Citation Nr: 1311714 Decision Date: 04/09/13 Archive Date: 04/19/13 DOCKET NO. 09-33 257 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for benign essential tremor of the upper extremities prior to June 28, 2009 and in excess of 30 percent thereafter. 2. Entitlement to an initial rating in excess of 30 percent for psychiatric disability, including anxiety disorder. 3. Entitlement to a total rating based on unemployability due to service-connected disability. REPRESENTATION Appellant represented by: Brian D. Hill, Attorney at law ATTORNEY FOR THE BOARD Siobhan Brogdon, Counsel INTRODUCTION The Veteran served on active duty from January 1965 to September 1968 and from May 1969 to August 1971. This appeal comes before the Department of Veterans Affairs (VA) Board of Veterans Appeals (Board) from rating decisions of the VA Regional Office in St. Petersburg, Florida that granted service connection for benign essential tremor of the upper extremities, head and neck, evaluated as 10 percent disabling from July 12, 2007, and 30 percent from June 29, 2009. Service connection was also granted for anxiety disorder, evaluated as 30 percent disabling from June 12, 2007. The appellant appeals for higher initial ratings. The RO denied a total rating based on unemployability due to service-connected disability. Following review of the record, the appeal is REMANDED to the RO via the Appeals Management Center (AMC) in Washington, DC. VA will notify the appellant if further action is required. REMAND While the case was undergoing remand development, the Veteran and his representative have asserted that the symptoms associated with service-connected psychiatric disability and essential tremors are more severely than reflected by the currently assigned disability evaluations and warrant higher ratings. It is maintained that he is unable to secure or maintain any gainful employment as the result of these service-connected disabilities, and that a total rating based on unemployability is warranted. The record reflects that the service-connected psychiatric disorder was most recently evaluated for VA compensation and pension purposes in April 2009. The examiner opined that the appellant did not have total occupational and social impairment due to psychiatric symptoms. However, J. Mangold, PhD. HSPP, wrote in August 2012 that the Veteran had been unable to secure or follow a substantially gainful occupation as a result of his service-connected anxiety/depressive disorder since at least September 2009, without regard to any other nonservice connected disorder. Review of the record discloses that the Veteran has been determined to have Parkinson's disease concurrent with essential tremor of the upper extremities. He was most recently a VA neurological examination in March 2011. The examiner specifically determined that there was no relationship between essential tremor and Parkinson's disease. A clinical report dated in August 2012 was received from D. J. Tindall, M.D., who stated that it was impossible to differentiate the symptoms of essential tremor and Parkinson's disease. Thus, clarification is needed. It may be possible to determine if the Parkinson's causes other impairment, potentially to the lower extremities, that is not considered in the service connected disorder. If it is possible to determine separate symptoms as to the upper extremities, that must be made clear and supported with medical rationale. Otherwise, all upper extremity symptoms should be considered as service connected. VA outpatient records dating through September 2012 reflect that the appellant continues to receive regular follow-up for both service-connected disorders. The record reflects that there is no recent assessment by VA as to whether the Veteran is unable to work due solely to service-connected disability nor have functional limitations been adequately described. Given the above, the duty to assist requires that VA obtain an examination that includes an opinion as to what effect the Veteran's service-connected disabilities have on his ability to work. See Friscia v. Brown, 7 Vet. App. 294, 297 (1994). The Court of Appeals for Veterans Claims (Court) has held that an unemployability claim may not be denied without producing evidence, as distinguished from mere conjecture, that a veteran's disability does not prevent performing work that would produce sufficient income to be other than marginal. Frisica, 7 Vet. App. at 294, citing Beaty v. Brown, 6 Vet. App. 532, 537 (1994). As such, the record is not sufficiently developed as to this matter. Under the circumstances, the Board finds that further development of the evidence is required, to include a specialist examination and opinion. The fulfillment of the VA's statutory duty to assist the appellant includes requesting a contemporaneous and thorough VA medical examination by a specialist when indicated, and providing a medical opinion which takes into account the records of prior medical treatment so that the disability evaluation will be a fully informed one. See Hyder v. Derwinski, 1 Vet. App. 221 (1991); Green v. Derwinski, 1 Vet. App. 121, 124 (1991). Accordingly, the case is REMANDED for the following actions: 1. Schedule the Veteran for a comprehensive examination by a VA neuropsychiatrist to evaluate the severity of the service-connected essential tremor of the upper extremities and psychiatric disorder. The claims folder and access to Virtual VA records should be made available to the examiner. All indicated tests and studies should be conducted and clinical findings must be reported in detail. The examiner should be informed that service connection is not in effect for Parkinson's disease and requested to distinguish symptoms of essential tremor of the upper extremities from Parkinsonism, if possible. If so, medical rationale is requested. If not, that also should be indicated. The examiner is requested to provide a description of all functional impairment due the service connected disabilities, and indicate the degree of impairment that would be present if employment was pursued. If the disorders are so significant as to preclude employment that also should be set out. Please attempt to reconcile your opinion with the private opinions otherwise on file, and those previously recorded. 2. After taking any further development deemed appropriate, readjudicate the claims. If a benefit is not granted, issue a supplemental statement of the case before returning the case to the Board. The appellant has the right to submit additional evidence and argument on the matter or 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. 2012). _________________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).