Citation Nr: 1752888 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 13-34 440 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for Parkinson's disease. 2. Entitlement to a compensable disability rating for mechanical low back pain syndrome. 3. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: John P. Dorrity, Agent WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD Arif Syed, Counsel INTRODUCTION The Veteran served on active duty from October 1996 to December 1998. These matters are before the Board of Veterans' Appeals (Board) on appeal of April 2011 and February 2014 rating decisions of the Newark, New Jersey, Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims folder. Additionally, evidence has been associated with the Veteran's claims folder included with a waiver of RO consideration. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans' Claims (Court) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected mechanical low back pain syndrome renders him unable to obtain substantial gainful employment. See the January 2017 Board hearing transcript, pgs. 11-2. Accordingly, in light of the holding in Rice, the issue on appeal includes entitlement to TDIU. The appeal is REMANDED to the Agency of Original Jurisdiction (AOJ). VA will notify the Veteran if further action is required. REMAND During the above-referenced January 2017 Board hearing, the Veteran reported that he is in receipt of Social Security Administration (SSA) disability benefits. See the January 2017 Board hearing transcript, page 12. There is no indication in the record that any attempts have been made to obtain records in conjunction with the Veteran's claim for SSA disability benefits and, indeed, his SSA records are not currently in the claims file. Therefore, on remand, any determination pertinent to the Veteran's claim for SSA benefits, as well as any medical records relied upon concerning that claim, should be obtained. See Murincsak v. Derwinski, 2 Vet. App. 363, 369-70 (1992) (where VA has actual notice of the existence of records held by SSA which appear relevant to a pending claim, VA has a duty to assist by requesting those records from SSA). Additionally, during the January 2017 Board hearing, the Veteran reported that he receives current treatment for his disabilities on appeal from the VA James J. Howard (Brick, New Jersey) Community-Based Outpatient Clinic and VA Medical Center in East Orange, New Jersey. See the January 2017 Board hearing transcript, pgs. 7-8, 22. The Board observes that the most recent association of VA treatment records with the claims folder was in December 2015. As such, the Board finds that an attempt should be made to identify and associate the identified records with the Veteran's claims folder. In this regard, where VA has constructive and actual knowledge of the availability of pertinent reports in the possession of the VA, an attempt to obtain those reports must be made. See Bell v. Derwinski, 2 Vet. App. 611 (1992) (holding that documents which were not actually before the adjudicators but had been generated by VA employees or submitted to VA by claimant were, "in contemplation of law, before the Secretary and the Board and should be included in the record"). With respect to the Veteran's claim of entitlement to service connection for Parkinson's disease, he contends that this disability is related to his service, to include exposure to pesticides and treatment for tremors, cramps in his legs and arms, and swollen and painful joints. See a statement from the Veteran dated December 2013; see also the January 2017 Board hearing transcript, pgs. 17-22. The Board notes that a November 2009 VA treatment record documents the Veteran's complaints of tremors since 2001 which had worsened in the prior 2 years. He was diagnosed with Parkinson's disease in April 2011. Further, the Veteran submitted a statement from his father in which he reported that the Veteran did not have symptoms of Parkinson's disease prior to service. The Board further notes that the Veteran's service treatment records do not document treatment specifically for Parkinson's disease; however, the Veteran reported swollen joints as well as cramps in his legs on a service report of medical history dated April 1998. There is no evidence currently associated with the Veteran's VA claims folder that offers an opinion as to whether the Veteran's current Parkinson's disease manifested in service as due to the reported cramps in the legs and swollen or painful joints. In light of the foregoing, the Board is of the opinion that a VA examination would be probative in ascertaining whether the Veteran has Parkinson's disease that is related to service. See 38 C.F.R. § 3.159(c)(4) (2016) (holding a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient medical evidence to decide the claim). As to the Veteran's claim of entitlement to an increased disability rating for mechanical low back pain syndrome, the Court recently held in Correia v. McDonald, 28 Vet. App. 158 (2016) that the final sentence of 38 C.F.R. § 4.59 (2016) 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. However, this information is not found in the report from the Veteran's most recent VA examination of record for his back which is dated September 2013. Therefore, the Board finds that this issue must be remanded to provide the Veteran with a new VA examination to obtain this medical evidence. See 38 U.S.C.A. § 5103A(d) (West 2014). Finally, under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such is raised by the record. As noted in the Introduction above, it appears the Veteran has raised a claim for a TDIU based in part on his service-connected mechanical low back pain syndrome. See the January 2017 Board hearing transcript, pgs. 11-12. On remand, the AOJ should request that the Veteran submit a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his claim. Accordingly, the case is REMANDED for the following action: 1. Request the SSA to provide copies of any records pertaining to the Veteran's application for SSA disability benefits, in any, to include any medical records obtained in connection with the application. Any materials obtained should be associated with the Veteran's VA claims folder. If, after continued efforts to obtain Federal records the AOJ concludes that it is reasonably certain they do not exist or further efforts to obtain them would be futile, the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). The Veteran must then be given an opportunity to respond. 2. Request any outstanding VA treatment records pertaining to the claims remanded herein, to include treatment records dated after December 2015. All attempts to secure this evidence must be documented in the claims folder. 3. Contact the Veteran and request that he file a completed application for increased compensation based on unemployability (VA Form 21-8940), and upon receipt of this form, take any appropriate action deemed necessary to adjudicate his TDIU claim. 4. Thereafter, provide the Veteran with a VA examination to determine the etiology of his Parkinson's disease. Any indicated tests and studies should be performed. The claims folder must be reviewed by the examiner in conjunction with the examination. Based on the review and examination, the examiner is asked to render an opinion as to whether it is at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran has Parkinson's disease that is related to his service, to include his reported cramps in his legs, tingling, and swollen or painful joints. The examiner should indicate in his/her report that the claims file was reviewed. The examiner is asked to explain the reasons behind any opinions expressed and conclusions reached. 5. Schedule the Veteran for appropriate VA examination(s) to assess the manifestations of service-connected mechanical low back pain syndrome. The claims file must be reviewed in conjunction with the examination. All testing deemed necessary must be conducted and results reported in detail. Regarding the manifestations, the examiner is asked to indicate the point during range of motion testing that motion is limited by pain. The examiner should test the range of motion in active motion, passive motion, weight-bearing, and nonweight-bearing, for the lumbar spine. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should express an opinion as to whether pain or other manifestations occurring during flare-ups or with repeated use could significantly limit functional ability of the affected part. The examiner should portray the degree of any additional range of motion loss due to pain on use or during flare-ups. An adequate rationale for any conclusions reached should be provided. 6. After review of the evidence of record, readjudicate the Veteran's increased rating claim for mechanical low back pain syndrome and Parkinson's disease as well as consideration of a TDIU award. If the benefits sought on appeal are denied, in whole or in part, the Veteran and his agent should be provided a Supplemental Statement of the Case. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. See 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). _________________________________________________ H.N. SCHWARTZ 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).