Citation Nr: 1541878	
Decision Date: 09/28/15    Archive Date: 10/05/15

DOCKET NO. 14-02 990	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in San Diego, California


THE ISSUES

1. Entitlement to an effective date prior to April 19, 2011 for the grant of a 100 percent rating for posttraumatic stress disorder (PTSD).

2. Entitlement to an effective date prior to April 19, 2011 for the grant of service connection for chronic fatigue syndrome, associated with Parkinson Disease.

3. Entitlement to an effective date prior to June 9, 2010 for the grant of service connection for cervical spine degenerative disc disease (DDD), associated with Parkinson Disease.

4. Entitlement to an effective date prior to February 4, 2010 for the grant of service connection for loss of balance, associated with Parkinson Disease.

5. Entitlement to an effective date prior to April 19, 2011 for the grant of service connection for the complete loss of smell, associated with Parkinson Disease.

6. Entitlement to an initial rating in excess of 20 percent for a left upper extremity pill-rolling tremor, associated with Parkinson Disease.

7. Entitlement to an initial rating in excess of 10 percent prior to September 15, 2011 and in excess of 30 percent from September 15, 2011 forward for a right upper extremity tremor.

8. Entitlement to an initial rating in excess of 10 percent prior to September 15, 2011 and in excess of 20 percent from September 15, 2011 forward for left lower extremity bradykinesia.

9. Entitlement to an initial rating in excess of 10 percent prior to September 15, 2011 and in excess of 20 percent from September 15, 2011 forward for right lower extremity bradykinesia.

10. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to September 16, 2009.


REPRESENTATION

Veteran represented by:	Douglas J. Rosinski, Attorney at Law


ATTORNEY FOR THE BOARD

C. Wendell, Associate Counsel


INTRODUCTION

The Veteran served on active duty from March 1967 to October 1969.

This matter is before the Board of Veterans' Appeals (Board) on appeal from November 2010, February 2011, and May 2013 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. 

By way of background, in November 2010 the RO granted service connection for bilateral upper and lower extremity tremors and bradykinesia, rating these disabilities by analogy to Diagnostic Code 8004 which governs paralysis agitans (also known as Parkinson Disease). See DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1376 (32d ed. 2012). In February 2011 the RO denied entitlement to TDIU, and in May 2013 the RO granted a rating of 100 percent for PTSD and service connection for chronic fatigue syndrome, cervical spine DDD, loss of balance, and loss of the sense of smell. The Veteran timely and separately perfected appeals as to the ratings assigned in the November 2010 decision, the denial of TDIU in February 2011, and the effective dates assigned for the awards in the May 2013 rating decision. The issues have been combined into a single appeal for the purposes of appellate review by the Board.

The RO granted earlier effective dates for the grants of service connection for cervical spine DDD and low of balance in a November 2013 statement of the case. However, the Veteran and his representative continue to argue that the proper effective date for these claims is earlier than the date granted in November 2013. As such, the Board finds that the full benefit sought by the Veteran on appeal has not yet been granted, and therefore those issues are still on appeal. AB v. Brown, 6 Vet. App. 35 (1993). 

As part of September 2013 correspondence, the Veteran's representative requested either an informal or, if not possible, a formal hearing before a Decision Review Officer (DRO). Based on the record, an informal conference occurred on January 2014 between the DRO and the Veteran's representative, and thus the hearing request appears to have been satisfied. However, in February 2014 signed correspondence the Veteran's representative withdrew the hearing request. As such, the Board finds that to the extent that any hearing request was still pending, the request is considered withdrawn. 38 C.F.R. § 20.704(e).

The Board has not only reviewed the Veteran's physical claims file but also the electronic records maintained in Virtual VA and Veterans Benefits Management System (VBMS) to ensure consideration of the totality of the evidence.

In light of the grant of an earlier effective date for the award of a 100 percent rating for PTSD herein, the Board has re-characterized the remanded issue of entitlement to TDIU as entitlement to TDIU prior to September 16, 2009, as from that date on the issue of entitlement to TDIU has been rendered moot.

The issues of entitlement to increased ratings for bilateral upper and lower extremity tremors and bradykinesia and entitlement to TDIU prior to April 19, 2011 are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

1. The Veteran's claim for entitlement to an increased rating for PTSD arose from a September 2009 claim, and in a September 2012 rating decision an increased rating of 100 percent was granted effective April 19, 2011.

2. The overall level of symptomatology supporting the September 2012 grant of a 100 percent rating was first factually ascertainable in May 2007, as confirmed by a May 2007 VA psychiatrist's statement, and thus entitlement to an increased rating of 100 percent arose in May 2007, more than one year prior to receipt of the Veteran's claim for an increased rating for PTSD.

3. The Veteran's original claim for entitlement to service connection for chronic fatigue syndrome, cervical spine DDD, loss of balance, and loss of sense of smell arose from a November 2008 claim for service connection for Parkinson Disease, more than one year after his separation from service, and in a May 2013 rating decision service connection for all four disabilities was granted effective April 19, 2011, with the effective dates the cervical spine DDD and loss of balance subsequently revised to June 9, 2010 and February 4, 2010, respectively. 

4. Prior to the November 2008 claim, there were no pending requests for service connection for chronic fatigue syndrome that remained unadjudicated; the medical evidence of record shows that chronic fatigue syndrome associated with Parkinson Disease was diagnosed in a May 2011 VA examination, and thus entitlement to service connection arose in May 2011.

5. Prior to the November 2008 claim, there were no pending requests for service connection for cervical spine DDD that remained unadjudicated; the medical evidence of record shows that cervical spine DDD was suspected on June 9, 2010, as confirmed by a VA treatment record, and thus entitlement to service connection arose on that date.

6. Prior to the November 2008 claim, there were no pending requests for service connection for loss of balance that remained unadjudicated; the medical evidence of shows that balance difficulties associated with Parkinson Disease first manifested on February 4, 2010, as noted in a VA examination report, and thus entitlement to service connection arose on that date.

7. Prior to the November 2008 claim, there were no pending requests for service connection for loss of smell that remained unadjudicated; the medical evidence of record shows that a complete loss of sense of smell associated with Parkinson Disease was diagnosed in a April 15, 2013 VA examination, and thus entitlement to service connection arose on that date.


CONCLUSIONS OF LAW

1. The criteria for an effective date of September 16, 2009, but no earlier, for the award of an increased rating of 100 percent for PTSD have been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400 (2015).

2. The criteria for an effective date prior to April 19, 2011 for the award of service connection for chronic fatigue syndrome have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400 (2015).

3. The criteria for an effective date prior to June 9, 2010 for the award of service connection for cervical spine DDD have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400 (2015).

4. The criteria for an effective date prior to February 4, 2010 for the award of service connection for loss of balance have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400 (2015).

5. The criteria for an effective date prior to April 19, 2011 for the award of service connection for the loss of sense of smell have not been met. 38 U.S.C.A. §§ 5107, 5110 (West 2014); 38 C.F.R. §§ 3.114, 3.155, 3.156, 3.400 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions with respect to the Veteran's claims. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

A. Duty to Notify

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim, the evidence VA will obtain on the Veteran's behalf, and the evidence the Veteran is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: (1) veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). The notice must be provided to the Veteran prior to the initial adjudication of his claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

In this case, the appeal arises from the Veteran's disagreement with the initial effective date following the grants of an increased rating for PTSD and service connection for chronic fatigue syndrome, cervical spine DDD, loss of balance and the loss of sense of smell. Once a claim is substantiated additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required.

B. Duty to Assist

The duty to assist includes assisting the claimant in the procurement of relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). The RO associated the Veteran's service and VA treatment records with the claims file. All identified or submitted private treatment records have been associated with the claims file. 

The Board notes that the Veteran has been in receipt of Social Security Administration (SSA) disability benefits. However, a January 2006 VA treatment record specifically noted that these benefits were awarded based on a left shoulder injury. Therefore, as the SSA records concern an injury that is not service-connected or on appeal, the Board finds that the records are not relevant to the adjudication of the current claims. Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). No other relevant records have been identified and are outstanding. As such, the Board finds VA has satisfied its duty to assist with the procurement of relevant records. 

The duty to assist also includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim, as defined by law. See 38 C.F.R. § 3.159(c)(4). In this case, however, a medical opinion or examination is not necessary to determine whether the Veteran is entitled to an earlier effective date for the awards of an increased rating and service connection, and therefore VA had no duty to obtain one. Since VA has obtained all relevant identified records and the duty to obtain and opinion or examination did not arise, its duty to assist in this case is satisfied.

II. Earlier Effective Date

Generally, the effective date for an award of service connection is the day following separation from active service or the date entitlement arose, if the claim is received within one year after separation from service. Otherwise, the effective date is the later of the date of receipt of claim or the date of entitlement to service connection arose. 38 U.S.C.A. § 5110; 38 C.F.R. § 3.400(b)(2).

Concerning awards of an increased rating, the effective date of an award shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor. For an increased rating claim, the effective date shall be the later of either the date of receipt of claim or the date entitlement arose. 38 C.F.R. § 3.400(o). An effective date for a claim for increase may also be granted prior to the date of claim if it is factually ascertainable that an increase in disability had occurred within one year from the date of claim. 38 C.F.R. §§ 3.400(o)(1), (2). As with any claim, when there is an approximate balance of positive and negative evidence regarding any matter material to the claim, the claimant shall be given the benefit of the doubt. 38 U.S.C.A. § 5107 (West 2014).

A claim is defined as a formal or informal communication in writing requesting a determination of entitlement, or evidencing a belief in entitlement, to a benefit. 38 C.F.R. § 3.1(p). An informal claim is any communication or action indicating an intent to apply for one or more benefits. 38 C.F.R. § 3.155(a). VA must look to all communications from a claimant that may be interpreted as applications or claims-formal and informal-for benefits and is required to identify and act on informal claims for benefits. Servello v. Derwinski, 3 Vet. App. 196, 198 (1992).

When determining the date of claim for the purposes of assigning an effective date, the finality of any prior decisions must be evaluated. To this end, new and material evidence received prior to the expiration of the period for appealing a prior decision will be considered as having been filed in connection with the claim which was pending at the beginning of that appellate period. 38 C.F.R. § 3.156(b). When evidence is submitted during the appellate period following a decision, VA must assess whether that evidence constitutes new and material evidence relating to the old claim. Bond v. Shinseki, 659 F.3d 1362, 1367-68 (Fed. Cir. 2011).

If the evidence is determined to be new and material and was submitted prior to the expiration of the appellate period, a decision does not become final, and any "subsequent decision based on such evidence relate[s] back to the original claim." Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Young v. Shinseki, 22 Vet. App. 461, 466 (2009); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). In short, new and material evidence submitted within the appellate period of a prior disallowance prevents that decision from becoming final, and therefore the date of claim for earlier effective date purposes will be the date of the older, previously disallowed claim. Bond, 659 F.3d at 1367-68; 38 C.F.R. §§ 3.156(b), 3.400.

In this case, the Veteran has appealed from the effective dates assigned for the grant of an increased rating of 100 percent for PTSD and the grants of service connection for chronic fatigue syndrome, cervical spine DDD, balance problems, and the loss of the sense of smell. The Board will address each claim in turn, applying the legal framework outlined above.

A. PTSD

The Veteran contends he is entitled to an earlier effective date for the award of a 100 percent rating for his PTSD, effective April 19, 2011. Specifically, the Veteran contends that an effective date of September 16, 2009 is warranted as that was the date of the Veteran's claim for an increased rating.

As noted above, the effective date for the grant of an increased rating is, as a general matter, the later of either the date of receipt of claim or the date entitlement to the increased rating arose. 38 C.F.R. § 3.400(o). Thus, as an initial matter the Board must determine the proper date of the Veteran's claim for an increased rating for PTSD. The Veteran filed a claim for an increased rating in excess of 50 percent for his PTSD on September 16, 2009. This claim was denied by the RO in a February 2011 rating decision, which also denied entitlement to TDIU. In response to this decision, the Veteran filed a notice of disagreement on April 2011, but specifically noted that he was only disagreeing with the denial of entitlement to TDIU. There is absolutely no mention of the denial of an increased rating for PTSD, or discussion of his PTSD symptomatology. As the Veteran did not express disagreement with the February 2011 decision on PTSD in the April 2011 statement he submitted, it does not constitute a notice of disagreement as to that issue. 38 C.F.R. § 20.302.

In April 2011 correspondence, the RO acknowledged the Veteran's notice of disagreement with respect to the denial of TDIU. They further indicated that, as the Veteran's TDIU claim was based at least in part on his service-connected PTSD, that they were also accepting his notice of disagreement with the denial of TDIU as a new claim for an increased rating in excess of 50 percent for PTSD. This claim for an increase was subsequently granted in a September 2012 rating decision, and a rating of 100 percent was effective April 19, 2011, which was the date of the notice of disagreement to the denial of TDIU and the inferred claim for an increased rating for PTSD. 38 C.F.R. § 3.400(o)(2).

However, upon examination of the record the Board finds that the February 2011 denial of an increased rating in excess of 50 percent never became final as new and material evidence was associated with the claims file within the appellate period. 38 C.F.R. §§ 3.156(b), 20.302. Specifically, the June 2011 VA examination report, which served as the basis for the grant of a 100 percent rating, was associated with the claims file within the one year period following the February 2011 denial. 38 C.F.R. § 20.302. The report is new as it was not considered in the February 2011 denial, and is material as the report reflected a clear worsening of the Veteran's PTSD and thus goes to a previously unestablished element. 38 C.F.R. § 3.156(a). Therefore, the Board finds that the June 2011 examination report is new and material evidence as to the denied issue of an increased rating for PTSD. Id. 

Although the report was obtained by VA in conjunction with what was at the time viewed as a new claim for an increased rating for PTSD, that fact is irrelevant based on the wording of the regulation and controlling case law. All that is required is that new and material evidence be submitted within the one year period, regardless of which party obtains or submits the information. 38 C.F.R. § 3.156(b). As the June 2011 examination report is new and material evidence and was submitted within the one year appellate period following the February 2011 denial, VA must consider it as having been submitted in conjunction with the previously denied claim. 38 C.F.R. § 3.156(b) (stating that "new and material evidence received prior to the expiration of the appeal period will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period" (emphasis added)). 

For these reasons, the Board finds that the February 2011 denial of the Veteran's September 2009 increased rating claim did not become final, and therefore the appropriate date of claim in this case is September 16, 2009. Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2011); see also Young v. Shinseki, 22 Vet. App. 461, 466 (2009); Muehl v. West, 13 Vet. App. 159, 161-62 (1999). Prior to September 16, 2009, there were no outstanding unadjudicated claims for an increased rating.

Having determined that the date of claim is September 16, 2009, the Board must now determine when entitlement to an increased rating of 100 percent for PTSD arose. 38 C.F.R. § 3.400(o). The term "date entitlement arose" is not defined in the current statute or regulation. See id. However, case law has interpreted the phrase as the date when the claimant met the requirements for the benefits sought. This is determined on a "facts found" basis. See 38 U.S.C.A. § 5110 (a); see also McGrath v. Gober, 14 Vet. App. 28, 35 (2000). Here, the Veteran is requesting an earlier effective date for the award of a 100 percent rating. Thus, the date entitlement arose will be the date on which the Veteran's PTSD symptomatology either met or approximated the level of severity contemplated by a 100 percent rating.

PTSD is rated using the General Rating Formula for Mental Disorders (General Formula). 38 C.F.R. § 4.130. Under the General Formula, a 100 percent rating is assigned for total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance or minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives and own occupation or name. Id.

In evaluating symptomatology, the "such symptoms as" language means "for example," and does not represent an exhaustive list of symptoms that must be found before granting the rating of that category. Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002). The list of examples provides guidance as to the severity of symptoms contemplated for each rating. Id. However, this fact does not make the provided list of symptoms irrelevant. See Vasquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed. Cir. 2013). The Veteran must still demonstrate either the particular symptoms associated with the rating sought, or other symptoms of similar severity, frequency, and duration. Id. at 117.

The RO assigned the 100 percent rating based on the symptomatology and Global Assessment of Functioning (GAF) score recorded in a June 2011 VA examination report, as well as the following specifically enumerated symptoms, in pertinent part: intermittent inability to perform activities of daily living, near continuous depression, suicidal ideation, unprovoked irritability with periods of violence, difficulty establishing and maintaining relationships, disturbances of motivation and mood, forgetting to complete tasks, anxiety sleep impairment, mild memory loss and suspiciousness, resulting in occupational and social impairment which resulted in deficiencies in most areas. The GAF score was noted to be 40, which is representative of major impairment in several areas, such as work, family relations, judgment, thinking or mood (e.g. depressed man avoids friends, neglects family and is unable to work).

In reviewing the medical records associated with the claims file prior to the award of the 100 percent rating, which span the period from May 2000 to present, it would appear that the Veteran's symptoms have been consistent throughout his treatment for PTSD. VA treatment records from May 2000 to July 2008 consistently reflect GAF scores ranging between 40 and 50, which indicate significant impairment in overall functioning. Further, throughout the period from May 2000 to present treatment records consistently reflect continuous depression and anxiety which interferes with the ability to function, unprovoked irritability with periods of violence, sleep impairment, memory loss, distant relationships with family and friends, and an inability to form close relationships. While the Veteran worked during a portion of the period on appeal, it is clear from the evidence of record that the Veteran was self-employed at least partially due to his symptoms.

In addition to these treatment records, a May 2007 VA psychiatrist provided a letter assessing the Veteran's overall symptomatology. In that letter the psychiatrist indicated the Veteran was experiencing worsening symptoms, which included suicidal ideation, recurrent depression, poor concentration and sleep impairment. These were noted to result in significant occupational difficulties, as well as increased difficulty with few friends and family he has relationships with at the time. Overall the examiner indicated that the Veteran exhibited marked occupational and social impairment, and assigned a GAF score of 40.

The Board notes that the symptoms as listed in the September 2012 rating decision do not necessarily support an award of 100 percent PTSD, particularly as the RO indicated that the Veteran's overall occupational and social impairment resulting from these symptoms was only commensurate with a 70 percent rating. 38 C.F.R. § 4.130. However, there is also a distinct logical discrepancy in denying entitlement to an earlier effective date in this case when, overall, the Veteran's symptoms were essentially the same both before and after the award of the 100 percent rating. In essence, there is no clear moment following the submission of the Veteran's September 2009 claim, based on the evidence of record, at which there was a distinct worsening of the Veteran's overall symptomatology. In particular, the symptoms enumerated in the June 2011 VA examination and the September 2012 rating decision are extremely similar to the symptoms reported in the May 2007 VA psychiatrist's letter, in addition to being reflected consistently in the Veteran's treatment records. 

In light of these facts, the Board finds that the Veteran's current level of symptomatology manifested was first factually ascertainable as of the May 2007 VA psychiatrist's letter. The Board notes that an effective date for an increased rating can be assigned up to one year prior to the date of claim, if, within that one year, it is factually ascertainable that an increase in disability had occurred. 38 C.F.R. § 3.400(o)(2). Applying this rule to the current case, the Veteran could be assigned an effective date as early as September 9, 2008 (one year prior to the date of claim), or any time thereafter, if it is factually ascertainable based on the evidence of record that during that period there was a worsening of his disability.

However, in reviewing the medical evidence of record from the period between September 2008 and September 2009, there is no evidence suggesting symptomatology of a severity contemplated by a 100 percent rating. A March 2009 treatment record notes that the Veteran endorsed an okay mood, with occasional anxiety and irritability resulting in a fight with his son. Suicidal ideation and nightmares were denied, and the Veteran reported an improving relationship with his wife and that he was still working as a contractor. Some subtle memory problems were noted to be present, but no other symptoms were noted and the physician described the Veteran as stable.

In May 2009 the Veteran underwent neuropsychiatric testing. At that time the Veteran described his mood as pretty good and denied any history of homicidal ideation, although some suicidal thoughts were endorsed. Affect, speech, thought process, and orientation were noted to be normal. Depression and anxiety testing results reflected mild levels of depression and anxiety, as well as some memory issues. The Veteran was noted to be well-dressed and groomed, with no indication of an inability to tend to the activities of daily living. The Veteran's test results were noted to generally be strong, with the few noted cognitive deficiencies attributed to his Parkinson Disease.

A June 2009 VA treatment record noted an okay mood with a history of suicidal ideation, although none was present at the time. Anxiety was noted to be present as well as irritability, although the latter was noted to be improving. The physician found grooming, speech, affect, thought process, thought content, judgment and cognition to all be normal. Based on the reported symptoms, the physician assigned a GAF score of 62, reflecting some mild symptoms or some difficulty in social or occupational functioning. No other treatment records addressing the Veteran's PTSD from the period between September 2008 and September 2009 are of record.

Overall, the Veteran's symptoms during this period were described as mild by both the May 2009 neuropsychiatric examiner and the June 2009 VA psychiatrist, and two of the records noted some improvement in symptomatology. The noted symptoms of mild anxiety and depression, irritability, passive suicidal ideation and some mild memory impairment do not rise to the level of severity contemplated by a 100 percent rating, nor are any other symptoms of comparable severity noted during this period. Mauerhan, 16 Vet. App. at 442; Vasquez-Claudio, 713 F.3d at 116-17. While irritability, one incident of a violent outburst and passive suicidal ideation were noted, there is no evidence that these symptoms were so severe that the Veteran posed a continuing threat to either himself or others. Additionally, the Veteran's memory impairment was noted to be mild, and there is no evidence that he was forgetting core information such as his own name. Based on this evidence, the Board finds that it is not factually ascertainable that an increased rating of 100 percent was warranted within the one year prior to the Veteran's September 9, 2009 claim. 38 C.F.R. § 3.400(o)(2). 

As such, the Board finds that entitlement to a rating of 100 percent for PTSD arose on May 17, 2007. As the date of the Veteran's claim, September 16, 2009, is later in time than the date entitlement to a 100 percent rating for PTSD arose, the Board finds that an earlier effective date of September 16, 2009, the date of the Veteran's claim, is warranted. 38 C.F.R. §§ 3.102, 3.400(o).

B. Chronic Fatigue Syndrome

The Veteran contends he is entitled to an effective date prior to April 19, 2011 for the grant of service connection for chronic fatigue syndrome, associated with Parkinson Disease. Specifically, the Veteran contends that the date of his claim for chronic fatigue syndrome should be November 9, 2008, the date on which he submitted a generalized claim for service connection for Parkinson Disease. 

Service connection for the Veteran's upper and lower extremities was granted based on the November 2008 claim in November 2010, by analogy to Diagnostic Code 8004 covering Parkinson Disease (paralysis agitans). The Veteran first asserted that he experiences fatigue as a result of his Parkinson Disease in an April 2011 notice of disagreement, which the RO initially accepted as a claim for service connection for fatigue as due to Parkinson Disease. However, in the November 2013 statement of the case the RO subsequently determined that as the Veteran's claim for his Parkinson Disease symptoms (specifically the ratings assigned for the bilateral upper and lower extremities) was still on appeal, and the fatigue was claimed as associated with or due to Parkinson Disease, the November 2008 claim should be treated as a claim for fatigue associated with Parkinson Disease.

In analyzing the record, and in the interest of viewing the evidence in a light most favorable to the Veteran, the Board agrees that the appropriate date for the Veteran's claim of fatigue associated with Parkinson Disease is November 9, 2008, the date of his original generic claim for service connection for Parkinson Disease. The November 2008 claim was still on appeal as of the April 2011 statement, and it can be reasonably determined that the claim for Parkinson Disease encompasses all associated symptoms or disabilities claimed as being associated.

No prior unadjudicated claims were outstanding at that time. As the date of claim is approximately 39 years after his separation from service, the date of his separation from service cannot be used. 38 C.F.R. § 3.400(b)(2). Therefore, the appropriate effective date is either the date of the receipt of the claim or the date that entitlement to service connection arose, whichever is later in time. 38 C.F.R. § 3.400(b)(2).

Having determined the appropriate date of claim, the Board must now determine when entitlement to service connection for chronic fatigue syndrome arose. See 38 U.S.C.A. § 5110 (a); see also McGrath, 14 Vet. App. at 35. The Veteran was diagnosed with chronic fatigue syndrome during a June 2011 VA examination, at which time the examiner also opined that the chronic fatigue syndrome was a result of his Parkinson Disease.

The June 2011 VA examiner further indicated that the Veteran was diagnosed with chronic fatigue syndrome 10 years ago, which would be approximately 2001. However, this statement appears to be a recitation of the Veteran's subjective history of the claimed disability, and not the examiner's own findings based on the record. Mere repetition of the allegations in a medical record does not transform them into competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). As such, the mere notation in the examination report that the Veteran' was diagnosed 10 years prior is not competent medical evidence that he was in fact diagnosed 10 years prior. Id.

Further, upon review of the treatment records associated with the claims file, there is no evidence of a diagnosis of chronic fatigue syndrome prior to June 2011. The first notation of fatigue associated with Parkinson Disease occurs in a May 2011 VA treatment record, which reflects the presence of both tremors and fatigue. Prior to that date, there is no evidence of any prior diagnosis of chronic fatigue syndrome or another fatigue disorder, or any opinions linking fatigue to Parkinson Disease. While there are some complaints of fatigue, these complaints are related to sleep apnea and PTSD, and not linked to Parkinson Disease.

The Veteran has asserted that he has had chronic fatigue syndrome since the onset of his PTSD and that his chronic fatigue syndrome is related to his PTSD. While the Veteran is competent to testify as to the presence of fatigue, as it is lay observable, he is not competent to either diagnose himself with chronic fatigue syndrome or to relate any fatigue disability specifically to his Parkinson Disease, as to do so requires medical expertise. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). 

The Veteran did not allege that he had fatigue associated with Parkinson Disease until April 2011, and failed to endorse it as a symptom during his February 2010 VA Parkinson Disease examination, despite detailing several other symptoms, including neurologic deficits and difficulty with balance. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). VA treatment records detailing treatment for Parkinson Disease beginning in October 2008 are also silent for complaints of associated fatigue until the April 2011 statement. As it is reasonable to think that, in light of his treatment for and complaints of symptoms associated with his Parkinson Disease, the Veteran would have complained of fatigue if it had been present prior to April 2011, the Board finds that lack of complaints of fatigue associated with Parkinson Disease prior to April 2011 weigh heavily against the Veteran's statements. Maxson v. West, 12 Vet. App. 453, 459 (1999), aff'd sub nom. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000).

As such, based on the evidence of record the Board finds that the date on which entitlement to service connection for chronic fatigue syndrome arose was June 22, 2011, the date of the first competent and credible diagnosis of chronic fatigue syndrome associated with Parkinson Disease. 38 U.S.C.A. § 5110 (a); see also McGrath, 14 Vet. App. at 35. As the date entitlement arose is later in time than the date of the Veteran's claim, June 22, 2011 is the appropriate effective date. 38 C.F.R. § 3.400(b). As such, entitlement to an effective date earlier than April 19, 2011 for service connection for chronic fatigue syndrome is not warranted.

The Board is without authority to grant equitable relief. Rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 390, 425 (1994). 

C. Cervical Spine DDD

The Veteran contends he is entitled to an effective date prior to June 9, 2010 for the grant of service connection for cervical spine degenerative disc disease (DDD), associated with Parkinson Disease. Specifically, as above the Veteran has indicated that the date of his claim should be November 9, 2008, the date of his general claim for Parkinson Disease. Again, as explained in detail above, the Board finds that, in the interest of reading the evidence in a light most favorable to the Veteran, a date of claim of November 9, 2008 is appropriate in this case. As this date is approximately 39 years after his separation from service, the date of his separation from service cannot be used. 38 C.F.R. § 3.400(b)(2). Therefore, the appropriate effective date is either the date of the receipt of the claim or the date that entitlement to service connection arose, whichever is later in time. 38 C.F.R. § 3.400(b)(2).

With the date of claim determined, the Board must now determine the date entitlement arose. 38 U.S.C.A. § 5110 (a); see also McGrath, 14 Vet. App. at 35. The Veteran first asserted that his neck pain was related to his Parkinson Disease in April 2011. While the Veteran is competent to report the onset of lay observable symptomatology such as pain, the Veteran is not competent to either diagnose himself with cervical DDD or opine as to the presence of a relationship between his cervical DDD and his Parkinson Disease, as to do either requires specialized medical testing and expertise in the field of orthopedic medicine. Jandreau, 492 F.3d 1372.

Turning to the medical evidence, a June 2010 VA treatment record noted that cervical spine DDD was suspected, and a subsequent July 2010 VA treatment record noted a reported two year history of neck pain. A June 2011 VA examination confirmed the June 2010 diagnosis of cervical DDD, indicating that as the date the disability had its onset, and noted a reported one year history of neck pain. The June 2011 examiner further indicated that the cervical spine DDD may be related to the Parkinson Disease, an opinion that was eventually confirmed by a March 2013 VA examiner. 

Prior to the June 2010 notation of suspected cervical spine DDD, there is no evidence, radiological or otherwise, of a diagnosis of a cervical spine disability or an opinion linking a disability to Parkinson Disease. While the Board notes a history of complaints of neck pain and the Veteran and his attorney have argued that neck pain was present prior to the diagnosis, there was not a suspected or firm diagnosis of a neck disability until June 6, 2010. Pain alone, without any functional impairment or underlying diagnosis, is not a service connectable disability. Sanchez-Benitez v. West, 13 Vet.App. 282, 285 (1999), vacated in part, dismissed in part by Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001). Instead, a current diagnosis of a disability must underlie the complaints of pain in order for entitlement to service connection to arise. 38 C.F.R. § 3.303; see Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).

As there was no evidence of a cervical spine disability until June 6, 2010, a fact confirmed by the June 2011 VA examiner, the Board finds that the date entitlement to service connection for cervical DDD as associated with Parkinson Disease arose is June 6, 2010, the date of the suspected diagnosis.

As the date entitlement arose is later in time than the date of the Veteran's claim, the Board finds that the proper effective date for the award of service connection for cervical spine DDD associated with Parkinson Disease is June 6, 2010. 38 U.S.C.A. § 5110 (a); see also McGrath, 14 Vet. App. at 35. The Board is without authority to grant equitable relief. Rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor, 11 Vet. App. at 440-41; Harvey, 6 Vet. App. at 425. As the date entitlement to service connection arose is later in time than the date of claim, an effective date earlier than June 6, 2010, is not warranted in this case.

D. Loss of Balance

The Veteran argues he is entitled to an effective date prior to February 4, 2010 for the grant of service connection for loss of balance associated with Parkinson Disease, specifically arguing that the date of claim for loss of balance should be November 9, 2008, the date of his general claim for service connection for Parkinson Disease.

As noted in the prior sections, the Board finds that, in reading the evidence in a light most favorable to the Veteran, the date of claim for service connection for loss of balance should be November 9, 2008. As the date of claim is 39 years after the Veteran's separation from service, the appropriate effective date is either the date of the receipt of the claim or the date that entitlement to service connection arose, whichever is later in time. 38 C.F.R. § 3.400(b)(2).

Turning to the issue of date of entitlement arose, the Veteran has indicated that his loss of balance had its onset at the same time as his other Parkinson Disease symptoms, and thus dates roughly to October 2008. The Veteran is competent to report the onset of lay observable symptoms, such as the loss of balance. Jandreau v. Nicholson, 492 F.3d 1372. 

However, to the extent the Veteran has indicated that his loss of balance has been persistent since his diagnosis of Parkinson Disease, his statements are inconsistent with prior statements of record. Specifically, in an October 2009 treatment record the Veteran specifically denied any difficulties walking, despite endorsing other muscular and neurologic issues associated with his Parkinson Disease. Horn v. Shinseki, 25 Vet. App. 231, 239 (2012); Buczynski v. Shinseki, 24 Vet. App. 221, 224 (2011). Such inconsistencies concerning the duration of his loss of balance render the Veteran's statements concerning persistent problems since November 2008 not credible, and therefore of no probative value.

Concerning the medical evidence, the Veteran was provided with an ear, nose and throat examination in June 2011. The examiner indicated that the Veteran's complained-of balance difficulties were likely related to his Parkinson Disease based on the presence of bilateral lower extremity symptoms. The examiner noted a subjective history of balance problems for two years and a fall resulting in a broken finger that were also indicative of on-going balance issues attributable to Parkinson's. The Veteran also complained of balance problems during his February 2010 Parkinson Disease examination, and the examiner at that time noted objective evidence of impaired coordination, although the Veteran was able to heel and toe walk without difficulty. 

A June 2010 VA treatment record reflects complaints of difficulty with balancing, but no falls were reported. An April 2008 VA treatment record reflects a fall in which the Veteran fractured his finger, specifically stating that he fell on some plywood. There is no indication whether this fall was due to loss of balance attributable to Parkinson Disease or due to some other cause. Treatment records associated with the claims file are otherwise silent concerning issues with balance or coordination, with October 2008, February 2009 and October 2009 VA treatment records all noting that the Veteran's gait was normal, with no evidence of dragging feet or other issues, and contained no subjective complaints of difficulty walking.

Based on the competent and credible lay and medical evidence of record, the Board finds that the appropriate date of entitlement is February 4, 2010, which is the earliest date on which the Veteran complained of loss of balance. The Board notes that the June 2011 VA examiner noted a history of a fall causing a fractured finger, but there is no evidence that this fall was the result of or indicative of, loss of balance due to Parkinson Disease. Further, gait testing between the 2008 fall and the February 2010 complaint reflected no issues with walking. 

Finally, the Veteran himself in the June 2010 VA treatment record specifically stated that he had no history of falls attributable to the claimed loss of balance, effectively negating any indication that the February 2008 fall was attributable to loss of balance associated with Parkinson Disease. In short, the first competent and credible statements concerning loss of balance occurred on February 4, 2010, and have continued since. As such, the Board finds that February 4, 2010 is the appropriate date of entitlement for service connection for loss of balance. 38 U.S.C.A. § 5110 (a); see also McGrath, 14 Vet. App. at 35.

As the date entitlement to service connection for loss of balance associated with Parkinson Disease is later in time than the November 9, 2008 claim, the Board finds that an effective date earlier than February 4, 2010, is not warranted in this case. The Board is without authority to grant equitable relief. Rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. 38 U.S.C.A. § 7104; Taylor, 11 Vet. App. at 440-41; Harvey, 6 Vet. App. at 425. 


E. Loss of Sense of Smell

The Veteran argues he is entitled to an effective date prior to April 19, 2011 for the grant of service connection for the complete loss of smell, associated with Parkinson Disease, specifically arguing that the date of claim should be November 9, 2008, the date of his general claim for service connection for Parkinson Disease.

As noted in the prior sections, the Board finds that, when reading the evidence in a light most favorable to the Veteran, the date of claim for service connection for loss of sense of smell should be November 9, 2008. As the date of claim is 39 years after the Veteran's separation from service, the appropriate effective date is either the date of the receipt of the claim or the date that entitlement to service connection arose, whichever is later in time. 38 C.F.R. § 3.400(b)(2).

Turning to the date entitlement arose, the Veteran indicated that his Parkinson Disease is manifested by a complete loss of the sense of smell in an April 2011 statement, which he is competent to report. Jandreau, 492 F.3d 1372. The Veteran was provided with VA Parkinson Disease examinations in February 2010, September 2011 and April 2013, as well as an ear nose and throat examination in June 2011. In February 2010 and June 2011, the examiner noted no complaints of a complete loss of smell, or even partial loss. No objective evidence of the loss of the sense of smell was noted to be present. In September 2011 the VA examiner specifically indicated that there was no evidence of either a complete or partial loss of the sense of smell. It was not until the April 2013 examination that a VA examiner indicated that the Veteran had a total loss of sense of smell attributable to Parkinson Disease. 

VA treatment records are almost entirely silent for complaints of a partial or total loss of the sense of smell. One February 2009 treatment record does reflect a complaint of a decreased sense of smell, but the complaint was made in the context of treatment for sinusitis and rhinitis, and no mention of Parkinson Disease was made. No further complaints or objective signs of a partial or complete loss of the sense of smell were noted until the April 2013 VA examination, despite frequent treatment for other symptoms associated with Parkinson Disease. Horn, 25 Vet. App. at 239; Buczynski, 24 Vet. App. at 224. 

While not dispositive, in light of the Veteran's frequent treatment for other Parkinson Disease symptoms, it is reasonable to determine the Veteran would have sought treatment for or complained of a partial or total loss of the sense of smell, the Board finds that the lack of treatment for or complaint of such loss weighs heavily against the Veteran's statements, to the extent they suggest the loss of smell has been continuous since the 2008 diagnosis of Parkinson Disease. Maxson, 230 F.3d at 1333.

In short, the first competent and credible evidence reflecting a complete or partial loss of smell associated with Parkinson Disease is from the April 2013 VA examination. As such, April 15, 2013 is the date entitlement arose for service connection for the loss of smell. 38 U.S.C.A. § 5110 (a); see also McGrath, 14 Vet. App. at 35. 

As the date of entitlement is later in time than the date of the Veteran's claim, April 15, 2013 would be the proper effective date. As such, the Board finds that an effective date prior to April 19, 2011 for the loss of the sense of smell is not warranted in this case. The Board is without authority to grant equitable relief. Rather, the Board is constrained to follow the specific provisions of law that govern the circumstances of this case and that are within the jurisdiction and authority of the Board to review. See 38 U.S.C.A. § 7104; Taylor, 11 Vet. App. at 440-41; Harvey, 6 Vet. App. at 425.


ORDER

Entitlement to an effective date of September 16, 2009, but no earlier, for the award of a 100 percent rating for PTSD is granted, subject to the laws and regulations governing the award of monetary benefits.

Entitlement to an effective date prior to April 19, 2011 for the grant of service connection for chronic fatigue syndrome, associated with Parkinson Disease, is denied.

Entitlement to an effective date prior to June 9, 2010 for the grant of service connection for cervical spine DDD, associated with Parkinson Disease, is denied.

Entitlement to an effective date prior to February 4, 2010 for the grant of service connection for loss of balance, associated with Parkinson Disease, is denied.

Entitlement to an effective date prior to April 19, 2011 for the grant of service connection for loss of the sense of smell, associated with Parkinson Disease, is denied.


REMAND

When a notice of disagreement (NOD) has been filed with regard to an issue, and a statement of the case (SOC) has not been issued, the appropriate Board action is to remand the issue to the agency of original jurisdiction for issuance of an SOC. Manlincon v. West, 12 Vet. App. 238 (1999). An NOD is timely when it is filed within one year of the adverse decision. 38 C.F.R. § 20.302. Upon receipt of a timely NOD, an SOC is to be issued to the appellant at the latest address of record and a separate copy is to be provided to the representative. 38 C.F.R. § 19.30.

In this case, the RO denied for bilateral upper and lower extremity tremors and bradykinesia and entitlement to TDIU in a May 2013 SOC which was addressed to the Veteran. However, the letter accompanying the SOC indicated that no representative was provided with a copy, and the SOC itself reflects that no POA was of record. However, the Veteran had a private attorney of record at the time of the issuance of the SOC. Further, the attorney had indicated that only he, and not the Veteran, was to be contacted concerning the Veteran's outstanding claims. See May 2013 Correspondence. 

In statements and argument since the May 2013 SOC, the Veteran's attorney has repeatedly indicated that he has not received a copy of the SOC, and that the Veteran still considers those issues to be on appeal. As the Veteran's attorney was never provided with a SOC concerning these three issues, as required by the regulation, the Board finds that it must remand these issues so that a SOC can be properly issued to the Veteran's representative of record. 

Accordingly, the case is REMANDED for the following action:

Re-issue the May 2013 statement of the case regarding the issues of entitlement to increased ratings for left and right upper extremity tremors and left and right lower extremity bradykinesia and entitlement to TDIU prior to September 16, 2009 to the Veteran and his appointed representative.

Advise the Veteran and his representative of the procedural requirements to continue an appeal of these issues. If, and only if, the Veteran and/or his representative file a timely substantive appeal, the issues should be certified to the Board.

The Veteran 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 2014).



______________________________________________
BETHANY L. BUCK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs