Citation Nr: 21010946 Decision Date: 02/26/21 Archive Date: 02/26/21 DOCKET NO. 16-19 660 DATE: February 26, 2021 ORDER Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity is denied. Entitlement to a compensable rating for bilateral hearing loss is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), however, is granted. FINDINGS OF FACT 1. The peripheral neuropathy of the Veteran’s right lower extremity causes, at most, moderate incomplete paralysis of the affected nerve. 2. At worst, he has Level I hearing loss in his right ear and Level II in his left ear and has throughout the pendency of this appeal. 3. But his service-connected disabilities render him unable to obtain or maintain substantially gainful employment.   CONCLUSIONS OF LAW 1. The criteria are not met for entitlement to a disability rating greater than 20 percent for the peripheral neuropathy of the right lower extremity. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC/Code) 8521. 2. The criteria also are not met for entitlement to a compensable rating (meaning a rating higher than 0 percent) for the bilateral hearing loss. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, 4.86, DC 6100. 3. However, the criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1966 to April 1970. This appeal to the Board of Veterans’ Appeals (Board) is from an October 2015 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This case was previously before the Board in April 2020, at which time the claims were remanded back to the Agency of Original Jurisdiction (AOJ) for further development and consideration – including to obtain outstanding records pertinent to these claims from the Social Security Administration (SSA) and to have the Veteran reexamined to reassess the severity of his bilateral hearing loss. He also at the time had an additional claim pending for service connection for tinnitus. Those remand instructions since have been completed, as directed. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only “substantial” rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999).   Service connection for tinnitus was granted in a December 2020 rating decision, on remand. The Veteran also was awarded the highest possible schedular rating of 10 percent for this disease retroactively effective from July 16, 2015, so for the entirety of the period under review. See Smith v. Nicholson, 451 F.3d 1344 (Fed. Cir. 2006), citing 38 C.F.R. § 4.87, DC 6260 (explaining that no higher schedular rating is permissible for this disease, irrespective of whether unilateral, bilateral, or perceived as elsewhere in the head). This is perhaps why, since that entirely favorable decision, neither the Veteran nor his representative has appealed either that rating or effective date. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (explaining these “downstream” issues must be separately appealed). Thus, the claim concerning the tinnitus is no longer at issue. The Veteran’s attorney timely submitted a VA Form 20-0996, Decision Review Request: Higher Level Review (HLR), in response to the December 2020 Supplemental Statement of the Case (SSOC). On this form, it was indicated they wanted the issues of right lower extremity peripheral neuropathy, bilateral hearing loss, and TDIU adjudicated in the Appeals Modernization Act (AMA) HLR lane. However, on this form, the box “opt-in from SOC/SSOC” in Part III of the form was not checked. The RO requires that this box be checked in order to switch to the AMA appeals system and out of the legacy system. The Veteran’s attorney resubmitted VA Form 20-0996 in January 2021, but again the opt-in box was not checked. The RO consequently rejected the request to switch this appeal from legacy to adjudication under the AMA because of that defective filing. Therefore, adjudication of these claims will be under the legacy appeals system rather than under the AMA. Concerning the SSA records that were partly the reason for previously remanding these claims, this other Federal Agency notified VA in May and July 2020 that medical records for this Veteran do not exist, so further efforts to obtain them would be futile. See 38 C.F.R. § 3.159(c) and (e).   There are just a few other points also worth mentioning, with the December 2020 VA Form 20-0996, the Veteran’s attorney submitted a written statement, including a general objection to the competency of each VA examiner who has conducted a VA examination during the pendency of this appeal. The United States Court of Appeals for the Federal Circuit (Federal Circuit Court) has held that a Veteran is required to raise a specific challenge to the competency of a VA examiner before VA is required to respond with information about the qualifications of the examiner. See Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) and Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (finding that a Veteran is required to challenge a VA examiner's competence in the first instance). Neither the Veteran nor his attorney has raised a specific challenge to the professional medical competence or qualifications of the VA examiners who provided examination reports in this appeal. In other words, the appellant has not satisfied the requirement of raising a specific challenge to a VA examiner's competence in the first instance. As a result, VA is not required to support its decision in this appeal by presenting information about the examiner's qualifications. Id. Other Federal Circuit Court precedent also suggests that VA may rely upon the medical evidence in adjudicating the Veteran's currently appealed claims. In Bastien, an appellant challenged the qualifications of a VA physician to provide a medical expert opinion on the grounds that this physician lacked objectivity and/or independence because he was a VA employee. See Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010). Citing Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), the Federal Circuit Court in Bastien rejected the appellant's challenge to the qualifications of a VA physician and held instead that the law and regulations provide that VA "is explicitly and implicitly authorized to use its own employees as experts." See Bastien, 599 F.3d at 1307 (citing 38 U.S.C. §§ 5103A(d), 7109(a); 38 C.F.R. § 20.901). The Federal Circuit Court also held in Bastien that an appellant challenging the expertise of a VA physician must "set forth the specific reasons...that the expert is not qualified to give an opinion." Id. That has not happened in this case. Neither the Veteran nor his attorney has identified or submitted any evidence or argument that the VA examiners were not competent or lacked the professional medical training necessary to review the claims file, including the Veteran's service treatment records (STRs) and post-service VA and private treatment records, and provide competent opinions concerning the severity of his service-connected disabilities and their functional impact, the latter of which in turn would assist the Board is determining whether he is entitled to a TDIU. Moreover, as will be discussed, a TDIU is being granted rather than denied. The Federal Circuit Court noted in Rizzo that there was "no law or precedent suggesting that the Board must have first established [a VA examiner's] qualifications on the record before assigning his opinion probative value." See Rizzo, 580 F.3d at 1291-92. Instead, as the Federal Circuit Court held in Francway, although there is no longer a presumption of competence for VA examiners (as Rizzo previously was interpreted), a Veteran nevertheless is required to challenge a VA examiner's competence in the first instance before VA is required to present evidence of the examiner's professional qualifications in order to rebut this challenge. See Francway v. Wilkie, No. 2018-2136 (Fed. Cir. Oct. 15, 2019) (overruling, in relevant part, Rizzo v. Shinseki, 580 F.3d 1288 (Fed. Cir. 2009), and Bastien v. Shinseki, 599 F.3d 1301 (Fed. Cir. 2010) to the extent that those cases established a presumption of competence for VA examiners). It is presumed that VA follows a regular process that ordinarily results in the selection of a competent medical professional. Parks v. Shinseki, 716 F.3d 581, 585 (Fed. Cir. 2013) (citing Sickels v. Shinseki, 643 F.3d 1362, 1366 (Fed. Cir. 2011)). Accordingly, and as the Federal Circuit Court explained in Francway, if the Veteran does not meet the requirement to challenge a VA examiner's competence in the first instance, then VA is not required to prove any examiner's competence before relying on medical evidence obtained from the examiner in adjudicating the appeal. See Francway, No. 2018-2136. There has been no showing or even an allegation that the VA examiners who provided the medical evidence in this appeal were incompetent or did not report accurately what they found in their review of the claims file and personal evaluation of the Veteran. The Board also finds that the medical opinions obtained throughout the pendency of this appeal are adequate for evaluation purposes because they addressed fully the Veteran's contentions regarding his disabilities. Thus, the Board concludes that the argument presented by the Veteran's attorney regarding the adequacy of VA examinations does not have merit and is not reason to delay deciding this appeal. Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule), which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations 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. When evaluating the severity of a disability, it is essential the disability is considered in the context of its entire recorded history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). But if the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings, then separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings and is employed for initial or established ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In general, it is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. 1. Entitlement to a rating in excess of 20 percent for peripheral neuropathy of the right lower extremity Paralysis of the external popliteal nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8521. Under these criteria, mild incomplete paralysis is rated as 10-percent disabling. Moderate incomplete paralysis is rated as 20-percent disabling. Severe incomplete paralysis is rated as 30-percent disabling. Complete paralysis, consisting of foot drop and slight drooping of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of proximal phalanges of toes lost, abduction of the foot lost, adduction weakened, and anesthesia covers entire dorsum of foot and toes, is rated as 40-percent disabling. 38 C.F.R. § 4.124a. These descriptive words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. But regulations provide that ratings for peripheral neurological disorders are to be assigned based on the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given to loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at “Diseases of the Peripheral Nerves.” The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). The Veteran was scheduled for a VA examination of his lower extremity peripheral neuropathy in October 2015, however, he failed to attend that examination. The Veteran then underwent a VA examination in May 2016. He stated that his feet were very numb and have swelling, that he uses a cane for balance, and that he cannot walk long distances without stopping. The examiner observed the Veteran had no constant pain in his right lower extremity, but he did have intermittent moderate pain, severe paresthesias and/or dysesthesias, and severe numbness. He had full strength in his right lower extremity, decreased deep tendon reflexes, normal light touch testing in his knee and thigh, but light touch testing was absent in his ankle and lower leg, and in his foot and toes. Vibration sensation and cold sensation were absent, but there was no muscle atrophy. There were trophic changes – including shiny, hairless skin on his foot and ankle. Overall, the examiner found that the peripheral neuropathy of the Veteran’s right lower extremity amounted to “moderate” incomplete paralysis with an antalgic, wide gait and difficulty balancing. In July 2016, the Veteran submitted a private opinion from Dr. G.A. As part of this evaluation, the Veteran reported that he had numbness and tingling in his lower extremities and could not feel the floor. Upon examination, Dr. G.A. observed that the Veteran’s skin on his lower right extremity was waxy and shiny on his foot and ankle, and that he had “classic stocking anesthesia to mid/proximal calf.” Despite noting the “stocking anesthesia,” Dr. G.A. indicated the peripheral neuropathy of the Veteran’s right lower extremity was incomplete and moderate in nature. This is compatible with his existing 20 percent rating. See 38 C.F.R. § 4.124a, DC 8521. Based on the symptoms and impairment shown, the Board finds that the disability is primarily manifest by pain managed by medication, antalgic gait, numbness, trophic changes, and anesthesia. The Board also finds that the most probative evidence of record is against finding the disability is manifested by constant pain, muscle atrophy, or complete paralysis. The Board thus finds that the level of impairment is most analogous to “moderate” incomplete paralysis. 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 and resultantly already are being compensated. Therefore, a separate or higher rating under a different Diagnostic Code is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a rating in excess of 20 percent for the peripheral neuropathy of his right lower extremity. In denying any greater rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a compensable rating for bilateral hearing loss Evaluations of defective hearing range from 0 percent (noncompensable) to 100 percent based on organic impairment of hearing acuity as measured by the results of a controlled Maryland CNC speech discrimination test together with the average hearing threshold level measured by pure tone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 cycles per second (Hertz (Hz)). See 38 C.F.R. § 4.85, Diagnostic Code 6100. To evaluate the degree of disability from bilateral service-connected hearing loss, the Rating Schedule establishes 11 auditory hearing acuity levels designated from Level I for essentially normal hearing acuity through Level XI for profound deafness. 38 C.F.R. § 4.85, Tables VI and VII. An exceptional pattern of hearing impairment occurs when the pure tone threshold at each of the four specified frequencies (1000, 2000, 3000, and 4000 Hertz) is 55 decibels or more. 38 C.F.R. § 4.86(a). In that situation, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral. Further, when the average pure tone threshold is 30 decibels or less at 1000 Hertz, and 70 decibels or more at 2000 Hertz, the rating specialist will determine the Roman numeral designation for hearing impairment from either Table VI or Table VIA, whichever results in the higher numeral, and that numeral will then be elevated to the next higher numeral. 38 C.F.R. § 4.86(b). The Veteran was scheduled for a VA audiological examination in October 2015, however, he did not attend that examination. A May 2016 VA examination reveals that the Veteran reported no functional impairment due to his hearing loss but stated that he may be interested in using hearing aids in the future. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007). His Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: May 2016 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 20 45 60 75 50 96% LEFT 25 45 70 90 58 94% Applying the results to Table VI, the findings yield a numeric designation of Level I in the right ear and Level II in the left ear. Entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent, or noncompensable, disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 was not shown. The report of a more recent December 2020 VA examination, on remand, reveals the Veteran reported having trouble hearing at church and using closed captioning on the television. Further, the examiner noted the Veteran has trouble hearing speech in noisy environments. 38 C.F.R. § 4.10; Martinak v. Nicholson, 21 Vet. App. 447 (2007).   The Veteran’s Maryland CNC Word List speech recognition score and pure tone thresholds, in decibels, were as follows: December 2020 HERTZ 1000 2000 3000 4000 Avg CNC RIGHT 40 50 60 65 54 94% LEFT 35 60 70 90 64 94% Applying the results to Table VI, the findings again yield a numeric designation of Level I in the right ear and Level II in the left ear. So also, again, entering the resulting bilateral numeric designation of Level I for the right ear and Level II for the left ear to 38 C.F.R. § 4.85, Table VII, equates to a 0 percent disability rating under Diagnostic Code 6100. An exceptional pattern of hearing impairment under 38 C.F.R. § 4.86 again was not shown. While the December 2020 audiology examination results show the Veteran’s hearing loss has worsened, at least to some extent, it has not worsened to a compensable degree. Based on the results of those two hearing evaluations, also the other relevant evidence in the file, a compensable rating for the Veteran’s bilateral hearing loss is not warranted. The Board expressly acknowledges its consideration of the lay evidence of record when adjudicating this claim, including that the Veteran has difficulty hearing in noisy environments and hearing the television. He is competent to report difficulty with his hearing; however, disability ratings for hearing loss are derived from a mechanical (i.e., nondiscretionary) application of the Rating Schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992).   The rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. The functional impact that the Veteran describes is contemplated by the rating criteria. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). His main complaint is reduced hearing acuity and clarity, which is what is contemplated in the rating assigned. See Rossy v. Shulkin, 29 Vet. App. 142, 145 (2017). Accordingly, the preponderance of the most probative evidence is against this claim of entitlement to a compensable rating for the hearing loss. In denying any greater rating, the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, this doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). TDIU 3. Entitlement to a TDIU The Veteran contends that he is entitled to a TDIU because his service-connected disabilities preclude him from obtaining or maintaining substantially gainful employment. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows the Veteran is precluded from obtaining or maintaining any substantially gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. Neither the Veteran's nonservice-connected disabilities nor advancing age may be considered. 38 C.F.R. §§ 3.340, 3.341, 4.16.   A total rating for compensation purposes may be assigned where the schedular rating is less than total, when it is found that a Veteran is unable to obtain or follow a substantially gainful occupation as a result of service connected disabilities and has a single service-connected disability ratable at 60 percent or more or two or more service-connected disabilities when one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability or disabilities to bring the combined rating to 70 percent or more. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16(a). For the above purpose of one 60 percent disability, or one 40 percent disability in combination, the following disabilities will be considered as one disability: (1) disabilities of one or both upper extremities, or of one or both lower extremities, including the bilateral factor, if applicable, (2) disabilities resulting from common etiology or a single accident, (3) disabilities affecting a single body system, e.g. orthopedic, digestive, respiratory, cardiovascular-renal, neuropsychiatric, (4) multiple injuries incurred in action, or (5) multiple disabilities incurred as a prisoner of war. See 38 C.F.R. § 4.16(a). The Veteran’s service-connected disabilities meet the schedular rating requirements for a TDIU that are defined by § 4.16(a). Throughout the appeal period, he has had the following service-connected disabilities and corresponding ratings for them: unspecified anxiety disorder – rated as 50-percent disabling; peripheral neuropathy of the left lower extremity – rated as 30-percent disabling; type II diabetes mellitus and associated peripheral neuropathy of his right lower extremity – each rated as 20-percent disabling; tinnitus – rated as 10-percent disabling; and bilateral hearing loss – rated as 0-percent disabling (so noncompensable). These ratings combine to 80 percent. See 38 C.F.R. § 4.25. The remaining question, then, is whether these service-connected disabilities preclude the Veteran from obtaining and maintaining employment that could be considered substantially gainful versus just marginal in comparison. See 38 C.F.R. §§ 4.16(a), 4.18. The fact that a Veteran is unemployed or has difficulty finding employment does not alone warrant assignment of a TDIU, as a high rating itself establishes that his disability makes it difficult for him to obtain and maintain employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Rather, the evidence must show that he is incapable "of performing the physical and mental acts required" to be employed. Id. at 363. Thus, the central question is whether a Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a Veteran can find employment. Id. And, to reiterate, consideration may be given to his level of education, training, and special work experience, but not to his age or to impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. In Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013), the Federal Circuit Court held that, when a Veteran is claiming entitlement to a TDIU based upon the combined effects of multiple service-connected disabilities, VA's duty to assist "does not require obtaining a single medical opinion regarding the combined impact of all service-connected disabilities." See also Smith v. Shinseki, 647 F.3d 1380, 1385-86 (Fed. Cir. 2011) (VA is not required to obtain an industrial survey from a vocational expert before making a TDIU determination but may choose to do so in an appropriate case). Although VA must give full consideration, per 38 C.F.R. § 4.15, to "the effect of combinations of disability," VA regulations place responsibility for the ultimate TDIU determination on VA adjudicators, not a medical examiner's opinion. Geib, 733 F.3d at 1354; see also 38 C.F.R. § 4.16(a). The ultimate issue of whether TDIU should be awarded is not a medical issue, but rather is a determination for the VA adjudicator. See Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (ultimate question of whether a veteran is capable of substantial gainful employment is not a medical one; that determination is for the adjudicator), rev'd on other grounds sub nom, Moore v. Shinseki, 555 F.3d 1369 (Fed. Cir. 2009). In July 2015, the Veteran submitted a TDIU application (VA Form 21-8940), indicating he had last worked in 2012 as a real estate agent and that he had one year of college education completed prior to his entry into service.   During his May 2016 VA audiology examination, the Veteran denied that his hearing loss or tinnitus caused any functional impairment. A May 2016 VA examination for his peripheral neuropathy, though, shows the examiner opined that the peripheral neuropathy of the Veteran’s lower extremities impacts his ability to work due to difficulty walking and balance problems. Significant numbness in his lower extremities also was noted. In July 2016, the Veteran submitted the report of a private psychological evaluation done by Dr. F.S. in June 2016, so the prior month. During that mental status evaluation, the Veteran reported obtaining his real estate license in 1971 and working as a real estate agent until he retired three years prior, so in 2013. This means he worked as a real estate agent for over 40 years. He stated that he was very successful as a real estate agent but “could not handle it anymore” because “he became very easily frustrated, very impatient with the clients.” He added that he easily becomes annoyed with people, so he tries to avoid them, and this also prompted his retirement from real estate. Dr. F.S. ultimately went on to opine that the Veteran’s mental disorder (which this doctor mistakenly referred to as posttraumatic stress disorder (PTSD) rather than unspecified anxiety disorder) precludes him from engaging in any substantial or gainful employment. In September 2016, the Veteran’s attorney submitted a lengthy statement concerning his compensation claims, including his TDIU claim. In this letter, the attorney references multiple buddy statements submitted in April 2015 (so prior to the July 2015 TDIU application). A buddy statement from J.D. stated that he often spoke with the Veteran about work related issues caused by his anger. A buddy statement from D.R. noted that he had known the Veteran since 2002 and that he had not known him to have stable employment since 2002. However, this directly conflicts with the Veteran’s multiple statements relating that he worked as a real estate agent until 2012. Finally, a buddy statement from W.T. indicated that he had witnessed the Veteran’s anxiety get worse over time.   During a September 2016 Decision Review Officer (DRO) hearing at the RO, the Veteran stated that he had trouble working as a real estate agent due to his anxiety, but that his peripheral neuropathy of his lower extremities also caused him trouble in showing houses, as the numbness and pain caused by this other disability precluded him from walking longer than five or ten minutes. He also testified that he must elevate his feet, on average, four hours per day to alleviate swelling due to his peripheral neuropathy. In October 2017, the Veteran submitted a private vocational analysis. This analysis ultimately found that his service-connected disabilities prohibit him from participating not only in real estate, but also “in any work in the local or national economy in any substantial way.” The vocational specialist noted that the Veteran’s chosen profession, real estate, requires “a helpful, approachable personality with the ability to establish and maintain relationships as an integral ingredient of success.” Further, he stated that “[a]bsent of the requisite social ability combined with weekly panic attacks, daily memory issues and disturbance in motivation a person will not be capable of utilizing acquired skills to participate in the past work or any other job that may relate to this skill set from which to transfer.” This vocational specialist further commented that the peripheral neuropathy of the Veteran’s lower extremities impacts his ability to work. The December 2020 VA audiological examination since done, on remand, additionally found that the Veteran’s service-connected hearing loss impacts his functional ability because he has trouble hearing speech in noisy environments.   Ultimately, the Board finds that, while the peripheral neuropathy of the Veteran’s lower extremities has not manifested as complete paralysis, his incomplete paralysis causes him numbness, prevents him from walking more than 10 minutes, and has greatly impacted his ability to walk. Additionally, his service-connected unspecified anxiety disorder has caused him trouble in interacting with people, including especially clients when he was working as a real estate agent, which at least partially led to his retirement. Certainly, then, when resolving all reasonable doubt in his favor, his service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment and, thus, he is entitled to a TDIU. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Pak 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.