Citation Nr: 1329977	
Decision Date: 09/18/13    Archive Date: 09/25/13

DOCKET NO.  08-05 051	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for coronary artery disease, to include as due to service-connected generalized anxiety disorder. 

2.  Entitlement to an increased rating for generalized anxiety disorder, currently rated as 50 percent disabling.  



REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services



ATTORNEY FOR THE BOARD

J. Andrew Ahlberg, Counsel

INTRODUCTION

The Veteran served on active duty from July 1943 to August 1945. 

This case was previously before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO) which denied the Veteran's claim for a rating in excess of 50 percent for a generalized anxiety disorder and a January 2009 rating decision that, inter alia, denied the Veteran's claim for service connection for coronary artery disease, to include as due to service-connected generalized anxiety disorder.  The case was remanded by the Board for additional development in July 2012.  Pursuant to this development, three other issues previously on appeal, entitlement to service connection for gastroesophageal disease and a gastrointestinal disability claimed as stomach and bowel problems and entitlement to total disability rating for compensation based on individual unemployability (TDIU), were granted by a November 2012 rating decision.  As such, the only issues remaining on appeal are as listed on the Title Page.   

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).

The claim for entitlement to service connection for coronary artery disease, to include as due to service-connected generalized anxiety disorder, requires additional development and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.

FINDINGS OF FACT

1.  At no time during the appeal period has generalized anxiety disorder resulted in manifestations that more nearly approximate occupational and social impairment with deficiencies in most areas, or total occupational and social impairment.

2.  There is evidence indicating that the Veteran was unable to secure or follow a substantially gainful occupation as a result of generalized anxiety disorder from the time he submitted his claim for an increased rating for such disability on February 22, 2006.  

CONCLUSIONS OF LAW

1.  The criteria for a rating in excess of 50 percent for generalized anxiety disorder
are not met at any time during the appeal period.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.7, 4.40, 4.45, 4.59, 4.130, Diagnostic Code (DC) 9400 (2013). 

2.  Resolving all reasonable doubt in favor of the Veteran, the criteria for TDIU are met from February 22, 2006.  38 U.S.C.A. § 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 4.16 (2013).  


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I.  VA's Duties to notify and Assist

Under the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). 

Proper notice from VA must inform the claimant of any information and medical or lay evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002).  This notice must be provided prior to an initial RO decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328, 1333 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  \

Defective timing or content of VCAA notice is not prejudicial to a claimant if the error does not affect the essential fairness of the adjudication, such as where (1) the claimant demonstrates actual knowledge of the content of the required notice; (2) a reasonable person could be expected to understand from the notice what was needed; or (3) a benefit could not have been awarded as a matter of law.  Sanders v. Nicholson, 487 F.3d 881, 889 (Fed. Cir. 2007), rev'd on other grounds, Shinseki v. Sanders/Simmons, 556 U.S. 396 (2009).  Defective timing may be cured by a fully compliant notice letter followed by a readjudication of the claim.  Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006). 

In a claim for an increased rating such as in this case, the VCAA requirement is generic notice, that is, the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). 

In the instant case, a March 2006 letter, issued prior to initial adjudication, notified the Veteran that medical or lay evidence could be submitted to substantiate his claim for an increased rating and provided specific examples of such evidence.  This letter also indicated that the Veteran could submit statements from individuals who were able to describe from their knowledge in what manner his disability had worsened.  Additionally, a May 2006 letter advised the Veteran of the information and evidence necessary to establish an effective date in accordance with Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  As such, the Board finds that the duty to notify has been satisfied in this case.  Notwithstanding this fact, the Veteran has not otherwise alleged prejudice with regard to any notice deficiency.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (holding that a party alleging defective notice has the burden of showing how the defective notice was harmful).

VA's duty to assist the Veteran has also been satisfied in this case.  38 U.S.C.A. § 5103A(b), (c); 38 C.F.R. § 3.159(c)(1)-(3).  Reports from VA and private medical treatment and statements from private examiners and other individuals have been obtained, as have reports from VA psychiatric examinations, most recently from one conducted in August 2012.  Taken together, the examinations that have been provided to the Veteran are adequate because they contain histories obtained from the Veteran and thorough clinical findings relevant to the applicable rating criteria for the psychiatric disability as issue.   

As indicated, the appeal was remanded by the Board in July 2012, and that remand conferred upon the appellant the right to compliance with the instructions therein.  See Stegall v. West, 11 Vet. App. 268, 271 (1998).  The instructions of this remand were to contact the Veteran and afford him the opportunity to submit additional evidence or argument to support his claims; obtain records from the Social Security Administration (SSA); and schedule the Veteran for a VA examination to determine the severity of his generalized anxiety disorder.  The record reveals that all these actions were completed to the extent possible [the AMC requested records from the SSA in July 2012, and a reply from the SSA in August 2012 indicated that no such records pertaining to the Veteran existed.  See September 17, 2012, Formal Finding of Unavailability of SSA Records]; as such, the Board finds that there has been substantial compliance with its remand with respect to the claim for an increased rating adjudicated herein.  D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that there must be substantial compliance with the terms of a Court or Board remand).

There is no indication in the record that additional evidence relevant to the issue decided herein is available and not part of the claims file.  See Pelegrini, 18 Vet. App. at 121-22.  As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the claim adjudicated herein, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537, 542-43 (2006), aff'd, Mayfield v. Nicholson, 499 F.3d 1317 (2007); see also Dingess/Hartman, 19 Vet. App. at 486.  As such, the Board may proceed to adjudication of the claim for an increased rating for generalized anxiety disorder. 

II.  Legal Criteria, Factual Background, and Analysis

Legal Criteria
The Board notes that it has reviewed all of the evidence of record, to include in the Veteran's claims file and the Virtual VA file, with an emphasis on the evidence relevant to this appeal.  (The Virtual VA file reflects VA outpatient treatment reports not physically of record dated through September 4, 2012, that are documented to have been considered in the November 2012 supplemental statement of the case).  Although there is an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record.  Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (VA must review the entire record, but does not have to discuss each piece of evidence).  Hence, the Board will summarize the relevant evidence as appropriate and the analysis will focus specifically on what the evidence shows, or fails to show, as to the increased rating claim on appeal.   

When there is an approximate balance in the evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102.  In Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990), the U. S. Court of Appeals for Veterans Claims (Court) held that an appellant need only demonstrate that there is an "approximate balance of positive and negative evidence" in order to prevail.  The Court has also stated, "It is clear that to deny a claim on its merits, the evidence must preponderate against the claim."  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4.  The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  In resolving this factual issue, the Board may only consider the specific factors as are enumerated in the applicable rating criteria.  See Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992).

In considering the severity of a disability, it is essential to trace the medical history of the Veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Additionally, if two evaluations are potentially applicable, the higher evaluation is assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating is assigned.  38 C.F.R. § 4.7.  Any reasonable doubt regarding a degree of disability is resolved in favor of the Veteran.  38 C.F.R. § 4.3. 

In adjudicating increased rating claims, a "staged" rating(s), or assigning separate percentage evaluations for separate periods based on the facts found during the appeal period, may be assigned.  See Hart v. Mansfield, 21 Vet. App. 505 (2007). 

The service connected generalized anxiety disorder has been rated under DC 9400, and the criteria for rating such psychiatric disability are set forth in the General Rating Formula for evaluating psychiatric disabilities other than eating disorders.  See 38 C.F.R. § 4.130.

Under the General Rating Formula, a 30 percent rating is assigned when 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, recent events). 

A 50 percent rating is assigned for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more 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; difficulty in establishing and maintaining effective work and social relationships.  Id. 

A 70 percent rating is assigned for 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); inability to establish and maintain effective relationships.  Id.

A 100 percent rating is assigned for 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; memory loss for names of close relatives, own occupation or own name.  Id.

The symptoms recited in the criteria in the rating schedule for evaluating mental disorders are "not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating."  Mauerhan v. Principi, 16 Vet. App. 436, 442 (2002).  In adjudicating a claim for an increased rating, the adjudicator must consider all symptoms of a claimant's service-connected mental condition that affect the level of occupational or social impairment.  Id. at 443. 

Psychiatric examinations frequently include assignment of a Global Assessment of Functioning (GAF) score.  According to the Fourth Edition of the "American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders" (DSM-IV), GAF is a scale reflecting the "psychological, social, and occupational functioning on a hypothetical continuum of mental health-illness."  There is no question that the GAF score and interpretations of the score are important considerations in rating a psychiatric disability.  See e.g., Richard v. Brown, 9 Vet. App. 266, 267 (1996); Carpenter v. Brown, 8 Vet. App. 240 (1995).  However, the GAF score assigned in a case, like an examiner's assessment of the severity of a condition, is not dispositive of the evaluation issue; rather, the GAF score must be considered in light of the actual symptoms of the Veteran's disorder, which provide the primary basis for the rating assigned.  See 38 C.F.R. § 4.126(a).

Increased Rating
Pertinent evidence to the claim for an increased rating for generalized anxiety disorder includes reports from an April 2006 VA psychiatric examination that showed the Veteran stating that his psychiatric problems included a depressed mood, anxiety, and concern for his physical problems including heart disease.  During the examination, the Veteran was cooperative but appeared to be anxious and tremulous.  His mood was slightly dysthymic and he was alert, oriented, relevant, and coherent.  There were no evident signs of psychosis and the Veteran did not exhibit suicidal or homicidal thinking.  There was no impairment of thought processes and he described his experiences, problems, and symptoms in an appropriate and sincere manner.  The estimated impact of psychiatric symptoms on social and occupational functioning was moderate to severe.  The GAF score was 50, indicative of "serious" impairment in social or occupational functioning.  

At a June 2010 VA psychiatric examination, the Veteran reported that he was beginning to have memory problems; occasional nightmares; and feelings of anxiousness or nervousness.  Upon examination, the Veteran was observed to be clean and neatly groomed and to have unremarkable psychomotor activity.  Speech was spontaneous and the Veteran was cooperative and attentive with the examiner.  Affect was appropriate and mood was good; there was an attention disturbance in that the Veteran was easily distracted; the Veteran was oriented to three spheres; thought process and content were unremarkable; judgment and insight were intact; there was no sleep impairment, hallucinations, or inappropriate behavior; the Veteran interpreted proverbs appropriately; and there were no obsessional/ritualistic behaviors, panic attacks, or homicidal or suicidal thoughts.  Impulse control was good with no episodes of violence and the Veteran was said to be able to maintain minimum personal hygiene and have no problems with the activities of daily living.  Remote memory was mildly impaired and recent and immediate memory were moderately impaired.  Following the examination, a cognitive disorder was diagnosed in addition to anxiety disorder and depressive disorder, not otherwise specified (NOS).  The GAF score was 60, indicative of "moderate" impairment in social or occupational functioning.  (The examiner indicated that the GAF score would be "quite a lot higher" if not for his cognitive disorder.)

The most recent VA psychiatric examination, conducted in August 2012 pursuant to the July 2012 remand, demonstrated a GAF score of 60.  In reporting what best summarized the level of occupational and social impairment resulting solely from psychiatric disability as set forth in the rating criteria, the examiner selected the statement "occupational and social impairment due to mild or transient symptoms which decrease work efficiency and [the] ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by medication."  As such, the examiner specifically selected the level of disability characterized by a 10 percent rating, and not a 70 percent rating or higher, as codified under 38 C.F.R. § 4.130.  The only psychiatric symptom, from an extensive list of symptoms contemplated by the rating criteria, said to be present was anxiety.  

Review of VA outpatient psychiatric treatment reports does not reflect a level of psychiatric impairment that is significantly at odds with that described on the VA examination reports set forth above.  In this regard, reports from the VA mental hygiene clinic treatment physically of record reflect the following GAF scores since the Veteran filed his claim in February 2006:  50 in April 2006, 70 in May 2006, 65 in August 2006, 65 in February 2007, 60 in April 2008, and 55-60 in October 2008.  In addition, the Veteran reported that he was doing well with no complaints on a VA mental hygiene clinic report contained in the Virtual VA File dated August 4, 2010.  Only "mild" memory loss was reported at that time.  

Considering the pertinent evidence of record set forth above, the Board finds that the criteria for a rating in excess of 50 percent for generalized anxiety disorder are not met.  In point of fact, none of the criteria for a 70 percent rating appear to have been met, and it is nonetheless clear that the far majority of the examples of symptoms listed for a 70 percent rating are simply not demonstrated.  In addition, the GAF scores, taking as a whole, show essentially moderate difficulty in functioning.  See Carpenter, supra.  

Moreover, the Board finds that the criteria for a 100 percent rating under the General Rating Formula are not met.  In this regard, the evidence does not show that the Veteran has 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; memory loss for names of close relatives, own occupation, or own name.  

In determining that the criteria for a rating in excess of 50 percent for the Veteran's service-connected generalized anxiety disorder are not met, the Board has considered the applicable rating criteria not as an exhaustive list of symptoms, but rather, as examples of the type and degree of the symptoms or effects that would justify a particular rating.  The Board has not required the presence of a specified quantity of symptoms in the rating schedule to warrant the assigned rating for the psychiatric disability in question.  See supra, Mauerhan.  

The Board notes that in finding that the rating criteria were not met for an increased rating for generalized anxiety disorder, entitlement to increased compensation on the basis of a staged rating has been considered but has not been demonstrated.  See Hart, supra.

In making its determination in this case, the Board has also carefully considered the Veteran's contentions with respect to the nature of his service-connected psychiatric disability and notes that his lay testimony is competent to describe certain symptoms associated with this disability.  The Veteran's history and symptom reports have been considered, including as presented in the medical evidence discussed above, and has been contemplated by the disability rating that has been assigned.  Moreover, the competent clinical evidence offering detailed specific findings pertinent to the rating criteria is the most probative evidence with regard to evaluating the pertinent symptoms of the service-connected disability at issue.  As such, while the Board accepts the Veteran's testimony with regard to the matter he is competent to address, the Board relies upon the competent clinical evidence with regard to the specialized evaluation of functional impairment, symptom severity, and details of clinical features of the service-connected condition at issue.   

Extra-Schedular Consideration
Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration.  An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable.  38 C.F.R. § 3.321(b)(1). 

In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied.  Specifically, the Court stated that the determination of whether a claimant is entitled to an extra-schedular rating under 3.321 is a three-step inquiry.  First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization."  Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the claimant's disability picture requires the assignment of an extra-schedular rating.  Id.  

The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected psychiatric disability at issue with the established criteria found in the rating schedule.  The Board finds that the disability at issue is fully addressed by the rating criteria under which psychiatric disabilities are rated.  In this regard, the specific diagnostic criteria adequately addresses the whole of the Veteran's symptoms referable to his service-connected psychiatric disability.  There are no additional symptoms of the service-connected disability at issue.  Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology associated with the service-connected disability addressed above.  As such, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization.  Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted.  Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996).  

"Because the VA disability rating schedule is designed to consider the disabling effect of disabilities separately, no single DC provision will adequately assess the variety of symptoms involved with multiple service-connected disabilities."  Johnson v. Shinseki, No. 10-1785, slip op. at 10 (Vet. App. Mar. 27, 2013) (en banc).  Thus, as to the question of "whether [38 C.F.R.] § 3.321(b)(1) requires VA to consider multiple service-connected disabilities on a collective basis" the Court held that it did not.  Johnson v. Shinseki, No. 10-1785, slip op. at 4 (Vet. App. Mar. 27, 2013) (en banc) (noting that a concurring opinion in Brambley v. Principi, 17 Vet. App. 20, 27 (2003) that there should have been a determination of "whether the appellant's service-connected disabilities as a whole [sic] entitled [a Veteran] to [an extraschedular rating] under § 3.321(b)(1)" had never been adopted by the Court and concurring opinions are not binding on the Court" (citing Maryland v. Wilson, 519 U.S. 408, 412-13).  Stated in other terms, an extraschedular rating may not be assigned for the cumulative impact of the service-connected disabilities herein at issue. 
TDIU
The Board also acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009) that a total rating based on individual unemployability due to service-connected disability (TDIU) claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran.  As noted in the Introduction, the record reflects that the Veteran was awarded TDIU by way of a November 2012 rating decision.  This award was made effective from February 14, 2008.  In light of the fact that the appeal adjudicated above stems initially from a claim for an increased rating for service connected psychiatric disability filed in February 2006, the Board has considered whether the issue of entitlement to a TDIU during the appeal period prior to February 14, 2008, has been raised.  

In this regard, the June 2010 VA psychiatric examination report indicated than that the Veteran was no longer working because he had retired in 1999 due to being "[e]ligible by age or duration of work," rather than due to psychiatric problems.  However, evidence in the form of a statement from the Veteran's employer and a mental health professional received in June 2001 indicated that the Veteran was not able to work due to psychiatric difficulties, as did another statement from a mental health professional dated in November 2002.  Multiple statements from T. L. H., M.D., beginning in 2003 have indicated that work was precluded by psychiatric symptoms.  As an aside, the above evidence was submitted on behalf of the Veteran during a previous claim for a total rating evaluation based upon individual unemployability.  That claim was denied by the Board in April 2004 and was unappealed.  However, in the current claim, and based upon a review of all the evidence of record, the Board has resolved all reasonable doubt in favor of the Veteran and concluded that entitlement to TDIU is warranted from the date of the claim for an increased rating for generalized anxiety disorder, February 22, 2006.  38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.16; Gilbert, supra. 

Finally, the Board also is cognizant of the fact that the Court has noted that VA has a "well-established" duty to maximize a claimant's benefits.  See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); AB v. Brown, 6 Vet. App. 35, 38 (1993); see also Bradley v. Peake, 22 Vet. App. 280 (2008).  This duty to maximize benefits requires VA to assess all of a claimant's disabilities to determine whether any combination of disabilities establishes entitlement to special monthly compensation (SMC) under 38 U.S.C.A § 1114.  See Bradley, 22 Vet. App. 280, 294 (2008) (finding that SMC "benefits are to be accorded when a Veteran becomes eligible without need for a separate claim").  Subsection 1114(s) requires that a disabled Veteran whose disability level is determined by the ratings schedule must have at least one disability that is rated at 100 percent in order to qualify for the special monthly compensation provided by that statute.  Under the law, subsection 1114(s) benefits are not available to a Veteran whose 100 percent disability rating is based on multiple disabilities, none of which is rated at 100 percent disabling.  As a 100 percent rating due to one service connected disability has not been assigned, consideration of entitlement to SMC under the holding in Bradley is not indicated. 

In sum, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 50 percent for generalized anxiety disorder at any time during the appeal period.  Therefore, the benefit of the doubt doctrine is not applicable, and the claim for an increased rating for generalize anxiety disorder must be denied.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert, supra.  


ORDER

Entitlement to a rating in excess of 50 percent for generalized anxiety disorder is denied.    

Entitlement to TDIU effective from February 22, 2006, is granted, subject to the legal authority governing the payment of compensation benefits.


REMAND

Unfortunately the Board finds that further RO action with respect to the claim for service connection for coronary artery disease, to include as due to service-connected generalized anxiety disorder, is warranted, even though such will, regrettably, further delay an appellate decision on this matter.

The July 2012 remand noted that at a VA heart examination in June 2010, the VA examiner was asked to provide, and rendered a negative nexus opinion, concerning the contended etiological relationship between the Veteran's coronary artery disease and his service-connected generalized anxiety disorder.  However, the June 2010 VA examiner was not asked to provide-and did not offer any opinion-concerning the contended causal relationship between the Veteran's coronary artery disease and active service.  As such, the remand directed that the Veteran be scheduled for a VA examination which addressed the contended causal relationship between his coronary artery disease and active service.  Unfortunately, this request was not accomplished, as the report from the August 2012 VA cardiovascular examination contained no opinion as to the relationship between coronary artery disease and service.  Moreover, when contacted by the AMC in September 2012 to provide such an opinion, the physician's assistant who conducted the August 2012 VA examination incorrectly replied at that time that it was at least as likely as not that the Veteran's coronary artery disease was the result of service because it was a presumed illness for Veterans who served in Vietnam (the Veteran served during World War II, not the Vietnam War.)   

From the above, there has not been the required compliance with the instructions of the July 2012 BVA remand with respect to the claim for service connection for connection for coronary artery disease.  See Stegall, supra.  Therefore, this claim must again be remanded to afford the Veteran a VA examination that includes, as previously requested by the Board, an opinion as to whether the Veteran's coronary artery disease is related to service.  Moreover and notwithstanding the negative opinion in this regard following the June 2010 VA examination, which does not specifically document consideration of the report from this examination, given a November 1947 VA examination finding that the Veteran had tachycardia that was "apparently psychogenic," another opinion as to whether the Veteran's coronary artery disease is etiologically related to service connected psychiatric disability that documents consideration of this evidence suggesting a link between psychiatric symptoms and a cardiovascular condition will also be requested upon remand.  

Prior to arranging for further examination, and to ensure that the record before the examiner is complete and that all due process requirements are met, the RO will also be requested below to afford the Veteran another opportunity to present information and/or evidence pertinent to the matter remaining on appeal.  

Accordingly, the case is REMANDED for the following action:

(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  Expedited handling is requested.)

1.  Obtain all outstanding, pertinent records of VA evaluation and/or treatment of the Veteran.  Follow the procedures set forth in 38 C.F.R. § 3.159(c) with respect to requesting records from Federal facilities.  All records/responses received should be associated with the claims file.

2.   Send to the Veteran and his representative a letter requesting that the Veteran provide sufficient information, and if necessary, authorization, to enable it to obtain any additional evidence pertinent to the claim for service connection for coronary artery disease.  Specifically request that the Veteran provide, or provide appropriate authorization to obtain, any outstanding private medical records.

3.  If the Veteran responds, assist him in obtaining any additional evidence identified by following the current procedures set forth in 38 C.F.R. § 3.159.  All records and responses received should be associated with the claims file.  If any records sought are not obtained, notify the Veteran of the records that were not obtained, explain the efforts taken to obtain them, and describe further action to be taken.

4.  After all records and/or responses received from each contacted entity have been associated with the claims file, arrange for the Veteran to undergo an appropriate VA examination to determine the current nature and etiology of his coronary artery disease.  The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination.  All appropriate tests and studies should be accomplished. The Veteran should be asked to provide a complete medical history, if possible.  The examiner is asked to identify any manifestations of coronary artery disease currently experienced by the Veteran, if possible. 

Based on a review of the Veteran's claims file and the results of his physical examination, and the Veteran's statements regarding the development and treatment of his claimed disorder, the examiner is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that coronary artery disease, if diagnosed, is related to active service or any incident of service.  The examiner also is asked to opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's service-connected generalized anxiety disorder caused or aggravated (permanently worsened) coronary artery disease, if diagnosed.  A complete rationale must be provided for any opinions expressed, and the examiner should specifically comment on the significance, or lack thereof, of the indication of psychogenic tachycardia at the November 1947 VA examination.

The examiner is to be advised that service connection currently is in effect for generalized anxiety disorder. The examiner also to be advised that the Veteran has contended that his coronary artery disease was caused or aggravated (permanently worsened) by active service or by his service-connected generalized anxiety disorder.  All examination findings and any test results, along with complete rationale for the conclusions reached, should be set forth in a printed (typewritten) report.

5.  To help avoid yet another remand, the RO must ensure that all requested actions have been accomplished (to the extent possible) in compliance with this REMAND.  If any action is not undertaken, or is taken in a deficient manner, appropriate corrective action should be undertaken.  See Stegall, supra.   

6.  After completing the requested actions, and any additional notification and/or development deemed warranted, readjudicate the claim for service connection for coronary artery disease, to include as due to service-connected generalized anxiety disorder.  If this claim remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case that includes clear reasons and bases for all determinations, and afford them the appropriate time period for response before the claims file is returned to the Board for further appellate consideration.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court 
of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
MARJORIE A. AUER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs