Citation Nr: 21027837 Decision Date: 05/06/21 Archive Date: 05/06/21 DOCKET NO. 20-23 914 DATE: May 6, 2021 ORDER Entitlement to an effective date earlier than September 19, 2018 for the award of service connection for diabetic peripheral neuropathy, right upper extremity, is denied. Entitlement to an effective date earlier than September 19, 2018 for the award of service connection for diabetic peripheral neuropathy, left upper extremity, is denied. Entitlement to an effective date of June 21, 2016 for the award of service connection for diabetic peripheral neuropathy, right lower extremity, is granted. Entitlement to an effective date of June 21, 2016 for the award of service connection for diabetic peripheral neuropathy, left lower extremity, is granted. Entitlement to an initial disability rating in excess of 40 percent for diabetic peripheral neuropathy, right upper extremity, is denied. Entitlement to an initial disability rating in excess of 30 percent for diabetic peripheral neuropathy, left upper extremity, is denied. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy, right lower extremity, is denied. Entitlement to an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy, left lower extremity, is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), for the period from June 21, 2016 to April 12, 2017, is granted. REMANDED Entitlement to a TDIU for the period prior to June 21, 2016 is remanded. FINDINGS OF FACT 1. The record shows that the Veteran filed his initial claims of entitlement to service connection for peripheral neuropathy bilateral upper and lower extremities in November 2015, which the local regional office (RO) initially denied in a March 2016 rating decision that was not appealed with respect to the bilateral upper extremity claims. 2. The Department of Veterans Affairs (VA) received the Veteran's claims for service connection for peripheral neuropathy, bilateral upper extremities on April 12, 2017; a December 2018 rating decision granted service connection for peripheral neuropathy, right upper extremity, and for peripheral neuropathy, left upper extremity, each with an initial evaluation of 20 percent disabling effective September 19, 2018 (the date of the VA examination that showed the Veteran has diabetic peripheral neuropathy in his bilateral upper extremities establishing the disabilities as related to his service-connected diabetes mellitus, type II (DMII)). 3. In August 2016, the Veteran submitted a request to reconsider his bilateral lower extremity peripheral neuropathy service connection claims; the Veteran has continuously pursued the claims for service connection for bilateral lower extremity peripheral neuropathy since his initial claim was received on November 13, 2015. 4. The Veteran was first assessed with diabetic peripheral neuropathy bilateral lower extremity disabilities on June 21, 2016. 5. The Veteran's right upper extremity diabetic peripheral neuropathy is manifest by no more than moderate incomplete paralysis of the major extremity. 6. The Veteran's left upper extremity diabetic peripheral neuropathy is manifest by no more than moderate incomplete paralysis of the minor extremity. 7. The Veteran's bilateral lower extremity diabetic peripheral neuropathy disabilities are manifest by no more than moderate incomplete paralysis. 8. For the period from June 21, 2016 to April 12, 2017, the Veteran's service-connected disabilities prevented him from obtaining and maintaining employment consistent with his occupational and vocational experience. CONCLUSIONS OF LAW 1. The March 2016 rating decision is final with respect to the Veteran's claims for entitlement to service connection for peripheral neuropathy bilateral upper extremities. 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 2. The criteria for effective dates earlier than September 19, 2018, for the grant of service connection for diabetic peripheral neuropathy, right upper extremity, are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. § 3.400. 3. The criteria for effective dates earlier than September 19, 2018, for the grant of service connection for diabetic peripheral neuropathy, left upper extremity, are not met. 38 U.S.C. §§ 5101, 5107, 5110; 38 C.F.R. § 3.400. 4. The criteria for earlier effective dates of June 21, 2016 for the grant of service connection for diabetic peripheral neuropathy, right lower extremity, are met. 38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5110; 38 C.F.R. §§ 3.151, 3.156, 3.400. 5. The criteria for earlier effective dates of June 21, 2016 for the grant of service connection for diabetic peripheral neuropathy, left lower extremity, are met. 38 U.S.C. §§ 1155, 5101, 5103A, 5107, 5110; 38 C.F.R. §§ 3.151, 3.156, 3.400. 6. The criteria for an initial disability rating in excess of 40 percent for diabetic peripheral neuropathy, right upper extremity, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, Diagnostic Code (DC) 8513. 7. The criteria for an initial disability rating in excess of 30 percent for diabetic peripheral neuropathy, left upper extremity, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8513. 8. The criteria for an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy, right lower extremity, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 9. The criteria for an initial disability rating in excess of 20 percent for diabetic peripheral neuropathy, left lower extremity, are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.124a, DC 8520. 10. For the period from June 21, 2016 to April 12, 2017, the criteria for a total disability rating based on individual unemployability are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.3, 4.15, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1966 to December 1968. These matters come before the Board of Veterans' Appeals (Board) on appeal from a December 2018 rating decision of a VA RO. Under Rice v. Shinseki, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim if raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a request for TDIU, whether expressly raised by the Veteran or reasonably raised by the record, is not a separate "claim" for benefits, but rather, is part of a claim for increased compensation). This issue has been separately characterized in the issues above in accordance with that decision. Effective Date The effective date of an award of service connection is the day following separation from service; otherwise, date of receipt of claim, or the date entitlement arose, whichever is later. 38 U.S.C. § 5110(a), (b)(1); 38 C.F.R. § 3.400(b)(2). Under 38 C.F. R. § 3.400 (q)(2) and (r), the effective date for reopened claims is "the date of receipt of claim or date entitlement arose, whichever is later." See 38 C.F. R. § 3.400(q)(2), (r). The Board notes that the provisions of 38 U.S.C. § 5110 refer to the date an "application" is received. "Date of receipt" means the date on which a claim, information or evidence was received by VA. 38 C.F.R. § 3.1(r). While the term "application" is not defined in the statute, the regulations use the terms "claim" and "application" interchangeably, and they are defined broadly to include "a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit." 38 C.F.R. § 3.1(p). See also Rodriguez v. West, 189 F.3d. 1352 (Fed. Cir. 1999), cert. denied, 529 U.S. 1004 (2000). 1. Entitlement to an effective date earlier than September 19, 2018 for the award of service connection for diabetic peripheral neuropathy, right upper extremity 2. Entitlement to an effective date earlier than September 19, 2018 for the award of service connection for diabetic peripheral neuropathy, left upper extremity The Veteran contends that effective dates earlier than September 19, 2018 are warranted for the award of service connection for his bilateral upper extremity diabetic peripheral neuropathy disabilities. The record shows that the Veteran filed his initial claims for entitlement to service connection for bilateral upper extremity peripheral neuropathy disabilities due to in-service herbicide exposure in November 2015. In a March 2016 rating decision, the RO denied the claims and noted that peripheral neuropathy is not a disability for which VA had found a positive association to herbicide exposure and thus not presumptively service connected. The RO denied the claims on a direct basis because the Veteran's service treatment records (STRs) did not show evidence of in-service treatment and diagnosis for any peripheral neuropathy-related disability and the evidence did not show any diagnosed bilateral upper extremity peripheral neuropathy disability. The Veteran was notified of the decision by letter dated March 7, 2016, but the letter was returned to VA by the post office. The record shows VA contacted the Veteran by telephone and verified the March 7, 2016 letter was mailed to the wrong address. The Veteran was notified of the decision by letter dated March 31, 2016, which was mailed to the mailing address of record. No new evidence or notice of disagreement (NOD) was received by VA within one year of the notification letter, and on March 31, 2017, the March 2016 rating decision became final with respect to these claims. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. The Veteran filed claims for entitlement to service connection for bilateral upper extremity peripheral neuropathy in April 12, 2017, which the RO interpreted as a request to reopen the claims. In a July 2017 rating decision, the RO reopened but denied the claims, and the Veteran timely submitted a notice of disagreement (NOD) in July 2017. The RO then awarded service connection for the Veteran's bilateral upper extremity neuropathy disabilities due to his service-connected DMII in the December 2018 rating decision on appeal, and assigned a 40 percent rating for diabetic peripheral neuropathy, right upper extremity, and a 30 percent rating for diabetic peripheral neuropathy, left upper extremity, both effective September 19, 2018. The RO explained that September 19, 2018 is the date of the VA examination that showed that, in addition to non-service arthritis, the Veteran has bilateral upper extremity diabetic peripheral neuropathy, and is thus the date entitlement arose. As such, the RO has already assigned the earliest effective dates possible, September 19, 2018, the date the evidence shows the Veteran has current disabilities. The Board acknowledges the Veteran's contentions that earlier effective dates are warranted. However, the Board is bound by the law governing the assignment of effective dates in its determination in this case. See 38 U.S.C. § 7104(c). Accordingly, the claims of entitlement to effective dates earlier than September 19, 2018 for the grant of service connection for diabetic peripheral neuropathy, right upper extremity, and for the grant of service connection for diabetic peripheral neuropathy, left upper extremity, must be denied. In summary, the current effective date of September 19, 2018, corresponds to the date the record shows the Veteran has currently diagnosed bilateral upper extremity diabetic peripheral neuropathy. The record contains no appeal in connection with these claims with the March 2016 rating decision, nor did the Veteran submit new and material evidence within a year of the decision's issuance. Earlier effective dates are not warranted. 3. Entitlement to an effective date of June 21, 2016 for the award of service connection for peripheral neuropathy, right lower extremity 4. Entitlement to an effective date of June 21, 2016 for the award of service connection for peripheral neuropathy, left lower extremity The Veteran contends that effective dates earlier than September 19, 2018 are warranted for the award of service connection for his bilateral lower extremity peripheral neuropathy disabilities. The record shows that the Veteran filed his initial claims for entitlement to service connection for bilateral lower extremity peripheral neuropathy disabilities due to in-service herbicide exposure in November 2015. In the March 2016 rating decision, the RO denied the claims and noted that peripheral neuropathy is not a disability for which VA had found a positive association to herbicide exposure and thus not presumptively service connected. The RO denied the claims on a direct basis because the Veteran's STRs did not show evidence of in-service treatment and diagnosis for any peripheral neuropathy related disability and a December 2015 VA examiner opined that the Veteran's disabilities were more likely due to S1 level degenerative disc disease and mild lumbar spinal stenosis. As discussed above, the Veteran was notified of the decision by letter dated March 31, 2016. The Veteran did not submit an NOD, but in August 2016, he requested reconsideration of the claims for entitlement to service connection for bilateral lower extremity peripheral neuropathy. The RO denied service connection in an October 2016 rating decision, the Veteran filed a timely NOD in April 2017, the RO confirmed and continued the denial in a July 2017 rating decision, and the Veteran filed another NOD in July 2017. The RO then awarded service connection for the Veteran's bilateral lower extremity neuropathy disabilities due to his service-connected DMII in the December 2018 rating decision, and assigned each disability a 20 percent rating effective September 19, 2018. The RO explained that September 19, 2018 is the date of the VA examination that showed that, in addition to his non-service connected S1 radiculopathy, the Veteran also has bilateral upper extremity diabetic peripheral neuropathy, and is thus the date entitlement arose. The Veteran filed a timely NOD in January 2019, a statement of the case issued in March 2020 and the Veteran filed a timely VA Form 9 in April 2020, perfecting the appeal. Of note, in March 2016, the RO denied the Veteran's claims of entitlement to service connection for bilateral lower extremity diabetic neuropathy and the Veteran did not perfect the appeal. Thereafter, a review of the record shows that in August 2016, the Veteran requested reconsideration of the March 2016 rating decision. After the RO denied the claims in the October 2016 rating decision, the Veteran filed a timely NOD in April 2017, the RO again denied in a July 2017 rating decision and the Veteran filed another NOD in July 2017. Service connection was awarded in December 2018, and the Veteran perfected the appeal as discussed above. Accordingly, when reviewing this procedural development in the light most favorable to the Veteran, the Board will construe the August 2016 request to reconsider the claims as a disagreement with the March 2016 denials of service connection, and thus finds that the Veteran has continuously pursued his November 2015 claims. In relevant part, the Veteran underwent a private diabetes examination in June 2015 and the examiner found that the Veteran did not have diabetic peripheral neuropathy. A December 2015 VA examiner agreed, finding no symptoms attributable to diabetic peripheral neuropathy. The December 2015 VA examiner found that the Veteran had evidence of probable S1 nerve root injury which the examiner suspected was due to the Veteran's degenerative disc disease in his back. The Veteran's VA treatment records show continuing foot complaints. See, e.g., December 2015 and February 2015 VA Treatment Notes. A June 21, 2016 VA neurology consultation shows that the Veteran complained of burning in his feet, sensation deficits and some balance issues. The VA physician indicated the Veteran's presentation was most likely a combination of diabetes mellitus and low B12. A November 2016 VA treatment record notes that the Veteran was status post right externa iliac artery stent and had severe diabetic neuropathy that was lifestyle limiting, thus confirming the June 2016 assessment of diabetic peripheral neuropathy. In summary, given the procedural development in this case and evidence of record, the Board finds that the assignment of effective dates of June 21, 2016, and no earlier, are warranted, for the award of service connection for diabetic peripheral neuropathy, right lower extremity, and for diabetic peripheral neuropathy, left lower extremity. The assignment of effective dates of June 21, 2016, but not earlier, are granted. Increased Rating Disability evaluations (ratings) are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. § Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual disorders in civil occupations. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The words "mild," "moderate," "moderately sever," and "severe" as used in the various diagnostic codes are not defined in the Rating Schedule. Regulations provide that ratings for peripheral neurological disorders are to be assigned based the relative impairment of motor function, trophic changes, or sensory disturbance. 38 C.F.R. § 4.120. Consideration is also given for loss of reflexes, pain, and muscle atrophy. See 38 C.F.R. §§ 4.123, 4.124. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. The disability ratings for the peripheral nerves are for unilateral involvement; when bilateral, the ratings combine with application of the bilateral factor. 38 C.F.R. § 4.124a, Note at "Diseases of the Peripheral Nerves." The Note to 38 C.F.R. § 4.124a establishes a maximum disability rating for conditions that are wholly sensory, as opposed to a minimum disability rating for conditions that are more than wholly sensory. See Miller v. Shulkin, 28 Vet. App. 376 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 5. Entitlement to an initial disability rating in excess of 40 percent for peripheral neuropathy, right upper extremity 6. Entitlement to an initial disability rating in excess of 30 percent for peripheral neuropathy, left upper extremity The Veteran contends that his right upper extremity diabetic peripheral neuropathy warrants a higher initial rating than the currently assigned 40 percent, and that his left upper extremity diabetic peripheral neuropathy warrants a higher initial rating than the currently assigned 30 percent. The Veteran's upper extremity neuropathy has been appropriately rated under DC 8513 for paralysis of all radicular nerve groups. Under DC 8513, moderate neuropathy warrants a 40 percent evaluation for the major extremity, and a 30 percent evaluation for the minor extremity. Severe neuropathy warrants a 70 percent evaluation for the major extremity, and a 60 percent evaluation for the minor extremity. With complete paralysis of all radicular groups in the major extremity, a 90 percent evaluation is assigned, and an 80 percent evaluation is assigned for the minor extremity. The Board notes that the record reflects the Veteran is right-hand dominant, i.e., his right side is the major upper extremity. Turning to the evidence of record, the Veteran was afforded a VA diabetic sensory-motor peripheral neuropathy examination in September 2018. The examiner diagnosed the Veteran with bilateral upper extremity diabetic peripheral neuropathy. Upon examination, reflex findings were normal and muscle strength was normal of 5/5 throughout the bilateral upper extremities. The examination report shows that the Veteran reported severe intermittent pain, severe paresthesias and/or dysesthesias and severe numbness of his bilateral upper extremities. The Veteran had no muscle atrophy and no trophic changes. The examiner specifically indicated that the Veteran had "moderate" incomplete paralysis of the radial, median, and ulnar nerves and noted that the severity of the Veteran's bilateral upper extremity diabetic peripheral neuropathy was moderate. From the time of the September 2018 diagnosis, there are no complaints related to upper extremity diabetic peripheral neuropathy in the Veteran's VA treatment records. In a January 2019 functional assessment, a private physician, Dr. H.S., notes that the Veteran's bilateral upper extremity diabetic peripheral neuropathy makes it difficult to hold on or grasp any object, including a pen or pencil, and that he is unable to type on a keyboard for any length of time After review of the evidence, the Board finds that the Veteran's bilateral upper extremity diabetic peripheral neuropathy is moderate in degree. At no time has there been severe incomplete paralysis of either upper extremity. The reflexes are not lost, and there is no muscle atrophy. The Veteran's bilateral upper extremity diabetic peripheral neuropathy has primarily manifested in decreased sensation causing difficulties writing and grasping and holding objects. Thus, the Board finds that for the entire appeal period, the Veteran's neuropathy for his right and left upper extremity has resulted in no more than moderate incomplete paralysis and that no more than a 40 percent rating is warranted for his right upper extremity diabetic peripheral neuropathy, and no more than a 30 percent rating is warranted for his left upper extremity diabetic peripheral neuropathy. As the September 2018 examiner also noted that the Veteran's peripheral neuropathy of the bilateral upper extremities resulted in incomplete paralysis of the median and ulnar nerve, the Board has also considered ratings under DC 8515 (median nerve) and DC 8516 (ulnar nerve). However, neither of these diagnostic codes provides for a higher rating for moderate incomplete paralysis. In coming to this conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The claims for increased ratings are denied. 7. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy, right lower extremity 8. Entitlement to an initial disability rating in excess of 20 percent for peripheral neuropathy, left lower extremity The Veteran seeks higher initial ratings for his bilateral lower extremity diabetic peripheral neuropathy. The Veteran's bilateral lower extremity peripheral neuropathy disabilities are each currently rated as 20 percent disabling under DC 8520, paralysis of the sciatic nerve. Under DC 8520, moderate incomplete paralysis is rated 20 percent disabling, moderately severe incomplete paralysis is rated 40 percent disabling, and severe incomplete paralysis (with marked muscular atrophy) is rated 60 percent disabling. A maximum 80 percent rating is warranted where there is complete paralysis and "the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost." Turning to the evidence of record, the Veteran underwent a VA diabetic sensory-motor peripheral neuropathy examination in December 2015, in connection with which the VA examiner indicated that the Veteran did not then have a diagnosis of, and had never been diagnosed with, diabetic peripheral neuropathy. The examination report notes that a diagnosis of unspecified peripheral neuropathy appears on the Veteran's problem list in September 2015 and also notes the Veteran's complaints of burning pain in his toes. The report further includes findings from an abnormal concurrent EMG study. The examiner found that the EMG study showed evidence of probable S1 nerve root injury which the examiner suspected was due to degenerative disc disease of the Veteran's back, also noting that sensory nerves in the Veteran's bilateral lower legs and left upper extremity were entirely normal, ruling out a generalized peripheral neuropathy, including diabetic. The Veteran's VA treatment records show recurring complaints of pain and burning in his toes and feet, however, as discussed above, diabetic peripheral neuropathy was not assessed until June 2016. The June 2016 VA neurology consultation note shows that the Veteran reported burning in his feet and sensation deficits as well as some balance issues. The Veteran reported that the soles of his feet felt as if they were on fire all the time, that he felt unsteady on his feet at times, that he cannot tell the difference between carpet and tile, and that he cannot tell if ceramic tile is cold. The VA physician noted an 80 percent loss of sensation in the Veteran's feet to his mid-shins. A November 2016 VA treatment note then shows that a VA physician assessed severe diabetic neuropathy that is lifestyle limiting. A February 2017 VA neurology note shows that the Veteran reported that the pain in his feet is much worse, severe burning pain continued in his feet with sharp shooting pain into his toes, which was particularly worse during the night. The Veteran also reported increased numbness in his feet, that his balance was getting worse, that he started using a cane and that he had fallen two or three times since his last visit. In March 2017, a VA treatment record shows that the Veteran reported that he could not feel his feet at times. The Veteran underwent a VA diabetes mellitus examination in May 2017, at which time the Veteran reported that his neuropathy had shut him down and that he was tired all the time as it kept him up all the time with burning. The May 2017 VA examiner noted trophic changes described as no hair on feet and noted decreased deep tendon reflexes bilaterally. Upon examination in September 2018, reflex findings were normal and muscle strength was normal of 5/5 throughout the bilateral lower extremities. The examination report shows that the Veteran reported severe intermittent pain, severe paresthesias and/or dysesthesias and severe numbness of his bilateral lower extremities. The Veteran had no muscle atrophy but trophic changes were described as loss of hair bilateral lower extremities. The examiner specifically indicated that the Veteran had "moderate" incomplete paralysis of the sciatic nerve and noted that the severity of the Veteran's bilateral lower extremity diabetic peripheral neuropathy was moderate. In the private January 2019 functional assessment, Dr. H.S. found that the Veteran's bilateral lower extremity diabetic peripheral neuropathy pain caused the inability to stand for 15 minutes without needing to lean on something. Dr. H.S. noted poor balance, the ability to walk for 10 minutes, slowly and assisted with a cane, and a history of falling on average at least once a month, if not more, due to leg numbness. Dr. H.S. also noted that while the Veteran can sit for 30 minutes at a time depending on the chair, he is uncomfortable for most of that time due to neuropathy pain, numbness, and tingling. The Board finds that the Veteran's symptoms in both lower extremities more closely approximate moderate incomplete paralysis throughout the entire appeal period and thus, the assignment of a 20 percent rating is warranted for both lower extremities. The Board finds that the Veteran's severe intermittent pain, paresthesias and/or dysesthesias and numbness, decreased sensation and functional impact caused by the neuropathy more nearly approximate moderate incomplete paralysis. A review of the Veteran's VA treatment records shows decreased reflexes in the Veteran's bilateral Achilles and bilateral knee areflexia in February 2017. However, the reflexes are not shown to be lost, and there is no muscle atrophy. Additionally, the Veteran's gait is consistently noted as steady and within normal limits throughout the period on appeal. not lost, and there is no muscle atrophy. The Veteran's bilateral lower upper extremity diabetic peripheral neuropathy has primarily manifested in pain and decreased sensation causing difficulties with prolonged sitting and standing, and balance difficulties. At no time were either lower extremity diabetic peripheral neuropathy disabilities described as moderately severe by the examiners, nor does the Board find that the probative and persuasive evidence of record supports higher ratings. Accordingly, the Board finds that ratings in excess of 20 percent for bilateral lower extremity diabetic peripheral neuropathy are not warranted. In sum, the Veteran's diabetic peripheral neuropathy of the bilateral lower extremities has more nearly approximated moderate incomplete paralysis. Thus, ratings of 20 percent, but not higher, for the right and left lower extremity are warranted for the entire appeal period. In coming to this conclusion, the Board has considered the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claims, the doctrine is inapplicable. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. The claims for increased ratings are denied. 9. Entitlement to a TDIU for the period from June 21, 2016 to April 12, 2017 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. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. Entitlement to a TDIU is based on an individual's particular circumstances. 38 C.F.R. § 4.16; Ray v. Wilkie, 31 Vet. App. 58, 72 (2019) (quoting Rice v. Shinseki, 22 Vet. App. 447, 452 (2009); Todd v. McDonald, 27 Vet. App. 79, 85-86 (2014). Thus, in adjudicating a TDIU claim, VA must consider the individual veteran's education, training, and work history, but not his or her age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Todd, 27 Vet. App. at 85-86. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more service-connected disabilities, provided that one of those disabilities is ratable at 40 percent or more, and there is sufficient additional service-connected disabilities to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Disabilities of one or both lower extremities (including the bilateral factor), disabilities resulting from common etiology or a single accident, or disabilities affecting a single body system will be considered as one disability for the above purposes of one 60 percent disability or one 40 percent disability. 38 C.F.R. § 4.16(a). The Board acknowledges the issue of entitlement to a TDIU for the period from June 12, 2016 to April 12, 2017 was not adjudicated by the RO in the first instance. Based on the grant of the claim, however, there is no prejudice to the Veteran. In light of the Board's findings herein, for the period from June 21, 2016 to April 12, 2017, the Veteran was service-connected for: post-traumatic stress disorder (PTSD), evaluated as 50 percent disabling; DMII, evaluated as 20 percent disabling; diabetic peripheral neuropathy, right lower extremity, evaluated as 20 percent disabling; and diabetic peripheral neuropathy, left lower extremity, evaluated as 20 percent disabling. When determining if the criteria for statutory TDIU have been met, the Board must consider both the bilateral factor under 38 C.F.R. § 4.26, and if multiple disabilities are part of the same disease or disability process. In this instance, the Board notes that the Veteran's bilateral lower extremity diabetic peripheral neuropathy disabilities are associated with his service-connected DMII. When considering the bilateral factor and common etiology of his bilateral lower extremity diabetic peripheral neuropathy with his service-connected DMII, for the period from June 21, 2016 to April 12, 2017, the Veteran meets the schedular criteria for consideration of TDIU. The Veteran contends that his service-connected disabilities prevent him from working in a substantially gainful occupation. See April 2019 VA Form 21-8940. As noted above, the Board has jurisdiction over a TDIU claim as part and parcel of the Veteran's increased rating claim if raised by the record under Rice v. Shinseki. The Veteran is in receipt of a TDIU from April 12, 2017, the date that VA received a substantially complete application claim for sleep issues, which the RO construed as a claim for an increased evaluation of service-connected PTSD. However, consistent with the Board's findings herein, the Veteran's bilateral lower extremity diabetic neuropathy increased rating claims relate to his November 13, 2015 claim. Thus, the issue of entitlement to a TDIU for the period from November 13, 2015 should be addressed. The record shows that the RO awarded a TDIU effective April 12, 2017 based solely on the severity of the Veteran's PTSD symptomatology. The record shows that during a July 2017 VA PTSD examination, the Veteran described significant difficulty functioning in the workplace due to anger, irritability, impatience and problems with concentration and focus, and the examiner opined that his PTSD symptomatology caused occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. Current symptoms were noted as depressed mood, anxiety, suspiciousness, near-continuous panic or depression affecting the ability to function independently, appropriately, and effectively, chronic sleep impairment, mild memory loss, such as forgetting names, directions or recent events, flattened affect, impaired judgment, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a worklike setting, suicidal ideation and impaired impulse control, such as unprovoked irritability with periods of violence. Additionally, during a February 2014 VA PTSD examination, symptoms were noted as depressed mood, anxiety, suspiciousness, near-continuous anxiety and depression affecting the Veteran's ability to function independently, appropriately and effectively, chronic sleep impairment, difficulty with concentration and focus, flattened effect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, passive suicidal ideation, and impaired impulse control with periods of unprovoked irritability. The Board notes the February 2014 VA PTSD examination was performed prior to the period on appeal, but notes that the Veteran's PTSD symptomatology remained substantially the same. Additionally, the September 2018 VA examiner noted that the Veteran's ability to work safely is impaired due to decreased sensation in his extremities due to his bilateral upper and lower extremity diabetic peripheral neuropathy. Based on the evidence above, the Board finds that the Veteran is unable to secure and follow a substantially gainful occupation due to his service-connected disabilities for the period from June 21, 2016 to April 12, 2017 REASONS FOR REMAND 1. Entitlement to a TDIU for the period prior to June 21, 2016 Prior to June 21, 2016, the Veteran was service-connected for: PTSD, evaluated as 50 percent disabling; and DMII, evaluated as 20 percent disabling. Thus, he does not meet the schedular requirements for the period prior to June 21, 2016. However, for those veterans who fail to meet the percentage requirements set forth above in accordance with 38 C.F.R. § 4.16(a), total disability ratings for compensation may nevertheless be assigned on an extraschedular basis by the Director of Compensation Service, when it is found that the service-connected disabilities are sufficient to produce unemployability. 38 C.F.R. § 4.16(b). Although the Board cannot grant a TDIU in the first instance under this regulation, it must still determine whether a remand for referral to the Director of Compensation Service is so warranted for extraschedular consideration. See Bowling v. Principi, 15 Vet. App. 1, 10 (2001). The Board finds given that the Veteran's PTSD symptomatology remained substantially the same as from the February 2014 VA PTSD examination to the July 2017 PTSD examination, there is sufficient evidence to warrant referral for consideration by the Director of Compensation Service of the appropriateness of the assignment of an extraschedular TDIU under 38 C.F.R. § 4.16(b). Although the Board regrets the additional delay caused by a remand, the Board is precluded from assigning an extraschedular TDIU in the first instance. See 38 C.F.R. § 4.16(a). In so remanding, the Board also notes that its referral of this claim for extraschedular consideration under § 4.16(b) is simply a factual finding that does not bind the Board or require the Board to award an extraschedular rating should the claim be returned to the Board. Ray v. Wilkie, 31 Vet. App. 58 (2019). The matter is REMANDED for the following action: 1. Refer the case to the Director of Compensation Service for extraschedular consideration in accordance with 38 C.F.R. § 4.16(b). DUSTIN L. WARE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. Battaile 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.