Citation Nr: 21010921 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 17-18 920 DATE: February 26, 2021 ORDER A rating in excess of 30 percent for nephropathy with neurogenic bladder and voiding dysfunction is denied. A rating in excess of 40 percent for peripheral neuropathy (PN) for right upper extremity (RUE) is denied. A rating in excess of 20 percent for PN of the left upper extremity (LUE) is denied. A rating in excess of 20 percent for PN of the right lower extremity (RLE) is denied. A rating in excess of 20 percent for PN of the left lower extremity (LLE) is granted. A total disability rating based on individual unemployability (TDIU) is granted. FINDINGS OF FACT 1. The Veteran served on active duty from August 1966 to August 1968, to include service in the Republic of Vietnam; he has been 100 percent disabled since October 2018. 2. For the entire appeal period, the kidney disability was found to be largely resolved, without renal dysfunction, or voiding dysfunction requiring the use of absorbent materials 3. RUE PN has been manifested by subjective complaints of pain and numbness; objective findings show no more than moderate incomplete paralysis of the right upper extremity. 4. LUE PN has been manifested by subjective complaints of pain and numbness; objective findings show no more than mild incomplete paralysis of the left upper extremity. 5. Bilateral lower extremity PN has been manifested by complaints of pain and numbness; objective findings show no more than moderate incomplete paralysis of both lower extremities. 6. The Veteran’s service-connected disabilities preclude him from securing and maintaining gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for nephropathy with neurogenic bladder and voiding dysfunction have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 4.1, 4.3, 4.31, 4.59, 4.7, 4.71a, Diagnostic Codes (DCs) 7541-7542 (2020). 2. The criteria for a rating in excess of 40 percent for PN of the RUE have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, DC 8513 (2020). 3. The criteria for a rating in excess of 20 percent for PN of the LUE have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, DC 8513 (2020). 4. The criteria for a rating in excess of 20 percent for PN of the RLE have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, DC 8520 (2020). 5. The criteria for a rating in excess of 20 percent for PN of the LLE have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. § 4.71a, DC 8520 (2020). 6. The criteria for a TDIU have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.340, 3.341, 4.16 (2020). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In April 2020, the Veteran testified before the undersigned Veterans Law Judge. A copy of the transcript has been associated with the claims file. In July 2020, the Board remanded the appeal for additional development. The case has now been returned to the Board for further appellate action. As an initial matter, the Board notes that upon further review of the issue, the appeal for entitlement to a TDIU was improperly framed in the July 2020 Board decision. Specifically, it was framed as entitlement to an earlier effective date for a TDIU grant. However, TDIU has not been granted by the AOJ or the Board at any point. Instead, the Veteran is in receipt of a 100 percent combined rating. Thus, the Board has properly styled the issue as entitlement to a TDIU. Increased Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Nephropathy with Neurogenic Bladder & Voiding Dysfunction The Veteran’s nephropathy with neurogenic bladder and voiding dysfunction has been rated as 30 percent disabling, by analogy under DCs 7541-7542, which account for both renal and voiding dysfunction. In order to warrant a higher rating under either DC, the medical evidence must show: • renal dysfunction with constant albuminuria with some edema; or definite decrease in kidney function; or, hypertension at least 40 percent disabling under 7101 (60 percent under DC 7541); or, • voiding dysfunction requiring the wearing of absorbent materials which must be changed 2 to 4 times per day (40 percent under DC 7542). Importantly, hypertension has been tied into the service-connected diabetes mellitus (DM), which is rated as 20 percent disabling. In order for hypertension to be rated at 40 percent, it must be shown that the diastolic pressure is predominantly 120 or more. Turning to the relevant medical evidence, the Veteran was afforded two separate examinations for both renal and voiding dysfunctions in February 2017. At the February 2017 renal dysfunction VA examination, the examiner found no evidence of a kidney disorder, and no attributable symptomatology. At the February 2017 voiding dysfunction VA examination, the Veteran was found to have a voiding dysfunction which was in remission. The Veteran reported that his symptoms began in 2009, with problems of frequency and nocturia and that it had remained largely the same since onset. The examiner found that there was no evidence of a voiding dysfunction, leakage, use of an appliance or absorbent materials. There were also no symptoms or findings attributable to a voiding dysfunction. The examiner also found that for VA-established diagnosis of voiding dysfunction, there was no change and the diagnosis was in remission, and that it did not affect the Veteran ‘s ability to function in an occupational environment. At a September 2020 VA bladder examination, the examiner diagnosed diabetic neurogenic bladder and voiding dysfunction. The Veteran reported urinary frequency and urgency since 2010. He noted gradual onset of urinary frequency, urgency and nocturia. He denied any dysuria, frequent urinary tract infections, or incontinence. The examiner found that the Veteran’s condition had improved since onset. The examiner noted that it did not cause urine leakage, the use of absorbent material or use of an appliance. The examiner found that it caused daytime voiding intervals between 2 and 3 hours, and nighttime awakenings to void 2 times. At the September 2020 kidney VA examination, the examiner found that the Veteran had diabetic nephropathy which was resolved without medication. The symptoms consisted of urinary frequency and urgency, but the Veteran denied any hematuria. Upon examination, the examiner found no evidence of renal dysfunction, to include albuminuria, or decreases in kidney function. There was otherwise no evidence of any symptomatology reasonably attributable to renal dysfunction. Based on the above, the kidney disability does not more closely approximate the criteria for a rating in excess of 30 percent at any time during the appeal period. In this regard, despite complaints of worsening by the Veteran, his renal and voiding dysfunctions were both found to be improved or resolved by the examiners. Importantly, no examiner found any renal dysfunction with constant albuminuria with some edema; or definite decrease in kidney function, or any voiding dysfunction which required the use of absorbent materials. Instead, it was found that his nephropathy had resolved, without symptomatology and without medication. Next, his voiding dysfunction was found to cause frequency, but no leakage which required the use of any materials. Likewise, relevant VA and private treatment records were reviewed but did not reflect any symptomatology which would justify a higher rating during the appeal period. As none of these manifestations were present during the appeal period, a rating in excess of 30 percent was not warranted. Bilateral Upper Extremity Peripheral Neuropathy For the entire period on appeal, the RUE PN has been rated as 40 percent disabling under DC 8513. In order to warrant a higher rating, the medical evidence must show severe incomplete paralysis as this is his major side. The LUE PN was also rated under DC 8513, but as 20 percent disabling for the entire appeal period. In order to warrant a higher rating as a minor joint, the medical evidence must show moderate incomplete paralysis. Turning to the medical evidence, at a July 2016 VA examination, the Veteran noted that his condition began with numbness and tingling. He also stated that it was more noticeable with strenuous activities. He noted that his upper extremity disabilities had worsened over the past three years, with tingling and intermittent pain on his hands as though they were asleep. He described mild intermittent pain, and moderate paresthesias or dysesthesias of his upper extremities. Upon examination, he was found to have mild incomplete paralysis of the radial, ulnar and median nerves on the right side. His upper radicular group was normal, to include his musculocutaneous, long thoracic nerves and circumflex nerves. On the left side, the Veteran was found to have mild incomplete paralysis of the radial, median, and ulnar nerves. His musculocutaneous, circumflex, long thoracic, and upper radicular groups were all normal. At a February 2017 VA examination, the Veteran described tingling and numbness of the upper arms which later involved his lower arm and hand, with worsening tingling. He once again stated that his right side was dominant, and reported mild intermittent pain, numbness, and paresthesias/dysesthesias bilaterally. Upon examination, he was found to have moderate incomplete paralysis of the median and ulnar nerves. In his left upper extremity, he was found to have mild incomplete paralysis of the median and ulnar nerves. At an October 2018 VA examination, he reported pain, numbness, and pins and needles in his arms. He also reported moderate intermittent pain, with severe numbness and severe paresthesias. Upon examination, he was found to have mild incomplete paralysis of the radial, median, and ulnar nerves on the right side. In his left upper extremity, he was found to have milder incomplete paralysis of the radial, median and ulnar nerves. In a September 2020 VA examination, the Veteran reported numbness and tingling, but stated that his symptoms had stayed largely the same. He denied any weakness or loss of fine motor skills in his hands, and only mild numbness. Upon examination, the radial, long thoracic, and upper radicular nerves were found to be normal bilaterally, and mild incomplete paralysis was noted in the median and ulnar nerves bilaterally in the upper extremities. Medical records throughout the appeal period similarly fail to note any objective evidence of severe paralysis of the RUE or moderate paralysis of LUE due to PN. Taken together, the medical evidence fails to show symptomatology of more than moderate neuropathy in the RUE or mild neuropathy in the LUE at any point during the appeal period. Accordingly, the medical evidence weighs against ratings in excess of 40 percent for RUE and 20 percent for LUE PN. Bilateral Lower Extremity Peripheral Neuropathy For the entire period on appeal, the Veteran’s bilateral lower extremity PN has been rated as 20 percent for moderate incomplete paralysis of the sciatic nerve under DC 8520. In order to warrant a higher rating for either extremity, the medical evidence must a moderately severe incomplete paralysis of the sciatic nerve. All relevant diagnostic codes will be considered. Turning to the medical evidence, at a July 2016 VA examination, the Veteran stated that his symptoms began in 1990, with numbness and tingling of the legs and feet. He stated it was more noticeable with strenuous activities, and that it had worsened over time. He reported symptoms of moderate paresthesias and numbness of the bilateral lower extremities. Upon examination, he was noted to have moderate incomplete paralysis of the bilateral lower extremities. All other lower extremity nerves were found to be normal bilaterally. Muscle strength testing was also normal in both lower extremities. At a February 2017 VA examination, he stated that his condition had worsened bilaterally with increased numbness and tingling of his legs and feet. He also reported mild intermittent pain, and moderate paresthesias and numbness of the bilateral lower extremities. Upon examination, he was found to have mild incomplete paralysis of his right sciatic nerve, and moderate incomplete paralysis of his left sciatic nerve. There was no indication that he had any other paralysis in other lower extremity nerves. At an October 2018 VA examination, he complained of pain, numbness, and pins and needles sensation in his legs. He also reported moderate intermittent pain, and severe paresthesias and numbness in his lower extremities. The examiner noted that he had moderate incomplete paralysis of his bilateral sciatic nerves. There was also mild incomplete paralysis of the femoral nerve. There was no indication of paralysis in his other lower extremity nerves. At a September 2020 VA examination, the Veteran noted that his conditions had largely remained the same. He denied any pain, weakness, radicular symptoms, or gait abnormalities. Instead, he reported numbness and tingling in his feet, without balance problems or falls. He also reported mild numbness of the bilateral lower extremities. Upon examination, he was found to have mild incomplete paralysis of the bilateral sciatic nerves. All other lower extremity nerves were found to be normal and his muscle strength testing was also normal bilaterally. A review of treatment notes does not reflect complaints or symptoms more severe than those found in the VA examinations. Upon consideration of the totality of the medical evidence, the evidence does not support a rating higher than 20 percent for each lower extremity for PN. Specifically, the Veteran was never found to have more than moderate incomplete paralysis of the sciatic nerve. While mild incomplete paralysis of the femoral nerve was observed at the October 2018 VA examination, this would not justify a higher rating. Rather, the assigned 20 percent rating for each lower extremity contemplates both the mild and moderate incomplete paralysis of the bilateral sciatic nerves which have been observed in all VA examinations. A higher rating required moderately severe paralysis of the sciatic nerve, which was not reported during the appeal period. Therefore, the medical evidence does not support a higher rating for PN of either the right or left lower extremity. With regard to all appeals, the Board has also considered the Veteran’s lay statements that his disabilities are worse. While he is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of these disorders according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s nephropathy, and bilateral upper and lower PN has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and other clinical evidence) directly address the criteria under which these disabilities are evaluated. Moreover, as the examiners have the requisite medical expertise to render a medical opinion regarding the degree of impairment caused by the disabilities and had sufficient facts and data on which to base the conclusions, the Board affords the medical opinions great probative value. As such, these records are more probative than the Veteran’s subjective complaints of increased symptomatology. In sum, after a careful review of the evidence of record, the benefit of the doubt rule is not applicable, and the appeal is denied. TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16. Substantially gainful employment is that employment that is ordinarily followed by the nondisabled to earn their livelihoods with earnings common to the particular occupation in the community where the veteran resides. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment will not be considered substantially gainful employment. 38 C.F.R. § 4.16(a). A TDIU may be assigned, if the scheduler rating is less than total, when the disabled person is, in the judgment of the rating agency, 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 it is ratable at 60 percent or more, and that if there are two or more such disabilities at least one is ratable at 40 percent or more and the combined rating is 70 percent or more. 38 C.F.R. § 4.16(a). The central inquiry is whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran has been assigned a 100 percent schedular rating since October 1, 2018. Prior to that, he was assigned a combined 90 percent rating for the entirety of the appeal period. Specifically, he has been rated at 60 percent for coronary artery disease, 40 percent for PN of the RUE, 30 percent for diabetic nephropathy with voiding dysfunction, 20 percent for DM, 20 percent for PN of the LUE, RLE, and LLE, 10 percent for tinnitus, and 0 percent for hearing loss. As such, he met the schedular requirements for a TDIU under 38 C.F.R. § 4.16(a) for the entire appeal period. Turning to the evidence, the Veteran worked as a bus driver for 18 years until he stopped working in 2015. He repeatedly told VA examiners that he had to stop working due to his service-connected DM and associated PNs, as well as DM nephropathy. Specifically, at a March 2016 VA examination for DM, he reported that he had to stop working because he was taking insulin injections at least four times per day. A July 2016 VA examiner noted that the Veteran’s ability to work was impacted by DM and PN. The examiner noted that the Veteran had been a bus driver for several years, but he stopped driving because of DM. The examiner noted that the Veteran was not allowed to renew his license due to taking insulin. The examiner also found that he now had trouble driving because of his neuropathy. Additionally, an October 2018 VA examiner also found that his service-connected DM would impact his ability to work due to a need for frequent rest periods as due to generalized weakness and fatigue. A November 2018 VA examiner found that the Veteran’s voiding dysfunction due to his service-connected nephropathy would affect his ability to work as he could need frequent restroom breaks. The November 2018 VA examiner noted that the Veteran’s ability to work would be affected due to frequent rest periods needed due to generalized weakness and fatigue and that he would have trouble driving. After considering the totality of the evidence, the weight of the evidence supports a finding that the Veteran is unemployable, largely due to his service-connected DM and bilateral upper and lower extremity PN. In this regard, he completed three years of college, but worked as a bus driver for almost 20 years without variation in career. Examiners have opined that PN, DM, and nephropathy have largely precluded him from being able to drive properly, and requiring frequent rest and bathroom breaks, as well as breaks for insulin injections which caused difficulty in getting a license to drive a bus. Thus, TDIU is warranted and the appeal is granted. Finally, the Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record, for the Board’s consideration. See Doucette v. Shulkin, 28 Vet. App. 366, 369-370 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). L. HOWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Yacoub, 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.