Citation Nr: 21014023 Decision Date: 03/11/21 Archive Date: 03/11/21 DOCKET NO. 18-35 564 DATE: March 11, 2021 ORDER Entitlement to a rating in excess of 10 percent prior to January 6, 2021, and 40 percent thereafter, for right lower extremity peripheral neuropathy is denied. Entitlement to a rating in excess of 10 percent prior to January 6, 2021, and 40 percent thereafter, for left lower extremity peripheral neuropathy is denied. Entitlement to a total disability based upon individual unemployability (TDIU) prior to January 6, 2021 is denied. FINDINGS OF FACT 1. The Veteran’s right lower extremity peripheral neuropathy is manifest by no more than mild incomplete paralysis prior to January 6, 2021, and moderately severe incomplete paralysis thereafter. 2. The Veteran’s left lower extremity peripheral neuropathy is manifest by no more than mild incomplete paralysis prior to January 6, 2021, and moderately severe incomplete paralysis thereafter. 3. Prior to January 6, 2021, the Veteran’s service-connected disabilities have not been shown to preclude him from obtaining or maintaining substantially gainful employment CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent prior to January 6, 2021, and 40 percent thereafter, for right lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 2. The criteria for a disability rating in excess of 10 percent prior to January 6, 2021, and 40 percent thereafter, for left lower extremity diabetic peripheral neuropathy have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 3. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from August 1965 to June 1968. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In November 2020, the Board remanded these claims for additional development. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900. 38 U.S.C. § 7107 (a)(2). Increased Rating 1. Entitlement to an increased rating for right lower extremity peripheral neuropathy 2. Entitlement to an increased rating for left lower extremity peripheral neuropathy The Veteran seeks a higher rating for lower extremity peripheral neuropathy. In the July 2015 rating decision on appeal, the RO continued a 10 percent disability rating for lower extremity peripheral neuropathy. In a January 2021 rating decision, the RO increased the disability rating for peripheral neuropathy of both lower extremities to 40 percent effective January 6, 2021. Disability ratings are determined by application of the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Paralysis of the sciatic nerve is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.124a, Diagnostic Code 8520. (Neuritis and neuralgia of that group are evaluated under Diagnostic Codes 8620 and 8720.). Under these criteria, mild incomplete paralysis is rated as 10 percent disabling. Moderate incomplete paralysis is rated as 20 percent disabling. Moderately severe incomplete paralysis is rated as 40 percent disabling. Severe incomplete paralysis, with marked muscular atrophy is rated as 60 percent disabling. Complete paralysis, with the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost is rated as 80 percent disabling. 38 C.F.R. § 4.124a. The words “mild,” “moderate,” and “severe” as used in the various Diagnostic Codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for 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 maximum rating which may be assigned for neuritis not characterized by organic changes will be moderately severe incomplete paralysis for sciatic nerve involvement. See 38 C.F.R. § 4.123. The Veteran underwent a VA examination in April 2015. The examiner noted symptoms of mild bilateral paresthesias or dysesthesias, and mild bilateral numbness. Motor strength was 5/5. Light touch was decreased in the Veteran’s foot and toes bilaterally. The examiner assessed mild incomplete paralysis of the sciatic nerve bilaterally. No functional impact was indicated. VA treatment records reveal the Veteran reported that he gets burning and tingling in his feet. A July 2019 podiatry note indicated burning and tingling in his feet. Physical examination showed absent epicritic sensation bilaterally, intact vibratory sensation bilaterally. No muscle atrophy was noted. Treatment providers assessed diabetes with neuropathy. The Veteran underwent a VA examination in January 2021. The Veteran reported decreased sensation and strength in the legs and feet, but denied tingling and sharp pain. The examiner noted symptoms of mild bilateral numbness. Motor strength in the lower extremities was 3/5 bilaterally. Light touch testing showed decreased sensation of the thigh, knee, lower leg, and ankle. Trophic changes of hair loss and smooth skin were noted in the legs and feet. No muscle atrophy was noted. The examiner assessed moderate incomplete paralysis bilaterally. Prior to January 6, 2021, medical records reveal mild paresthesia numbness. At the April 2015 VA examination, the Veteran reported decreased sensation, which was consistent with his complaints of burning and tingling in the VA treatment records. Physical examination similarly confirmed decreased light touch. The examiner did not note impairment of motor functioning, trophic changes, loss of reflexes, or muscle atrophy. Since January 6, 2021, VA examination findings indicate impairment of motor function, reduced strength, and trophic changes, in addition to the previous symptoms of pain, paresthesias, and numbness noted in earlier treatment records. At the January 2021 VA examination, the Veteran reported decreased strength and sensation in his legs and feet. No significant gait or ambulation difficulty was reported by the Veteran, though the Veteran also reported that he used a cane to help prevent falls. Trophic changes, specifically smooth and hairless skin, was also observed on examination. Motor strength was reduced, reflexes remained intact, and no muscle atrophy was observed. Throughout the appeal period, the record is silent for positive findings related to muscle atrophy or complete paralysis. Physical examination by both VA examiners did not note muscle atrophy, or complete paralysis of the sciatic nerve. Neither does the VA treatment or podiatry notes of record indicate muscle atrophy or exam findings suggestive of complete paralysis. Based on the above, the Board finds that prior to January 6, 2021 the disability is primarily manifested by sensory disturbance, including decreased sensation, numbness, and paresthesias. The level of impairment is most analogous to mild incomplete paralysis. The probative evidence of record is against a finding that the disability is manifest by greater severity which would reasonably be demonstrated by evidence of impaired motor functions, loss of reflexes, muscle atrophy, or a greater degree of paralysis. The Board finds the 2015 VA examiner’s assessment, based on review of the claims file and clinical observations, that the severity of the incomplete paralysis of the sciatic nerve was of a mild nature. Similarly, the VA treatment notes reveal persistent complaints of pain and tingling, but do not clearly indicate reduced motor strength, trophic changes, or impaired motor functioning. Incomplete paralysis of the sciatic nerve of a mild nature is consistent with the current 10 percent ratings in each lower extremity prior to January 6, 2021. Since January 6, 2021 the disability is primarily manifest by impairment of motor functions, trophic changes, and sensory disturbance. The Board’s review of the probative evidence of record is against a finding that the disability is manifest by loss of reflexes, muscle atrophy, complete paralysis. The 2019 VA examiner’s assessment, that based on review of the claims file and clinical observations the severity of the incomplete paralysis of the sciatic nerve was of a moderate nature, is persuasive. The Board thus finds that the level of impairment is most analogous to moderately severe incomplete paralysis. Incomplete paralysis of the sciatic nerve of a moderately severe nature is consistent with the current 40 percent ratings in each lower extremity beginning January 6, 2021. 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 is not warranted. The benefit of the doubt doctrine was considered in the decision as to whether higher initial ratings are warranted. However, as the preponderance of the evidence is against the claim, initial ratings in excess of 10 percent prior to October 30, 2019; and 40 percent thereafter for lower extremity diabetic neuropathy in each of the lower extremities, the appeal is denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 3. Entitlement to a total disability based upon individual unemployability (TDIU) The Veteran contends that his service-connected disabilities precluded his ability to maintain substantial gainful employment. The issue of entitlement to a TDIU was raised by the record and was an implied part of the Veteran’s claim for a higher evaluation for diabetes mellitus and peripheral neuropathy. See Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the appeal period stems from the claim for an increased rating for received in March 2015. Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. If the schedular rating is less than total, a total disability evaluation can be assigned based on individual unemployability if the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disability provided that if there is only one such disability, this disability shall be ratable at 60 percent or more; 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). 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, 529 (1993). Consideration may be given to the Veteran’s level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service-connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. The Court has held the phrase “substantially gainful employment” has an economic component and a non-economic component. Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). “The economic component simply means an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person.” Id. The noneconomic component goes to the veteran’s individualized ability to secure and follow substantially gainful employment. Ray, 31 Vet. App. at 73. Attention must be given to the veteran’s history, education, skill, and training; whether the veteran has the physical ability (both exertional and non-exertional) to perform the type of activities (e.g., sedentary, light, medium, heavy, or very heavy); and whether the veteran has the mental ability to perform the activities required by the occupation at issue. Id. The Veteran is currently service-connected for: diabetic nephropathy with hypertension (rated 30 percent from February 16, 2007, and 60 percent from January 10, 2017), right lower extremity peripheral neuropathy (rated 10 percent from February 16, 2007 and 40 percent from January 6, 2021), left lower extremity peripheral neuropathy (rated 10 percent from February 16, 2007 and 40 percent from January 6, 2021), coronary artery disease (rated 100 percent from July 21, 2014, and 30 percent from October 1, 2014), diabetes mellitus (rated 20 percent from February 16, 2007), bilateral hearing loss (rated noncompensable from June 29, 1968 and 20 percent from August 23, 2017), right forearm gunshot wound (rated 10 percent from March 21, 1972), right frontal calcification and frontal bone defect (rated noncompensable from June 29, 1968), shrapnel in left eye (rated noncompensable from March 30, 2015), and scar, status post coronary artery bypass (rated noncompensable from June 9, 2018). As relevant to the appeal, his combined disability evaluation is 70 percent from October 1, 2014; 80 percent from January 10, 2017; and 90 percent from August 23, 2017. The Board has considered the Veteran’s service-connected diabetes and its associated nephropathy and neuropathy complications as a single disability under 38 C.F.R. § 4.16 (a). Thus, the Veteran meets the schedular threshold for a TDIU for the appeal period in question. 38 C.F.R. § 4.16 (a). On a VA Form 21-8940 completed by the Veteran in January 2018, he reported that he had a high school education and had last worked as a cable television system technician in 2008. The Veteran reported coronary artery disease, diabetic nephropathy, and hearing loss as the disabilities that precluded him from securing or following substantially gainful employment. The Veteran was afforded a VA examination for his heart condition in November 2014. The examiner diagnosed coronary artery disease. She noted symptoms of dyspnea and fatigue. She opined that the Veteran’s heart condition does not impact his ability to work. The Veteran was afforded a VA examination for diabetes in April 2015. The examiner noted symptoms of diabetic nephropathy, hypertension, and neuropathy. She opined that the Veterans symptoms do not impact his ability to work. The Veteran was afforded a VA examination for coronary artery disease in February 2018. The Veteran reported a history of coronary bypass surgery. The Veteran reported shortness of breath. The examiner noted that the Veteran’s condition was stable, with no evidence of ischemia. She concluded that the Veteran’s heart disease did not impose any functional limitations that would impair his ability to secure and maintain gainful employment. The Veteran was afforded a VA examination for hearing loss in February 2018. The Veteran reported difficulty hearing and understanding speech, especially in crowds and in background noise. He indicated that he has to ask people to repeat themselves. The Veteran was afforded a VA examination for his eye condition in December 2020. The examiner determined that the Veteran’s visual field loss would hinder vision tasks such as driving and near related tasks such as using computers. After review of the evidence, the Board finds that a TDIU prior to January 6, 2021 is not warranted. In reaching this determination, the Board has considered both the economic and non-economic components that pertain to a determination as to whether the Veteran in this case is capable of securing and following substantially gainful employment that is consistent with his history, education, skill, and training. Regarding the economic component, the VA Form 21-8940 shows the Veteran last worked as a television cable technician in 2008. There is no evidence of employment for the period on appeal based on the information available. Regarding the non-economic component, the evidence demonstrates that the Veteran has the physical and mental capabilities to engage in substantially gainful employment. That is, he can perform the activities that would be required by the type of occupations available to him based on his education, training and past work experience. Regarding the Veteran’s mental ability to work, none of his service-connected disabilities are shown to preclude employment in this regard. VA treatment notes indicates that the Veteran may experience episodes of hypoglycemia if his blood sugars are not appropriately self-monitored and controlled. However, the Board finds no evidence that the Veteran would be unable to perform the mental tasks needed to complete a typical workday if he monitors his condition as he knows to do. Regarding his physical ability to work, VA examiners determined the service-connected coronary artery disease, diabetic nephropathy, and hypertension have no impact on the Veteran’s ability to work. The Board does note, however, that the Veteran noted shortness of breath that may be related to his coronary artery disease. The Veteran’s service-connected eye condition and hearing loss are the two conditions that would reasonably impact his ability to perform physical activities. As noted, the hearing loss may limit the Veteran’s ability to hear and understand conversations, especially in noisy environments. The eye condition may limit the Veteran’s visual field loss and could impact tasks such as driving or using the computer. The Board finds that the Veteran’s service-connected coronary artery disease, when considered individually and collectively with his other service-connected disabilities, does not result in functional impairment that renders him unable to secure or maintain a substantially gainful occupation consistent with his educational and vocational history prior to January 6, 2021. Despite the physical symptoms the Veteran experiences, the evidence suggests that he still would be able to perform the physical aspects of the type of employment consistent with his education and occupational background. The Veteran has work experience and training as a cable television technician. There is no reason he cannot work in similar roles in occupational settings as long as they do not involve strenuous physical labor, visual field demands, hearing in noisy environments, and related activities. For instance, he could secure and maintain substantially gainful employment in positions in a general office-based setting, customer service, light custodial work, or in entry level administrative positions. He would be able to monitor his sugars, self-treat with glucose tablets, and have a meal to counteract the symptoms while at work. He would also be able to sit as needed and limit the time on his feet, and use his ambulation assistive devices, thus limiting any falls and/or stumbling due to neuropathy in the lower extremities. Moreover, any accommodations afforded by a prospective employer that would allow the Veteran frequent breaks to eat, take medication, and check his blood sugars and use any needed assistive devices for ambulation and stability would be reasonable, not extraordinary. See Cantrell v. Shulkin, 28 Vet. App. 382, 396 (2017). (Continued on the next page)   While the Board does not discount the difficulties the Veteran’s service-connected disabilities may cause, the evidence fails to show they render him unable to secure or maintain substantially gainful employment. The Board reiterates that this evaluation of a TDIU considered the effects of only his service-connected disabilities; the Veteran’s age and other nonservice-connected disabilities were not considered. Given the foregoing, the preponderance of the evidence is against the claim for a TDIU. The benefit of the doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Entitlement to a TDIU is not warranted. D. JOHNSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Lauritzen, 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.