Citation Nr: 18142415 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-16 476 DATE: October 15, 2018 ORDER Entitlement to an initial compensable disability rating for facial masking due to Parkinson's disease is denied. Prior to March 6, 2018, entitlement to an initial disability rating in excess of 20 percent for tremors of the left upper extremity is denied. On and after March 6, 2018, entitlement to an initial disability rating of 40 percent for tremors of the left upper extremity is granted. Entitlement to an initial disability rating in excess of 30 percent for tremors of the right upper extremity is denied. On and after October 3, 2014, a total disability rating based on individual unemployability (TDIU) is granted. REMANDED The claim of entitlement to a TDIU prior to October 3, 2014, is remanded. FINDINGS OF FACT 1. The Veteran’s facial masking due to Parkinson’s disease is not productive of disability approximating moderate incomplete paralysis of the seventh (facial) cranial nerve. 2. Prior to March 6, 2018, the Veteran’s tremors of the left upper extremity were productive of disability approximating mild incomplete paralysis of the lower radicular group. 3. On and after March 6, 2018, the Veteran’s tremors of the left upper extremity are productive of disability approximating moderate incomplete paralysis of the lower radicular group. 4. For the entire appeal, the Veteran’s tremors of the right upper extremity have not been productive of disability approximating more than moderate incomplete paralysis of the lower radicular group. 5. On and after October 3, 2014, the Veteran’s service-connected disabilities render him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for facial masking due to Parkinson's disease have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.123, 4.124a, Diagnostic Codes (DCs) 8004, 8207 (2018). 2. Prior to March 6, 2018, the criteria for an initial disability rating in excess of 20 percent for tremors of the left upper extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.123, 4.124a, DCs 8004, 8512 (2018). 3. On and after March 6, 2018, the criteria for an initial disability rating of 40 percent for tremors of the left upper extremity have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.123, 4.124a, DCs 8004, 8512 (2018). 4. The criteria for an initial disability rating in excess of 30 percent for tremors of the right upper extremity have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.123, 4.124a, DCs 8004, 8512 (2018). 5. On and after October 3, 2014, the criteria for a TDIU are met. 38 U.S.C. 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.340, 3.341, 4.3, 4.15, 4.16 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1968 to August 1971. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2011 rating decision by a Department of Veterans Affairs (VA) Regional Office. The Veteran testified before the undersigned Veterans Law Judge in a March 2018 hearing. A transcript of the hearing is of record. If the claimant or the record reasonably raises the question of whether the veteran is unemployable due to a disability for which an increased rating is sought, then part and parcel to that claim for an increased rating is whether a TDIU as a result of that disability is warranted. Rice v. Shinseki, 22 Vet. App. 447 (2009). During the hearing, the Veteran testified that his disabilities rendered him unable to secure or follow substantially gainful employment. Therefore, the Board assumes jurisdiction over the issue of entitlement to a TDIU. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4 (2018). The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2018). When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3 (2018). In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2018). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where an appeal is based on an initial rating for a disability, however, evidence contemporaneous with the claim and the initial rating decision are most probative of the degree of disability existing when the initial rating was assigned and should be the evidence “used to decide whether an original rating on appeal was erroneous.” Fenderson v. West, 12 Vet. App. 119, 126 (1999). In either case, if later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). When adjudicating a claim for an increased initial evaluation, the relevant time period is from the date of the claim. Moore v. Nicholson, 21 Vet. App. 211, 215 (2007), rev’d in irrelevant part, Moore v. Shinseki, 555 F.3d 1369 (2009). The Board notes that 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, III.iv.4.G.8.c and M21-1, III.iv.4.G.5.b. Here, separate ratings have been assigned for the Veteran’s residual tremors and fascial masking, among other manifestations. 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. 1. Entitlement to an initial compensable disability rating for facial masking due to Parkinson's disease The Veteran’s fascial masking due to Parkinson’s disease is evaluated under DC 8207. Under DC 8207, a 10 percent rating is warranted for moderate incomplete paralysis of the seventh (facial) cranial nerve. A 20 percent rating is warranted for severe incomplete paralysis. Complete paralysis of the seventh (facial) cranial nerve warrants a 30 percent evaluation. 38 C.F.R. § 4.124a. The words “slight,” “moderate” and “severe” as used in the various diagnostic codes are not defined in the VA Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all of the evidence, to the end that its decisions are “equitable and just.” 38 C.F.R. § 4.6 (2018) Though the appeal period extends back to August 2006, the earliest indication of record of facial paralysis was in a VA brain and spinal cord examination conducted in January 2010. Then, cranial nerves were found to be intact, but slight facial masking was noted. The evidence is otherwise silent regarding the Veteran’s facial masking. The Veteran did describe symptoms of Parkinson’s during the March 2018 hearing. However, these symptoms appear to be more attributable to his difficulty chewing, speech changes, and bilateral cranial nerve XI impairment. In a March 2018 rating decision, service connection was granted for these disorders, and impairment attributable to those conditions will not be considered in the instant appeal. After a thorough review of the record, the Board finds that a compensable evaluation for facial masking is not warranted. Simply put, though the Veteran has demonstrated slight facial masking in the January 2010 VA examination, there is nothing of record to suggest that there is disability approximating moderate incomplete paralysis. As such, entitlement to a compensable disability rating for facial masking due to Parkinson’s disease is denied. 2. Entitlement to initial disability ratings in excess of 20 percent for tremors of the left upper extremity and in excess of 30 percent for tremors of the right upper extremity The Veteran is in receipt of an initial disability rating of 30 percent for the right upper extremity (minor). He is in receipt of an initial disability rating of 20 percent for the left upper extremity tremors (major). The Veteran’s ratings have been in effect since August 2006. In an August 2006 statement, the Veteran asserted he had peripheral neuropathy in both arms and tremors in the right forearm. The Veteran’s tremors of the upper extremities have been evaluated under DC 8512. Diagnostic Code 8512 provides that mild incomplete paralysis of the lower radicular group warrants a 20 percent rating on the major side and a 20 percent rating on the minor side. Moderate incomplete paralysis warrants a 40 percent rating on the major side and 30 percent on the minor side. Severe incomplete paralysis warrants a 50 percent rating on the major side and 40 percent on the minor side. Complete paralysis of the lower radicular group warrants the maximum 70 percent rating on the major side and 60 percent on the minor side. 38 C.F.R. 4.124a, Diagnostic Code 8512. As it pertains to peripheral nerve disabilities, the term “incomplete paralysis” indicates a degree of lost or impaired function substantially less than the type pictured for complete paralysis given with each nerve. When the involvement is wholly sensory, the rating is for the mild, or at most, the moderate degree. 38 C.F.R. § 4.124a. VA provided a peripheral nerves examination in February 2007. His basic complaint was tremors in the right hand for approximately one year. The Veteran also indicated that drinking coffee or feeling stressed would cause the fine tremors in the right hand. A physical examination did not show a tremor. The examiner noted that the Veteran was taking medication to control his tremors, however. Of record is a June 2007 letter from Dr. SB, the Veteran’s private neurologist. The doctor indicated that the Veteran had Parkinson disease with tremors presenting in his right thumb, spreading into his right hand and arm. Another letter dated in July 2009 indicated that the Veteran had rigidity bilaterally but greater in the right side. There was no significant resting tremor. In a brain and spinal cord VA examination conducted in January 2010, a physical examination showed the Veteran’s complaint of left hand tremors. The tremors would increase throughout the day when he tired. Right hand tremors were also noted. In a March 2018 VA examination for Parkinson’s disease, the examiner found that the Veteran had moderate tremors in the bilateral upper extremities. During the March 2018 hearing, the Veteran reported that he was unable to trust his right upper extremity due to the tremors. Regarding his left upper extremity, he testified that he was no longer able to write. He indicated that tremors in the left hand were slightly worse than the right. After a thorough review of the record, the Board finds that an initial disability rating in excess of 30 percent for tremors of the right upper extremity associated with Parkinson’s disease is not warranted. Simply put, the evidence does not demonstrate disability approximating disability more severe than moderate. The VA examination conducted in February 2007 did not show a tremor, though the Veteran was taking medication. A June 2007 letter from his private neurologist did indicate that the Veteran’s right thumb, hand, and arm, experienced tremors, and this letter appears to reflect the extent of his disability at that time. The VA examination conducted in March 2018 showed moderate tremors, and the Veteran’s almost-contemporary hearing testimony indicated that his symptoms had largely remained the same since they began. Thus, the preponderance of the evidence is against a finding that the Veteran’s right upper extremity tremors are more severe than moderate. Accordingly, a disability rating in excess of 30 percent is not warranted. Regarding the Veteran’s left upper extremity tremors, the Board finds that an increased disability rating of 40 percent is warranted on and after March 6, 2018, the date the VA examination was conducted showing the Veteran had moderate tremors of the right upper extremity. Because disability approximating severe incomplete paralysis of the Veteran’s right upper extremity is not shown, a higher disability rating is not warranted. Prior to the VA examination conducted on March 6, 2018, the evidence does not demonstrate disability approximating anything more than mild incomplete paralysis of the left upper extremity. The VA examination conducted in February 2007 did not mention left upper extremity tremors. Similarly, the June 2007 letter from Dr. SB does not indicate that the Veteran’s left side had been affected. The January 2010 VA examination showed left sided tremors in the upper extremities that were worse than the right side. However, the earliest indication that the tremors were of a moderate severity was in the March 6, 2018 VA examination. As such, a disability rating in excess of 20 percent for left upper extremity tremors prior to March 6, 2018, must be denied. 3. Entitlement to a TDIU The Board remands the Veteran’s claim of entitlement to a TDIU prior to October 3, 2014, in the instant decision. Thus, there will be no discussion of the Veteran’s disabilities prior to that date. VA will grant TDIU when the evidence shows that a veteran is precluded, by reason of service-connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. TDIU is granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining of gainful employment. If there is only one such disability, it must be rated at least 60 percent disabling to qualify for benefits based on individual unemployability. 38 C.F.R. § 4.16(a). If there are two or more such disabilities, there shall be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). Entitlement to a total rating must be based solely on the impact of service-connected disabilities on the ability to keep and maintain substantially gainful employment. 38 C.F.R. §§ 3.340, 3.341, 4.16. The central inquiry is “whether the veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Where these percentage requirements are not met, entitlement to benefits on an extraschedular basis may be considered when a veteran is unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities, and consideration is given to the veteran’s background including his employment and educational history. 38 C.F.R. §§ 3.321(b), 4.16(b). The Board does not have the authority to assign an extraschedular TDIU rating in the first instance. Bowling v. Principi, 15 Vet. App. 1 (2001). Rather, the issue must be referred to the Director of Compensation Service for such assessment in the first instance. Kuppamala v. McDonald, 27 Vet. App. 447, 457 (2015). Thereafter, the Board has jurisdiction to review the entirety of the Director’s decision denying or granting an extraschedular rating and is authorized to assign an extraschedular rating when appropriate. Kuppamala, 27 Vet. App. at 457. For VA purposes, the term unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGPREC 75-91, 57 Fed. Reg. 2,317 (Jan. 21, 1992). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). A high rating in itself is recognition that the impairment makes it difficult to obtain or keep employment, but the ultimate question is whether the veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. Van Hoose, 4 Vet. App. at 363. The ability to work sporadically or obtain marginal employment is not substantially gainful employment. 38 C.F.R. § 4.16(a); Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). Marginal employment, i.e., earned annual income that does not exceed the poverty threshold for one person, is not considered substantially gainful employment. 38 C.F.R. § 4.16(a). On and after October 3, 2014, the Veteran’s service-connected PTSD is either evaluated as 50 percent or 70 percent disabling. The Veteran also is in receipt of numerous ratings for residual symptoms of his Parkinson’s disease. From October 3, 2014, he is in receipt of a 30 percent evaluation for tremors of the right upper extremity and a 20 or 40 percent evaluation for tremors of the left upper extremity, as detailed above. His combined disability rating as of October 3, 2014, is 70 percent. In addition, his combined disability rating is total on and after December 19, 2016, due to numerous residual complications of Parkinson’s becoming service-connected as of that date. Thus, the percentage requirements for a TDIU are met as of October 3, 2014, because the Veteran has two or more service-connected disabilities, one of which is rated as 40 percent disabling, and his combined disability evaluation is at least 70 percent. 38 C.F.R. § 4.16(a). The only remaining consideration is whether the Veteran is unemployable as a result of his service-connected disabilities from October 3, 2014. The Board finds that he is. In an October 2014 VA examination, the examiner acknowledge that the Veteran had experienced trouble at his most recent job prior to retiring due ot physical limitations related to Parkinson’s disease. The examiner noted that the Veteran would be employable from a psychological perspective, however, as he was able to tolerate the normal stress, interpersonal interactions, and schedule inherent in any employment setting. Since then, the Veteran’s assigned disability rating indicates that his psychiatric disorder has worsened, as indicated by the rating increase from 30 percent to 50 percent, effective October 3, 2014, and increase to 70 percent from December 19, 2016. However, it is clear that the Veteran is precluded from employment primarily by his Parkinson’s disease. As indicated in his March 2018 hearing, the Veteran is no longer able to write legibly and is otherwise impaired by numerous residual complications of his Parkinson’s disease. In addition, in a July 2009 correspondence, the Veteran’s private neurologist opined that the Veteran is 100 percent disabled by his Parkinsonism. The letter, which detailed a recent visit in March 2009, indicated that the Veteran had flexed posture, with loss of associated movement, and hypophonic speech. He had impaired motor testing. The Board accords the opinion of the Veteran’s private neurologist significant probative weight in finding that the Veteran’s service-connected disabilities combine to preclude substantially gainful employment on and after October 3, 2014. From that date, a TDIU is warranted. REASONS FOR REMAND Entitlement to a TDIU prior to October 3, 2014 The Veteran’s service-connected disabilities do not meet the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) prior to October 3, 2014. However, as shown in the July 2009 letter from Dr. SB, the evidence suggests he cannot work due to symptomatology associated with his service-connected Parkinson’s disease. The Veteran’s claim for TDIU prior to October 3, 2014, is being remanded and referred to VA’s Director of Compensation Service for extraschedular consideration. This matter is REMANDED for the following action: (CONTINUED ON NEXT PAGE) Refer the Veteran’s claim for TDIU prior to October 3, 2014, to VA’s Director of Compensation Service for extraschedular consideration. BARBARA B. COPELAND Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Steve Ginski, Associate Counsel