Citation Nr: 1725320	
Decision Date: 07/03/17    Archive Date: 07/18/17

DOCKET NO.  16-63 610	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to service connection for basal cell carcinoma, to include as due to exposure to herbicides.

2.  Entitlement to service connection for a back disorder.

3.  Entitlement to service connection for kidney disorder, to include as secondary to service-connected disability.

4.  Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides.

5.  Entitlement to service connection for hypertension, to include as due to exposure to herbicides.

6.  Entitlement to service connection for peripheral neuropathy of the left upper extremity, to include as due to exposure to herbicides.

7.  Entitlement to service connection for peripheral neuropathy of the right upper extremities, to include as due to exposure to herbicides.

8.  Entitlement to service connection for peripheral neuropathy of the left lower extremity, to include as due to exposure to herbicides.

9.  Entitlement to service connection for peripheral neuropathy of the right lower extremity, to include as due to exposure to herbicides.

10.  Entitlement to a rating in excess of 60 percent for coronary artery disease.

11.  Entitlement to an initial rating in excess of 50 percent for depression with cognitive impairment, prior to May 11, 2016.

12.  Entitlement to a rating in excess of 50 percent for posttraumatic stress disorder (PTSD) (previously evaluated as depression with cognitive impairment), from May 11, 2016 to September 12, 2016.

13.  Entitlement to a rating in excess of 70 percent for PTSD from September 13, 2016.

14.  Entitlement to an initial rating in excess of 30 percent for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the left upper extremity, residual of Parkinson's Disease.

15.  Entitlement to an initial rating in excess of 20 percent for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the right upper extremity, residual of Parkinson's Disease.

16.  Entitlement to a rating in excess of 20 percent for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the left lower extremity, residual of Parkinson's Disease.

17.  Entitlement to a rating in excess of 20 percent for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the right lower extremity, residual of Parkinson's Disease.

18.  Entitlement to an initial rating in excess of 30 percent for difficulty chewing, residual of Parkinson's Disease.

19.  Entitlement to an initial rating in excess of 20 percent for urinary problems, residual of Parkinson's Disease.

20.  Entitlement to an initial rating in excess of 10 percent for speech changes, residual of Parkinson's Disease.

21.  Entitlement to an initial rating in excess of 10 percent for constipation, residual of Parkinson's Disease.

22.  Entitlement to an initial rating in excess of 10 percent for loss of autonomic movements of the left side, residual of Parkinson's Disease.

23.  Entitlement to an initial rating in excess of 10 percent for loss of autonomic movements of the right side, residual of Parkinson's Disease.  

24.  Entitlement to an initial rating in excess of 10 percent for stooped posture left side, residual of Parkinson's Disease.

25.  Entitlement to an initial rating in excess of 10 percent for stooped posture right side, residual of Parkinson's Disease.

26.  Entitlement to an initial rating in excess of 10 percent for partial loss of smell, residual of Parkinson's Disease.

27.  Entitlement to an initial rating in excess of 30 percent for degenerative disc disease of the cervical spine with cervical spinal stenosis.

28.  Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance.

29.  Entitlement to an effective date earlier than May 11, 2016 for the award of service connection for degenerative disc disease, cervical spine with cervical spinal stenosis.  

30.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the right upper extremity, residual of Parkinson's Disease.

31.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the left upper extremity, residual of Parkinson's Disease.

32.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the right lower extremity, residual of Parkinson's Disease.

33.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the left lower extremity, residual of Parkinson's Disease.

34. Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for difficulty chewing, residual of Parkinson's Disease.

35.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for urinary problems, residual of Parkinson's Disease.

36.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for constipation, residual of Parkinson's Disease.

37.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for speech changes, residual of Parkinson's Disease.

38. Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for loss of autonomic movements of the right side, residual of Parkinson's Disease.

39.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for loss of autonomic movements of the left side, residual of Parkinson's Disease.

40.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for stooped posture of the right side, residual of Parkinson's Disease.

41.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for stooped posture of the left side, residual of Parkinson's Disease.

42.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for partial loss of smell, residual of Parkinson's Disease.

43.  Entitlement to an effective date earlier than December 31, 2015 for the award of service connection for depression with cognitive impairment.

44.  Entitlement to an effective date earlier than December 31, 2015 for basic eligibility for Dependents' Educational Assistance (DEA).

45.  Entitlement to an effective date earlier than September 13, 2016 for award of a total disability rating based upon individual unemployability (TDIU).

46.  Entitlement to an effective date earlier than September 13, 2016 for the award of SMC(s).  


REPRESENTATION

Veteran represented by:	    Carol J. Ponton, Attorney-at-Law


ATTORNEY FOR THE BOARD

G. E. Wilkerson, Counsel


INTRODUCTION

The Veteran served on active duty from July 1948 to July 1970.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of rating decisions the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida.

During the course of the Veteran appeal, the RO recharacterized the Veteran's service-connected depressive disorder with cognitive impairment as PTSD, and awarded an increased 70 percent rating for the disability from September 13, 2016.

As higher ratings for the disability are available prior to and from this date, the appeal continues.  See AB v. Brown, 6 Vet. App. 35 (1993) (where a claimant has filed a notice of disagreement as to an RO decision assigning a particular rating, a subsequent RO decision assigning a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal).  The claims have been characterized accordingly on the title page.

This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2016).  38 U.S.C.A. § 7107(a)(2) (West 2014).

In a notice of disagreement and VA form 9 dated in December 2016, the Veteran's attorney indicated that the Veteran was entitled to an earlier effective date for his coronary artery disease.  Given that the rating decision that is the subject of this disagreement continued a 60 percent rating for the disability, it is unclear as to whether the Veteran is seeking an earlier effective date for the grant of service connection for the disability, or for the assignment of the 60 percent rating which occurred in previous rating decisions.  This matter is referred to the Agency of Original Jurisdiction (AOJ) for clarification and additional development, if warranted.

The issues of entitlement to service connection for basal cell carcinoma, back disorder, and kidney disorder, as well as the claims for increased ratings for balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the bilateral upper and lower extremities and entitlement to an effective date earlier than September 13, 2016, for the award of SMC(s) and a TDIU, 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 was exposed to Agent Orange in Vietnam.

2.  Diabetes mellitus is not shown by the record.

3.  Hypertension is the result of in-service exposure to Agent Orange.

4.  Chronic inflammatory demyelinating polyneuropathy of the bilateral upper extremities is the result of in-service exposure to Agent Orange.

5.  Chronic inflammatory demyelinating polyneuropathy of the bilateral lower extremities is the result of in-service exposure to Agent Orange.

6.  The Veteran's coronary artery disease is not productive of workload of 3 METs or less resulting in dyspnea, fatigue, angina, dizziness, syncope, or ejection fraction of less than 30 percent, or chronic congestive heart failure.

7.  Prior to May 11, 2016, the Veteran's depression with cognitive impairment was productive of occupational and social impairment with deficiencies in work, family relationships, thinking and mood.

8.  From May 11, 2016, the Veteran's PTSD has productive of occupational and social impairment with deficiencies in work, family relationships, thinking and mood.

9.  The Veteran's difficulty chewing, residual of Parkinson's Disease, has approximated moderate stricture of the esophagus and has not been manifested by disability comparable to severe stricture of the esophagus, permitting liquids only.

10.  The Veteran's urinary problems, residual of Parkinson's Disease, require the wearing of absorbent materials that must be changed less than 2 times per day.

11.  The Veteran's speech changes, residuals of Parkinson's Disease, have been manifested by slurred speech, hoarseness, and changes in tone.

12.  The Veteran's constipation, residual of Parkinson's Disease, is not shown to be productive of severe irritable bowel syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.

13.  The Veteran's loss of autonomic movements of the left and right sides, residual of Parkinson's Disease, have been manifested by no more than moderate incomplete paralysis of the seventh cranial nerve.  

14.  The Veteran's stooped posture of the left and right sides, residual of Parkinson's Disease, has been manifested by no more than moderate incomplete paralysis of the eleventh cranial nerve.

15.  The Veteran is in receipt of the maximum schedular rating available for loss of smell.  

16.  The Veteran's cervical spine disability has been manifested by pain with limitation of motion; unfavorable ankylosis of the entire cervical spine or entire spine, neurologic impairment and/or incapacitating episodes having a total duration of at least 4 weeks during a 12-month period have not been shown.

17.  The evidence demonstrates it is as likely as not that the Veteran's service-connected disabilities render him so helpless as to be in the need of regular aid and attendance.

18.  On May 11, 2016, the Veteran filed a claim for service connection for neck disorder; neither an informal nor a formal claim for benefits was received prior to that date.

19.  Parkinson's Disease and related residuals including balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the right and left upper and lower extremities, difficulty chewing, urinary problems, constipation, speech changes, loss of autonomic movements of the right and left sides, stooped posture right and left sides, and partial loss of smell first manifest at the time the Veteran filed a claim for service connection on September 2, 2014.

20.  Depression and cognitive impairment associated with Parkinson's Disease first manifest at the time the Veteran filed a claim for service connection for Parkinson's Disease on September 2, 2014.

21.  The Veteran is shown to be permanently and totally disabled due to service-connected disabilities and thus eligible to receive DEA benefits pursuant to 38 U.S.C.A. Chapter 35 beginning on September 2, 2014.
CONCLUSIONS OF LAW

1. Diabetes mellitus type II was not incurred in or aggravated by service and may not be presumed to have been incurred in service.  38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1116, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2013).

2.  Hypertension was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).

3.  Chronic inflammatory demyelinating polyneuropathy of the left upper extremity was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).

4.  Chronic inflammatory demyelinating polyneuropathy of the right upper extremity was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).

5.  Chronic inflammatory demyelinating polyneuropathy of the left lower extremity was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).

6.  Chronic inflammatory demyelinating polyneuropathy of the right lower extremity was incurred in service.  38 U.S.C.A. §§ 1110, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2016).

7.  The criteria for a rating in excess of 60 percent for coronary artery disease have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7005 (2016).

8.  The criteria for an initial 70 percent rating for depression with cognitive impairment, prior to May 11, 2016, have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9435 (2016).

9.  The criteria for a 70 percent rating for PTSD (previously evaluated as depression with cognitive impairment), from May 11, 2016 to September 12, 2016 have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2016).

10.  The criteria for a rating in excess of 70 percent for PTSD from September 13, 2016 have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.130, Diagnostic Code 9411 (2016).

11.  The criteria for a rating in excess of 30 percent for difficulty chewing, residual of Parkinson's Disease, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.113, 4.114, Diagnostic Code 7319 (2016).

12.  The criteria for a rating in excess of 20 percent for urinary problems, residual of Parkinson's Disease, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.115b, Diagnostic Code 7542.

13.  The criteria for a 30 percent rating for speech changes, residual of Parkinson's disease, have been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.97, Diagnostic Code 6516.

14.  The criteria for a rating in excess of 10 percent for constipation, residual of Parkinson's Disease, are not met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.113, 4.114, Diagnostic Code 7319 (2016).

15. The criteria for an initial rating in excess of 10 for loss of autonomic movements of the left side, residual of Parkinson's Disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8205 (2016).

16.  The criteria for an initial rating in excess of 10 for loss of autonomic movements of the left side, residual of Parkinson's Disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8205 (2016).

17. The criteria for an initial rating in excess of 10 for stooped posture of the left side, residual of Parkinson's Disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8211 (2016).

18. The criteria for an initial rating in excess of 10 for stooped posture of the right side, residual of Parkinson's Disease, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 4.7, 4.124a, Diagnostic Code 8211 (2016).

19.  The criteria for a rating in excess of 10 percent for partial loss of smell, residual of Parkinson's Disease, have not been met.  38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.87, Diagnostic Code 6275 (2016).  

20.  The criteria for an initial rating in excess of 30 percent for degenerative disc disease of the cervical spine with cervical spinal stenosis have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.7, 4.45, 4.59, 4.71a, Diagnostic Code 5243 (2016).

21.  The criteria for SMC due to the need for regular aid and attendance have been met.  38 U.S.C.A. § 1114(l) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.350, 3.352(a) (2016).

22.  The criteria for an effective date earlier than May 11, 2016 for the award of service connection of degenerative disc disease of the cervical spine with cervical spinal stenosis have not been met.  38 U.S.C.A. §§ 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

23.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for bradykinesia or slowed motion, balance impairment, tremors and muscle rigidity of the left upper extremity, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

24.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for bradykinesia or slowed motion, balance impairment, tremors and muscle rigidity of the right upper extremity, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

25.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for bradykinesia or slowed motion, balance impairment, tremors and muscle rigidity of the left lower extremity, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

26.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for bradykinesia or slowed motion, balance impairment, tremors and muscle rigidity of the right lower extremity, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

27.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for difficulty chewing, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

28.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for urinary problems, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

29.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for constipation, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

30.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for speech changes, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

31.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for loss of autonomic movements of the right side, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

32.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for loss of autonomic movements of the left side, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

33.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for stooped posture of the right side, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

34.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for stooped posture of the left side, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

35. The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection for partial loss of smell, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

36.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of service connection of depression with cognitive impairment, residual of Parkinson's Disease, have been met.  38 U.S.C.A. § 5110 (West 2014); 38 C.F.R. § 3.400 (2016).

37.  The criteria for an earlier effective date of September 2, 2014, but no earlier, for the grant of DEA have been met.  38 U.S.C.A. §§ 3501, 3510, 5110 (West 2014); 38 C.F.R. §§ 3.400, 3.807(a), 21.3021 (2016).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Service Connection

Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a).  Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability.  Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a).

With chronic disease shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). To show a chronic disease in service, a combination of manifestations sufficient to identify the disease entity is required, as is sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b). The Court has established that 38 C.F.R. § 3.303(b) applies to only those chronic diseases listed in 38 C.F.R. § 3.309(a).  See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013); 38 U.S.C.A. § 1101. With respect to the current appeal, that list includes cardiovascular-renal disease and other organic disease of the nervous system. See 38 C.F.R. § 3.309(a).

Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d).

In addition, for Veterans who have served 90 days or more of active service during a war period or after December 31, 1946, certain chronic disabilities, including cardiovascular-renal disease and other organic disease of the nervous system are presumed to have been incurred in service if they manifested to a compensable degree within one year of separation from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307(a), 3.309(a).  However, in order for the presumption to apply, the evidence must indicate that the disability became manifest to a compensable (10 percent) degree within one year of separation from service. See 38 C.F.R. § 3.307.

Veterans who, during active 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 to an herbicide agent, unless there is affirmative evidence of non-exposure.  See 38 U.S.C.A. § 1116(f); 38 C.F.R. § 3.307(a)(6)(iii). If a veteran was exposed to an herbicide agent during active service, certain enumerated diseases, including diabetes mellitus and ischemic heart disease, shall be presumptively service-connected even where there is no record of such disease during service, provided that the disease is manifested to a compensable degree as set forth in 38 C.F.R. § 3.307, and the rebuttable presumption provisions of 38 C.F.R. § 3.307 are met. See 38 C.F.R. § 3.309(e); see also 38 C.F.R. § 3.307 (a)(6)(ii) (providing that with the exception of chloracne or other acneform disease, porphyria cutanea tarda, and early onset peripheral neuropathy, the diseases listed in 38 C.F.R. § 3.309(e) must be manifest to a degree of 10 percent or more at any time after service). 

The claimant bears the burden of presenting and supporting his/her claim for benefits. 38 U.S.C.A. § 5107(a); see Fagan v. Shinseki, 573 F.3d 1282 (Fed. Cir. 2009).  In its evaluation, the Board shall consider all information and lay and medical evidence of record. 38 U.S.C.A. § 5107(b).  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall give the benefit of the doubt to the claimant. Id.  Another way stated, VA has an equipoise standard akin to the rule in baseball that "the tie goes to the runner." Gilbert v. Derwinski, 1 Vet. App. 49   (1990).  The benefit of the doubt doctrine is not applicable based on pure speculation or remote possibility.  See 38 C.F.R. § 3.102.

The Veteran's DD214 confirms that he entered service in Vietnam in July 1968.  Personnel records also confirm service in Vietnam during the requisite time frame.  He is therefore presumed to have been exposed to herbicides during such service.

A. Diabetes Mellitus

The Veteran seeks service connection for diabetes mellitus, to include as due to exposure to herbicides.

The Veteran's service treatment records include no complaint, finding, or diagnosis with respect to the claimed diabetes mellitus.  No related abnormalities were noted on March 1970 discharge examination.

Post-service VA and private treatment records do not reflect diagnosis and treatment of diabetes mellitus.

On VA examination in August 2016, the examiner determined that the Veteran did not meet the criteria for diagnosis of diabetes mellitus.  The examiner noted that the Veteran denied having been diagnosed with diabetes.  He stated that he told his representative that he occasionally had high sugars and watched what he ate.  He stated that he did not claim diabetes.  The examiner indicated that his records showed some brief episodes of high hyperglycemia (not on the level of diabetes mellitus), but most of his glucose readings were in the normal range.

In sum, there is no evidence of diagnosis or treatment of diabetes mellitus.

The Board emphasizes that Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C.A. § 1110; see also McClain v. Nicholson, 21 Vet. App. 319, 321 (2007).  Accordingly, where, as here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought, there can be no valid claim for service connection for the disability.  See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App 223, 225 (1992).  As there is no disability, the Board does not reach the issue of whether the claimed disability is related to service.

The Board has considered the Veteran's lay statements regarding his symptomatology of elevated blood sugars.  As a lay person, the Veteran is competent to report on that which he has personal knowledge, including symptoms, and the Board deems him credible in that regard. See Layno v. Brown, 6 Vet. App. 465, 469 (1994).  However, elevated blood sugar levels (hypoglycemia) represents a laboratory finding, and is therefore not considered to be an actual disability in and of itself for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule).
The Veteran has not presented competent, credible evidence establishing diagnosis and diabetes mellitus or disability manifested by elevated blood sugar, and has in fact denied such a diagnosis.

In the absence of a current disability, service connection cannot be established.  See Holton, 557 F.3d at 1366 (holding that entitlement to service connection requires, among other things, evidence of a current disability); see also Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (upholding VA's interpretation of sections 1110 and 1131 of the statute as requiring the existence of a present disability for VA compensation purposes).  As the preponderance of the evidence is against the Veteran's claim, the benefit-of-the-doubt rule does not apply. 38 U.S.C.A § 5107(b); Gilbert, 1 Vet. App. at 53-56.

B.  Hypertension

The Veteran contends that he is entitled to service connection for hypertension as due to his in-service exposure to herbicides. 

Hypertension is not among the disorders subject to presumptive service connection under 38 C.F.R. § 3.309(e). Accordingly, service connection for the claimed hypertension as presumed as due to in-service herbicide exposure is not warranted.

However, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation.  See Combee v. Brown, 34 F.3d 1039 (1994). As such, the Board will adjudicate the claim on a theory of direct entitlement to service connection.

The Veteran's service treatment records include no complaint, finding, or diagnosis related to hypertension.

Post-service VA treatment records reflect that the Veteran established VA care in 2006.  At that time, a diagnosis of hypertension was indicated.

A November 2016 report from private physician Dr. C. reflects that she reviewed the Veteran's claims file, including service treatment records and post-service medical records.  The examiner noted that the Veteran was diagnosed with hypertension in December 2004 at the same time that he was diagnosed with ischemic heart disease.  She indicated that it was likely that the Veteran had undiagnosed hypertension prior to that date.  Dr. C. also noted that the Veteran quit smoking in 1993, 11 years prior to his diagnosis of hypertension, at which time his risk for hypertension would almost equal that of the general population.

Dr. C. indicated that hypertension was attributable to Agent Orange exposure, citing to relevant studies from the National Institute of Health.

She noted that the major risk factors for hypertension were age, race, body mass index and diabetes.  The Veteran had no controllable risk factors for developing hypertension and already had 2 diagnoses attributable to Agent Orange (coronary artery disease and Parkinson's Disease).

Based upon review of the medical records and a review of relevant literature, Dr. C. found it more likely than not that the Veteran's hypertension was caused by exposure to Agent Orange.

In this case, the record reflects post-service diagnosis of hypertension.  Dr. C. provided an opinion, based upon review of the record and pertinent medical literature, that this disability is at least as likely as not due to the Veteran's presumed exposure to Agent Orange in service.  There is no opinion to the contrary.   Accordingly, service connection is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

C.  Peripheral Neuropathy

The Veteran also contends that he is entitled to service connection for peripheral neuropathy of the bilateral upper and lower extremities, to include as due to exposure to herbicides.

While service connection on a presumptive basis for acute and subacute peripheral neuropathy may be granted, pertinent regulations indicates that this peripheral neuropathy meant transient peripheral neuropathy that appeared within weeks or months of exposure to an herbicide agent and resolved within two years of the date of onset. 38 C.F.R. § 3.309 (e), Note 2. As discussed below in greater detail, medical records do not establish-nor does the Veteran contend-onset of peripheral neuropathy within two years of service in Vietnam and exposure to Agent Orange.

Again, the Board will adjudicate the claims on a theory of direct entitlement to service connection. See Combee, 34 F.3d at 1039.

The Veteran's service treatment records include no complaint, finding, or diagnosis with respect the claimed peripheral neuropathy of the extremities.

Following service, private treatment records reflect that the Veteran was treated for meralgia paresthetica in 2012.

Private treatment records dated in 2014 reflect that the Veteran complained of leg weakness and imbalance.  A gait abnormality and peripheral neuropathy was assessed.  The Veteran underwent work-up and evaluation, including EMG and nerve conduction studies. Parkinson's Disease was indicated.

An August 2014 report from private physician Dr. P. reflects diagnosis of idiopathic peripheral autonomic neuropathy with an onset of July 2011.

The Veteran underwent VA peripheral nerves examination in August 2016.  After interview and neurological examination, the examiner diagnosed idiopathic peripheral neuropathy of the lower extremities, but found that no neuropathy of the upper extremities was present.

An independent medical evaluation report from Dr. H. reflects that she reviewed the Veteran's medical records.  She noted that he had been diagnosed with idiopathic peripheral autonomic neuropathy in July 2011 and meralgia paresthetica in March 2012.  He was assessed with Parkinson's Disease in 2014.  

Dr. H. diagnosed chronic inflammatory demyelinating polyneuropathy.  She noted that the Veteran's symptoms were not completely consistent with Parkinson's disease.  Moreover, while idiopathic peripheral neuropathy was either slowly progressive or not progressive at all, the Veteran had a very quick decline in regard to his neuropathic symptoms.  Also, studies showed that the sedimentation rate was found to be elevated, and there was no other disease state in the Veteran to explain these lab abnormalities except chronic inflammatory demyelinating polyneuropathy.  Her review of these records led to the conclusion that the Veteran's presentation was consistent with this diagnosis.  

An independent medical review performed by Dr. C. dated in November 2016 reflects review and discussion of the Veteran's medical history, including review of VA examination reports and the report from Dr. H.

Dr. C. indicated that the Veteran's neurological problems included signs and symptoms not normally attributable to Parkinson's disease.  Dr. C stated that while this could be indicative of a Parkinson's Plus syndrome, the fact that his initial diagnosis was idiopathic autonomic peripheral neuropathy and the fact that he had an elevated sedimentation rate suggested that the additional diagnosis of chronic inflammatory demyelinating polyneuropathy was correct.

Dr. C. stated that she reviewed numerous medical articles on peripheral neuropathy and Agent Orange.  She noted a study that showed that the effect of Agent Orange exposure could have a latency of more than two years.  She also noted that the Veteran would have been exposure to trichloroethylene (TCE) as an electronics technician in service, and associated has been found in development of peripheral neuropathy and those exposure to TCE.

Based upon her review of these findings and other studies, as well as the Veteran's medical records, she opined that it is at least as likely as not that the Veteran suffered from chronic inflammatory demyelinating polyneuropathy and that this diagnosis was caused by exposure to both Agent Orange and TCE.

In this case, the record reflects post-service diagnosis of chronic inflammatory demyelinating polyneuropathy.  Dr. H. provided an opinion, based upon review of the record and pertinent medical literature, that this disability is at least as likely as not due to the Veteran's presumed exposure to Agent Orange in service.  There is no opinion to the contrary.   Accordingly, service connection is warranted.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert, supra.

II. Increased Rating

Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment.  38 C.F.R. § 4.10.  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating.  38 C.F.R. § 4.7.  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3.

The Veteran's entire history is to be considered when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).

The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999).  In this case, staged ratings for the Veteran's psychiatric disability on appeal have already been assigned.  The Board will accordingly discuss the propriety of the ratings assigned at each stage.

At the outset, the Board notes that the Veteran's Parkinson's Disease residuals are identified as 8004 for paralysis agitans, with the appropriate diagnostic code following a hyphen.  Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the rating assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27.

A. Psychiatric Disorder

The Veteran's depressive disorder with cognitive impairment was rated as 50 percent disabling pursuant to 38 C.F.R. § 4.130, Diagnostic Code 9435.  His psychiatric disability was subsequent recharacterized as PTSD and rated as 50 and 70 percent disabling under Diagnostic Code 9411.  Regardless, either diagnostic code provides that mood disorders and/or PTSD should be rated under the General Rating Formula for evaluating psychiatric disabilities other than eating disorders.  

Under the general formula, a 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships.

A 70 percent rating is assigned for occupational and social impairment with deficiencies in most areas, such as work, school, family relationships, judgment, thinking or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near- continuous panic or depression affecting ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work-like setting); and inability to establish and maintain effective relationships. 

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; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

The symptoms listed in the rating schedule are not intended to constitute an exhaustive list, but rather serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating.  See Mauerhan v. Principi, 16 Vet. App. 436 (2002).

In Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116-17 (Fed.Cir. 2013) the Federal Circuit stated that "a veteran may only qualify for a given disability rating under       § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration."  It was further noted that          "§ 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas."

To the extent that the medical evidence reflects diagnoses of other psychiatric disorders, where it is not possible to distinguish the effects of nonservice-connected conditions from those of a service-connected condition, the reasonable doubt doctrine dictates that all symptoms be attributed to the Veteran's service-connected disability.  See Mittleider v. West, 11 Vet. App. 181 (1998).

A Parkinson's disease disability benefits questionnaire completed by Dr. G. in March 2016 noted findings of moderate depression and mild cognitive impairment.  

A Parkinson's disease disability benefits questionnaire completed by Dr. P. in September 2016 reflects findings of severe depression and mild cognitive impairment or dementia.

On VA examination in September 2016, the Veteran reported that he was married and very close with his wife, who served as his physical caretaker.  He was close to his 3 adult sons and their families, though they were frustrated over how his PTSD had limited their social interactions over the years.  He had a few trusted friends over time, but mostly spent time in and around his home, frustrated by current events and his physical limitations.  He retired from work in 1993, noting that he had episodic problems when he was working with work focus, quality, and interactions with others due to his PTSD symptoms.

Symptoms related to the Veteran's psychiatric conditions included anxiety, chronic sleep impairment, mild memory loss, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, difficulty in adapting to stressful circumstances, including work or a work-like setting, and impaired impulse control, such as unprovoked irritability with periods of violence.

The examiner diagnosed PTSD, which he determined to be productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks, although generally functioning satisfactorily with normal routine behavior, self-care, and conversation.

The examiner noted that the Veteran had never sought mental health services despite fluctuating active symptoms which had limited his psychosocial and occupational functioning.  His symptoms in recent years had been exacerbated by recent wars, news of deaths and infirmities of Army friends, and reminders of his Agent Orange exposure which have rendered him dependent upon his wife.  He slept restlessly and lightly approximately 4-7 hours nightly, with sleep disrupted by night-time hyperarousal, worrisome thinking about life stressors, Parkinson's symptoms, and occasional distressing combat dreams.  He had no history of major depressive, manic, substance abuse, other anxiety disorder, or other psychotic symptoms.  His PTSD-related mood dysphoria had been exacerbated by his Parkinson's Disease.

An October 2016 report from private psychologist Dr. M. notes that he interviewed the Veteran and his wife on the phone.  He noted that the Veteran avoided treatment for his mental health condition for decades after his return from Vietnam, despite having many symptoms of PTSD.  

Dr. M. noted that it was apparent that the Veteran was depressed and clearly minimized the impact of his PTSD.  He had difficulty holding a job after service, and experienced difficulties getting along with others.  He last operated a liquor store in 1993.  Since he retired, he reportedly did "nothing."

The Veteran reported experiencing intrusive recollections and nightmares of Vietnam.  He avoided thinking about Vietnam, and avoided crowds.  He stated that he felt alienated from others.  He was hypervigilant.

The Veteran also discussed difficulties with concentration, maintaining conversation, and he did not maintain any friendships.

The Veteran's wife also described the Veteran's problems with anger and irritability and getting along with others.

In sum, the examiner concluded that the Veteran had PTSD since his return from Vietnam in 1968, and that the Veteran's PTSD had imposed very severe limitations on social and occupational functioning since 1995, and that he had been unemployable due to his mental condition alone since that time.  Dr. M. found that the Veteran's PTSD was productive of deficiencies in most areas such as work, family relations, judgment, thinking, and mood, due to intrusive symptoms, avoidance, and arousal-especially impaired impulse control and difficulty in adapting to stressful circumstances.

In written statements, the Veteran's wife wrote regarding the Veteran's change upon his return from Vietnam.  He was very irritable and always upset with their children.  She found it necessary to leave him for a while but returned due to financial necessity for their children.  She indicated that he was very hard to live with and described him as a "basket case."  She noted that he did not have any close friends outside of his family.  He still cried over his Vietnam experiences and was easily agitated.  She indicated that he was very depressed, nervous, irritable, and on edge.

The aforementioned evidence reflects that the Veteran's psychiatric disorder, various diagnosed as PTSD and depression, has been manifested by anger, anxiety, depression, panic attacks, mood swing, isolative behavior, lack of concentration, memory impairment and difficulty maintaining relationships.  In the opinion of the Board, the frequency, severity and duration of these symptoms have been productive of occupational and social impairment with deficiencies in work, family relationships, judgment and mood.  Such symptomatology is consistent with a higher 70 percent rating.  

Accordingly, the Board finds that a 70 percent rating is warranted for the period where his psychiatric disorder was characterized as depression with cognitive impairment, prior to May 11, 2016, as well as when the disability was characterized as PTSD from May 11, 2016.  

However, at no point during the period of the appeal, is the service-connected psychiatric disorder shown to have met the criteria for the higher rating of 70 percent.  As noted, a 100 percent rating requires total occupational and social impairment due to symptoms such as gross impairment in thought processes or communication; persistent delusions; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent ability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of closes relatives, own occupation, or own name.

With respect to social functioning, the record reflects that the Veteran is socially withdrawn, but he is still married and has reported good relationships with his children.  Thus, it cannot be said that he has "total" social impairment, and such is consistent with the findings on examination.

The Board also notes that there have been no Global Assessment of Functioning scores assigned on examination.

Accordingly, the Board finds that a uniform 70 percent rating for depressive disorder and PTSD, but no higher for any time during the appeal period, is warranted.  In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. 49, 55-56 (1990).  

B.  Coronary Artery Disease

The Veteran's coronary artery disease is rated as 60 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7005.

Under 38 C.F.R. § 4.104, Diagnostic Code 7005, a 60 percent evaluation is assigned for more than one episode of acute congestive heart failure in the past year, or; a workload of greater than 3 METs but not greater than 5 METs that results in dyspnea, fatigue, angina, dizziness, or syncope, or; when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent.  

A 100 percent evaluation is assigned for chronic congestive heart failure, or; workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent.  

One MET is the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute.  When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination of METs by exercise testing cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used.  38 C.F.R. § 4.104, Note (2).

The Veteran's claim for increased rating is based on his claim for TDIU received in November 2015, at which time he claimed he was unemployable due to his heart disability.

While the RO issued a rating decision in February 2016 indicating that it was proposing to decrease the rating for this disability to 30 percent, the record reflects that the Veteran's rating has not been reduced. 

On VA examination in February 2016, the Veteran stated that he had a heart attack in 2005 and underwent stent placement at that time.  He had a catheterization in 2010 when he was being worked-up for cervical stenosis.  He did not require any other procedures for his heart at that time.  He denied heart problems since the stent was put in.  He saw a private cardiologist annually and took aspirin and Toprol for the condition.

The examiner noted that the Veteran did not have congestive heart failure, cardiac arrhythmia, a heart valve condition, pericardial adhesions or other hospitalization for heart treatment other than the surgical procedures discussed above.

Objectively, heart rhythm was regular and heart sounds were normal.  The lungs were clear.  Peripheral pulses were normal and there was no peripheral edema.  There was no evidence of cardiac hypertrophy or cardiac dilation.

EKG revealed normal wall motion and thickness with left ventricular ejection fraction of 55-60 percent.  Left ventricular systolic function was grossly normal.  There was mild concentric left ventricular hypertrophy.  The left atrium was mildly dilated, and there were no significant valvular abnormalities.

The examiner indicated that an exercise stress test was conducted as it was not required as a part of the Veteran's current treatment plan and it was not without significant risk.  The examiner commented that the Veteran's walking and balance was limited by Parkinson's disease.  Interview-based METs test revealed that the Veteran denied experiencing symptoms attributable to a cardiac condition with any level of physical activity.

The examiner diagnosed coronary artery disease and acute, subacute or old myocardial infarction (date of diagnosis of 2006).  With respect to impact on work, the examiner indicated that there was no impact on his ability to work, as he experienced no functional impairment as a result of his coronary artery disease.

Based on the foregoing, the Board concludes that a rating in excess of 60 percent for coronary artery disease is not warranted.  In so finding, the Board recognizes that examination findings do not disclose that workloads of 3 MET or loss results in dyspnea, fatigue, angina, dizziness, or syncope, or ejection fraction of less than 30 percent.  VA and private treatment records and examination reports also do not indicate chronic congestive heart failure.  Accordingly, the Board finds that the criteria for a next higher 100 percent rating for coronary artery have not been met.    


C.  Difficulty Chewing

The Veteran's difficulty chewing, residual of Parkinson's Disease, is rated by analogy as 30 percent disabling under Diagnostic Code 7203 for stricture of the esophagus.  Under Diagnostic Code 7203, a 30 percent rating is warranted for moderate stricture of the esophagus, a 50 percent rating for severe stricture, permitting liquids only, and an 80 percent rating for stricture permitting passage of liquids only, with marked impairment of general health.    

An April 2014 report from Dr. M. reflects that the Veteran complained of difficulties with chewing and had trouble swallowing solids.

On VA examination in November 2014, the examiner found no difficulties with chewing or swallowing.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes assessment of mild difficulty chewing and swallowing.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. M. notes assessment of mild difficulty chewing and swallowing.

A March 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes assessment of severe difficulty chewing and swallowing.

A September 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes assessment of severe difficulty chewing and swallowing.

On VA examination in October 2016, the Veteran reported that he ate a normal diet.   The examiner found no difficulties with chewing or swallowing associated with the Veteran's Parkinson's Disease.

In sum, the record reflects that the Veteran experiences difficulty chewing and swallowing food.  However, the medical treatment records, VA examination reports, and disability benefits questionnaires do not note the Veteran must consume liquids only and refer to severe difficulty with chewing and swallowing solids.  

Therefore, the evidence of record shows that the Veteran is able to consume food, albeit with difficulty, and that his difficulties with chewing and swallowing are not severe, permitting liquids only.  There is no indication of severe impairment of health related to difficulties with chewing or swallowing of food.  Thus, the evidence shows that the Veteran's difficulty chewing has not met or approximated the criteria for an increased rating, and an initial rating in excess of 30 percent for this disability must be denied.  

D.  Urinary Problems

The Veteran's urinary problems stemming from his Parkinson's Disease are rated as 20 percent disabling pursuant to the criteria of 38 C.F.R. § 4.115b, Diagnostic Code 7542.  In turn, Diagnostic Code 7542 provides that the disability should be rated as a voiding dysfunction under the criteria of 38 C.F.R. § 4.115a.

For voiding dysfunction, particular conditions are to be rated as urine leakage, frequency, or obstructed voiding.  In this case, neither the lay or medical evidence demonstrates that the Veteran experienced obstructed voiding or urinary frequency.

With respect to voiding dysfunction, the wearing of absorbent material that must be changed less than 2 times per day warrants a 20 percent rating.  A 40 percent rating where the wearing of absorbent materials which must be changed 2 to 4 times per day is required.  A 60 percent rating is assigned where the use of an appliance or the wearing of absorbent material which must be changed more than 4 times per day is warranted.  38 C.F.R. § 4.115b.

On VA examination in November 2014 the examiner found no urinary problems related to the Veteran's Parkinson's Disease.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes use of 1 absorbent pad per day with assessment of urgency.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. M. notes use of 1 absorbent pad per day with assessment of urgency.

A March 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes use of 1 absorbent pad per day.

An April 2016 treatment report from private physician Dr. G. notes that the Veteran denied bladder symptoms.

A September 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes use of 1 absorbent pad per day.

On VA examination in October 2016, the examiner found no urinary problems related to the Veteran's Parkinson's Disease.

In this case, treatment records and examination reports do not reflect urinary frequency or obstructed voiding.  The Veteran's urinary problems have been manifested by voiding dysfunction requiring the wearing of absorbent material that must be changed once per day.  This is consistent with the 20 percent rating assigned.  The physicians who completed the various disability benefits questionnaires have not indicated use of absorbent materials that must be changed at least twice a day, nor has any other urinary symptoms been identified warranting assignment of a higher rating on the basis of urine leakage, frequency, or obstructed voiding.  Accordingly, a rating in excess of 20 percent for urinary problems, residual of Parkinson's Disease, is not warranted.




E.  Speech Changes

The Veteran's speech problems stemming from his Parkinson's Disease have been evaluated by analogy to chronic laryngitis pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6516.  Under this Diagnostic Code, a 10 percent evaluation is warranted with hoarseness and inflammation of chords or mucous membrane.  A maximum 30 percent evaluation is warranted with hoarseness, with thickening or nodules of cords, polyps, submucous infiltration, or pre-malignant changes on biopsy.  Id.

An April 2014 report from private physician Dr. M. reflects that the Veteran reported hoarseness of voice and that he had started slurring words.

On VA examination in November 2014, the examiner found no speech changes associated with the Veteran's Parkinson's disease.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes assessment of severe speech changes.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. M. notes assessment of severe speech changes.

A March 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes assessment of severe speech changes.

An April 2016 treatment report from private physician Dr. G. notes that the Veteran reported occasional change in speech tone.  

A September 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes assessment of severe speech changes.

On VA examination in October 2016, the Veteran reported that his jaw tightened with problems talking.  The examiner indicated that there were no speech changes, such as monotone, slurring words, or soft or rapid speech, associated with the Veteran's Parkinson's Disease.
The Board notes that there is conflicting evidence regarding the severity of the Veteran's speech changes.  However, given that his treating physicians, who provided the 2015 and 2016 Parkinson's Disability Benefits Questionnaires, all determined that these speech changes were severe, the Board resolves all reasonable doubt in the Veteran's favor, and finds that the 30 percent rating for speech changes, residual of Parkinson's Disease, have been more nearly approximated.  This is the maximum rating allowable under Diagnostic Code 6516.  

The Board notes that in denying a rating in excess of 30 percent, we have considered whether entitlement to a rating under Diagnostic Code 6519, aphonia, is warranted.  Pursuant to this Diagnostic Code, constant inability to speech above a whisper is rated as 60 percent disabling, and constant inability to communicate by speech is rated as 100 percent disabling.  38 C.F.R. § 4.97.  Incomplete aphonia is to be evaluated as laryngitis (Diagnostic Code 6516), as has been done in the present case.  Given that complete aphonia, with constant inability to speak above a whisper, has not been demonstrated, a higher rating under this diagnostic code is not warranted.

Additionally as will be discussed below in further detail, the record does not present, and it has not been asserted, that the record presents such an exceptional or unusual disability picture as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321.  In this regard, the Board notes that there has been no demonstration that the service-connected loss of speech changes are productive of marked interference with employment, beyond that contemplated in the current 30 percent rating, nor productive of frequent hospitalization, as to prevent the use of the regular rating criteria.  While there is no specific diagnostic code for speech changes, the diagnostic criteria adequately contemplate the Veteran's symptomatology.  See Thun 22 Vet. App. at 115.  In sum, the Schedule for Rating Disabilities is shown to provide a fair and adequate basis for rendering a decision in this case. Consequently, referral for a higher rating on an extraschedular basis is not warranted.



F.  Constipation

The Veteran's constipation has been rated as 10 percent disabling under 38 C.F.R. § 4.114, Diagnostic Code 7319 as irritable colon syndrome.  Under Diagnostic 7319, a 10 percent rating is assigned for moderate irritable colon syndrome with frequent episodes of bowel disturbances with abdominal distress.  A maximum 30 percent rating is assigned when there is severe irritable colon syndrome with diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  38 C.F.R. § 4.114, Diagnostic Code 7319.  The Board further notes that 38 C.F.R. § 4.114 prohibits simultaneous evaluations under Diagnostic Codes 7301 to 7329, inclusive; Diagnostic Codes 7331 and 7342; and Diagnostic Codes 7345 to 7348.

On VA examination in November 2014, the examiner found no constipation problems related to the Veteran's Parkinson's Disease.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes no constipation associated with the Veteran's Parkinson's Disease.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. M. notes no constipation associated with the Veteran's Parkinson's Disease.

A March 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes no constipation associated with the Veteran's Parkinson's Disease.

An April 2016 treatment report from private physician Dr. G. notes that the Veteran denied bowel symptoms.

A September 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes moderate constipation associated with the Veteran's Parkinson's Disease.

On VA examination in October 2016, the examiner found no constipation problems related to the Veteran's Parkinson's Disease.

In some, the majority of the submitted Parkinson's Disease questionnaires and VA examination reports reflect no findings of constipation, with moderate constipation only noted on the September 2016 questionnaire.  The Veteran's treatment records otherwise do not reflect bowel-related complaint, abdominal distress, alternating diarrhea and constipation.

Therefore, the Board concludes that the preponderance of the evidence is against a 30 percent evaluation as the Veteran's constipation is not shown to involve diarrhea, or alternating diarrhea and constipation, with more or less constant abdominal distress.  38 C.F.R. § 4.114, Diagnostic Code 7319.

G.  Autonomic Movements of the Left and Right Sides

The Veteran's autonomic movements of the left and right sides have been rated as 10 percent disabling pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8207.  Under Diagnostic Code 8207, paralysis of the seventh cranial nerve is rated 30 percent if complete, 20 percent if incomplete but severe, and 10 percent if incomplete but moderate.  A corresponding Note indicates that evaluation is dependent upon relative loss of innervation of facial muscles.  See 38 C.F.R. § 4.124a, Diagnostic Code 8207.

The term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration.  Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology.  38 C.F.R. § 4.124a.

The Board notes that while the disability is rated as autonomic movements, VA examinations and disability benefits questionnaires refer to "automatic" movements.

On VA examination in November 2013, the examiner noted no loss of automatic movements.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes assessment of moderate loss of automatic movements.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. M. notes assessment of moderate loss of automatic movements.

A March 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes assessment of severe loss of automatic movements.

An April 2016 report from Dr. G. reflects that cranial nerve examination was normal-including facial expression, swallowing, and sensation.  The Veteran denied facial weakness.

A September 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes assessment of moderate loss of automatic movements.

On VA examination in October 2016, the examiner indicated that there was no loss of automatic movements such as blinking, leading to fixed gaze, or typical Parkinson's facies.

Given the foregoing, the Board finds that the evidence preponderates against a finding of severe incomplete paralysis of the seventh cranial nerve warranting an increased 30 percent rating for the disabilities.  In so finding, the Board notes that most of the Disability Benefits Questionnaires indicate a finding of moderate loss of automatic movements, with only one finding of severe loss.  Cranial nerve examination was normal on treatment in 2016, and on VA examinations in 2014 and 2016, the examiner specifically indicated no loss of automatic movements.  Accordingly, the Board finds that initial ratings in excess of 10 percent for loss of automatic movements on the right and left sides are not warranted.

H.  Stooped Posture of the Left and Right Sides

The Veteran's stooped posture stemming from his Parkinson's Disease has been rated as 10 percent disabling each for the left and right sides pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8211.  Under Diagnostic Code 8211, a 10 percent rating is warranted for moderate incomplete paralysis of the eleventh cranial nerve (which pertains to functional impairment associated with the sternomastoid and trapezius muscles).  A 20 percent rating is warranted for severe incomplete paralysis.  A 30 percent rating is warranted for complete paralysis.

Again, the term "incomplete paralysis," with respect to peripheral nerve injuries, indicates a degree of loss or impaired function substantially less than the type pictured for complete paralysis given with each nerve, whether due to varied level of the lesion or to partial regeneration.  Where the involvement is wholly sensory, the rating should be for mild, or at the most, moderate symptomatology.  38 C.F.R. § 4.124a.

On VA examination in November 2014, the examiner noted no stooped posture associated with the Veteran's Parkinson's Disease.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. P. notes assessment of moderate stooped posture.

A November 2015 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. M. notes assessment of moderate stooped posture.

A March 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes assessment of mild stooped posture.

A September 2016 Parkinson's Disability Benefits Questionnaire completed by private physician Dr. G. notes assessment of severe stooped posture.

On VA examination in October 2016, the VA examiner indicated that the Veteran's posture was not stooped.  

Given the foregoing, the Board finds that the evidence preponderates against a finding of severe incomplete paralysis of the eleventh cranial nerves warranting an increased 20 percent rating for the disabilities.  In so finding, the Board notes that most of the Disability Benefits Questionnaires indicate a finding of mild to moderate stooped posture, with only one finding of severe posture loss.  Cranial nerve examination was normal on treatment in 2016, and on VA examinations in 2014 and 2016, the examiner specifically indicated no stooped posture.  Accordingly, the Board finds that initial ratings in excess of 10 percent for stooped posture on the right and left sides are not warranted.

I. Loss of Smell

Under the applicable diagnostic criteria, hyposmia is assigned a 10 percent rating for complete loss of sense of smell.  38 C.F.R. § 4.87a, Diagnostic Code 6275.

Various Parkinson's Disability Benefits Questionnaires reflect assessment of partial loss of smell.

The Veteran's service-connected loss of smell has been assigned the maximum schedular rating available for hyposmia.  See 38 C.F.R. §4.87, Diagnostic Code 6257.  Thus, no higher rating is warranted.

Additionally as will be discussed below in further detail, the record does not present, and it has not been asserted, that the record presents such an exceptional or unusual disability picture as to warrant the assignment of an extraschedular evaluation pursuant to the provisions of 38 C.F.R. § 3.321.  In this regard, the Board notes that there has been no demonstration that the service-connected loss of smell is productive of marked interference with employment beyond that contemplated in the current 10 percent rating, nor productive of frequent hospitalization, as to prevent the use of the regular rating criteria.  The diagnostic criteria adequately contemplate the Veteran's symptomatology.  See Thun, 22 Vet. App. at 115.  In sum, the Schedule for Rating Disabilities is shown to provide a fair and adequate basis for rendering a decision in this case.  Consequently, referral for a higher rating on an extraschedular basis is not warranted.

J.  Cervical Spine

The Veteran also contends that he is entitled to an increased initial rating for his degenerative disc disease of the cervical spine with cervical spinal stenosis.

This disability is rated as 30 percent disabling pursuant to the criteria of 38 C.F.R. § 4.71a, Diagnostic Code 5243.  

Under the General Rating Formula for Diseases and Injuries of the Spine, a 30 percent rating is warranted for forward flexion of the cervical spine to 15 degrees or less.

A 40 percent rating is assigned for unfavorable ankylosis of the entire cervical spine.  

A 100 percent is warranted for unfavorable ankylosis of the entire spine.

Note 1 to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code.

Note 2 states that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range of motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range of motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range of motion.

Intervertebral disc syndrome (preoperatively or postoperatively) is to be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined under § 4.25.

A 10 percent disability rating is assigned for incapacitating episodes having a total duration of at least one week but less than two weeks during the past twelve months, with higher evaluations for incapacitating episodes of increased duration.

Note 1 states that an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest prescribed by a physician and treatment by a physician.

Note 2 indicates that if intervertebral disc syndrome is present in more than one spinal segment, provided that the effects in each spinal segment are clearly distinct, the rater is to evaluate each segment on the basis of incapacitating episodes or under the General Rating Formula for Diseases and Injuries of the Spine, whichever method results in a higher evaluation for that segment.

In addition, when assessing the severity of musculoskeletal disabilities that are at least partly rated on the basis of limitation of motion, VA must also consider the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain (and painful motion), weakness, premature or excess fatigability, and incoordination-assuming these factors are not already contemplated by the governing rating criteria.  DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995); see also 38 C.F.R. §§ 4.40, 4.45, 4.59.

At the outset, the Board notes that in reviewing the VA examination conducted during the course of the Veteran's appeal, Board has considered the decision of the United States Court of Appeals for Veterans Claims (Court) in Correia v. McDonald, 28 Vet. App. 158 (2016), which held that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint.  While these range of motion findings are not reported on VA examination, as the Veteran is assigned the maximum rating allowable on the basis of limitation of motion of the cervical spine, such findings are of limited probative value.  Accordingly, remand for an additional Correia-compliant examination is not warranted.

The pertinent evidence of record reflects that the Veteran was evaluated for cervical stenosis and possibility of surgical intervention in 2015.

Private cervical spine MRI dated in December 2015 revealed multilevel cervical spondylosis, severe spinal canal stenosis at the C5-6 level, central/left paracentral disc protrusion at the C3-4 level, and multilevel facet degenerative changes.

A February 2016 neurosurgical evaluation report reflects that surgical intervention for cervical stenosis was not recommended.  A March 2016 report from Dr. G. reflects tenderness and decreased range of motion.

On VA examination in August 2016, the Veteran reported that his neck hurt all the time and the pain radiated to his head.  He was evaluated by 2 surgeons, and told that he was too old for neck surgery.  He indicated that his hands and feet tingled and went numb.  He did not report flare-ups of the cervical spine.

Range of motion testing revealed forward flexion to 10 degrees, extension to 20 degrees, right and left lateral flexion each to 20 degrees, and right and left lateral rotation each to 25 degrees.  Pain was noted on examination and caused functional loss in all planes.  There was no evidence of pain with weightbearing.  Cervical spine tenderness was present.  The Veteran was able to perform repetitive use testing and there was no additional loss of function of range of motion after three repetitions.  Pain, weakness, fatigability, or incoordination did not significantly limit functional ability with repeated use over a period of time.  While the Veteran had localized tenderness, it did not result in an abnormal gait or abnormal spinal contour.

Muscle strength testing of the upper extremities was normal, and there was no muscle atrophy.  Deep tendon reflexes were normal.  A sensory examination of the upper extremities also yielded normal findings.  The Veteran did not have radicular pain or any other signs or symptoms due to radiculopathy.  No other neurological abnormalities were indicated.

The Veteran did not have ankylosis of the spine or intervertebral disc syndrome of the cervical spine.  He used a walker regularly for balance issues.  The examiner noted that recent EMG studies were not available for review.

The examiner diagnosed degenerative arthritis of the spine and degenerative disc disease of the cervical spine with cervical spinal stenosis.  

A November 2016 independent medical evaluation from Dr. M. includes a telephone interview with the Veteran, wherein he reported pain and radiation into both upper extremities.  He did experience numbness and tingling in both hands.  The examiner assessed upper extremity radiculopathy caused by the cervical condition.

The aforementioned evidence reflects that the Veteran's cervical spine disability has been manifested by consistent symptoms of pain and limited range of motion.  On VA examination in 2016, forward flexion was limited to 10 degrees, which is consistent with the 30 percent rating assigned.

However, the Board also finds that a rating in excess of 30 percent is not warranted.  In order to warrant a higher rating, there must be the functional equivalent of unfavorable ankylosis of the cervical spine or unfavorable ankylosis of the entire spine.  Ankylosis is defined as "immobility and consolidation of a joint due to disease, injury, surgical procedure." Lewis v. Derwinski, 3 Vet. App. 259 (1992) (citing Saunders Encyclopedia and Dictionary of Medicine, Nursing, and Allied Health at 68 (4th ed. 1987)); Dinsay v. Brown, 9 Vet. App. 79, 81 (1996) (Ankylosis is "stiffening or fixation of a joint as the result of a disease process, with fibrous or bony union across the joint," citing Stedman's Medical Dictionary 87 (25th ed. 1990)).  Based on the aforementioned findings, it is apparent that the Veteran's cervical/entire spine is not fixated or immobile, and the VA examiner specifically denied ankylosis.  

The Board has considered the extent that the Veteran may have additional functional impairment above and beyond the limitation of motion objectively demonstrated, such as during times when his symptoms are most prevalent ("flare-ups") due to the extent of his pain, weakness, premature or excess fatigability, and incoordination.  See DeLuca, 8 Vet. App. at 202; see also 38 C.F.R. §§ 4.40, 4.45, 4.59.  However, the Veteran denied flare-ups on examination, and while there may be periods of additional functional loss, there is no indication of the functional equivalent of ankylosis of the cervical spine.

With respect to neurological impairment, separate ratings for any other associated objective neurologic abnormalities or chronic neurologic manifestations are not warranted because neurologic findings and symptoms warranting separate ratings have not been demonstrated.  Radiculopathy of the cervical spine was not noted on VA examination in 2016.  While the physician who provided the 2016 evaluation report determined that the Veteran's cervical spine disability was productive of radiculopathy, he did not perform physical or neurological examination of the Veteran.  As indicated, many of the Veteran's symptoms related to the upper extremities have been related to his neuropathy or Parkinson's Disease.  Accordingly, the Board finds that the evidence preponderates against a finding of radiculopathy associated with the service-connected cervical spine disability.

Moreover, to the extent that the record reflects that the Veteran has neurological impairment in the upper extremities, he is already service-connected for polyneuropathy and balance impairment, bradykinesia, and tremors of the upper extremities, which accounts for these symptoms. 

The Board has considered other appropriate diagnostic codes, particularly Diagnostic Code 5243 Intervertebral Disc Syndrome.  However, there is no evidence of incapacitating episodes as contemplated by the regulation, and that such episodes had a total duration of at least 4 weeks during a 12-month period.  Accordingly a higher rating is not warranted on this basis.  

K.  All Increased Rating Claims

As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry.  See Thun, 22 Vet. App. at 111, aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  The first question is whether the schedular rating adequately contemplates the Veteran's disability picture.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Director of Compensation Service to determine whether an extraschedular rating is warranted. 

The Board acknowledges that there are no specific diagnostic criteria for several of the Veteran's Parkinson's Disease residuals.  The discussion above reflects that the symptomatology associated with the Veteran's disabilities is fully contemplated by the applicable rating criteria rated by analogy. For example, his difficulties with chewing and swallowing are considered in the criteria for stricture of the esophagus, which contemplates whether liquid diet is required.  The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. Rather, the criteria provide examples for particular ratings and the Board may consider all factors in assigning a scheduler rating.  The Board has also considered whether ratings under other diagnostic codes for the disabilities on appeal are warranted.  Therefore, referral for consideration of an extraschedular rating for the disabilities on appeal is not warranted. 38 C.F.R. § 3.321(b)(1).

Additionally, the Veteran does not allege or indicate that the collective impact or combined effect of more than one service-connected disability presented an exceptional or unusual disability picture to render inadequate the schedular rating criteria.  See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The Board acknowledges that the collective impact of his service-connected disabilities have rendered him totally disabled and unemployable, which is reflected in the assignment of a combined 100 percent rating and by an award of entitlement to individual unemployability (TDIU).  Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities in concluding that referral for consideration of an extraschedular rating is not warranted. Here, the Veteran had combined 100 percent evaluations during the course of the appeal period, with a TDIU in effect since September 2016.  These evaluations fully contemplate the combined impact and referral for extraschedular consideration is not warranted.

For the foregoing reasons, the Board finds that a uniform 70 percent rating for the Veteran's psychiatric disorder (characterized as depression with cognitive impairment of 30 percent for speech changes or PTSD), and that an increased 30 percent rating for speech changes is warranted; however, ratings in excess of those assigned for the remaining increased rating claims decided herein must be denied.  In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert, 1 Vet. App. at  55-56.


III. SMC

The Veteran contends that he is entitled to SMC on the basis of need of aid and attendance of another person.  

Under 38 U.S.C.A. § 1114(l), SMC is payable if, as the result of service-connected disability, the Veteran has an anatomical loss or loss of use of both feet, or of one hand and one foot; has blindness in both eyes with visual acuity of 5/200 or less; is permanently bedridden; or is so helpless as to be in need of regular aid and attendance of another person.  38 U.S.C.A. § 1114(l); 38 C.F.R. § 3.350(b). 

Need for aid and attendance means being so helpless as to require the regular aid and attendance of another person.  38 U.S.C.A. § 3.350(b).  Under 38 C.F.R. §°3.352(a), the following factors will be accorded consideration in determining whether the Veteran is in need of regular aid and attendance of another person: inability of the claimant to dress and undress himself or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliance; inability of the claimant to feed himself through loss of coordination of the upper extremities or through extreme weakness; inability to tend to the wants of nature; or incapacity, physical or mental, which requires care and assistance on a regular basis to protect the claimant from the hazards or dangers incident to his daily environment. 

It is not required that all the disabling conditions enumerated in 38 C.F.R. § 3.352(a) be found to exist before a favorable rating may be made.  The particular personal functions which the Veteran is unable to perform should be considered in connection with his condition as a whole.  It is only necessary that the evidence establish that the Veteran is so helpless as to need regular aid and attendance, not that there is a constant need.  38 C.F.R. § 3.352(a); see also Turco v. Brown, 9 Vet. App. 222, 224 (1996) (holding that at least one factor listed in section 3.352(a) must be present for a grant of SMC based on need for aid and attendance). 

For the purposes of 38 C.F.R. § 3.352(a), "bedridden" will be a proper basis for the determination of whether the Veteran is in need of regular aid and attendance of another person.  "Bedridden" will be that condition which, through its essential character, actually requires that the claimant remain in bed.  The fact that claimant has voluntarily taken to bed or that a physician has prescribed rest in bed for the greater or lesser part of the day to promote convalescence or cure will not suffice. 38 C.F.R. § 3.352(a).

In a September 2014 written statement, the Veteran's wife reported that the Veteran had significant gait, balance, and speech difficulties.  He could no longer write or sign his name, and needed assistance in performing basic daily functions.

In an April 2016 written statement, his wife noted that he required assistance with bathing, shaving, dressing, buttoning clothing, and tying shoelaces. He walked with a shuffling gait leaning forward, and had fallen.  He now used a walker.  She also had to prepare his food.

The above-discussed medical evidence along with the various lay statements demonstrates that the service-connected Parkinson's disease with residuals impacted the Veteran's ability to communicate, eat, and walk on his own, and caused the Veteran to require help in dressing himself, bathing, and feeding.  He used a walker due to balance issues to avoid falls.   

Accordingly, resolving reasonable doubt in the Veteran's favor, entitlement to special monthly compensation based upon the need for aid and attendance is granted.  See 38 U.S.C.A. § 1114(l); 38 C.F.R. §§ 3.159, 3.350(b)(3), 3.352(a).  

IV.  Effective Date

Pertinent to the VA laws and regulations in effect at the initiation of the appeal, a specific claim in the form prescribed by VA must be filed in order for benefits to be paid or furnished to any individual under laws administered by the VA.  38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).  In general, the effective date of an award based on an original claim or a claim reopened after final adjudication of compensation shall be fixed in accordance with the facts found, but shall not be earlier than the date of the receipt of the application.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400.  However, if the claim is received within one year after separation from service, the effective date of an award of disability compensation shall be the day following separation from active service.  38 U.S.C.A. § 5110(b)(1); 38 C.F.R. § 3.400(b)(2)(i).

"Claim" is defined broadly to include 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); Brannon v. West, 12 Vet. App. 32, 34-5 (1998); Servello v. Derwinski, 3 Vet. App. 196, 199 (1992).  Any communication or action, indicating an intent to apply for one or more benefits under laws administered by the VA from a claimant may be considered an informal claim.  Such an informal claim must identify the benefits sought.  Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution.  38 C.F.R. § 3.155(a).  To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim.  See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992).

A. Cervical Spine

In a VA Form 21-526b, Supplemental Claim for Service Connection, dated and received on May 11, 2016 the Veteran claimed service connection for a neck disability.

In a December 2016 rating decision, the RO granted service connection for degenerative disc disease of the cervical spine and assigned an effective date of the May 11, 2016 date of receipt of claim.

To the extent that Veteran is not asserting that he filed an earlier formal or informal claim prior to May 11, 2016, as noted above, the provisions of 38 U.S.C.A. § 5110(a) require that the effective date shall not be earlier than the date of receipt of application therefor.

The record does not contain evidence of any statement indicating that he was seeking service connection for a neck or cervical spine disorder prior to this date.  While the Veteran had previously filed a VA Form 21-526, Application for Compensation and/or Pension and various supplemental claims, he did not identify neck or cervical spine disorder as a claimed disability.

The Board acknowledges that the Veteran had indicated that he was treated for this condition in service.  However, "[t]he mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."  Criswell v. Nicholson, 20 Vet. App. 501, 504 (2006) (citing Brannon, 12 Vet. App. at 35).  

Overall, the Board must apply the statutory and regulatory guidelines for determining the effective date of an award of disability compensation as set forth in 38 U.S.C.A. § 5110 which essentially provides that the effective date of an award of compensation will be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor.  38 U.S.C.A. § 5110(a).  Thus, what is material in this case is when the records show that the claim for compensation for cervical spine disorder was filed, despite the fact that the Veteran may have been treated for the disability at an earlier time point.  

The applicable law and regulations clearly make it the Veteran's responsibility to initiate a claim for compensation with VA if he seeks that benefit.  While VA has a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).

The Veteran and/or his attorney has not advanced any other specific contentions in support of his claim for an earlier effective date for the award of service connection for the cervical spine disability.

As the preponderance of the evidence is against an earlier effective date for the grant of service connection for degenerative disc disease of the cervical spine with cervical spinal stenosis, the benefit-of-the-doubt doctrine is inapplicable and the claim must be denied.  38 U.S.C.A. § 5107.




B. Parkinson's Disease Residuals

In this case, the Veteran is seeking effective date earlier than December 31, 2015, for the award of service connection for Parkinson's Disease residuals including balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the right and left upper and lower extremities, difficulty chewing, urinary problems, constipation, speech changes, loss of autonomic movements of the right and left sides, stooped posture right and left sides, partial loss of smell, and depression with cognitive impairment.

The Veteran's Supplemental Claim for Compensation, VA Form 21-526b, and stamped as received at the RO on September 2, 2014, reveals that he claimed service connection for Parkinson's Disease.  

In an accompanying statement, the Veteran's wife reported that his family first noticed symptoms of Parkinson's disease approximately two years prior.  His symptoms of worsening gait and balance problems were noted about one year later.  She indicated that he had recently been diagnosed with Parkinson's disease.

Private treatment records associated with the claims file in September 2014 along with the supplemental claim for compensation include an April 2014 report from Dr. P. of Millennium Physician Group indicating that the Veteran was seen for weakness in his legs and slurred speech.  He underwent neurological examination and EMG/nerve conduction studies.

It was noted that a workup was negative and there was no underlying neuromuscular disease.  Based on clinical symptomatology, likely Parkinson's Disease was noted. 

The Veteran was subsequently afforded a VA examination in November 2014, at which time the examiner indicated that he reviewed the Veteran's private and VA treatment records.  He noted that the Veteran's private neurologist had not provided a definitive and consistent diagnosis of Parkinson's Disease.  Clinical examination revealed no tremors or cogwheel rigidity.  A review of medical literature also suggested alternative diagnosis.  He noted that the Veteran had several diagnoses that could cause gait abnormality, including severe spinal stenosis and peripheral neuropathy.  Accordingly, the examiner concluded that a diagnosis of Parkinson's Disease was less likely than not.

In a November 2014 rating decision, the RO denied the claim, finding that Parkinson's disease had not been clinically diagnosed. The Veteran submitted a notice of disagreement with this decision.

In a December 2016 rating decision, the RO granted service connection for Parkinson's Disease and all related residuals.  An effective date for each related residual of December 31, 2015 was assigned.  The RO indicated in its decision that an effective date of December 31, 2015 was assigned based on private treatment records from Dr. G. showing that a diagnosis of Parkinson's Disease was confirmed by DaT-scan on that date.

In various written statements, the Veteran reported that he was first seen in February 2014 for suspected Parkinson's Disease.  He was treated by this same physician's group from March 2014 to November 2015, and based upon the diagnosis, applied for VA disability in September 2014.  He indicated that his physician left this practice group, and he began seeing another physician who ordered the DaT scan in December 2015 only to confirm the diagnosis.  Therefore, he alleges onset of Parkinson's prior to the December 2015 scan.

"[E]ntitlement to benefits for a disability or disease does not arise with a medical diagnosis of the condition, but with the manifestation of the condition and the filing of a claim for benefits for the condition." DeLisio v. Shinseki, 25 Vet. App. 45, 56   (2011); Swain v. McDonald, 27 Vet. App. 219, 224 (2015).  Instead of assigning an effective date mechanically on the date of a Veteran was diagnosed, "all of the facts should be examined to determine the date that [the Veteran's disease] first manifested." See id. at 58. 

The Board must determine when a service-connected disability manifested itself under the all of the "facts found," including the medical opinions in question, and assign an effective date based on that evidence. See McGrath v. Gober, 14 Vet. App. 28, 35 -36 (2000). "[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date." Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010) (discussing assignment of an effective date for a reduction in disability rating under Diagnostic Code 7528).  The effective date of a service connection claim is not necessarily the date the diagnosis is made or submitted to the VA.  Rather, a medical opinion can diagnose the presence of the condition and identify an earlier onset date based on preexisting symptoms.  Young v. McDonald, 766 F.3d 1348 (Fed. Cir. 2014).

In this case, and in resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's Parkinson's disease had manifested by the time he filed his claim for service connection in September 2014.  Treatment records submitted with his claim reflect that he was evaluated for problems including gait disturbance, weakness in his legs and slurred speech earlier in 2014.  In April 2014, he was assessed with likely Parkinson's disease.  The Board acknowledges the VA opinion indicating that there was no definitive diagnosis of Parkinson's Disease in 2014; however, definitive diagnosis is not required in this case.  The establishes that the Veteran was seeking treatment and evaluation of his symptoms prior to September 2014, and the condition was later diagnosed as Parkinson's Disease.  Thus, the Board finds that the weight of the evidence establishes that the condition first manifest by the time he filed his claim.

In light of the foregoing, the Board finds that the date entitlement arose (i.e., April 2014) is arguably prior to the date of the Veteran's claim, received on September 2, 2014.  Accordingly, the Board concludes that September 2, 2014, is the proper effective date for the award of service connection for Parkinson's disease and all related residuals, including depression and cognitive disorder. 38 U.S.C.A. § 5107(b).

The Board also finds that an effective date earlier than September 2, 2014 is not warranted, given that the records does not contain any statement indicating that he was seeking service connection for Parkinson's Disease or related residuals prior to this date.  Again, applicable law and regulations clearly make it the Veteran's responsibility to initiate a claim for compensation with VA if he seeks that benefit.  While VA has a duty to assist a claimant in developing facts pertinent to a claim, it is the claimant who must bear the responsibility for coming forth with the submission of a claim for benefits under the laws administered by VA.  See 38 U.S.C.A. § 5101(a); 38 C.F.R. § 3.151(a).

The Board acknowledges that the Veteran and his wife had indicated earlier onset of symptoms.  In addition, the Veteran has submitted a report from Dr. M. dated in October 2016 reflecting his opinion that the Veteran had a psychiatric disorder, characterized as PTSD, in 1968. 

However, regardless of the alleged onset or manifestations of the disabilities, there is no indication of claim for Parkinson's Disease residuals or psychiatric disorder, and "the mere existence of medical records generally cannot be construed as an informal claim; rather, there must be some intent by the claimant to apply for a benefit."  Criswell, 20 Vet. App. at 504.  The applicable law and regulations clearly make it the Veteran's responsibility to initiate a claim for compensation with VA if he seeks that benefit.  

Accordingly, the Board finds that an effective date of September 2, 2014 for these claims, but no earlier, is warranted.

C.  DEA

The Veteran was granted basic eligibility for DEA benefits effective on December 31, 2015, based upon the finding that his service-connected disabilities had rendered him permanently and totally disabled as of that date.  

For the purposes of educational assistance under 38 U.S.C.A. Chapter 35, the child or surviving spouse of a Veteran will have basic eligibility if the following conditions are met: (1) The Veteran was discharged from service under conditions other than dishonorable, or died in service; and (2) the Veteran has a permanent total service-connected disability; or (3) a permanent total service-connected disability was in existence at the date of the Veteran's death; or (4) the Veteran died as a result of a service-connected disability.  38 U.S.C.A. §§ 3501, 3510 (West 2002); 38 C.F.R. §§ 3.807(a), 21.3021. 

Except as provided in subsections (b) and (c), effective dates relating to awards under Chapters 30, 31, 32, and 35 of this title or Chapter 106 shall, to the extent feasible, correspond to effective dates relating to awards of disability compensation.  38 U.S.C.A. § 5113. 

In this decision, the Veteran has been granted an effective date of September 2, 2014 for the award of service connection for Parkinson's Disease residuals, and thus his total compensation rating.  Therefore, an effective date of September 2, 2014 is now assignable for the grant of DEA benefits pursuant to Chapter 35.  


ORDER

Entitlement to service connection for diabetes mellitus, to include as due to exposure to herbicides, is denied.

Entitlement to service connection for hypertension is granted.

Entitlement to service connection for chronic inflammatory demyelinating polyneuropathy of the left upper extremity is granted.

Entitlement to service connection for chronic inflammatory demyelinating polyneuropathy of the right upper extremity is granted.

Entitlement to service connection for chronic inflammatory demyelinating polyneuropathy of the left lower extremity is granted.

Entitlement to service connection for chronic inflammatory demyelinating polyneuropathy of the right lower extremity is granted

Entitlement to a rating in excess of 60 percent for coronary artery disease is denied.

An initial 70 percent rating for depression with cognitive impairment, prior to May 11, 2016, is granted, subject to the law and regulations governing the award of monetary benefits.

A 70 percent rating for  percent for PTSD (previously evaluated as depression with cognitive impairment), from May 11, 2016 to September 12, 2016, is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to a rating in excess of 70 percent for PTSD from September 13, 2016, is denied.

Entitlement to an initial rating in excess of 30 percent for difficulty chewing, residual of Parkinson's Disease, is denied.

Entitlement to an initial rating in excess of 20 percent for urinary problems, residual of Parkinson's Disease, is denied.

An initial 30 percent rating for speech changes, residual of Parkinson's Disease, is granted, subject to the law and regulations governing the award of monetary benefits.

Entitlement to an initial rating in excess of 10 percent for constipation, residual of Parkinson's Disease, is denied.

Entitlement to an initial rating in excess of 10 percent for loss of autonomic movements of the left side, residual of Parkinson's Disease, is denied.

Entitlement to an initial rating in excess of 10 percent for loss of autonomic movements of the right side, residual of Parkinson's Disease, is denied.  

Entitlement to an initial rating in excess of 10 percent for stooped posture left side, residual of Parkinson's Disease, is denied.

Entitlement to an initial rating in excess of 10 percent for stooped posture right side, residual of Parkinson's Disease, is denied.

Entitlement to an initial rating in excess of 10 percent for partial loss of smell, residual of Parkinson's Disease, is denied.

Entitlement to an initial rating in excess of 30 percent for degenerative disc disease of the cervical spine with cervical spinal stenosis is denied.

Entitlement to SMC based on a need for regular aid and attendance, is granted, subject to the law and regulations governing the award of monetary benefits.

An effective date earlier than May 11, 2016 for the award of service connection of degenerative disc disease of the cervical spine with cervical spinal stenosis is denied.

An effective date of September 2, 2014, for the award of service connection for tremors and muscle rigidity of the right upper extremity, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014, for the award of service connection for tremors and muscle rigidity of the left upper extremity, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014 for the award of service connection for tremors and muscle rigidity of the right lower extremity, residual of Parkinson's Disease, is granted.

An effective date earlier than December 31, 2015, for the award of service connection for tremors and muscle rigidity of the left lower extremity, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014, for the award of service connection for difficulty chewing, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014, for the award of service connection for urinary problems, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014, for the award of service connection for constipation, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014, for the award of service connection for speech changes, residual of Parkinson's Disease, is granted.

An effective date earlier of September 2, 2014, for the award of service connection for loss of autonomic movements of the right side, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014, for the award of service connection for loss of autonomic movements of the left side, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014 for the award of service connection for stooped posture of the right side, residual of Parkinson's Disease, is granted.

An effective date of September 2, 2014, for the award of service connection for stooped posture of the left side, residual of Parkinson's Disease is granted.

An effective date of September 2, 2014, for the award of service connection for partial loss of smell, residual of Parkinson's Disease is granted.

An effective date of September 2, 2014, for the award of service connection for depression with cognitive impairment, residual of Parkinson's Disease is granted.

An effective date of September 2, 2014, for eligibility to receive Dependents' Educational Assistance under 38 U.S.C.A. Chapter 35 is granted.


REMAND

The Board review of the claims file reveals that additional development on the remaining claims is warranted.

Service Connection Claims

In regard to the claims for service connection on appeal, the law provides that VA shall make reasonable efforts to notify a claimant of the evidence necessary to substantiate a claim and requires the VA to assist a claimant in obtaining that evidence. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. Such assistance includes providing the claimant a medical examination or obtaining a medical opinion when such an examination or opinion is necessary to make a decision on a claim. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

Moreover, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303, 312 (2007).

Back

The Veteran contends that he is entitled to service connection for a back disorder, which he believes had its onset in service.

The Veteran's service treatment records reflect that he was seen in January 1968 with complaint of low back pain with limitation of range of motion.  Muscle spasm was noted on examination.  He was prescribed diathermy and back flexion exercises. 

On report of medical history at discharge, the Veteran noted swollen or painful joints, arthritis or rheumatism, and back trouble.  A notation on this report reflects that the Veteran had a back injury at age 17, with intermittent back pain since that time.  He was worked-up in Saigon in 1968 with no findings.

On March 1970 discharge examination, the spine was noted to be normal; however, on a summary of defects, chronic back pain by history was indicated.

Post-service medical records include treatment records from Dr. G. dated in 2015 reflecting that, with respect to the low back, there was no pain, spasm, or bony abnormalities, but decreased range of motion.  While cervical spondylosis, disc protrusion and degenerative changes were noted, no lumbar spine disorder was indicated.

A June 2014 report from private physician Dr. M. notes that the Veteran complained of low back pain.

On VA examination in August 2016, the Veteran reported that he always had back pain since he was in service.  He stated that he never went to the doctor about his low back pain.  

The examiner diagnosed lumbosacral strain.  In an opinion report, she noted that the diagnosis of low back condition was based on the Veteran's personal report of low back pain but with no objective evidence on examination.

She opined that the Veteran's lumbar spine condition as less likely than not was incurred in or caused by the back pain during service.  In so finding, she noted that the records showed no evidence of chronic lumbar spine condition, and there was no objective evidence that the Veteran continued to have low back condition after 1970.  Private post-service medical records did not reflect any low back condition.  

The examiner appears to base this opinion solely on the lack of contemporaneous treatment records without consideration of the Veteran's lay statements regarding the onset and continuous nature of his back complaints.  In addition, it is unclear as to whether there is an actual diagnosis of a low back disorder, given the examiner's notation that the diagnosis of strain was based only on the Veteran's self-report.

For the foregoing reasons, the Board finds that the August 2016 examination is inadequate, and an additional medical opinion is necessary to resolve the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79 (2006).

Kidney Disorder

The Veteran contends that he is entitled to service connection for a kidney as due to in-service exposure to herbicides or a secondary to service-connected disability.

The Veteran was afforded a VA examination in August 2016, at which time the examiner indicated that there was no diagnosis of kidney disorder.  The examiner did check a box indicating that the Veteran had renal dysfunction, but then did not check any box relating to applicable conditions.

In an October 2016 independent medical evaluation report, Dr. H. notes review of the Veteran's medical records, and indicated that the Veteran had elevated BUN and creatinine levels since 2010.  She noted diagnosis of "chronic kidney disease" though she did not provide a specific diagnosis. 

In a November 2016 written correspondence, the Veteran's attorney specifically alleged that the Veteran's renal dysfunction was due to his hypertension.  Given the Board's decision herein awarding service connection for hypertension, the Veteran should be afforded an examination to clarify his diagnosis and provide an opinion on the etiology of any diagnosis kidney disorder.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79 (2006).

Skin Cancer

The Veteran contends that his skin cancer is due to exposure to herbicides in service.   In the alternative, the Veteran's wife wrote a statement expressing that the disability could be related to in-service sun exposure.

Post-service private dermatology records dated from 2009 to 2014 reflect diagnosis of various skin disorders including actinic keratoses and basal cell carcinoma.  Lesions in the presence of sun-damaged skin were indicated.

While none of these skin disorders is among the disabilities recognized by VA as associated with herbicide exposure under 38 C.F.R. § 3.309(e), as noted above, the regulations governing presumptive service connection for herbicide exposure do not preclude a veteran from establishing service connection with proof of actual direct causation. See Combee, 34 F.3d at 1039. 

Given the length and nature of the Veteran's service, including service in Vietnam, and that the Veteran has not been afforded an examination regarding this claim, the Veteran should be afforded an examination to identify and provide an opinion on the etiology of any skin disorder, to include basal cell carcinoma.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159; McLendon, 20 Vet. App. 79 (2006).

Increased Rating Claims

Balance Impairment, Bradykinesia or Slowed Motion, Tremors and Muscle Rigidity of the Upper and Lower Extremities

The Veteran's service-connected impairment of the right and left upper extremities is rated as 20 and 30 percent disabling, respectively, pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8514-impairment of the musculospiral (radial) nerve.

The Veteran's service connected impairment of the right and left lower extremities are rated as 20 percent disabling pursuant to the criteria of 38 C.F.R. § 4.124a, Diagnostic Code 8521-impairment of the external popliteal nerve (common peroneal) nerve.

As noted above, the Board has determined that service connection for additional neurological impairment of the upper and lower extremities-chronic inflammatory demyelinating polyneuropathy-is warranted.  

In the October 2016 independent medical expert evaluation, Dr. H. determined that the Veteran's chronic inflammatory demyelinating polyneuropathy disability was productive of moderately severe paralysis of the sciatic nerve bilaterally, moderate paralysis of the external popliteal nerve bilaterally, moderate paralysis of the musculocutaneous nerve bilaterally, moderate paralysis of the posterior tibial nerve bilaterally, and severe to complete paralysis of the external cutaneous nerve of the right lower extremity. While she noted relevant findings in the record, she did not conduct a physical examination provide any specific rationale as to how she determined the nerved involved and the severity of impairment for each.

Moreover, a prior August 2016 VA peripheral nerves examination indicated that the musculocutaneous, sciatic, external popliteal, and posterior tibial nerves were normal, with only mild incomplete paralysis of the external cutaneous nerves bilaterally identified.

A VA medical opinion dated in December 2016 includes the examiner's opinion that the abnormalities due to the Veteran's chronic inflammatory demyelinating polyneuropathy would only be that of a decreased sensation on the part of the lower extremities bilaterally.

Given the potential additional neurological impairment stemming from the now-service connected chronic inflammatory demyelinating polyneuropathy, and the conflicting evidence regarding the nerves involved and severity of impairment, the Board believes that additional examination is warranted.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  See also Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the veteran with a thorough and contemporaneous medical examination).

In addition, a 2016 VA cervical spine examination report reflects that the Veteran underwent EMG studies in approximately August 2016 at the Cleveland Clinic at Weston.  These findings are not of record. While the matters are on remand, these and any other outstanding records of treatment should be obtained.

Effective Date

The Veteran has contended that he is entitled to an earlier effective date for the award of SMC(s) as well as the award of a TDIU.  However, given the Board's decision awarding SMC on the basis of aid and attendance, which is the greater benefit, the Board believes that these matters should be readjudicated after promulgation of the Board's decision, including determination as to whether these matters are moot.  See Bradley v. Peake, 22 Vet. App. 280 (2008) (although no additional disability compensation may be paid when a total schedular disability rating is already in effect, a separate award of TDIU predicated on a single disability may form the basis for an award of special monthly compensation (SMC)).

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c).  Expedited handling is requested.)

1.  Assist the Veteran in associating with the claims folder updated treatment records, including any records of VA treatment, as well as private treatment records-to specifically EMG studies from the Cleveland Clinic at Weston from August 2016.

2.  Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed back disorder. Any indicated tests should be accomplished. The examiner should review the record prior to examination.  

The examiner should identify all low back disorder(s)  The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability first manifest in service or within one year of discharge thereof, or is otherwise medically related to service.

The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions.

The examiner is also asked to consider and address the service treatment records documenting chronic low back pain as well as the Veteran's report of chronic low back symptoms since service.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

3.  Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed kidney disorder.  Any indicated tests should be accomplished. The examiner should review the record prior to examination.  

The examiner should identify all kidney disorder(s).  The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability (1) first manifest in service or within one year of discharge thereof, or is otherwise medically related to service; or (2) was caused by or aggravated (permanently increased in severity beyond the natural progress of the condition) by a service-connected disability to specifically include his service-connected hypertension.

The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions.

In discussing whether diagnosis of kidney disorder is warranted, the examiner is asked to specifically consider and address the findings in the October 2016 independent medical report, including diagnosis of "chronic kidney disease."

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

4.  Schedule the Veteran for a VA examination to determine the nature and etiology of the claimed skin disorder. Any indicated tests should be accomplished. The examiner should review the record prior to examination.  

The examiner should identify all skin disorder(s), to include basal cell carcinoma.  The examiner should provide an opinion as to whether it is at least as likely as not (50 percent probability or greater) that the disability first manifest in service or within one year of discharge thereof or is otherwise medically related to service, to include sun exposure or herbicide exposure therein.

The examiner is advised that the Veteran is competent to report symptoms and treatment, and that his reports must be taken into account, along with the other evidence of record, in formulating the requested opinions.

The examiner should set forth all examination findings, along with the complete rationale for any conclusions reached.

5.  The Veteran should also be afforded a VA examination to ascertain the current severity of the neurological impairment stemming from the Veteran's chronic inflammatory demyelinating polyneuropathy and balance impairment, bradykinesia or slowed motion, tremors and muscle rigidity of the bilateral upper and lower extremities. All necessary tests should be conducted.

The examiner should identify all nerves involved and indicated whether there is complete or incomplete paralysis of the nerve, and if incomplete, whether it is severe, moderately severe, moderate, or mild.

The examiner must provide a complete rationale for all the findings and opinions 

6.  After completing any additional notification or development deemed necessary, the Veteran's claims should be readjudicated.  The AOJ is asked to consider whether the issues of entitlement to an earlier effective date for the award of SMC(s) and TDIU are moot given the award of SMC on the basis of aid attendance.  If the claims remains denied, the Veteran and his attorney should be furnished with a supplemental statement of the case and afforded a reasonable opportunity for response.

The Veteran 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 2014).



______________________________________________
A. S. CARACCIOLO
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs