Citation Nr: 1736620	
Decision Date: 08/31/17    Archive Date: 09/06/17

DOCKET NO.  09-11 922	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Detroit, Michigan


THE ISSUES

1.  Entitlement to an initial schedular rating in excess of 10 percent for diabetes mellitus prior to November 15, 2007, and entitlement to a schedular rating in excess of 20 percent from that date.

2.  Entitlement to an initial schedular rating in excess of 10 percent for peripheral neuropathy of the right lower extremity prior to July 2, 2009.

3.  Entitlement to an initial schedular rating in excess of 20 percent for peripheral neuropathy of the right lower extremity from July 2, 2009.

4.  Entitlement to an initial schedular rating in excess of 10 percent for peripheral neuropathy of the left lower extremity prior to July 2, 2009.

5.  Entitlement to an initial schedular rating in excess of 20 percent for peripheral neuropathy of the left lower extremity from July 2, 2009.

6.  Entitlement to an initial rating in excess of 10 percent for diabetes mellitus prior to November 15, 2007, and entitlement to an initial rating in excess of 20 percent from that date, on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1).

7.  Entitlement to an initial rating in excess of 10 percent for peripheral neuropathy of the bilateral extremities prior to July 2, 2009, and in excess of 20 percent from that date, on an extraschedular basis pursuant to 38 C.F.R. § 3.321(b)(1).

8.  Entitlement to a total disability rating based on individual unemployability (TDIU) prior to July 2, 2009, on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). 


REPRESENTATION

Appellant represented by:	Vietnam Veterans of America


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Sarah Campbell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from September 1966 to September 1970.

This case initially came before the Board of Veterans' Appeals (Board) from a January 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), granted service connection for diabetes mellitus with early signs of peripheral neuropathy of the feet and assigned a 10 percent rating, effective March 29, 2007 (the receipt date of the claim).  The Veteran timely appealed.

In a February 2009 rating decision, the RO awarded an increased 20 percent rating for diabetes mellitus, effective from November 15, 2007, and assigned separate increased 10 percent ratings for peripheral neuropathy of the right and left lower extremities, effective from March 29, 2007.  In a September 2009 rating decision, the RO awarded an increased 20 percent rating for peripheral neuropathy of the bilateral lower extremities, effective from July 2, 2009.  Despite these grants of higher, staged ratings, a veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded.  AB v. Brown, 6 Vet. App. 35 (1993).  

In March 2010 the Veteran testified at a hearing at the RO before a Decision Review Officer.  A transcript of that hearing is of record.

In January 2016, the Board denied entitlement to higher initial ratings for diabetes mellitus and peripheral neuropathy of the right and lower extremities.  The Veteran subsequently appealed to the U.S. Court of Appeals for Veterans Claims (Court). Pursuant to a September 2016 Joint Motion for Partial Remand (JMPR), the Court vacated that portion of the Board's January 2016 decision that denied entitlement to higher initial ratings for diabetes and peripheral neuropathy of the right and left lower extremities.  

In March 2017, the Board remanded the appeal with directives in compliance with the September 2016 JMPR.  The case has been returned to the Board at this time for further appellate review. 

The issue of entitlement to higher schedular ratings for diabetes mellitus and peripheral neuropathy of the bilateral lower extremities are addressed in the decision below; the issues of entitlement to extraschedular ratings for such disabilities, and entitlement to a TDIU on an extraschedular basis are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.


FINDINGS OF FACT

1.  For the period prior to November 15, 2007, management of the Veteran's diabetes mellitus, type II, required restricted diet only.

2.  For the period from November 15, 2007, management of the Veteran's diabetes mellitus, type II, requires insulin, oral hypoglycemic agent, and restricted diet; however, it does not also require regulation of activities.

3. Throughout the entire appeal period, the Veteran's peripheral neuropathy of the lower extremities was manifested by numbness, coldness, and tingling sensations in his bilateral feet, as well as decreased sensation from bilateral feet to knees, most nearly approximating moderate, but not severe, incomplete paralysis.


CONCLUSIONS OF LAW

1.  The criteria for an initial schedular rating in excess of 10 percent for diabetes mellitus prior to November 15, 2007, and a schedular rating in excess of 20 percent from that date, have not been met.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.119, Diagnostic Code (DC) 7913 (2016).

2.  Resolving reasonable doubt in the Veteran's favor, the criteria for an initial schedular disability rating of 20 percent, but no higher, prior to July 2, 2009, for peripheral neuropathy of the right lower extremity, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.120, 4.124, 4.124(a), DC 8621.

3.  The criteria for an initial schedular disability rating in excess of 20 percent for peripheral neuropathy of the right lower extremity for the entire appeal period have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.120, 4.124, 4.124(a), DC 8621.

4.  Resolving reasonable doubt in the Veteran's favor, the criteria for an initial schedular disability rating of 20 percent, but no higher, prior to July 2, 2009, for peripheral neuropathy of the left lower extremity, are met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.120, 4.124, 4.124(a), DC 8520.

5.  The criteria for an initial schedular disability rating in excess of 20 percent for peripheral neuropathy of the left lower extremity for the entire appeal period have not been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b); 38 C.F.R. §§ 4.1-4.7, 4.120, 4.124, 4.124(a), DC 8621.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R.     
§ 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Generally, VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

This appeal arises from the Veteran's disagreement with the initial ratings assigned in connection with the grant of service connection.  Where an underlying claim for service connection has been granted and there is disagreement as to such "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007).  

Regarding the duty to assist, the Board also finds that VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claims.  All available relevant evidence pertaining to the Veteran's claims has been obtained.  The evidence includes his VA treatment records, VA examination reports, private treatment records, and statements from the Veteran and his representative.  

The Board remanded the case in March 2017 for further evidentiary development and adjudication in compliance with the JMPR.  Per the Board's instructions, the RO provided the Veteran with an additional VA examination, which was provided in March 2017, and obtained the requested VA treatment records.  Regarding his private treatment records, the Veteran was sent the necessary authorization for release of medical records from Dr. L in March 2017.  To date, the Veteran did not provide VA with the necessary authorization for release of private medical records to the VA, despite responding to the April 2017 supplemental statement of the case, requesting expedited processing and waiver of the 30-day waiting period.   As "the duty to assist is not always a one-way street," Wood v. Derwinski, 1 Vet. App. 190, 193 (1991), and the Veteran has not responded to the VA letter, the Board finds that no further assistance in this regard is warranted.  Thus, there has been substantial compliance with the Board's remand instructions.  See D'Aries v. Peake, 22 Vet. App. 97 (2008); Dyment v. West, 13 Vet. App. 141 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).  

For the above reasons, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist the Veteran in the development of the claims.


Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A.  § 1155; 38 C.F.R. § 4.1.  

If two disability evaluations are potentially applicable, 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.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.

Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate evaluations may be assigned for separate periods of time based on the facts found.  In other words, the evaluations may be staged.  Fenderson v. West, 12 Vet. App. 119 (1999).  Because the RO has already assigned staged ratings for the disabilities at issue, the Board will consider the propriety of the assigned ratings for the disabilities at each stage, as well as whether any further staged rating of the disabilities are warranted.  

A. Diabetes mellitus

The Veteran's diabetes mellitus, type II, is evaluated pursuant to 38 C.F.R. § 4.119, DC 7913.  Under this criteria, diabetes mellitus requiring more than once-daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated, is assigned a 100 percent disability rating.  38 C.F.R. § 4.119, DC 7913.

Diabetes mellitus requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if separately evaluated, is assigned a 60 percent disability rating.  Id.

Diabetes mellitus requiring insulin, restricted diet, and regulation of activities is assigned a 40 percent disability rating.  Id.  The Board notes that the term "regulation of activities" is defined in DC 7913 as "avoidance of strenuous occupational and recreational activities."  In Camacho v. Nicholson, 21 Vet. App. 360, 363-64 (2007), the Court held that medical evidence is required to show that occupational and recreational activities have been restricted.

Diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet warrants a 20 percent evaluation.  Id.  

In addition, the regulations stipulate that compensable complications of diabetes are to be evaluated separately, with noncompensable complications to be considered as part of the diabetic process under DC 7913.  Id. at Note (1).

A November 1997 VA treatment record reflects that the Veteran requested a glucometer; however, the clinician noted that because he is not on any medications for his diabetes, a glucometer is not issued.

At his November 2007 VA examination, the Veteran indicated that he tried to follow a restricted diabetic diet.  He stated that he was not taking any medications for diabetes and he denied any restriction of activities due to his diabetes.  He indicated that he had hypoglycemic reactions that did not require hospitalization during which he would feel weak and shaky, which resolved by eating something.

In June 2009 and August 2012 VA treatment records, the clinicians noted the Veteran did not experience any hypoglycemic symptoms/episodes and had no excessive urination or thirst. 

The January 2012 VA examiner noted that the Veteran saw his diabetic care provider less than 2 times per month and that there had been no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization over the prior 12 months.

A December 2013 VA treatment record noted that the Veteran was informed that he should exercise regularly and gradually lose weight to reduce his blood sugar level. The clinician further noted that Prednisone will contribute to hyperglycemia so he needed to continue efforts to maintain a diabetes and heart healthy diet.
 
A July 2015 VA treatment record noted the Veteran goes golfing as often as he can and his diabetes control was described as good.  He denied experiencing an insulin reaction and his feet were insensate.  There was a callus on the right first metatarsal head.  He had no open sores on the feet.  He reported low dose gabapentin controlled his neuropathic pain.  He had no specific complaints.

An August 2015 VA treatment record notes the Veteran understands the importance of 30 minutes of daily exercise to assist in diabetes control.  His choice for exercise is golf and yard work.  He also understood the importance of wearing proper shoes for a walking program.

Pursuant to the Board's March 2017 remand, the Veteran underwent an additional VA examination in March 2017.  The examiner indicated that the Veteran was prescribed oral hypoglycemic agent and insulin.  The examiner also indicated that the Veteran does not require regulation of activities as part of medical management of diabetes mellitus.  He also noted the Veteran saw his diabetic care provider less than two times per month and that there had been no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization over the prior 12 months.

The evidence prior to November 15, 2007 does not show that the Veteran's diabetes required insulin or any oral hypoglycemic agents, thus, a 20 percent rating prior to November 15, 2007, is not warranted.

The evidence of record since November 15, 2007, does not show that there are specific restrictions or regulation of activities because of the Veteran's diabetes mellitus.  The Veteran has not asserted (including at his March 2010 RO hearing) that he has any such restrictions, and the January 2012 and March 2017 VA examiners specifically indicated that the Veteran's diabetes did not "require regulation of activities as part of medical management of diabetes mellitus (DM)."  Furthermore, the VA treatment records reflect the Veteran engaged in recreational gold, house and yard work, and was encouraged to exercise, to include walking.  In sum, the Veteran is not shown to have regulation of activities required for control of his diabetes mellitus, as required for a higher 40 percent rating under Diagnostic Code 7913.  See Tatum v. Shinseki, 23 Vet. App. 152 (2009) (holding that where a higher rating lists all the criteria for the lower evaluation and additional criteria for the increase, the criteria are conjunctive and must all be shown before an increase is warranted). 

The Board also notes that ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year, or twice a month visits to a diabetic care provider, have not been asserted or shown.  The January 2012 and March 2017 VA examiners noted that the Veteran saw his diabetic care provider less than 2 times per month and that there had been no episodes of ketoacidosis or hypoglycemic reactions requiring hospitalization over the prior 12 months.

The Board notes that the Veteran is service connected for additional complications of diabetes mellitus including peripheral neuropathy of the upper extremities, renal failure, residuals of kidney transplant, scars, and diabetic retinopathy, which are not on appeal.  The Veteran has no symptoms identified as complications of diabetes mellitus, for which he is not currently service-connected. 

For the foregoing reasons, an initial schedular rating in excess of 10 percent for diabetes mellitus prior to November 15, 2007, and entitlement to a schedular rating in excess of 20 percent from that date is denied.  The Board has considered the medical and lay evidence of record, but the above analysis reflects that a preponderance of the evidence is against higher or separate ratings.  The benefit of the doubt doctrine is therefore not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.

B.  Peripheral neuropathy of the lower bilateral extremities

Diagnostic Code 8621 applies to neuritis of the external popliteal nerve, also called the common peroneal nerve.  Neuritis, cranial or peripheral, characterized by loss of reflexes, muscle atrophy, sensory disturbances, and constant pain, at times excruciating, is to be rated on the scale provided for injury of the nerve involved, with a maximum equal to severe incomplete paralysis.  Absent organic changes, the maximum rating will be moderate, unless sciatic nerve involvement is shown.  38 C.F.R. § 4.123.

Under Diagnostic Code 8621, a 10 percent rating requires mild incomplete paralysis of the common peroneal nerve.  A 20 percent evaluation requires moderate incomplete paralysis of the common peroneal nerve. A 30 percent rating requires severe incomplete paralysis.  A 40 percent disability rating is warranted for complete paralysis as shown by complete foot drop and slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension of proximal phalanges is lost, abduction of foot is lost and adduction is weakened, with anesthesia covering the entire dorsum of the foot and toes. 

The words "moderate" and "severe" are not defined in the VA Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just."  See 38 C.F.R. § 4.6   (2015).  The Board observes that "moderate" is generally defined as "of average or medium quality, amount, scope, range, etc."  See Webster's New World Dictionary, Third College Edition 871.  "Severe" is generally defined as "of a great degree: serious."  See Webster's Ninth New Collegiate Dictionary (1990) 1078.  VA's Adjudication Manual has provided the following guidance on this question: mild incomplete paralysis would reflect  subjective symptoms or diminished sensation, moderate would reflect the absence of sensation confirmed by objective findings, and severe would reflect more than sensory findings being demonstrated, such as atrophy, weakness, and diminished reflexes. M21-1M, pt. III, subpt. iv, ch. 4, § G(4)(b).

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. 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, Diagnostic Code 8621.

At a November 2007 VA examination the Veteran indicated that he had burning pain in his feet since 2007.  Physical examination revealed that sensation and vibration sense in the feet was intact.

A June 2008 private electromyography (EMG) showed evidence of large fiber peripheral neuropathy affecting both legs and was sensorimotor in nature.  The Veteran reported numbness of feet for years.

A January 2009 VA treatment record noted extensive peripheral neuropathy and indicated he could engage in household repairs, laundry, and mowing.  He indicated he could walk and drive a car.  The Veteran reported difficulty in lifting, squatting, bending, standing, reaching, walking, kneeling, and using his hands. 

A March 2009 Social Security Administration (SSA) examination reflects the Veteran reported numbness in the lower extremities that started in 1999 with on and off tingling.  He also reported cramping in his legs as well as having some pain, but did not relate the onset of pain with walking for a distance.  He stated he could walk a mile with difficulty, as his knees and legs get sore, but he denied symptoms suggestive of intermittent claudication.  He also stated his lower extremities swell often.  He has never had any leg ulcers.  He stated he has been told the symptoms are related to peripheral neuropathy.  There was no wasting of the muscles.  Tone was normal.  Deep tendon reflexes; bilateral knees and ankles are present.  Sensory system was tested in detail, which showed some patchy decrease in touch and pinprick of the lower extremities up to the knees.  Vibration sense is intact.  No evidence of incoordination.  He had symptoms of numbness, burning, and tingling in his feet.  His symptoms could be consistent with large fiber peripheral neuropathy which is sensorimotor in nature based on the June 2008 EMG.  However, the examiner noted he could elicit a vibration sense fairly well and concluded both alcohol and diabetes could still contribute to his symptoms.  On the basis of the combined effects of his back, neuropathy and hand deformity, the examiner noted the Veteran should not lift more than 20 pounds, never climb ropes, ladders, and scaffolding.  Stooping, balancing, and crouching would be limited to occasional.  Fingering and handling with the right hand would be limited.  The Veteran was considered disabled since December 2008 and awarded SSA disability benefits.

During the March 2010 hearing, the Veteran reported feeling numbness, tingling, and that his legs fell asleep constantly, as well as coldness.  He also reported that he fell about once or twice week and could not get out of bed because he could not walk.  He indicated that he used a cane.  He retired in December 2008 due to his health.  

At an April 2010 VA examination, the Veteran complained of numbness and burning in his feet.  Motor examination revealed muscle strength of 5/5 in both legs. There was a mild decrease in light touch and pinprick at the mid-calf level of both legs, which increased to moderate on the soles of the feet.  Vibration was decreased at the ankles and virtually absent at the 1st MTP joints.  There was moderate decreased light touch in the distribution of the left lateral femoral cutaneous nerve. Left knee reflexes was 2+, right knee reflex was 2+, left ankle reflex was 0, and right ankle reflex was 1+ with no muscle atrophy noted.  The diagnosis was diabetic sensory neuropathy both feet and lower legs and meralgia paresthetica L thigh, not diabetic.  The effects on daily activities were severe in sports but either mild, moderate, or none on activities such as chores, shopping, exercise, bathing, and grooming.

A January 2012 VA examiner indicated that the Veteran had moderate paresthesia of the right lower extremity and moderate numbness of the bilateral lower extremities.  There were also decreased reflexes at the bilateral ankles and light touch sensation was decreased in the feet and toes.  Strength testing was 5/5 for the ankles and knees.  Reflexes of the knees were 2+ with the ankles noted as 1+.  There was no muscle atrophy or trophic changes.  The examiner indicated mild incomplete paralysis of the bilateral lower extremities.

The March 2017 VA examination reflects the Veteran has paresthesias and sensory loss (numbness) in the feet about to level of the ankles described as moderate.  Strength testing was 5/5 for the ankles and knees.  Reflexes of the knees were 1+ with the ankles noted as 0.  The examiner noted the functional impact on the Veteran's occupation includes avoiding prolonged standing, ladders, and situations with risk of falls, and noted he has difficulty with manipulating small objects and use of hand tools.

Resolving reasonable doubt in the Veteran's favor, the evidence of record shows that his peripheral neuropathy of the bilateral lower extremities more nearly approximated moderate incomplete paralysis.  Although the Veteran's complaints are sensory manifestations consisting of pain and numbness and tingling in the lower extremities, they have been described as extensive and extend from his feet to his knees, and as indicated above, it contributed to his inability to work prior to July 2, 2009.  Accordingly, the Board finds that, for the following reasons, a rating of 20 percent, but not higher, prior to July 2, 2009, for the Veteran's peripheral neuropathy of the bilateral lower extremities, is warranted.  The Board also finds that a rating in excess of 20 percent is not warranted at any point during the appeal period.  In connection, the findings from VA examinations have not shown severe symptoms.  Strength testing of the lower extremities has been 5/5, and examiners have noted, at most, moderate lower extremity impairment with no trophic changes. Accordingly, a rating in excess of the current 20 percent rating for this time period is not warranted for either lower extremity.

For the foregoing reasons, initial 20 percent schedular ratings for the Veteran's peripheral neuropathy of the bilateral lower extremities, but no higher, prior to July 2, 2009, are warranted.  However, a schedular rating in excess of 20 percent is not warranted for the entire appeal period.  The Board has considered the medical and lay evidence of record, but the above analysis reflects that a preponderance of the evidence is against any higher or separate rating.  The benefit of the doubt doctrine is therefore not for application.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.3.
ORDER

Entitlement to an initial schedular rating in excess of 10 percent for diabetes prior to November 15, 2007, and entitlement to a schedular rating in excess of 20 percent from that date is denied.
Entitlement to an initial schedular 20 percent rating, but no higher, for peripheral neuropathy of the right lower extremity prior to July 2, 2009, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to an initial schedular 20 percent rating, but no higher, for peripheral neuropathy of the left lower extremity prior to July 2, 2009, is granted, subject to controlling regulations governing the payment of monetary awards.

Entitlement to an initial schedular rating in excess of 20 percent rating for peripheral neuropathy of the right lower extremity from July, 2, 2009, is denied.  

Entitlement to an initial schedular rating in excess of 20 percent rating for peripheral neuropathy of the left lower extremity from July, 2, 2009, is denied.  


REMAND

The issue of entitlement to a TDIU is deemed to have been submitted as part of any increased rating claim when evidence of unemployability is submitted at the same time as the claim and the Veteran seeks the highest rating possible.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  

Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran's single service-connected disability is ratable at 60 percent or more; or, if the veteran has two or more service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more.  A veteran who has service-connected disabilities that do not meet the requirements of 38 C.F.R. § 4.16(a), however, may still be considered for a TDIU rating under 38 C.F.R. § 4.16(b), under an extraschedular basis, if unemployable by reason of service connected disabilities that do not meet the percentage standards set forth in § 4.16(a).  

Pursuant to the Court's September 2016 JMPR and the Board's March 2017 remand, the Veteran underwent a VA examination in March 2017.  The VA examiner concluded that the Veteran's diabetes mellitus results in no functional impact and due to his peripheral neuropathy of his bilateral lower extremities, he should avoid prolonged standing, ladders and situations with risk of falls, and explained he has difficulty with manipulating small objects and use of hand tools.  In the July 2017 informal hearing presentation, the Veteran's representative contends that the opinion does not comply with the Court's and Board's remands because the opinion only considered the Veteran's current condition and failed to discuss the Veteran's symptomatology and the level of work impairment over the entire pendency of the Veteran's claim.   

In light of the above, and as the Veteran has already been granted a TDIU from July 2, 2009, as well as a combined 100 percent schedular rating, it appears the Veteran is arguing for TDIU prior to July 2, 2009.  Here, the Veteran does not meet TDIU schedular criteria prior to July 2, 2009, and the initial service connection claims were filed in March 2007.  The Veteran was found disabled since December 2008 by the SSA due to his diabetic neuropathy, and has been granted a TDIU from July 2009 due to his diabetes and peripheral neuropathy.  A May 2007 private medical letter and 2009 SSA disability indicated the Veteran was unable to work due to his diabetes and associated peripheral neuropathy.  The Veteran also reported that he was laid off of work in December 2008 because of his health conditions in a January 2009 statement.  The threshold criteria are not met and there is evidence of an inability to maintain gainful employment due to his service connected disabilities, and as the Board is prohibited from assigning a TDIU on the basis of 38 C.F.R. § 4.16(b), a referral to the VA's Director of Compensation for consideration of an extraschedular TDIU under 38 C.F.R. § 4.16(b) is warranted.  See Bowling v. Principi, 15 Vet. App. 1 (2001).

Additionally, the Board notes that in exceptional circumstances, where the schedular evaluations are found to be inadequate, 38 C.F.R. § 3.321(b)(1)  provides that a veteran may be awarded a rating higher than that encompassed by the schedular criteria.  Under the regulation, an extraschedular disability rating is warranted upon a finding that "the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  If exceptional circumstances are found, the matter must be referred to the Under Secretary for Benefits or the Director of the Compensation Service for consideration of assignment of an extraschedular evaluation.  See id.  

Here, as reflected in the Veteran's lay statements and the medical evidence and noted in the Court's JMPR and Board's remand, the Veteran's diabetes mellitus and peripheral neuropathy of the lower extremities cause symptoms other than those listed in the relevant criteria and resulted in interference with the Veteran's ability to work.  Specifically, additional symptoms not listed in the relevant criteria include instability, fatigue, gait disturbance, calluses, and swelling.  

Thus, in light of the Veteran's competent and credible lay statements, as well as medical evidence, indicating that he experiences symptoms that are not contemplated by the applicable rating criteria and these symptoms cause marked interference with employment, the Board finds that a referral to the Under Secretary for Benefits or the Director of the Compensation Service is warranted so that the issue of whether the Veteran is entitled to extraschedular ratings for his diabetes mellitus and peripheral neuropathy of the lower bilateral extremities, separately, or whether he is entitled to an extraschedular rating with regard to the combined effect of his service-connected disabilities in accordance with Johnson  v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014).  See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom.  Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

Accordingly, the claims remaining on appeal are REMANDED for the following action:

1.  Refer the claims for entitlement to an extraschedular rating for diabetes mellitus and peripheral neuropathy of the lower bilateral extremities, to include consideration of the collective impact of multiple service-connected disabilities, as well as the issue of entitlement to an extraschedular TDIU prior to July, 2, 2009, to the Director of Compensation Service.

2.  After considering any additional evidence received and conducting any development deemed appropriate, adjudicate the issues of entitlement to extraschedular ratings for diabetes mellitus and peripheral neuropathy of the lower bilateral extremities, to include consideration of the collective impact of multiple service-connected disabilities, as well as the issue of entitlement to an extraschedular TDIU prior to July, 2, 2009.  If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2014).


______________________________________________
Jonathan Hager
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs

Advertisements

Leave a Reply

Please log in using one of these methods to post your comment:

WordPress.com Logo

You are commenting using your WordPress.com account. Log Out /  Change )

Google+ photo

You are commenting using your Google+ account. Log Out /  Change )

Twitter picture

You are commenting using your Twitter account. Log Out /  Change )

Facebook photo

You are commenting using your Facebook account. Log Out /  Change )

Connecting to %s

This site uses Akismet to reduce spam. Learn how your comment data is processed.