Citation Nr: 21067175 Decision Date: 11/03/21 Archive Date: 11/03/21 DOCKET NO. 20-24 901 DATE: November 3, 2021 REMANDED Entitlement to an initial rating in excess of 30 percent for Parkinson's disease with left upper extremity tremor, muscle rigidity, and stiffness is remanded. Entitlement to an initial rating in excess of 10 percent for right upper extremity muscle rigidity and stiffness is remanded. Entitlement to an initial rating in excess of 10 percent for speech changes is remanded. Entitlement to an initial rating in excess of 10 percent for stooped posture and bradykinesia (also claimed as left side weakness, slower gait, and start hesitation) is remanded. Entitlement to an initial compensable rating for loss of sense of smell is remanded. Entitlement to service connection for constipation, claimed as associated with and/or secondary to Parkinson's disease, is remanded. Entitlement to service connection for bladder disability, claimed as associated with and/or secondary to Parkinson's disease, is remanded. Entitlement to service connection for sleep apnea, to include as secondary to Parkinson's disease, is remanded. REASONS FOR REMAND The Veteran served on active duty from January 1960 to April 1967 and from July 1967 to January 1972, to include combat service in the Republic of Vietnam. The issue of entitlement to service connection for sleep apnea was addressed in a March 26, 2020 statement of the case (SOC). The remaining issues on appeal were addressed in a March 27, 2020 SOC. The Veteran, through his representative, submitted three separate substantive appeals (VA Form 9) in May 2020. In a May 31, 2020 VA Form 9, the Veteran's representative indicated that the Veteran was only appealing the issue of entitlement to an initial compensable rating for loss of smell. In a separate May 22, 2020 VA Form 9, the Veteran's representative indicated that he was only appealing the issues of entitlement to service connection for constipation and bladder disability. However, in a prior May 20, 2020 VA Form 9, although the Veteran's representative indicated that it was in response to the March 26, 2020 SOC, the representative then checked the box indicating that the Veteran was appealing all of the issues listed on the statements of the case that were sent. Although unclear as to whether the representative intended to appeal all of the issues addressed in both SOCs, given that this box was checked and resolving doubt in favor the Veteran, the Board will treat all of the issues addressed in both SOCs as in appellate status. See Percy v. Shinseki, 23 Vet. App. 37, 43 (2009). In his substantive appeals, the Veteran requested a Board video conference hearing, which was scheduled in October 2021; however, he failed to appear and has not provided a motion showing good cause for such failure. Thus, the Board finds that the Veteran's hearing request is deemed withdrawn. The Board recognizes that additional relevant VA clinical records were associated with the claims file that have not been considered by the Agency of Original Jurisdiction (AOJ) with respect to the current appeal. However, the Board finds no prejudice to the Veteran in the issuance of this decision as the AOJ will have the opportunity to consider such records on remand. Entitlement to an initial rating in excess of 30 percent for Parkinson's disease with left upper extremity tremor, muscle rigidity, and stiffness; entitlement to an initial rating in excess of 10 percent for right upper extremity muscle rigidity and stiffness; entitlement to an initial rating in excess of 10 percent for speech changes; entitlement to an initial rating in excess of 10 percent for stooped posture and bradykinesia (also claimed as left side weakness, slower gait, and start hesitation); entitlement to an initial compensable rating for loss of sense of smell are remanded. The Veteran was last afforded a VA examination addressing the severity of his Parkinson's disease and associated complications in April 2018, over three years ago. However, in September 2020, during the course of seeking VA treatment, the Veteran reported that his symptoms were worse. In light of the above, the Board finds that the Veteran should be afforded another VA examination to determine the current severity of his Parkinson's disease and associated residuals. In light of the need to remand, additional VA clinical records should be obtained. Entitlement to service connection for constipation and bladder disability, both claimed as associated with and/or secondary to Parkinson's disease, are remanded. The Veteran asserts that he suffers from constipation and bladder issues associated with and/or secondary to his Parkinson's disease. The April 2018 VA examiner indicated that the Veteran' did not suffer from constipation or urinary incontinence. However, VA clinical records document both issues. Thus, another examination with opinion is necessary to determine whether the Veteran's constipation and bladder problems are associated with and/or secondary to Parkinson's disease; or are separate and distinct disabilities. Entitlement to service connection for sleep apnea, to include as secondary to Parkinson's disease, is remanded. The Veteran asserts that his sleep apnea is secondary to his service-connected Parkinson's disease and associated complications. Specifically, the Veteran claims that his sleep apnea is related to weight gain caused by his service-connected disabilities. The Board notes that VA's Office of General Counsel has held that a claim for secondary service connection may rest on obesity as an intermediary between the claimed secondary disability and the service-connected primary disability. See VAOPGCPREC 1-2017. In order to meet this criterion, the Veteran must demonstrate that a previously service-connected disability caused the Veteran to become obese; that obesity was a substantial factor in causing secondary disability; and the secondary disability would only have occurred but for the obesity. VAOPGCPREC 1-2017 (January 6, 2017). In support of his claim, the Veteran submitted a July 2018 Sleep Apnea Disability Benefits Questionnaire; however, no etiological opinion was given. The Veteran has not been afforded a VA examination with respect to this issue. In light of the above, the Board finds that an opinion is needed addressing whether the Veteran's obesity is caused or aggravated by his service-connected disabilities; and whether obesity was a substantial factor in caused sleep apnea. See 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.310; Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The matters are REMANDED for the following action: 1. Obtain additional VA clinical records. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of the Veteran's service-connected Parkinson's disease. The claims file must be reviewed. Based on a review of the claims file, interview and examination of the Veteran, and any needed testing, describe the severity of the Veteran's Parkinson's disease, including all residuals and provide sufficiently detailed information to allow ratings under the appropriate diagnostic codes. Specifically, the examiner should compare the severity of the Veteran's Parkinson's disease residuals of the upper extremities with the "mild," "moderate," and "severe ratings" assigned for peripheral nerve disability of the median nerve by considering impairment in motor function and other symptoms associated with the Veteran's Parkinson's disease. The examiner must discuss the severity of the Veteran's stooped posture, balance impairment, bradykinesia, tremors, muscle rigidity, weakness, and stiffness. The severity of identified symptoms in all four extremities and the trunk should be provided. The examiner must specifically address the severity of the Veteran's speech changes and loss of sense of smell. The examiner must determine whether the Veteran's speech changes are mild, moderate or severe. The examiner must also determine whether the Veteran's loss of sense of smell is best characterized as partial or complete. The examiner should identify and describe the severity of any additional Parkinson's disease residuals, including but not limited to, sleep disturbance, mental health symptoms, difficulty swallowing, urinary problems, constipation, and also discuss general functional impact. With respect the Veteran's claimed constipation and bladder disability, the examiner must opine whether such disabilities are associated with, proximately due to, or aggravated (any incremental increase) by the Veteran's Parkinson's disease. If the examiner finds that the Veteran does not suffer from constipation or urinary problems, this finding must be rectified with the notations of such problems in the VA clinical records. A detailed rationale must be provided. 3. Schedule the Veteran for a VA examination with an appropriate clinician to determine the etiology of his sleep apnea. The claims file must be reviewed. The examiner must opine whether it is at least as likely as not proximately due to service-connected disabilities, or aggravated (any incremental increase, even transient) by service-connected disabilities. The examiner must also opine whether it is at least as likely as not that the Veteran's obesity is caused by or related to the service-connected disabilities. If so, further opine whether it is at least as likely as not that the obesity, which was the result of service-connected disabilities, was a substantial factor in causing or aggravating his sleep apnea. A detailed rationale must be provided. L. M. BARNARD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.N. Moats 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.