Citation Nr: 21010528
Decision Date: 02/25/21	Archive Date: 02/25/21

DOCKET NO. 06-00 165A
DATE: February 25, 2021

ORDER

Entitlement to an initial compensable rating prior to January 21, 2011, a rating in excess of 10 percent from January 21, 2011 to April 5, 2013, and a rating in excess of 40 percent thereafter for sciatic nerve peripheral neuropathy of the left lower extremity is denied.

Entitlement to an initial compensable rating prior to January 21, 2011, a rating in excess of 10 percent from January 21, 2011 to April 5, 2013, and a rating in excess of 40 percent thereafter for sciatic nerve peripheral neuropathy of the right lower extremity is denied.

Entitlement to a separate rating for femoral nerve peripheral neuropathy of the left lower extremity, prior to April 5, 2013, is denied.

Entitlement to a separate rating for femoral nerve peripheral neuropathy of the right lower extremity, prior to April 5, 2013, is denied.

Entitlement to an initial rating in excess of 20 percent for femoral nerve peripheral neuropathy of the left lower extremity is denied.

Entitlement to an initial rating in excess of 20 percent for femoral nerve peripheral neuropathy of the right lower extremity is denied.

Entitlement to a compensable rating prior to January 9, 2007, in excess of 10 percent from January 9, 2007 to December 6, 2007, and a compensable rating from December 6, 2007 to July 9, 2013 for tinea pedis with onychomycosis is denied.

Entitlement to a 10 percent rating beginning July 9, 2013 for tinea pedis with onychomycosis is granted. 

Entitlement to a total rating based on individual unemployability due to service connected disability (TDIU), to include as on an extraschedular basis, prior to October 24, 2005 is denied.

FINDINGS OF FACT

1. Prior to January 21, 2011, the Veteran’s left and right lower extremity sciatic nerve peripheral neuropathy was asymptomatic and did not manifest in mild incomplete paralysis, the loss of reflexes, muscle atrophy, sensory disturbances or constant pain.

2. From January 21, 2011 to April 5, 2013 the Veteran’s left and right lower extremity sciatic nerve peripheral neuropathy was manifested by, at worst, mild incomplete paralysis and did not manifest in moderate incomplete paralysis, the loss of reflexes, muscle atrophy or constant pain.

3. Beginning April 5, 2013, the Veteran’s left and right lower extremity sciatic nerve peripheral neuropathy was manifested by, at worst, moderately severe incomplete paralysis and did not manifest in severe incomplete paralysis with marked muscle atrophy. 

4. There is no evidence of record suggesting that the Veteran had left and right lower extremity femoral nerve peripheral neuropathy prior to April 5, 2013. 

5. Beginning April 5, 2013, the Veteran’s left and right lower extremity femoral nerve peripheral neuropathy was manifested by, at worst, moderate incomplete paralysis and did not manifest in severe incomplete paralysis. 

6. Prior to January 9, 2007, the Veteran’s tinea pedis was asymptomatic and did not require systemic therapy. 

7. From January 9, 2007 to December 6, 2007, the Veteran’s tinea pedis manifested with five percent of the total body and zero percent of the exposed area without characteristic lesions involving 20 to 40 percent of the entire body or exposed areas; and without systemic therapy or other immunosuppressive drugs.  

8. From December 6, 7007 to July 9, 2013, the Veteran’s tinea pedis asymptomatic and did not require systemic therapy. 

9. Beginning July 9, 2013, the Veteran’s tinea pedis manifested with five percent of the total body and zero percent of the exposed area without characteristic lesions involving 20 to 40 percent of the entire body or exposed areas, systemic therapy or other immunosuppressive drugs.  

10. Prior to October 24, 2005, the evidence did not show that the Veteran’s service-connected disabilities rendered him unable to obtain and maintain substantially gainful employment due to service-connected disabilities.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating prior to January 21, 2011, a rating in excess of 10 percent from January 21, 2011 to April 5, 2013, and a rating in excess of 40 percent thereafter for sciatic nerve peripheral neuropathy of the left lower extremity 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 8520.

2. The criteria for an initial compensable rating prior to January 21, 2011, a rating in excess of 10 percent from January 21, 2011 to April 5, 2013, and a rating in excess of 40 percent thereafter for sciatic nerve peripheral neuropathy of the right lower extremity 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 8520.

3. The criteria for a separate rating for femoral nerve peripheral neuropathy of the left lower extremity, prior to April 5, 2013, 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 8526.

4. The criteria for a separate rating for femoral nerve peripheral neuropathy of the right lower extremity, prior to April 5, 2013, 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 8526.

5. The criteria for an initial rating in excess of 20 percent for femoral nerve peripheral neuropathy of the left lower extremity 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 8526.

6. The criteria for an initial rating in excess of 20 percent for femoral nerve peripheral neuropathy of the right lower extremity 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 8526.

7. The criteria for an initial compensable rating prior to January 9, 2007, a rating in excess of 10 percent from January 9, 2007 to December 6, 2007, and a compensable rating from December 6, 2007 to July 9, 2013 for tinea pedis have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 – 4.14, 4.118, Diagnostic Code 7806.

8. The criteria for a compensable rating, but not higher than 10 percent, beginning July 9, 2013 for tinea pedis have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1 – 4.14, 4.118, Diagnostic Code 7806.

9. The criteria for entitlement to a TDIU prior to October 24, 2005 have not been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16.

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from July 1969 to February 1977, to include service in the Republic of Vietnam.  The Veteran’s awards and decorations for his service include a Vietnam Cross of Gallantry with Palm, among others.  

These matters come to the Board of Veterans’ Appeals (Board) on appeal from January 2005 and August 2007 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO).  Jurisdiction of this appeal is currently with the RO in Muskogee, Oklahoma.   

In April 2018, the Board issued, in pertinent part, a decision awarding a 40 percent rating for sciatic nerve peripheral neuropathy of the left lower extremity from April 5, 2013; awarding a 40 percent rating for sciatic nerve peripheral neuropathy of the right lower extremity from April 5, 2013; granting a separate rating for femoral nerve peripheral neuropathy of the left lower extremity, and assigned a 20 percent rating, beginning April 5, 2013; granting a separate rating for femoral nerve peripheral neuropathy of the right lower extremity, and assigned a 20 percent rating, beginning April 5, 2013; denied a compensable rating prior to January 9, 2007 and from December 7, 2007 for tinea pedis with onychomycosis; and granted a TDIU from October 24, 2005 to April 28, 2013.  The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court).  In a December 2019 Order, the Court issued a Memorandum Decision and remanded the case to the Board for action consistent with the Decision. 

In the April 2018 Board decision, the issue of entitlement to a TDIU prior to October 24, 2005 was remanded to the Agency of Original Jurisdiction (AOJ) for further development.  That issue has now been returned to the Board for appellate action.  

In August 2020, the Veteran’s attorney requested an additional 30 day extension of time to submit evidence and argument. The Board granted this Motion for Extension of Time in October 2020. In November 2020, the Board granted a second Motion for Extension of Time to allow an additional 45 day extension of time to submit evidence and argument.

Finally, the Board notes that the Veteran’s attorney appears to raise the issue of entitlement to special monthly compensation based upon loss of use of the lower extremities and/or feet in a September 2020 submission. This issue is not before the Board for its consideration. The Board refers this issue to the Agency of Original Jurisdiction (AOJ) for appropriate consideration and action.

Increased Rating

Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule).  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7.  Reasonable doubt as to the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3.  It is permissible to switch diagnostic codes to reflect more accurately a claimant’s current symptoms.  See Read v. Shinseki, 651 F.3d 1296, 1302 (Fed. Cir. 2011).

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.

When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C. § § 5107; 38 C.F.R. § § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).

1. Peripheral Neuropathy 

The Veteran asserts that he should be in receipt of higher ratings for his bilateral lower extremity peripheral neuropathy, to include separate ratings for femoral sciatic neuropathy of the bilateral lower extremities prior to April 5, 2013, as his symptoms are more severe than that which is reflected by the current ratings assigned.  Specifically, the Veteran asserted that the ratings should be considered, to include an extraschedular consideration.  See VA Form 9, June 25, 2009.  Additionally, the Veteran’s attorney asserts that the VA examination reports evaluating his peripheral neuropathy was inadequate because the examiner relied on the monofilament testing.  See Third Party Correspondence, November 10, 2011; see Notice of Disagreement, October 31, 2012.  With regard to a separate rating for bilateral femoral nerve peripheral neuropathy of the lower extremities, the Veteran’s attorney asserts that such separate ratings are warranted based on a July 2013 VA examination noting sciatic and femoral nerve involvement of moderate severity.  See VA Form 9, November 20, 2014.  Further, the Veteran’s attorney asserts that beginning July 2013, the Veteran’s peripheral neuropathy was manifested in moderately severe incomplete paralysis.  See Notice of Disagreement, September 11, 2015; see also VA Form 9, November 28, 2016; see also Third Party Correspondence, September 27, 2017; see also Correspondence, February 14, 2018; and see also Third Party Correspondence, September 16, 2020.

I.	Legal Criteria

The Veteran’s sciatic nerve peripheral neuropathy of the left lower extremity and right lower extremity is rated as noncompensable prior to January 21, 2011, 10 percent disabling from January 21, 2011 to April 5, 2013, and 40 percent disabling each thereafter under Diagnostic Code 8520.  38 C.F.R. § 4.124a.  The Veteran’s femoral nerve peripheral neuropathy of the left lower extremity and right lower extremity is rated as 20 percent disabling each from April 5, 2013 under Diagnostic Code 8526.  Id. 

Under Diagnostic Code 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve, a 20 percent rating is assigned for moderate incomplete paralysis, a 40 percent rating is assigned for moderately severe incomplete paralysis, and a 60 percent rating is assigned for severe incomplete paralysis with marked muscular atrophy.  Id.  An 80 percent rating is assigned for complete paralysis, where the foot dangles and drops, there is no active movement possible of the muscles below the knee, and flexion of the knee is weakened or (very rarely) lost.  Id.

Under Diagnostic Code 8526, a 10 percent rating is assigned for mild incomplete paralysis of the femoral nerve, a 20 percent rating is assigned for moderate incomplete paralysis, and a 30 percent rating is assigned for severe incomplete paralysis.  Id.  A 40 percent rating is assigned for complete paralysis; paralysis of quadriceps extensor muscles.  Id. 

The term “incomplete paralysis” with peripheral nerve injuries indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to the varied level of the nerve lesion or to partial regeneration.  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).

The words “mild,” “moderate,” and “severe” are not defined in the VA Schedule for Rating Disabilities.  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.  

Mild is generally defined as “not being or involving what is extreme” or “not severe.”  Merriam-Webster’s Collegiate Dictionary, 787 (11th ed. 2003).  Moderate is generally defined as “tending toward the mean or average amount.”  Id. at 798. Severe is generally defined as “of a great degree” or “serious.”  Id. at 1140.

When the involvement is only sensory, the rating should be for the mild, or at most, the moderate degree.  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.

II.	Pertinent Medical Evidence 

At an April 2006 VA examination, in pertinent part, the Veteran reported he had progressive loss of strength in his extremities.  He reported that his “arms and legs [were] not as strong as they used to be,” experienced tingling and numbness in his fingers and arms and had abnormal sensation in his feet and neck.  He did not have leg pain after walking distances.  Upon physical examination, the Veteran’s extremities did not reveal atrophic skin changes, ulceration, gangrene, ischemic limb pain, or persistent coldness.  The peripheral nerve examination was within normal limits; motor function of the bilateral upper and bilateral lower extremities was within normal limits; sensory function was within normal limits; and reflex testing was within normal limits.

At a January 2007 VA examination for the Veteran’s peripheral vascular disease, the Veteran reported that he had intermittent claudication after walking two yards on level ground at two miles per hour, had calf pain at rest, persistent coldness of the extremities and experienced flare-ups requiring him to sit down, elevate legs, and take medication.  He reported functional impairment of pain, swelling, and turning black and purple from his knee to ankle.  Upon physical examination, the Veteran’s extremities presented with persistent coldness, ischemic limb pain at rest, atrophic skin changes with thin skin, atrophic skin changes with absence of hair and diminished monofilament sensation to planta surfaces of both feet, feet that were cool to touch, and atrophic skin changes to the mid-tibia bilaterally.  Peripheral pulses showed decrease pulses in the dorsalis pedis pulse and anterior tibial pulse bilaterally.  The ankle or brachial index on the right was 1.4 and on the left was 1.0.  The examiner noted that the ankle-brachial index was within normal limits, indicating good blood flow to the extremities; and indicated that “even so, the physical signs of [peripheral vascular disease] [are] still present, including shiny skin and decreased hair of the feet.”

A December 2007 VA treatment record indicates the Veteran’s feet were evaluated due to his diabetes mellitus.  Upon physical examination, the Veteran was shown to have diabetic foot-sensory examination with sensation intact, normal appearance with no ulcer or signs, and toenails normal.

At a January 2011 VA examination, in pertinent part, the Veteran reported he had peripheral arterial disease of the bilateral lower extremities that was manifested with cold sensation, purplish discoloration of the toes and swelling of the right ankle. He denied claudication, no pain in calf muscles associated with standing or walking, pain in knee joints and feet with standing and walking, denied venous stasis ulcers, denied pigmentation, reported his knee and feet pain affected prolonged standing and walking; and denied any affect with activities of daily living, recreational activities, or employment.  He denied any numbness or tingling of the bilateral lower extremities; and denied burning pain, pins and needles sensation, flare-ups, and reported numbness in the bilateral feet. 

Neurological examination showed the Veteran had normal motor strength with no evidence of muscle atrophy in his extremities and sensory examination was decreased on the plantar aspect of the bilateral feet. The examiner was unable to elicit an achilles reflex on the right lower extremity and hypoactive reflex (1+) on the left foot. 

An April 2013 private treatment record indicates the Veteran complained of pain and numbness in his feet and legs, and imbalance.  The Veteran appeared to have clinical restless leg syndrome and was shown to have chronic sensory motor axonal polyneuropathy with partial reinnervation of the foot and calf muscles. 

At a July 2013 VA examination, the Veteran reported pain, numbness, and tingling in the feet that had worsened.  Symptoms attributable to his diabetic peripheral neuropathy included moderate constant pain in all four extremities, severe intermittent pain (usually dull) in all four extremities, mild paresthesias and/or dysesthesias and mild numbness in the bilateral upper extremities and moderate paresthesias and/or dysesthesias and moderate numbness in the bilateral lower extremities. Neurological examination showed less than normal strength in the bilateral elbow flexion, bilateral elbow extension, bilateral wrist flexion, bilateral wrist extension, bilateral grip and bilateral pinch (thumb to index finger).  Neurological examination for the bilateral knee extension, knee flexion, ankle plantar flexion, and ankle dorsiflexion showed normal strength.  Deep tendon reflexes showed absent reflexes in the bilateral knees and bilateral ankles.  Light touch/monofilament testing results showed decreased results in the bilateral foot/toes.  Position sense, vibration sense, and cold sensation testing were all normal.  The Veteran did not have muscle atrophy nor trophic changes attributable to diabetic peripheral neuropathy. The examiner found the Veteran had sciatic nerve neuropathy that was manifested by moderate incomplete paralysis of the bilateral lower extremities and bilateral femoral nerve neuropathy that was manifested by moderate incomplete paralysis of the bilateral lower extremities.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The examiner noted the Veteran’s diabetic peripheral neuropathy impacted his ability to work due to his inability to walk or stand without a walker.  The examiner remarked the Veteran used a walker, that this posture within normal limits and that the effect of physical and sedentary activities of employment was foot pain and numbness requiring a walker for ambulation; inability to stand or walk without difficulty; and foot pain at rest.

At a July 2014 private neurological evaluation, the Veteran reported weakness, pain, and numbness in the legs and reported the symptoms had progressed and worsened over the past few years.  April 2013 electromyogram (EMG) and nerve conduction studies revealed chronic sensory motor axonal polyneuropathy with partial enervation of the foot and calf muscles.  The Veteran had weakness in the ankle and knee joints; and wore bilateral knee and ankle braces.  He could only walk short distances with two canes and was not able to walk for any long distance or repeatedly for short distances without assistance.  Sensory examination showed decreased sensation to pinprick and cold to the knees.  Vibration sense was decreased at the ankles.  Position sense was decreased at the great toes.  Deep tendon reflexes were absent in the bilateral lower extremities with bilateral flexor plantar responses.  He was able to stand from a chair, take short steps with a wide stance while hanging onto objects and gained some balance with the use of his cane. 

At a July 2017 VA examination, the Veteran reported leg and foot nerve pain and swelling.  Symptoms attributable to diabetic peripheral neuropathy included severe constant pain, severe paresthesias and/or dysesthesias, and severe numbness in the in the bilateral lower extremities.  Muscle strength testing was all normal.  Deep tendon reflexes were all normal.  Light touch/monofilament testing results showed decreased sensation in the bilateral foot/toes.  Position sense, vibration sensation, and cold sensation were not tested.   The Veteran did not have muscle atrophy nor trophic changes attributable to diabetic peripheral neuropathy.  The examiner found the Veteran had sciatic nerve neuropathy that was manifested by moderately severe incomplete paralysis of the bilateral lower extremities.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The examiner noted the Veteran did not have femoral nerve neuropathy.  The examiner noted the Veteran’s diabetic peripheral neuropathy impacted his ability to work in that the Veteran had not been employed since May 2001, was a computer software consultant and due to his chronic knee pain, shortness of breath, chronic obstructive pulmonary disease (COPD), diabetes and complications resulted in unemployability.  The examiner noted that diabetes made him easily fatigued, had balance issues due to his bilateral lower extremity neuropathy and had been turned down from jobs due to his physical and mental issues.  The examiner noted the Veteran walked with double canes due to knee pain and there were no signs of malaise present.  

An April 2019 VA treatment record indicates the Veteran had normal lower extremities.  He had good knee and hip tenderness on palpation with range of motion, and straight leg, decreased pulses on the right left lower extremity, and normal strength bilaterally.  There was decreased sensation on bilateral lower extremities, and trace edema bilaterally. 

Further review of the record shows that the Veteran treatment at the VA medical center and from private treatment providers for various disabilities, to include his bilateral lower extremity neuropathy.  However, there is no indication from the treatment notes of record that the Veteran has reported symptoms of neuropathy that are worse than those noted in the various VA examination reports and treatment records of record. 

III.	Analysis – Increased Rating for Sciatic Nerve Peripheral Neuropathy

Based on the foregoing, an initial compensable rating, prior to January 21, 2011 for sciatic nerve peripheral neuropathy of the left and right lower extremities is not warranted.  Neurological findings at the April 2006 VA examination show that the Veteran had a normal peripheral nerve examination and had normal motor function, sensory function, and reflex testing.  Additionally, at a January 2007 VA examination, the Veteran’s symptoms were attributable to his peripheral vascular disease.  Moreover, a December 2007 VA treatment record indicates the Veteran’s bilateral lower feet were normal in appearance with no ulcer or signs and that his sensation was intact. The record was negative for, and the Veteran has not alleged, the loss of reflexes, muscle atrophy, sensory disturbances or constant pain. Moreover, there were no symptoms of functional impairments related to the Veteran’s left and right lower extremities due to his sciatic nerve peripheral neuropathy prior to January 21, 2011.  Therefore, the Board finds that prior to January 21, 2011, the Veteran’s sciatic nerve peripheral neuropathy of the bilateral lower extremities was, at worst, asymptomatic and did not manifest in mild incomplete paralysis.  Accordingly, a compensable rating is not warranted prior to January 21, 2011, for sciatic nerve peripheral neuropathy of the left and right lower extremities.

A rating in excess of 10 percent from January 21, 2011 to April 5, 2013 for sciatic nerve peripheral neuropathy of the left and right lower extremities is not warranted.  Neurological findings at the January 2011 VA examination showed the Veteran had normal motor strength, no evidence of muscle atrophy, with some decreased sensation in the bilateral feet, absent achilles reflex on the right lower extremity, and decreased reflexes of the left lower extremity.  However, the Veteran denied symptoms that affected his activities of daily living, recreation, or employment; and denied any numbness or tingling, burning pain, pins and needles sensation, and flare-ups of the bilateral lower extremities.  The record does not establish, and the Veteran has not alleged, the loss of reflexes, muscle atrophy or constant pain. The Board finds that the symptoms attributable to the Veteran’s left and right lower extremities due to his sciatic nerve peripheral neuropathy from January 21, 2011 to April 5, 2013 most closely approximate mild incomplete paralysis; and was not manifested by moderate incomplete paralysis.  Accordingly, a rating in excess of 10 percent from January 21, 2011 to April 5, 2013 for sciatic nerve peripheral neuropathy of the left and right lower extremities is not warranted. 

A rating in excess of 40 percent from April 5, 2013 for sciatic nerve peripheral neuropathy of the left and right lower extremities is not warranted.  Neurological findings in an April 2013 treatment record shows the Veteran complained of pain, numbness, and imbalance bilaterally and was shown to have clinical restless leg syndrome, and chronic sensory motor axonal polyneuropathy with partial reinnervation.  Neurological findings at a July 2013 VA examination showed the Veteran had normal strength, absent deep tendon reflexes, and decreased sensation; and had normal position sense, vibration sense, and cold sensation testing.  Additionally, the Veteran did not have muscle atrophy or trophic changes attributable to sciatic nerve neuropathy; and the examiner found the Veteran’s sciatic nerve neuropathy was manifested by moderate incomplete paralysis of the bilateral sciatic nerves.  Deep tendon reflexes were also absent during a July 2014 private evaluation; with some decreased sensation to pinprick and cold to the knees, decreased vibration sense at the ankles, and decreased position sense at the great toes.  Although the Veteran had absent deep tendon reflexes at his July 2013 VA examination and a July 2014 private evaluation, at a July 2017 VA examination, the Veteran had normal deep tendon reflexes.  Neurological findings at his July 2017 VA examination showed the Veteran had normal muscle strength, severe constant pain, severe paresthesias and/or dysesthesias and severe numbness without muscle atrophy.  The July 2017 VA examiner found the Veteran had sciatic nerve neuropathy that was manifested by moderately severe incomplete paralysis of the bilateral lower extremities.  Therefore, the Board finds that beginning April 5, 2013, the Veteran’s sciatic nerve peripheral neuropathy of the left and right lower extremities was, at worst, manifested by moderately severe incomplete paralysis and did not manifest in severe incomplete paralysis with marked muscular atrophy.  Accordingly, a rating in excess of 40 percent beginning April 5, 2013 for sciatic nerve peripheral neuropathy of the left and right lower extremities is not warranted. 

The Board notes the Veteran and his attorney’s contentions that his disabilities demonstrated worsening in symptoms to warrant a higher rating due to absent reflexes and the argument that the examination is inadequate because the examiner relied on monofilament testing.  Specifically, the attorney asserts that the Veteran’s absent deep tendon reflexes warrant a 60 percent rating for severe incomplete paralysis.  However, the objective medical evidence demonstrates that there was not severe incomplete paralysis with marked muscle atrophy to warrant such a higher rating.  The Veteran has not been shown to have muscle atrophy at any time.  Additionally, as discussed above, the Veteran’s deep tendon reflexes were normal at a July 2017 VA examination.  While the Veteran had, at times, subjective complaints of pain and numbness, the objective medical evidence demonstrates that there was not severe incomplete paralysis with marked muscle atrophy of his sciatic nerve and/or symptoms related thereto.  Those findings, which are consistent with VA outpatient records more closely approximate moderately severe impairment of sciatic neuropathy of the left and lower extremities and do not more closely approximate severe impairment with marked muscle atrophy at any time during the appeal period.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  This argument is therefore without merit. 

The Board acknowledges the Veteran’s statements that his left and right lower extremity sciatic peripheral neuropathy is more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  Woehlaert v. Nicholson, 21 Vet. App. 456 (2007). The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for a higher rating have been met during any period on appeal.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his sciatic peripheral neuropathy.  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 additional staged ratings under Hart, supra, are appropriate for the Veteran’s service connected left and right lower extremity sciatic peripheral neuropathy; however, the Board finds that his symptomatology has been stable throughout each appeal period.  Therefore, assigning further staged rating for such disabilities is not warranted.  Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, supra.

Accordingly, the Board finds that an initial compensable rating prior to January 21, 2011, a rating in excess of 10 percent from January 21, 2011 to April 5, 2013, and a rating in excess of 40 percent thereafter for sciatic nerve peripheral neuropathy of the left and right lower extremities is not warranted for any period during the appeal period and the appeal is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

IV.	Analysis – Separate Rating for Femoral Nerve Peripheral Neuropathy Prior to April 5, 2013

The Board notes the Veteran and his attorney’s contentions that separate ratings for femoral peripheral neuropathy of the left and right lower extremities is warranted prior to April 5, 2013.  

The evaluation of the same disability under various diagnoses is to be avoided.  38 C.F.R. § 4.14. Section 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

VA must consider all favorable lay evidence of record.  38 U.S.C. § 5107(b); Caluza v. Brown, 7 Vet. App. 498 (1995).  The Veteran is competent to testify in regard to the onset and continuity of symptomatology.  Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991).

Based on the foregoing, the Board finds that separate ratings for femoral nerve peripheral neuropathy of the left and right lower extremities prior to April 5, 2013 is not warranted.  In this regard, there is no evidence showing that the Veteran had neurological impairment associated with any other peripheral nerves that have not already been service connected.  Specifically, the Board notes that the Veteran was not shown to have femoral nerve peripheral neuropathy at any time prior to April 5, 2013.  Findings at an April 2006 VA examination found the Veteran’s peripheral nerves were within normal limits.  Additionally, the evidence showed impairment related to the Veteran’s sciatic nerve, but not due to his femoral nerve, in a December 2007 VA treatment record, January 2011 VA examination, and April 2013 VA treatment record. 

The Board has considered all other potentially applicable Diagnostic Codes, but there is no evidence showing the Veteran has neurological impairment associated with any other peripheral nerves that have not already been service connected. Therefore, a separate or higher rating under a different Diagnostic Code for either the left or right lower extremity peripheral neuropathy is not warranted.

Accordingly, the Board finds that separate ratings for femoral nerve peripheral neuropathy of the left and right lower extremities is not warranted prior to April 5, 2013, and the appeal is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

V.	Analysis – Increased Rating for Femoral Nerve Peripheral Neuropathy Beginning April 5, 2013

Based on the foregoing, an initial rating in excess of 20 percent, beginning April 5, 2013, for femoral nerve peripheral neuropathy of the left and right lower extremities is not warranted.  Neurological findings at the July 2013 VA examination showed the Veteran had femoral nerve neuropathy that was manifested by moderate incomplete paralysis of the bilateral lower extremities.  Symptoms included moderate constant pain in all four extremities, severe intermittent pain (usually dull) in all four extremities, mild paresthesias and/or dysesthesias and mild numbness in the bilateral upper extremities and moderate paresthesias and/or dysesthesias and moderate numbness in the bilateral lower extremities; and the Veteran had absent deep tendon reflexes in the bilateral knees and bilateral ankles, and decreased results for light touch/monofilament testing.  The Veteran did not have muscle atrophy.  As noted previously, neurological findings at a July 2017 VA examination showed the Veteran had decreased light touch/monofilament testing results; and normal deep tendon reflexes.  Additionally, at the July 2017 VA examination, the examiner found the Veteran did not have femoral nerve peripheral neuropathy of either lower extremity.  Therefore, the Board finds that beginning April 4, 2013, the Veteran’s femoral nerve peripheral neuropathy of the left and right lower extremities was, at worst, manifested by moderate incomplete paralysis.  Accordingly, a rating in excess of 20 percent beginning April 5, 2013 for femoral nerve peripheral neuropathy of the left and right lower extremities is not warranted. 

The Board notes the Veteran and his attorney’s contentions that his disabilities demonstrated worsening in symptoms to warrant a higher rating due to absent reflexes.  Specifically, the attorney asserts that the Veteran’s absent deep tendon reflexes warrant a 60 percent rating for severe incomplete paralysis for his sciatic nerve peripheral neuropathy.  However, as discussed above, the objective medical evidence demonstrates that there was not severe incomplete paralysis to warrant such a higher rated.  The Veteran’s deep tendon reflexes were normal at a July 2017 VA examination.  Further, the VA examination reports indicate that the Veteran’s femoral never peripheral neuropathy of the left and right lower extremities beginning April 5, 2013 were, at worst, manifested by moderate incomplete paralysis.  While the Veteran had, at times, subjective complaints of pain and numbness, the objective medical evidence demonstrates that there was not moderate incomplete paralysis of his femoral nerve and/or symptoms related thereto.  Those findings, which are consistent with VA outpatient records more closely approximate moderate impairment of femoral neuropathy of the left and lower extremities; and do not more closely approximate moderate impairment at any time during the appeal period.  38 C.F.R. § 4.124a, Diagnostic Code 8520.  This argument is therefore without merit.

The Board acknowledges the Veteran’s statements that his left and right lower extremity femoral peripheral neuropathy is more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard. Woehlaert v. Nicholson, supra. The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for a higher rating have been met during any period on appeal.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his femoral peripheral neuropathy.  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 appropriate for the Veteran’s service connected left and right lower extremity femoral peripheral neuropathy; however, the Board finds that his symptomatology has been stable throughout the appeal period.  Therefore, assigning a staged rating for such disabilities is not warranted.  Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, supra.

Accordingly, the Board finds that a rating in excess of 20 percent beginning April 5, 2013 for femoral nerve peripheral neuropathy of the left and right lower extremities is not warranted for any period during the appeal period and the appeal is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

VI.	Extraschedular Consideration

The Veteran contends that he is entitled to an extraschedular rating for his service-connected sciatic and femoral peripheral neuropathy of the bilateral lower extremities.  The question of an extraschedular rating is a component of a claim for an increased rating.  See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996).  Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008).  

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation Service, is authorized to approve an extraschedular evaluation if the case “presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.”  38 C.F.R. § 3.321(b)(1).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant’s service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008).

The determination of whether a Veteran is entitled to an extraschedular rating is a three-step inquiry.  Thun v. Peake, 22 Vet. App. 111, 115-16 (2008); see also 38 C.F.R. § 3.321(b)(1).  First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Board must compare the level of severity and symptomatology of a veteran’s service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the veteran’s disability level and symptomatology, then the veteran’s disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate.  In such cases, no referral is required.

Second, if the schedular evaluation does not contemplate the veteran’s level of disability and symptomatology and is, therefore, inadequate, the RO or Board must determine whether the veteran’s exceptional disability picture exhibits other related factors such as “marked interference with employment” and “frequent periods of hospitalization.”

If the first two questions are answered in the affirmative, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. 115 -16.

In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence.  Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006).  When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event. It may find that the preponderance of the evidence is against a claim, in which case, the claim is denied.  38 U.S.C. § 5107(b); 38 C.F.R. § 4.3.

With respect to the first prong in Thun, the evidence in this case does not show such an exceptional or unusual disability picture that the available schedular ratings for service-connected sciatic and femoral nerve peripheral neuropathy of the left and right lower extremities are inadequate.  The Veteran did not claim that his disabilities are exceptional or unusual but rather he has requested higher ratings and sought such ratings on an extraschedular basis.  See VA Form 9, June 25, 2009.  Further, the Veteran’s attorney simply asserts that the Veteran should be compensated for his peripheral neuropathy based on the symptoms reported, and at times, absent deep tendon reflexes. 

The Board finds that the symptoms related to the Veteran’s service-connected sciatic and femoral peripheral neuropathy of the left and right lower extremities include incomplete paralysis to varying degrees as discussed in preceding sections, pain, numbness, tingling, difficulty with walking and standing, tingling, abnormal sensations, decreased reflexes at times, and some weakness.  A review of all of the schedular diagnostic code ratings currently assigned to the left and right lower extremities indicate that these symptoms are adequately addressed by the schedular rating criteria and are specifically considered under 38 C.F.R. § 4.123.  The Veteran’s schedular ratings are discussed in the preceding sections; and as such, the Veteran’s symptoms are all contemplated by the Diagnostic Codes 8520 and 8526. 

The United States Court of Appeals for the Federal Circuit has explained that the general provisions of VA’s rating framework inform the more specific criteria set out in the various diagnostic codes in 38 C.F.R. § 4.71a. Section 4.40, for example, “makes clear that disability may occur if a veteran cannot perform the normal working movements of the body with normal excursion, strength, speed, coordination, and endurance.”  Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016).  It also explains that functional loss may be due to pain and that pain may render a part of the body seriously disabled.  This further illustrates that, in evaluating the Veteran’s disability, sections 4.40 and 4.45 provide a broad canvas that, in this case, covers the range of symptoms described by the Veteran.  Thompson, 815 F.3d at 785.

Furthermore, the plain language of the relevant regulations does not allow for an extraschedular evaluation based solely on symptoms such as pain, difficulty walking, and weakness.  As described above, 38 C.F.R. § 3.321(b) is clear that extraschedular evaluation is warranted only for “exceptional” cases and “unusual or exceptional disability pictures.”  Section 4.124a has been in the rating schedule for decades and, therefore, it cannot be said that the disability picture of this Veteran, who exhibits symptoms contemplated in these provisions, is unusual or exceptional.  Notably, the Board notes that the Veteran has not been hospitalized at any time due to his nerve impairment.  

In conclusion, the Board finds that the schedular criteria are adequate to rate the Veteran’s left and right lower extremity peripheral neuropathy.  The preponderance of the evidence is against assigning higher ratings on an extraschedular basis.  There is no reasonable doubt to be resolved as to this issue.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.  

2. Tinea Pedis

The Veteran asserts that he should be in receipt of higher ratings for his tinea pedis as his symptoms are more severe than that which is reflected by the current ratings assigned.  Specifically, the Veteran stated he had rashes and boils, to include tumors on his back and mouth that were surgically removed.  See VA Form 9, February 25, 2006.  The Veteran’s attorney argues that his tinea pedis should be separately rated.  See Correspondence, February 14, 2008.  Additionally, the Veteran and his attorney assert that the Veteran has an itchy rash on his trunk area that warrants a higher rating.  See Appellate Brief, October 8, 2010.  Moreover, the Veteran’s attorney argues the current ratings were assigned based on a January 2011 VA examination, but that the Veteran has lesions of at least five percent of his body that warrants a compensable rating.  See Third Party Correspondence, November 10, 2011; see also Notice of Disagreement, October 31, 2012; see also Third Party Correspondence, January 18, 2013; see also VA Form 9, November 20, 2014; and see also Third Party Correspondence, September 27, 2017.  The Veteran’s attorney also argues that the Veteran’s skin condition should be rated at 40 percent disabling, beginning June 2, 2006, under analogy to unstable and painful scars under Diagnostic Code 7804 for foot and leg sores.  See Third Party Correspondence, September 16, 2020. 

I.	Legal Criteria

The Veteran’s tinea pedis is currently rated as noncompensable prior to January 9, 2007, 10 percent disabling from January 9, 2007 to December 6, 2007 under 38 C.F.R. § 4.118, Diagnostic Code 7806. Since that time, the Veteran’s tinea pedis has been rated in combination with diabetes mellitus.  The applicable rating criteria for skin disorders, found at 38 C.F.R. § 4.118, were amended effective August 13, 2008.  See 83 Fed. Reg. 32,592 (July 13, 2018).  “VA’s intent is that the claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied.”  83 Fed. Reg. 32,592 (July 13, 2018).  

Under the new criteria, a note preceding 38 C.F.R. § 4.118 provides that, for the purposes of this section, “systemic therapy is treatment that is administered through any route (orally, injection, suppository, intranasally) other than the skin, and topical therapy is treatment that is administered through the skin.”  Diagnostic Code 7806 continues to apply to dermatitis or eczema, but is rated under the general rating formula for the skin.

Under the new criteria, a 10 percent rating is warranted where at least one of the following is present: characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, psoralen with long-wave ultraviolet-A light (PUVA), or other immunosuppressive drugs required for a total duration of less than 6 weeks over the past 12-month period.  A 30 percent rating is warranted where at least one of the following is present: Characteristic lesions involving 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas affected; or systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required for a total duration of six weeks or more, but not constantly, over the past 12-month period.  A 60 percent rating is warranted for characteristic lesions involving more than 40 percent of the entire body or more than 40 percent of exposed areas affected; or constant or near-constant systemic therapy including, but not limited to, corticosteroids, phototherapy, retinoids, biologics, photochemotherapy, PUVA, or other immunosuppressive drugs required over the past 12-month period.

Under the former criteria, a 10 percent rating is warranted for at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  A 30 percent rating applies where 20 to 40 percent of the entire body or 20 to 40 percent of exposed areas are affected, or; systemic therapy such as corticosteroids or other immunosuppressive drugs are required for a total duration of six weeks or more, but not constantly, during the past 12-month period.  A 60 percent rating applies where more than 40 percent of the entire body or more than 40 percent of exposed areas are affected, or; constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs is required during the past 12-month period.  

With regard to the meaning of “systemic therapy” prior to the new definition of the term in the revised criteria, the Court in Johnson v. McDonald, 27 Vet. App. 497, 505 (2016) held that use of a topical steroid constituted “systemic therapy” within the meaning of Diagnostic Code 7806.  In Johnson v. Shulkin, 862 F.3d 1351 (Fed. Cir. 2017), the Federal Circuit reversed this decision and determined that “constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive drugs” under Diagnostic Code 7806 is generally not inclusive of topical corticosteroids.  The Federal Circuit found that “systemic therapy” means “treatment pertaining to or affecting the body as a whole,” whereas topical therapy means “treatment pertaining to a particular surface area, as a topical anti-infective applied to a certain area of the skin and affecting only the area to which it is applied.”  Thus, according to the Federal Circuit, all applications of topical corticosteroids do not constitute systemic therapy.  The Federal Circuit also held that a topical corticosteroid treatment could meet the definition of systemic therapy if it was administered on a large enough scale such that it affected the body as a whole, and the use of a topical corticosteroid could be considered either systemic therapy or topical therapy based on the factual circumstances of each case.  In Burton v. Wilkie, 30 Vet. App. 286 (2018), the Court held that there are at least two other potential ways of showing that a topical corticosteroid is systemic: the method by which the treatment works and its side effects.

The Veteran’s claim in this case was pending prior to the August 13, 2018 effective date of the new criteria, and therefore the Board will consider both the old and new criteria and apply the more favorable.  However, the Federal Circuit’s interpretation of the term “systemic therapy” in the old criteria applies throughout the entire period prior to the August 13, 2018 effective date of the new criteria.  Rivers v. Roadway Express, 511 U.S. 298, 312-13 (1994) (“[j]udicial construction of a statute [or regulation] is an authoritative statement of what the statute [or regulation] meant before as well as after the decision of the case giving rise to that construction”); Jordan v. Nicholson, 401 F.3d 1296, 1298-99 (Fed. Cir. 2005) (a new interpretation of a statute retroactively affects decisions still open on direct review); Threatt v. McDonald, 28 Vet. App. 56, 63 (2016) (noting the “normal principle at this Court that judicial decisions operate retrospectively”).

II.	Pertinent Medical Evidence 

A January 2003 Social Security Administration (SSA) record indicates the Veteran had a “papular rash over most of the trunk area.” 

At an April 2006 VA examination, in pertinent part, the Veteran reported his diabetes affected the skin resulting in dry skin and recurrent rashes, that he treated with moisture creams.  The examiner noted there were no signs of skin disease present. 

At a January 2007 VA examination, in pertinent part, the Veteran was shown to have two scars on the right ankle, that was less than six square inches, with disfigurement and hypopigmentation.  There was no tenderness, ulceration, adherence, instability, tissue loss, inflammation, edema, keloid formation, hyperpigmentation, and abnormal texture.  There were signs of skin disease, and a skin condition was noted on plantar surfaces of both feet with the following characteristics: hypopigmentation of more than six square inches, abnormal texture of less than six square inches; and without ulceration, exfoliation, crusting, tissue loss, induration, inflexibility, hyperpigmentation, and limitation of motion.  Skin lesion was on zero percent of the exposed area and five percent of the whole body. 

A December 2007 VA treatment record indicates, in pertinent part, that the Veteran did not have ulcers on his feet, and had normal toenails.

At a January 2011 VA examination, the Veteran reported that his tinea pedis and onychomycosis was an incidental finding when seeing his doctor for an unrelated complaint.  He reported he was treated with creams but no pills, and that nothing had changed.  He did not have any treatment over the past twelve months.  His tinea pedis affected zero percent of the total body area and exposed body area.  Scarring and/or disfigurement was not present.  Ulceration, exfoliation or crusting was not present.  Acne or chloracne was not present.  There was no disfiguring skin condition of the head, face, or neck.  The examiner noted the condition did not affect his occupational functioning; and noted the examination was normal. 

At a July 2013 VA examination, the Veteran reported he had itching of the feet; and had thick and discolored nails.  He stated the condition had remained the same.  The skin condition did not cause scarring or disfigurement of the head, face, or neck.  He did not have benign or malignant skin neoplasms.  He did not have systemic manifestations due to any skin diseases.  The Veteran used over the counter lotions for leg dryness, that was used constant/near-constant over the past twelve months.  The Veteran did not have any treatments or procedures in the past twelve months.  The Veteran did not have any debilitating nor non-debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythremia multiforme, or toxic epidermal necrolysis.  Upon physical examination, infections of the skin was shown to effect five percent of the total body area, and none of the exposed area.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The examiner noted the Veteran’s tinea pedis did not impact his ability to work.  Photographs were not indicated for this evaluation.  

At a July 2016 VA examination, in pertinent part, the Veteran was shown to have blisters and sores on his feet.

At a July 2017 VA examination, the Veteran reported he had developed foot and leg sores, discolored toenails, boils on thighs and back; and the condition had worsened.  The skin condition did not cause scarring or disfigurement of the head, face, or neck.  He did not have benign or malignant skin neoplasms.  He did not have systemic manifestations due to any skin diseases.  The Veteran did not treat with oral or topical medications in the past twelve months.  The Veteran did not have any treatments or procedures in the past twelve months.  The Veteran did not have any debilitating nor non-debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythremia multiforme, or toxic epidermal necrolysis.  Upon physical examination, infections of the skin was shown to effect five percent of the total body area, and none of the exposed area.  The examiner noted the Veteran had onychomycosis and tinea pedis of the bilateral toenails and feet.  There were no other pertinent physical findings, complications, conditions, signs and/or symptoms shown.  The examiner noted the Veteran’s tinea pedis did not impact his ability to work.  Photographs were not indicated for this evaluation.  

Further review of the record shows that the Veteran treatment at the VA medical center and from private treatment providers for various disabilities, to include his tinea pedis.  However, there is no indication from the treatment notes of record that the Veteran has reported symptoms of tinea pedis that are worse than those noted in the various VA examination reports and treatment records of record. 

III.	Analysis

Based on the foregoing, an initial compensable rating prior to January 9, 2007 for tinea pedis is not warranted.  As noted, although a January 2003 SSA record indicates the Veteran had a “papular rash” on his trunk, findings at an April 2006 VA examination found the Veteran had no signs of skin disease.  Prior to January 9, 2007, the Veteran has not been shown to have characteristic lesions involving at least five percent, but less than 20 percent, of the entire body affected; or at least five percent, but less than 20 percent, of exposed areas affected; or intermittent systemic therapy; nor did he have at least five percent, but less than 20 percent, of the entire body, or at least five percent, but less than 20 percent, of exposed areas affected, or; intermittent systemic therapy such as corticosteroids or other immunosuppressive drugs required for a total duration of less than six weeks during the past 12-month period.  Rather, the Veteran did not have any signs of skin disease, and only used moisture creams for treatment.  Therefore, the Board finds that prior to January 9, 2007, the Veteran’s tinea pedis was, at worst, manifested with zero percent of the total body and zero percent of the exposed area; and the Veteran did not use systemic therapy.  Accordingly, a compensable rating prior to January 9, 2007 for tinea pedis is not warranted. 

Based on the foregoing, a rating in excess of 10 percent from January 9, 2007 to December 6, 2007 for tinea pedis is not warranted.  As noted, at a January 2007 VA examination, the Veteran was shown to have skin lesions on zero percent of the exposed body and five percent of the whole body.  Specifically, the examiner found a skin condition on the plantar surfaces of both feet with hypopigmentation and abnormal texture.  However, a December 2007 VA treatment record indicates that the Veteran no longer had any signs of a skin condition, and that he did not have ulcers on his feet.  Therefore, the Board finds that from January 9, 2007 to December 6, 2006, the Veteran’s tinea pedis was, at worst, manifested with five percent of the total body and zero percent of the exposed area; without characteristic lesions involving 20 to 40 percent of the entire body or exposed areas; and without systemic therapy or other immunosuppressive drugs.  Accordingly, a rating in excess of 10 percent from January 9, 2007 to December 6, 2007 is not warranted.

Based on the foregoing, a compensable rating from December 6, 2007 to July 9, 2013 for tinea pedis is not warranted.  As noted, at a January 2011 VA examination, the Veteran was shown to have zero percent of the total body and zero percent of the exposed area affected by his tinea pedis; and did not have any treatment over the past twelve months.  Further, the examiner noted the Veteran’s tinea pedis did not impact his ability to work.  Therefore, the Board finds that from December 6, 2007 to July 9, 2013, the Veteran’s tinea pedis was, at worst, manifested with zero percent of the total body and zero percent of the exposed area; and the Veteran did not use systemic therapy.  Accordingly, a compensable rating from December 6, 2007 to July 9, 2013 for tinea pedis is not warranted. 

Based on the foregoing, a 10 percent rating, but not higher, beginning July 9, 2013 for tinea pedis is warranted.  As noted, at a July 2013 VA examination, the Veteran reported itching, and the skin condition was shown to affect five percent of the total body and zero percent of the exposed area.  The Veteran did not have any treatments or procedures in the past twelve months.  The Veteran did not have any debilitating nor non-debilitating episodes in the past twelve months due to urticaria, primary cutaneous vasculitis, erythremia multiforme, or toxic epidermal necrolysis.  Further, at a July 2016 VA examination, the Veteran had bolsters and sores on his feet.  Additionally, at a July 2017 VA examination, the Veteran was shown to have skin infections that affected five percent of the total body area and none of the exposed area.  Therefore, the Board finds that beginning July 9, 2013, the Veteran’s tinea pedis was, at worst, manifested with five percent of the total body and zero percent of the exposed area; without characteristic lesions involving 20 to 40 percent of the entire body or exposed areas; and without systemic therapy or other immunosuppressive drugs.  Accordingly, a rating of 10 percent, but not higher, from July 9, 2013 for tinea pedis is warranted. 

The Board finds that the Veteran is not entitled to higher ratings for his tinea pedis based on “systemic therapy” at any time during the period on appeal.  In this regard, the Board finds that while the Veteran used moisturizing creams to treat his tinea pedis, there is no evidence that his treatment resulted in “systemic therapy” to support higher ratings.  The use of the moisturizing creams was applied to less than five percent of his entire body for less than 6 weeks.  This more closely approximates “topical therapy” as the corticosteroid used pertains to a certain area of the Veteran’s skin and affects only the area to which it is applied.  Such treatment has not been administered on a large enough scale such that it affected the Veteran’s body as a whole.  As noted above the affected area is, at worst, less than five percent of total body skin and zero percent of the exposed body.  Accordingly, a higher rating is not warranted at any time during the period on appeal for tinea pedis, based on “systemic therapy,” under the old or new criteria pertaining to the skin.

The Board notes the arguments of the Veteran’s attorney that the Veteran’s tinea pedis should be rated as scarring under Diagnostic Code 7804. However, the record does not suggest that the Veteran suffers from scarring on his feet but rather that he suffers from tinea pedis, an infectious skin condition. Moreover, the clinical evidence does not establish that the Veteran has scarring on this feet and objective examination was consistently negative for foot scarring. For example, the July 2013 and August 2017 VA examinations do not reflect objective findings of foot scarring. This argument is therefore without merit.

The Board notes the Veteran and his attorney’s contentions that his tinea pedis demonstrated worse symptoms to warrant higher ratings.  Specifically, the attorney asserts that the Veteran’s tinea pedis should be rated by analogy under Diagnostic Code 7804 for sores on his foot and legs.  However, as discussed above, after physical examination, the Veteran was not shown to have sores on his foot and legs.  Rather, he was shown to have, at worst, a skin condition on his feet; and at other times, no affected skin or signs of a skin condition or infection.  Further, the Veteran reported itching.  While the Veteran had, at times, subjective complaints of itching and pain, the objective medical evidence demonstrates that there was not affected skin of the total body or exposed body to warrant higher ratings; nor has the Veteran ever reported the use of systemic therapy to treat his tinea pedis.  Those findings, which are consistent with VA outpatient records more closely approximate the skin condition as described above, and do not more closely approximate the criteria for higher ratings, to include as due to the use of systemic therapy, at any time during the appeal period.  38 C.F.R. § 4.118, Diagnostic Code 7806.  This argument is therefore without merit. 

The Board acknowledges the Veteran’s statements that his tinea pedis is more severe than evaluated.  The Veteran is competent to report his symptoms and has presented credible statements in this regard.  Woehlaert v. Nicholson, supra.  The Board finds, however, that neither the Veteran’s statement nor medical evidence demonstrates that the criteria for a higher rating have been met during any period on appeal.  The Board also acknowledges that the Veteran’s VA treatment records note complaints of and treatment for his tinea pedis.  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 additional staged ratings under Hart, supra, are appropriate for the Veteran’s service connected tinea pedis; however, the Board finds that his symptomatology has been stable throughout each period on appeal.  Therefore, assigning further staged rating for such disability is not warranted.  Further, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record.  See Doucette v. Shulkin, supra.

Accordingly the Board finds that an initial compensable rating prior to January 9, 2007; a rating in excess of 10 percent from January 9, 2007 to December 6, 2007, and a compensable rating from December 6, 2007 to July 9, 2013 for tinea pedis is not warranted, and the claim is denied; and a rating of 10 percent, but not higher, beginning July 9, 2013 for tinea pedis is warranted, and the claim is granted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.

3. Entitlement to a TDIU

The Veteran asserts that he is entitled to a TDIU prior to October 24, 2005.  Specifically, his attorney argues that the Veteran has been unemployable due to his service-connected posttraumatic stress disorder (PTSD), as opined by Dr. C.R. in a January 2013 private opinion.  See Third Party Correspondence, January 18, 2013.   Additionally, the Veteran’s attorney argues that the Veteran’s service-connected disabilities, but particularly his PTSD and peripheral vascular disease, render him unable to maintain any type of employment, much less substantial or gainful employment.  See Correspondence, May 28, 2015.  The Veteran’s attorney asserts that the Veteran is entitled to a TDIU from June 26, 2004, the date service connection was initiated for PTSD; and argues that the Veteran’s PTSD rendered him unemployable.  See Third Party Correspondence, September 27, 2017; see also Correspondence, February 14, 2018; see also VA Form 9, June 11, 2019; see also Third Party Correspondence, June 23, 2020. 

Total disability ratings for compensation may be assigned, where the schedular rating is less than total, when a veteran 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, such disability shall be ratable as 60 percent or more, and if there are two or more 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).  Rating boards should submit to the Director of Compensation Service for extraschedular consideration all cases of veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage standards set forth in 38 C.F.R. § 4.16(a).  See 38 C.F.R. § 4.16(b).

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).  Therefore, when adjudicating a TDIU claim, VA must take into account the individual veteran’s education, training, and work history.  Hatlestad v. Derwinski, 1 Vet. App. 164 (1991) (level of education is a factor in deciding employability); see Friscia v. Brown, 7 Vet. App. 294 (1994) (considering Veteran’s experience as a pilot, his training in business administration and computer programming, and his history of obtaining and losing 19 jobs in the previous 18 years); Beaty v. Brown, 6 Vet. App. 532 (1994) (considering Veteran’s 8th grade education and sole occupation as a farmer); Moore v. Derwinski, 1 Vet. App. 356 (1991) (considering Veteran’s master’s degree in education and his part-time work as a tutor).

Age may not be considered as a factor when evaluating unemployability or intercurrent disability, and it may not be used as a basis for a total disability rating.  38 C.F.R. § 4.19.  There must be a determination that the service-connected disabilities are sufficient to produce unemployability without regard to advancing age or a non-service-connected disability.  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 enough.  A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment.  The ultimate question, however, is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment.  Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).

In the instant case, prior to October 24, 2005, the Veteran is service-connected for obstructive sleep apnea with chronic obstructive pulmonary disease (COPD) rated as 30 percent disabling from July 28, 2003; and PTSD rated as 50 percent disabling from July 26, 2004.  The Veteran’s combined rating prior to October 24, 2005 is 30 percent from July 28, 2003 and 70 percent from July 26, 2004.  Thus, prior to July 26, 2004, the Veteran schedular criteria for a TDIU have not been met and the schedular criteria for a TDIU have been met beginning July 26, 2004. 

However, when a Veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, but fails to meet the percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a), the case may be referred to appropriate VA officials for consideration of assignment of a TDIU rating.  38 C.F.R. § 4.16(b). 

Here, the evidence is against finding that the Veteran is precluded by his service connected disability from obtaining and maintaining any form of gainful employment consistent with his education, experience, and skillset for the appeal period prior to October 24, 2005.  The record shows that the highest level of education attained by the Veteran is one year of college completed.  The record shows that the Veteran was most recently employed as an information technology consultant, working 40 hours a week or more.  See Veteran’s Curriculum Vitae, July 2004.  The Veteran obtained a vocational degree in May 1969, and had 700 hours of training in Computer Programming and Operations.  Id.  He also worked as a school director, director of data processing, information technology systems manager, senior applications consultant, intelligence analysis, and computer operator.  During service, the Veteran’s military occupational specialty (MOS) included intel analyst.  Additional training included intelligent analyst training with the U.S. Army, and several certificates and licenses obtained.  Id. 

The ultimate question is whether he is capable of performing the physical and mental acts required by employment, not whether he can find employment.  38 C.F.R. § 4.16(a); Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993).  

In support of his claim, the Veteran submitted August 2013 and April 2019 VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability.   At those times, the Veteran indicated his PTSD prevented him from securing or following any substantially gainful employment.  He indicated he last worked in May 2001, in information technology.  He stated that his PTSD condition prevented him from being around people, which was required by his job; had panic attacks, and difficulty concentrating.  

In his November 2002 disability claim with the SSA, the Veteran indicated that he was too disabled to work, beginning May 31, 2001, as a result of his affective disorder and COPD. 

A March 2003 SSA treatment record indicates a SSA psychiatrist determined there was no medically determinable impairment as a result of his mental health symptoms.  

An April 2004 psychology consult note indicated the Veteran stated he was unable to secure employment due to his “top secret responsibilities while in the military,” and a lack of records. 

A May 2004 VA treatment record indicates the Veteran was depressed and anxious, and experienced sleep difficulty.  He was irritable, very anxious, not suicidal, and frustrated.  

In an August 2004 Correspondence, the Veteran stated he has been unable to work since May 2001 due to health reasons, “most of which are service related.”  Specifically, the Veteran stated he had severe arthritis in his hands, fingers, wrists, and elbows; and that his fingers and joints lock up on occasion, and make it unable to function. 

Of record is a November 2004 letter from a VA psychiatrist, Dr. S.E.  In her letter, she stated she had treated the Veteran for anxiety symptoms, and other psychiatric treatment since March 2004.  His mental health symptoms included nightmares; difficulty falling and maintaining a regular sleep pattern; hypervigilance; obsessive thinking; and irritability.  She noted the Veteran had a compulsion to “find justice” for his family, and has impaired judgment to manage his anxiety, as evident by his failure to follow through with medication protocol.  He did not have suicidal or homicidal ideation.

SSA records from July 2006 indicate the Veteran was found fully disabled as of May 2001, for SSA benefit purposes.  In this regard, the SSA found the Veteran was disabled from May 31, 2001, and was unable to engage in any substantial gainful activity by reason of any medically determinable physical or mental impairment that can be expected to result in death or that has lasted or can be expected to last for a continuous period of not less than twelve months.  The Veteran’s medically determinable “severe” impairments included affective disorder, anxiety disorder, COPD, degenerative arthritis, status post ankle fracture and status post left arm fracture.  The SSA determination noted that the Veteran’s psychiatric symptoms and mental impairments caused him marked restriction of his activities of daily living, marked difficulties in maintaining social functioning, marked difficulties in maintaining concentration, persistence or pace that has resulted in four or more episodes of decompensation. 

Of record is a January 2013 private letter from Dr. C.R.  In her letter, Dr. C.R. stated that she believed the Veteran demonstrated a significant degree of disability since he first sought psychiatric treatment in March 2004; and that his PTSD was of sufficient severity to have rendered him unable to hold substantial employment since at least November 2004.  In this regard, Dr. C.R. found that his PTSD symptoms resulted in leaving employment in 2001, and that he sought treatment in March 2004.  When he sought treatment, it was “apparently that his level of functioning would most certainly preclude employment in such positions as he’d held previously.”  Dr. C.R. referenced the SSA decision finding the Veteran had been disabled to work since May 31, 2001.  Dr. C.R. opined that the Veteran’s PTSD is of sufficient severity to render him unable to hold substantial employment due to the marked interference it created in his daily, social, and occupational functioning; and she noted additional symptoms of inability to exert good judgment in time and resource management, and limited insight also interfered with his functioning.  

Of record is a February 2015 letter from Dr. A.A.  In her letter, she noted that service connection was in effect for cardiomyopathy, PTSD, diabetes, bilateral peripheral vascular disease of the lower extremities, hypothyroidism, erectile dysfunction, and bilateral peripheral neuropathy of the lower extremities.  After a review of the evidence, Dr. A.A. opined that it was more likely than not that the severe symptoms of the Veteran’s service-connected disabilities, combined with his sleep apnea, would make it extremely difficult for him to ambulate to work or maintain adequate mental functioning to maintain any type of employment, be it physical or sedentary, much less substantial and gainful.  

At a July 2016 VA social and work industrial survey examination, in pertinent part, the Veteran reported he experienced difficulty keeping jobs.  He reported his occupation was in Information Technology; and he had a high school degree with one year of computer school and various trade trainings.  He felt he could not compete with younger people as technology had changed.  He reported he worked over 20 jobs from 1976 to 2001, and never worked for more than several months with most of his employers.  He reported he found working with people very difficult, and constantly needed to change jobs.  He stated he got along with most coworkers and supervisors, but found the environment to be confining and stressful.  The Veteran was not working at an occupation or position that was below his education and training level.  There was no evidence that the Veteran’s pre-traumatic level of performance was about his post-traumatic level of performance.  He stated he wanted to work, but his emotional and physical limitations kept him from employment; and his level of experience has also kept him from employment.  The examiner noted the Veteran was able to maintain employment until 2001.  He worked at a different company almost every year, until he was no longer able to keep working.  The Veteran appeared to have an unusual history of employment.  In this regard, most of this was reported due to his need to work second and third shifts to avoid people.  The examiner opined that the Veteran was not able to work due to the pain his feet, knees, and the emotional burden of being around others, at that time; and noted social stressors would continue to be, and has been, a major burden and barrier. 

In a July 2016 VA opinion, the examiner opined the Veteran had a limited capacity to perform physical exertion due to cardiomyopathy, back pain, neuropathy of the bilateral lower extremities, daytime fatigue, and diabetes prior to April 29, 2013. 

At a July 2017 for the Veteran’s diabetes mellitus, the examiner noted that diabetes mellitus impacted his ability to work.  In this regard, the Veteran had not been employed since May 2011 when he last worked as a computer software consultant.  The examiner noted that because of his chronic knee pain, shortness of breath from COPD complications, being easily fatigued from diabetes, and balance issues due to neuropathy, he was not able to be employed.  The examiner noted the Veteran had turned down from other jobs due to his physical and mental issues. 

In April 2018, the Veteran’s claim was referred to the Director of Compensation for consideration of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) prior to October 24, 2005 by the Board.  The Director of Compensation Service issued an advisory opinion in September 2018.  This opinion noted that a review of the Veteran’s treatment records did not reveal hospitalizations for his service-connected conditions that a January 2011 VA examiner found the Veteran did not have impairment with respect to occupational functioning though he had been unable to secure employment and that his sleep apnea did not impact his ability to work.  The advisory opinion determined that the Veteran’s service-connected disabilities did not present an exceptional disability picture which warrants an extraschedular TDIU prior to October 24, 2005. 

An administrative review for entitlement to an extraschedular TDIU prior to October 24, 2005 was performed in January 2020.  At that time, VA found that prior to 2005, the VA treatment records did not show a greater than 30 percent evaluation was warranted for PTSD and obstructive sleep apnea was not noted on examination to interfere with employment.  Additionally, it was noted that SSA records found the Veteran was unable to work due to affective disorder, anxiety disorder, and memory loss; and VA found that the medical evidence did not show that the service connected conditions listed should be evaluated at a higher level.  In sum, although the Veteran had some difficulties with his PTSD, there was not occupational and social limitations to warrant a higher than 30 percent rating; nor did the evidence show that sleep apnea interfered with employment.  Therefore, the recommendation was that entitlement to a TDIU prior to October 24, 2005 should not be granted. 

An additional advisory opinion by the Director of Compensation Service was issued in February 2020.  This opinion noted that the Veteran had previously been granted a TDIU beginning October 4, 2005; and that prior to this date, the Veteran was only service connected for obstructive sleep apnea and PTSD rated as 30 percent disabling each.  The opinion noted that obstructive sleep apnea did not significantly impair employment; and PTSD caused some occupational impairment but generally the Veteran functioned satisfactorily, and thus PTSD did not preclude employment.  Therefore, after giving consideration to all relevant evidence; including, but not limited to the Veteran’s education, training, and work history, the overall evidence failed to support the contention that any of the service-connected disabilities or a combination of the effects of those disabilities prevented gainful employment prior to October 4, 2005. 

Accordingly, after a review of the medical and lay evidence presented in the light of the Veteran’s education, training, and work history, the Board finds that the overall evidence failed to support the contention that any of the service connected disabilities or a combination of the effects of those disabilities supported an exceptional situation that prevented the Veteran from obtaining and maintaining employment prior to October 24, 2005.  

In this regard, the Veteran himself has asserted that he was unable to work as a result of the combination nonservice connected and service connected disabilities that include his PTSD, peripheral vascular disease, affective disorder, COPD, and severe arthritis of the hands, fingers, wrists, and elbows.  In this regard, the Board notes that the Veteran was service connected for only obstructive sleep apnea with COPD and PTSD prior to October 24, 2005.  Therefore, the analysis and considerations for entitlement to a TDIU are limited to the effects of only these two service connected disabilities on his employability.  The Veteran reported in a November 2002 disability claim with the SSA that he was disabled as a result of his affective disorder and COPD.  However, March 2003 SSA records show that the Veteran was not found to have any medically determinable impairment as a result of mental health symptoms.  Moreover, the Veteran himself reported that he had severe arthritis in his hands, fingers, wrists, and elbows, resulting in his joints “locking up” on occasion, making it difficult to function.  Additionally, SSA records found the Veteran was disabled beginning May 31, 2001 as a result of his affective disorder, anxiety disorder, COPD, degenerative arthritis, ankle, and left arm.   The Board notes the January 2013 private letter from Dr. C.R. indicating the Veteran would be unemployable due to his severe PTSD symptoms, that manifested with marked interference in daily, social, and occupational functioning, and impaired insight and judgment.  However, Dr. C.R. did not adequately address the Veteran’s own reports that his other psychiatric diagnoses in combination with nonservice-connected disabilities produced unemployability.  The Veteran was not service connected for any disorders of related to anxiety, affective disorder, degenerative arthritis, ankle, or left arm at any time prior to October 24, 2005.  As noted in the advisory opinion from the Director of Compensation Service, the Veteran was not shown to have hospitalizations, and that his sleep apnea did not impact his ability to work.  Additionally, the Director of Compensation Service noted that the Veteran had some occupational impairment as a result of his PTSD, but that the Veteran generally functioned satisfactorily and thus, PTSD did not preclude employment.  Further, the Director of Compensation found the service-connected disabilities did not present an exception disability picture warranting an extraschedular TDIU prior to October 24, 2005.  

The Board also notes the February 2015 letter from Dr. A.A. indicating the Veteran’s cardiomyopathy, PTSD, diabetes, bilateral peripheral vascular disease of the lower extremities, hypothyroidism, erectile dysfunction, and bilateral peripheral neuropathy of the lower extremities rendered it “extremely difficult for him to ambulate to work or maintain adequate mental functioning to maintain any type of employment.”  Further, a July 2016 VA examiner opined the Veteran was not able to work due to the pain his feet, knees, psychiatric symptoms, cardiomyopathy, back pain, neuropathy, daytime fatigue, and diabetes.  Additionally, a July 2017 VA examiner found the Veteran could not work due to his chronic knee pain, shortness of breath from COPD complications, being easily fatigued from diabetes, and balance issues due to neuropathy, as well as his psychiatric symptoms.  However, the February 2015 letter from Dr. A.A., and the July 2016 and July 2017 VA opinions considered the effects of the Veteran’s nonservice-connected disabilities when rendering their opinions regarding employability, and did not address only his service-connected disabilities of obstructive sleep apnea with COPD and PTSD.  

The Board notes the arguments of the Veteran’s attorney that a TDIU prior to October 24, 2005, to include as on an extraschedular basis, is warranted because of the impairment caused by his PTSD and peripheral vascular disease.  The Board also notes her arguments that the Veteran is entitled to a TDIU beginning June 26, 2004 because that is the date service connection for PTSD was granted.  However, the limitation noted by the medical evidence above shows the Veteran had impairment to his employability from a number of nonservice-connected disabilities, and nonservice-connected psychiatric disabilities, as well as his PTSD and COPD.  Additionally, as discussed above, service connection for peripheral vascular disease was not in effect prior to October 24, 2005.  Moreover, the Veteran’s impairments due to his PTSD are reflected in the rating assigned.  In this regard, the Board finds that the Veteran’s PTSD and COPD result in some impairment in occupational functioning prior to October 24, 2005, but such do not render him unable to secure or follow a substantially gainful occupation.  This argument is therefore without merit.

Additionally, the Board acknowledges the SSA found the Veteran to be totally and permanently disabled (under Social Security Laws and Regulations) as of May 31, 2001 due to a combination of physical and psychiatric disorders.  The Board is not bound by SSA’s findings.  See Collier v. Derwinski, 1 Vet. App. 413, 417 (1991) (VA is not bound by the findings of disability and/or unemployability made by other agencies, including SSA); see also Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while a SSA decision is not controlling for purposes of VA adjudication, it is “pertinent” to a veteran’s claim).  In this regard, the Board notes that service connection is not in effect for an affective disorder, anxiety disorder, COPD, degenerative arthritis, an ankle disorder, and a left arm disorder at any time and the SSA determination considered multiple disabilities for which service connection has not been granted.

The Board acknowledges that the Veteran was limited in his ability to perform some physical employment; however, there is no indication from the record that the Veteran was precluded from employment solely as a result of his service connected disabilities.  While the fact that nonservice connected disabilities also impacted the Veteran’s ability to work does not preclude a finding that the Veteran would have also been unable to work solely as the result of a service connected disability, that is not the case for this Veteran.  It cannot be determined with any certainty that the Veteran would not have been able to successfully continue working if he was only impaired by his service connected PTSD and COPD alone.

Ultimately, the question is whether the Veteran is capable of performing the physical and mental acts required by employment.  Here, the evidence is not sufficient to show that the Veteran could not have performed the physical and mental acts required by employment prior to October 24, 2005 due to his service connected disabilities.  The Board has considered the combined effects of the disabilities.  However, the most probative evidence shows no more than a mild to moderate impact on employability from his PTSD and COPD alone.  Consequently, the preponderance of the evidence is against a finding of unemployability and the claim for a TDIU, to include as on an extraschedular basis, prior to October 24, 2005, and the claim must be denied. Accordingly, the Board finds that the preponderance of the evidence is against the claim and entitlement to a TDIU, to include on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) for the appeal period prior to October 24, 2005 is not warranted.  38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra.  

 

 

KRISTY L. ZADORA

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	Mariah N. Sim, 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.