Citation Nr: 1645637 Decision Date: 12/06/16 Archive Date: 12/19/16 DOCKET NO. 12-18 139 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to service connection for a respiratory disorder, claimed as chronic obstructive pulmonary disease, to include as secondary to service-connected disability. 2. Entitlement to service connection for peripheral artery disease of the right lower extremity, to include as secondary to service-connected coronary artery disease. 3. Entitlement to an increased initial rating for service-connected anxiety disorder, currently rated as 30 percent disabling. 4. Entitlement to an effective date earlier than September 10, 2013, for the grant of service connection for an anxiety disorder. 5. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities for the period from September 10, 2013. 6. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities for the period prior to September 10, 2013. REPRESENTATION Appellant represented by: John R. Worman, Attorney ATTORNEY FOR THE BOARD A. Fagan, Counsel INTRODUCTION The Veteran served on active duty from December 1967 to December 1970. This matter comes before the Board of Veterans' Appeals (Board) on appeal from March 2011, September 2012, and June 2015 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. The issues of entitlement to service connection for a respiratory disorder and peripheral artery disease (PAD) of the right lower extremity, an increased initial rating for an anxiety disorder, and entitlement to a TDIU for the period prior to September 10, 2013, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. The Veteran's reopened claim for service connection for an anxiety disorder was received by VA on July 2, 2012, and the record shows that he had anxiety associated with coronary artery disease at that time. 2. Since September 10, 2013, the Veteran's service-connected disabilities have rendered him unable secure and follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an earlier effective date of July 2, 2012, but no earlier, for the grant of service connection for an anxiety disorder have been met. 38 C.F.R. §§ 3.156(c)(1), (3); 3.400(b)(2) (2015). 2. The criteria for entitlement to a TDIU are met effective September 10, 2013. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.16 (a) (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A (West 2014), and implemented in part at 38 C.F.R § 3.159 (2015), amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. In the instant case, the Veteran is challenging the effective date assigned following the grant of service connection for an anxiety disorder. When a claim has been granted and there is disagreement as to "downstream" questions, such as effective dates, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. See Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007). Furthermore, in light of the fully favorable determinations as to the claims being decided herein, no further discussion of compliance with VA's duty to notify and assist is necessary, as any error as to the duty to notify and assist is harmless error. II. Earlier Effective Date Unless specifically provided otherwise in the statute, the effective date of an award based on an original claim for compensation benefits or a claim reopened after a prior final denial shall be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110 (a); 38 C.F.R. § 3.400. For service connection claims, the effective date is the day after separation from service or date entitlement arose, if a claim is received within one year of separation from service; otherwise the general rule applies. 38 U.S.C.A. § 5110 (b)(1); 38 C.F.R. § 3.400 (b)(2)(i). The Veteran generally asserts that he is entitled to an earlier effective for the grant of service connection for an anxiety disorder. Following a review of the record, the Board agrees. By way of history, the record reflects that VA received a claim for service connection for anxiety in November 2009. That claim was denied in a September 2010 rating decision, which found that there was no currently diagnosed anxiety disorder. As the Veteran did not appeal that denial and because no new and material evidence was received within one year of that denial, the rating decision became final. See 38 U.S.C.A. § 7105 (c); 38 C.F.R. §§ 3.156 (b), 20.1103. Thereafter, a new claim for a psychiatric disorder (claimed as depression and PTSD) was received on July 2, 2012. That claim was subsequently granted in the June 2015 rating decision on appeal with an effective date of September 10, 2013, which is the date of a VA psychologist's opinion that the Veteran has an anxiety disorder attributable to his service-connected CAD and sternal deformity. The Board notes that while the July 2012 claim did not specify the diagnosis of "anxiety," the evidence of record and the Veteran's statements clearly indicate that he intended his claim to encompass the same psychiatric symptomatology, regardless of diagnosis. See Clemons v. Shinseki, 23 Vet. App. 1, 9 (2009) (multiple diagnoses or diagnoses that differ from the claimed condition do not necessarily represent wholly separate claims). Thus, the July 2, 2012, claim, though characterized differently, is considered an application to reopen the previously-denied claim of entitlement to service connection for an anxiety disorder. In any event, the Board finds that an effective date of July 2, 2012, is warranted, as that is the date of receipt of the reopened claim of entitlement to service connection for a psychiatric disorder. At that time, service connection was in effect for CAD and a sternal deformity. Moreover, while an August 2012 VA examiner found that no psychiatric diagnosis was warranted, the examiner did note the presence of anxiety on examination. Indeed, an April 2010 SSA psychologist assessed an adjustment disorder with anxiety, and during the August 2012 VA examination, the Veteran reported that he had been taking a psychiatric medication for five years. Moreover, in September 2013, a VA psychologist diagnosed an anxiety disorder associated with CAD and pain from the Veteran's sternal deformity, and a May 2015 VA examiner noted that the Veteran has had intermittent anxiety issues since undergoing a coronary artery bypass graft in January 2009 and found that anxiety was due to his cardiac condition. In light of the foregoing, the Board finds that the competent evidence of record shows that the Veteran suffered from anxiety related to his service-connected CAD and sternum disorders since undergoing his CAGB in 2009. However, here, the July 2, 2012 date of the claim controls, as it is later than the date entitlement arose. See 38 C.F.R. § 3.400 (b)(2). Therefore, the Board finds that the criteria for an effective date of July 2, 2012, for the grant of service connection for an anxiety disorder are met. Furthermore, the Board finds no communications prior to July 2, 2012, that may be considered an unadjudicated formal or informal claim of entitlement to service connection for a psychiatric disorder, nor is there any argument by the Veteran that any unadjudicated claims remained pending. Although the Veteran did file an earlier claim of entitlement to service connection for anxiety in November 2009, as discussed, that claim was finally denied by a September 2010 rating decision and cannot serve as the basis for an earlier effective date. Accordingly, the Board finds that the criteria for an effective date of July 2, 2012, but no earlier, for the grant of service connection for an anxiety disorder are met. III. TDIU From September 10, 2013 Total disability ratings for compensation may be assigned when a veteran is unable to secure and follow a substantially gainful occupation. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2015). In reaching such a determination, the central inquiry is "whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience when arriving at this conclusion; factors such as age or impairment caused by non-service connected disabilities are not to be considered. 38 C.F.R. §§ 3.341, 4.16, 4.19. Total disability ratings for compensation may be assigned where the schedular rating is less than total and when the disabled person is, in the judgment of the rating agency, unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16 . If there is only one such disability, this disability shall be ratable at 60 percent or more; if there are two or more disabilities, there shall 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). For the purpose of one 60 percent disability or one 40 percent disability, a number of disabilities resulting from a common etiology or a single accident will be considered as one disability. Id. For the period from September 10, 2013, service connection is in effect for three disabilities: coronary artery disease (rated as 30 percent disabling); anxiety disorder associated with CAD (rated as 30 percent disabling), and sternal deformity associated with CAD (rated as 10 percent disabling). The combined evaluation for those disabilities is 60 percent from September 10, 2013. Pursuant to section 4.16(a), the Board finds that the CAD, anxiety disorder, and sternal deformity may be considered in combination as a single disability stemming from a common etiology, namely CAD. For the period from September 10, 2013, therefore, the Veteran has a single disability rated as 60 percent disabling. As discussed below, the record reflects that he is unable to secure and follow substantially gainful employment as a result of his service-connected CAD and associated disabilities, and for this reason, for the period from September 10, 2013, he is entitled to schedular TDIU. In this regard, the record shows that the Veteran is a high school graduate and completed one year of college. Post service, he worked for many years as a route salesman or delivery man, and more recently worked performing physical labor, including in construction as a forklift driver, a material handler, a window mover/installer, and a warehouse manager loading and unloading trucks. During an August 2010 VA examination and in connection with his August 2010 application for SSA disability benefits, he reported that he last worked in August 2009 as a fork lift driver and was let go due to complications from his cardiac surgery, including his sternal dislocation. There is competent medical evidence of record that supports the Veteran's claim that he is unable to work due to his CAD and its associated disabilities, which impact his ability to perform physical activity and in particular, severely impair his ability to lift. In an August 2010 examination report, a VA heart examiner found that the Veteran should be considered "unemployable" and "permanently and totally disabled" as a result of complications of his cardiac surgery, which included sternal dislocation. The examiner noted that while the surgery improved his cardiac function, the complications of the sternal deformity "severely limits his ability to find and maintain employment." In January 2011, a VA examiner addressing individual unemployability also determined that the Veteran is unemployable for both sedentary and physical activities. The examiner noted that the Veteran's chest wall injury (presumably the sternal deformity) impacts his upper extremities. Similarly, in February 2011, a VA examiner noted that the Veteran has difficulty with repeated use of his upper extremities and cannot perform his usual job. The examiner further noted that the Veteran is not trained for an office type of job. Also supportive of the Veteran's claim is a September 2013 VA psychologist's opinion that the Veteran cannot sustain the stress from a competitive work environment and cannot be expected to engage in gainful activity secondary to the severe level of impairment caused by CAD, the sternal deformity, and anxiety. More recently, a VA examiner a January 2015 VA examiner concluded that the Veteran's CAD and sternal deformity would prevent physical, though not sedentary, employment. The Board is cognizant that an August 2012 VA examiner found that the Veteran's CAD and sternal deformity had no impact on the Veteran's employment. However, that opinion is in stark contrast to the rest of the medical evidence, which at the very least finds him incapable of physical employment due to his sternal deformity. Thus, it is not considered probative absent rationale for the disparate conclusion. Moreover, while the January 2015 VA examiner concluded that the Veteran's CAD and sternal deformity do not preclude sedentary employment, that opinion did not take into consideration the Veteran's anxiety disorder, and moreover, the record does not show that the Veteran has received the requisite education, training, or experience for an office job. In sum, the Veteran's professional career has been based primarily on work of a physical nature, and now he is unable to do such work. He does not have a college degree, relevant post-graduate training, nor does he have experience with sedentary professions. Even if the Veteran did have such experience, the January 2011 VA examiner stated that his sternal deformity precluded even sedentary employment, and the August 2010 VA examiner found him to be "permanently and totally" disabled. Accordingly, the Board finds that there is a reasonable basis to conclude that the Veteran's service-connected disabilities prevent him from being able to secure and follow substantially gainful employment. The assignment of a TDIU is therefore warranted effective September 10, 2013, when the schedular criteria for a TDIU are met. 38 C.F.R. § 4.16 (a). The issue of entitlement to a TDIU for the period prior to September 10, 2013, is addressed in the remand portion below. ORDER An effective date of July 2, 2012, but no earlier, for the grant of service connection for an anxiety disorder is granted. A TDIU is granted effective September 10, 2013. REMAND The Board finds that remand of the claims of entitlement to service connection for a respiratory disorder and peripheral artery disease (PAD) of the right lower extremity, an increased initial rating for an anxiety disorder, and entitlement to a TDIU for the period prior to September 10, 2013, is necessary for further development. Regarding the respiratory disorder, it is unclear whether the Veteran has a respiratory disorder separate and apart from his dyspnea caused by and contemplated by his service-connected CAD. In this regard, he has been diagnosed with asthma by his primary care provider based on evidence of improved breathing following use of an inhaler, as reflected in an April 2015 VA treatment note. Similarly, a July 2012 VA examiner appears to have diagnosed asthma based on the assessment of the primary care provider. However, a VA cardiologist subsequently opined in December 2014 and again in February 2016 that, because pulmonary function testing was negative for COPD or asthma, the most likely etiology of the Veteran's respiratory problems is mechanical. The cardiologist expressed his belief that the respiratory problems are "related to the problem with his sternum post CABG" affecting his breathing mechanics. The Board also observes that the Veteran was similarly noted to have respiratory problems due, at least in part, to limited chest expansion caused by his sternal deformity by a February 2011 VA examiner. Based on the foregoing, the Board finds that a new examination is necessary that includes pulmonary function testing to determine whether the Veteran has a respiratory disorder separate from the dyspnea associated with CAD. Regarding the PAD of the right lower extremity, also diagnosed as peripheral vascular disease (PVD) the Veteran wrote in March 2011 that he recently "found out that I have PAD that has developed in my right leg from my triple bypass surgery." While a VA examiner stated in July 2012 that CAD does not cause PVD and opined that the Veteran's PVD is at least as likely as not secondary to his significant tobacco use, the examiner did not offer an opinion on whether the Veteran's CAD aggravates any PVD. Thus, an addendum opinion is necessary. Next, regarding the anxiety increased rating claim, it is unclear whether relevant records may be outstanding. During an August 2012 VA examination, the Veteran reported that he had been prescribed alprazolam by his primary care physician five years prior and had been taking it ever since. Such report places an onset of psychiatric treatment around 2007, and the Board observes that in January 2007, non-VA medications included "ALPHAZOLAM 0.5 MG," presumably alphazolam with a typographical error. However, in February 2007, the Veteran reported that he was taking his wife's "nerve meds" and in connection with his August 2010 claim for SSA disability benefits, a review of the medical evidence of record shows a January 2009 denial of past mental health treatment or psychiatric medications. However, VA treatment notes also show a prescription for alprazolam filled in June 2008, and also in January 2009, when alprazolam was "restarted," the Veteran reported that he had been routinely taking Xanax, which was started by his primary care provider. Then, in September 2013, he reported to a VA psychologist that he was currently taking Xanax (alprazolam) and had been seeing "Dr. Fischer" for six years, also placing an onset of psychiatric treatment around 2007. Notably, there are no records of a Dr. Fischer in the claims file, nor does a Dr. Fischer (or Fisher) appear in VA treatment notes. Then, during a May 2015 examination, it was noted that the Veteran had no history of anxiety or treatment for the same until January 2009, following his CABG. Given the foregoing, the Board should seek clarification from the Veteran as to whether he has received any psychiatric treatment, to include from a Dr. Fisher, since 2007. For any provider identified, those records should be obtained. Additionally, ongoing VA treatment records should also be obtained, and the Veteran should be afforded another opportunity to identify any outstanding private treatment records related to his other claims. Finally, the evidence of record shows that the Veteran's service-connected disabilities prevent him from being able to secure and follow substantially gainful employment. As discussed above, the Board has granted a TDIU for the period from September 10, 2013. However, prior to that date, the Veteran does not meet the percentage criteria required for adjudication of a TDIU on a schedular basis. 38 C.F.R. § 4.16(a). Accordingly, the Veteran's claim is referred to the Director, Compensation Service, for initial consideration of whether a TDIU is warranted for the period prior to September 10, 2013 on an extraschedular basis. 38 C.F.R. § 4.16 (b). Accordingly, the case is REMANDED for the following action: 1. Ask the Veteran to identify any outstanding private treatment records that he wishes VA to obtain, to include a Dr. Fisher or any provider who has treated him for mental health problems since 2007, including a primary care physician who prescribed alprazolam, and advise him that he may submit any additional evidence or information he might have to support his claim, to include lay statements. After obtaining any necessary authorization forms from the Veteran, obtain any pertinent records identified and associate them with the claims file. Any negative responses should be in writing and should be associated with the claims file. 2. Obtain any outstanding VA treatment records dated since April 2016. If any requested records are unavailable, the claims file should be annotated as such and the Veteran and his representative notified of such. 3. Then, schedule the Veteran for a VA examination with a respiratory specialist to determine the nature and etiology of his respiratory disorder. After reviewing the claims file, performing a physical examination of the Veteran, and conducting any indicated tests, including pulmonary function testing, the examiner is asked to address the following: (a) Please identify all current respiratory disorders. In identifying all current disorders, please consider medical and lay evidence dated both prior to and since the filing of the November 2009 claim and specifically discuss whether the Veteran has or had asthma or any other respiratory disorder other than CAD-related dyspnea. Please note that although the Veteran may not meet the criteria for a diagnosis at the present time, diagnoses made prior to and since the date of claim filing meet the criteria for a "current" diagnosis. For any diagnoses of record which cannot be validated or confirmed, please explain why such diagnoses cannot be confirmed. (b) For every diagnosed respiratory disorder, please state whether it is at least as likely as not (50 percent probability or more) that the disorder was caused by a service-connected disability, to include CAD or a sternal deformity. In this regard, the examiner should specifically discuss whether the Veteran experiences mechanical breathing problems as a result of his sternal deformity, and whether there is any functional impact as a result of such problems. (c) If the respiratory disorder is not caused by a service-connected disability, to include CAD or sternal deformity, state whether it is at least as likely as not (50 percent probability or greater) that service-connected CAD or sternal deformity aggravates the respiratory disorder. If it is determined that the Veteran's respiratory disorder was worsened by a service-connected disorder, to the extent that it is possible the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. The VA examiner is further informed that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. A complete rationale should accompany any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 4. Then send the claims file to a VA vascular specialist for review. If a new examination is deemed necessary, one should be scheduled. After reviewing the claims file, the examiner is asked to address the following: (a) State whether it is at least as likely as not (50 percent probability or greater) that the Veteran's right leg peripheral artery disease or peripheral vascular disease was caused by the Veteran's service-connected CAD or any other service-connected disability. (b) If right leg peripheral artery disease was not caused by a service-connected disability, please state whether it is at least as likely as not (50 percent probability or greater) that any diagnosed right leg peripheral artery disease or vascular disease is aggravated by the Veteran's service-connected CAD or any other service-connected disability. If it is determined that the Veteran's peripheral artery disease was worsened by a service-connected disorder, to the extent that it is possible the examiner should indicate the approximate degree of disability or baseline before the onset of the aggravation. The VA examiner is further informed that aggravation for legal purposes is defined as a worsening of the underlying disability beyond its natural progression versus a temporary flare-up of symptoms. A complete rationale should accompany any opinion provided. If the examiner cannot provide the requested opinion without resorting to speculation, he or she should expressly indicate this and provide a supporting rationale as to why that is so. 5. Refer to the Director, Compensation Service, the issue of entitlement to a TDIU for the period prior to September 10, 2013, on an extraschedular basis, if, and only if, the Veteran continues to not meet the schedular criteria for a TDIU prior to September 10, 2013, despite the development otherwise requested in this Remand. 6. After completing the requested actions, and any additional action deemed warranted, readjudicate the claims on appeal. If any benefit sought on appeal remains denied, provide a supplemental statement of the case to the Veteran and his representative and afford them an opportunity to respond. Then, return the case to the Board, if in order. 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 2014). ______________________________________________ S.C. KREMBS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs