An evaluation of 40 percent, but no higher, from June 15, 2010 through the present, for left lower extremity peripheral neuropathy is granted.

Citation Nr: 26001458 Decision Date: 01/30/26 Archive Date: 01/30/26 DOCKET NO. 16-14 532 DATE: January 30, 2026 ORDER An evaluation of 40 percent, but no higher, from June 15, 2010 through the present, for left lower extremity peripheral neuropathy is granted. An evaluation of 40 percent, but no higher, from June 15, 2010 through the present, for right lower extremity peripheral neuropathy is granted. The appeal (concerning the issues of entitlement to a compensable rating prior to March 2, 2020, a rating in excess of 20 percent prior to November 29, 2021, and in excess of 30 percent from November 29, 2021, for bilateral hearing loss) is dismissed. A total disability rating based on individual unemployability (TDIU) effective June 15, 2010, is granted. FINDINGS OF FACT 1. Throughout the entire period on appeal, the Veteran's left lower extremity peripheral neuropathy most nearly approximated moderately severe incomplete paralysis of the sciatic nerve manifested by motor and reflex impairment, in addition to sensory symptoms of reduced sensation, pain, burning, and numbness. 2. Throughout the entire period on appeal, the Veteran's right lower extremity peripheral neuropathy most nearly approximated moderately severe incomplete paralysis of the sciatic nerve manifested by motor and reflex impairment, in addition to sensory symptoms of reduced sensation, pain, burning, and numbness. 3. On January 20, 2026, prior to the promulgation of a decision in the appeal, the Board received sufficient, written notification from the appellant that a withdrawal of the issues of entitlement to a compensable rating prior to March 2, 2020, a rating in excess of 20 percent prior to November 29, 2021, and in excess of 30 percent from November 29, 2021, for bilateral hearing loss, are requested. 4. The probative evidence of record supports that the Veteran's service-connected disabilities preclude him from obtaining and maintaining substantially gainful employment from June 15, 2010. CONCLUSIONS OF LAW 1. The criteria for an increased disability rating of 40 percent from June 15, 2010, through the present, for left lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, Diagnostic Code (DC) 8520. 2. The criteria for an increased disability rating of 40 percent from June 15, 2010, through the present, for right lower extremity peripheral neuropathy are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.124a, DC 8520. 3. The criteria for withdrawal of the claim for entitlement to a compensable rating prior to March 2, 2020, a rating in excess of 20 percent prior to November 29, 2021, and in excess of 30 percent from November 29, 2021, for bilateral hearing loss, are met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The criteria for entitlement to a TDIU are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1969 to September 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted service connection for left and right lower extremity diabetic peripheral neuropathy and assigned initial disability evaluations of 10 percent for each extremity effective June 15, 2010. In May 2021, the Board issued a decision that in part remanded claims for entitlement to higher initial evaluations for bilateral lower extremity peripheral neuropathy and bilateral hearing loss, to the AOJ for further development. After completing further development, in a December 2021 rating decision, the AOJ increased the ratings to 20 percent for the right lower extremity peripheral neuropathy, and 40 percent for the left lower extremity peripheral neuropathy, effective November 29, 2021. The AOJ also increased the ratings to 20 percent effective March 2, 2020, and 30 percent effective November 29, 2021, for bilateral hearing loss. In May 2024, the Board issued a decision that in part denied ratings higher than 10 percent prior to November 29, 2021, and higher than 20 percent thereafter for the right lower extremity peripheral neuropathy; denied ratings higher than 10 percent prior to November 29, 2021, and higher than 40 percent thereafter for the left lower extremity peripheral neuropathy; and remanded a compensable rating prior to March 20, 2020, a rating in excess of 20 percent prior to November 29, 2021, and in excess of 20 percent thereafter for bilateral hearing loss. The Veteran appealed the decision to the United States Court of Appeals for Veteran's Claims (Court or CAVC) and in a May 2025 Order, the Court endorsed a Joint Motion for Partial Remand (JMPR), which vacated the Board's May 2024 decision with respect to the Veteran's lower extremity neuropathy claims and remanded the issues for further action consistent with the terms of the joint motion. The issues have since returned to the Board for appellate review. The JMPR indicated that the Veteran did not challenge the Board's denial of a compensable rating for hypertension as well as its dismissal of TDIU. However, as discussed below, the Veteran has re-raised TDIU. Increased Rating Disability evaluations are determined by application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran's service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 1. Entitlement to an evaluation of 40 percent, but no higher, from June 15, 2010 through the present, for left lower extremity peripheral neuropathy is granted. 2. Entitlement to an evaluation of 40 percent, but no higher, from June 15, 2010 through the present, for right lower extremity peripheral neuropathy is granted. The Veterans Benefits Administration (VBA) has determined that there are 5 separate nerve branches in the lower extremities that may be separately rated. According to VBA, the sciatic nerve (DCs 8520, 8620 and 8720), the external popliteal nerve (common peroneal) (DCs 8521, 8621 and 8721), the musculocutaneous nerve (superficial peroneal) (DCs 8522, 8622 and 8722), the anterior tibial nerve (deep peroneal) (DCs 8523, 8623, 8723), the internal popliteal nerve (tibial) (DCs 8524, 8624, and 8724), and the posterior tibial nerve (DCs 8525, 8625, and 8725) affect the foot and leg sensory and motor function of the buttock, leg, knee, muscles below knee, lower leg, fibula, foot, muscles of the sole of the feet, plantar flexion, and toes. Assigning separate ratings from within these nerve branches is not warranted as it would constitute impermissible pyramiding. The Veteran's bilateral lower extremity neuropathy is currently evaluated under DC 8520 since November 29, 2021. Prior to that date, the conditions were evaluated under DC 8621. Under DC 8520, a 10 percent rating is warranted for mild incomplete paralysis. A 20 percent rating requires moderate incomplete paralysis; a 40 percent rating requires moderately severe incomplete paralysis, and a 60 percent rating requires severe incomplete paralysis with marked muscular atrophy. An 80 percent evaluation is warranted for complete paralysis; the foot dangles and drops, no active movement possible of muscles below the knee, flexion of knee weakened or (very rarely) lost. 38 C.F.R. § 4.124a. Under DC 8621, a 10 percent evaluation is assigned for neuritis with mild incomplete paralysis of the external popliteal nerve. A 20 percent evaluation is assigned for neuritis with moderate incomplete paralysis of the external popliteal nerve. A 30 percent evaluation is assigned for neuritis with severe incomplete paralysis of the external popliteal nerve. A 40 percent evaluation is assigned for neuritis with complete paralysis of the external popliteal nerve; foot drop and slight drop of the first phalanges of all toes, cannot dorsiflex the foot, extension (dorsal flexion) of the proximal phalanges of toes lost, adduction weakened; anesthesia covers entire dorsum of foot and toes. 38 C.F.R. § 4.124a, DC 8621. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type of picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. Id. See also Miller v. Shulkin, 28 Vet. App. 376, 380(2017) (non-sensory manifestations are not necessarily rated at a higher level). The regulations specifically provide that when rating peripheral nerve injuries and residuals related thereto, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, and/or sensory disturbances. 38 C.F.R. § 4.120. Consideration is also given to loss of reflexes, muscle atrophy, sensory disturbances, and pain. See 38 C.F.R. §§ 4.123, 4.124. Descriptive words such as "mild," "moderate," "moderately severe" and "severe" are not defined in the Rating Schedule. As with any regulatory interpretation where the terms are not defined in the regulation, we presume those terms carry their ordinary dictionary meaning. See Moody v. Wilkie, 30 Vet. App. 329, 336 (2018). The Board finds that these terms are unambiguous and, therefore, a plain dictionary meaning is an appropriate definition. Cf. Kisor v. Wilkie, 139 S. Ct. 2400, 2415 (2019); see also 38 C.F.R. § 4.6 (noting, in general, the Board does not evaluate evidence by applying a mechanical formula, but rather conscientiously to the end that its decisions are equitable and just). According to MERRIAM WEBSTER'S COLLEGIATE DICTIONARY 999 (11th Ed. 2007), "mild" means gentle in nature or temperate. "Moderate" means limited in scope or effect or average in amount, intensity, quality, or degree. The term "moderately severe" includes impairment that is considered more than "moderate" but not to the extent as to be considered "severe." WEBSTER'S NEW WORLD DICTIONARY 1012 (2nd ed. 1999). "Severe" means very painful or harmful or of a great degree. "Considerable" is defined as "large in extent or degree." MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY 267 (11th ed. 2012). Although a medical examiner's use of descriptive terminology such as "mild" is an element of evidence to be considered by the Board, it is not dispositive of an issue. The Board must evaluate all evidence in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The Board acknowledges the VA Adjudicative Procedures Manual M21-1 (hereinafter M21-1) contains provisions regarding rating peripheral nerve disabilities. The United States Court of Appeals for the Federal Circuit has held that the Board is not bound by the provisions of the M21-1 and the manual does not "carry the force of law." DAV v. Sec'y of Veterans Affs., 859 F.3d 1072, 1077 (Fed. Cir. 2017). It is "an internal manual used to convey guidance to VA adjudicators. It is not intended to establish substantive rules beyond those contained in statute and regulation." Id. The M21-1 provisions do not go through the regular rulemaking procedures and is little more than evidence as to how VBA applies law and regulation in practices; it is not binding on the Board as it is not a regulation, instruction of the Secretary, or OGC opinion. Id.; see also 38 U.S.C. § 7104(c). The regulations further clarify that the Board "is not bound by Department manuals, circulars, or similar administrative issues." 38 C.F.R. § 20.105. Nevertheless, the Court in Overton v. Wilkie held that the Board is required to discuss "any relevant provisions contained in the [M21] as part of its duty to provide adequate reasons or bases, but because it is not bound by those provisions, it must make its own determination before it chooses to rely on an [M21] provision as a factor to support its decision." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). More recently, in Wilson v. McDonough, the Court elaborated that, in the context of relevant guidance documents, the Board can "neither merely invoke nor ignore a relevant guidance provision to support its decision but must provide an independent rationale relating its decision to the relevant guidance document." 35 Vet. App. 75, 80 (2021). Pursuant to Wilson, the Board finds that VA's M21-1 does contain guidance relevant to the adjudication of the issues currently on appeal. Specifically, Part V, Subpart iii, Chapter 12, Section A(c) of the M21-1 provides "general guidelines" for the terms "mild," "moderate," "moderately severe," and "severe" in the context of evaluating incomplete paralysis of upper and lower peripheral nerves. Under the M21-1, "mild" is described as the lowest level of evaluation based on the symptoms, however, slight, as long as they were sufficient to support a diagnosis of the peripheral nerve impairment. Generally, "mild" is limited to a disability limited to sensory deficits that are lower graded, less persistent, and affecting a small area and/or a very minimal reflex or motor abnormality. "Moderate" in the M21-1 is described as the maximum evaluation reserved for the most significant cases of sensory-only impairment. The M21-1 further elaborates that the following "sign/symptom combinations" may fall into the moderate category: combinations of significant sensory changes and reflex or motor changes of a lower degree, or motor and/or reflex impairment such as weakness or diminished or hyperactive reflexes (with or without sensory impairment) graded as medically moderate. The M21-1 provides "moderately severe" is only applicable for involvement of the sciatic nerve and is described as motor and/or reflex impairment (for example, weakness or diminished or hyperactive reflexes) at a grade reflecting a high level of limitation or disability is expected. Atrophy may be present with moderately severe peripheral neuropathy. "Severe" in general, is expected to include motor and/or reflex impairment (for example atrophy, weakness, or diminished or hyperactive reflexes) at a grade reflecting a very high level of limitation or disability. Trophic changes may be seen with severe longstanding neuropathy. Even though severe incomplete paralysis cases should show findings substantially less than representative findings for complete impairment of the nerve, the disability picture for severe incomplete paralysis may contain signs/symptoms resembling some of those expected in cases of complete paralysis of the nerve. Evidence Turning to the evidence of record, at the February 2011 VA examination, the Veteran reported that both his "legs go numb and fall asleep mostly with lying down and sitting too long which has been going on for 3 years." See February 28, 2011 VA Examination (General Medical), at 3. Upon clinical evaluation, the examiner found decreased pinprick sensation and monofilament testing in both lower extremities, primarily the feet. Id. at 4. The examiner also noted that the deep tendon reflexes of both ankles were absent (0), and the deep tendon reflexes of both knees were slightly decreased (1+). No muscle atrophy was found. Id. January 2012 VA treatment records noted that the Veteran's neuropathy was controlled with Gabapentin. See April 6, 2012 CAPRI, at 19. He denied numbness, pain, or tingling in the feet. Id. at 24. The Veteran was provided with a VA examination for the spine in October 2012. See October 9, 2012 VA Examination (Back (Thoracolumbar Spine) Conditions DBQ). The Veteran's lower extremity muscle strength was 5/5 bilaterally. Deep tendon reflex examination and sensory examination produced normal results. Straight leg testing was negative bilaterally. The examiner determined that the Veteran did not have radiculopathy. No muscle atrophy was found. Id. at 6-9. April 2013 VA treatment records noted numbness in both feet and legs. See October 3, 2013 Medical Treatment Record - Government Facility, at 57. He denied pain radiating down the buttocks or thighs. He also denied any other symptoms. Id. In December 2014 VA medical records, the Veteran reported that when he stood longer than 10 minutes, his legs would start to burn and he would get numbness down the posterior thighs, calves, and into his feet. See December 3, 2015 CAPRI, at 163. The left side was worse than the right. He endorsed "some weakness and near falls due to the leg numbness and apparent giving out of the legs." Id. He also stated that "when he is walking he is noting the left foot is beginning to flap agains[t] the ground." Id. In June 2015 VA treatment records the Veteran denied numbness or weakness to the extremities. Motor function to all the extremities was noted to be intact. There was no numbness or tingling. See December 3, 2015 CAPRI, at 57, 60. In November 2015 VA treatment records the Veteran reported numbness, stinging, and burning in his feet. Id. at 7. December 2015 VA records indicated that the Veteran experienced tingling and numbness from his feet upwards, when he stood for longer than 10 minutes. See April 15, 2016 CAPRI, at 11. The Veteran was provided with a VA examination in January 2016. See January 7, 2016 C&P Exam (Diabetic Sensory-Motor Peripheral Neuropathy DBQ). He was diagnosed with diabetic peripheral neuropathy of the bilateral lower extremities. Id. at 2. There was moderate intermittent pain and moderate numbness in the bilateral lower extremities. Id. Muscle strength was 5/5. Id. at 3. Deep tendon reflexes were decreased in the knees and absent in the ankles. Id. at 4. Sensory testing was normal except in the feet/toes where sensation was decreased. Id. Position sense was decreased in the lower extremities. Id. at 4-5. Cold and vibration sensation was normal. Id. at 5. There was no evidence of muscle atrophy or trophic changes. Id. The examiner determined that the Veteran had mild incomplete paralysis of the bilateral sciatic nerve. Id. at 6. The examiner also noted that the Veteran's diabetic peripheral neuropathy impacts his ability to work, stating that "standing and walking exacerbate symptoms in feet and legs." Id. at 7. June 2016 VA medical records indicated that the Veteran's motor functions were all intact. The Veteran denied numbness, tingling, or loss of sensation. See June 2, 2021 CAPRI, at 94. In March 2017 records the Veteran denied numbness and burning in the feet. See June 2, 2021 CAPRI, at 44. In November 2017 VA treatment records the Veteran reported numbness, stinging, and burning in the feet. Id. at 7. April 2018 records indicated that the Veteran was experiencing increased numbness in both legs and needs to use a cane "as he is having neuropathy issues and feels his balance is off." See June 2, 2021 CAPRI, at 77, 84, 85. December 2018 VA records noted numbness, stinging, and burning in the feet, with the left being more prominent. Id. at 4. In January 2019 records, the Veteran denied numbness, tingling, and weakness. June 2, 2021 CAPRI, at 439. In April 2019 VA records, the Veteran reported numbness, stinging, and burning in the feet. Id. at 57. The Veteran was provided with another VA examination in November 2021. See December 9, 2021 C&P Exam (Peripheral Nerves Conditions DBQ, dated November 29, 2021). The Veteran reported that he continues to have numbness and tingling to the lower extremities, and takes Gabapentin daily for treatment. Id. at 2-3. The Veteran had moderate intermittent pain, mild paresthesias/dysesthesias, and moderate numbness of the bilateral lower extremities. Id. at 3. Muscle strength was 5/5 in the lower extremities. There was no evidence of muscle atrophy and the Veteran had normal deep tendon reflexes. Sensation testing was normal. Id. at 4-5. There were no trophic changes. The examiner found the Veteran's gait was abnormal, noting that he walks with a walker. The examiner also found "numbness and tingling to the feet" as the etiology of his abnormal gait. Id. at 5. The examiner found that the Veteran exhibited moderate incomplete paralysis (sciatic nerve) of the right lower extremity and moderately severe incomplete paralysis (sciatic nerve) of the left lower extremity. Id. at 7. Lastly, the examiner noted that the Veteran utilized a wheelchair regularly due to his neuropathy. Id. at 9. Analysis The Veteran has indicated his belief that a higher disability rating is warranted under DC 8520 for sciatic nerve involvement, for the entire period on appeal. See January 20, 2026 Third Party Correspondence, at 1-2. As the medical evidence of record shows that there is sciatic nerve involvement from the service-connected bilateral diabetic neuropathy, the Board finds DC 8520 is applicable for the entire period on appeal. See, e.g., January 7, 2016 C&P Exam (Diabetic Sensory-Motor Peripheral Neuropathy DBQ), at 7 (finding that the Veteran's service-connected bilateral external popliteal nerve neuropathy is more accurately classified as bilateral sciatic nerve neuropathy-that it is the same lesions but under a different name). Based on the foregoing, the Board finds that the Veteran is entitled to 40 percent ratings, but no higher, effective June 15, 2010 through the present, for his right and left lower extremity peripheral neuropathy. VA regulations prohibit assigning a disability rating higher than moderate incomplete paralysis when the symptoms are wholly sensory. Such is not the case here because VA examiners found that in addition to his sensory symptoms, the Veteran has reflex and motor impairment due to his peripheral neuropathy of the lower extremities. Upon clinical evaluation at the February 2011 and January 2016 VA examinations, the examiners found that the Veteran had decreased reflexes of both knees and absent reflexes of both ankles. Furthermore, upon clinical evaluation at the January 2016 VA examination, the examiner found that the Veteran's diabetic peripheral neuropathy impacted his ability to work because standing and walking exacerbated symptoms in his feet and legs. Additionally, upon clinical evaluation at the November 2021 VA examination, the examiner found that the Veteran's gait was abnormal, noting that he walks with a walker due to numbness and tingling in the feet. That examiner also noted that the Veteran utilized a wheelchair regularly due to his neuropathy. Medical treatment records also show that the Veteran experienced weakness and numbness of the lower extremities, which has led to losing "balance," "near falls," or "giving out of the legs." The Board finds the above, contemporaneous medical records documenting the Veteran's reduced reflexes and weakness, are competent and credible, and therefore accords significant probative weight to this evidence. The record also shows that the sensory and motor/reflex symptoms of the Veteran's lower extremity peripheral neuropathy fluctuates. However, at worst, the manifestations include difficulty ambulating, to include prolonged walking and standing, in addition to his sensory symptoms of reduced sensation, pain, burning, and numbness. Therefore, the Board must assign a rating higher than moderate (20 percent) for the period on appeal. Given the breadth and severity of the Veteran's symptoms, and resolving all doubt in his favor, ratings of 40 percent are warranted for his bilateral lower extremity neuropathy throughout the entire appeal period. 38 U.S.C. § 5107(b). The Board also finds ratings in excess of 40 percent are not warranted. There is no evidence that the Veteran has exhibited muscular atrophy. The next-higher 60 percent rating requires marked muscular atrophy, and as there are no findings of any atrophy, to include upon clinical examination, a 60 percent rating (severe incomplete paralysis of the sciatic nerve) is not warranted. Moreover, the Veteran's examinations and treatment records do not show complete paralysis at any time during the period on appeal, nor has he so asserted, accordingly, an 80 percent rating is not warranted. As such, the evidence reflects the Veteran's symptoms more nearly approximate moderately severe incomplete paralysis of the sciatic nerve causing bilateral lower extremity peripheral neuropathy from June 15, 2010 through the present, and ratings in excess of 40 percent are not warranted. 3. The appeal (concerning the issues of entitlement to a compensable rating prior to March 2, 2020, a rating in excess of 20 percent prior to November 29, 2021, and in excess of 30 percent from November 29, 2021, for bilateral hearing loss) is dismissed. On January 20, 2026, the Veteran, via his accredited attorney representative, submitted a letter stating that he wished to withdraw the appeal concerning the ratings assigned for bilateral hearing loss, including entitlement to a compensable rating prior to March 2, 2020, a rating in excess of 20 percent prior to November 29, 2021, and in excess of 30 percent from November 29, 2021. See January 2026 Third Party Correspondence. Under 38 U.S.C. § 7105, the Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn in writing or during a hearing at any time before the Board promulgates a decision. Only an appellant, or an appellant's authorized representative, may withdraw an appeal. An appeal may be withdrawn as to any or all issues involved in the appeal. 38 C.F.R. § 19.55(a). Appeal withdrawals must include the name of the veteran, the name of the claimant or appellant if other than the veteran (e.g., a veteran's survivor, a guardian, or a fiduciary appointed to receive VA benefits on an individual's behalf), the applicable Department of Veterans Affairs file number, and a statement that the appeal is withdrawn. If the appeal involves multiple issues, the withdrawal must specify that the appeal is withdrawn in its entirety, or list the issue(s) withdrawn from the appeal. 38 C.F.R. § 19.55(b). In the present case, the Veteran submitted a letter which contained the Veteran's name, the VA file number, and statement withdrawing the appeal regarding the ratings assigned for bilateral hearing loss, in accordance with 38 C.F.R. § 19.55(b). See January 20, 2026 Third Party Correspondence. As such, there remain no allegations of errors of fact or law for appellate consideration regarding these issues. Accordingly, this issue is dismissed. 4. Entitlement to a TDIU effective June 15, 2010, is granted. A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Here, the Veteran's service-connected disabilities yield a combined disability rating sufficient to meet the requirements for a schedular TDIU rating under 38 C.F.R. § 4.16(a), from June 15, 2010, as they combined for a 90 percent evaluation and one disability (PTSD) is rated at 50 percent disabling. The combined evaluation accounts for the increased disability ratings for the Veteran's bilateral lower extremity peripheral neuropathy granted in this decision. See Green v. McDonough, 37 Vet. App. 127, 136 (2024) (stating that an agency decision which post-dates the decision on appeal does not constitute "evidence" and as such, the decision need not have been of record at the time of the decision on appeal). VA will grant TDIU when the evidence shows the veteran is precluded from obtaining or maintaining any gainful employment consistent with his education and occupational experience, by reason of his service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341, 4.16. Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. Id. The relevant question is not whether the veteran is unemployed or has difficulty obtaining employment, but whether the veteran is capable of performing the physical and mental acts required by employment. Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Procedurally, this legacy appeal included the issue of entitlement to TDIU. See, e.g., 1/29/2016 Statement of the Case; 3/30/16 VA Form 9; 5/26/21 BVA Decision. Following the May 2021 Board remand, the Veteran submitted a VA 21-4138 in May 2023 requesting a withdrawal of the TDIU matter and the Board honored this request and dismissed TDIU in its May 2024 decision. Upon appeal to the Court, the Veteran abandoned this issue as noted on second page of the JMPR. Interestingly, the Veteran's attorney representative re-raised TDIU in January 2026 correspondence, to include submitted a vocational opinion, discussed below, and a VA 21-8940 that lists, among other service-connected disabilities preventing him from following a substantially gainful occupation, bilateral lower extremity peripheral neuropathy. See Rice v. Shinseki, 22 Vet. App. 447, 454 (2009) (noting that "when entitlement to TDIU is raised during the adjudicatory process of the underlying disability...it is part of the claim for benefits for the underlying disability"). The Veteran submitted a VA Form 21-8940, Veteran's Application for Increased Compensation Based on Unemployability, in January 2026 and listed his service-connected PTSD, bilateral upper and lower extremity peripheral neuropathy, diabetes, hearing loss, tinnitus, and hypertension as the cause of his unemployability. See January 20, 2026 VA 21-8940. On his VA Form 21-8940, the Veteran indicated he last worked as a mechanic for the US Postal Service from August 1975 to July 2005. He indicated that he worked 40 hours a week and left his job due to his service-connected disabilities. He also indicated that he had completed schooling until his sophomore year in high school, with no additional education or training. Id. In a January 2026 Vocational Assessment Report, a vocational expert opined that the limitations from the Veteran's service-connected PTSD, bilateral upper and lower extremity peripheral neuropathy, diabetes mellitus, hearing loss, tinnitus, and hypertension have caused him to be unable to secure and follow substantially gainful employment, including both skilled and unskilled sedentary work, since at least June 2010. See January 20, 2026 Medical Treatment Record - Non-Government Facility. Specifically, the expert noted that the medical records revealed the Veteran's symptoms of PTSD, including anxiety, panic attacks, depression, insomnia, nightmares, flashbacks, auditory and visual hallucinations, paranoia, homicidal ideation, anger control problems, difficulty maintaining concentration, social isolation, and exaggerated startle response, impedes his ability to appropriately interact with the general public, coworkers, and supervisors, and would lead to behaviors that would not be tolerated by employers in any type of occupational setting, including sedentary employment. The expert noted that interaction with others, such as checking in with a supervisor, is required to at least some degree in all employment and these interactions are expected to be appropriate and professional. The medical records consistently document that the Veteran had "frequent verbal conflicts with his supervisors," was "fired" from a position for "threatening to kill his supervisor," had "frequent fights off the job site with supervisors," expressed "fear that he might take someone's life at work," and was noted to have "difficulties with hostility, emotional numbing, and disregard for others feelings and rights" that "have caused significant social and occupational impairment." Id. at 10-11. The expert reiterated that these documented symptoms make it difficult for him to work collaboratively with others in the workplace, including even minimal check-ins with a supervisor. Therefore, the expert concluded that the Veteran's PTSD causes social limitations that would not be tolerated by employers in the competitive workforce. Next, the expert discussed the Veteran's bilateral upper extremity peripheral neuropathy, which has resulted in the diminished ability to reach or repetitively utilize the upper extremities, and precluded his ability to meet the full range of physical demands required of even sedentary work. Specifically, his limited ability to perform repetitive tasks such as reaching has rendered him unable to perform even unskilled sedentary work tasks, such as assembling, inspecting, or sorting products on a workbench. These limitations have also precluded his ability to perform sedentary office tasks requiring repetitive use of the upper extremities, such as typing, writing, operating a telephone, or sorting files. The expert added that even if he could have found sedentary work that involved only minimal standing or walking, his documented limitations with sitting causing numbness, unpredictable episodes of his legs giving out, and the need for frequent positional changes would have still prevented him from performing the necessary requirements of any sedentary work and cause unacceptable disruptions during the workday. His need for frequent positional changes and/or breaks due to leg numbness and pain would severely impact his ability to meet employer expectations of pace and productivity. Id. at 11-12. The expert also discussed how the Veteran's diabetes mellitus impacted his physical capabilities and his ability to perform and sustain sedentary employment since at least June 2010. Specifically, the medical records document that the Veteran experienced hypoglycemic episodes causing him to feel "shaky and sweaty," "severe hypoglycemia," and visits with his diabetic provider for hypoglycemic and ketoacidosis episodes "less than 2 times per month." The expert stated that these symptoms markedly limited the physical capabilities required by sedentary roles, including periodic standing, walking short distances, prolonged sitting, and basic mobility within a work environment. Id. at 13. Therefore, the expert concluded that these interruptions and physical limitations would have significantly disrupted the Veteran's ability to sustain concentration, remain productive, and consistently meet typical workplace expectations, which generally require sustained concentration for two consecutive hours and productivity for at least 90 percent of the workday. The expert reiterated that the cumulative effect of his neuropathy-related symptoms and diabetic complications would have resulted in considerable off-task behavior, compounding over the workday and substantially reducing his productivity and efficiency. Id. Lastly, the expert discussed the Veteran's bilateral hearing loss and tinnitus, which would make communication between him and his employers/coworkers/the public difficult, as the medical records document his "difficulty hearing in background noise" due to his hearing loss and "distracting" constant tinnitus. The 10/26/2007 Audiology VA Examination documented bilateral "moderate hearing loss" at high frequencies and left ear "severe hearing loss at 4KHz." The 1/26/2011 Audiology VA Examination documented bilateral "moderate to severe" high frequency hearing loss. The expert opined that this would slow down his pace, as he would have to ask employers to repeat themselves in order to get instructions for tasks, thereby further hindering his productivity in excess of employer tolerances. Additionally, the expert pointed out that most sedentary workplaces are open space, and the added noise from colleagues answering the phone and doing their own tasks would make his ability to communicate with employers/coworkers even more difficult. Id. at 13. The Board finds the January 2026 vocational assessment adequate for review. There is no evidence that the vocational expert was not competent or credible, and as the opinion is based on a thorough review of the evidence of record, the Veteran's lay statements, and medical history the Board finds it entitled to significant probative weight. Upon review of the record, and after resolving all doubt in favor of the Veteran, the Board finds that entitlement to a TDIU is warranted, based on the combined effects of his service-connected disabilities of PTSD, bilateral upper and lower extremity peripheral neuropathy, diabetes, hearing loss, tinnitus, and hypertension. In light of his background working a job that is physical in nature for decades, and his service-connected disabilities of PTSD, bilateral upper and lower extremity peripheral neuropathy, diabetes, hearing loss, tinnitus, and hypertension, considered together, as likely as not render the Veteran unable to obtain or maintain gainful employment consistent with his work history. Accordingly, for the period of appeal, entitlement to a TDIU is warranted. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (responsibility for the ultimate TDIU determination is on the VA, not a medical examiner). Paul Sorisio Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mcallister, Joyce L. 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.