Citation Nr: 1751895 Decision Date: 11/14/17 Archive Date: 11/22/17 DOCKET NO. 14-05 764 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial rating in excess of 30 percent for Parkinson's disease. REPRESENTATION Veteran represented by: Jan Dils, Esq. ATTORNEY FOR THE BOARD C. J. Cho, Associate Counsel INTRODUCTION The Veteran honorably served on active duty in the United States Navy from November 1969 to November 1973. The matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina. The Veteran filed an original disability claim for Parkinson's disease that was received on November 17, 2010. In October 2011, the RO granted the claim for entitlement to service connection for Parkinson's disease associated with herbicide exposure, and assigned it an evaluation of 30 percent under Diagnostic Code 8004 (paralysis agitans), effective August 31, 2010, the effective date of the law allowing for service connection based on herbicide exposure in Vietnam. In February 2012, the Veteran filed a Notice of Disagreement with the assigned initial rating. In February 2014, the Veteran perfected his appeal with the filing of a substantive appeal of the issue of entitlement to an initial rating higher than 30 percent for Parkinson's disease. While the issue was pending on appeal, in January 2015, the RO granted service connection, effective April 15, 2014, for residuals of Parkinson's disease with: right upper extremity muscle rigidity and stiffness at an evaluation of 30 percent; left upper extremity muscle rigidity and stiffness at an evaluation of 20 percent; right lower extremity at an evaluation of 20 percent; and left lower extremity at an evaluation of 10 percent; urinary incontinence associated with Parkinson's at 40 percent; loss of sense of smell associated with Parkinson's at 0 percent; and erectile dysfunction associated with Parkinson's at 0 percent. The issue of entitlement to an initial rating higher than 30 percent for Parkinson's disease is now before the Board. Moreover, while the issue of entitlement to an initial rating in excess of 10 percent for service-connected coronary artery disease associated with herbicide exposure was pending on appeal, the RO granted the Veteran's request in its totality. See October 2013 Rating Decision. Due to the RO's grant of the Veteran's request in its totality, the Board finds moot the appeal of the issue of entitlement to an initial rating in excess of 10 percent for service-connected coronary artery disease associated with herbicide exposure. In his February 2014 substantive appeal, the Veteran requested a Board videoconference before a Veterans Law Judge. In an April 2017 written correspondence, the Veteran, by way of his representative, withdrew his hearing request. The Veteran also submitted additional medical evidence in April 2017. However, he waived RO consideration of this evidence. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND As stated above, the Veteran seeks an initial rating in excess of 30 percent for his service-connected Parkinson's disease. See February 2012 Notice of Disagreement. The ratings for Parkinson's disease, classified in VA regulations as "paralysis agitans," are assigned pursuant to 38 C.F.R. § 4.124a, DC 8004. Under this diagnostic code, a minimum 30-percent rating is assigned when there are "ascertainable residuals" of the disability; however, VA should also analyze individual symptoms under the appropriate diagnostic code for that bodily system. See 38 C.F.R. § 4.124a. If there are identifiable residuals that can be rated under a separate diagnostic code and the combined disability rating resulting from these residuals exceeds 30 percent, the separate ratings will be assigned in place of the minimum rating assigned under DC 8004. See VA Adjudication Procedures Manual M21-1, Part III.iv.4.G.8.c: Evaluating Parkinson's Disease. Neurological conditions such as Parkinson's disease are evaluated under the section of the Rating Schedule beginning at 38 C.F.R. § 4.120, conducting evaluations by comparison. 38 C.F.R. § 4.120 provides that disability in this field is ordinarily to be rated in proportion to the impairment of motor, sensory or mental function. The rater is to consider especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, injury to the skull, etc. In rating such disability, the rater is to refer to the appropriate schedule. In rating peripheral nerve injuries and their residuals, attention should be given to the site and character of the injury, the relative impairment in motor function, trophic changes, or sensory disturbances. With partial loss of use of one or more extremities from neurological lesions, the rating is by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves. 38 C.F.R. § 4.120. The provisions of 38 C.F.R. § 4.124a provide that evaluations of neurological conditions including paralysis agitans, also known as Parkinson's disease, and their residuals may also be rated from 10 to 100 percent in proportion to the impairment of motor, sensory, or mental function. Psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc. are to be considered. With partial loss of use of one or more extremities from neurological lesions, the rating is by comparison with mild, moderate, severe, or complete paralysis of peripheral nerves. As indicated above, the claim arose from an October 2011 rating decision, which granted service connection for Parkinson's disease and assigned a 30 percent disability rating, effective August 31, 2010, the effective date of the law allowing for service connection based on herbicide exposure in Vietnam. The Veteran timely filed a notice of a disagreement. Thereafter, in October 2013, the Veteran's Parkinson's disease was reexamined and the AOJ issued a statement of the case (SOC), which continued the initial 30 percent evaluation for Parkinson's disease. Subsequently, in January 2015, the RO granted service connection, effective April 15, 2014, for residuals of Parkinson's disease with: right upper extremity muscle rigidity and stiffness at an evaluation of 30 percent; left upper extremity muscle rigidity and stiffness at an evaluation of 20 percent; right lower extremity at an evaluation of 20 percent; and left lower extremity at an evaluation of 10 percent; urinary incontinence associated with Parkinson's at 40 percent; loss of sense of smell associated with Parkinson's at 0 percent; and erectile dysfunction associated with Parkinson's at 0 percent. In this decision, the RO found that the Veteran's Parkinson's disease produced a greater level of impairment, warranting separate ratings pursuant to 38 C.F.R. § 4.124a and VA's Adjudication Manual. Pursuant to A.B. v. Brown, 6 Vet. App. 35, 39 (1993), a Veteran is presumed to be seeking the maximum possible rating unless he indicates otherwise. Significantly, however, the RO's January 2015 supplemental statement of the case (SSOC) addressed only whether a rating higher than 30 percent for Parkinson's disease prior to April 15, 2014, was warranted, and not whether higher ratings for the now service-connected residuals of Parkinson's disease with right upper extremity muscle rigidity and stiffness, left upper extremity muscle rigidity and stiffness, right lower extremity, left lower extremity, urinary incontinence, loss of sense of smell, and erectile dysfunction, were warranted. Although the Court has held that an RO's award of service connection constitutes a full award of benefits on an appeal initiated by a notice of disagreement (NOD) as to a previous RO decision denying service connection and that, to the extent that a veteran disagrees with the compensation level or effective date assigned in the RO decision granting service connection, "a separate NOD [is required] in order for them to be placed in appellate status for the first time," Holland v. Gober, 10 Vet. App. 433, 436 (1997), that is not the situation here. The separate grants of service connection in this case were in fact awarded in connection with rating the disability for which the claim for a higher initial rating had been made. Consequently, the RO should have addressed in the January 2015 SSOC whether any higher ratings were warranted for any of the disabilities for which service connection had been granted as part of the initial rating for Parkinson's disease, and not only the period during which Parkinson's disease was rated under DC 8004. See 38 C.F.R §§ 19.31(b)(2), 19.37(a). Accordingly, the Board finds that remand is needed for the AOJ to consider in the first instance entitlement to higher ratings on the basis of the aforementioned disabilities throughout the entire period of the appeal. Accordingly, the case is REMANDED for the following action: 1. Readjudicate the claim for entitlement to an initial rating higher than 30 percent for Parkinson's disease, to include the appeal period from August 31, 2010, as well as the subsequent period when rated as now service connected residuals of Parkinson's disease with right upper extremity muscle rigidity and stiffness, left upper extremity muscle rigidity and stiffness, right lower extremity, left lower extremity, urinary incontinence, loss of sense of smell, and erectile dysfunction. In addition, for the appeal period prior to April 15, 2014, the RO is specifically instructed to consider all of the medical evidence of record, including the December 7, 2010 disability benefits questionnaire and the January 24, 2014 disability benefits questionnaire. 2. If any benefit sought on appeal remains denied, furnish the Veteran and his representative a SSOC and return the case to the Board. 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). _________________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2014), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2017).