Citation Nr: 21009638 Decision Date: 02/23/21 Archive Date: 02/23/21 DOCKET NO. 16-33 041 DATE: February 23, 2021 ORDER Entitlement to a disability rating of 40 percent, but no higher, for right lower extremity, diabetic peripheral neuropathy, effective December 31, 2014, is granted. Entitlement to a disability rating of 40 percent, but no higher, for left lower extremity, diabetic peripheral neuropathy, effective December 31, 2014 is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is granted from December 15, 2015. FINDINGS OF FACT 1. Since December 31, 2014, the Veteran’s right sciatic nerve impairment has been characterized by moderately severe, but no greater, incomplete paralysis. 2. Since December 31, 2014, the Veteran’s left sciatic nerve impairment has been characterized by moderately severe, but no greater, incomplete paralysis. 3. From December 15, 2015, the service-connected disabilities are shown to preclude the Veteran from securing and following substantially gainful employment consistent with his work and education background. CONCLUSIONS OF LAW 1. Since December 31, 2014 the criteria for entitlement to a disability rating of 40 percent, but no higher, for a right sciatic nerve impairment have all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.124a, DC 8520. 2. After December 31, 2014 the criteria for entitlement to a disability rating of 40 percent, but no higher, for a left sciatic nerve impairment have all been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.40, 4.45, 4.124a, DC 5167-8520. 3. The criteria are met for a TDIU from December 15, 2015. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1967 to April 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019, the Veteran and his spouse testified at a videoconference hearing before the undersigned. A transcript is of record. In November 2019 the Board remanded the matter for further development. Increased Ratings The Veteran contends that his service-connected right and left lower extremities, diabetic peripheral neuropathy, warrant higher ratings. Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity after a review of the entire history. Separate diagnostic codes (DCs) identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). 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. Francisco v. Brown, 7 Vet. App. 55 (1994). 1. Entitlement to a disability rating of 40 percent, but no higher, for right lower extremity, diabetic peripheral neuropathy, sciatic nerve. 2. Entitlement to a disability rating of 40 percent, but no higher, for left lower extremity, diabetic peripheral neuropathy, sciatic nerve. The Veteran maintains that his service-connected right and left lower extremity sciatic nerve disabilities are more disabling than reflected by the current disability ratings assigned by the RO. The Veteran’s right lower extremity, diabetic peripheral neuropathy, sciatic nerve is currently rated as 40 percent disabling from December 23, 2019, and left lower extremity, diabetic peripheral neuropathy, sciatic nerve is currently rated as 40 percent disabling from February 21, 2019. 38 C.F.R. § 4.124a, DC 5167-8520. Under this DC, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating is warranted for moderate incomplete paralysis. A 40 percent rating is warranted for moderately severe incomplete paralysis. A 60 percent rating is warranted for severe incomplete paralysis with marked muscular atrophy. An 80 percent rating is warranted for complete paralysis. The words “mild,” “moderate,” “moderately severe,” and “severe” are not defined in the VA 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. Although the word “moderate” is not defined in VA regulations, “moderate” is generally defined as “of average or medium quality, amount, scope, range, etc.” See Webster’s New World Dictionary, Third College Edition (1988), 871. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a, DCs 8510-8730. For the reasons that follow, the Board concludes that the Veteran is not entitled to a disability rating in excess of 40 percent for his service-connected right and left lower extremity, diabetic peripheral neuropathy, sciatic nerve disabilities. The Veteran completed a December 2019 VA Peripheral Nerves Conditions DBQ. The Veteran reported moderate to severe constant pain, moderate paresthesias and/or dysesthesias, and moderate to severe numbness of his right and left lower extremities. The Veteran’s bilateral lower extremities exhibited (4/5) less than normal strength, decreased reflexes, decreased sensation in the knee/thigh and ankle lower leg, and absent sensation in the foot/toes. The Veteran’s bilateral lower extremities were absent of position sense, vibration sensation, and cold sensation. The Veteran had no muscle atrophy. He had trophic changes attributable to his diabetic peripheral neuropathy described as hair noted mid-calf to knee. The examiner found the Veteran had moderately severe incomplete paralysis of the right and left sciatic nerve. A November 2019 medical record, the Veteran reported numbness and tingling, and demonstrates increasing left foot drop and received foot drop brace. An April 2019 medical record reported there is sensory loss to the foot. At the BVA Hearing dated March 7, 2019 Veteran testified complaints of severe burning, numbness, lots of swelling, and pain. That his legs give out when walking, no feeling in left foot, constant numbness, and in 2014, had to quit his job due to diabetic peripheral neuropathy, and that it has increased severity since his 2016 VA exam. A February 2019 medical record reported diabetic neuropathy, again significant and progressive. He states it significantly affects his ability to walk, and he is unable to feel the ground when he walks. The March 2015 Diabetic Sensory-Motor Peripheral Neuropathy DBQ stated the Veteran had inability to walk, chronic pain and side effects of medications all preclude ability to work. The DBQ also shows he had severe constant pain, severe paresthesias/dysesthesias, severe numbness. His light touch was absent, with hair loss, and all reflexes absent, and there was no atrophy. To warrant a 60 percent disability rating for his peripheral neuropathy of the right and left lower extremities under DC 8520, the Veteran must exhibit severe incomplete paralysis of the sciatic nerve, with marked muscular atrophy. 38 C.F.R. § 4.124a, DC 8520. However, there is no probative evidence during the rating period that the Veteran’s condition has resulted in such severity in order to warrant a 60 percent disability rating. There was no marked muscular atrophy identified at any time during the period on appeal. The examiner specifically reported that no muscle atrophy was noted at the March 11, 2015 VA examination. Because the March 2015 DBQ showed that level of moderate severity with the findings on that exam in both legs, and based on the complaints and objective findings, the Veteran’s bilateral lower extremity sciatic nerve disability most closely approximates the 40 percent criteria. Thus, the Board finds that the Veteran’s bilateral lower extremity sciatic nerve disability, currently rated as 40 percent disabling are effective from December 23, 2014, which is the date of his supplemental claim for compensation. There is no reasonable doubt to be resolved as to these issues. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to a TDIU is granted, effective December 15, 2015. Total disability ratings for compensation based upon individual unemployability 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. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. The central inquiry is “whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” See Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment. During the appeal the Veteran was granted TDIU effective April 25, 2016, in a September 29, 2020 rating decision, based on when he met the schedular requirements for a TDIU. The Board notes he now meets the schedular requirements as of December 31, 2014, the date of receipt of his claim. The inquiry then is whether he is entitled to a TDIU prior to April 25, 2016. The record shows he has two years of college, and his previous work was in a warehouse, which required prolonged walking. The next inquiry is whether he the record shows he was working in a substantial gainful position prior to April 25, 2016. The record contains conflicting statements from the Veteran, who reported at his personal hearing in March 2019 that he stopped working in 2014 but reported on his August 2020 application for a TDIU that he last worked full-time on December 15, 2015, and that he make $66,000 in 2015. The Board places more weight on this more recent report of his work history than on what was reported during the hearing. It is a specific date rather than a general time-frame, which suggests a higher level of certainty on the part of the Veteran. It contains income information, which shows he was making a substantial gainful living for most of 2015, but stopped working altogether in December of that year. The Veteran has reported that he stopped working because of his peripheral neuropathy, which prevented him from being able to walk the floor of the warehouse and to adequately deal with employees. The March 2015 DBQ report contained an opinion from his private treatment provider that the Veteran’s peripheral neuropathy precluded working. The Board finds this opinion probative, especially given the severity of his bilateral peripheral neuropathy symptoms that were noted in that examination.   Accordingly, the Board finds that a TDIU is warranted starting from December 15, 2015, when he stopped working because of his symptoms. Prior to that, he was still working in a substantial gainful position. Nathaniel J. Doan Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Ottley III 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.