Citation Nr: 20043775 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 14-38 826A DATE: June 29, 2020 REMANDED Entitlement to a rating in excess of 30 percent for service-connected Parkinson's disease is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) prior to October 30, 2014 is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1969 to May 1975. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). In September 2016, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of this proceeding is associated with the claims file. The appeal was last before the Board in April 2018, when the Veteran’s claim for an initial rating in excess of 30 percent for Parkinson’s disease was denied. The Veteran appealed the Board’s denial to the United States Court of Appeals for Veterans Claims (Court). By Order dated January 2019, the Court vacated the Board’s 2018 decision and remanded the matter to the Board for compliance with the instructions included in the 2019 Joint Motion for Partial Remand (JMPR) by the parties. In addition, in the 2018 Board decision, the matter for TDIU was referred to the Director of Compensation for consideration of an extraschedular TDIU prior to October 23, 2015. In a June 2019 memorandum from the Director, the request for extraschedular consideration was granted; thereafter, in a November 2019 rating decision, TDIU was granted retroactively effective October 30, 2014 (the date following the last reported day the Veteran worked full time) until October 22, 2015 (the day before the Veteran was previously granted TDIU on a schedular basis). However, in the June 2020 brief from the Veteran’s attorney, the Veteran argues that he should have been granted extraschedular consideration going back to November 29, 2012. Although the Board regrets the additional delay, a remand is necessary to ensure due process and proper development regarding the Veteran’s claims. 1. Parkinson’s disease. First, the Veteran seeks an increased evaluation for Parkinson’s disease. In a June 2020 brief from the Veteran’s attorney, he stated that the Veteran has had persistent neurological tremors of his hands since October 2012, arguing that his right dominant hand and left minor hand have moderate incomplete paralysis; that he has had neurological impairment in the lower extremities; that he has balance impairment such as impaired gait and balance issues; and that he has facial masking such as bradykinesia and incomplete mild cranial nerve disability. Further, the Veteran submitted a statement from Dr. P.C. in May 2020, who stated despite improvement in his symptoms with treatment, the course of his disease has been worsening and he has continued to suffer from severe bilateral upper and lower motor symptoms, and imbalance and falls. Dr. P.C. opined that the motor stiffness of the right upper and lower extremity, facial masking, loss of automatic movements, speech and balance symptoms are more likely than not direct residuals of his PD. As the Veteran has alleged worsening, and based on the private opinion from Dr. P.C., also suggesting that there is worsening, the Board finds that the claim must be remanded in order to afford the Veteran a new and more comprehensive VA examination, as the last examination was in January 2016. In addition, while the Veteran argued that he has associated manifestations from his Parkinson’s disease in his bilateral upper extremities and his bilateral lower extremities, the 2016 VA examination specifically ruled out any upper or lower left extremity issues at that time; it was also noted that “there were no tremors in [his] left upper extremity, right lower extremity, or left lower extremity”. The Board also points out that the Veteran’s initial claim of entitlement to service connection for Parkinson's Disease with tremors and sexual dysfunction was granted, and it was explained that the 30 percent encompassed the tremors and ED. Regardless of whether the Veteran's current diagnosis is Parkinson's disease, Parkinsonian tremors, and other symptoms, the Veteran is clearly service connected for a disability manifested by tremors. Therefore, the VA examination is required to adequately address all of the symptoms associated with this disorder, to include all impairment of motor, sensory, and mental function. See 38 C.F.R. § 4.124a. 2. TDIU. The Veteran has currently been assigned TDIU effective October 30, 2014, based on the date that he initially reported to VA that he had stopped working. In a June 2020 letter the Veteran’s attorney argued that the Veteran had in fact been unemployable due to service-connected disabilities since November 29, 2012. A May 2020 letter submitted from private physician P.C. stated that the Veteran’s medical problems rendered the Veteran unable to perform any sedentary or physical work beginning August 2012. The Veteran’s attorney submitted the Veteran’s Social Security Earnings Statement that purportedly show that starting in 2013, the Veteran’s wages were below the poverty threshold. Although the evidence shows the Veteran did continue to work, in at least a part-time capacity, until 2015, and he was already granted extraschedular consideration, the Board will nevertheless accept jurisdiction over this question. The RO’s 2019 decision stated this was a full grant of the benefit sought on appeal, but that is not correct since the Board remand had noted evidence prior to October 2014 suggesting unemployability, and a claimant is presumed to be seeking the full benefit, which a 2014 effective date did not provide. The Board will not proceed at this juncture since the RO did not issue a supplemental statement of the case, and due process concerns require that this be done. The matters are REMANDED for the following action: 1. Obtain VA treatment records from January 2016 to present and associate them with the claims file. 2. Schedule the Veteran for an appropriate examination to determine the current symptoms and severity associated with his service-connected Parkinson’s disease. The examiner should provide a full description of the disabilities and report all signs and symptoms necessary for evaluating his disabilities under the rating criteria. After performing an in-person examination of the Veteran, the examiner is asked to discuss all manifestations of the Veteran’s Parkinson’s disease/Parkinsonian tremors. The Board notes that this may include impairment in motor, sensory, or mental function. See 38 C.F.R. § 4.124a. A complete rationale must be provided for any opinion offered. If any question cannot be answered without resorting to pure speculation, please provide a complete explanation as to why that is so. 3. After completing the development requested above, and any other development deemed necessary, readjudicate the Veteran’s claims. This must include considering whether separate ratings are warranted for any of the manifestations of Parkinson’s disease. If any of the benefits sought are not granted in full, the agency of original jurisdiction (AOJ) should furnish the Veteran and his attorney with an SSOC and afford an opportunity to respond. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.