CCK Helps Veteran Secure Retroactive TDIU Based on Peripheral Neuropathy
Case Summary
The Veteran served on active duty in the United States Air Force from August 1975 to August 1977, and in the Marine Corps from January 1978 to July 1979.
He was initially granted service connection in December 1977 for peripheral neuropathy secondary to hydrocarbon exposure at a noncompensable 0 percent rating. In March 1981, the Veteran filed for an increased rating for his neuropathy. His claim was denied in several subsequent Rating Decisions issued by the Department of Veterans Affairs (VA).
In April 2009, the Veteran filed a new claim for an increased rating for his peripheral neuropathy. He also requested service connection for tinnitus, bilateral hearing loss, and a psychiatric condition. A few months later, VA granted service connection for tinnitus at 10 percent, and increased the rating for peripheral neuropathy of the right lower extremity to 10 percent.
The Veteran filed a Notice of Disagreement in June 2009 with the Board of Veterans Appeals, requesting a rating higher than 10 percent. In 2013, the Board remanded the issue, which now included possible entitlement to Total Disability based on Individual Unemployability (TDIU).
In a March 2016 decision, the Board denied the Veteran an increased rating for neuropathy; however, it did grant a 10 percent rating for neuropathy of the left lower extremity, effective from 2009. Entitlement to TDIU was also subsequently denied.
The Veteran appealed the March 2016 Board decision to the Court of Appeals for Veterans Claims (CAVC). In a September 2016 Joint Motion for Remand, the CAVC vacated the Board decision and remanded the Veteran’s claims back to the Board for further development. The Veteran was granted a 20 percent evaluation for peripheral neuropathy in both the left and right lower extremities in a July 2017 Board decision.
CCK Argues for Increased Rating for Peripheral Neuropathy
Following another TDIU denial and increased rating denial in 2018, the Veteran’s case once again reached the Board on appeal in June 2020. Chisholm Chisholm & Kilpatrick LTD assisted the Veteran in submitting additional medical evidence to support his case. The Board remanded the case so the newly received evidence could be reviewed, and the matter returned to the Board in October 2020.
The medical evidence on file showed that the Veteran had moderately severe incomplete paralysis of the sciatic nerves in both his lower extremities. Throughout the appeal period, the Veteran had credibly reported his worsening symptoms of intermittent pain, weakness, numbness, and fatigue during medical examinations and in lay statements.
During a neurological examination conducted in February 2012, the Veteran described moderate pain and numbness in his lower extremities. The exam also showed that his motor strength had decreased to 4/5 during flexion and sensation to touch was decreased. Despite this evidence, the examiner had indicated normal nerve function in his notes and gave no explanation for this discrepancy.
In a 2018 examination, the doctor suggested that a motorized scooter or wheelchair was medically necessary due to the Veteran’s worsening condition.
Based on this evidence, the Board determined that this warranted a 40 percent disability rating for each of his lower extremities, effective from January 30, 2009.
Board Grants TDIU Based on Peripheral Neuropathy
In a previous Board hearing, the Veteran had testified that his service-connected peripheral neuropathy prevented him from securing and following substantially gainful employment. His former job at a steel manufacturing company required him to be on his feet all day while handling heavy loads, and he was unable to meet those expectations due to his condition. Thus, he had not worked in a full-time capacity since November 2008.
According to CCK, medical evidence showed that the Veteran experienced functional limitation, such as the inability to sit for more than 30 consecutive minutes, stand for more than 10 minutes, walk distances of more than 35 feet, and carry loads weighing more than 20 pounds. Additional vocational statements submitted in 2017 and 2020 noted that given the Veteran’s symptoms, it was unlikely he would be able to secure and maintain substantially gainful employment.
Based on this evidence, the Board granted TDIU effective from September 25, 2013. In May 2021, VA changed the effective date to January 30, 2009, increasing the retroactive benefits awarded to the Veteran. Additionally, VA granted Special Monthly Compensation with Aid and Attendance.
