Citation Nr: 21064570 Decision Date: 10/20/21 Archive Date: 10/20/21 DOCKET NO. 15-35 589A DATE: October 20, 2021 REMANDED Entitlement to service connection for impaired fasting glucose, claimed as diabetes mellitus, type II, is remanded. Entitlement to a rating in excess of 30 percent prior to September 4, 2019, and in excess of 50 percent thereafter for generalized anxiety disorder, panic disorder and alcohol use disorder (hereinafter, generalized anxiety disorder) is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disability prior to December 20, 2019, is remanded REASONS FOR REMAND The Veteran served on active duty from December 1970 to December 1973. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, the Board remanded the Veteran's claim for impaired fasting glucose, claimed as diabetes mellitus, type II, and peripheral neuropathy. In November 2018, the Board remanded the Veteran's claims for a rating in excess of 30 percent for generalized anxiety disorder and entitlement to a TDIU. During remand status, the RO granted an increase to 50 percent for generalized anxiety disorder, effective September 4, 2019, as well as entitlement to a TDIU from December 20, 2019. As the award does not represent a full grant of the benefit sought on appeal, the claims remain in appeal status. See AB v. Brown, 6 Vet. App. 35 (1993). See also Harper v. Wilkie, 30 Vet. App. 345 (2018) (where the RO grants a TDIU that does not span the entire period on appeal, the issue of entitlement to a TDIU for an earlier period is still on appeal and should be addressed by the Board). 1. Entitlement to service connection for impaired fasting glucose, claimed as diabetes mellitus, type II, is remanded. The Veteran has asserted that he has diabetes mellitus, type II, with associated neuropathy due to his in-service exposure to herbicide agents. He detailed experiencing numbness and tingling in his right leg and hands, burning sensation and tingling in his feet, and carpal tunnel. See Third Party Correspondence (November 2020). The Veteran's representative pointed out VA treatment records showing diagnoses of diabetes mellitus type II with diabetic nephropathy, as well as prescription for metformin. See Third Party Correspondence (November 2020). The Board finds that remand is warranted for a VA examination and medical opinion. As a preliminary matter, VA has conceded that the Veteran served in Vietnam during the Vietnam Era and is, therefore, presumed to have been exposed to herbicides during his active service. 38 U.S.C. § 1116; 38 C.F.R. § 3.307. The diseases for which presumptive service connection based on herbicide exposure is available include type II diabetes mellitus. 38 C.F.R. § 3.309(e). The February 2020 VA examination indicated that there was no official diagnosis of diabetes mellitus, type II, but the Veteran has been diagnosed with impaired fasting glucose. See C&P Exam (February 2020). The examiner did not offer an etiological opinion with respect to impaired fasting glucose. However, in a contemporaneous diabetic sensory-motor peripheral neuropathy examination, the same examiner indicated that the Veteran had a diagnosis of "peripheral neuropathy, diabetic, bilateral," while also noting the absence of the diagnosis of diabetes mellitus, type II. The examiner found functional impact of his diagnosed peripheral neuropathy to be inability to perform "active job because he has a lot of pain with prolonged standing. He has trouble even doing sedentary work because he constantly has to move and change position." Id. The Board's review of this case shows the Veteran having diabetes listed in his clinical records, as well as a prescription for Metformin; however, laboratory test results in the record show glucose and A1C levels indicative of pre-diabetes. See CAPRI (August 2019) (December 2017, April 2019). Given that the VA examination report is not shown to be based on an accurate factual premise with consideration of the Veteran's prior medical history, the Board finds the examination report inadequate. See Colvin v. Derwinski, 1 Vet. App. 171 (1991); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence... is essential for a proper appellate decision"). The Board also notes that impaired fasting glucose is usually considered a laboratory finding and not a disability for which VA compensation benefits are payable. See generally 61 Fed. Reg. 20440 (May 7, 1996) (stating, regarding hyperlipidemia, elevated triglycerides, and elevated cholesterol, that such are "laboratory test results, and are not, in and of themselves, disabilities"). However, here, there is evidence that the Veteran's impaired fasting glucose reaches the level of functional impairment of earning capacity to qualify as a disability. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). In this regard, as noted above, the Veteran's neuropathy has been attributed to his impaired fasting glucose and has been found to impact the Veteran's ability to work. As such, an examination with opinion is necessary to determine whether the Veteran's impaired fasting glucose with associated neuropathy, if diabetes mellitus is not diagnosed, is related to service, to include exposure to herbicide agents. Accordingly, remand is warranted for an adequate VA examination and medical opinion. Where VA provides an examination or obtains an opinion, it must be adequate. Barr v. Nicholson, 21 Vet. App. 303 (2007). Additionally, numerous records remain outstanding, including lab results from January 2018, and are shown to have been scanned into the VA records system using Vist-A Imaging. However, copies of these records are not associated with the VA treatment records or otherwise with the Veteran's claims file. On remand, these records should be associated and viewable within the Veteran's claims file. Moreover, upon the Veteran completing a VA 21-4142 Authorization for Release of Information for Dr. Mining, the AOJ submitted a request for records from Dr. Miniug to the wrong facility and, due to inability to locate a different contact for the physician with his last name spelled incorrectly, closed the request. See VA 21-0820 Report of General Information (February 2020). Thus, remand is necessary to obtain complete relevant records. 38 C.F.R. § 3.159(c); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). 2. Entitlement to a rating in excess of 30 percent prior to September 4, 2019, and in excess of 50 percent thereafter for generalized anxiety disorder is remanded. The Veteran, including via his representative, contends that he is entitled to a rating of 50 percent for his generalized anxiety disorder from the date of the initial grant of service connection in July 2012. See Third Party Correspondence (November 2020). He directs attention to his trouble sleeping, nightmares, anxiety and difficulties while working before due to difficulty being around people. Id. He reported being depressed in part due to his physical limitations after mini-strokes that resulted in his inability to get out of the house easily and cause him to be at home because of these physical limitations; and he stated that when he attends his grandchildren's birthday parties, he has to leave after a couple minutes. Correspondence (November 2020). The Veteran's wife also provided that the Veteran struggles with memory, particularly after his stroke, motivation, concentration, mood swings, frustration, isolation, anxiety and sleep. See Buddy / Lay Statement (November 2020). To ensure that VA has met its duty assist, remand is necessary to obtain relevant outstanding treatment records and a new VA examination. 38 C.F.R. § 3.159(c). First, the record reflects a material worsening of the Veteran's disabilities since his last VA examinations. The Veteran underwent two VA examinations to evaluate his generalized anxiety disorder, including in September 2019 and December 2019. VA treatment records from December 2019 show the Veteran's reports of worsening anxiety. See CAPRI (June 2020). He also reported that it could have been due to his physical restrictions. Id. He also reported at that time that the medication he was prescribed did not change or improve his anxiety. Id. April 2020 VA mental health treatment records note that the Veteran had a stroke, and that his anxiety was increased by these events. Id. Additionally, as noted above, the Veteran's wife also provided almost a year after the latest VA examination, that the Veteran struggles with memory, particularly after his stroke, motivation, concentration, mood swings, frustration, isolation, anxiety and sleep. See Buddy / Lay Statement (November 2020). She indicated that he continues to express less interest in activities and social interactions, but goes fishing with his son and grandkids. Id. While the mere passage of time is not grounds for a new examination, a new examination is appropriate when there is an assertion (and indication) of an increase in severity since the last examination. See 38 C.F.R. § 3.159; see also Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). Here, the medical evidence of record as well as the Veteran's and the Veteran's wife's statements suggest an increased severity of symptoms associated with his generalized anxiety disorder since his last VA examinations. Given the competent evidence of worsened symptoms since the last VA examinations, a remand is necessary to adequately evaluate the current severity of the Veteran's service-connected generalized anxiety disorder. Caffrey v. Brown, 6 Vet. App. 377, 381 (1995) (VA must provide a new examination where a veteran claims the disability is worse than when originally rated and the available evidence is too old to adequately evaluate the current severity). Therefore, a new VA examination is needed to assist in determining the current severity of the Veteran's service-connected generalized anxiety disorder. Snuffer, 10 Vet. App. at 400. Second, the Board takes notice that the record indicates that there may be outstanding relevant VA treatment records. VA treatment records were last obtained by VA in June 2020, and the record shows that the Veteran has been consistently receiving VA treatment for his generalized anxiety disorder. Additionally, VA treatment records show that the Veteran was treated at Penrose Hospital in January 2020 for his stroke, which, as noted above, was suggested to have increased the Veteran's anxiety. See CAPRI (June 2020). Thus, as any recent complaint or treatment with VA and private medical provider is relevant to determining the current severity of the Veteran's generalized anxiety disorder, remand is necessary to associate any outstanding VA treatment record and private treatment record with the claims file. See 38 U.S.C. § 5103A (c); 38 C.F.R. § 3.159 (c)(2); see also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (holding that documents which are generated by VA agents or employees are in constructive possession of VA, and as such, should be obtained and included in the record); Sullivan, supra. The Board is mindful of a private examination report, dated in August 2015, which reflects that the Veteran's generalized anxiety disorder is manifested primarily by occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgement, thinking and/or mood. See VA Examination (November 2020). However, the Board notes that the private evaluation contains several inconsistencies and fails to provide an adequate rationale for the conclusions reached. Specifically, the private evaluation reflects internally inconsistent statements and inconsistencies with other evidence of record. To that extent, the private report notes that the Veteran has been married for over 40 years and continues to live with his wife and their foster child, but also marked the Veteran as having inability to establish and maintain effective relationships. See VA Examination (November 2020). For example, the private evaluation found, among other things, the Veteran to have hallucinations including hearing voices and seeing shadow figures and marked the Veteran as having persistent delusions and hallucinations; however, markedly incongruent, there is medical evidence showing that the Veteran does not experience delusions or hallucinations, nor has he reported it at any time during his regular VA treatment. Nevertheless, as noted above, remand is necessary, because VA treatment records subsequent to the latest VA examination conducted in December 2019 suggest material worsening of the Veteran's generalized anxiety disorder symptoms. 3. Entitlement to a TDIU prior to December 20, 2019, is remanded. The Veteran, and his representative, contends that his service-connected generalized anxiety disorder, as well as his other disabilities, rendered him unable to secure or follow a substantially gainful occupation prior to December 20, 2019. See Third Party Correspondence (November 2020). The Veteran reported difficulties due to his generalized anxiety disorder when he worked as an automotive service manager due to frustration even resulting in aggression. See Correspondence (November 2020). The Board finds the Veteran's claim for a TDIU prior to December 20, 2019, is inextricably intertwined with the claim for increase for generalized anxiety disorder. Harris v. Derwinski, 1 Vet. App. 180 (1991) (two issues are "inextricably intertwined" when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Therefore, consideration is deferred. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from June 2020 to the Present. Associate copies of all treatment records that have been scanned into the VISTA Imaging system with the Veteran's claims folder. 2. Ask the Veteran to complete a VA Form 21-4142 for all non-VA medical providers seen for his impaired fasting glucose, claimed as diabetes mellitus and generalized anxiety disorder, to include, but not limited to, Dr. Mining and Penrose Hospital. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Thereafter, schedule the Veteran for a VA examination for impaired fasting glucose, claimed as diabetes mellitus, type II. The examiner must review the claims file. The examiner must clearly determine whether the Veteran has a diagnosis of diabetes mellitus, type II. If a diagnosis of diabetes cannot be provided, given the documentation of functional impairment of earning capacity, the examiner should consider impaired fasting glucose with associated neuropathy a "disability" for the purpose of providing the requested opinion below. (a.) The examiner is asked to opine whether it is at least as likely as not that the Veteran's impaired fasting glucose manifested during service, or is related to service, including conceded exposure to herbicide agents. (b.) Provide a rationale to support the opinion(s). The examiner is advised that a negative opinion cannot be based solely on the fact that impaired fasting glucose is not on the list of diseases that are presumptively associated with exposure to herbicide agents. (Continued on the next page) 4. Schedule the Veteran for an examination by an appropriate clinician to determine the severity of his service-connected generalized anxiety disorder. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. To the extent possible, the examiner should identify any symptoms and social and occupational impairment due to his service-connected psychiatric disorder alone. 5. Readjudicate. C.A. SKOW Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. M. Pesin 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.