Citation Nr: A21019676 Decision Date: 12/09/21 Archive Date: 12/09/21 DOCKET NO. 210811-177635 DATE: December 9, 2021 ORDER Entitlement to a disability rating in excess of 20 percent for diabetes mellitus is denied. Beginning April 26, 2018, entitlement to a 20 percent disability evaluation, but no higher, for right upper extremity peripheral neuropathy is granted. Beginning April 26, 2018, entitlement to a 30 percent disability evaluation, but no higher, for left upper extremity peripheral neuropathy is granted. Beginning March 14, 2019, entitlement to total disability based on individual unemployability (TDIU) is granted. REMANDED Entitlement to extraschedular TDIU prior to March 14, 2019, is remanded. FINDINGS OF FACT 1. Throughout the period on appeal, the Veteran's diabetes mellitus has required a restricted diet and an oral hypoglycemic agent, but not restriction of activities. 2. Throughout the period on appeal, the Veteran's right upper extremity peripheral neuropathy has been characterized by moderate incomplete paralysis of the median nerve. 3. Throughout the period on appeal, the Veteran's right upper extremity peripheral neuropathy has been characterized by moderate incomplete paralysis of the median nerve. 4. Beginning March 14, 2019, the Veteran's service-connected disabilities have precluded him from securing and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to a disability rating in excess of 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.119, Diagnostic Code 7913. 2. Beginning April 26, 2018, the criteria for entitlement to a 20 percent disability evaluation, but no higher, for right upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.124a, Diagnostic Code 8515. 3. Beginning April 26, 2018, the criteria for entitlement to a 30 percent disability evaluation, but no higher, for left upper extremity peripheral neuropathy have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.124a, Diagnostic Code 8515. 4. Beginning March 14, 2019, the criteria for entitlement to TDIU have been met. 38 U.S.C. §§ 1114(s), 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 3.350, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from June 1957 to February 1977 and from June 1984 to July 1988. A Department of Veterans Affairs (VA) Regional Office (RO) issued initial rating decisions denying an increased rating for diabetes mellitus and granting service connection for bilateral upper extremity peripheral neuropathy in May 2019 and June 2019, respectively. As such, the modernized review system, also known as the Appeals Modernization Act, applies. In April 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of a May 2019 decision denying an increased rating for diabetes mellitus. In August 2020 RO issued the HLR decision on appeal, which considered the evidence of record at the time of the prior May 2019 decision. In his August 2021 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Evidence Submission docket. Therefore, the Board may only consider the evidence of record at the time of the May 2019 rating decision, as well as any evidence submitted by the Veteran or his representative with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. The Board notes that, with respect to the claim for a higher rating for diabetes mellitus, evidence was added to the claims file during a period of time when new evidence was not allowed. As the Board is deciding whether a higher rating is warranted for diabetes mellitus, it may not consider this evidence in its decision. 38 C.F.R. § 20.300. If he wishes to, the Veteran may file a supplemental claim and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a supplemental claim are included with this decision. With respect to the claims for higher ratings for peripheral neuropathy in the bilateral upper extremities, the Veteran submitted also submitted a VA Form 20-0996 requesting review of the June 2019 rating decision, which assigned 10 percent ratings for each upper extremity from April 26, 2018. Afterwards, however, the RO identified an error that occurred prior to issuing the June 2019 rating decision. Accordingly, the RO issued a supplemental claim rating decision, rather than an HLR decision, in March 2021. The supplemental claim rating decision considered the evidence before the RO in June 2019, as well as additional evidence the RO had obtained since that time. Based on this evidence, the RO increased the rating for the left upper extremity to 30 percent and the rating for the right upper extremity to 20 percent, both effective from February 6, 2021. As set forth above, the Veteran selected the Evidence Docket in his VA Form 10182. As such, with respect to the claims for higher ratings for peripheral neuropathy in the upper extremities, the Board may only consider the evidence of record at the time of the supplemental claim decision on appeal, as well as any evidence submitted with, or within 90 days from receipt of, the VA Form 10182. 38 C.F.R. § 20.303. As a preliminary matter, the Board notes that, when this matter reached the Board, a separate AMA appeal was pending on the Direct Docket with respect to whether there was clear and unmistakable error in a prior rating decision that assigned effective dates of March 14, 2019, for service connection for peripheral neuropathy of the bilateral lower extremities and a higher evaluation for a voiding dysfunction. These claims are being addressed in a separate Board decision and will not be discussed herein. Additionally, although the RO did not issue a rating decision discussing whether the Veteran was entitled to TDIU during the pendency of this appeal, the Veteran explicitly raised the issue of entitlement to TDIU pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009), in evidence submitted with his VA Form 10182. Pursuant to Rice, when the issue of TDIU has been raised during the pendency of an increased rating claim, the Board must consider entitlement to TDIU throughout the entire period on appeal. Id. at 453-55. As set forth in greater detail below, the Board has concluded that the issue of entitlement to TDIU was reasonably raised by the record prior to the issuance of the rating decisions on appeal before the Board. The Board will thus address entitlement to TDIU below. Last, the Board notes that this matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Increased Ratings 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. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where, as here, entitlement to service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are appropriate for an increased rating claim if the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In deciding claims, it is the Board's responsibility to evaluate the entire record on appeal. See 38 U.S.C. § 7104(a). Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each piece of evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378 (Fed. Cir. 2000). Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). 1. Diabetes mellitus The Veteran's diabetes is currently rated 20 percent under 38 C.F.R. § 4.119. Under diagnostic code 7913, a 20 percent rating is warranted for diabetes requiring insulin and a restricted diet, or an oral hypoglycemic agent and restricted diet. A 40 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities. A 60 percent rating is warranted for diabetes requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated. A 100 percent rating is warranted for diabetes requiring more than one daily injection of insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated. Within the criteria for a 100 percent rating, "regulation of activities" is defined as "avoidance of strenuous occupational and recreational activities." This definition also applies to the "regulation of activities" criterion for a 40 percent rating under diagnostic code 7913. Camacho v. Nicholson, 21 Vet. App. 360, 363 (2007). Moreover, medical evidence is required to support this criterion for a 40 percent rating. Id. at 364. In addition, although VA regulations generally provide that symptoms need only more nearly approximate the criteria for a higher rating in order to warrant such a rating, see 38 C.F.R. §§ 4.7, 4.21, those regulations do not apply where, as here, the conjunction "and" is used and the criteria are successive, with the criteria for the lower ratings encompassed within those for higher ratings. See Camacho, 21 Vet. App. at 366; Tatum v. Shinseki, 23 Vet. App. 152, 155-56 (2009). Here, the evidence that the Board is permitted to consider does not suggest that the Veteran's diabetes mellitus symptoms were consistent with a rating higher than 20 percent at any point during the period on appeal, including the period up to one year prior to his claim for an increased rating was received on March 26, 2019. To that end, the evidence the Board is permitted to consider, including evidence from one year prior to the receipt of his claim for an increased rating, indicates that his diabetes required a restricted diet and medication but that his activities were not restricted. On the contrary, his medical providers recommended physical activity, such as exercise at least 30 minutes a day, to reduce his weight and control his blood sugar. See, e.g., October 2018 VA Treatment Records (encouraging him to continue with his medication, diet, and exercise program); May 2018 VA Treatment Records (indicating that he needed to focus on controlling food portion sizes and stressing the importance of exercise for 30 minutes each day to control blood sugar). Indeed, in the March 2019 disability benefits questionnaire (DBQ) submitted by the Veteran, Dr. G. indicated that his diabetes was managed by a restricted diet and a prescribed oral hypoglycemic agent, but that he did not require the regulation of activities. Additionally, Dr. G. stated that he saw a medical provider for episodes of ketoacidosis or hypoglycemia less than two times per month and that he had no episodes requiring hospitalization in the past year. The Board acknowledges that in a February 2021 letter from the Veteran, he reported that he tires easily and has low energy throughout the day because of his diabetes. However, when viewed along with the other evidence of record set forth above, the Board finds that the Veteran's lay statements are at odds with his medical providers' recommendations to continue exercising, which suggests that he has not been restricted from performing strenuous activities. Ultimately, the most competent, credible evidence of record does not indicate that the Veteran must regulate his activities because of his diabetes. As such, a rating in excess of 20 percent is not warranted. See Camacho, 21 Vet. App. at 366. 2. Bilateral upper extremity peripheral neuropathy The Veteran's peripheral neuropathy of the bilateral upper extremities is currently rated under diagnostic code 8515, for paralysis of the median nerve. 38 C.F.R. § 4.124a, Diagnostic Code 8515. Where incomplete paralysis is present, a 10 percent rating is warranted in both the major and minor extremities for mild incomplete paralysis. Id. For moderate incomplete paralysis, a 30 percent rating is warranted for the major extremity and a 20 percent rating is warranted for the minor extremity. Id. For severe incomplete paralysis, a 50 percent rating is assigned for the majority extremity, while a 40 percent rating is assigned for the minor extremity. Id. Where there is complete paralysis of the median nerve, demonstrated by the hand inclined to the ulnar side, the index and middle fingers more extended than normal, considerable atrophy of the muscles of the thenar eminence, the thumb in the plane of the hand (ape hand); pronation incomplete and defective, absence of flexion of the index finger and feeble flexion of the middle finger, inability to make a fist with index and middle fingers remaining extended; inability to flex the distal phalanx of the thumb, defective opposition and abduction of the thumb; weakened wrist flexion; and pain with trophic disturbances, a 70 percent rating is warranted in the major extremity and a 60 percent rating in the minor extremity. Id. At the outset, the Board notes that the words "mild," "moderate," "moderately severe," and "severe" as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The use of terminology such as "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. Here, the relevant evidence from throughout the appeal period includes a private DBQ completed by Dr. G. in March 2019. In that DBQ, Dr. G. indicated that the Veteran was right-handed. He reported mild constant pain, moderate intermittent pain, moderate paresthesias, and moderate numbness in the bilateral upper extremities. His strength was 4/5 on bilateral elbow flexion and extension and bilateral wrist extension, while his strength on bilateral wrist flexion, bilateral grip, and bilateral pinch was 3/5. Light touch testing showed decreased touch on both inner and outer forearms and the hands and fingers. No muscle atrophy was present. Although Dr. G. indicated that trophic changes were present, it appears they were only present on the bilateral lower extremities. Ultimately, Dr. G. stated that the median nerves were involved. Confusingly, however, Dr. G. stated that the right upper median nerve was incompletely paralyzed but that the left upper median nerve was "normal." The functional impact of his peripheral neuropathy in the upper extremities was that he had grip weakness and a loss of strength and fine motor skills. The RO recognized that Dr. G. stated that there was peripheral neuropathy in only the right upper extremity despite symptoms of peripheral neuropathy in both upper extremities and contacted him for clarification. After being contacted numerous times, Dr. G. responded in a February 2021 letter to clarify that there was incomplete paralysis in the right-side median nerve only. However, in a February 2021 VA examination on the peripheral nerves, a VA examiner diagnosed bilateral upper extremity peripheral neuropathy involving incomplete paralysis of the right and left median nerves. The examination report reflects that the Veteran was left-handed. In the examination report, the VA examiner indicated there was mild constant pain, moderate paresthesias, and moderate numbness in the bilateral upper extremities. Strength on bilateral elbow flexion, elbow extension, wrist flexion, wrist extension, grip, and pinch was measured at 4/5. Deep tendon reflexes in the brachioradialis were reduced, as well as light touch on the inner and outer forearm and hands and fingers. Position sense was normal, but vibration sense was decreased. Although no muscle atrophy was present, the examiner indicated there were trophic changes. The VA examiner ultimately diagnosed moderate incomplete paralysis of the median nerve in the right and left upper extremities. The functional impact of the bilateral upper extremity peripheral neuropathy was described as difficulty grasping and holding onto items. In an August 2021 letter from the Veteran, he reported that he cannot write quickly and that his hands and feet will go numb while he drives. He also indicated that gripping anything has become difficult. His wife echoed these comments in her own February 2021 letter, which also states that it he cannot lift or carry things like he used to. Ultimately, the preponderance of the evidence suggests that the Veteran's peripheral neuropathy has been manifested by moderate incomplete paralysis of the right and left median nerves throughout the period on appeal. To that end, although Dr. G. did not find that the left median nerve exhibited peripheral neuropathy, Dr. G. failed to address the source of the symptoms in the left upper extremity. Ultimately, the Board finds the diagnosis in the February 2021 VA examination more probative in this respect. It is also unclear whether the Veteran is right- or left-handed based on the conflicting evidence in the March 2019 DBQ and the February 2021 VA examination report. The Board will assume that the left hand, which was most recently identified as his dominant hand, is the major extremity. Setting aside these differences in the examination reports, the symptoms recorded in the private DBQ from March 2019 and the February 2021 VA examination report are similar. For instance, both examination reports reflect somewhat reduced muscle strength and decreased sensation in the upper extremities. Symptoms such as paresthesias and numbness are consistently described as "moderate" in both extremities. Although the Board is not necessarily bound by the examiners' descriptions of the Veteran's peripheral neuropathy, the Board finds that the evidence is consistent with his own description of his symptoms, such as difficulty gripping things. Taken in the light most favorable to the Veteran, the Board finds that a 30 percent rating and a 20 percent rating are warranted for the major and minor upper extremities, respectively, throughout the appeal period. The Board has also considered whether a higher rating for severe incomplete paralysis is available. However, the evidence does not describe, and the Veteran has not characterized, has symptoms as severe. Indeed, he has not endorsed severe symptoms on any examination or in his lay statements. Moreover, none of the evidence that the Board is permitted to consider suggests that the nerves in his upper extremities have been completely paralyzed. As such, the Board finds that his disability picture more closely approximates that of moderate incomplete paralysis. TDIU As set forth in the introduction, the Veteran and his attorney submitted evidence expressly raising whether he is entitled to TDIU during the period on appeal. Although this is the first point in the record where the issue of entitlement to TDIU is explicitly raised, the Board finds that entitlement was reasonably raised by the record in March 2019, when the Veteran submitted private DBQs regarding the severity of service-connected disabilities, including his voiding dysfunction, peripheral neuropathy of the upper and lower extremities, and his diabetes mellitus. Those DBQs reflect that the Veteran's disabilities result in functional limitations such as needing to be near a bathroom at all times and not being able to sit or stand for long periods of time. Ultimately, the Board finds that TDIU has been reasonably raised by the record during the period on appeal. It is the established VA policy that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disability or disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. In deciding whether TDIU may be awarded, an adjudicator must first evaluate the severity of the Veteran's service-connected disabilities. TDIU 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 a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). The determination as to whether a total disability rating is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-32 (1991). In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether his or her service-connected disabilities, alone, are of sufficient severity to produce unemployability. Consideration may be given to a veteran's level of education, special training, and previous work experience, but advancing age and the impairment caused by non-service-connected disabilities are not for consideration in determining whether such a total disability rating is warranted. See 38 C.F.R. §§ 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). VA regulations place responsibility for the TDIU determination on VA, and a medical examiner's opinion as to the employability of a particular claimant is not binding on VA. Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013). Here, the Veteran is currently entitled to service connection for a voiding dysfunction, diabetes mellitus, bilateral upper extremity peripheral neuropathy, bilateral lower extremity peripheral neuropathy, and erectile dysfunction. However, even accounting for the increased ratings assigned for bilateral peripheral neuropathy herein, the Veteran does not satisfy the schedular criteria for TDIU prior to March 14, 2019. As such, the Board's discussion is limited to whether his service-connected disabilities limit his ability to secure and maintain substantially gainful employment starting on March 14, 2019. With respect to this question, the Veteran submitted a medical opinion from Dr. S.E. with respect to the Veteran's unemployability. He indicated that he had reviewed the evidence in the record and consulted with the Veteran in June 2021 prior to rendering his opinion. In his report, Dr. S.E. first summarized various evidence in the record. For instance, he referred to the March 2019 DBQ on peripheral neuropathy in the bilateral upper and lower extremities, which indicated mild constant pain in the upper extremities and moderate constant pain the lower extremities, as well as moderate intermittent pain, paresthesias, and numbness in all extremities. Dr. S.E. noted that Dr. G. stated in the March 2019 DBQ that the functional impact of his peripheral neuropathy was that he had weakness and pain when walking, standing, and sitting for too long. He also reviewed the March 2019 DBQ regarding his voiding dysfunction, which indicated that his condition required him to be always near a bathroom. Additionally, Dr. S.E. discussed lay statements provided by the Veteran and his wife, which indicated that he stopped working in 1999. At that time, he was calibrating instruments for submarine parts. The Veteran and his wife reported that his neuropathy symptoms made it difficult for him to stand all day at his job. Additionally, they reported that his voiding dysfunction continues to make it difficult for him stay asleep, because he frequently awakens to urinate. They also explained that the Veteran's balance had worsened due to the neuropathy in his lower extremities and that he needed to be careful to avoid falls. After summarizing this evidence, Dr. S.E. discussed his consultation with the Veteran. The Veteran reported to him that he worked as an instrument mechanic until 1999, which required him to walk, stand, sit, stoop, and calibrate instruments. He reported that he was no longer able to do this job because he was unable to stand, lift, or stoop for any length of time due to his instability and diminished feelings in his leg. Dr. S.E. concluded that the Veteran would not be able to stand for 10 minutes without needing to lean on something due to leg pain, and that he could only walk for 10 minutes, slowly and unassisted, due to neuropathy pain. Although he could sit for 20 minutes at a time, depending on the chair, he is uncomfortable while sitting. He also could not lift more than 10 pounds. He also indicated that he estimated that the Veteran would have to miss work or leave early three or more days per month due to the limitations caused by his disabilities, particularly his voiding dysfunction. Ultimately, Dr. S.E. concluded that due to his physical limitations caused by these disabilities, he had been unable to maintain substantially gainful employment since at least April 26, 2018. The Board finds Dr. S.E.'s opinion to be thorough, well-reasoned, and consistent with the other evidence of record. As such, it is highly probative. As set forth above, the Veteran does not satisfy the schedular criteria for entitlement to service connection prior to March 14, 2019. Affording him the benefit of the doubt, however, the Board finds that entitlement to TDIU is warranted from March 14, 2019, when the schedular criteria were satisfied. REASONS FOR REMAND As set forth above, the Veteran did not satisfy the schedular requirements for entitlement to TDIU prior to March 14, 2019. There is sufficient evidence substantiating a reasonable possibility that he was unemployable due to service-connected disabilities prior to March 14, 2019. Nonetheless, Board does not have jurisdiction to grant TDIU on an extraschedular basis in the first instance. On remand, the claim should thus be referred to the Director of Compensation Service for consideration of TDIU on an extraschedular basis under 38 C.F.R. § 4.16(b). Accordingly, this matter is REMANDED for the following action: (This matter has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.800(c). Expedited handling is requested.) Refer the claim for entitlement to TDIU prior to March 14, 2019, to the Director, Compensation Service, for consideration on an extraschedular basis under 38 C.F.R. § 4.16(b). M. Tenner Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Rademacher, 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.