substantial gainful employment is an adjudicatory determination, not a medical one. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). The Veteran initially submitted a VA Form 21-8940 Application for Increased Compensation Based on Unemployability in December 2017, in which he stated his service-connected lower extremity neuropathy disabilities prevented him from securing or following any substantially gainful occupation. He had been receiving ongoing treatment for his disabilities in the past 12 months. He stated he last worked full-time on March 15, 2016, when he became too disabled to work. His employment history indicated he had last been working at a bank from 2006 through 2008. Veteran completed three years of college education and indicated he did not have other education or training. He stated he left his last job because of his disability and had not tried to obtain employment since. In a May 2018 letter, the Veteran stated that over the prior couple of years, he began to spend less time on his feet due to occasional discomfort that had now become an everyday occurrence that limited his ability to work. See May 2018 Correspondence. In a February 2021 letter, the Veteran argued that he has been too disabled to work since March 2016, as his CAD, diabetes mellitus, peripheral neuropathies and lack of work experience in manual labor fields preventing him from work. Although he worked in sedentary positions prior to March 2016, Veteran argued that that his diabetic complications prevented him from even maintaining sedentary employment. See February 2021 Correspondence. The Board finds that the Veteran has been unable to work in a gainful capacity and satisfied the schedular criteria for a TDIU earlier than the initially assigned effective date of December 7, 2017. See 38 C.F.R. § 4.16. Specifically, service connection has been in effect for coronary artery disease, rated 30 percent disabling since August 21, 2013 and 60 percent disabling since December 7, 2017; posttraumatic stress disorder, rated 30 percent disabling since December 7, 2017; diabetes mellitus type II, rated 20 percent disabling since October 31, 2012; right upper extremity diabetic neuropathy, rated 10 percent disabling since October 31, 2012, 20 percent disabling from December 7, 2017, and 30 percent disabling from October 20, 2021; left upper extremity diabetic neuropathy, rated 10 percent disabling from October 31, 2012, and 20 percent disabling from December 7, 2017; left lower extremity and right lower extremity diabetic neuropathy, both 10 percent disabling from October 31, 2012, and 20 percent disabling from December 7, 2017. The Veteran has had a combined evaluation for compensation of 70 percent since August 21, 2013. The Veteran contends that his service-connected coronary artery disease, diabetes mellitus, and peripheral neuropathy disabilities warrant an earlier effective date for TDIU entitlement. After resolving any doubt in the Veteran's favor, the Board finds that the Veteran has not worked full-time, and Veteran's service-connected disabilities have rendered him incapable of obtaining or maintaining substantially gainful occupation since March 16, 2016. See Geib, 733 F.3d 1350. As such, the Board finds that entitlement to a TDIU is warranted effective earlier than December 7, 2017 and a new effective date of March 16, 2016 should be granted. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Zarar Ahmed, Attorney Advisor 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.