Citation Nr: 21075736 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 17-00 632 DATE: December 21, 2021 ORDER Entitlement to an increased rating in excess of 20 percent for service-connected right upper extremity, residuals of Parkinson's disease is denied. Entitlement to an increased rating in excess of 20 percent for service-connected left upper extremity, residuals of Parkinson's disease is denied. Entitlement to an increased rating in excess of 20 percent for service-connected left lower extremity of the sciatic nerve, residuals of Parkinson's disease is denied. Entitlement to an increased rating in excess of 20 percent for service-connected right lower extremity of the sciatic nerve, residuals of Parkinson's disease is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities is granted. REMANDED Entitlement to a compensable initial rating for service-connected sleep disturbance is remanded. FINDINGS OF FACT 1. The preponderance of the evidence of record throughout the rating period on appeal reveals that the Veteran's right upper extremity tremors more closely approximated mild incomplete paralysis. The evidence does not demonstrate that the Veteran's symptoms were at least moderate. 2. The preponderance of the evidence of record throughout the rating period on appeal reveals that the Veteran's left upper extremity tremors more closely approximated mild incomplete paralysis. The evidence does not demonstrate that the Veteran's symptoms were at least moderate. 3. The preponderance of the evidence of record throughout the rating period on appeal reveals that the Veteran's left lower extremity balance impairment more closely approximate moderate incomplete paralysis of the sciatic nerve. The evidence does not demonstrate that the Veteran's symptoms were at least moderately severe. 4. The preponderance of the evidence of record throughout the rating period on appeal reveals that the Veteran's right lower extremity balance impairment more closely approximate moderate incomplete paralysis of the sciatic nerve. The evidence does not demonstrate that the Veteran's symptoms were at least moderately severe. 5. Resolving all reasonable doubt in favor of the Veteran, from June 24, 2014 to April 27, 2016, the Veteran's service-connected disabilities precluded him from securing or following substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for entitlement to an increased rating in excess of 20 percent for service-connected right upper extremity, residuals of Parkinson's disease have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.20, 4.21, 4.124a, DCs 8004-8510. 2. The criteria for entitlement to an increased rating in excess of 20 percent for service-connected left upper extremity, residuals of Parkinson's disease have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.20, 4.21, 4.124a, DCs 8004-8510. 3. The criteria for entitlement to an increased rating in excess of 20 percent for service-connected left lower extremity of the sciatic nerve, residuals of Parkinson's disease have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.20, 4.21, 4.124a, DCs 8004-8520. 4. The criteria for entitlement to an increased rating in excess of 20 percent for service-connected right lower extremity of the sciatic nerve, residuals of Parkinson's disease have not been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.20, 4.21, 4.124a, DCs 8004-8520. 5. The criteria for entitlement to a TDIU have been met. 38 U.S.C. §§ 5107, 5110; 38 C.F.R. §§ 3.102, 3.400, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Marine Corps from November 1964 to November 1968. He died in April 2016. The appellant is the Veteran's surviving spouse. In September 2019, the RO accepted the appellant as a substitute. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2014 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In a March 2017 statement, the appellant withdrew her request for a Board hearing and requested Board consideration of the claims based on the evidence of record. Therefore, her request for a Board hearing is considered withdrawn and the Board may proceed with adjudication of the claims. 38 C.F.R. §§ 20.702(e), 20.704(e). In September 2019, the Board remanded the Veteran's claims for additional development. The Board notes that there was substantial compliance with its September 2019 remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). Increased Rating Disability ratings are determined by applying the criteria set forth in the schedule of ratings. The percentage ratings are based on the average impairment of earning capacity, and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When a question arises as to which of two ratings apply under a single 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. While the Veteran's entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Additionally, if the positive evidence supporting a claim and the negative evidence indicating a denial of the claim is relatively equal, the Veteran is entitled to the benefit of the doubt. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102, 4.3. Accordingly, any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. Id. 1. Entitlement to an increased rating in excess of 20 percent for service-connected right upper extremity, residuals of Parkinson's disease 2. Entitlement to an increased rating in excess of 20 percent for service-connected left upper extremity, residuals of Parkinson's disease The appellant contends that higher ratings in excess of 20 percent are warranted for the Veteran's bilateral upper extremity disabilities. The Veteran's right and left upper extremity disabilities were each rated as 20 percent disabling under DC 8004-8510. Under DC 8004, a minimum rating of 30 percent is assigned for paralysis agitans. 38 C.F.R. § 4.124a. Paralysis agitans is also known at Parkinson's disease. Dorland's Illustrated Medical Dictionary, at 972 (26th ed. 1990). The minimum rating is the sole rating provided under DC 8004. The Veteran's Parkinson's disease has been assigned separate ratings for each affected extremity, which together total higher than 30 percent. Under DC 8510, which evaluates paralysis of the upper radicular group, mild incomplete paralysis of the upper radicular group is rated as 20 percent for both the major (dominant) and minor (non-dominant) extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis, all minor shoulder and elbow movements lost or severely affected, minor hand and wrist movements not affected, is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. In this context, "major" and "minor" refer to the dominant and nondominant side, respectively. Here, the Veteran's left hand was his dominant (major) hand. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with the application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. As an initial matter, the Board notes that DC 8004 falls under the broad rating category of organic diseases of the central nervous system; however, the record has specifically and consistently shown the primary area of anatomical localization for the Veteran's tremors is in the bilateral hands. Therefore, the most closely related Diagnostic Codes for the hands would be found under the rating category of Diseases of the Peripheral Nerves; specifically, that of DC 8512, which addresses paralysis of the lower radicular group. Therefore, the Board will also assess whether a higher rating is warranted under DC 8512. Under DC 8512, mild incomplete paralysis of the lower radicular group is rated as 20 percent for both the major (dominant) and minor (non-dominant) extremity. Moderate incomplete paralysis is rated as 40 percent for the major extremity and 30 percent for the minor extremity. Severe incomplete paralysis is rated as 50 percent for the major extremity and 40 percent for the minor extremity. Complete paralysis, all intrinsic muscles of hand, and some or all flexors of wrist and fingers, paralyzed (substantial loss of use of hand) is rated as 70 percent for the major extremity and 60 percent for the minor extremity. 38 C.F.R. § 4.124a. Medical treatment records during the appeal period reflect complaints and treatment for hand weakness and arm coolness with occasional numbness. In a November 2014 VA Parkinson's Disease examination, the examiner found the Veteran has mild bilateral upper extremity tremors, muscle rigidity, and stiffness. See C&P Exam, November 2014. In a January 2016 private motor examination, the examiner found the Veteran's right upper extremity strength to be a 5 out of 5 and left upper extremity grip strength to be a 4 out of 5: both of which showing normal motor function. See Private treatment record, January 2016. Lay statements submitted by the Veteran and his family members note his soreness in his arms and bilateral shaky/tremoring hands that affected his ability to fetch/carry things from the refrigerator, prepare his own meals, or write/sign his name. See Buddy/Lay Statements, September 2015, June 2017, and July 2017; see also VA 21-4138, March 2012 and October 2017. Based on the above, the Board finds that an increased rating in excess of 20 percent for the Veteran's bilateral upper extremity is not warranted during any period on appeal. The weight of the evidence is not sufficient to meet the criteria for the next-higher 40 percent and 30 percent ratings for the Veteran's major and minor extremities under DC 8510 or DC 8512. Specifically, the medical evidence of record, to include medical treatment records, VA examination, and private examination, has continuously shown the Veteran's symptoms consist entirely of bilateral hand tremors and occasional arm numbness that does not significantly restrict or prevent the use of his hands/arms for fine motor tasks. While the Board acknowledges the lay statements indicating that the Veteran difficulty using his hands for certain tasks, the Board finds that these symptoms still primarily indicate that his symptoms in his hands were predominantly mild, and does not establish a greater severity of symptomatology that would be considered moderate or severe. the clinical findings from the VA examination and private examination, as well as, all other medical evidence of record, do not show symptoms beyond a mild severity level. Additionally, the medical evidence does not reflect loss of muscle strength, absent reflexes, trophic changes or muscle atrophy in the bilateral hands, which are symptoms associated with a more severe neurological impairment. Therefore, the Board notes that the primary complaint and analysis of record is that of motor impairment from the bilateral hand tremors, which the Board notes is reasonable encompassed by the rating for mild incomplete paralysis of the upper/lower radicular group; commensurate of a 20 percent rating under DC 8510 and/or DC 8512. The Board notes that the lay assertions of record have been considered. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that they have argued that a higher ratings than 20 percent for the Veteran's bilateral upper extremity is warranted, these assertions are outweighed by more probative evidence provided by the medical evidence of record, to include the examination of a qualified medical professional. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay statements do not provide any basis upon which to assign any higher rating. Therefore, the Board concludes, based on consideration of the medical and lay evidence, increased ratings in excess of 20 percent for the Veteran's service-connected bilateral upper extremity disorders are not warranted; and the claims are denied. In reaching this determination, the Board has considered the doctrine of giving the benefit of the doubt to the Veteran, under 38 U.S.C. § 5107 and 38 C.F.R. § 3.102, but does not find that the evidence is of such approximate balance as to warrant its applications. Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). 3. Entitlement to an increased rating in excess of 20 percent for service-connected left lower extremity of the sciatic nerve, residuals of Parkinson's disease 4. Entitlement to an increased rating in excess of 20 percent for service-connected right lower extremity of the sciatic nerve, residuals of Parkinson's disease The appellant contends that ratings higher than than 20 percent are warranted for the Veteran's bilateral lower extremity disabilities. The Veteran's bilateral lower extremity disorders are rated as 20 percent disabled under DC 8004-8520. Under DC 8520, a 10 percent rating is assigned for mild incomplete paralysis of the sciatic nerve. A 20 percent rating is assigned for moderate incomplete paralysis of the sciatic nerve. A 40 percent rating is assigned for moderately severe incomplete paralysis. A 60 percent rating is assigned for severe incomplete paralysis of the sciatic nerve with marked muscular atrophy. The maximum rating of 80 percent is assigned for complete paralysis where the foot dangles and drops, with no active movement possible of muscles below the knee, and flexion of the knee is weakened or (very rarely) lost. 38 C.F.R. § 4.124a. The term "incomplete paralysis" indicates a degree of lost or impaired function substantially less than the type picture for complete paralysis given with each nerve, whether due to varied level of the nerve lesion or to partial regeneration. When the involvement is wholly sensory, the rating should be for the mild, or at most, the moderate degree. The ratings for the peripheral nerves are for unilateral involvement; when bilateral, combine with the application of the bilateral factor. 38 C.F.R. § 4.124a, Diseases of the Peripheral Nerves. As an initial matter, the Board notes that DC 8004 falls under the broad rating category of organic diseases of the central nervous system; however, the record has specifically and consistently shown the area of anatomical localization for the Veteran's tremors is in the bilateral legs/foot affecting the sciatic nerve. Therefore, the most closely related Diagnostic Code would be found under the rating category of Diseases of the Peripheral Nerves; specifically, that of DC 8520, which addresses paralysis of the sciatic nerve. Medical treatment records during the appeal period reflect complaints and treatment for lower extremity pain, generalized weakness, and moderately disabling cramping, with the Veteran being wheelchair bound. In a November 2014 VA Parkinson's Disease examination, the examiner found the Veteran has moderate balance impairment and bradykinesia/slowed motion, with mild bilateral lower extremity tremors, muscle rigidity, and stiffness. See C&P Exam, November 2014. In a January 2016 private motor examination, the examiner found the Veteran's bilateral lower extremity strength to be a 5 out of 5 with normal motor function. See Private treatment record, January 2016. Lay statements submitted by the Veteran and his family members note his inability to stand and trouble walking due to poor balance issues that has resulted in the use of a cane, walker, and/or wheelchair for ambulation. He has soreness in his legs, and cannot shower, go to the bathroom, or get dressed without assistance from his wife. See Buddy/Lay Statements, September 2015, June 2017, and July 2017; see also VA 21-4138, March 2012 and October 2017. Based on the above, the Board finds that increased ratings in excess of 20 percent for the Veteran's bilateral lower extremity disorders is not warranted. The weight of the evidence is not sufficient to meet the criteria for the next-higher 40 percent rating for the Veteran's bilateral lower extremity under DC 8520. Specifically, the medical evidence of record, to include medical treatment records, VA examination, and private examination, has continuously shown the Veteran's symptoms consist entirely of bilateral lower extremity tremors of a mild nature with moderate balance impairment. While the Board acknowledges the lay statements of record of a more severe nature, the Board finds that these characterizations do not align with the medical evidence of record, as the clinical findings from the VA examination and private examination, as well as, all other medical evidence of record, do not show symptoms beyond a mild to moderate severity level. Additionally, the medical evidence does not reflect loss of muscle strength, absent reflexes, trophic changes or muscle atrophy in the bilateral lower extremity, which are symptoms associated with a more severe neurological impairment. Therefore, the Board notes that the primary complaint and analysis of record is that of motor impairment from the bilateral lower extremity, which the Board notes is reasonable encompassed by the rating for moderate incomplete paralysis of the sciatic nerve; commensurate of a 20 percent rating under DC 8520. The Board has again considered the lay assertions of record, and to the extent that they have argued that higher ratings than 20 percent for the Veteran's bilateral lower extremity is warranted, these assertions are outweighed by more probative evidence provided by the medical evidence of record, to include the examination of a qualified medical professional. See Jones, 7 Vet. App. 134. As such, the lay statements do not provide any basis upon which to assign any higher rating. Therefore, the Board concludes, based on consideration of the medical and lay evidence, an increased rating in excess of 20 percent for the Veteran's service-connected bilateral lower extremity is not warranted; and the claims are denied. The Board has again considered the doctrine of the benefit of the doubt, but the preponderance of the evidence is against the claims. Gilbert, 1 Vet. App. at 54-56. 5. Entitlement to TDIU The appellant contends that the Veteran was unemployable due to his service-connected disabilities. Generally, a TDIU rating 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 resulting from 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). In determining whether unemployability exists due to a service-connected disability or disabilities, consideration may be given to the Veteran's level of education, special training, and previous work experience; however, age and impairment caused by nonservice-connected disabilities are not factors for consideration. Unemployability associated with advancing age or intercurrent disability may not be used as a basis for assignment of TDIU. 38 C.F.R. §§ 3.341, 4.16, 4.19. Also, it is necessary that the record reflect some factor(s) that places the Veteran in a different category than other veterans with equal ratings of disability. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough. The ultimate question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). The Veteran submitted a claim for increased ratings for his bilateral upper and lower extremity residuals of Parkinson's disease on June 24, 2014. It is from this claim that the claim for a TDIU also arose, and therefore this date marks the start of the appeal period under consideration. The Veteran's service-connected disabilities include the following: chronic constipation, rated as 30 percent disabled from June 24, 2014 to April 27, 2016; bilateral upper extremity, each rated as 20 percent disabled from February 24, 2012 to April 27, 2016; bilateral lower extremity, each rated as 20 percent disabled from June 24, 2014 to April 27, 2016; and sleep disturbances, now rated as 30 percent disabled from June 24, 2014 to April 27, 2016. Based on this, the Veteran had a combined schedular rating of 80 percent; and therefore, met the schedular requirements for TDIU under 38 C.F.R. § 4.16(a) from June 24, 2014 to April 27, 2016. The record reveals that the Veteran was self-employed as a painter, wallpaper hanger, and drywall installer in the construction business for 36 years, however, he had to retire due to his balance impairment and hand tremors/shaking. Medical treatment records during the appeal period reflect continuous complaints and treatment for balance issues, sleeping problems, constipation, and tremors/shaking in the hands. In a July 2014 private medical opinion from the Veteran's treating physician, he opined that the Veteran appeared to be totally disabled from his symptoms related to his Parkinson's disease, as he is wheelchair bound and in need of assistance to take off shoes and get on/off exam table. The Veteran also seemed very despondent, depressed, and often angry due to his pain and debilitation, and he appears to be totally dependent on his wife. See Private treatment record, July 2014. In a November 2014 VA Parkinson's disease examination, the examiner noted the Veteran's bilateral upper extremity tremors and lower extremity balance issues mildly to moderately limit his ability to work. See C&P Exam. November 2014. Lay statements submitted by the Veteran and his family members note that his balance and shaking problems affected his ability to work. The Veteran was unable to drive due to his impaired motor coordination, and needed assistance with dressing, showing, fixing his meals, and going to the bathroom. He was essentially wheelchair bound, with unreliable bowels that do not allow for him to go the bathroom fast enough. See Buddy/Lay Statements, September 2015, June 2017, and July 2017; see also VA 21-4138, March 2012 and October 2017. Based on the above, to include consideration of the Veteran's work history, medical assessments, and lay statements, the Board finds that the probative evidence of record is in favor of the claim, and the Veteran was unable to secure and/or maintain any substantially gainful occupation due to his service-connected disabilities from June 24, 2014 to April 27, 2016. Therefore, resolving all reasonable doubt in favor of the Veteran, the Board concludes that entitlement to TDIU is warranted; and the claim is granted. REASONS FOR REMAND 6. Entitlement to compensable initial rating of 30 percent, but no higher, for sleep disturbance The appellant contends that the Veteran's sleep disturbance warrants a compensable initial rating. The Veteran's sleep disturbances have been rated under DC 9499-9421. The Board notes that when hyphenated DC's are used with "99" the condition being rated is an unlisted disease, which requires rating by analogy. See 38 C.F.R. § 4.27. Under DC 9421, which evaluates somatic symptom disorder, a noncompensable rating is assigned for a mental condition that has been formally diagnosed, but symptoms are not severe enough to interfere with occupational and social functioning or to require continuous medication. A 10 percent rating is assigned for occupation and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. A 30 percent rating is assigned for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Because the Veteran's sleep disorder has been rated as analogous to a psychiatric disorder, and the criteria for this includes additional psychiatric symptomatology, including symptoms that the Veteran's family members have indicated that the Veteran did manifest with, the Board finds that a medical opinion from a psychologist or psychiatrist is needed in order to evaluate the full severity of the Veteran's psychiatric symptoms. Medical treatment records during the appeal period reflect complaints and treatment for sleep problems (to include trouble falling and staying asleep and the inability to sleep at night), depression, anger. Lay statements submitted by the Veteran and his family members note that he suffered from extreme fatigue, depression, sadness, anger, and severe sleeping problems, which resulted in him becoming weaker, confused, and forgetful. He had frequent hospitalizations that led to psychotic episodes, and poor nutrition. His wife had to assist him with bathing, shaving, and fixing his food due to his balance problems. His sister wrote that the Veteran developed dementia due to his Parkinson's disease. See Buddy/Lay Statements, September 2015, June 2017, and July 2017; see also VA 21-4138, March 2012 and October 2017. The Board therefore remands this issue in order to obtain a medical opinion which addresses the extent of the Veteran's symptoms, and whether they were secondary to his Parkinson's disease or sleep disorder. The matters are REMANDED for the following action: 1. Provide the appellant with another opportunity to submit completed release forms (VA Form 21-4142) authorizing VA to request any additional, relevant private treatment records, including all treatment related to the Veteran's psychiatric health. The appellant should be advised that she can also submit those records herself. If she provides a completed release form, then request the identified treatment records. At least two attempts should be made to obtain any records, and all attempts to secure those records must be documented in the Veteran's claims file. She should be notified of any unsuccessful efforts. 2. Obtain a medical opinion from a psychiatrist or psychologist to discuss the nature and severity of the Veteran's symptoms associated with his sleep disturbance and Parkinson's disease for the period of June 24, 2014 to April 27, 2016. The examiner should review all relevant records and identify what, if any, additional psychiatric symptoms the Veteran had that were secondary to his Parkinson's disease, and should specifically address the assertions of the Veteran's family members that he had dementia and psychosis at the end of his life which were caused by his Parkinson's disease. If the Veteran is found to have had psychiatric symptoms which were not related to his Parkinson's disease or sleep disturbance, the examiner must explain why these symptoms are separate and distinct. Mary E. Rude Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Carter, 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.