Citation Nr: 1600043 Decision Date: 01/04/16 Archive Date: 01/12/16 DOCKET NO. 12-16 588A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 30 percent for Parkinson's disease for the period prior to January 4, 2011. 2. Entitlement to a total disability rating based on individual unemployability prior to January 4, 2011. REPRESENTATION Appellant represented by: Lewis C. Fichera, Attorney at Law ATTORNEY FOR THE BOARD J. Reddington INTRODUCTION The Veteran served on active duty from March 1966 to March 1969. These matters are before the Board of Veterans' Appeals (Board) on appeal from November 2010 (granted service connection for Parkinson's disease and assigned a 30 percent evaluation, effective October 4, 2004) and February 2011 (granted entitlement to a TDIU rating, effective January 4, 2011) rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The appeal is being REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the appellant if further action on his part is required. REMAND Ratings for Parkinson 's disease, known in VA regulations as "paralysis agitans," are assigned pursuant to 38 C.F.R. § 4.124a, DC 8004 (2014). Under this DC, a minimum 30 percent rating is for application when there are "ascertainable residuals" of the disability. However, VA is required to also consider whether any of these residuals may be otherwise rated under a separate DC. Potential residuals include, but are not limited to, loss of smell or taste (38 C.F.R. § 4.87a , DCs 6275, 6276 (2014)), bladder or bowel dysfunction (38 C.F.R. §§ 4.114 , DC 7332 & 4.115 DC 7542 (2014)), disorders to the cranial nerves or nerves in the extremities (38 C.F.R. § 4.124a (2014)) or cognitive impairment (38 C.F.R. § 4.130 , DC 9326 (2014)). If there are identifiable residuals that can be rated under a separate DC, and the combined disability rating resulting from these residuals exceeds 30 percent, then these separate ratings will be assigned in place of the minimum rating assigned under DC 8004. See also VA Adjudication Procedures Manual M21-1MR, Part III.iv.4.G.25 (June 23, 2013). In a December 2013 statement, the Veteran indicated that he received treatment for his Parkinson's' disease every six months at the Philadelphia VAMC PADRECC for the period of 2004 to 2011. A review of the record reflects treatment records dated only from April 2007, which suggests there may be missing treatment records. As VA treatment records may be pertinent to the Veteran's claims, attempts to secure them must be made. Moreover, the Veteran has alleged that his Parkinson's disease prior to January 4, 2011 was more severe than is reflected by his 30 percent rating and that such disability (combined with his service-connected psychiatric disorder) caused him to be unemployable prior to January 4, 2011. In April 2014, the Director of Compensation Services (Director) submitted an opinion that the Veteran's disability was not severe enough to cause unemployability and that a TDIU rating on an extraschedular basis was not warranted. In this opinion, the Director notes a neurological report dated in September 2003 indicating that the Veteran was totally disabled from physical demands of the type of physical activity required by the National Guard, a Social Security Administration (SSA) disability determination indicating that the Veteran was granted disability benefits due to his Parkinson's disease from September 30, 2006, and a November 2009 VA examination report indicating that the Veteran's mental disorder interfered with his employment due to increased anxiety and depression caused by increased pressure in the job. However, a review of the record reflects additional information pertinent to the question of whether the Veteran's Parkinson's disease had increased in severity prior to January 4, 2011 and whether such disability caused the Veteran to be unable to secure or maintain substantially gainful employment prior to this date. In this regard, on November 2009 VA examination, the examiner indicates that the Veteran's psychiatric disorder interferes with employment functioning and that the Veteran retired in 2006 partly as a result of his worsening Parkinson's disease, but also as a result of his worry and depression. On January 2010 VA examination, the examiner noted that the Veteran's Parkinson's disease "has been getting steadily worse through the years and his prognosis is guarded for the future and no doubt his condition will worsen as it generally does." The examiner further noted that while the Veteran is able to walk, he falls readily and that he was forced into a premature retirement because of his general lack of mobility, falling, and inability to travel. This additional evidence suggests a severe disability picture prior to January 4, 2011 and potentially suggests that the Veteran was unable to be employable prior to this date, particularly as he has been found to have been "forced" to retire in 2006 due to his Parkinson's disease. In order to accurately determine the level of Parkinson's disability and the level of functional impairment caused by this disease prior to January 4, 2011, the Board finds that a retrospective medical opinion considering all of the evidence of record is warranted. Accordingly, the case is REMANDED for the following actions: 1. Secure for the record any updated or outstanding VA and/or private treatment records regarding the Veteran's Parkinson's disease, to specifically include treatment records from the VAMC Philadelphia PADRECC for the period prior to April 2007. 2. Thereafter, arrange for a medical opinion by an appropriate provider to review the record and to opine regarding the likely severity of the Veteran's Parkinson's disease prior to January 4, 2011. The opinion provider should specifically discuss whether the Parkinson's disease resulted in psychiatric manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, and visceral manifestations, and if so, when onset of such occurred. The opinion provider should also offer an opinion as to the functional impairment caused by the Veteran's Parkinson's disease prior to January 4, 2011, and should specifically discuss the impact the Veteran's service connected disabilities (Parkinson's disease and anxiety reaction with depressive features) prior to January 4, 2011 had on his ability to engage in substantially gainful employment, consistent with his education and training. Note - the Veteran is shown to have retired from his position as an auditor in 2006. A complete rationale for all opinions should be provided. The opinion provider should specifically discuss and address the following: (i) a September 2003 statement from a private neurologist indicating that the Veteran was totally disabled from physical demands of the type of physical activity required by the National Guard; (ii) a Social Security Administration (SSA) disability determination indicating that the Veteran was granted disability benefits due to his Parkinson's disease from September 30, 2006; (iii) a November 2009 VA examination report indicating that the Veteran's psychiatric disorder interferes with employment functioning and that the Veteran retired in 2006 partly as a result of his worsening Parkinson's disease, but also as a result of his worry and depression; (iv) a January 2010 VA examination report indicating that the Veteran's Parkinson's disease "has been getting steadily worse through the years and his prognosis is guarded for the future and no doubt his condition will worsen as it generally does" and that while the Veteran is able to walk, he falls readily and was forced into a premature retirement because of his general lack of mobility, falling, and inability to travel; and (v) an April 2014 opinion from the Director indicating that the Veteran's disability was not severe enough to cause unemployability prior to January 4, 2011 and that a TDIU rating on a extraschedular basis was not warranted. (3) Then review the record and readjudicate the claims on appeal. If either remains denied, issue an appropriate supplemental statement of the case and afford the Veteran and his attorney the opportunity to respond. The case should then be returned to the Board, if in order, for further appellate review. 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). These claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). _________________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), 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) (2015).