Citation Nr: 21000193 Decision Date: 01/04/21 Archive Date: 01/04/21 DOCKET NO. 18-12 534 DATE: January 4, 2021 REMANDED Entitlement to service connection for a heart disability, to include as secondary to herbicide exposure, is remanded. Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), depressive disorder, and unspecified personality disorder is remanded. Entitlement to an initial disability rating in excess of 30 percent for diabetic nephropathy associated with diabetes mellitus is remanded. Entitlement to an initial disability rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy of the sciatic nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity peripheral neuropathy of the sciatic nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for left lower extremity peripheral neuropathy of the femoral nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for right lower extremity peripheral neuropathy of the femoral nerve is remanded. Entitlement to an initial disability rating in excess of 10 percent for moderate nonproliferative diabetic retinopathy with macular edema and nuclear sclerotic cataracts is remanded. REASONS FOR REMAND The Veteran served honorably on active duty with the United States Air Force from June 1966 to January 1970 and had overseas service in the Republic of Vietnam. In the March 2017 rating decision on appeal, the RO awarded service connection for diabetes mellitus, diabetic nephropathy, left lower extremity peripheral neuropathy of the sciatic nerve, right lower extremity peripheral neuropathy of the sciatic nerve, left lower extremity peripheral neuropathy of the femoral nerve, right lower extremity peripheral neuropathy of the femoral nerve, and moderate nonproliferative diabetic retinopathy with macular edema and nuclear sclerotic cataracts, all effective May 10, 2016. In his May 2017 notice of disagreement (NOD), the Veteran specifically indicated disagreement with both the disability evaluation assigned and effective date of award for these disabilities. Subsequently, in a December 2017 letter memorializing a telephone conference with the DRO, the Veteran’s attorney acknowledged that the Veteran had been assigned the earliest possible effective date for his disabilities and asked that “all of the effective date issues” be dismissed. This was further acknowledged in a December 2017 deferred rating form. Therefore, the earlier effective date claims were not addressed in the December 2017 statement of the case (SOC). The Board acknowledges that the Veteran, through his attorney, appears to have continued to seek earlier effective dates in his January 2018 VA Form 9. However, given that the Veteran, through his attorney, withdrew these claims in writing in December 2017, they will not be addressed further in this decision. In November 2019, the Veteran testified at a travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Although the Board regrets the delay, the matters on appeal must be remanded for additional development. At the outset, the Board notes that the Veteran submitted copious VA treatment records in support of his claim, including numerous records that post-date the December 2017 SOC. Additionally, it appears that some VA treatment records remain outstanding. For instance, the Veteran’s VA PTSD examination report indicates the Veteran had psychiatric treatment through VA in the early 1990s and in 2000, but those records are unavailable for review. Further, available VA treatment records reference a September 2016 addendum report from Dr. S.H., a clinical psychologist who interviewed the Veteran in August 2016, but the addendum is not available for review. Finally, the Veteran’s March 2017 VA heart conditions examination report indicates the Veteran presented to the “MonValley” Emergency Department for treatment and was diagnosed with congestive heart failure, and that he was also treated by a non-VA primary care provider for a number of years. None of these records are available for review. Therefore, remand is warranted to obtain any relevant outstanding VA and private medical treatment records. Remand is also warranted for the following reasons: 1. Entitlement to service connection for a heart disability The Board notes that the Veteran’s claim for a heart disability was originally adjudicated as a claim of entitlement to service connection for ischemic heart disease. Because the evidence suggests the Veteran has multiple heart disabilities, including congestive heart failure, cardiomyopathy secondary to hypertension, and hypertensive heart disease, the Board has broadened the claim under Clemons v. Shinseki, 23 Vet. App. 1 (2009). The Veteran was afforded a VA examination in connection with his claim in March 2017. The examiner diagnosed congestive heart failure, cardiomyopathy secondary to hypertension, and hypertensive heart disease, but she did not diagnose ischemic heart disease. The examiner did not opine as to the etiology of the other diagnosed heart disabilities. In support of his claim, the Veteran submitted a submitted a December 2019 letter from a private physician, Dr. M.F., who wrote that the Veteran had developed ischemic heart disease with intermittent chest pain, which was “as likely as not . . . related to his exposure to Agent Orange.” Dr. M.F. did not explain how he diagnosed the Veteran with ischemic heart disease. There is no indication he examined the Veteran in person; indeed, his letter notes that his opinion was based on review of the Veteran’s records alone. Overall, based on the conflicting evidence of record, the Board finds that another VA examination and opinion is warranted in order to determine the nature and etiology of the Veteran’s heart disabilities. 2. Entitlement to service connection for an acquired psychiatric disorder The Board notes that the RO originally adjudicated the issue of entitlement to service connection for an acquired psychiatric disorder as three separate claims for entitlement to service connection for PTSD; entitlement to service connection for unspecified depressive disorder with anxious distress; and entitlement to service connection for other specified personality disorder (claimed as PTSD). The Board has combined and recharacterized the Veteran’s separately adjudicated claims as a single claim of entitlement to service connection for an acquired psychiatric disorder, to include PTSD, depressive disorder, and unspecified personality disorder. See Clemons, 23 Vet. App. at 5. The Veteran contends that his psychiatric symptoms are etiologically related to service. He has described several different stressors that occurred during service in Vietnam and has asserted that he started experiencing psychiatric symptoms upon return from Vietnam. The Veteran has also suggested that his depressive symptoms are related to his service-connected disabilities and the way they have negatively impacted his life. He was afforded a VA PTSD examination in connection with his claim in February 2017. The examiner did not diagnose PTSD but diagnosed unspecified depressive disorder with anxious distress and other specified personality disorder. The examiner found that the depressive and personality disorders were not related to service, explaining that personality disorders, by definition, begin in early adulthood or adolescence, and that anxiety and depressive symptoms were not documented until 1990. The examiner did not explain why this meant that the Veteran’s disability was less likely than not related to service. Further, the examiner did not provide an opinion concerning the relationship between the Veteran’s psychiatric disorders and his service-connected disabilities. In support of his claim, the Veteran submitted a December 2019 examination report by private psychologist Q.A.S., who determined that “an accurate psychiatric diagnostic formulation for [the Veteran] would involve persistent depressive disorder, intermittent explosive disorder, and PTSD” and determined that the disorders were more likely than not related to his military service in Vietnam. Dr. Q.A.S. wrote that the Veteran had no history of psychiatric conditions prior to military service, that he began experiencing “considerable difficulties” functioning in work and social environments after returning from Vietnam, and that he had no other history of abuse, neglect, or other trauma that could otherwise explain the development of his symptoms. He did not address VA treatment records, including the February 2017 examination report, suggesting the Veteran had a possible history of abuse during childhood and mental health treatment following the death of his parents and his wife leaving him in 1990. Further, Dr. Q.A.S. is not a VA psychiatrist or psychologist qualified to confirm that the Veteran’s stressors are adequate to support a diagnosis of PTSD, or that his PTSD is related to these stressors. Overall, after review of the conflicting evidence, the Board finds that remand is warranted to schedule the Veteran for a VA examination to clarify the nature and etiology of any diagnosed acquired psychiatric disorder, to include consideration of whether the disability was caused or aggravated by any of the Veteran’s service-connected disabilities. 3. Increased rating claims The Veteran seeks increased ratings for his service-connected diabetes mellitus; diabetic nephropathy; left and right lower extremity peripheral neuropathy of the femoral and sciatic nerves; and moderate nonproliferative diabetic retinopathy with macular edema and nuclear sclerotic cataracts. The Veteran was most recently afforded VA examinations to determine the severity of these disabilities in February and March 2017. During his November 2019 Board hearing, the Veteran testified that his disabilities have worsened since then. A veteran is entitled to a new VA examination where there is evidence that the condition has worsened since the last examination. Snuffer v. Gober, 10 Vet. App. 400 (1997). Given the Veteran’s contentions that his disabilities have worsened since the most recent examinations of record, remand for new examinations is warranted. Accordingly, the matters are REMANDED for the following actions: 1. Obtain and associate with the claims file any outstanding VA medical treatment records, to include records of psychiatric or mental health treatment in the early 1990s and 2000; the September 2016 addendum report from clinical psychologist, Dr. S.H.; and any VA treatment records from December 2017 to the present. 2. With any necessary assistance from the Veteran, obtain and associate with the claims file any relevant outstanding private medical treatment records, to include records of treatment from the MonValley Emergency Department in 2012 and from private physician Dr. Ghandi, whom the Veteran stated was once his primary care provider. All efforts to obtain these records should be documented in the claims file. 3. Then, schedule the Veteran for VA examinations to determine the current severity of his service-connected diabetes mellitus; diabetic nephropathy; left and right lower extremity peripheral neuropathy of the femoral and sciatic nerves; and moderate nonproliferative diabetic retinopathy with macular edema and nuclear sclerotic cataracts. All necessary tests should be performed, and the results reported using the appropriate Disability Benefits Questionnaire (DBQ). 4. Schedule the Veteran for a VA psychiatric examination to determine the nature and etiology of any diagnosed acquired psychiatric disability. The entire claims file, including a copy of this remand, must be made available to, and be reviewed by, the examiner. Based on the Veteran’s reports and the results of examination and review of the claims file, the VA examination report should include the criteria necessary to rate the service-connected PTSD on appeal. Based on the examination and a review of the record, the examiner is asked to answer the following questions: (a.) Diagnose all psychiatric disabilities present during the course of the appeal and state whether each criterion for a diagnosis of PTSD is met. (b.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has PTSD that is related to an in-service stressor event, to include fear of hostile military or terrorist activity? (c.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disability that is related to any aspect of active service? (d.) Is it at least as likely as not (50 percent or greater probability) that the Veteran has a psychiatric disability that was caused or aggravated by a service-connected disability? The Board notes that the VA examiner must provide separate findings and rationales relating to causation and aggravation. Aggravation under 38 C.F.R. § 3.310 (b) does not require that there be “permanent” worsening of the nonservice connected disability. A complete rationale must be offered for all opinions expressed, including a discussion of the evidence and medical principles which led to the conclusions reached. The examiner must identify and explain the medical basis or bases for each opinion, with identification of the evidence of record. 5. Schedule the Veteran for a VA examiner to determine the nature and etiology of his claimed heart disability. The examiner must review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner is asked to answer the following question: Is it at least as likely as not (50 percent probability or greater) that the Veteran has a heart disability that was incurred during active service, to include exposure to herbicide agents therein? In all conclusions, the examiner must identify and explain the medical basis or bases, with identification of the evidence of record. If an opinion cannot be offered without resorting to mere speculation, the examiner should explain why this is the case and identify any additional evidence that may allow for a more definitive opinion. 6. Then, readjudicate the claims on appeal. If the benefits sought remain denied, issue a supplemental statement of the case to the Veteran and his attorney and return the case to the Board. G. A. WASIK Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. T. Raftery, 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.