Citation Nr: 18151795 Decision Date: 11/20/18 Archive Date: 11/20/18 DOCKET NO. 14-31 892A DATE: November 20, 2018 ORDER Entitlement to a total disability rating based upon individual unemployability (TDIU) is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to service connection for hepatitis C is remanded. Entitlement to an initial rating in excess of 30 percent for Parkinson’s disease with impairment in the left upper extremity is remanded. Entitlement to an initial rating in excess of 20 percent for Parkinson’s disease with impairment in the left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for Parkinson’s disease with impairment in the right upper extremity is remanded. Entitlement to an initial rating in excess of 10 percent for Parkinson’s disease with impairment in the right lower extremity is remanded. FINDING OF FACT The evidence is at least evenly balanced as to whether the Veteran's service connected disabilities render him unable to secure or follow a substantially gainful occupation. CONCLUSION OF LAW With reasonable doubt resolved in favor of the Veteran, the criteria for a TDIU are met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 4.16. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1966 to January 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In June 2014, the Veteran was afforded a Decision Review Officer (DRO) hearing at the RO. A hearing transcript is of record. In August 2018, the Veteran’s representative has requested that the higher initial rating issues be remanded for an updated examination due to the reports of worsening symptoms. The Board has added the issue of entitlement to TDIU to the appeal, as it has been raised as part and parcel of the claims for higher initial rating that are on appeal. Rice v. Shinseki, 22 Vet. App. 447 (2009). There are multiple reports from the medical records that the Veteran left his longstanding job due to service-connected Parkinson’s disease symptoms. He had also filed a formal TDIU claim that was denied in August 2014, but this does not affect the Board’s jurisdiction over the issue of entitlement to a TDIU that is part and parcel of the claims for higher initial ratings that are on appeal. Entitlement to TDIU The Veteran contends that he is unable to work due to his service-connected disabilities associated with Parkinson’s disease. See July 2014 VA form 21-8940 Veterans Application for Increased Compensation Based on Unemployability. A TDIU may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that the Veteran has one service-connected disability rated at 60 percent or higher; or two or more service-connected disabilities, with one disability rated at 40 percent or higher and the combined rating is 70 percent or higher. 38 C.F.R. § 4.16(a). Throughout the claims period, the Veteran is service-connected for the following disabilities as associated with Parkinson’s disease: left upper extremity impairment, 30 percent; left lower extremity impairment 20 percent; right upper extremity, 10 percent; right lower extremity, 10 percent; and then loss of smell and erectile dysfunction, each noncompensable. His combined disability rating is 60 percent from August 2010 and 70 percent from August 2013. Since these disabilities all arise from a common etiology, Parkinson’s disease, the Veteran has met the schedular requirements for TDIU throughout the appeal period. 38 C.F.R. § 4.16(a)(2). In August 2007, Dr. T reported that he treated the Veteran for Parkinson’s disease. The Veteran’s tremor was nonresponsive to medication and severely impaired his ability to perform fine motor tasks. He characterized the Veteran as medically disabled. The February 2013 VA Disability Benefits Questionnaire (DBQ) for Parkinson’s disease stated that the Veteran was forced to retire early from work as a Master Plumber due to Parkinson’s disease. At the June 2014 DRO hearing, the Veteran reported he could no longer work in his longstanding occupation as a plumber due to Parkinson’s disease. Specifically, his tremors precluded most occupational tasks. He was not able to find another job and received a disability retirement through his union. In July 2014, the Veteran stated that he left work in February 2007. He reported being laid off due to his inability to perform common occupational tasks. The July 2014 VA Parkinson’s disease examination report included TDIU comments from examiner. He opined that the Veteran could perform occupational task involving fine motor control. However, he believed the Veteran could perform sedentary work activities. In October 2014, the Veteran’s former employer confirmed that he left in February 2007 and had worked as a plumber. Upon review, the Board finds the lay statements and additional medical evidence to be competent and credible evidence showing an inability to obtain gainful employment due to service-connected disabilities associated with Parkinson’s disease. See Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) ("neither the statute nor the relevant regulations require the combined effect [of disabilities] to be assessed by a medical expert"). There is no dispute that the Veteran has significant hand tremors caused by service-connected Parkinson’s disease. These hand tremor symptoms interfere and likely wholly preclude competitive employment as a plumber as well as any other manual labor type job. Although the July 2014 VA examiner opines sedentary employment is possible, his opinion is conclusory and not support by any evidence suggesting that alternative sedentary employment with disability accomodation is feasible. Nieves-Rodriguez, 22 Vet. App. at 304; See also Withers v. Wilkie, No. 16-1543 (Aug. 10, 2018). Overall, the evidence strongly supports a finding of unemployability due to service-connected disabilities associated with Parkinson’s disease. Caluza, 7 Vet. App. at 506.; id. For the foregoing reasons, the evidence is thus at least evenly balanced as to whether the Veteran’s service-connected disabilities preclude him from securing or following a substantially gainful occupation. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to a TDIU is warranted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. REASONS FOR REMAND Entitlement to service connection for hepatitis C June 1960 private medical records showed that the Veteran was hospitalized in part for a ruptured liver. He also underwent a splenectomy. Service treatment records (STRs) do not show any complaint or treatment for any liver disorder. Notably, the August 1965 Report of Medical History for entrance into service showed that the Veteran endorsed stomach, liver, or intestinal trouble. He described it as a split liver associated with a motor vehicle accident. Service records confirm that he was stationed in Vietnam from April 1967 to January 1968. See September 2010 Personnel Information Exchange System (PIES) report. The December 1968 separation examination was normal. January 2001 private medical records noted that the Veteran was diagnosed with hepatitis C in 1998 and was currently under treatment. In October 2010, the Veteran stated that while serving in Vietnam he lived in close quarters and shared personal items, such as razors, with others. He recalled being first diagnosed with hepatitis C around 2000. He started treatment with severe side effects. He did not have any high-risk behavior for hepatitis C. On an October 2010 VA hepatitis C risk factor notice form, the Veteran reported shot administration prior to his Vietnam deployment and shared toothbrushes and shaving razors while serving in Vietnam as his risk factors. In January 2011, the Veteran was afforded a VA hepatitis C examination. The Veteran reported attempting to donate blood and being informed he had hepatitis C. The military risk factors were noted as shared toothbrushes and shaving razors as well as a 1967 blood transfusion. Clinical evaluation showed the Veteran to be asymptomatic. The examiner diagnosed hepatitis C status post treatment. He expressed a negative medical opinion. He cited the 1960 spleenectomy and absence of documentation for the reported high-risk factors from military service. In the February 2011 notice of disagreement (NOD), the Veteran reported that he had an undocumented blood transfusion while serving in Vietnam as part of injury treatment. He stated that the first indication of hepatitis occurred in 1984 when he attempted to donate blood and he was notified about his blood irregularities. In May 2013, the Veteran’s wife reported that he was first notified of a blood problem in 1984 when attempting to donate blood. The Veteran is competent to report his risk factor history for hepatitis C. Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Service department records confirmed that the Veteran served in the Republic of Vietnam. His reports about sharing toothbrushes and razors as well as undocumented blood exposure from medical treatment in the field are plausible. See 38 U.S.C. § 1154(a); 38 C.F.R. § 3.303(a) (each disabling condition for which a veteran seeks service connection must be considered based on factors including the basis of places, types, and circumstances of service as shown by service record). The Board finds him highly credible in his reports of military risk factors and denial of other risk factors. Caluza v. Brown, 7 Vet. App. 498, 506 (1995) (VA adjudicators may properly consider internal inconsistency, facial plausibility and consistency with other evidence submitted on behalf of the Veteran in weighing evidence). The evidence weighing against the claim are the reports of surgical treatment prior to service and January 2011 VA medical opinion. The Board notes the prior surgical treatment as a risk factor, but there is no clear medical opinion elevating it as a greater risk factor than the military risk factors reported by the Veteran. This is precisely the limitation to the January 2011 VA medical opinion. The VA examiner does not provide any supporting medical explanation as to why the pre-service surgery is a greater risk factor and the likely cause of hepatitis C. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed); Id. He simply rejects the Veteran’s competent and credible reports of military events due to an absence of documentation. Buchanan v. Nicholson, 451 F.3d 1331, 1336, n.1 (Fed. Cir. 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). Thus, the negative medical opinion and other evidence is inadequate to decide the claim and a remand for a new opinion is warranted. Entitlement to higher initial disability ratings for impairments in the left upper extremity, right upper extremity, left lower extremity and right lower extremity as associated with Parkinson’s disease are remanded. It appears that the Veteran is primarily treated for Parkinson’s disease by Dr. L, who is affiliated with the University of Michigan hospital. (See October 2018 VA primary care records; July 2014 VA Form 21-4142 Authorization for Release of Information). Notably, in this authorization the Veteran reports that he recently visited Dr. L and directly submitted the private medical records in June 2014. However, the record shows that the most recent private medical records from Dr. L are from January 2013. In July 2014, the Veteran submitted another authorization for the release of private medical records from Dr. L. In December 2014, the University of Michigan Hospital and Health Centers informed VA that it would not release the Veteran’s medical records due to insufficient authorization. The Veteran should be afforded another opportunity to submit updated private medical records from Dr. L. Then, an updated VA Parkinson’s disease examination is warranted. The most recent VA Parkinson’s disease examination is from July 2014. The representative has requested an updated VA examination citing the May 2018 and June 2018 statements that the Parkinson’s disease symptoms have worsened. The matters are REMANDED for the following action: 1. Inform the Veteran that the most recent medical records from Dr. L are from January 2013. Furnish an authorization form for the release of private medical records to obtain private medical records from Dr. L from January 2013 to the present. Alternatively, advise the Veteran that he may directly submit any private medical records to VA. 2. Request an opinion from a VA physician as to the etiology of the Veteran’s hepatitis C. The physician should indicate whether the Veteran’s hepatitis C is related to his military service, to include his blood transfusion and sharing of toothbrushes and razors. (Continued on the next page)   3. Schedule the Veteran for a VA examination to evaluate the severity of his service-connected impairments in the left upper extremity, right upper extremity, left lower extremity and right lower extremity as associated with Parkinson’s disease. The record must be made available to, and be reviewed by the examiner, and the examination report should note that review. Any indicated evaluations, studies, and tests should be conducted. The examination should be conducted in accordance with the current disability benefits questionnaire. Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD C. D. Simpson, Counsel