Citation Nr: A21019130 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 210105-127573 DATE: December 1, 2021 ORDER Prior to August 23, 2019, entitlement to a disability rating in excess of 30 percent for service-connected Parkinson's disease is denied. Prior to August 23, 2019, entitlement to a disability rating in excess of 30 percent for unspecified anxiety disorder is denied. REMANDED Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities (TDIU) prior to August 23, 2019 is remanded. FINDINGS OF FACT 1. For the period prior to August 23, 2019, the competent evidence of record does not show that the Veteran's Parkinson's disease resulted in residuals warranting assignment of separate diagnostic codes, the combined ratings of which are greater than 30 percent. 2. For the period prior to August 23, 2019, the severity, frequency, and duration of the Veteran's unspecified anxiety disorder symptoms did not more closely approximate occupational and social impairment with reduced reliability and productivity. CONCLUSIONS OF LAW 1. For the period prior to August 23, 2019, the criteria for entitlement to a disability rating in excess of 30 percent for Parkinson's disease are not met. 38 U.S.C. §§ 1131, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 4.7, 4.124a, Diagnostic Code (DC) 8004. 2. For the period prior to August 23, 2019, the criteria for a disability rating in excess of 30 percent for unspecified anxiety disorder are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.126, 4.130, DC 9413. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Army from May 1966 to May 1968, during which time he was deployed to the Republic of Vietnam (RVN). This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) August 2020 rating decision of the Agency of Original Jurisdiction (AOJ) In January 2019, the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim option. The AOJ issued an AMA supplemental claim rating decision pursuant to RAMP on August 23, 2019. In August 2020, the Veteran submitted a VA Form 20-0996, Decision Review Request: Higher-Level Review (HLR), and requested review of the August 2019 rating decision. in August 2020, the AOJ issued the HLR decision on appeal, which considered the evidence of record at the time of the August 2019 rating decision. The Veteran timely appealed the August 2020 HLR rating decision to the Board with a January 2021 VA Form 10182, selecting the Direct Review Board appeal lane. Therefore, the Board may only consider the evidence of record at the time of the August 2019 decision. The acknowledges that there has been subsequent additional development of the instant issues and additional adjudication by the AOJ in this case. However, the Board cannot consider any evidence submitted after the August 2019 rating decision pursuant to the AMA such as any additional VA medical examinations, private medical records, or other evidence as such evidence was not received within an acceptable evidence window. To the extent the Veteran wishes for this evidence to be considered, a supplemental claim should be filed. Increased ratings Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and, above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period 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). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54 1. Prior to August 23, 2019, entitlement to a disability rating in excess of 30 percent for service-connected Parkinson's disease The Veteran is seeking a higher disability rating for his Parkinson's disease. Specifically, he contends that his disability is more severe than reflected by his currently assigned disability rating. In the instant case, the AOJ determined that the Veteran's symptoms and manifestations of his Parkinson's disease were of such a severity so as to warrant a 30 percent rating for Parkinson's disease under DC 8004. Ratings for Parkinson's disease, known in VA regulations as "paralysis agitans," are assigned pursuant to 38 C.F.R. § 4.124a, DC 8004. Under this DC, a minimum 30 percent rating is for application when there are "ascertainable residuals" of the disability. However, VA is required to also consider whether any of these residuals may be otherwise rated under a separate DC. Potential residuals include, but are not limited to, loss of smell or taste (38 C.F.R. § 4.87, DC 6275, 6276), bladder or bowel dysfunction (38 C.F.R. §§ 4.114, DC 7332, 4.115 DC 7542), disorders of the cranial nerves or nerves in the extremities (38 C.F.R. § 4.124a) or cognitive impairment (38 C.F.R. § 4.130, DC 9326). If there are identifiable residuals that can be rated under a separate DC, and the combined disability rating resulting from these residuals exceeds 30 percent, then these separate ratings will be assigned in place of the minimum rating assigned under DC 8004. The Board notes that the Veteran was not definitively diagnosed with Parkinson's disease until July 2013, though his medical records prior to that date show what appears to be a slow development of symptoms. An April 2013 VA examination, while finding that the Veteran did not have Parkinson's disease at that time, noted a "moderate" tremor in his right-upper extremity. Other than "mild" sexual dysfunction, the Veteran exhibited no other manifestations or complications of the condition. A November 2013 private treatment noted the right-upper extremity tremor, which the Veteran reported having an onset of "approximately mid-2011." The Veteran denied experiencing any other tremors, and other than subjectively feeling like he was "slowing down," he was not experiencing other symptoms of "parkinsonism." A September 2014 note from a VA physician noted that while the Veteran did display a right-upper extremity tremor, it "itself is not consistent with a diagnosis of Parkinson's Disease and can be present in" several other neurological or movement disorders. The VA physician noted no other symptoms experienced by the Veteran. It was not until August 2017 where the Veteran began exhibiting other symptoms. A VA examination at the time showed "mild" stooped posture, "mild" bradykinesia, and "mild" right-upper extremity tremors. However, the Veteran had no other symptoms, and it appeared that his "mild" sexual dysfunction had improved and/or resolved. On VA examination in March 2019, the examiner noted that the Veteran had normal gait and posture, normal facial expression, and normal blinking. His speech was articulate and fluent with normal voice. There was no rigidity in the Veteran's extremities, no cogwheeling, no tremor and the Veteran's posture was erect. His arm swing with his gait was intact; pivotal turns were normal. No mental manifestations due to Parkinson's or its treatment were found. There was no cognitive impairment or dementia. There was no loss of sense of smell; sleep disturbance; difficulty chewing/swallowing; urinary problems; constipation; or sexual dysfunction. The Veteran reported that his symptoms were well-controlled with medication although he still had some intermittent tremor in his right hand as well as occasional lower extremity tremor. The Veteran stated that he was retired and worked as a school bus driver through 2012. The examiner concluded that the Veteran's Parkinsonian symptoms were minimal or well-controlled with medication and would have no impact on his ability to secure and/or maintain either substantially gainful employment or sedentary employment. Based on the foregoing, the Board finds that, for the period prior to August 23, 2019, a disability rating in excess of 30 percent is not warranted because the evidence of record is insufficient to show that assignment of compensable disability ratings under separate DCs are warranted. Specifically, as noted above, there is no indication in the record that the Veteran has loss of smell or taste (38 C.F.R. § 4.87, DCs 6275, 6276), bladder or bowel dysfunction (38 C.F.R. §§ 4.114, DC 7332, 4.115 DC 7542), disorders to the cranial nerves or nerves in the extremities (other than right hand tremor) (38 C.F.R. § 4.124a), cognitive impairment (38 C.F.R. § 4.130, DC 9326), or other impairment associated with his Parkinson's disease. Further, the Veteran's mild and/or intermittent right hand tremors are not shown by the records to warrant a rating in excess of the currently assigned 30 percent rating. See, e.g., 4.124a, DC 8515. Similarly, separate ratings for the Veteran's reported occasional hoarseness and dysphagia would not warrant separate compensable ratings that could combine to be in excess of 30 percent based on the evidence of record. See 38 C.F.R. § 4.97, DC's 6516, 6519; 38 C.F.R. § 4.114, DC 7203. In reaching this conclusion, the Board has considered the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim for a higher disability rating for Parkinson's disease, the doctrine is inapplicable. The claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. 2. Prior to August 23, 2019, entitlement to a disability rating in excess of 30 percent for service-connected unspecified anxiety disorder Prior to August 23, 2019, the Veteran's unspecified anxiety disorder is evaluated under the General Rating Formula for Mental Disorders. See 38 C.F.R. § 4.130, DC 9413. According to the General Rating Formula, a 30 percent evaluation is warranted where there is 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, or recent events). Id. A 50 percent rating is warranted when there is occupational and social impairment, with reduced reliability and productivity, due to such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more frequently than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g., retention of only highly learned material, forgetting to complete tasks); impaired judgment; impaired abstract thinking; disturbances of motivation and mood; and difficulty in establishing and maintaining effective work and social relationships. Id. A 70 rating is warranted when there is occupational and social impairment, with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and an inability to establish and maintain effective relationships. Id. A 100 percent evaluation requires total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; and memory loss for names of close relatives, own occupation, or own name. Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the rating, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific rating. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). However, a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration, and that such symptoms have resulted in the type of occupational and social impairment associated with that percentage. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 117-18 (Fed. Cir. 2013). As noted above, the Board is limited by the AMA to only view the evidence that was before the AOJ in the August 23, 2019 rating decision. In October 2008 the Veteran reported that he experienced "a sensation of panic" from "time to time," but he associated the symptoms with his employment at the time. In November 2013, the Veteran's medical record shows that the main symptom of his psychiatric condition was excessive worrying. While it was noted that the Veteran experienced panic attacks, at the time it seemed that the Veteran did not currently experience panic attacks. An April 2014 treatment record shows that the Veteran self-reported experiencing anxiety "quite often," and that he had a history of panic attacks. However, it was unclear how often the Veteran experienced either symptom. A November 2017 VA examination found that the Veteran's symptoms did not meet the diagnostic criteria for any psychiatric disorder. The Veteran did not exhibit "persistent and excessive anxiety and worry about various domains," nor did he experience other symptoms such as "feeling keyed up, easily fatigued, irritability, concentration difficulties, muscle tension, and sleep difficulties." The only symptom that the examiner expressed was anxiousness. The examiner also noted that while the Veteran disliked social events, as well as travel (particularly flying), the Veteran had a social life with friends and a stable romantic partner. Overall, the examiner found that the Veteran "did not display a clinic level of anxiety in this evaluation." In March 2019 the Veteran was diagnosed with "unspecified anxiety disorder." A VA examination conducted at that time found that the Veteran experienced "excessive anxiety in crowded social situations, including crowded stores and airplanes." This is exhibited by the fact that the Veteran avoided traveling to a close family member's funeral due to his anxiety surrounding air travel. The Veteran's anxiety manifested in panic attacks "that occur weekly or less often." The Veteran reported a healthy social life, frequently interacting with "real close friends," and was in a stable, long-term romantic relationship. The Veteran worked as a chiropractor for twenty years before retiring, after which time he sought other employment. The Veteran has not been employed since around 2012. Overall, the examiner determined that the severity of the Veteran's anxiety disorder caused impairment "due to mild or transient symptoms." The Board finds that a 30 percent disability rating best represents the disability picture presented by the Veteran's acquired psychiatric disorder. The Veteran has consistently reported that while his social circle is small, he has healthy relationships with his family and is in a successful and "good" long term relationship with his significant other. The most significant symptoms experienced by the Veteran appears to be anxiety around social situations, and panic attacks that occur weekly (or less often). A 50 percent disability rating is not warranted as the evidence does not show that the Veteran's PTSD is productive of occupational and social impairment with reduced reliability or productivity. As noted above, the Veteran does not experience panic attacks more than once a week, is capable of understanding complex commands, does not have impaired abstract thinking (the March 2019 VA examiner noted the Veteran as being both logical and coherent.), nor does the Veteran exhibit difficulty in establishing and maintaining effective interpersonal relationships. Therefore, the Board finds that, for the period prior to August 23, 2019, the criteria for a disability rating in excess of 30 percent for unspecified anxiety disorder are not met, and the appeal must be denied REASONS FOR REMAND 1. Entitlement to a total disability rating based on individual unemployability as due to service-connected disabilities is remanded. In an August 2020 VA Form 21-8940 Veterans Application for Increased Compensation Based on Unemployability, the Veteran asserted that his service-connected Parkinson's disease prevents him from obtaining and maintaining substantially gainful occupation. He reported that this disability has prevented him from securing or following any substantially gainful employment; that the disability affected his full-time employment in 2012, when he last worked full-time, and that he became too disabled to work in 2015. The Board notes that, while arguments made outside the evidentiary windows may be considered, evidence submitted with the arguments cannot. Therefore, while the claim for a TDIU is before the Board as it relates to the increased rating claim for Parkinson's disease and the period under consideration in this appeal, the Board is limited to the evidence that was before the AOJ at the time of the August 2019 rating decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A total disability rating may be granted where the schedular rating is less than 100 percent and the Veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. Generally, to be eligible for a TDIU, a percentage threshold must be met. 38 C.F.R. §§ 3.340, 3.341, 4.16(a). If there is only one service-connected disability, or two or more with the same etiology or affecting the same body system, the disability rating must be 60 percent or more. Id. If there are two or more disabilities, there shall be at least one disability rated at 40 percent or more, and sufficient additional disabilities to bring the combined rating to 70 percent or more. Id. At the time of the August 2019 rating decision, the Veteran had the following service-connected disabilities: Parkinson's disease (30 percent disabling), and unspecified anxiety disorder (30 percent disabling). The Veteran's combined disability rating was 50 percent. As such, the Board notes that the Veteran did not meet the schedular requirements for a TDIU. In cases where the Veteran does not meet the schedular requirements for a TDIU but is unable to secure or follow a substantially gainful occupation by reason of service-connected disability, rating boards should refer the issue of entitlement to an extraschedular TDIU to the Director, Compensation and Pension Service. While he was in the Army, the Veteran trained as an air conditioner mechanic, as well as an aviation mechanic. The Veteran then worked as a chiropractor until 1998, when he retired. After that the Veteran had several "odd jobs," his last one being a school bus driver. In an April 2013 VA examination the Veteran reported that he had to quit his last job in 2012 "due to his anxiety and ... tremor." The Board notes that the Veteran's education and employment history show that his experience is with jobs that appear to require coordination and fine motor skills. Therefore, the Board finds that the combination of the Veteran's service-connected disabilities prior to August 23, 2019, may present an exceptional disability picture that prevents him obtaining and maintaining substantially gainful employment. The matters are REMANDED for the following action: 1. Refer the Veteran's claims to the Director, Compensation Service, for consideration of whether a TDIU on an extraschedular basis is warranted pursuant to 38 C.F.R. § § 4.16 (b) prior to August 23, 2019. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, Associate 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.