Citation Nr: 1124073 Decision Date: 06/24/11 Archive Date: 06/29/11 DOCKET NO. 08-00 907 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for Parkinson's disease, to include as due to exposure to herbicides. 2. Entitlement to an initial disability rating greater than 30 percent for posttraumatic stress disorder (PTSD) with dysthymia. 3. Entitlement to a total disability rating based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD April Maddox, Counsel INTRODUCTION The Veteran had active military service from November 1965 to September 1968. Personnel records show that he served in Vietnam from September 1966 to July 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran indicated on his December 2007 VA Form 9 that he wished to testify at a Board hearing. Originally, a Travel Board hearing was scheduled for February 2010 but the Veteran requested to postpone this hearing. A subsequent Travel Board hearing was scheduled for April 2010 and the Veteran was provided notice of this hearing in March 2010. However, the Veteran failed to report to the scheduled hearing and failed to explain his absence. Therefore, the Board hearing request is considered withdrawn. See 38 C.F.R. § 20.704(d) (2010). The issues of entitlement to an initial disability rating greater than 30 percent for PTSD with dysthymia and entitlement to a TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The Veteran served in Vietnam from November 1966 to September 1968; therefore, exposure to herbicides may be presumed. 2. Parkinson's disease is due to herbicide exposure. CONCLUSION OF LAW Parkinson's disease may be presumed to have been incurred in wartime service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran contends that his Parkinson's disease related to his military service. Specifically, he contends that he was exposed to Agent Orange while in service and is thus entitled to presumptive service connection. Legal Criteria Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A "veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975 shall be presumed to have been exposed during such service to an herbicide agent . . . unless there is affirmative evidence to establish that the veteran was not exposed to any such agent during that service." 38 U.S.C.A. § 1116(f). VA regulations provide that, if a veteran was exposed to an herbicide agent during active service, presumptive service connection is warranted for certain specified disorders. 38 C.F.R. § 3.309(e). During the pendency of this claim, VA amended 38 C.F.R. § 3.309(e) to include Parkinson's disease. 75 Fed. Reg. 53202 (August 31, 2010). Analysis A review of the record reveals that the Veteran has a current diagnosis of Parkinson's disease. VA treatment records show that the Veteran began complaining of tremors in his left hand in January 2004. A February 2006 VA note shows that a neurology consultation was ordered with a possibility of Parkinson's disease. A subsequent December 2006 statement from the Veteran's primary VA treating physician indicates that the Veteran has a diagnosis of Parkinson's disease. Service personnel records also show that the Veteran served in Vietnam from September 1966 to July 1967. In this case, based on the recent August 31, 2010 amendment including Parkinson's disease in 38 C.F.R. § 3.309(e) as a specified disorder for which presumptive service connection is warranted, service connection for Parkinson's disease is now granted. Notice and Assistance In this case, the Board is granting in full the benefit sought on appeal. Accordingly, assuming, without deciding, that any error was committed with respect to either the duty to notify or the duty to assist, such error was harmless and will not be further discussed. 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). ORDER Service connection for Parkinson's disease is granted. REMAND In December 2008 correspondence the Veteran indicated that he was now in receipt of Social Security disability benefits. However, neither a decision regarding this award nor any of the medical records used in the decision are associated with the claims file. The Board finds that there is a reasonable possibility that records held by the Social Security Administration (SSA) could help the Veteran substantiate his claims. See Golz v. Shinseki, 590 F.3d 1317, 1323 (Fed. Cir. 2010). Hence, on remand, efforts to obtain the SSA records must be made until the records are either obtained or it is determined that the records do not exist or that continuing efforts would be futile. 38 U.S.C.A. § 5103A. Also, the Veteran was most recently afforded a VA examination regarding his service-connected psychiatric disorder in May 2007. In November 2008 correspondence, the Veteran indicated that he had often attempted suicide by taking an overdose of his medication. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). While the RO scheduled VA psychiatric examinations in February 2009, April 2009, and May 2009 on which occasions the Veteran failed to report, given the necessity of a remand for SSA records, on remand, the RO should, once again, schedule the Veteran for another VA psychiatric examination. Also, throughout the record, the Veteran has argued that he cannot not maintain substantially gainful employment due to his service-connected PTSD with dysthymia and his now service-connected Parkinson's disease. Specifically, in a November 2006 claim for nonservice-connected pension the Veteran indicated that he stopped working in October 2006. A claim for TDIU is not a freestanding claim. Rather, it is a claim for an increased rating (a total rating based on individual unemployability) for the underlying disability(ies). Such a claim may be expressly raised or it may be "reasonably raised by the record," and the claim may be filed as a component of an initial claim or as a claim for an increased rating for a service-connected disability. If a veteran asserts entitlement to a TDIU during the appeal of the initial evaluation assigned, such as in the present case, the issue is part of the underlying claim for an increased initial evaluation. Rice v. Shinseki, 22 Vet. App. 447 (2009). The Board finds that the Veteran has raised the issue of entitlement to a TDIU as part of his claim for a higher rating for the service-connected PTSD with dysthymia. Although they are listed separately on the title page, the issues are not independent and must be adjudicated as one claim. See Rice, 22 Vet. App. at 455. In the case of a claim for a TDIU, the duty to assist requires that VA obtain an examination which includes an opinion on what effect the Veteran's service connected disabilities have on his ability to work. Friscia v. Brown, 7 Vet. App. 294, 297 (1994). Accordingly, the case is REMANDED for the following action: 1. Provide the Veteran and his representative appropriate notice with respect to the TDIU issue. 2. Contact the Social Security Administration and obtain any administrative decisions and all medical records used in adjudicating the Veteran's award of disability benefits, specifically those records regarding his PTSD with dysthymia and Parkinson's disease. Once obtained, all documents must be permanently associated with the claims folder. If these records are unobtainable, a negative reply must be noted in writing and associated with the claims file. 3. Schedule the Veteran for a VA examination to identify the current level of impairment resulting from his service-connected PTSD with dysthymia and to obtain an opinion as to whether his service-connected disabilities would as likely as not preclude substantially gainful employment. The Veteran should be properly notified of the examination and of the consequences of a failure to appear. The claims file must be made available to the examiner for review in connection with the examination. All necessary tests should be conducted. The examiner should opine as to whether it is at least as likely as not (50 percent probability or more) that the Veteran's service-connected disabilities (PTSD with dysthymia and Parkinson's disease) would prevent him from obtaining or keeping gainful employment for which his education and occupational experience would otherwise qualify him. A complete rationale for all opinions must be provided. 4. After completion of the foregoing, readjudicate the disability rating, including schedular, extraschedular, and TDIU on the merits. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and afforded a reasonable opportunity to respond. The appellant has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim 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 Supp. 2010). ______________________________________________ H.N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs