Citation Nr: 21022998 Decision Date: 04/19/21 Archive Date: 04/19/21 DOCKET NO. 17-15 280 DATE: April 19, 2021 ORDER An initial disability rating of 40 percent for right lower extremity peripheral neuropathy from January 26, 2015 is granted. An initial disability rating of 40 percent for left lower extremity peripheral neuropathy from January 26, 2015 is granted. A total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from June 24, 2014, as a matter of law, is denied. FINDINGS OF FACT 1. For the rating period on appeal from January 26, 2015, the right and left lower extremity peripheral neuropathies were manifested by pain, frequent near falls, some serious falls, instability of station, and significantly impaired mobility, which more nearly approximates moderately severe incomplete paralysis of the sciatic nerve. 2. The Veteran is in receipt of a 100 percent combined schedular disability rating for the service-connected disabilities for the entire appeal period from June 24, 2014. CONCLUSIONS OF LAW 1. Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from January 26, 2015, the criteria for a higher initial disability rating of 40 percent, and no higher, for the right lower extremity peripheral neuropathy have been met. 38U.S.C. §§1155, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520. 2. Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from January 26, 2015, the criteria for a higher initial disability rating of 40 percent, and no higher, for the left lower extremity peripheral neuropathy have been met. 38U.S.C. §§1155, 5103, 5103A, 5107; 38C.F.R. §§3.102, 3.159, 3.321, 3.326, 4.3, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8520. 3. The issue of a TDIU has been rendered moot by a 100 percent combined schedular disability rating from June 24, 2014. 38 U.S.C. §§ 1155, 7104, 7105; 38 C.F.R. § 4.16; Bradley v. Peake, 22 Vet. App. 280 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1976 to November 1985, January 2003 to July 2004, April 2009 to August 2010, and July 2013 to June 2014. These matters are on appeal from an October 2014 rating decision issued by the Regional Office (RO) in Nashville, Tennessee. The Veteran testified in Nashville, Tennessee, at a Board videoconference hearing in May 2019 before the undersigned Veterans Law Judge. The hearing transcript has been associated with the record. These matters were previously before the Board in September 2019. The Board denied entitlement to higher initial disability ratings in excess of 10 percent for the right and left lower extremity peripheral neuropathies from June 24, 2014 to January 26, 2015 and granted higher initial disability ratings of 20 percent for the right and left lower extremity peripheral neuropathies from January 26, 2015. The Veteran appealed the September 2019 Board Decision to the U.S. Court of Appeals for Veterans Claims (CAVC).  A June 2020 Order by CAVC adopts a Joint Motion for Partial Remand (JMPR) filed by the parties. The parties agreed that remand is warranted to obtain more recent, outstanding VA treatment records. The parties also agreed that the Board did not provide adequate reasons and bases when it denied higher ratings in excess of 20 percent for the right and left lower extremity peripheral neuropathies from January 26, 2015. The parties agreed that the Board should have analyzed the severity of the Veteran’s symptoms under 38 C.F.R. § 4.120, specifically citing to the August 2014 VA examination and July 2014 private treatment records. The parties also agreed that the Veteran reasonably raised the issue of TDIU at the May 2019 Board videoconference hearing as part and parcel of the claim for higher ratings on appeal. Legal Authority for Disability Ratings 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. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability there from and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. 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 claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14. It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (double “compensation” for the same symptom or impairment is prohibited). When an unlisted condition is encountered it will be permissible to rate under a closely related disease or injury in which not only the functions affected, but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnosis, or for those not fully supported by clinical and laboratory findings. Nor will ratings assigned to organic diseases and injuries be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20. Diagnostic Code 8520 provides the rating criteria for paralysis of the sciatic nerve. Disability ratings of 10, 20, and 40 percent are warranted, respectively, for mild, moderate, and moderately severe incomplete paralysis of the sciatic nerve. A disability rating of 60 percent is warranted for severe incomplete paralysis with marked muscle atrophy. An 80 percent rating is warranted with complete paralysis of the sciatic nerve. 38 C.F.R. § 4.124(a). 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 should be for the mild or at most, the moderate degree. See 38 C.F.R. § 4.124a. 1. Initial Rating for Right Lower Extremity Peripheral Neuropathy from January 26, 2015 2. Initial Rating for Left Lower Extremity Peripheral Neuropathy from January 26, 2015 For the rating period from January 26, 2015, the peripheral neuropathy disabilities in the right and left lower extremities were initially rated at 20 percent under the criteria in 38 C.F.R. § 4.124a, Diagnostic Code 8520, for moderate incomplete paralysis of the sciatic nerves. The Veteran contends that a higher disability rating is warranted for both legs. See May 2019 Transcript. After a review of all the evidence, both lay and medical, the Board resolves reasonable doubt to finds that, for the initial rating period from January 26, 2015, the right and left lower extremity peripheral neuropathy are manifested by pain, frequent near falls, some serious falls, instability of station, and significantly impaired mobility, which more nearly approximates moderately severe incomplete paralysis of the sciatic nerve. The Veteran submitted to a VA examination in June 2015. The Veteran reported pain in his feet in the morning and with prolonged walking. The Veteran also reported that his feet are always numb. The VA examiner examined the lower extremities and noted moderate intermittent pain, mild paresthesias and/or dysesthesias, and moderate numbness. The VA examiner found that the Veteran had mild incomplete paralysis of the sciatic nerves. The Veteran repeatedly sought private and VA medical treatment for the peripheral neuropathies. In July 2015, the Veteran reported neuropathic pain 8 out of 10. The Veteran’s medication was adjusted several times to manage the neuropathy symptoms from July 2015 to January 2018. In January 2018, during a private examination, the Veteran reported persistent burning that was not adequately managed with medication and he also reported falling 2 to 3 times. In March 2018 VA treatment records the Veteran reported that symptoms were worsening despite increased medication. In May 2018, the Veteran reported that the neuropathy has caused him to stumble and affect the Veteran’s mobility. The Veteran also reported frequent near falls and less frequent more serious falls with pain that is moderate to severe. In July 2019 VA treatment records, the neuropathies cause the Veteran to stumble daily and fall multiple times. Resolving reasonable doubt in favor of the Veteran, for the rating period on appeal from January 26, 2015, the service-connected right and left lower extremity peripheral neuropathy disabilities were manifested by moderately severe incomplete paralysis of the sciatic nerves in the lower extremities. For these reasons, the Board finds that a rating of 40 percent, and no higher, for the service-connected neuropathies for the initial rating period from January 26, 2015 is warranted. 38 C.F.R. §§ 4.3, 4.7. Legal Authority for TDIU 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. 38 U.S.C. § 1155. Total disability is considered to exist when there is any impairment which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Total disability may or may not be permanent. 38 C.F.R. § 3.340(a)(1). Total ratings are authorized for any disability or combination of disabilities for which the Rating Schedule prescribes a 100 percent evaluation. 38 C.F.R. § 3.340(a)(2). TDIU may be assigned 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. The service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue will be addressed in both instances. 38 C.F.R. § 4.16(a), (b). If there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). If a veteran’s disabilities do not meet the objective combined rating percentage criteria of 38 C.F.R. § 4.16(a), it then becomes necessary to consider whether the criteria for referral for extraschedular consideration are met under § 4.16(b) criteria. 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 totally disabled. Submission to the Director, Compensation and Pension Service, for extraschedular consideration is warranted in all cases of veterans who are unemployable by reason of service-connected disabilities, but who fail to meet the percentage standards set forth in § 4.16(a). 38 C.F.R. § 4.16(b). Individual unemployability must be determined without regard to any non-service-connected disabilities or a veteran’s advancing age. 38 C.F.R. §§ 3.341(a), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether a veteran is capable of performing the physical and mental acts required by employment, not whether a veteran can find employment. Id. at 361. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in a veteran’s favor. 38 C.F.R. § 4.3. In Faust v. West, 13 Vet. App. 342 (2000), the United States Court of Appeals for Veterans Claims (Court) defined “substantially gainful employment” as an occupation that provides an annual income that exceeds the poverty threshold for one person, irrespective of the number of hours or days that a veteran actually works and without regard to a veteran’s earned annual income. In Hatlestad v. Derwinski, 5 Vet. App. 524, 529 (1993), the Court held that the central inquiry in determining whether a veteran is entitled to a TDIU is whether a veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability. The determination as to whether a total disability is appropriate should not be based solely upon demonstrated difficulty in obtaining employment in one particular field, which could also potentially be due to external bases such as economic factors, but rather to all reasonably available sources of employment under the circumstances. See Ferraro v. Derwinski, 1 Vet. App. 326, 331-332 (1991). In evaluating a veteran’s employability, consideration may be given to the level of education, special training, and previous work experience in arriving at a conclusion, but not to age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Marginal employment is not considered substantially gainful employment and generally is deemed to exist when a veteran’s earned income does not exceed the amount established by the U.S. Department of Commerce, Bureau of the Census, as the poverty threshold for one person. Marginal employment may also be held to exist in certain cases when earned annual income exceeds the poverty threshold on a facts-found basis. Consideration shall be given in all claims to the nature of the employment and the reason for termination. 38 C.F.R. § 4.16(a). Marginal employment, odd-job employment, and employment at half the usual remuneration is not incompatible with a determination of unemployability if the restriction to securing or retaining better employment is due to disability. 38 C.F.R. § 4.17(a). The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the 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). 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, not a medical examiner’s opinion. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013); 38 C.F.R. § 4.16(a); 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). 3. TDIU is Moot The Board notes that, while the Veteran did not complete and submit an Application for Increased Compensation Based on Unemployability (VA Form 21-8940), the Veteran asserts that he was rendered unable to maintain substantially gainful employment. Pursuant to the May 2019 Board videoconference hearing and the June 2020 JMPR, the Board finds that the issue of TDIU was reasonable raised by the Veteran under Rice v. Shinseki. See 22 Vet. App. 447 (2009). During the May 2019 Board videoconference hearing, the Veteran testified that he could no longer work in the automotive auction business because he could not walk the usual eight to ten miles per day due to the service-connected neuropathies in the lower extremities. The Veteran does not provide a specific date that he became too disabled to maintain substantially gainful employment, has provided nothing of substance to support the vague and unsupported statement, and did not specify any one particular service-connected disability as the sole cause of unemployability. Even after invitation to do so, the Veteran has not since proffered any explanation as to how the service-connected disabilities rendered him unable to maintain substantially gainful employment as a customs inspector. As such, the Board construes the claim for TDIU as a claimed based on all the service-connected disabilities. See 38 C.F.R. § 4.16(a). The Veteran is service connected for obstructive sleep apnea rated at 50 percent from June 24, 2014, generalized anxiety disorder rated at 50 percent from June 24, 2014, Peyronie’s Disease with erectile dysfunction rated at 20 percent from June 24, 2014, diabetes mellitus, type II, rated at 20 percent from June 24, 2014, peripheral neuropathy in the left lower extremity rated at 20 percent from June 24, 2014, peripheral neuropathy in the right lower extremity rated at 20 percent from June 24, 2014, coccygeal osteoarthritis with right hip involvement rated at 10 percent from June 24, 2014, benign paroxysmal positional vertigo rated at 10 percent from June 24, 2014, bilateral tinnitus rated at 10 percent from June 24, 2014, allergic rhinitis rated at 10 percent from June 24, 2014, a painful scar on the anterior chest rated at 10 percent from June 24, 2014, bilateral toenail onychomycosis rated at 10 percent from June 24, 2014, left hip limitation of flexion rated at 0 percent from June 24, 2014, right hip limitation of flexion rated at 0 percent from June 24, 2014, right hip limitation of abduction rated at 0 percent from June 24, 2014, left hip limitation of abduction rated 0 percent from June 24, 2014, scar on the anterior chest rated at 0 percent from June 24, 2014, and migraine headaches rated at 0 percent from June 24, 2014. The threshold combined rating percentage requirements for the consideration of a TDIU under the provisions of 38 C.F.R. § 4.16(a) are met for the TDIU claim period on appeal. The Veteran is in receipt of a 100 percent combined schedular disability rating for the service-connected disabilities for the entire TDIU claim period on appeal from June 24, 2014. The Board specifically finds that the exceptions to the rule that a 100 percent schedular disability rating moots a TDIU claim based on “less than total” rating do not apply in this case, as discussed below. See 38 C.F.R. § 4.16 (a) (providing TDIU “where the schedular rating is less than total”); Buie v. Shinseki, 24 Vet. App. 242, 250-51 (2010); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). This case is distinguishable from both Bradley and Buie exceptions to the rule that a 100 percent combined schedular disability rating moots a TDIU. Under the unique facts of Bradley, SMC was available where a veteran had been granted TDIU based on a “less than total” 70 percent rating for only one disability and had subsequently obtained service connection for multiple orthopedic disabilities that combined to 60 percent. Under those circumstances, there was no “duplicate counting of disabilities.” Bradley at 293. This case is distinguishable from Bradley because, in this case, the Veteran is not in receipt of a less than 100 percent schedular disability rating for any one service-connected disability upon which a TDIU is granted. Rather, the 100 percent schedular disability rating assigned from June 24, 2014 is based on the combined ratings of multiple service-connected disabilities. Concerning both Bradley and Buie, in this case, the Veteran is currently service connected for multiple disabilities and has previously contended that the combination of these disabilities renders him unemployable. To award a TDIU rating for the period since June 24, 2014 (when the 100 percent combined schedular disability rating began) would result in duplicate counting of disabilities. 38 C.F.R. § 4.14. The Veteran has not contended that a TDIU is warranted based only on one particular service-connected disability; rather, he has claimed TDIU generally, mentioned time lost from work and impairments from multiple disabilities. Now, after having claimed a TDIU based on multiple service-connected disabilities, the Veteran may not assert a new claim for TDIU based only on one disability. See Buie. As neither a Bradley nor Buie exception to the general rule that a TDIU is to be based on all service-connected disabilities is applicable in this case (see 38 C.F.R. § 4.16(a), providing that a TDIU rating is only available where the schedular rating is “less than total”) , the TDIU has been rendered moot by the 100 percent combined schedular disability rating for all service-connected disabilities that has been in effect from June 24, 2014, even before the rating period, so covers the entire rating period on appeal. For these reasons, the TDIU appeal is without legal merit, having been rendered moot by the 100 percent combined schedular disability rating, and must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.