Citation Nr: 21002933 Decision Date: 01/19/21 Archive Date: 01/19/21 DOCKET NO. 13-34 440 DATE: January 19, 2021 ORDER Entitlement to service connection for Parkinson’s disease is denied. Entitlement to a compensable disability rating for mechanical low back pain syndrome is denied. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. Parkinson’s disease did not manifest in service or within one year of separation and is not attributable to service. 2. The Veteran’s service-connected mechanical low back pain syndrome does not result in current symptoms. 3. The Veteran’s service-connected disabilities in the aggregate preclude him from securing and following a substantially gainful occupation. CONCLUSIONS OF LAW 1. Parkinson’s disease was not incurred in or aggravated by service and may not be presumed to have been incurred therein. 38 U.S.C. §§ 1101, 1110, 1112, 1113 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2019). 2. The criteria for a compensable disability rating for mechanical low back pain syndrome are not met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.71a, Diagnostic Code 5237 (2019). 3. The criteria for a TDIU have been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 1996 to December 1998. These matters are before the Board of Veterans’ Appeals (Board) on appeal of April 2011 and February 2014 rating decisions of a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing has been associated with the claims folder. During the January 2017 Board hearing, the VLJ clarified the issues on appeal; clarified the concept of service connection, increased rating, and TDIU claims; identified potential evidentiary defects which included a nexus between the Veteran’s Parkinson’s disease and service, the severity of the Veteran’s mechanical low back pain syndrome, and the effect of the Veteran’s service-connected disabilities on employability; clarified the type of evidence that would support the Veteran’s claim; enquired as to the existence of potential outstanding records; and held the record open for 60 days to allow for the submission of additional evidence. Thus, the actions of the VLJ comply with any related duties owed during a hearing set forth in 38 C.F.R. § 3.103. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans’ Claims (Court) held, in substance, that every claim for a higher evaluation includes a claim for TDIU where the Veteran claims that his service-connected disability prevents him from working. In this case, the Board notes that the Veteran has put forth statements indicating that he believes his service-connected mechanical low back pain syndrome renders him unable to obtain substantial gainful employment. See the January 2017 Board hearing transcript, pgs. 11-2. Accordingly, in light of the holding in Rice, the issue on appeal includes entitlement to TDIU. The Board remanded the claims on appeal in November 2017. The Veteran’s claims folder has returned to the Board for further appellate consideration. Service connection for Parkinson’s disease Veterans are entitled to compensation from VA if they develop a disability “resulting from personal injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty.” 38 U.S.C. § 1110 (wartime service), 1131 (peacetime service). To establish a right to compensation for a present disability, a veteran must show: “(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service”-the so-called “nexus” requirement. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed.Cir. 2004). Paralysis agitans is a chronic disease The Board notes that the Veteran has not claimed that his Parkinson’s disease on appeal is the result of combat with the enemy. Therefore, the combat provisions of 38 U.S.C. § 1154 (2012) are not for consideration. The Veteran had no foreign service. He is not service connected for a traumatic brain injury. After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2019). In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the United States Court of Appeals for Veterans Claims (Court) stated that “a veteran need only demonstrate that there is an ‘approximate balance of positive and negative evidence’ in order to prevail.” To deny a claim on its merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran contends that he has Parkinson’s disease that is related to his service, to include exposure to pesticides and treatment for tremors, cramps in his legs and arms, and swollen and painful joints. See a statement from the Veteran dated December 2013; see also the January 2017 Board hearing transcript, pgs. 17-22. The Board notes that the Veteran’s service treatment records do not specifically document Parkinson’s disease; however, the Veteran reported swollen joints as well as cramps in his legs on a service report of medical history dated April 1998. Moreover, the Veteran is competent to report exposure to pesticides during service. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The Board notes that a November 2009 VA treatment record documents the Veteran’s complaints of tremors since 2001 which had worsened in the prior 2 years. He was diagnosed with Parkinson’s disease in April 2011. Additionally, a February 2020 VA examination report notes a finding of Parkinson’s disease with date of diagnosis from 2010. Further, the Veteran submitted a statement from his father in which his father reported that he did not have symptoms of Parkinson’s disease prior to service. The Board has carefully evaluated the evidence and, for reasons stated immediately below, finds that a preponderance of the competent and probative evidence of record is against a finding that the Veteran’s Parkinson’s disease is related to his service. Specifically, the Veteran was provided a VA examination in February 2020. The VA examiner noted in particular the Veteran’s report of in-service cramps in the legs, tingling, and swollen or painful joints. After examination of the Veteran and consideration of his medical history, another VA examiner noted in a September 2020 report a finding of Parkinson’s disease and concluded that it is less likely than not that the Veteran’s Parkinson’s disease was incurred in service. The VA examiner’s rationale for her conclusion was based on her finding that the Veteran’s in-service report of swollen painful joints and cramps in legs was attributable to bilateral knee pain due to chondromalacia and bilateral stress fractures. She further indicated that there was no documented evidence of tremors or any other signs or symptoms related to Parkinson’s disease during service. She also noted that people usually develop Parkinson’s disease around age 60 or older as opposed to the Veteran’s age during service. The September 2020 VA examiner’s opinion was based upon thorough analysis of the Veteran’s entire history. See Bloom v. West, 12 Vet. App. 185, 187 (1999) [the probative value of a physician’s statement is dependent, in part, upon the extent to which it reflects “clinical data or other rationale to support his opinion”]. Additionally, the VA examiner’s opinion is consistent with the Veteran’s documented medical history, which is absent any report of Parkinson’s disease in-service or for multiple years thereafter. The Veteran has not submitted a medical opinion to contradict the VA examiner’s opinion that his current Parkinson’s disease is not related to service. The Veteran has been accorded ample opportunity to present competent medical evidence in support of his claim. He has not done so. See 38 U.S.C. § 5107(a) (2012) [it is the claimant’s responsibility to support a claim for VA benefits]. In relevant part, 38 U.S.C. § 1154(a) (2012) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Board notes statements from the Veteran and his father indicating the Veteran’s current Parkinson’s disease is related to service. To the extent the Veteran and his father assert that his current Parkinson’s disease is related to his service, they are competent to report that he has a current diagnosis (as that is documented in the record). They are also competent to report that he has had symptoms since service. However, the Veteran’s April 1998 separation examination revealed normal findings that are inconsistent with Parkinson’s disease and although the Veteran reported swollen or painful joints and cramps in legs on his report of medical history in conjunction with the separation examination, the probative evidence shows that is related to the Veteran’s service-connected chondromalacia of the knees. The Board also finds that the Veteran’s and his father’s statements do not outweigh the opinion of the VA examiners who provided a thorough examination of the Veteran, considered the Veteran’s medical history and thereafter indicated that the Veteran’s current Parkinson’s disease is not related to service. Thus, these arguments do not outweigh the specific findings of the VA examiners who are skilled neutral professionals. In short, the more credible and probative evidence establishes that the Veteran’s Parkinson’s disease was not manifest during service. Here, Parkinson’s disease was not “noted,” diagnosed or manifest during service or within one year of separation. He did not have characteristic manifestations enough to identify the disease entity during that time frame. Rather, the more probative medical evidence reflects an onset around 2001 at the earliest. For the reasons and bases expressed above, the Board finds that the preponderance of the evidence is against the Veteran’s claim of entitlement to service connection for Parkinson’s disease. The benefit sought on appeal is accordingly denied. Evaluation of mechanical low back pain syndrome Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 4.3 (2019). The Veteran’s entire history is reviewed when making disability evaluations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of “staged rating” is required. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When a disability has undergone varying and distinct levels of severity during the appeal, it is appropriate to apply staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). VA regulations set forth at 38 C.F.R. §§ 4.40, 4.45, and 4.59 provide for consideration of functional impairment due to pain on motion when evaluating the severity of a musculoskeletal disability. If feasible, these determinations are to be expressed in terms of the degree of additional range-of-motion loss due to any weakened movement, excess fatigability, incoordination, or pain. DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Johnston v. Brown, 10 Vet. App. 80, 84-5 (1997); 38 C.F.R. § 4.59 (2019). Moreover, joint testing is to be conducted on both active and passive motion, in weight-bearing and non-weight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Correia v. McDonald, 28 Vet. App. 158, 170 (2016). Based on reported symptomatology, and consistent with Diagnostic Code 5243, the Board will consider the Veteran under both the General Rating Formula for Diseases and Injuries of the Spine and the Formula for Rating Intervertebral Disc Syndrome. The General Rating Formula for Diseases and Injuries of the Spine provides that with or without symptoms such as pain, stiffness, or aching in the area of the spine affected by residuals of injury or disease, the following ratings will apply. A 100 percent rating is warranted for unfavorable ankylosis of the entire spine. A 50 percent rating is warranted for unfavorable ankylosis of the entire thoracolumbar spine. A 40 percent rating is warranted when forward flexion of the thoracolumbar spine is 30 degrees or less; or, favorable ankylosis of the entire thoracolumbar spine. A 20 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 30 degrees, but not greater than 60 degrees; or, the combined range of motion of the thoracolumbar spine is not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. Note (1): Evaluate any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, separately, under an appropriate diagnostic code. Under the formula for rating intervertebral disc syndrome based on incapacitating episodes, the following ratings will apply. A 60 percent rating is warranted with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. A 40 percent rating is warranted with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months. A 20 percent rating is warranted with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months. A 10 percent rating is warranted with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months. Note (1): For purposes of evaluating under diagnostic code 5243, an incapacitating episode is a period of acute signs and symptoms due to intervertebral disc syndrome that requires bed rest and prescribed by a physician and treatment by a physician. The Board acknowledges the Veteran’s report of symptoms associated with his mechanical low back pain syndrome. He has reported pain and functional impairment that limits his ability to perform chores such as mowing the lawn and carrying heavy objects. See, e.g., the January 2017 Board hearing transcript, page 14. However, the evidence of record during the period under consideration reveals that the Veteran does not have symptoms attributable to his mechanical low back pain syndrome. Specifically, on VA examination in September 2013, the examiner documented findings of back pain, lumbar degenerative disc disease, and degenerative joint disease. Range of motion testing revealed forward flexion to 70 degrees, extension to 25 degrees, right and left lateral flexion to 30 degrees or greater, and right and left lateral rotation to 25 degrees, all with no objective evidence of painful motion. The Veteran was able to perform repetitive motion testing with three repetitions that did not result in additional loss of motion. The examiner did not document localized tenderness or pain to palpation for joints and/or soft tissue of the back or guarding or muscle spasm of the back. Pertinently, in an addendum opinion dated November 2013, the examiner noted that the Veteran was diagnosed with mechanical low back pain in 1998, but there were several entries in 2009 indicating that the Veteran did not have any low back pain at that time. The Veteran subsequently began to experience low back pain again and that the time of the VA examination had symptoms and some limitation of motion. The examiner then opined that it is more likely than not that these symptoms are due to the Veteran’s nonservice-connected lumbar degenerative disc disease and degenerative joint disease rather than the service-connected mechanic low back pain. The Board also notes that on VA examination dated February 2020, the examiner documented a diagnosis of degenerative arthritis of the spine and disc bulges. The Veteran reported constant back pain and use of a brace on a regular basis. Range of motion testing revealed forward flexion to 44 degrees, extension to 21 degrees, right lateral flexion to 16 degrees, left lateral flexion to 21 degrees, right lateral rotation to 16 degrees, and left lateral rotation to 22 degrees. Pain was noted on examination but did not result in or cause functional loss. The Veteran was able to perform repetitive motion testing with three repetitions that did not result in additional loss of motion. There was no evidence of pain with passive range of motion, weight bearing, nonweight bearing, guarding, or muscle spasm of the back. There was no finding of ankylosis. The examiner thereafter opined in a June 2020 addendum opinion that he agreed with the examiner who provided the November 2013 opinion that the Veteran does not currently evidence any symptoms due to only to the service-connected mechanic low back pain syndrome. His rationale was similarly based on his finding that the Veteran’s in-service injuries to the back were minor and resolved with no chronic condition. Based on the foregoing, the Board finds that the most probative evidence weighs against a finding that the criteria have been met for a higher disability rating for the Veteran’s mechanical low back pain syndrome. As discussed above, a 10 percent rating is warranted for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range of motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or vertebral body fracture with loss of 50 percent or more of the height. However, the Veteran does not currently evidence symptoms due to the service-connected mechanic low back pain syndrome. On the contrary, his current back symptoms are due to his nonservice-connected lumbar degenerative disc disease and degenerative joint disease. The Board finds the VA opinion reports discussed above which indicated such to be of great probative value as to whether the Veteran currently has symptoms attributable to the mechanic low back pain syndrome. The Board further notes that there are no medical findings contrary to these VA opinions during the appeal period. The Board has considered the Veteran’s statements that he has symptoms and functional impairment attributable to the service-connected mechanical low back pain syndrome. See DeLuca, supra. The Veteran is competent to provide evidence of that which he experiences, including his symptomatology and medical history. Layno v. Brown, 6 Vet. App. 465, 469 (1994). However, competence must be distinguished from probative weight. Although the Veteran is competent to relate what he experiences through the senses, the lay evidence is lacking in detail to support the conclusion that there are current symptoms and functional impairment attributable to the service-connected mechanical low back pain syndrome. The Veteran’s lay assertions are therefore afforded less probative weight, and less credibility than the VA opinions. Accordingly, a 10 percent disability rating of the Veteran’s mechanical low back pain syndrome is not warranted. The Board also finds that a higher rating is not warranted at any period under consideration under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes. As discussed above, the Board finds that the Veteran’s report of symptoms is not due to his mechanical low back pain syndrome. Therefore, the Veteran’s lumbar spine disability does not warrant an increased disability rating alternatively under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes at any time during the course of this appeal. Here, the manifestations have been distinguished and the provisions of 38 C.F.R. § 4.14 are applicable. TDIU Total disability ratings for compensation based on individual unemployability 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 a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Where these percentage requirements are not met, entitlement to the benefits on an extraschedular basis may be considered when the veteran is unable to secure and follow a substantially gainful occupation by reason of service- connected disabilities. 38 C.F.R. § 4.16(b). 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). Consideration may be given to the veteran’s education, special training, and previous work experience, but not to his age or to the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19; see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). The Veteran’s service connected disabilities are the following: posttraumatic stress disorder (PTSD) with major depressive disorder, rated 50 percent disabling; chondromalacia of the right knee, rated 10 percent disabling; chondromalacia of the left knee, rated 10 percent disabling; tinnitus, rated 10 percent disabling; and mechanical low back pain syndrome, rated noncompensable. The Board notes that the Veteran’s service-connected chondromalacia of the right and left knees are a bilateral factor. As such, the Veteran’s combined disability rating is currently 70 percent. He therefore satisfies the schedular requirement for consideration of TDIU. The Veteran is 51 years old. He reported on his claim for TDIU that he last worked in 2010 as a security officer. He also reported on his claim for TDIU that his highest level of education was completion of high school. He contends that his service-connected disabilities in the aggregate preclude him from obtaining substantial gainful employment. A review of the medical evidence and lay evidence indicates that the Veteran’s service-connected disabilities in the aggregate render him unemployable (unable to obtain and retain substantially gainful employment), in particular with consideration of his level of education and past employment which involved long periods of standing. In this regard, the Veteran was provided a VA examination for his service-connected chondromalacia of the knees in August 2020. After examination of the Veteran, the VA examiner opined that the Veteran would have difficulty with frequent bending and turning his knees as well as prolonged walking and standing. Further, the Veteran was provided a VA psychological examination in May 2020. The examiner opined that the Veteran’s mental health impairment was manifested by occupational and social impairment with reduced reliability and productivity. The examiner further noted symptoms of depressed mood, anxiety, suspiciousness, chronic sleep impairment, and mild memory loss. Pertinently, with regard to the effect of the Veteran’s service-connected psychiatric disorder on employability, the examiner opined that the Veteran is considered to have difficulties in mental persistence and speed of information processing, as well as in recent memory and new learning which would have a negative impact on his capacity to function in an occupational setting. The examiner also noted that the Veteran has difficulties in relating with others and in general his level of performance is unpredictable. In sum, the Veteran’s service-connected chondromalacia of the right and left knee disabilities significantly limits the ability to walk, stand, sit and lift weight. We are unsure what position would exist that provides for the limiting of walking, standing, lifting, sitting and bending, when we consider his educational level. The record does not contain such evidence and we shall not invent one. Moreover, the Veteran’s PTSD with major depressive disorder causes some cognitive impact as well as memory and social impact. In light of the foregoing, the Board finds that the Veteran’s physical limitations from his service-connected right and left knee disabilities in combination with his mental limitation from his PTSD with major depressive disorder render him unable to obtain and retain substantial and gainful employment. Accordingly, the Board concludes that entitlement to a TDIU is warranted and the Veteran’s claim is therefore granted. 38 U.S.C. § 1155; 38 C.F.R. § 4.16. The grant is no earlier than the date meeting the criteria. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.