Citation Nr: 21029126 Decision Date: 05/12/21 Archive Date: 05/12/21 DOCKET NO. 18-45 245 DATE: May 12, 2021 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) for the period from May 30, 2013 to February 13, 2014 is granted. Entitlement to an effective date earlier than February 13, 2014 for the grant of service connection for peripheral neuropathy of the femoral nerve of the right lower extremity is denied. Entitlement to an effective date earlier than February 13, 2014 for the grant of service connection for peripheral neuropathy of the femoral nerve of the left lower extremity is denied. Entitlement to an effective date earlier than October 8, 2009 for the grant of service connection for diabetic peripheral vascular disease of the right lower extremity is denied. Prior to December 2, 2019, an initial disability rating in excess of 20 percent for peripheral neuropathy of the femoral nerve of the right lower extremity is denied. As of December 2, 2019, a disability rating of 30 percent for peripheral neuropathy of the femoral nerve of the right lower extremity is granted. Prior to December 2, 2019, an initial disability rating in excess of 20 percent for peripheral neuropathy of the femoral nerve of the left lower extremity is denied. As of December 2, 2019, a disability rating of 30 percent for peripheral neuropathy of the femoral nerve of the left lower extremity is granted. FINDINGS OF FACT 1. The Veteran's service-connected disabilities precluded him from obtaining and maintaining substantially gainful employment for the period from May 30, 2013 to February 13, 2014. He has been in receipt of a combined 100 percent disability rating since February 13, 2014. 2. An increase in the severity of diabetic peripheral neuropathy of the femoral nerves of the bilateral lower extremities was not factually ascertainable until April 3, 2014. 3. An increase in the severity of right lower extremity peripheral vascular disease was not factually ascertainable until October 8, 2009. 4. Prior to December 2, 2019, the Veteran's peripheral neuropathy of the right lower extremity resulted in no more than moderate incomplete paralysis of the femoral nerve. 5. As of December 2, 2019, the Veteran's peripheral neuropathy of the right lower extremity resulted in severe incomplete paralysis of the femoral nerve. 6. Prior to December 2, 2019, the Veteran's peripheral neuropathy of the left lower extremity resulted in no more than moderate incomplete paralysis of the femoral nerve. 7. As of December 2, 2019, the Veteran's peripheral neuropathy of the left lower extremity resulted in severe incomplete paralysis of the femoral nerve. CONCLUSIONS OF LAW 1. The criteria for entitlement to a TDIU for the period from May 30, 2013 to February 13, 2014 are met. 38 C.F.R. §§ 3.341, 4.16, 4.19. 2. The criteria for effective dates earlier than February 13, 2014, for the grant of service connection for diabetic peripheral neuropathy of the femoral nerves of the bilateral lower extremities are not met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. § 3.400, 4124a, Diagnostic Code 8526. 3. The criteria for an effective date earlier than October 8, 2009 for the grant of service connection for diabetic peripheral vascular disease of the right lower extremity are not met. 38 U.S.C. §§ 1155, 5110; 38 C.F.R. §§ 3.400, 4.104, Diagnostic Code 7114. 4. Prior to December 2, 2019, the criteria for an initial disability rating in excess of 20 percent for peripheral neuropathy of the femoral nerves of the bilateral lower extremities are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8526. 5. As of December 2, 2019, the criteria for an increased disability rating of 30 percent for peripheral neuropathy of the femoral nerves of the bilateral lower extremities are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.7, 4.10, 4.21, 4.124a, Diagnostic Code 8526. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1970 to August 1974. This matter comes before the Board of Veterans' Appeals (Board) from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico. These claims have previously been before the Board, most recently in December 2020, following an order of the Court of Appeals for Veterans Claims (CAVC) vacating a September 2019 Board decision pursuant to the terms of a Joint Motion for Remand entered into by the Veteran and VA. In December 2020, the Board remanded the claims for earlier effective dates for the grants of service connection for diabetic peripheral neuropathy of the femoral nerves of the bilateral lower extremities and diabetic peripheral vascular disease of the right lower extremity to obtain retrospective medical opinions regarding when those conditions became factually ascertainable. The claims for increased ratings for the peripheral neuropathy of the femoral nerves of the bilateral lower extremities and for a TDIU were remanded as inextricably intertwined with the earlier effective date claims. As the record reflects that the retrospective medical opinions were obtained, the Board finds that there has been substantial compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This appeal has been advanced on the Board's docket pursuant to 38 U.S.C. § 7107(a)(2); 38 C.F.R. § 20.902(c). TDIU for the period from May 30, 2013 to February 13, 2014 The Veteran contends that his service-connected diabetes and related complications prevent him from obtaining and maintaining substantially gainful employment. In order to be entitled to a TDIU, the evidence must show that the Veteran was incapable "of performing the physical and mental acts required" to be employed. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The central question is whether a veteran's service-connected disabilities alone are of sufficient severity to produce unemployability, and not whether a veteran could find employment. Id. Consideration may be given to a veteran's education, training, and special work experience, but not to his or her age or to impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. Entitlement to a TDIU is based on an individual's particular circumstances. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). 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 either: a) one disability that is rated at least 60 percent disabling, or b) two or more disabilities that amount to a combined disability rating of at least 70 percent and one of which is rated at least 40 percent disabling. 38 C.F.R. § 4.16(a). Substantially gainful employment is defined as work which is more than marginal, and which permits the individual to earn a living wage. Moore v. Derwinski, 1 Vet. App. 356 (1991). See also Faust v. West, 13 Vet. App. 342 (2000). Here, the Veteran is service connected for diabetes mellitus, type 2, peripheral neuropathy of the bilateral lower and upper extremities and peripheral vascular disease of the bilateral lower extremities. The Veteran has a combined disability rating of 90 percent from May 30, 2013, including a 40 percent disability rating for peripheral neuropathy of the sciatic nerve of the right lower extremity. The Veteran thus meets the schedular requirements for a TDIU as of that date. The Board notes that the Veteran has a combined disability rating of 100 percent, effective February 13, 2014. As a 100 percent rating is the maximum available, TDIU after that date is moot. The record reflects that the Veteran is a high school graduate who last worked as a store manager as part of a family business until December 1999. The record reflects that the Veteran stopped working due to a nonservice-connected liver condition. As relevant to the time period in question, a July 2013 VA examination for the Veteran's diabetes noted that the Veteran's conditions impacted his ability to work by precluding him from a job that required prolonged standing, walking or sitting. The examiner concluded that the Veteran was unable to work on a job that required hard physical activities but could perform light jobs. The Veteran reported in a May 2014 notice of disagreement that he was incapable of gainful employment because he could not walk due to his diabetic complications. VA treatment records from the relevant time period reflect the Veteran's continuing complaints of leg pain and loss of balance, as well as his need for a cane for ambulation. The Veteran was seen in May 2013 on an emergency basis with complaints of poorly controlled peripheral neuropathy symptoms affecting his ambulation. Affording the Veteran the benefit of the doubt, the Board finds that the preponderance of evidence weighs in favor of granting a TDIU for the time period from May 30, 2013 to February 13, 2014. The Veteran's lay statements, the treatment records and the July 2013 VA examination reflect that the Veteran's peripheral neuropathy symptoms impacted his ability to engage in employment activities that required prolonged standing, walking or sitting. The opinion of the July 2013 VA examiner that the Veteran could perform light duty work is belied by her conclusion that the Veteran could not engage in prolonged sitting. Based on the foregoing, the Board finds that the treatment records, VA examination and lay statements establish that the Veteran's service-connected diabetic complications precluded him from performing any type of gainful employment, warranting a TDIU for the period from May 30, 2013 to February 13, 2014. Effective Dates Generally, the effective date of an award of disability compensation based on a claim for an increase will be the date of receipt of the claim or the date the entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400(o). However, this general rule is subject to 38 C.F.R. § 3.400(o)(2), which indicates the effective date shall be the "earliest date as of which it is factually ascertainable based on all evidence of record that an increase in disability had occurred if a complete claim or intent to file a claim is received within 1 year from such date, otherwise, date of receipt of claim." Where medical records indicate an increase in a disability, their "receipt may be used to establish effective dates for retroactive benefits based on facts found of an increase in a disability only if a complete claim or intent to file a claim for an increase is received within 1 year of date of the report of examination, hospitalization or medical treatment." Id. These provisions apply "only when such reports relate to examination or treatment of a disability for which service connection has previously been established." Id. The effective date "shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of application therefore." 38 U.S.C. § 5110(a). Pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913, all complications consequentially resulting from diabetes mellitus are considered part of the "diabetic process," and are therefore evaluated when a Veteran initiates a claim for an increase of their service-connected diabetes mellitus. As noted, the Board remanded the claims for earlier effective dates in order to obtain retrospective medical opinions as to the date the increase in the severity of the Veteran's peripheral neuropathy of the femoral nerves of the bilateral lower extremities and peripheral vascular disease of the right lower extremity were factually ascertainable. The retrospective opinion was obtained in January 2021 and a clarification and an addendum opinion were obtained in February 2021. In the February 2021 clarification, the VA examiner noted that it was factually ascertainable that the Veteran had diabetic neuropathy of the bilateral lower extremities as early as an electrodiagnostic study conducted in 2010 that was corroborated by a study conducted in 2013, but that it could not be stated that the femoral nerves were involved at those times because the raw data from the studies was "not available." Significantly, however, the July 2013 VA examiner for the Veteran's peripheral neuropathy reported normal findings with respect to the Veteran's bilateral femoral nerves, weighing heavily against a finding that the femoral nerves were involved on studies conducted in either 2010 or 2013. The first indication in the record that the Veteran's femoral nerves were involved is in the April 2014 report of VA examination. The Board thus finds the date of that examination, April 3, 2014, as the date upon which it was first factually ascertainable that the Veteran's disability underwent an increase. As the RO granted an effective date of February 13, 2014, prior to the date of factual ascertainment of the increase in the severity of the condition, the Board finds no basis for an earlier effective date. The Board acknowledges the Veteran's contention that the post-remand VA medical opinion is inadequate. Although the VA examiner unnecessarily addressed service connection in the initial January 2021 opinion, the February 2021 clarification addressed the issue of when the femoral nerve involvement first became factually ascertainable and provided adequate reasoning for the conclusions that there was no evidence of femoral nerve involvement in the 2010 or 2013 electrodiagnostic studies. With respect to the peripheral vascular disease of the right lower extremity, the RO granted an earlier effective date of October 8, 2009. As this is not considered a full grant of benefits, the issue remains on appeal. The assignment of the October 8, 2009 effective date was based on the opinion of the January 2021 VA examiner. The examiner concluded in the February 2021 clarification that it was first factually ascertainable that the Veteran had diabetic peripheral vascular disease in December 2003, but that there was no mention at that time as to which extremity was involved. In a further addendum in February 2021, the VA examiner concluded that the first indication that the condition affected the right lower extremity was the October 8, 2009 Disability Benefits Questionnaire (DBQ) for the Veteran's diabetes. The Board finds the conclusion by the examiner entitled to probative weight supporting the assignment of October 8, 2009 as the effective date for diabetic peripheral vascular disease in the right lower extremity. Accordingly, the Board finds an effective date earlier than October 8, 2009 is not warranted. Based on the foregoing, the claims for earlier effective dates for the Veteran's peripheral neuropathy of the femoral nerves of the bilateral lower extremities and for peripheral vascular disease of the right lower extremity are denied. As the preponderance of evidence is against the Veteran's claims, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. Increased ratings for peripheral neuropathy of the femoral nerves of the bilateral lower extremities Generally, disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation, as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question of which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where the appellant has expressed dissatisfaction with the assignment of a rating, separate, or "staged," ratings can be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran has been granted initial 20 percent ratings for peripheral neuropathy of the femoral nerves of the bilateral lower extremities pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8526. Under this code, a 20 percent evaluation is assigned for moderate incomplete paralysis, a 30 percent rating is assigned for severe incomplete paralysis and a 40 percent rating is assigned for complete paralysis of quadriceps extensor muscles. The terms "moderate" and "severe" are not defined in VA regulations, and the Board must arrive at an equitable and just decision after having evaluated the evidence. 38 C.F.R. § 4.6. According to MERRIAM WEBSTER, "moderate" means "tending toward the mean or average amount or dimension." See www.merriam-webster.com/dictionary/moderate. "Severe" means "of a great degree." See www.merriam-webster.com/dictionary/severe. After review of the evidence, the Board finds the Veteran's peripheral neuropathy of the femoral nerves of the bilateral lower extremities approximated incomplete paralysis that was moderate prior to December 2, 2019 and severe thereafter. The Board also finds no evidence that the Veteran's peripheral neuropathy of the femoral nerves of the bilateral lower extremities approximated complete paralysis at any point during the appeal period. Accordingly, the 20 percent ratings are increased to 30 percent effective December 2, 2019, and the claims for increased ratings are otherwise denied. The evidence of record includes VA examinations conducted in April 2014, May 2018, December 2019 and January 2021. The April 2014 VA examiner noted that the Veteran had peripheral neuropathy of the femoral nerves of the bilateral lower extremities and described the incomplete paralysis as moderate. The May 2018 VA examiner also described the Veteran's peripheral neuropathy of the femoral nerves of the bilateral lower extremities as manifesting as moderate incomplete paralysis. The May 2018 VA examiner noted that the Veteran had moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias and moderate numbness. The examiner described noted the Veteran's symptoms as including loss of body hair, discoloration changes and shiny pretibials. The Veteran's light touch sense was decreased in the legs and absent in the feet and his position sense, vibration sensation and cold sensation were also noted to be absent. In December 2019, the VA examiner noted that the Veteran experienced moderate constant pain, severe intermittent pain, severe paresthesias and/or dysesthesias and severe numbness. The Veteran's light touch sense was decreased in the legs and absent in the feet and position sense, vibration sensation and cold sensation were also noted to be absent. The examiner again noted loss of body hair, discoloration changes and shiny pretibials in the Veteran's bilateral lower extremities. The examiner described the Veteran's incomplete paralysis of the bilateral femoral nerves as moderate, but also noted that the Veteran's peripheral neuropathy had worsened since his May 2018 examination. The January 2021 VA examiner noted that the Veteran had severe constant pain, paresthesias and/or dysesthesias and numbness. The Veteran's light touch, position and vibration sensation remained unchanged from the prior examinations and the examiner noted severe discoloration of the distal portion of the lower extremities, with shiny pretibials and loss of body hair. The Veteran was noted to be in a wheelchair and unable to ambulate freely. The examiner described the incomplete paralysis of the Veteran's femoral nerves of the bilateral lower extremities as moderate. The Board finds that the symptoms of the Veteran's peripheral neuropathy of the femoral nerves of the bilateral lower extremities more closely approximated moderate incomplete paralysis for the period prior to December 2, 2019 and severe incomplete paralysis thereafter. Although the December 2019 and January 2021 VA examiners described the incomplete paralysis as moderate, both examiners noted the symptoms that were more severe than the prior examinations, and the December 2019 VA examiner described the Veteran's condition as having worsened since the May 2018 VA examination. Moreover, the competent medical and lay evidence reflect the Veteran's worsening condition, including the need for medication to address his peripheral neuropathy symptoms and the fact that he is now wheelchair-bound. Based on the foregoing, the Board concludes that a 30 percent disability rating is warranted, effective December 2, 2019. As the evidence does not reflect complete paralysis of the quadriceps extension muscle, a rating in excess of 30 percent is not warranted. The preponderance of evidence is against the Veteran's claim to the extent that it is denied, and, accordingly, the benefit of the doubt doctrine is inapplicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. S.C. KREMBS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Snyder, 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.