Citation Nr: 1817088 Decision Date: 03/19/18 Archive Date: 03/30/18 DOCKET NO. 13-03 506 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to higher disability ratings for manifestations of Parkinson's disease. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to January 8, 2015. 3. Entitlement to a special monthly compensation (SMC) for loss of use of a creative organ REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD I. Cannaday, Associate Counsel INTRODUCTION The Veteran had active naval service from November 1969 to November 1973 This case comes before the Board of Veterans' Appeals (Board) on appeal from a November 2010 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Board previously remanded the case for further development in April 2015. The case has since been returned to the Board for appellate review. The Board notes that the issues of entitlement to service connection for a psychiatric disorder, and eligibility to Dependents' Educational Assistance under 38 U.S.C. Chapter 35 prior to January 8, 2015, were discussed in an April 2017 supplemental statement of the case (SSOC). However, it does not appear that a notice of disagreement or statement of the case has been filed for the above issues. Therefore, the Board does not have jurisdiction to decide those issues, and they are referred to the AOJ for appropriate action. The issues of entitlement to a TDIU prior to January 8, 2015, and entitlement to SMC for loss of use of a creative organ are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to November 4, 2011, the Veteran's left upper extremity neurological impairment associated with Parkinson's disease was manifested by moderate incomplete paralysis of the upper radicular group. 2. Beginning November 4, 2011, the Veteran's left upper extremity neurological impairment associated with Parkinson's disease has been manifested by severe incomplete paralysis of the upper radicular group. 3. Prior to January 8, 2015, the Veteran's left lower extremity neurological impairment associated with Parkinson's disease manifested in mild incomplete paralysis of the sciatic nerve. 4. Beginning January 8, 2015, the Veteran's left lower extremity neurological impairment associated with Parkinson's disease has been manifested by moderately-severe incomplete paralysis of the sciatic nerve. 5. The Veteran's loss of sense of smell associated with Parkinson's disease has been manifested in a complete loss of sense of smell. 6. The Veteran's loss of automatic facial movements associated with Parkinson's disease is manifested in moderate incomplete paralysis. 7. The Veteran's speech changes associated with Parkinson's disease did not manifest in a constant inability to speak above a whisper. 8. The Veteran's constipation associated with Parkinson's disease manifested in moderate disturbances of bowel function with occasional episodes of abdominal distress. 9. The Veteran's erectile dysfunction associated with Parkinson's disease manifested in a loss of erectile power, but not a deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for left upper extremity neurological impairment associated with Parkinson's disease are not met prior to November 4, 2011. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8510 (2017). 2. The criteria for a 40 percent rating, but not higher, for left upper extremity neurological impairment associated with Parkinson's disease are met beginning November 4, 2011. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8510 (2017). 3. The criteria for an initial rating in excess of 10 percent for left lower extremity neurological impairment associated with Parkinson's disease are not met prior to a January 8, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2017). 4. The criteria for a rating of 40 percent, but not higher, for left lower extremity neurological impairment associated with Parkinson's disease are met beginning January 8, 2015. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8520 (2017). 5. The criteria for an initial rating in excess of 10 percent loss of sense of smell associated with Parkinson's disease are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.87a, Diagnostic Code 6275 (2017). 6. The criteria for an initial rating in excess of 10 percent for loss of automatic facial movements associated with Parkinson's disease are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.124a, Diagnostic Code 8207 (2017). 7. The criteria for an initial compensable rating for speech changes associated with Parkinson's disease are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6519 (2017). 8. The criteria for an initial rating of 10 percent, but not higher, for constipation associated with Parkinson's disease are met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.114 Diagnostic Code 7319 (2017). 9. The criteria for an initial compensable rating for erectile dysfunction associated with Parkinson's disease are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.115b Diagnostic Code 7522 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the Veteran was granted service connection for Parkinson's disease in November 2010, the minimum 30 percent rating was assigned under Diagnostic Code 8004, effective December 28, 2009. In a June 2015 rating decision, the diagnostic code used to evaluate the Veteran's Parkinson's disease was updated to 38 C.F.R. § 4.124a, Diagnostic Code 8510, so as to better reflect the Veteran's symptoms of left upper extremity neurological impairment. The original 30 percent rating was continued under Diagnostic Code 8510, and a higher rating of 40 percent was assigned, effective January 8, 2015. Also in the June 2015 rating decision, the Veteran was awarded entitlement to separate ratings for additional complications associated with his Parkinson's disease, to include left lower extremity neurological impairment, loss of sense of smell, automatic facial movements, erectile dysfunction, constipation, and speech changes. The Veteran was assigned a 10 percent rating for left lower extremity neurological impairment, effective December 28, 2009; a 10 percent rating for loss of sense of smell, effective January 8, 2015; a 10 percent rating for automatic facial movements, effective January 8, 2015; a noncompensable rating for erectile dysfunction, effective April 29, 2015; and a noncompensable rating for constipation, effective April 29, 2015. The Veteran's combined rating for his Parkinson's disease and associated complications was 40 percent prior to January 8, 2015, and 60 percent beginning January 8, 2015. The Veteran asserts that the combined rating for his Parkinson's disease and associated complications should be higher. Turning to the pertinent evidence of record, a January 2010 treatment record noted that the Veteran had a persistent nagging left upper extremity resting tremor. In that same treatment note the Veteran stated that he recently fell because of his shuffling gait. The doctor noted that the Veteran's gait was normal, but his gait did worsen when his medication wore off. The Veteran was afforded a VA examination in March 2010. Initially, the examiner noted that the Veteran was right hand dominant. The Veteran reported a tremor in his left hand, and an internal tremor in his left leg. The examiner observed that his left hand tremor disappeared with movement, and that there was no observable tremor in his left leg. The Veteran denied left leg weakness, and he did not have symptoms in the right upper or lower extremities. There was no indication of significant memory or cognitive impairment. The examiner found that the Veteran did not have any muscle wasting or atrophy, no cogwheel rigidity, and no bradykinesia. The Veteran's gait was not shuffling, freezing, or festination. His handgrip strength was 5 out of 5, and his motor function of the lower extremities was 5 out of 5 against resistance. A March 2010 treatment record again noted left hand resting tremors, which had slowly progressed over time and involved mild slowness, stiffness, and difficultly with control. The record also noted left leg resting tremors. Again, no tremor, rigidity, or slowness of the right side was noted. A November 2010 treatment record noted that the Veteran's stance, gait, and stride length were appropriate for his age. It was noted that the Veteran could stand on his toes and heels and tandem walk without problem. However, it was noted he had decreased arm swing with tremor on the left side. A March 2011 treatment record noted full extra ocular movements and normal facial symmetry; however, there was a jaw tremor. Further that the Veteran had left-sided Parkinson's that was responsive to medication. A November 2011 treatment record noted that the Veteran reported that his left foot tremor had become more prominent, dexterity in his left hand was worse, and he was generally stiffer throughout his left side. The doctor noted that his gait had been largely unchanged, but had been limited by his left knee pain. November 2012 treatment records noted that the Veteran had dragging of his left foot, increased drooling, and trouble finding words. Additionally, he had a symmetrical face, but a jaw tremor was present. The Veteran had reduced gait, bradykinesia, and a reduced left upper arm swing. Moreover, the Veteran stated that his left hand slowness and left side coordination had gotten worse. In February 2013, the Veteran submitted a statement that his disability had gotten worse. Specifically, that he experienced an increase in left side tremors, and that he had lost coordination on his left side. He further reported that he had trouble carrying on a conversation, that he drooled, and that he lashed out in his sleep. Similarly, in February 2013, the Veteran's wife stated that she was a nurse and that she had noticed changes in the Veteran's symptoms. Specifically, that the Veteran had more of a shuffling gait, that his balance was shaky, that he had issues with speaking, and that he had difficulty swallowing. She also reported that the Veteran's tremors in his left arm and leg were worse. In that regard, she stated that the Veteran had become uncoordinated with using simple tools, and that he had difficulty using a can opener. Moreover, she reported that his mouth twitched and that he did not sleep well. Additionally, in February 2013 the Veteran's daughter stated that the Veteran's speech was affected by his Parkinson's disease, that he was forgetful, and that he had left side tremors. She stated that the Veteran had difficulty typing on a computer, because he lacked strength in his left hand. She stated that the Veteran could not cut his own food into pieces. She also stated that the Veteran had difficulty grasping tools and turning wrenches. The Veteran provided an April 2014 Parkinson's Disability Benefits Questionnaire (DBQ). It was noted that the DBQ was completed by chart review and the Veteran was not examined at that time. Based on the chart review, the Veteran did not have stooped posture or balance impairment. He was found to have moderate bradykinesia, mild loss of automatic movements, and mild speech changes. He had mild tremors in his left upper extremity. He had mild muscle rigidity and stiffness in his left upper and lower extremities. He did not have any depression, or cognitive impairment. The Veteran did not have a loss of sense of smell, sleep disturbances, difficulty swallowing, constipation, sexual dysfunction, or other complications. Another Parkinson's DBQ was provided in January 2015. At that time, the Veteran was examined by his treatment provider for completion of the DBQ. The Veteran was noted to have mildly stooped posture, moderate bradykinesia, moderate loss of automatic movements, and mild speech changes. He had moderate tremors in his left upper and lower extremities, and none in his right extremities. He had no muscle rigidity or stiffness. He had mild depression, with no cognitive impairment. He had a complete loss of sense of smell, moderate sleep disturbances, and mild constipation. He did not have difficulty swallowing, sexual dysfunction, or other complications. The examiner noted that the Veteran experienced difficulty with dexterity and was at risk of injuring himself as a result of his poor balance. In February 2015, the Veteran's wife reported that his Parkinson's disease affected his mental status and word finding, and caused stammering and difficulty with concentration. She reported that he had a shuffling gait, that he lost his balance, and that he could not stand for any length of time. She stated that he had violent nightmares, that he had difficulty swallowing, and that his drooling had increased. An April 2015 treatment record noted that the Veteran reported that he had difficulty in word finding, and that his difficulty had gradually increased in the last 6 months. He reported he reported some difficulty using utensils when eating, due to his tremors. The Veteran was afforded a VA examination in April 2015. On examination, the Veteran did not have stooped posture. He was found to have mild balance impairment, mild bradykinesia, moderate loss of automatic movements, and moderate speech changes. He had moderate left upper extremity tremors, mild left lower extremity tremors, and none in his right extremities. He had moderate muscle rigidity in his left upper extremity, mild muscle rigidity in his left lower extremity, and no muscle rigidity and stiffness in his right extremities. He had mild depression, with no cognitive impairment. He had a complete loss of sense of smell, moderate sleep disturbances, moderate constipation, and moderate sexual dysfunction. He did not have difficulty swallowing, urinary problems, or other complications. As discussed above, the medical evidence shows that the Veteran is right-hand dominant. For rating purposes, the left arm will be rated under the criteria for the "minor" upper extremity. The Board finds that the Veteran is not entitled to an initial rating in excess of 30 percent for left upper extremity neurological impairment associated with Parkinson's disease prior to November 4, 2011. In that regard, there is no indication from the record that the Veteran's left upper extremity neurological impairment was worse than moderate. The Veteran was noted to have a tremor on multiple occasions, but the tremor was noted to be responsive to medication and only occurred when the Veteran's hand was not in motion. There is no indication from the record that the Veteran had difficulty performing everyday tasks as a result of his left arm tremor prior to November 4, 2011. Therefore, the Board finds that entitlement to an initial rating in excess of 30 percent for left upper extremity neurological impairment associated with Parkinson's disease prior to November 4, 2011, is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2017). The Board finds that the Veteran is entitled to a rating of 40 percent for left upper extremity neurological impairment associated with Parkinson's disease beginning November 4, 2011, the date of the treatment record in which it was first indicated that the Veteran's symptoms had increased in severity. The record reflects that the Veteran's left upper extremity showed severe, incomplete paralysis of the upper radicular group. In that regard, the record reflects that the Veteran had worsened coordination, difficulty cutting his own food, and had difficulty performing simple tasks such as using a can opener, and using utensils. Therefore, the Board finds that the Veteran is entitled to a 40 percent rating for left upper extremity neurological impairment associated with Parkinson's disease beginning on November 4, 2011. 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2017). Consideration has been given to assigning a higher rating for left upper extremity neurological impairment associated with Parkinson's disease beginning November 4, 2011. However, there is no indication from the record that the Veteran's tremor causes complete paralysis of the arm. The Veteran's left shoulder and elbow movements are not severely affected or prevented. Therefore, a rating in excess of 40 percent beginning November 4, 2011, for left upper extremity neurological impairment associated with Parkinson's disease is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8510 (2017). The Board finds that the Veteran is not entitled to a rating in excess of 10 percent for his left lower extremity neurological impairment associated with Parkinson's disease for the period prior to January 8, 2015. In his regard, for that period, the Veteran's left lower extremity tremor was no worse than mild. It was consistently noted that the tremor was not visible and it did not impact the Veteran's balance or propulsion. Therefore, a rating in excess of 10 percent for left lower extremity neurological impairment associated with Parkinson's disease prior to January 8, 2015, is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). The Board finds that the Veteran is entitled to a rating os 40 percent for left lower extremity neurological impairment associated with Parkinson's disease beginning January 8, 2015. In this regard, the Board notes that in the January DBQ submitted by the Veteran's treatment provider, it was noted that he had a moderate tremor in his left lower extremity. Additionally, the Veteran was noted to be at risk of hurting himself as a result of his loss of balance. Therefore, the Veteran's left lower extremity tremor had begun to impact his balance and propulsion. As such, a rating of 40 percent is warranted for left lower extremity neurological impairment associated with Parkinson's disease for the period beginning January 8, 2015. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). Consideration has been given to assigning a higher rating for left lower extremity neurological impairment associated with Parkinson's disease for the period beginning January 8, 2015. However, there is no indication from the record that the Veteran's left lower extremity tremor was severe in nature with marked muscular atrophy. In fact, there does not appear to be muscle atrophy present and there is no indication that the Veteran's tremor results in symptoms consistent with a foot drop, or natural motion of the knee. Therefore, a rating in excess of 40 percent for left lower extremity neurological impairment associated with Parkinson's disease for the period beginning January 8, 2015, is not warranted. 38 C.F.R. § 4.124a, Diagnostic Code 8520 (2017). The Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent loss of sense of smell associated with Parkinson disease. In that regard, the evidence of record does not show that the Veteran had a complete loss of sense of smell until January 8, 2015. In fact, shortly before then, in April 2014, the Veteran was found to not have a loss of sense of smell. Further, the 10 percent rating is the maximum schedular rating for loss of sense of smell. Therefore, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for loss of sense of smell. 38 C.F.R. § 4.87a, Diagnostic Code 6275 (2017). The Board finds that the Veteran is not entitled to a rating in excess of 10 percent loss of automatic facial movements associated with Parkinson's disease. In that regard, the evidence of record does not show that the Veteran had an incomplete, severe loss of automatic facial movement at any point during the appeal. In fact, both the January 2015 and April 2015 examiners found the Veteran's loss of automatic facial movements to be moderate. Therefore, the Board finds that the Veteran is not entitled to an initial rating in excess of 10 percent for loss of automatic facial movements. 38 C.F.R. § 4.124a, Diagnostic Code 8207 (2017). The Board acknowledges that there is some indication from the record that the Veteran has a mouth twitch prior to January 8, 2015. However, in the April 2014 DBQ, it was specifically noted that the Veteran only had mild loss of automatic facial movements. Therefore, a compensable rating for loss of automatic facial movements was not warranted prior to the findings made in the January 2015 DBQ and as such, a separate compensable rating was not warranted prior to January 8, 2015. 38 C.F.R. § 4.124a, Diagnostic Code 8207 (2017). The Board finds that the Veteran is entitled to an initial 10 percent rating for constipation associated with Parkinson's disease. In that regard, the April 2015 VA examiner specifically noted that the Veteran experienced moderate constipation, which is contemplated by the 10 percent rating assigned for bowel disturbances. Therefore, the Board finds that an initial 10 percent rating for constipation associated with Parkinson's disease is warranted. 38 C.F.R. § 4.114, Diagnostic Code 7319 (2017). The Board acknowledges that there is evidence of record indicating that the Veteran had constipation associated with his Parkinson's disease prior to April 2015. However, the record shows that the symptoms were mild prior to April 2015, and as such, do not warrant a separate compensable rating prior to that date. Therefore, entitlement to a separate compensable rating for constipation associated with Parkinson's disease was not warranted prior to April 29, 2015. 38 C.F.R. § 4.114, Diagnostic Code 7319 (2017). The Board finds that the Veteran is not entitled to an initial compensable rating for speech changes associated with Parkinson's disease. In that regard, the record does not reflect that Veteran had a constant inability to speak above a whisper. Therefore, the Board finds that the Veteran is not entitled to an initial compensable rating for speech changes associated with Parkinson's disease. 38 C.F.R. § 4.97, Diagnostic Code 6519 (2017). The Board finds that the Veteran is not entitled to an initial compensable rating erectile dysfunction associated with Parkinson's disease. In that regard, there is no indication from the record that the Veteran has penis deformity. Therefore, the Veteran is not entitled to an initial compensable rating for erectile dysfunction associated with Parkinson's disease. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2017). A footnote to 38 C.F.R. § 4.115b, Diagnostic Code 7522 indicates that review for entitlement to a special monthly compensation (SMC) for loss of use of a creative organ should be taken. Accordingly, such review should be undertaken by the RO in accordance with the remand section below. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, to include an extraschedular rating for manifestations of Parkinson's disease. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017). ORDER Entitlement to an initial rating in excess of 30 percent for left upper extremity neurological impairment associated with Parkinson's disease prior to November 4, 2011, is denied. Entitlement to a rating of 40 percent, but not higher, for left upper extremity neurological impairment associated with Parkinson's disease beginning November 4, 2011, is granted. Entitlement to an initial rating in excess of 10 percent for left lower extremity neurological impairment associated with Parkinson's disease prior to January 8, 2015, is denied. Entitlement to a rating of 40 percent, but not higher, for left lower extremity neurological impairment associated with Parkinson's disease beginning January 8, 2015, is granted. Entitlement to an initial rating in excess of 10 percent for loss of sense of smell associated with Parkinson's disease is denied. Entitlement to an initial rating in excess of 10 percent for loss of automatic facial movements associated with Parkinson's disease is denied. Entitlement to an initial compensable rating for speech changes associated with Parkinson's disease is denied. Entitlement to an initial rating of 10 percent, but not higher, for constipation associated with Parkinson's disease is granted. Entitlement to an initial compensable rating for erectile dysfunction associated with Parkinson's disease is denied. REMAND Initially, as explained in the decision section above, the Veteran has been assigned a noncompensable rating for sexual dysfunction 38 C.F.R. § 4.115b, Diagnostic Code 7522. It is reiterated that the footnote thereunder for review of entitlement to a SMC under § 3.350 for loss of use of a creative organ should be taken. Accordingly, the AOJ shall undertake such review. The Board notes that the Veteran is seeking entitlement to a TDIU prior to January 8, 2015. A review of the record shows that prior to that date, the Veteran did not meet the schedular criteria for assignment of a TDIU. However, in the decision above, the Board granted entitlement to increased ratings for several of the Veteran's service-connected complications of Parkinson's disease. Therefore, the Board finds that the issue of entitlement to a TDIU prior to January 8, 2015, should be readjudicated following the implementation of the Board's decisions above. In the event that the ratings assigned for the service-connected disabilities do not cause the Veteran to meet the schedular criteria for assignment of a TDIU for the entire appellate period, the Board concludes that the facts of this case meet the criteria for submission of the Veteran's claim to the Director of Compensation Service for consideration of entitlement to a TDIU on an extraschedular basis. Therefore, such development should be conducted as appropriate. Additionally, current treatment records should be identified and obtained before a decision is made with regard to the remaining issues on appeal. Accordingly, the case is REMANDED for the following action: 1. Perform any development deemed necessary, to include providing any appropriate VA examination(s), to help ascertain whether the Veteran has loss of use of a creative organs as a result of Parkinson's disease. 2. Then, the issue of entitlement to additional SMC should be adjudicated. 3. Following implementation of the Board's decisions above, the issue of entitlement to a TDIU prior to January 8, 2015, should be readjudicated. In the event that the Veteran does not meet the schedular criteria for assignment of a TDIU for the entire appellate period, the Veteran claim should be referred to the Director of Compensation Service for consideration of whether a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16 (b). 4. If the decisions are adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then return the claim to the Board. The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). These claims 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. §§ 5109B, 7112 (2012). ______________________________________________ Kristin Haddock Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs