Citation Nr: 21040419 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 19-19 371 DATE: July 3, 2021 ORDER Entitlement to an initial evaluation greater than 70 percent for an acquired psychiatric disorder diagnosed as a depressive disorder is denied. Entitlement to an initial evaluation greater than 50 percent for sleep apnea is denied. Entitlement to an initial 40-percent evaluation for right lower extremity peripheral neuropathy is granted subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to an initial 40-percent evaluation for left lower extremity peripheral neuropathy is granted subject to the applicable regulations concerning the payment of monetary benefits. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) from November 8, 2011, is granted subject to the applicable regulations concerning the payment of monetary benefits. FINDINGS OF FACT 1. The most probative evidence reflects that, throughout the initial rating period, the Veteran's acquired psychiatric disorder, diagnosed as a depressive disorder, has not caused total occupational and social impairment. 2. The most probative evidence reflects that, throughout the initial rating period, the Veteran's sleep apnea has not manifested as chronic respiratory failure with carbon dioxide retention or cor pulmonale or required a tracheostomy. 3. The most probative evidence reflects that, throughout the initial rating period, the evidence shows the Veteran's right lower extremity neuropathy more closely approximates moderately severe incomplete paralysis of the sciatic nerve, but it has not more nearly approximated to severe incomplete paralysis. 4. The most probative evidence reflects that, throughout the initial rating period, the evidence shows the Veteran's left lower extremity neuropathy more closely approximates moderately severe incomplete paralysis of the sciatic nerve, but it has not more nearly approximated to severe incomplete paralysis. 5. Due to the common etiology of the Veteran's diabetes and peripheral neuropathy of the bilateral lower extremities, to include consideration of the bilateral factor, and considering the grant above increasing the bilateral lower extremity peripheral neuropathy to 40 percent from November 8, 2011, forward, the Veteran meets the schedular requirements for consideration of a TDIU for the entire period on appeal, from November 8, 2011, forward. 6. Resolving any doubt in the favor of the Veteran, his service-connected disabilities precluded him from securing or following a substantially gainful occupation from November 8, 2011. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating higher than 70 percent for an acquired psychiatric disorder, diagnosed as a depressive disorder, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.130, Diagnostic Code (DC) 9435. 2. The criteria for an evaluation in excess of 50 percent for obstructive sleep apnea have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.97, DC 6847. 3. Resolving reasonable doubt in the Veteran's favor, from November 8, 2011, forward, the criteria for an initial 40-percent rating, but no higher, for right lower extremity neuropathy, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, DC 8520. 4. Resolving reasonable doubt in the Veteran's favor, from November 8, 2011, forward, the criteria for an initial 40-percent rating, but no higher, for left lower extremity neuropathy, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.124a, DC 8520. 5. Resolving reasonable doubt in the Veteran's favor, from November 8, 2011, forward, the criteria for eligibility for a TDIU on a schedular basis are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. § 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1966 to July 1968. This appeal comes to the Board of Veterans' Appeals (Board) from a January 2019 rating decision by a Regional Office of the Veteran's Benefits Administration (VBA), which is the Agency of Original Jurisdiction (AOJ). The Veteran expressed timely disagreement with these determinations, and the present appeal ensued. The Veteran's appealed issues, among others, were previously before the Board in July 2020, when it was determined that remand was necessary to ensure that VA fulfilled its duty to assist the Veteran in substantiating his appeal. The Board's prior remand directives and the subsequent actions of the AOJ will be discussed below. The Veteran's appeal has been returned to the Board for further appellate consideration. Furthermore, in a March 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran asserts all his disabilities prevent him from maintaining substantially gainful employment. Consequently, in July 2020, the Board added the issue of entitlement to a TDIU to the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009). However, The Board notes a subsequent November 2020 rating decision granted entitlement to a TDIU effective February 28, 2013, (the date the RO found that service connection claims were first granted). See e.g., February 28, 2013, informal claim. However, since the Veteran claims all his disabilities prevent him from maintaining substantially gainful employment and the service connection claims for right lower extremity peripheral neuropathy and left lower extremity peripheral neuropathy date back to November 8, 2011, which is the date of the Veteran's service connection claims on appeal was received, the issue of a TDIU due to the service-connected disabilities prior to February 28, 2013, remains on appeal. Issues no longer on appeal The Board's July 2020 remand also included appealed issues seeking earlier effective dates for the awards of service connection for peripheral neuropathy of the legs, an acquired psychiatric disability, and sleep apnea, for issuance of a Statement of the Case (SOC) pursuant to the United States Court of Appeals for Veteran's Claims' (the Court's) holding in Manlincon v. West, 12 Vet. App. 238 (1999). While the Veteran was provided an SOC readjudicating these issues in November 2020, neither he nor his private attorney perfected these appeals to the Board. As such, those issues are no longer in appellate status. See Smallwood v. Brown, 10 Vet. App. 93, 97 (1997); see also In re Fee Agreement of Cox, 10 Vet. App. 361, 374 (1997) (holding that if the claims file does not contain a notice of disagreement, a statement of the case and a VA Form 9 (substantive appeal), the Board is not required, and in fact, has no authority, to decide the claim). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. "Staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). 1. An initial evaluation greater than 70 percent for an acquired psychiatric disorder diagnosed as a depressive disorder is denied. On February 28, 2013, the Veteran filed an original claim of entitlement to service connection for depression. In the January 2019 rating decision on appeal, the RO granted the claim and assigned a 70 percent initial disability rating effective the date of claim, which was February 28, 2013. In his appeal, the Veteran asserts entitlement to a higher initial rating. See March 2019 Notice of Disagreement. Law and regulations Rating criteria for psychiatric disabilities such as depression are detailed under the General Rating Formula for Mental Disorders of 38 C.F.R. § 4.130. Thereunder, ratings of 0, 10, 30, 50, 70, and 100 percent are authorized for various levels of disability. An unspecified depressive disorder is rated under DC 9435 of 38 C.F.R. § 4.130. Inasmuch as the disability has been rated as 70-percent disabling during the period of appeal, the focus below will be on whether the highest rating of 100 percent has been warranted at any time since February 28, 2013. Under DC 9435, a 100-percent rating is warranted for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. See 38 C.F.R. § 4.130. The "such symptoms as" language of the DCs for mental disorders in 38 C.F.R. § 4.130 means "for example" and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. See Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). Symptomatology attributed to a nonservice-connected disability cannot be differentiated from symptomatology attributed to a service-connected disability unless medical evidence does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam). In the absence of such medical evidence, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Evidence and Analysis The Veteran was seen for his service-connected acquired psychiatric disorder in July 2015. The Veteran's occupational and social impairment were found to consist of deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. The report notes the Veteran lives with a friend and is socially isolated and withdrawn. He performs his activities of daily living, which were noted to include grocery shopping, cooking simple meals, completing household chores, attending to his personal hygiene, and managing his finances. The Veteran's longest job was noted to be a security guard for just under 20 years, and the report notes his last job was in construction until about 2006. The only social activity the Veteran reported engaging in was going to the movies with his friend. The Veteran reported passive suicidal ideation but denied suicidal plan or intent. He also reported near-continuous depression and anxiety, and it was stated his depression was debilitating and has caused a remarkable decline in the quality of his life. Chronic sleep impairment was noted. The examination report also notes that due to his depressive disorder, the Veteran could not be expected to manage the stress from a competitive work environment or be expected to engage in gainful activity. On examination, the Veteran's attention was found to be normal, and concentration appeared variable. He complained of trouble with his short-term memory and struggling to remember basic information. His speech was normal. Thought content was appropriate, and the organization of the Veteran's thoughts was goal-directed. No overt hallucinations were found. Mood was anxious and nervous, and affect was restricted. He reported feeling anxious and depressed and seemed paranoid as he spoke to the examiner. The Veteran's symptoms were found to include a depressed mood; chronic sleep impairment; mild memory loss, such as forgetting names, directions, or recent events; a flattened affect; disturbances of motivation and mood; a difficulty in establishing and maintaining effective work and social relationships; a difficulty in adapting to stressful circumstances, including work or a worklike setting; an inability to establish and maintain effective relationships; and suicidal ideation. A buddy statement is of record from April 2020. The Veteran's roommate reports the Veteran experiences anxiety and does not engage with many people or go out of the house to interact with people. The statement does state the Veteran interacts with his children and grandchildren. He also reports the Veteran experiences anger issues and becomes frustrated with people easily. The Veteran received another examination in August 2020. Post-military, the Veteran denied any mental health treatment, psychiatric treatment, and/or psychiatric hospitalizations. His occupational and social impairment were found to consist of deficiencies in most areas such as work, school, family relations, judgment, thinking, and/or mood. The Veteran denied any significant romantic relationship. He described his relationship with his three children as good. He reported having no regular friends except his landlord. He further explained he does have yearly contact with other peers. He denied current hobbies and activities. On examination, the Veteran was found to be alert, cooperative, and casually attired with fair grooming. His mood was frustrated, and his affect was mobile. Speech was normal, and he maintained good eye contact. His thought processes were logical, relevant. Thought content was without psychotic features. Insight and judgment were intact. Memory and concentration were intact. No psychomotor agitation was found. The Veteran did not report any current intention of suicide or homicide. He was found to be able to manage his financial affairs. His symptoms were found to include a depressed mood; chronic sleep impairment; disturbances of motivation and mood; a difficulty in establishing and maintaining effective work and social relationships; a difficulty in adapting to stressful circumstances, including work or a worklike setting; and an inability to establish and maintain effective relationships. On review of the evidence, the Board finds the Veteran's acquired psychiatric condition symptomatology has not approximated the criteria for a 100-percent rating under DC 9435 at any point throughout the initial rating period. The evidence does not show the Veteran has had total occupational and social impairment due to such symptoms as gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; an intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; or memory loss for names of close relatives, own occupation, or own name. The Board acknowledges that some memory problems have been documented; however, these memory problems have not been so severe as to manifest in memory loss of names of close relatives, own occupation, or own name. Possible paranoia has been indicated on interview with the Veteran, but the record does not demonstrate obvious, persistent paranoia. Furthermore, no medical professional has indicated the Veteran's psychiatric symptoms result in total occupational impairment. As noted above, at worst, the Veteran's psychiatric symptomatology was noted to result in deficiencies in most areas, such as work, school, family relations, judgment, thinking and/or mood. In addition, total social impairment has not been shown or approximated. To the contrary, the Veteran enjoys good social relationships with his roommate-friend, children, and grandchildren. After thoroughly reviewing the evidence, as summarized above, the Board finds an increased rating is not warranted because the Veteran's acquired psychiatric disorder symptomatology does not more nearly approximate total occupational and social impairment. As such, a preponderance of the evidence is against the assignment of a 100 percent rating for an acquired psychiatric disorder. See Gilbert and Alemany, both supra. 2. An initial evaluation greater than 50 percent for sleep apnea is denied. In the January 2019 rating decision on appeal, the RO granted the claim and assigned a 50-percent initial disability rating effective the date of claim February 28, 2013. In his appeal, the Veteran asserts entitlement to a higher initial rating. See March 2019 Notice of Disagreement. The Veteran's sleep apnea is evaluated under DC 6847, Sleep Apnea Syndromes (Obstructive, Central, Mixed). Under this DC, a 100-percent evaluation is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires a tracheostomy. A 50-percent evaluation is warranted where sleep apnea requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine. On a review of the evidence, the Board finds the disability picture does not more nearly approximate that of a higher evaluation. February 2016 and October 2020 disability benefits questionnaires show the use of a CPAP machine and persistent daytime hypersomnolence but do not reflect a finding of chronic respiratory failure, carbon dioxide retention, cor pulmonale, or the requirement of a tracheostomy. Furthermore, VA treatment records do not show chronic respiratory failure, carbon dioxide retention, cor pulmonale, or the requirement of a tracheostomy. The Veteran has not asserted he has chronic respiratory failure or requires a tracheostomy. Accordingly, since the elements for a higher evaluation are not established or more nearly approximated, the appeal must be denied. 3. An initial 40-percent evaluation for right lower extremity peripheral neuropathy is granted. 4. An initial 40-percent evaluation for left lower extremity peripheral neuropathy is granted. The Veteran has been assigned a 10 percent rating for right lower extremity peripheral neuropathy under DC 8520 effective November 8, 2011, which was increased to 40 percent from October 9, 2020, forward; as well as a 10-percent rating for left lower extremity peripheral neuropathy under DC 8520 effective November 8, 2011, which was increased to 40 percent from October 9, 2020, forward. Under DC 8520, a 10-percent evaluation is assigned for mild incomplete paralysis of the sciatic nerve; a 20 percent evaluation is assigned for moderate incomplete paralysis; a 40 percent evaluation is assigned for moderately severe incomplete paralysis; and a 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. A maximum 80 percent evaluation requires complete paralysis of the sciatic nerve where the foot dangles and drops, there is no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The terms "mild", "moderate", and "severe" are not defined in the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. The term "incomplete paralysis," with peripheral nerve injuries, indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to the partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a; Note prefacing DC's 8510 through 8730. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. The Court recently held in Miller v. Shulkin, 28 Vet. App. 376 (2017), that the language of 38 C.F.R. § 4.124a provides for a maximum 20 percent rating for peripheral neuropathy when the involvement is wholly sensory. Turning to the evidence of record, in December 2011, shows the Veteran reported numbness from his knees downward. He did not report any pain or burning sensation. While driving, he reported his foot coming off the accelerator without feeling it. The report notes the Veteran had no intermittent claudication but feels tightness after walking 30 feet. He also sometimes feels a cold sensation on his feet that is unrelated to cold weather. No history of slow healing ulcers of the feet or legs were reported. Mild right and left lower extremity numbness were noted. Muscle strength testing was normal. No muscle atrophy was found. Reflexes were absent for the knees and ankles bilaterally. Sensation was absent bilaterally for the lower legs, ankles, feet, and toes. The report notes an absent vibration for the left foot and a decreased joint position bilaterally for the big toes. The Veteran's gait was found to be abnormal due to a vitamin b-12 deficiency. Mild incomplete paralysis of the external popliteal nerve was found bilaterally. It was noted the Veteran used a cane regularly. Functioning was not so diminished that amputation with a prosthesis would have equally served the Veteran. EMG studies were not performed. Functional impact consisted of poor balance and an inability to walk for a prolonged period. A VA examination from October 2020 is of record. The Veteran's symptoms were noted to be pain and numbness. Symptoms were noted to include constant bilateral lower extremity moderate pain, moderate paresthesias and/or dysesthesias, and severe numbness. Light-touch sensation, position sense, and cold sensation test results showed a decrease bilaterally in the ankles, lower legs, feet, and toes. Vibration sensation was absent bilaterally in the ankle, lower legs, feet, and toes. Muscle atrophy was not found. The severity of the Veteran's lower extremity diabetic peripheral neuropathy was noted to consist of moderately severe incomplete paralysis bilaterally of the sciatic nerve and moderate incomplete paralysis bilaterally of the femoral nerve. The functional impact of the Veteran's condition was found to consist of limited walking and standing for prolonged periods due to pain and tingling. Resolving the benefit of the doubt in the Veteran's favor, given his consistent complaints of the bilateral lower extremity symptomatology and the symptoms documented by the December 2011 examination, the Board finds a 40 percent rating for peripheral neuropathy of the sciatic nerve of both the right and left lower extremities under DC 8520 from November 8, 2011, forward, is warranted. Regarding this, the December 2011 examination reflect symptoms that more nearly approximate the criteria for a 40 percent rating under DC 8520. The examination report documents the Veteran reporting numbness from his knees downward and feeling symptoms after walking only 30 feet. Reflexes were absent for the knees and ankles bilaterally. Sensation was absent bilaterally for the lower legs, ankles, feet, and toes. The report notes an absent of vibration sensation for the left foot and a decreased joint position bilaterally for the big toes. The Veteran's gait was noted to be abnormal due to a vitamin b-12 deficiency (which, in a February 2016 correspondence from a physician, was stated to be due to his diabetes in addition to the medication he takes for his diabetes, a service-connected condition). Functional impact consisted of poor balance and an inability to walk for a prolonged period. No muscle atrophy was found. The Board finds these symptoms more nearly approximate the criteria for a 40 percent rating for peripheral neuropathy of the sciatic nerve of both the right and left lower extremities under DC 8520. The Board observes a November 2020 rating decision assigned the Veteran a 20 percent rating for peripheral neuropathy of the right and left lower extremities under DC 8520 for the Veteran's femoral nerves from October 9, 2020, forward, which is the date of the evidence showed the disabilities on examination. However, the criteria for a 60 percent rating under DCs 8520 or 8526 have not been met. The Veteran has not been shown to have severe incomplete paralysis with marked muscular atrophy of the bilateral lower extremities. The Board acknowledges the October 2020 examination report documenting severe numbness. However, the Veteran's other symptoms included constant moderate pain and moderate paresthesias and/or dysesthesias of the bilateral lower extremities, and muscular atrophy has not been found. A 60 percent evaluation is assigned for severe incomplete paralysis with marked muscular atrophy. See 38 C.F.R. § 4.124a. Thus, the preponderance of the evidence weighs against entitlement to disability ratings in excess of 40 percent for the Veteran's service-connected peripheral neuropathy of the right and left lower extremities under DCs 8520 or 8526. Under these circumstances, the benefit of the doubt rule does not apply, see 38 U.S.C. § 5107(b); Gilbert, supra. 5. A TDIU due to the service-connected disabilities prior to February 28, 2013, is granted. VA regulations provide that total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to permanently render it impossible for the average person to follow a substantially gainful occupation. 38 C.F.R. § 4.15. A total disability rating may be assigned where the schedular rating is less than total when the disabled claimant is unable to secure or maintain substantially gainful employment by reason of one or more service-connected disabilities. 38 C.F.R. § 4.16 (a). For claimants who have one service-connected disability to qualify for TDIU under section 4.16(a), that disability must be rated 60 percent or greater. Id. In order for claimants who have two or more service-connected disabilities to qualify for a total disability rating, one of the disabilities must be rated 40 percent or greater, and the combined disability rating of all the claimant's disabilities must be 70 percent or greater. Id. For the purpose of determining whether the Veteran's disability ratings constitute a single disability rated 60 percent or multiple disabilities one of which is rated 40 percent or greater, certain disabilities can be combined if, among other possibilities, the disabilities result from common etiology or a single accident. Id. Under certain circumstances, multiple disabilities may be considered as the sole 60 percent or 40 percent disability. Id. To meet that requirement, the following will be considered as one disability: (1) disability of one or both lower extremities, including the bilateral factor, if applicable; (2) disabilities resulting from one common etiology; (3) disabilities affecting a single body system; (4) multiple injuries incurred in action; and (5) multiple disabilities incurred as a prisoner of war. Id. The bilateral factor provides for an additional ten percent of the combined value, derived from the combined ratings table, of disabilities affecting both arms, both legs, or paired skeletal muscles prior to converting to degree of disability. 38 C.F.R. § 4.26. It is VA's policy 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). Rating boards should refer to the Director, Compensation Service for extra-schedular consideration all cases of Veterans who are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). A veteran's service-connected disabilities, employment history, educational and vocational attainment, and all other factors having a bearing on the issue must be addressed. Id. By itself, the fact that a veteran is unemployed or has difficulty obtaining employment is not enough to establish entitlement to TDIU. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). "The question is whether the veteran is capable of performing the physical and mental acts required by employment." Id. Prior to February 28, 2013, service connection is now in effect for peripheral neuropathy of the right lower extremity associated with diabetes mellitus, rated at 40 percent from November 8, 2011, forward; peripheral neuropathy of the left lower extremity associated with diabetes mellitus, rated at 40 percent from November 8, 2011, forward; diabetes mellitus, rated at 20 percent from May 31, 2005, forward; and an erectile dysfunction, rated as noncompensable from November 28, 2011, forward. In this case, the Veteran's service-connected disabilities of peripheral neuropathy of the right lower extremity associated with diabetes and peripheral neuropathy of the left lower extremity associated with diabetes during the relevant period, i.e., November 28, 2011, forward, involve the lower extremities (i.e., knees and feet). Thus, due to the common etiology of the Veteran's diabetes and peripheral neuropathy of the bilateral lower extremities, including consideration of the bilateral factor, the Veteran meets the schedular requirements for consideration of a TDIU for the entire period on appeal, i.e., from November 28, 2011, forward. The remaining question is whether a TDIU is warranted. The evidence of record indicates the Veteran's last reported date of employment on a full-time basis in a substantially gainful occupation was in March 2008. See March 2019 VA 21-8940 Veterans Application for Increased Compensation Based on Unemployability. In December 2011, an examination report notes the Veteran's peripheral nerve condition impacts his ability to work, and the Veteran had previously been a construction foreman and policeman. The functional impacts were noted to be poor balance and an inability to walk for prolonged periods. The Board finds the evidence is at least in equipoise as to whether the Veteran's service-connected lower extremities render him unable to secure or follow a substantially gainful occupation from November 28, 2011, forward. The medical record supports the Veteran's statements regarding pain and swelling, and he is competent to report that he is unable to sit or stand for long periods of time, which is a factor that will prevent him from obtaining sedentary employment. Taking into consideration his ongoing pain and limitations on motion experienced due to his service-connected lower extremity disabilities, it is unlikely the Veteran would have been able to find substantially gainful sedentary or light duty employment. Based on the Veteran's experience and work history the Board finds that obtaining such a job would have been unlikely. Accordingly, as there is evidence the Veteran was unable to work due to his service-connected peripheral neuropathy of the right lower extremity and peripheral neuropathy of the left lower extremity prior to February 28, 2013, and resolving the benefit of the doubt to the Veteran, a schedular TDIU is warranted from November 8, 2011, forward. SCOTT W. DALE Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Buck Denton 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.