CCK Helps Veteran Secure Retroactive TDIU Based on Peripheral Neuropathy

CCK Law: Our Vital Role in Veterans Law

Case Summary

The Veteran served on active duty in the U.S. 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 neuropathy. VA denied his claim in several subsequent Rating Decisions.

In April 2009, the Veteran filed a new claim for an increased rating for 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 peripheral neuropathy rating 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 TDIU.

In a March 2016 decision, the Board denied an increased rating for neuropathy but granted 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 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 the left and right lower extremities in a July 2017 Board decision.

CCK Argues for Increased Rating for Peripheral Neuropathy

After another TDIU denial and increased rating denial in 2018, the Veteran’s case again reached the Board on appeal in June 2020. CCK helped him submit additional medical evidence. The Board remanded the case so the new 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 lower extremities. Throughout the appeal period, he credibly reported his worsening symptoms of intermittent pain, weakness, numbness, and fatigue during medical exams 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 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 testified that his service-connected peripheral neuropathy kept him from securing and maintaining substantially gainful employment.

His former job at a steel manufacturing company required he be on his feet all day while handling heavy loads. Due to his condition, he could not meet those expectations. Thus, he had not worked full-time since November 2008.

According to CCK, medical evidence showed he had functional limitations. He could not sit for over 30 consecutive minutes, stand for over 10 minutes, walk distances of over 35 feet, and carry loads weighing over 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. VA also granted Special Monthly Compensation with Aid and Attendance.