Citation Nr: 21072340 Decision Date: 12/02/21 Archive Date: 12/02/21 DOCKET NO. 13-30 960A DATE: December 2, 2021 ORDER Entitlement to a disability rating in excess of 30 percent for Parkinson's disease prior to June 26, 2012, is denied. Entitlement to service connection of prostatitis is denied. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 26, 2012, is denied. FINDINGS OF FACT 1. Prior to June 26, 2012, the Veteran's Parkinson's disease was manifested by mild tremor of the right hand with occasional dizziness and fatigue. 2. The Veteran did not suffer an in-service incident or illness pertaining to his prostate, and the present prostatitis is less likely than not related to any specific incident of active service; it was less likely than not caused or aggravated by his service-connected diabetes mellitus, type II. 3. Prior to June 26, 2012, the Veteran does not meet the schedular criteria for a grant of TDIU; the evidence does not present a reasonable possibility that the Veteran was unemployable due to service-connected disabilities during that time. CONCLUSIONS OF LAW 1. Prior to June 26, 2012, the criteria for a disability rating in excess of 30 percent for Parkinson's disease have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.87, Diagnostic Code (DC) 6204, 4.124a, DCs 8004, 8514 2. The criteria for service connection for prostatitis due to service or service-connected diabetes mellitus are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.310. 3. The criteria for a grant of TDIU prior to June 26, 2012, are not met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.400, 3.340, 3.341, 4.16 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1964 to August 1967. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). As a matter of procedural background, these issues previously came before the Board in June 2018, at which time they were remanded for further development. Also remanded at that time were claims of service connection for erectile dysfunction and entitlement to special monthly compensation based on housebound status or need for aid and attendance. During the pendency of the remand, the RO issued a rating decision granting both of those claims in full, and they are no longer part of this appeal. The Board notes that during the pendency of the appeal, the Veteran was granted entitlement to TDIU effective June 26, 2012. However, the Veterans' increased rating claim for Parkinson's disease and claim of TDIU date to December 2010. The Court of Appeals for Veterans Claims has held that a claim of TDIU is part and parcel of any increased rating claim when reasonably raised by the record. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the Board has included this issue as part of the appeal. Increased Rating Disability ratings are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is reviewed when making disability evaluations. See generally, Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 4.1. Where, as in the case of the issue on appeal in this matter, entitlement to compensation has already been established and an increase in the assigned evaluation is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration of the medical evidence since the date of the claim for increase and consideration of the appropriateness of staged ratings are required. See Fenderson v. West, 12 Vet. App. 119 (1999). "Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7. 1. Entitlement to a disability rating in excess of 30 percent for Parkinson's disease prior to June 26, 2012. The Veteran filed his claim for an increased rating for Parkinson's disease on November 24, 2010, which at the time was rated 30 percent disabling. During the pendency of this appeal, the Veteran's disability was expanded to provide for ratings addressing multiple manifestations of his disability, effectively resulting in a 100 percent rating for Parkinson's disease effective June 26, 2012. As such, the claim now addresses an increased rating in excess of 30 percent from November 24, 2010, to June 26, 2012. The Board finds that the claim should be denied. The Veteran's Parkinson's disease is rated under DC 8004, which compensates for paralysis agitans, and provides for a minimum 30 percent rating for that disability. 38 C.F.R. § 4.124a, Diagnostic Code (DC) 8004. However, this only provides for a minimum rating, and generally the individual symptoms or residuals of Parkinson's disease are to be evaluated individually. Upon review, the Board does not find evidence of significant symptoms prior to June 2012 such that a rating in excess of the minimum 30 percent rating is warranted. For example, in May 2008, a treatment record indicate a resting tremor reminiscent of a Parkinson's-type disorder, but he denied any other symptoms beyond that. In October 2008, he was diagnosed with "probably early Parkinson's disease," with some minor symptoms affecting the right hand, but no other major symptoms reported. On March 4, 2010, the Veteran was afforded a VA contract examination to assess the severity of his symptoms and residuals. At that time he reported having difficulty as a photographer and working a sales register due to shaking in his hands. He also reported some dizziness with loss of balance, predicated by stress. Upon examination, there was evidence of a mild tremor in the right hand only. Posture was normal. Gait was normal. He had no difficulty with weight bearing, balancing or with ambulation. Neurological examination showed motor function within normal limits. Sensory function was within normal limits. Biceps in the upper extremities and lower extremities were normal. Cerebellar function was intact. Romberg's and Babinski tests were negative. Speech and vision were unaffected. Even accounting for his tremor in the right hand, dexterity was within normal limits. Memory was intact. He was alert and oriented, with normal behavior and appropriate affect. Comprehension was normal. The examiner stated that the primary symptom was a fine right hand tremor, with some very minimal balance issues, although it was not readily noticeable. On April 6, 2011, the Veteran was afforded a new VA contract examination. At that time he reported tremors in the right hand only, slowness or thought and concentration, nad memory problems. He denied any other major symptoms at that time. On examination he showed normal posture and gait; no paralysis, weakness, atrophy, or loss of muscle tone was identified. Cranial nerves were intact. Coordination was within normal limits. Sensory and reflex testing were within normal limits. Cerebellar function was intact. The autonomic nervous system was within normal limits. He was alert and oriented, with normal behavior and appropriate affect. Comprehension of command was normal. Memory was intact. He showed no psychiatric or cognitive issues such as hallucinations or delusions. The examiner found him capable to handle how own finances. The condition was active with a right hand tremor, controlled with medication. He did have some increase in general fatigue. No residuals were found with regard to eyes, hearing muscle, joint, cranial nerve, seizures, genitourinary or psychiatric manifestations. There were no smell or taste problems identified. The examiner stated that the tremor in the right hand was slight by controlled. Based on this evidence, the Board does not find that a rating in excess of 30 percent is warranted for the period prior to June 26, 2012. That was the date that a private evaluation found significant increase in his various symptoms. Prior to that date, the most significant manifestation of his Parkinson's disease was a tremor in the right hand. However, that tremor was found to be mild in nature, and well controlled with medication. The Veteran's right hand tremor was subsequently evaluated, effective June 26, 2012, under DC 8004-8514. Hyphenated Diagnostic Codes are used when a rating under one code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. In this case, DC 8004 indicates Parkinson's disease or paralysis agitans as the overlying condition, with manifestations of paralysis of the musculospiral (radial) nerve of the upper right extremity. Under that rating criteria, a 20 percent rating is assigned for mild incomplete paralysis of the upper extremity. For a higher rating, moderate to severe incomplete paralysis must be shown. 38 C.F.R. § 4.124a, DC 8514. Terms such as "mild," "moderate," and "severe" are not defined by the rating schedule; rather than applying a mechanical formula, VA must evaluate all the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6. It is noted that VA treatment records and examination reports identify his right hand as the dominant hand. Prior to June 26, 2012, the Veteran's right hand tremor was found to be mild at most. It was well controlled with medication. Further, no other neurological complications or major loss of use were identified in connection with the right hand. Specifically, although a mild tremor was noted, he generally maintained use of the hand without loss of dexterity or reflexes. As such, the Board does not find that rating this symptom separately would provide for a higher rating under the diagnostic criteria for that specific symptom, than the minimum 30 percent rating allowed under DC 8004. The Veteran's only other symptoms noted during that period were some mild fatigue and occasional dizziness, which did not interfere with his ability to ambulate or function. The most appropriate diagnostic code pertaining to such symptoms is DC 6204, which rates for peripheral vestibular disorders and provides for a 10 percent rating for occasional dizziness. In order for a higher rating to be awarded under the diagnostic criteria, there must be evidence of dizziness with occasional staggering. 38 C.F.R. § 4.87, DC 6204. In this case, there is no evidence that his dizziness and fatigue ever affected his ability to ambulate. So a rating in excess of 10 percent for that symptom would not be supported. Even presuming a 10 percent rating for dizziness ans fatigue, plus the 20 percent for mild tremor of the right hand, this would not combine to exceed the 30 percent minimum rating assigned under DC 8004. In sum, prior to June 26, 2012, the evidence did not support symptoms or residuals of Parkinson's disease of such significance that when rated separately would combine to exceed the minimum 30 percent rating already assigned for that disability. As such, entitlement to a rating in excess of 30 percent for Parkinson's disease prior to June 26, 2012, is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. Service Connection The law provides that service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.303, 3.304. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Generally, establishing service connection requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. See Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Hickson v. West, 12 Vet. App. 247, 253 (1999). A disability may also be found service connected on a secondary basis by demonstrating that the disability is either (1) proximately due to or the result of an already service-connected disease or injury or (2) aggravated by an already service-connected disease or injury. See Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310. 2. Entitlement to service connection of prostatitis. The Veteran seeks service connection of prostatitis, which he asserts is due to his service-connected diabetes mellitus. The Board finds that the claim should be denied. Initially, the Board acknowledges a present diagnosis of prostatitis. Upon review, there is no evidence of any prostatitis or prostate-related diagnosis or injury during active service. For his part, the Veteran has not asserted that his disability is directly related to active service. As such, the claim on a direct basis fails the second criteria of service connection, and a grant based on direct service connection is not supported in this matter. The Veteran, for his part, believes his prostatitis is either caused or aggravated by his service-connected diabetes mellitus. The Veteran was afforded a VA examination in February 2014 in connection with his claim. The examiner reviewed the evidence of record and stated that the Veteran's prostatitis was less likely than not the result of his service-connected type II diabetes mellitus. In support of this, the examiner noted that the prostatitis, diagnosed in 2005, existed prior to the 2007 diagnosis of diabetes. As it pre-existed the alleged primary condition, it could not be caused thereby. Following the Board's prior remand, in May 2021, a new opinion regarding the Veteran's prostatitis was obtained. Following a physical examination of the Veteran, the examiner then reviewed the complete medical history and concluded that the Veteran's prostatitis was less likely than no caused by his diabetes mellitus. In support of this, the examiner stated that the Veteran's prostatitis pre-existed his diabetes. Further, diabetes is not a known cause of prostatitis, as noted in various medical articles. The Veteran's prostatitis also is less likely than not aggravated by his diabetes mellitus because prostatitis as seen in the Veteran is not known to be aggravated by diabetes. This is also not supported by the peer reviewed medical articles cited. The Board finds these opinions to be persuasive. They were given by medical specialists in contemplation of the complete medical record. Particularly, the May 2021 opinion discussed both possible theories of secondary service connection and supported the conclusions with citation to known medical principles and medical treatise evidence. The Board has reviewed the evidence but not identified any medical opinions or evidence which would contradict the opinions of the VA specialists. The Board does recognize the Veteran's own firmly held beliefs that his disability is caused by his diabetes mellitus, but finds it of limited probative value. While lay evidence may be competent on a variety of matters concerning the nature and cause of disability, etiology of dysfunctions and disorders is a medical determination and generally must be established by medical findings and opinion. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007); see also Colantonio v. Shinseki, 606 F.3d 1378, 1382 (Fed.Cir.2010) (recognizing that in some cases lay testimony "falls short" in proving an issue that requires expert medical knowledge). In the present case, the Veteran is a lay person without appropriate medical training and expertise, and thus, is not competent to make an etiological conclusion regarding the cause of his prostatitis, especially in light of the VA examiner's conclusions to the contrary and the fact that the evidence fails to demonstrate the onset of prostate issues in service, or any evidence of a link between prostatitis and diabetes mellitus. See id. In sum, the Board finds that the Veteran's prostatitis is not related to any incident of active service. Neither is it caused by or aggravated by his service-connected diabetes mellitus. As such, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. TDIU A TDIU is assigned when a veteran's service-connected disability or disabilities are not rated as 100 percent disabling, but are of such severity that the veteran cannot secure or follow a substantially gainful occupation solely because of that disability or disabilities. 38 C.F.R. § 4.16. Generally, TDIU is awarded on a schedular basis, which requires that, if there is only one service-connected disability, this disability shall be ratable at 60 percent or more. If there is more than one disability, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more 38 C.F.R. § 4.16(a). 3. Entitlement to a total disability rating based on individual unemployability (TDIU), prior to June 26, 2012. The Veteran seeks entitlement to TDIU prior to June 26, 2012. The Board finds that the claims should be denied. The Veteran filed his claim for TDIU in November 2010, stating that he first became unemployable as a photographer on the 24th of that month. Prior to that time, he asserted he was working full-time, 40 hours per week as a photographer. The Veteran has been granted TDIU effective June 26, 2012. As such, the relevant appeal period is from November 24, 2010, to June 26, 2012. Prior to June 26, 2012, and throughout the relevant period on appeal had a combined disability rating of 40 percent. As there is not either a single disability rated 60 percent, or a combined rating of 70 percent with a single 40 percent rating, the Veteran does not meet the basic schedular requirements for a grant of TDIU prior to June 26, 2012. As such, the Board cannot grant TDIU on a schedular basis for the period in question. Finally, under Roberson v. Principi, 251 F.3d 1378 (2001) and Rice v. Shinseki, 22 Vet. App. 447 (2009), the Board must also consider TDIU even when the schedular criteria are not met. VA policy is that all Veterans unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated as totally disabled. 38 C.F.R. § 4.16 (b), rating boards should refer to the Director of Compensation and Pension Service for extraschedular consideration all cases where Veterans are unemployable by reason of service-connected disabilities but who fail to meet the percentage requirements set forth in 38 C.F.R. § 4.16 (a). In sum, the Board cannot grant an extraschedular TDIU in the first instance, but may determine whether referral for such consideration is warranted. Recent development from the Court of Appeals for Veterans Claims has held that the pursuant to Ray v. Wilkie, 31 Vet. App. 58, 66 (2019), the proper standard for the initial decision of whether to refer the issue of entitlement to a TDIU to the Director of Compensation under 38 C.F.R. § 4.16(b) is whether there is "sufficient evidence to substantiate a reasonable possibility that a veteran is unemployable by reason of his or her service-connected disabilities" Snider v. McDonough, No 19-7607, (Vet. App., Nov. 19, 2021). During the period in question, the Veteran was service connected for Parkinson's disease, diabetes mellitus, and erectile dysfunction. The Veteran asserted that he was unable to remain employed during that period of time due to his inability to stand for long periods of time. However, the Veteran did not imply that he could not stand or ambulate at all, but rather only for extended periods of time. Further, as discussed above, while he did suffer from some minor tremor in his right hand at that time, and some minor fatigue and dizziness, there was no pathology suggesting that he was unable to ambulate or walk. While he asserted standing for long periods of time was an issue, the medical evidence suggested he could stand for shorter periods of time. He did not exhibit any cognitive or memory issues during that period of time. Indeed, he was an active participant in his appeal throughout that period in question. Additionally, while the Veteran only endorsed finishing high school, he worked as a photographer, which is a complex profession requiring specialized training. If he were able to work as a photographer, there is no reason to expect he could not function in some type of less-physically demanding or sedentary employment. As such, the Board does not find a reasonable possibility that the Veteran was entirely unemployable due to his service-connected disabilities. Ultimately, the Board must conclude that there is no reasonable possibility that he was unemployable during the period in question due to service-connected disabilities. Further, based on the evidence, the Board concludes that the Veteran was not unemployable due exclusively to service-connected disabilities at that time. As such, the Board declines to refer the claim for extraschedular consideration prior to June 26, 2012. The claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine; however, because the preponderance of the evidence is against the claim, that doctrine does not apply. See 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. § 3.102. 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. B.T. KNOPE Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Pryce, Counsel