Citation Nr: 21027623 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 18-35 617 DATE: May 6, 2021 ORDER Entitlement to an effective date earlier than April 19, 2010 for the grant of service connection for peripheral neuropathy of the right upper extremity associated with diabetic mellitus is denied. Entitlement to an effective date earlier than April 19, 2010 for the grant of service connection for peripheral neuropathy of the left upper extremity associated with diabetic mellitus is denied. Entitlement to an effective date earlier than April 19, 2010 for the grant of service connection for peripheral neuropathy of the right lower extremity associated with diabetic mellitus is denied. However, an earlier effective date of November 16, 2009, though no earlier, is granted for the award of service connection for peripheral neuropathy of the left lower extremity associated with diabetic mellitus, subject to the statutes and regulations governing payment of retroactive compensation. Entitlement to a total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran filed a claim for a TDIU on November 16, 2009; there is no probative evidence prior to April 19, 2010 showing he had bilateral (left and right) upper extremity and/or right lower extremity peripheral neuropathy; however, there is earlier probative evidence of left lower extremity peripheral neuropathy dating from time of receipt of his claim on November 16, 2009. 2. The most probative evidence of record is against finding that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria are not met for an effective date earlier than April 19, 2010 for the award of service connection for bilateral upper extremity and right lower extremity peripheral neuropathy associated with diabetes mellitus. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 2. But the criteria are met for an earlier effective date of November 16, 2009, though no earlier, for the award of service connection for left lower extremity peripheral neuropathy associated with diabetes mellitus. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. 3. The criteria are not met for entitlement to a TDIU. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a) and (b), 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1956 to September 1982. These claims were most recently before the Board in February 2019 but were remanded for further development and consideration including to obtain VA treatment records from 2010 to present and a copy of a March 2015 examination report. The VA treatment records are now associated with the claims file, but the March 2015 examination report still is not. In total, VA has made four attempts to obtain the report and found that the contract vendor no longer exists. Importantly, during the pendency of the Veteran's claims, and after the Board's remand of them, in a February 2021 rating decision the local Regional Office (RO) granted an effective date of April 19, 2010 for the award of service connection for the bilateral upper and lower extremity peripheral neuropathy; that effective date is several years earlier than the March 2015 examination report, tending to lessen its ultimate significance. There has been the required compliance certainly the acceptable substantial compliance, with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (holding that a remand by the Board confers upon the Veteran, as a matter of law, the right to compliance with the remand instructions); but see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only "substantial" rather than strict or exact compliance with the Board's remand directives is required under Stegall); accord Dyment v. West, 13 Vet. App. 141, 146-47 (1999). EFFECTIVE DATES The Veteran is requesting an effective date even earlier than April 19, 2010 for the grant of service connection and separate ratings for his bilateral upper and lower extremity diabetic-related peripheral neuropathy. Effective March 24, 2015, VA amended its regulations to require that all claims governed by VA's adjudication regulations be filed on a standard form. 38 C.F.R. §§ 3.151, 3.155, 3.157. The amended regulations, however, apply only to claims filed on or after March 24, 2015. Because the Veteran's claims were received by VA prior to that date (i.e., in 2009), the former regulations apply where warranted. Except as otherwise provided, the effective date of an evaluation and award of pension, compensation or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase will be on the date of receipt of the claim or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. If a claim is reviewed at the request of the claimant more than one year after the effective date of a liberalizing law, benefits may be authorized for a period of one year prior to the date of receipt of such request. 38 C.F.R. § 3.114(a)(2). A claim is a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(p). The date of receipt shall be the date on which a claim, information or evidence was received by VA. 38 U.S.C. § 101(30); 38 C.F.R. § 3.1(r). Here, on November 16, 2009, the Veteran filed a claim for a TDIU based on residuals of a head injury and his diabetes mellitus (see VA Form 21-8940). In April 2015, the RO granted service connection for bilateral upper and lower extremity peripheral neuropathy owing to his diabetes, and initially assigned an effective date of March 19, 2015, the date of an examination confirming he had diabetic peripheral neuropathy. In his June 2015 Notice of Disagreement (NOD), the Veteran asserted that the effective date of his diabetic peripheral neuropathy should be earlier in November 2009. Subsequently, in a February 2021 rating decision, the RO granted an earlier effective date of April 19, 2010, the date of an examination showing a diagnosis of lower extremity neuralgia; diabetic peripheral neuropathy with subjective factors of numbness and tingling feet and objective factors of decreased light touch feet. The effective date for a claim for increased compensation generally shall not be earlier than the date of receipt of the claim or the date entitlement arose, whichever is later unless it is factually ascertainable that an increase in disability had occurred during the one year immediately preceding receipt of the claim for increased compensation. See 38 C.F.R. § 3.400(o)(2); Harper v. Brown, 10 Vet. App. 125 (1997). See also Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010) (explaining that the legislative history of 38 U.S.C.A. § 5110(b)(2) was to provide Veterans a one-year "grace period" for filing a claim following an increase in severity of a service-connected disability). To this end, in deciding these claims, the Board has considered the history of the Veteran's disabilities as it may relate to these claims. 1. 4. Entitlement to an earlier effective date for the peripheral neuropathy An April 2002 VA clinical record reflects a "neuropathic left forefoot" upon diabetic foot examination. An April 2003 record reflects that the Veteran reported intermittent numbing/shooting pain in the 1st interspace of the left foot for one year. However, other records reflect no abnormalities of the feet (e.g., December 2002, April 2003, April 2007, May 2008, and April 2009). A December 2002 examination report shows there was "no evidence of neurologic disease as a result of diabetes". A June 2009 contract examination for residuals of head trauma includes a neurology examination. It notes the Veteran had diabetes mellitus, type 2, which was controlled with medication and diet. Upon muscle examination, he had no paralysis, weakness, atrophy, or loss. Upon neurological examination, he had motor function and sensory function (with pin prick and Pin wheel testing) within normal limits, bilaterally. He also had normal reflexes, bilaterally. The examiner stated that "[p]eripheral nerve involvement was not evident during examination." When the Veteran filed his November 2009 claim for a TDIU, he did not assert any symptoms owing to peripheral neuropathy as a complication of his diabetes. Moreover, there are no clinical records dated between November 2009 and April 19, 2010 noting any symptoms of diabetic peripheral neuropathy at least not involving his left and right upper extremities and right lower extremity. An April 19, 2010 examination report indicates the Veteran reported tingling and numbness in his hands and left foot. Upon examination, his upper extremities were normal (i.e., motor function, sensory function, reflexes). With regards to his lower extremities, his motor function and reflexes were normal, but his sensory function was abnormal with findings of deceased light touch, in a stocking pattern. The diagnosis of peripheral neuropathy was specific to the lower extremities. No such diagnosis was made referable to his upper extremities. Left and Right Upper Extremities There are no clinical records or even lay statements prior to April 19, 2010 of complaints of upper extremity peripheral neuropathy. To the contrary, the record is against such a finding. Importantly, the June 20, 2009 examination report does not reflect any complaints of peripheral neuropathy, notes all normal findings, to include after two types of sensory testing, and includes the opinion of the examiner that peripheral nerve involvement was not then evident. While the Veteran reported symptoms during his April 19, 2010 examination, he did not assert an onset date. Notably, the examiner did not diagnose the Veteran with peripheral neuropathy of the upper extremities at that time and found all normal results when testing his upper extremities. Nevertheless, the RO granted an effective date of April 19, 2010, despite the normal findings, which the Board will not change. The effective date in a claim for an increase in compensation (essentially what this claim is as the RO adjudicated it as part of a derivative claim for a TDIU) will be on the date of receipt of the claim (November 16, 2009) or the date entitlement arose, whichever is the later. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400. In this case, the date on which entitlement arose (assuming for the sake of argument that the Veteran's statements were sufficient upon which to base service connection) is April 19, 2010, the later of the two dates. Thus, it is the appropriate effective date. Right Lower Extremity There are no clinical records or even lay statements prior to April 19, 2010 of complaints of right lower extremity peripheral neuropathy. To the contrary, the record is against such a finding. As already noted, the June 20, 2009 examination report does not reflect any complaints of peripheral neuropathy, notes all normal findings, to include after two types of sensory testing, and includes the opinion of the examiner that peripheral nerve involvement was not then evident. In addition, diabetic foot examinations explain there were no abnormalities of the feet (see, e.g., December 2002, April 2003, April 2007, May 2008, April 2009 VA clinical records), and, when the Veteran complained of symptoms in 2002, they were limited to his left foot. While the Veteran reported symptoms at the April 19, 2010 examination, he did not assert an onset date and reported tingling and numbness of his left foot. There is no clinical evidence or lay evidence prior to April 19, 2010 tending to support peripheral neuropathy of his right lower extremity. Thus, April 19, 2010 is the appropriate effective date. Left Lower Extremity As already discussed, an April 2002 VA clinical record mentions a "neuropathic left forefoot" upon diabetic foot examination, and an April 2003 record indicates the Veteran reported intermittent numbing/shooting pain in the 1st interspace of his left foot for one year. The Board realizes numerous other records reflect no abnormalities of the feet (e.g., December 2002, April 2003, April 2007, May 2008, and April 2009); however, the Veteran at one time had a diagnosis of neuropathic left forefoot and, therefore, the Board is resolving all reasonable doubt in his favor and accepting that he had diagnostic neuropathy of his left lower extremity (in his left foot, especially) with symptoms that waxed and waned so sometimes were clinically evident and other times not. While the Veteran did not have symptoms in June 2009, he had previously had symptoms, and had them again in April 2010. Thus, it can be found with sufficient certainty that he had peripheral neuropathy (albeit perhaps asymptomatic in 2009), and the date of his November 2009 claim is the later of the two possible effective dates. Therefore, an earlier effective date of November 16, 2009 is warranted for the peripheral neuropathy affecting his left lower extremity, although not, as explained, for that also affecting his other extremities. TDIU 5. Entitlement to a TDIU The schedular rating criteria are designed to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C. § 1155. "Generally, the degrees of disability specified [in the Rating Schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." 38 C.F.R. §§ 4.1, 4.15. So, above and beyond that, there must be indication of inability to work in any substantially gainful capacity for a claim of entitlement to a TDIU to prevail. As already alluded to, on November 16, 2009, the Veteran filed a claim of entitlement to a TDIU based on residuals of a head injury and his diabetes mellitus (see VA Form 21-8940, TDIU application). He is also in receipt of service connection for hydronephrosis (a kidney disorder), for residuals of a right knee injury with arthritis, and for gout, the peripheral neuropathy just adjudicated, retinopathy, and hemorrhoids. In determining whether the Veteran is entitled to a TDIU, neither his nonservice-connected disabilities nor his age may be considered. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The test of individual unemployability is whether the Veteran, as a result of his service-connected disabilities, alone, is unable to secure or follow any form of substantially gainful occupation that is consistent with his education and occupational experience. 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16. The Court has held that "substantially gainful employment" 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," while the noneconomic component requires consideration of a veteran's ability to secure or follow that type of employment. Ray v. Wilkie, 31 Vet. App. 58 (2019). 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 defined as work that is more than marginal and that permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). Marginal employment is not considered substantially gainful employment. For purposes of 38 C.F.R. § 4.16, marginal employment generally shall be deemed to exist when a Veteran's earned annual income does not exceed the amount established by the U.S. Department of Commerce as the poverty threshold for one person. Marginal employment also may be held to exist, on a facts-found basis (includes but is not limited to employment in a protected environment such as a family business or sheltered workshop), when earned annual income exceeds the poverty threshold. 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), 4.18. VA cannot be compelled to use the Social Security Administration's (SSA's) or any other agency's definition of sedentary work or sedentary employment. See Withers v. Wilkie, 30 Vet. App. 139, 148 (2018), and Rouse v. McDonough, No. 19-5699 (U. S. Vet. App. April 13, 2021). Records show the Veteran stopped working in March 2000. He had worked full- time as an inspection specialist from 1985 to 2000 with no noted lost work or concessions made due to disability. See December 2009 VA Form 21-4192. His DD Form 214s explain that he worked as a weather observation technician for approximately two decades while in the military, and his medical records reflect that he worked as meteorologist. His education history is "just short a masters". His clinical records also show he had prior work experience as a private detective and for two federal agencies. A September 1999 record indicates he was anticipating retiring soon which, as mentioned, he did a relatively short time later in March 2000. The Veteran has had a combined 100 percent schedular rating for his service-connected disabilities effectively since July 6, 2015, when considering the bilateral factor, but with none individually rated as more than 60-percent disabling. The Court has recognized that a 100 percent schedular disability rating means that a Veteran is totally disabled. 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). The Veteran's award of a total (100 percent) schedular rating was based on the combination of all his service-connected disabilities albeit some more so than others, and no single disability is rated as 100-percent disabling. The Board is mindful of the Court's decision in Bradley v. Peake, 22 Vet. App. 280, 294 (2008), but as the issue before the Board does not include eligibility for special monthly compensation (SMC) or TDIU based exclusively on a single disability, this case is distinguishable from Bradley. Therefore, this TDIU claim is moot from July 6, 2015 onward. For the preceding portion of the rating period on appeal, the Veteran's combined rating was 70 percent from April 6, 2009 to April 19, 2010 and 90 percent from April 19, 2010 to July 6, 2015. (The grant of an earlier effective date for his left lower extremity diabetic peripheral neuropathy does not alter his eligibility for a TDIU during this earlier period.) However, the preponderance of the evidence is against finding him unemployable owing to his service-connected disabilities. Reference to the Veteran's disabilities is presented in additional evidence of record beyond the most detailed pertinent evidence discussed by the Board in this decision. The additional evidence does not present findings concerning his disabilities that significantly expand upon, revise, or contradict the findings in the most detailed evidence discussed by the Board in this decision. November 2017 correspondence from Dr. M. Haverty surmises the Veteran's "medical problems that led to his inability to work initially began in 2003" and that he has multiple medical problems. The Veteran filed his TDIU claim in November 2009 and reported being unable to work due to the residuals of his head injury and diabetes, so because of his service-connected disabilities. But Dr. Haverty did not specify precisely which disabilities precluded employment and why they did, which tends to lessen the ultimate probative value of his assessment since there was reference to "multiple" medical problems, i.e., not just to service-connected disabilities. On his April 2015 VA Form 9 (Substantive Appeal to the Board), the Veteran asserted that his symptoms of severe headaches, light sensitivity, frequent memory loss, dyslexia, dizziness, limited mobility, and "other various conditions" hindered his ability to work. A June 2009 contract examination for the residuals of the head injury, including headaches, indicates the Veteran reported that, when he gets a headache, it lasts several minutes to five hours. He reported that, when a headache occurs, he can go to work but requires medication. His headaches occurred, on average, three times a week. He also reported symptoms such as mood swings, confusion, problems with attention/concentration, mild memory problems, slowness of thought, difficulty understanding directions, problems reading, anxiety, fatigue, and depression, blurred vision on occasion, irritability, intolerant of heat, and lightheadedness occurring three times per day, but without vertigo. The examiner found that the Veteran's "status post head injury" was quiescent with normal physical examination. The examiner also found that the headaches are more likely than not separate from his head injury. Regardless, the examiner surmised the headaches would just mildly incapacitate the Veteran's daily activities. The examiner did not find that other reported symptoms were related to the head injury. A March 2010 VA optometry (diabetic eye examination) record shows the Veteran has diabetes without retinopathy. He did, however, have glaucoma and epiphora most likely secondary to allergies. An April 2010 examination report for the eyes shows the Veteran reported that his poor vision has kept him from being able to re-qualify for the air pollution inspector/emissions evaluation profession that he had previously worked in because state safety code mandates recertification every six months. He reported that he can no longer distinguish the subtle difference in black and white shadings. The examiner determined the effect of the Veteran's condition on his usual occupation is moderate to severe in that his decreased acuity limits his ability to judge fine differences in shading and contrast needed for his occupational demands, but that the effect on his daily activity is mild to moderate. He was diagnosed with "diabetic retinopathy with cortical cataracts (which are commonly caused by diabetes)"; the objective findings were clouding of crystalline lenses and retinal hemorrhages. An April 2010 examination for multiple conditions indicates the Veteran had one flare-up of right knee pain a week, lasting 8 hours, and precipitated by physical activity and stress. He reported that the functional impairment is balance problems and unable to climb ladders. He reported that he did not have functional impairment attributable to his left knee disability, ankle disabilities, diabetes, hydronephrosis, vascular condition, or hemorrhoids. He reported that his gout affecting his feet causes him to be clumsy and lose his balance. The report adds that, upon evaluation, he did not have cataracts or retinopathy. Examination of his feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. He did not require any assistive devise for ambulation. The examiner did find, however, that the Veteran is unable to walk or stand for long periods of time. Although he complained that his gout caused him to lose his balance, the examiner found that the uric acid test results were within normal limits and that there were no objective factors for gout of the left knee or ankles as the conditions were in remission. The right knee had painful range motion, and the feet had tenderness. There were no subjective factors for the hydronephrosis. Subsequent records indicate the Veteran's diabetic retinopathy is mild and only in the right eye, and that his cataracts are age-related, and that his macular degeneration also is age-related. A February 2011 record explains the Veteran had a painful great toe, but his uric acid level was within normal limits; he also denied blurred vision but reported that his right knee still locks up and gives way. A September 2011 record reflects that he reported balance issues and that he falls easily because he gets "tangled up in his feet" but that he thought that it was due to ear, nose and throat (ENT) issues. There was a question as to whether it was secondary to his neuropathy. A September 2014 private record shows there is no evidence of sensory deficient neuropathy, and that the Veteran denies blurred vision, double vision, lacrimation, night blindness, visual difficulties, and photophobia. A February 2015 optometry note indicates the Veteran reported that approximately a month earlier he was unable to see "the birds" when shooting; he was unsure if it was with one eye or both, and he described it as being more noticeable with the birds coming from the left-hand side. He also reported having more problems with gait/balance over the last 1-2 years and having had some recent falls. He denied blacking out, graying out, or dimming of visions. He also denied any other episodes; he reported that he would be hunting again that week and would cover each eye independently to look for details of vision loss. An April 2015 record shows the Veteran reported that his vision is "slowly blurrier over time in the right eye" and was apparently told earlier that "it's a 30% cataract causing blur in this eye." A July 30, 2015 record notes the Veteran's "loss of vision" only had been noticeable when shooting approximately a month earlier, and he had not been back out from that time so it was unclear whether the symptoms remained. He had no acute changes or concerns. His visual acuity, field, Amsler grid and other testing were all completed within normal limits/stable. It was noted that presurgical cataracts were contributing "to mild decrease in best corrected vision". Despite Dr. Haverty's assessment and the Veteran's contentions, the most probative evidence does not support the notion that he was precluded from obtaining and maintaining substantially gainful employment because of his service-connected disabilities prior to July 6, 2015. His disabilities have not been shown by the most persuasive evidence to adversely and/or significantly affect his trunk or upper extremity movements. He still can sit, grasp, type, and reach for things. Although he contends that he had tingling and numbness in his hands, no examiner found during the rating period on appeal that he had objective findings of significant peripheral neuropathy of his upper extremities and, notably, he still uses a weapon, apparently to hunt. As for his vision, the most persuasive evidence is against finding that it would have a significant impact on reading, writing, or evaluating colored images (such as weather pattern images) on a computer screen. Although he says that he can no longer work as a pollution inspector due to his inability to distinguish fine differences in shades, he has significant experience as a meteorologist, which would allow him to work with limited physical activities and not require that level of distinction in shades, tones or colors. While the Veteran has remained unemployed since March 2000, this lengthy period of unemployment has not been shown by the most competent and credible evidence to be due to his service-connected disabilities, even in combination. Taken together, his service-connected disabilities still allowed for him to maintain substantially gainful employment consistent with his history and education. For these reasons and bases, a TDIU is not warranted. And, as the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). KEITH W. ALLEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. Wishard 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.