Citation Nr: 21022188 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 12-21 054A DATE: April 15, 2021 ORDER Entitlement to an initial disability rating higher than 10 percent for peripheral neuropathy of the right lower extremity prior to June 4, 2010, and higher than 20 percent since, is denied. Entitlement to an initial disability rating higher than 10 percent for peripheral neuropathy of the left lower extremity prior to June 4, 2010, and higher than 20 percent since, is denied. Entitlement to an initial disability rating higher than 10 percent for peripheral neuropathy of the right upper extremity prior to December 11, 2019, and higher than 40 percent since, is denied. Entitlement to an initial disability rating higher than 10 percent for peripheral neuropathy of the left upper extremity prior to December 11, 2019, and higher than 30 percent since, is denied. Entitlement to total disability based on individual unemployability (TDIU) is granted.   FINDINGS OF FACT 1. Prior to June 4, 2010 the bilateral (meaning left and right) peripheral neuropathy of the Veteran’s lower extremities, at worst, was equivalent to “mild” incomplete paralysis of the affected nerve, whereas, since June 4, 2010, at worst, it has been equivalent to “moderate” incomplete paralysis of the affected nerve. 2. Prior to December 11, 2019 the bilateral peripheral neuropathy of his upper extremities, at worst, was equivalent to “mild” incomplete paralysis of the affected nerve, whereas, since December 11, 2019, at worst, it has been equivalent to “moderate” incomplete paralysis of the affected nerve. 3. It is at least as likely as not his service-connected disabilities prevent him from obtaining or maintaining substantially gainful employment consistent with his level of education and prior work experience and training. CONCLUSIONS OF LAW 1. Ratings for the bilateral (left and right) lower extremity peripheral neuropathy higher than 10 percent prior to June 4, 2010, and higher than 20 percent since, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124, 4.124A, Diagnostic Codes (DCs) 8599-8520, 8526. 2. Ratings for the bilateral (left and right) upper extremity peripheral neuropathy higher than 10 percent prior to December 11, 2019 and higher than 40 percent for the right upper extremity and 30 percent for the left upper extremity since, are not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.124, 4.124A, DCs 8513, 8515. 3. Resolving all reasonable doubt in his favor, the criteria are met for entitlement to a TDIU. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.15, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from July 1974 to July 1977. This appeal to the Board of Veterans’ Appeals (Board) originated from a September 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO) – which, in relevant part, granted higher 20 percent ratings for the peripheral neuropathy of the Veteran’s right and left lower extremities retroactively effective as of June 4, 2010, but, instead, confirmed and continued the 10 percent ratings for the peripheral neuropathy of his right and left upper extremities. However, a more recent September 2020 rating decision, during the pendency of this appeal, also increased the rating for the peripheral neuropathy of his right upper extremity to 40 percent and the rating for the peripheral neuropathy of his left upper extremity to 30 percent, both effective as of December 11, 2019. Thus, there has been a “staging” of the ratings for both the upper and lower extremity peripheral neuropathy and for each extremity. This practice compensates the Veteran for the change in severity of the disability during the review period and is employed irrespective of whether an initial or established rating. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). This appeal consequently now concerns whether the Veteran is entitled to ratings for his bilateral lower extremity peripheral neuropathy higher than 10 percent prior to June 4, 2010, and higher than 20 percent since, a rating for his right upper extremity peripheral neuropathy higher than 10 percent prior to December 11, 2019, and higher than 40 percent since, and a rating for his left upper extremity peripheral neuropathy higher than 10 percent prior to December 11, 2019, and higher than 30 percent since. See AB v. Brown, 6 Vet. App. 35, 38-39 (1993) (receipt of a higher rating, but less than maximum possible rating, does not abrogate a pending appeal). Also, on appeal is the derivative claim of entitlement to a TDIU. Increased Ratings 1. Entitlement to a disability rating higher than 10 percent for the peripheral neuropathy of the right lower extremity prior to June 4, 2010, and higher than 20 percent since 2. Entitlement to a disability rating higher than 10 percent for the peripheral neuropathy of the left lower extremity prior to June 4, 2010, and higher than 20 percent since 3. Entitlement to a disability rating higher than 10 percent for the peripheral neuropathy of the right upper extremity prior to December 11, 2019, and higher than 40 percent since 4. Entitlement to a disability rating higher than 10 percent for the peripheral neuropathy of the left upper extremity prior to December 11, 2019, and higher than 30 percent since Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates that rating criteria; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability is resolved in the Veteran’s favor. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran contends that he is entitled to higher ratings for his service-connected bilateral (left and right) upper and lower extremity peripheral neuropathy. The lower extremity peripheral neuropathy is rated under DCs 8520 and 8526, According to DC 8520, which concerns the sciatic nerve, a 10 percent rating is warranted for mild incomplete paralysis this nerve; a 20 percent rating is warranted for moderate incomplete paralysis; a 40 percent rating is warranted for moderately-severe incomplete paralysis; a 60 percent rating is warranted for severe incomplete paralysis, with marked muscular atrophy; and a maximum 80 percent rating is warranted for complete paralysis (the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost). According to DC 8526, which instead pertains to the anterior crural nerve (femoral), a 10 percent rating is warranted for mild incomplete paralysis of this nerve, a 20 percent rating for moderate incomplete paralysis, a 30 percent rating for severe incomplete paralysis, and a 40 percent rating for complete paralysis (paralysis of quadriceps extensor muscles). The Veteran’s upper extremity peripheral neuropathy is now rated under DC 8513 (it was previously rated under DC 8515 until December 11, 2019). DC 8513 provides for a 40 percent rating when there is moderate incomplete paralysis of the major upper extremity and 30 percent for the minor. To qualify for a higher rating, he would need to have complete paralysis or severe incomplete paralysis. These descriptive terms “mild,” “moderate,” “moderately severe”, and “severe” are not specifically defined in the Rating Schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6.   That said, according to 38 C.F.R. § 4.124a, when the involvement is wholly sensory, the evaluation should be for the mild, or at the most, the moderate degree. Examples of physical manifestations include, but are not limited to, muscle weakness, muscle atrophy and diminished or absent reflexes. Examples of sensory manifestations include, but are not limited to, pain (constant, intermittent or dull), numbness, paresthesias (abnormal touch sensation, burning or prickling, often in the absence of external stimulus), and dysesthesias (distortion of any sense, or unpleasant abnormal sensation produced by normal stimuli). When adjudicating claims not involving wholly sensory impairment (i.e., there is a mix of physical and sensory impairments, such as decreased reflexes and numbness), the Board finds that a rating of mild incomplete paralysis is warranted when there are less persistent sensory deficits that affect small areas, or for very minimal reflex or muscle strength impairment. A rating of moderate incomplete paralysis may be warranted when there are combinations of significant sensory changes and mild or slight muscle or reflex impairment, or muscle and/or reflex impairment that has been noted by the examiner to be moderate in nature. The Veteran was first examined by a VA examiner for his peripheral neuropathy in February 2010. The Veteran complained of numbness in his fingertips and the soles of his feet that began in September 2009. The numbness in his feet progressed into pain while standing or walking for long periods of time. He reported scaling back his work hours as a security guard due to the increased pain and discomfort he experienced while standing and walking. Upon physical examination, he had diminished sensation but normal reflexes and pulses in all four extremities. The examiner diagnosed bilateral upper and lower extremity peripheral neuropathy. The Veteran was next examined in September 2010. He complained of loss of sensation in the soles of his feet and in his fingertips. He exhibited decreased reflexes and sensation in his lower extremities. The examiner diagnosed peripheral neuropathy in all four extremities.   The Veteran was next examined by VA for his neuropathy in December 2011. He complained of severe constant pain, paresthesias/dysesthesias, and numbness in all four extremities. He had full strength in all four extremities. He had decreased deep tendon reflexes (DTRs) in his ankles and decreased sensation in his hands, fingers, ankles, feet, and toes. The examiner diagnosed peripheral neuropathy in all four extremities and described it has mild incomplete paralysis of the nerve in the upper extremities and of the sciatic nerve of the lower extremities. The Veteran was next examined in July 2012. He complained of severe, constant pain in all four extremities along with moderate paresthesias/dysesthesias and numbness. He demonstrated normal strength in all four extremities. Head decreased reflexes and light touch sensation in his ankles. He also had decreased light touch sensation in his feet and toes. The examiner diagnosed bilateral upper and lower extremity peripheral neuropathy and indicated it caused moderate incomplete paralysis of the nerve in the upper extremities and moderate incomplete paralysis of the femoral nerve in the lower extremities. The next examination of the Veteran’s peripheral nerves was in December 2017. He reported shooting pain in his legs and in the bottom of his feet with prolonged standing. He complained of moderate intermittent pain in his lower extremities but did not have complaints of this regarding his upper extremities. He had decreased vibration sensation of his lower extremities. The examiner diagnosed peripheral neuropathy of the lower extremities and indicated there was mild incomplete paralysis of the sciatic nerve. The Veteran was most recently examined by VA for his peripheral neuropathy in December 2019. In all four extremities, he reported mild, constant pain, moderate intermittent pain, moderate paresthesias/dysesthesias, and moderate numbness. He had less than normal strength in all four extremities, with decreased DTRs, decreased light touch sensation, and decreased vibration. He had decreased position sense in his lower extremities only. He had absent cold sensation in his left upper extremity with decreased cold sensation in the remaining three extremities. The examiner diagnosed peripheral neuropathy of all four extremities and opined that it caused the Veteran moderate incomplete paralysis in each. As a result of this examination, his ratings for the peripheral neuropathy for his right and left upper extremities were increased to 40 and 30 percent, respectively. The Board finds that the presently assigned ratings adequately compensate the Veteran for the extent of peripheral neuropathy of his upper and lower extremities. That is, in sum, prior to June 4, 2010, his bilateral lower extremity peripheral neuropathy, at worst, constituted what amounted to mild incomplete paralysis of the affected nerves and since then has caused what has amounted to moderate incomplete paralysis of the affected nerves. Turning to his upper extremities, prior to December 11, 2019 his neuropathy caused him, at worse, mild incomplete paralysis of the affected nerves, and since then has caused him what has amounted to moderate incomplete paralysis of the affected nerves. Accordingly, increases in the “staged” ratings for this peripheral neuropathy of his upper and lower extremities are not warranted. 5. Entitlement to a TDIU The Veteran has the following service-connected disabilities and corresponding ratings for them: posttraumatic stress disorder (PTSD) and depressive disorder, rated at 70 percent, chronic renal disease, rated at 60 percent, right upper extremity peripheral neuropathy, rated at 40 percent, left upper extremity peripheral neuropathy, rated at 30 percent, coronary artery disease, rated at 30 percent, type II diabetes mellitus, rated at 20 percent, right and left lower extremity peripheral neuropathy, each rated at 20 percent, and peripheral neuropathy of the right and left lower extremity associated with the femoral nerve, each rated at 20 percent, for a combined rating of 100 percent effectively since February 9, 2018, when also considering the bilateral factor. See 38 C.F.R. § 4.25. Thus, he meets the schedular rating requirements for a TDIU, as defined in 38 C.F.R. § 4.16(a). The Court has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. See Holland v. Brown, 6 Vet. App. 443, 446 (1994), citing Swan v. Derwinski, 1 Vet. App. 20, 22 (1990). Thus, if VA has found a Veteran to be totally disabled due to a particular service-connected disability or combination of disabilities pursuant to the Rating Schedule, there is no need, and no authority, to otherwise rate that Veteran totally disabled on any other basis. See Herlehy v. Principi, 15 Vet. App. 33, 35 (2001) (finding a request for a TDIU moot where 100 percent schedular rating was awarded for the same period). However, there are occasions when a Veteran having a 100 percent schedular rating does not moot a TDIU claim because the Veteran has not had the 100 percent schedular rating for the entire period under review or, as another example, he might qualify for a certain type of special monthly compensation (SMC). See Bradley v. Peake, 22 Vet. App. 280, 294 (2008). In support of his TDIU claim, the Veteran submitted a statement in January 2021 regarding the effect of his service-connected disabilities on his ability to work in a substantially gainful capacity. On March 14, 2019, so during the pendency of this appeal, the Court issued Ray v. Wilkie, 31 Vet. App. 58 (2019). Ray held that “substantially gainful employment,” in the TDIU context, contains economic and noneconomic components; the economic component 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,” whereas the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. The Court also provided guidance as to the meaning of a veteran’s ability to “secure and follow” such employment, noting that attention must be given to: the veteran’s occupational history, education, skill and training; whether the veteran has the physical ability to perform occupational activities; and whether the veteran has the mental ability to perform occupational activities. “Substantially gainful employment” is employment” that is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.” 38 C.F.R. § 4.16(a). That said, the mere fact that a veteran is unemployed or has difficulty obtaining employment is not enough since a disability rating, itself, is recognition that there is impairment of earning capacity. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Here, the Veteran has reported difficulty managing his diabetes while working (having to find clean locations to test his blood sugar and inject insulin, as needed, dealing with fluctuating blood glucose levels), as well as difficulty due to his associated bilateral upper and lower extremity peripheral neuropathy since his job as a security guard required him to be able to feel the trigger of his weapon as well as spending a considerable amount of his shift on his feet. Additionally, of record is a March 2013 Social Security Administration (SSA) decision finding the Veteran was unable to sustain his past work and that there were no jobs existing in significant numbers in the national economy that he can perform due to his diabetes, peripheral neuropathy, and PTSD (all of which are service connected disabilities). While SSA’s rulings are not binding on the Board, the Board is allowed to consider this other Federal agency’s rulings in making its determination regarding the Veteran’s employability in the VA disability context. See Martin v. Brown, 4 Vet. App. 136, 140 (1993) (while an SSA decision is not controlling for purposes of VA adjudication, it is "pertinent" to a Veteran's claim); see also Collier v. Derwinski, 1 Vet. App. 413, 417 (1991). Ultimately, the Board finds that, given the difficulties the Veteran has described, as well as the medical evidence showing his difficulty standing and walking, as well as his need for breaks in order to manage his diabetes, all as a result of his service-connected disabilities, he would be unable to reenter the workforce and obtain and maintain employment that could be considered substantially gainful versus just marginal in comparison.   Thus, absent any more probative evidence to the contrary and resolving all reasonable doubt in his favor, the Board finds that the Veteran’s service-connected disabilities, especially in combination, render him unemployable and consequently entitled to a TDIU. KEITH W. ALLEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Baronofsky 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.