Citation Nr: 21027009 Decision Date: 05/04/21 Archive Date: 05/04/21 DOCKET NO. 20-23 481 DATE: May 4, 2021 ORDER Entitlement to an effective date prior to March 22, 2017, for a grant of service connection for peripheral neuropathy of the left lower extremity is denied. Entitlement to an effective date prior to March 22, 2017, for a grant of service connection for peripheral neuropathy of the right lower extremity is denied. Entitlement to an effective date prior to March 22, 2017, for a grant of service connection for peripheral neuropathy of the left upper extremity is denied. Entitlement to an effective date prior to March 6, 2006, for a grant of service connection for non-obstructive coronary artery disease ("heart disability") is dismissed. Entitlement to an effective date prior to March 31, 2004, for a grant of service connection for diabetes mellitus is dismissed. Entitlement to an initial rating greater than 10 percent prior to January 12, 2020, and greater than 40 percent thereafter, for peripheral neuropathy of the left lower extremity is denied. Entitlement to an initial rating greater than 10 percent prior to January 12, 2020, and greater than 40 percent thereafter, for peripheral neuropathy of the right lower extremity is denied. Entitlement to an initial rating greater than 20 percent prior to January 12, 2020, and greater than 30 percent thereafter, for peripheral neuropathy of the left upper extremity is denied. Entitlement to a disability rating greater than 60 percent for a heart disability is denied. Entitlement to a disability rating greater than 20 percent for diabetes mellitus is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) effective March 22, 2017, is granted. FINDINGS OF FACT 1. The record evidence shows that the Veteran submitted claims of entitlement to service connection for peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, peripheral neuropathy of the left upper extremity, and to a TDIU on March 22, 2017. 2. The record evidence shows that, prior to March 22, 2017, there were no pending requests for service connection for peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, or for peripheral neuropathy of the left upper extremity which remained unadjudicated. 3. The record evidence shows that the Veteran filed freestanding claims of entitlement to an earlier effective date for the award of service connection for a heart disability and for diabetes mellitus. 4. The record evidence shows that, prior to January 12, 2020, the Veteran's peripheral neuropathy of the left lower extremity is manifested by symptoms of mild incomplete paralysis of the sciatica nerve. 5. The record evidence shows that, effective January 12, 2020, the Veteran's peripheral neuropathy of the left lower extremity is manifested by symptoms of moderately severe incomplete paralysis of the sciatica nerve. 6. The record evidence shows that, prior to January 12, 2020, the Veteran's peripheral neuropathy of the right lower extremity is manifested by symptoms of mild incomplete paralysis of the sciatica nerve. 7. The record evidence shows that, effective January 12, 2020, the Veteran's peripheral neuropathy of the right lower extremity is manifested by symptoms of moderately severe incomplete paralysis of the sciatica nerve. 8. The record evidence shows that, prior to January 12, 2020, the Veteran's peripheral neuropathy of the left upper extremity is manifested by symptoms of mild incomplete paralysis of all radicular groups. 9. The record evidence shows that, effective January 12, 2020, the Veteran's peripheral neuropathy of the left upper extremity is manifested by symptoms of moderate incomplete paralysis of all radicular groups. 10. The record evidence shows that the Veteran's heart disability is manifested by, at worst, left ventricular dysfunction with an ejection fraction of 50 to 55 percent and workload of greater than 3 METs but not greater than 5 METs. 11. The record evidence shows that the Veteran's diabetes mellitus required insulin and restricted diet but not regulation of activities or hospitalizations throughout the appeal period. 12. The record evidence shows that, effective March 22, 2017, the Veteran's service-connected disabilities, alone or in combination, preclude him from securing or following a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date prior to March 22, 2017, for the grant of service connection for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155 (2019). 2. The criteria for an earlier effective date prior to March 22, 2017, for the grant of service connection for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155 (2019). 3. The criteria for an earlier effective date prior to March 22, 2017, for the grant of service connection for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.1, 3.151, 3.155 (2019). 4. The claim of entitlement to effective date earlier than March 6, 2006, for the grant of service connection for a heart disability is dismissed as a matter of law. 38 U.S.C. §§ 5101, 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 20.1103 (2019); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 5. The claim of entitlement to an effective date earlier than March 31, 2014, for the grant of service connection for diabetes mellitus is dismissed as a matter of law. 38 U.S.C. §§ 5101, 5110, 7105 (2012); 38 C.F.R. §§ 3.400, 20.1103 (2019); Rudd v. Nicholson, 20 Vet. App. 296 (2006). 6. The criteria for an initial rating greater than 10 percent prior to January 12, 2020, and greater than 40 percent thereafter, for peripheral neuropathy of the left lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, Diagnostic Code (DC) 8520 (2019). 7. The criteria for an initial rating greater than 10 percent prior to January 12, 2020, and greater than 40 percent thereafter, for peripheral neuropathy of the right lower extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8520 (2019). 8. The criteria for an initial rating greater than 20 percent prior to January 12, 2020, and greater than 30 percent thereafter, for peripheral neuropathy of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.10, 4.124a, DC 8513 (2019). 9. The criteria for a disability rating greater than 60 percent for a heart disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.15, 4.104, DC 7005 (2019). 10. The criteria for a disability rating greater than 20 percent for diabetes mellitus have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.119, DC 7913 (2019). 11. The criteria for a TDIU effective March 22, 2017, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from January 1963 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2017 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran requested a videoconference Board hearing when he perfected a timely appeal in May 2020. In February 2021, he withdrew his request for a Board hearing. See 38 C.F.R. § 20.704 (2019). The Board observes that additional VA treatment records were received following the last adjudication by the RO in the April 2020 statement of the case. The Board has reviewed these records and observes that they are duplicative, cumulative, and/or not pertinent to the issues on appeal addressed in the decision below. Thus, there is no prejudice to the Veteran in proceeding to adjudicate the merits of this appeal. Effective Date Generally, the effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C. § 5110; 38 C.F.R. § 3.400 (b)(2). The Board notes that, effective March 24, 2015, VA amended its regulations so that a claim for benefits must be made on a specific claim form prescribed by the Secretary. 78 Fed. Reg. 65490 (Oct. 31, 2013) (eff. Mar. 24, 2015). In this case, all of the statements of record potentially relevant to the Veteran's earlier effective date claims were received prior to the effective date of the amendment, and therefore the law governing what constituted a claim for VA purposes prior to the amendment is controlling in this case. Prior to the March 24, 2015 amendment, a claim was defined as a formal or informal written communication requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim was any communication or action indicating intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA was required to look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and was required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992). 1. Entitlement to an effective date prior to March 22, 2017, for a grant of service connection for peripheral neuropathy of the left lower extremity, peripheral neuropathy of the right lower extremity, and for peripheral neuropathy of the left upper extremity is denied. The Veteran filed his claim for entitlement to a TDIU on March 22, 2017. In a June 2017 rating decision, the RO granted service connection for peripheral neuropathy of the bilateral lower extremities and left upper extremity as secondary to service-connected diabetes mellitus. The RO granted a 10 percent rating for peripheral neuropathy of the bilateral lower extremities and a 20 percent rating for peripheral neuropathy of the left upper extremity. During the appeal process the rating for peripheral neuropathy of the bilateral lower extremities increased to 40 percent effective January 12, 2020. And the rating for peripheral neuropathy of the left upper extremity was increased to 30 percent effective January 12, 2020. Prior to March 22, 2017, there were no claims for peripheral neuropathy of the bilateral lower extremities and left upper extremity pending which remain unadjudicated. Nor were there any documents received that could be construed as expressing an intent to file a claim for benefits or that identify any desired benefits for peripheral neuropathy which remained unadjudicated. 38 C.F.R. § 3.155(a). It is undisputed that the service connection claims for peripheral neuropathy of the bilateral lower extremities and for the left upper extremity were not filed within one year of the Veteran's separation from service in December 1976 (i.e., by December 1977). As there were no claims for benefits, formal or informal, pending adjudication prior to the March 22, 2017 claims, there are no grounds for the assignment of an effective date earlier than March 22, 2017, the date of receipt of the Veteran's claim for benefits, for the grant of service connection for each of these disabilities. While the Veteran presumably experienced numbness, shakiness, and weakness in his bilateral lower extremities prior to March 22, 2017, the fact remains that there is no claim, formal or informal, of record prior to March 22, 2017 that remains unadjudicated. Thus, the date of receipt of claim is the later of the date of entitlement and the date of claim, and VA regulations dictate that the date of receipt of claim should be the effective date that is assigned. Accordingly, the claims of entitlement to an effective date earlier than March 22, 2017, for the grant of service connection for peripheral neuropathy of the bilateral lower extremities and left upper extremity are denied. 2. Entitlement to an earlier effective date than March 6, 2006, for a heart disability is dismissed. 3. Entitlement to an earlier effective date than March 31, 2004 for diabetes mellitus is dismissed. The Veteran filed his claim for service connection for a heart disability on July 1, 2010. In a March 2011 rating decision, the RO granted service connection for a heart disability with an assigned rating of 30 percent effective March 6, 2006 and 60 percent effective July 1, 2010. The RO found that the March 14, 2003 claim for service connection for "unknown disabilities" due to exposure to herbicide agents was considered unadjudicated. As such, based on the evidence of record, the RO determined that the Veteran was diagnosed with ischemia and coronary artery disease on March 6, 2006. Based on the foregoing, the RO granted service connection for a heart disability with an effective date of March 6, 2006. The Veteran did not file a timely notice of disagreement to the effective date and the rating assigned. As he failed to perfect an appeal of the March 2011 rating decision, it is not subject to revision in the absence of clear and unmistakable error (CUE). 38 U.S.C. §§ 5109A, 7105; see Rudd v. Nicholson, 20 Vet. App. 296 (2006). Similarly, the Veteran filed his claim for entitlement to service connection for diabetes mellitus on March 31, 2004. In the November 2004 rating decision, the RO granted service connection for diabetes mellitus with an assigned rating of 20 percent. He did not file a timely notice of disagreement to the effective date and the rating assigned. As he failed to perfect an appeal of the November 2004 rating decision, it also is not subject to revision in the absence of CUE. Id. The Court held in Sears v. Principi, 16 Vet. App. 244, 248 (2002) that, "[t]he statutory framework simply does not allow for the Board to reach back to the date of the original claim as a possible effective date for an award of service-connected benefits that is predicated upon a reopened claim." In order for the Veteran to be awarded an effective date based on an earlier claim, he has to show CUE in the prior denial of the claim. Flash v. Brown, 8 Vet. App. 332, 340 (1995). Moreover, there is no basis for a free-standing earlier effective date claim from matters addressed in a final and binding rating decision. See Rudd, 20 Vet. App. at 296. The Veteran has not submitted a motion for CUE for the March 2011 rating decision that assigned the effective date for service connection for a heart disability or for the November 2004 rating decision that assigned the effective date for service connection for diabetes mellitus. Thus, the Board finds that the claims of entitlement to an effective date earlier than March 6, 2006 for the grant of service connection for a heart disability and for an earlier effective date than March 31, 2004, for the grant of service connection for diabetes mellitus are attempts to file freestanding earlier effective date claims which are not permitted under Rudd. Accordingly, these claims are dismissed. Increased Ratings 4. Entitlement to an initial rating greater than 10 percent for peripheral neuropathy of the left lower extremity is denied. 5. Entitlement to an initial rating greater than 10 percent for peripheral neuropathy of the right lower extremity is denied. 6. Entitlement to an initial rating greater than 20 percent for peripheral neuropathy of the left upper extremity is denied. As an initial matter, the Veteran filed his claim for entitlement to a TDIU in March 2017. In a June 2017 rating decision, the Veteran was granted service connection for peripheral neuropathy of the bilateral lower extremities and left upper extremity as secondary to service-connected diabetes mellitus. A review of the post-service treatment records shows that the Veteran was afforded VA examinations in May 2017 and February 2020. In the May 2017 VA examination, he reported decreased sensation in the feet for a number of years. On examination, he exhibited mild paresthesias and/or dysesthesias; moderate numbness; and decreased vibration sensation of the bilateral lower extremities. He also demonstrated decreased cold sensation in the bilateral lower extremities and left upper extremity. A light touch/monofilament testing revealed decreased finding on the left foot/toes. The examiner determined that the Veteran had mild incomplete paralysis of the radial nerve in the left upper extremity and mild incomplete paralysis of the sciatic nerve of the bilateral lower extremities. In the February 2020 VA examination, the Veteran complained of paresthesia and numbness of the hands and feet. On examination, he had severe paresthesias and/or dysesthesias of the left upper extremity and bilateral lower extremities, moderate numbness of the left upper extremity, and severe numbness of the bilateral lower extremities. His position sensation, vibration sensation, and cold sensation was noted to be absent in the bilateral lower extremities. He had decreased vibration sensation and cold sensation in the bilateral upper extremities. On light touch/monofilament testing he exhibited decreased findings in the left shoulder area, left inner/outer forearm, bilateral knee/thigh, bilateral ankle/lower leg, and absence on the left hand/fingers and bilateral foot/toes. The examiner determined that the Veteran had moderate incomplete paralysis of the radial nerve, median nerve, and ulnar nerve of the bilateral upper extremities, and moderately severe incomplete paralysis of the sciatic nerve and moderate incomplete paralysis of the femoral nerve in the bilateral lower extremities. Accordingly, the examiner concluded that the Veteran had moderate sensory neuropathy of the upper and lower extremities. Prior to January 12, 2020 Prior to January 12, 2020, the records show that in the May 2017 VA examination the Veteran exhibited mild incomplete paralysis of the radial nerve in the left upper extremity and mild incomplete paralysis of the sciatic nerve of the bilateral lower extremities. Accordingly, based on DC 8520 for peripheral neuropathy of the sciatic nerve, a 10 percent rating is warranted for the bilateral lower extremities. A rating in excess of 10 percent is not warranted as a 20 percent rating requires moderate incomplete paralysis. As for the left upper extremity, DC 8513 states that a 20 percent rating is warranted for a mild incomplete paralysis. A rating in excess of 10 percent is not warranted as a 40 percent rating requires moderate incomplete paralysis. From January 20, 2020 Based on the evidence of record, in the January 2020 VA examination, the Veteran exhibited moderate incomplete paralysis of the radial nerve, median nerve, and ulnar nerve of the left upper extremity, moderately severe incomplete paralysis of the sciatic nerve of the bilateral lower extremities, and moderate incomplete paralysis of the femoral nerve of the bilateral lower extremities. Accordingly, based on DC 8520 for peripheral neuropathy of the sciatic nerve, a 40 percent rating is warranted for moderately severe incomplete paralysis of the bilateral lower extremities. Additionally, pursuant to DC 8526 for peripheral neuropathy of the femoral nerve, a separate 20 percent rating is warranted for moderate incomplete paralysis of the bilateral lower extremities. A rating in excess of 40 percent for sciatica nerve is not warranted as a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. A rating in excess of 20 percent for femoral nerve is not warranted as a 30 percent rating requires severe incomplete paralysis of the femoral nerve. Regarding the left upper extremity, a 30 percent rating is consistent for moderate incomplete paralysis. Additionally, as the Veteran exhibited moderate incomplete paralysis of the right upper extremity, a separate 40 percent disabling rating was assigned. As he did not exhibit severe incomplete paralysis of the left upper extremity a 60 percent rating is not warranted. 7. Entitlement to a disability rating greater than 60 percent for a heart disability is denied. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a disability rating greater than 60 percent for a heart disability. The record evidence shows that the symptomatology attributable to the service-connected heart disability is consistent with a 60 percent rating. A review of the records show that the Veteran was afforded a VA examination in May 2017. In the May 2017 VA examination, he denied having recent chest pain, but he endorsed being easily fatigued. The examiner noted that a May 2016 echocardiogram revealed left ventricular ejection fraction (LVEF) of 55 percent. Further, based on an interview based METs test, the examiner determined that the Veteran has a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, consistent with a 60 percent rating. The May 2017 VA examiner's assessment is consistent with the treatment records. For instance, in a May 2016 VA treatment record, it was noted that the Veteran had an LVEF of 50 to 55 percent. Then, in a February 2018 VA treatment record, it was noted that the Veteran can tolerate 4 METs. In March 2020 VA treatment record, the Veteran denied having any chest pain and exhibited regular heart rhythm and heart rate. Based on the VA examinations, treatment records, and lay evidence, the Board finds that the service-connected heart disability merits a disability rating of no more than 60 percent under DC 7005. See 38 C.F.R. § 4.104, DC 7005. The Board notes that the record shows that the Veteran exhibited LVEF of 50 to 55 percent during the appeal period which is consistent with a 60 percent rating. Further, the May 2017 VA examiner opined that the Veteran's heart disability is consistent with a workload of greater than 3 METs but not greater than 5 METs. As such, the Board finds that during the appeal period the Veteran is entitled to no more than a 60 percent rating for his service-connected heart disability. No additional higher or alternative ratings under different DCs are warranted. The service-connected heart disability does not result in chronic congestive heart failure in the past year, or a workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, or syncope. Id. The Veteran finally has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 60 percent for his service-connected heart disability. Thus, the Board finds that the criteria for a disability rating greater than 60 percent for a heart disability have not been met. 8. Entitlement to a disability rating greater than 20 percent for diabetes mellitus is denied. The Board finds that the preponderance of the evidence is against granting the Veteran's claim of entitlement to a disability rating greater than 20 percent for diabetes mellitus. For the entire period on appeal, a review of the treatment records shows that the Veteran's diabetes mellitus was treated with insulin and restricted diet, but not regulation of activities or episodes of ketoacidosis or hypoglycemic reactions. A review of the treatment records shows that the Veteran was afforded VA examinations in May 2017 and February 2020. In the May 2017 VA examination, the examiner noted that the Veteran's treatment regimen consisted of prescribed oral hypoglycemic. The examiner determined that diabetes mellitus did not require regulation of activities as part of medical management of diabetes mellitus. Further, the Veteran denied having any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions. In the February 2020 VA examination, the examiner noted that the Veteran's treatment regimen consisted of prescribed oral hypoglycemic and insulin injection. The examiner determined that diabetes mellitus did not require regulation of activities as part of medical management of diabetes mellitus. Further, the Veteran denied having any hospitalizations for episodes of ketoacidosis or hypoglycemic reactions. In conclusion, the Board finds that pursuant to DC 7913, the Veteran is entitled to no more than 20 percent rating for his service-connected diabetes mellitus as this disability requires insulin and restricted diet. He is not entitled to a higher rating as the most probative evidence does not show that he has regulation of activities nor episodes of ketoacidosis or hypoglycemic reactions that requires hospitalization. He otherwise has not identified or submitted any evidence demonstrating his entitlement to a disability rating greater than 20 percent for his service-connected diabetes mellitus. In summary, the Board finds that the criteria for a disability rating greater than 20 percent for diabetes mellitus have not been met. 9. Entitlement to a TDIU effective March 22, 2017, is granted. The Board finds that the evidence supports granting the Veteran's TDIU claim effective March 22, 2017. He filed his formal TDIU claim on March 22, 2017. The Board notes that service connection currently is in effect for non-obstructive coronary artery disease ("heart disability") rated at 60 percent effective July 1, 2010, peripheral neuropathy of the right upper extremity associated with diabetes mellitus rated at 40 percent effective January 12, 2020, sciatic peripheral neuropathy of the right lower extremity associated with diabetes mellitus rated at 10 percent effective March 22, 2017, and 40 percent effective January 12, 2020, sciatic peripheral neuropathy of the left lower extremity associated with diabetes mellitus rated at 10 percent effective March 22, 2017, and 40 percent effective January 12, 2020, peripheral neuropathy of the left upper extremity associated with diabetes mellitus rated at 20 percent effective March 22, 2017, and 30 percent effective January 12, 2020, diabetes mellitus rated 20 percent effective March 31, 2004, femoral peripheral neuropathy of the left lower extremity associated with diabetes mellitus rated at 20 percent effective January 12, 2020, femoral peripheral neuropathy of the right lower extremity associated with diabetes mellitus rated at 20 percent effective January 12, 2020, tinnitus rated at 10 percent effective March 14, 2003, and bilateral hearing loss at a noncompensable rating effective March 14, 2003. He has a combined evaluation of 80 percent from March 22, 2017 and 100 percent effective January 12, 2020. Thus, the Veteran meets the schedular criteria for a TDIU throughout the appeal period. A review of the records shows that the Veteran has a two-year college education with a past work history of being a communications specialist and network engineer. He claimed that he is unable to work due to his service-connected disabilities as of February 2010. Regarding the Veteran's heart disability, the May 2017 VA examiner determined that he has a workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea. As such, he is able to perform light yard work (weeding), mow lawn, and walk briskly. The examiner noted that the Veteran reported that he feels fatigued if he walks for more than 10 minutes. Concerning the Veteran's diabetes mellitus, the May 2017 and February 2020 examiner opined that it does not impact his ability to work. As for the Veteran's peripheral neuropathy of the bilateral lower and upper extremities, the May 2017 examiner opined that the decreased foot sensation affects his balance occasionally. The February 2020 examiner opined that due to diabetic neuropathy affecting both upper and lower extremities, the Veteran cannot engage in fine motor skills of the bilateral hands such as typing or using hand tools or use of foot pedals. He has a slight degree of postural instability from the sensory diabetic neuropathy of his feet and cannot work around unprotected heights or hazards or walk on uneven surfaces. Regarding the Veteran's bilateral hearing loss and tinnitus, in a May 2016 VA treatment record he stated that he is unable to hear the car blinker and his wife. In a February 2017 VA treatment record he was fitted for hearing aids and he noted good sound quality and volume. Based on the foregoing, the Board finds that the Veteran's bilateral hearing loss and tinnitus have no impact on his ability to work. In support of the TDIU claim, in April 2020, the Veteran submitted a vocational assessment from a vocational expert. The vocational expert opined that the symptoms associated with the service-connected disabilities resulted in the complete inability of the Veteran to perform at even the sedentary, unskilled level of employment since October 2010. The vocational expert stated that the symptoms of dizziness, weakness in limbs, chest pain, lightheadedness, hearing loss, tinnitus, and severe fatigue would cause decreased functional tolerances and increase his need to leave the work station at will to lie down and nap or go to physician's appointment. Further, due to peripheral neuropathies, he may experience falls or near-falls, drop objects and has difficulty operating tools or machinery requiring dexterity due to lack of feeling in his hands/fingers. His weakness, shakiness, and unsteadiness would force him to stop what he is doing and take rest breaks. These limitations would most definitely cause him to be off task frequently (34 to 66 percent of a workday) throughout a workday. This amount of time would clearly be outside of what would be tolerated in competitive employment at any level of work at approximately 10 percent. The Board notes that, in a March 2020 correspondence, the Veteran's spouse stated that since 2008 he had trouble standing for long periods of time and his legs and feet would start shaking. Further, he is unable to stay on a ladder to clean the gutters and is unable to finish household repairs such as replacing the garbage disposal under the kitchen sink due to his service-connected disabilities. The Board notes that the representative argued that the Veteran is entitled to TDIU benefits since October 20, 2012. The representative stated that in the October 2012 petition to reopen the Veteran's claim for entitlement to service connection for peripheral neuropathy and in the February 2013 petition to reopen the Veteran's claim for entitlement to service connection for obstructive sleep apnea, the RO had a duty to notify the Veteran that he is eligible for TDIU benefits or in the alternative that the RO erred when the RO did not infer a claim for TDIU. In a July 2013 rating decision, the RO granted the Veteran's petition to reopen his claim for entitlement to service connection for peripheral neuropathy of the bilateral lower extremities but denied service connection. The RO also denied the Veteran's petition to reopen his claim for entitlement to service connection for obstructive sleep apnea. The Board finds the argument raised by the Veteran's attorney is distinguishable from Rice which held that TDIU is an element of an initial rating or increased rating claim when there is evidence of unemployability raised by the record during a rating appeal period. The holding in Rice made it clear that a TDIU rating was part of an increased rating claim which is not applicable to applications to reopen previously denied claims for service connection. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Thus, the Board finds that the representative's argument is without merit. The Board affords great probative value to the February 2020 VA examiner's opinion regarding peripheral neuropathy, the April 2020 vocational expert's assessment, and the statement from the Veteran's spouse. Due to peripheral neuropathy, the Veteran cannot engage in fine motor skills such as typing or using hand tools or use of foot pedals. He has a slight degree of postural instability and would likely experience falls or near-falls and drop objects. He would be off task and will be considered an unreliable employee. He also is not capable of performing the physical acts required for employment. In summary, and after resolving any reasonable doubt in the Veteran's favor, the Board finds that the criteria for a TDIU are met effective March 22, 2017. MICHAEL T. OSBORNE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Noh, 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.