Citation Nr: 21002786 Decision Date: 01/14/21 Archive Date: 01/14/21 DOCKET NO. 18-03 140 DATE: January 14, 2021 ORDER Entitlement to an effective date of April 21, 2004, but not earlier, for the award of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU rating) is granted. The appeal seeking entitlement to an initial evaluation in excess of 40 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, prior to April 22, 2016, is dismissed. The appeal seeking entitlement to an evaluation in excess of 20 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, from April 22, 2016 to February 19, 2020, is dismissed. The appeal seeking entitlement to an evaluation in excess of 40 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, since February 19, 2020, is dismissed. The appeal seeking entitlement to an initial evaluation in excess of 10 percent for speech impairment, due to Parkinson's disease, is dismissed. The appeal seeking entitlement to an initial evaluation in excess of 10 percent for right cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, is dismissed. The appeal seeking entitlement to an initial evaluation in excess of 10 percent for left cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, is dismissed. The appeal seeking entitlement to an initial evaluation in excess of 30 percent for balance impairment, due to Parkinson's disease, is dismissed. The appeal seeking entitlement to an effective date prior to August 31, 2010, for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, is dismissed. The appeal seeking entitlement to an effective date prior to August 31, 2010, for speech impairment due to Parkinson’s disease is dismissed. The appeal seeking entitlement to an effective date prior to August 31, 2010, for left cranial nerve impairment resulting in stooped posture due to Parkinson’s disease is dismissed. The appeal seeking entitlement to an effective date prior to August 31, 2010, for right cranial nerve impairment resulting in stooped posture due to Parkinson’s disease is dismissed. The appeal seeking entitlement to an effective date prior to August 31, 2010, for the grant of service connection for balance impairment due to Parkinson’s disease is dismissed. FINDINGS OF FACT 1. Since April 21, 2004, the Veteran’s service-connected posttraumatic stress disorder (PTSD) with cognitive and sleep impairment due to Parkinson’s disease precluded him from securing and following substantially gainful employment. 2. In January 2020, the Veteran’s representative submitted correspondence indicating that Veteran was seeking entitlement to a TDU rating from April 4, 2004; and that a grant of this benefit would be considered a full satisfaction of all remaining issues in his current pending appeal. CONCLUSIONS OF LAW 1. The criteria for an effective date of April 21, 2004, but not earlier, for the award of a TDIU rating are met. 38 U.S.C. § 5107; 38 C.F.R. § 3.400. 2. The appeal for entitlement to an initial evaluation in excess of 40 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, prior to April 22, 2016, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 3. The appeal for entitlement to an evaluation in excess of 20 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, from April 22, 2016 to February 19, 2020, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 4. The appeal for entitlement to an evaluation in excess of 40 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, since February 19, 2020, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 5. The appeal for entitlement to an initial evaluation in excess of 10 percent for speech impairment, due to Parkinson's disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 6. The appeal for entitlement to an initial evaluation in excess of 10 percent for right cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 7. The appeal for entitlement to an initial evaluation in excess of 10 percent for left cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 8. The appeal for entitlement to an initial evaluation in excess of 30 percent for balance impairment, due to Parkinson's disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 9. The appeal for entitlement to an effective date prior to August 31, 2010, for the grant of service connection for speech impairment, due to Parkinson’s disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 10. The appeal for entitlement to an effective date prior to August 31, 2010, for the grant of service connection for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 11. The appeal for entitlement to an effective date prior to August 31, 2010, for the grant of service connection for right cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 12. The criteria for an earlier effective date for the grant of service connection for left cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 13. The appeal for entitlement to an effective date prior to August 31, 2010, for the grant of service connection for balance impairment, due to Parkinson’s disease, has been rendered moot and is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1964 to January 1978. For his meritorious service, the Veteran was awarded (among other decorations) the Vietnam Campaign Medal and the Vietnam Service Medal. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2016 and March 2017 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). In December 2019, the Board remanded this matter for additional evidentiary development. The RO subsequently obtained updated treatment records and the requested VA examinations to determine the severity of the Veteran’s conditions related to Parkinson’s disease. The Board finds these actions to be in substantial compliance with the Board’s remand directives. See Stegall v. West, 11 Vet. App. 268 (1998) (holding that a remand confers on the claimant, as a matter of law, the right to compliance with the remand order); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that substantial, rather than strict, compliance with remand directives is required). In April 2020, the RO issued a rating decision which granted separate 10 percent evaluations for the Veteran’s left and right cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease (formerly stooped posture due to Parkinson’s disease). The April 2020 decision also awarded an earlier effective date of August 31, 2010, for the award of service connection for the Veteran’s bradykinesia, tremors, and muscle rigidity of the right upper extremity, speech impairment, bilateral cranial nerve impairment, and balance impairment, due to Parkinson’s disease. It further granted an earlier effective date of August 31, 2010, for the award of a TDIU rating. The RO’s April 2020 decision further granted service connection for multiple other disabilities associated with the Veteran’s Parkinson’s disease. The Veteran has not contested the initial evaluations or effective dates assigned to these conditions, and they are not before the Board. 1. Entitlement to an effective date prior to August 31, 2010, for the grant of entitlement to a TDIU rating. Unless otherwise provided, the effective date of an award of increased rating shall be fixed in accordance with the facts found but shall not be earlier than the date of receipt of the application therefor. 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(o)(1). The Board notes that the effective date of an award of increased compensation may be established at the earliest date as of which it is factually ascertainable that an increase in disability had occurred, if the application for an increased rating is received within one year from that date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In claims for increased disability compensation, including a claim for a TDIU rating, the effective date will be the earliest date as of which it is factually ascertainable that an increase in disability has occurred, if a claim is received by VA within one year after that date. Otherwise, the effective date will be the date of receipt of claim or date entitlement arose, whichever is later. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). In August 2017, the RO issued a rating decision which, in pertinent part, granted service connection at a 70 percent initial evaluation for PTSD with cognitive and sleep impairment, due to Parkinson’s disease, effective April 21, 2004. The Veteran filed a timely appeal of this decision claiming that he should have been awarded a TDIU rating as of that same date. Rice v. Shinseki, 22 Vet. App. 447, 452 (2009). Here, the earliest date on which the Veteran meets the preliminary schedular criteria for entitlement to a TDIU rating is April 21, 2004. As of that date the Veteran was in receipt of a 70 percent evaluation for PTSD with cognitive and sleep impairment, due to Parkinson’s disease. The Board also finds, based upon a longitudinal review of the Veteran’s claims file, that he was unemployable as of April 21, 2004 due to the impact this service-connected disability. On his Application for Increased Compensation Based on Unemployability, VA Form 21-8940, the Veteran indicated that he was last employed as an electrician in January 1991. He also reported that he had completed high school. An October 2003 VA mental health evaluation noted the Veteran’s complaints of flashbacks, nightmares, hypervigilance, increased startle response, depression, jerking limbs all night long, and difficulty. The report concluded with a diagnosis of depression, not otherwise specified, and assigned him a Global Assessment of Functioning (GAF) score of 45. VA treatment reports from that time forward noted his difficulties in coping with stress and anxiety and poor reactionary response, including frequent nightmares, avoidance of other people and crowds, and increased startle response. An August 2006 VA treatment report noted his complaints of nightmares, difficulty sleeping and restless legs. The report listed an assessment of coping with illness and stress, and listed a GAF score of 45. In October 2004, the Veteran underwent a VA examination for PTSD. The report noted the Veteran’s complaints of having a bad temper, irritability, hypervigilance, suspiciousness, flashbacks, nightmares, and extreme difficulty sleeping. The report noted that the Veteran was currently unemployed and had been so since 1993. The report indicated that the Veteran has problems with social functioning in that he has a short fuse and is easily angered. The Veteran also endorsed intrusive thoughts about his stepdaughter, whom he feels is trying to get him. An April 2004 statement from the Veteran noted his complaints of PTSD, depression, sleep disorder, trouble concentrating, and extreme drowsiness. At his May 2007 Board hearing, the Veteran testified that he exhibits hypervigilance and has great difficulty getting adequate sleep. He also reported that he was sleeping with a pistol. The Veteran’s spouse testified that he would get up in the middle of the night and walk around, and that he would investigate any noise with a stick in his hand. She indicated that he has nightmares and flashbacks from service. He also exhibits a jerking movement which hasn’t yet been diagnosed. Resolving all doubt in favor of the Veteran, the Board concludes since April 21, 2004, the Veteran’s service-connected PTSD with cognitive and sleep impairment due to Parkinson’s disease has precluded him from securing and following substantially gainful employment. Thus, the claim is granted such that an effective date of April 21, 2004, but no earlier, is awarded. This date corresponds to the date of receipt of the claim, and is the earliest date allowable herein. Moreover, the effective date of TDIU rating cannot predate the effective date of service connection of the disability upon which the rating is based. Therefore, an effective date earlier than April 21, 2004, the date on which the Veteran established service connection for PTSD with cognitive and sleep disorder, cannot be granted under the applicable regulations. Accordingly, entitlement to an earlier effective date of April 21, 2004, for TDIU benefits is granted. DISMISSAL OF REMAINING ISSUES 2. The appeal seeking entitlement to an initial evaluation in excess of 40 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, prior to April 22, 2016, is dismissed. 3. The appeal seeking entitlement to an evaluation in excess of 20 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, from April 22, 2016 to February 19, 2020, is dismissed. 4. The appeal seeking entitlement to an evaluation in excess of 40 percent for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, since February 19, 2020, is dismissed. 5. The appeal seeking entitlement to an initial evaluation in excess of 10 percent for speech impairment, due to Parkinson's disease, is dismissed. 6. The appeal seeking entitlement to an initial evaluation in excess of 10 percent for right cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, is dismissed. 7. The appeal seeking entitlement to an initial evaluation in excess of 10 percent for left cranial nerve impairment resulting in stooped posture, due to Parkinson’s disease, is dismissed. 8. The appeal seeking entitlement to an initial evaluation in excess of 30 percent for balance impairment, due to Parkinson's disease, is dismissed. 9. The appeal seeking entitlement to an effective date prior to August 31, 2010, for bradykinesia, tremors, and muscle rigidity, right upper extremity, due to Parkinson’s disease, is dismissed. 10. The appeal seeking entitlement to an effective date prior to August 31, 2010, for speech impairment due to Parkinson’s disease is dismissed. 11. The appeal seeking entitlement to an effective date prior to August 31, 2010, for right cranial nerve impairment resulting in stooped posture due to Parkinson’s disease is dismissed. 12. The appeal seeking entitlement to an effective date prior to August 31, 2010, for left cranial nerve impairment resulting in stooped posture due to Parkinson’s disease is dismissed. 13. The appeal seeking entitlement to an effective date prior to August 31, 2010, for the grant of service connection for balance impairment due to Parkinson’s disease is dismissed. In January 2020, the Veteran’s representative submitted correspondence indicating that Veteran was seeking entitlement to a TDIU rating from April 21, 2004; and that this would be considered a full satisfaction of all remaining issues currently on appeal. The representative noted that, if that benefit were granted, the Veteran would then withdraw “all of his currently pending appeals. The Board’s decision above has granted entitlement to a TDIU rating, effective from April 21, 2004. Pursuant to his representative’s statement, the Board is thus dismissing all remaining appeals. Importantly, the January 2020 letter meets all criteria for a valid withdrawal of these appeals, as it contains the Veteran’s name, his file number, a clear statement of intention to withdraw these claims, and is signed by the Veteran’s representative. Under these circumstances, the Board concludes that the Veteran has been awarded all benefits sought on appeal. As such, the issues on appeal have been rendered moot, and they are dismissed. 38 U.S.C. § 7104 (providing that the Board decides actual "questions in a matter"); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Evan M. Deichert Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board W. Yates, 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.