Citation Nr: 21071011 Decision Date: 11/29/21 Archive Date: 11/29/21 DOCKET NO. 16-56 884 DATE: November 29, 2021 ORDER Service connection for a psychiatric disorder, diagnosed as anxiety disorder, is granted. REMANDED Service connection for residuals of a stroke is remanded. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. Entitlement to a rating in excess of 60 percent for coronary artery disease, status post coronary artery bypass grafting is remanded. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only is remanded. Entitlement to special monthly compensation based on aid and attendance is remanded. FINDING OF FACT The Veteran's anxiety disorder had its onset during service. CONCLUSION OF LAW The criteria for service connection for a psychiatric disorder, diagnosed as anxiety disorder, are met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Air Force from May 1967 to April 1971, to include service in the Republic of Vietnam. These matters come before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in August 2012, December 2014, and January 2015. During the course of the appeal, a November 2016 rating decision increased the rating for each of the Veteran's peripheral neuropathy disabilities to 20 percent, effective November 14, 2011; increased the rating for the Veteran's heart disability to 60 percent, effective October 1, 2007; and granted a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective April 12, 2006. The award of a TDIU effective April 12, 2006, constitutes a full grant of the benefit sought. In this regard, April 12, 2006, is the earliest possible effective date for a TDIU as such is the same effective date as the Veteran's earliest service-connected disability. However, as the awards pertaining to peripheral neuropathy and a heart disability did not constitute a full grant of the benefits sought on appeal, these issues remain in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). The issues of entitlement to service connection for a psychiatric disorder and posttraumatic stress disorder (PTSD) has been recharacterized as service connection of a psychiatric disorder in accordance with Clemons v. Shinseki, 23 Vet. App. 1 (2009), and Velez v. Shinseki, 23 Vet. App. 199, 204 (2009). In the Veteran's November 2016 substantive appeal (VA Form 9), he requested a videoconference hearing before a Veterans Law Judge. However, in June 2021, his attorney submitted a request to withdraw the prior hearing request. Finally, the Board notes that additional VA treatment records dated to August 2019 have been uploaded to the Veteran's Virtual VA electronic file since the issuance of the last November 2014 statement of the case. The Veteran has not waived agency of original jurisdiction (AOJ) consideration of such records. However, to the limited extent that the Board's decision to grant service connection for a psychiatric disorder is favorable, there is no prejudice to the Veteran in the Board proceeding with a decision at this time. Service connection for a psychiatric disorder, diagnosed as anxiety disorder, is granted. The Veteran seeks service connection for a psychiatric disorder, which he relates to numerous traumatic experiences involving death and combat during his service in the Republic of Vietnam. See Statement (September 1, 2013). Specifically, he reports problems with intimacy, depression, anxiety, and irritability since service. See Statement (September 6, 2013); Disability Benefits Questionnaire (DBQ) (September 2013). Establishing service connection generally requires medical or, in certain circumstances, lay evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability). See Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); 38 C.F.R. § 3.303. The Board finds that service connection for an acquired psychiatric disorder, diagnosed as anxiety disorder, is warranted. During the appeal period, the Veteran was diagnosed with anxiety disorder by a VA examiner, during a November 2014 VA PTSD examination, and a private physiatrist, in an August 2013 DBQ. While the VA examiner's report was limited to the nature and etiology of PTSD, and thus, did not address that of his anxiety disorder, the private treating psychiatrist opined that the Veteran's current psychiatric disorders had their onset during service. Indeed, the Veteran has consistently reported that his psychiatric symptoms began in service. See, e.g., DBQ (September 2013) and DBQ (August 2013). Additionally, in the November 2016 Statement of the Case, VA conceded that the Veteran experienced an in-service stressor based on his reports and evidence in your personnel his that was consistent with the places, types and circumstances of his service. The competent, credible, and consistent reports of the Veteran establish that his psychiatric symptoms had their onset during service and have been recurrent since that time. See Layno v. Brown, 6 Vet. App. 465 (1994). When coupled with the August 2013 examiner's uncontroverted opinion that the Veteran's current anxiety disorder had its onset in service, the Board finds that all three elements necessary to establish service connection have been met. See 38 C.F.R. §§ 3.303, 3.304(f); see also Cohen v. Brown, 10 Vet. App. 128 (1997). While the Board acknowledges that the Veteran has other psychiatric diagnoses, it finds that such diagnoses are encompassed in his claim for entitlement to service connection for a psychiatric disability. In Velez, the Court held that "treating each [psychiatric] diagnosis as a separate claim 'would force a veteran to continually file new claims as medical evidence is developed during his initial claim.'" Velez, 23 Vet. App. at 204, quoting Clemons, 23 Vet. App. 1. Accordingly, the instant decision represents a total grant of benefits as to the issue on appeal. REASONS FOR REMAND 1. Service connection for residuals of a stroke is remanded. The Veteran seeks service connection for stroke, which he asserts is proximately due to or the result of his service-connected diabetes mellitus or heart disability. In January 2015, the Veteran was provided a VA examination to ascertain the nature and etiology of his claimed stroke. In the report, the examiner noted that private treatment records show that the Veteran was admitted for possible transient ischemic attack from March 2014 to April 2014, and that CT scans of the brain were negative and his echocardiogram did not show any anatomical deficits for causing stroke. The report further notes that a May 16, 2014, VA neurology note shows that the Veteran was prescribed clopidogrel bisulphate for secondary stroke prevention. In the remarks section, the examiner concluded that the Veteran experienced a self-reported transient ischemic attack on March 29, 2014, which resolved without residuals. The examiner did not address the etiology of the Veteran's transient ischemic attack. It has been held that the requirement for service connection that a current disability be present is satisfied when a claimant has a disability at the time a claim for VA disability compensation is filed or during the pendency of that claim even though the disability resolves prior to the Secretary's adjudication of the claim. See McClain v. Nicholson, 21 Vet. App. 319, 321(2007). This can also be in close proximity to the date of claim. See Romanowsky v. Shinseki, 26 Vet. App. 289, 293-94 (2013). In light of McClain and Romanowsky, VA examination is needed to address the etiology of the Veteran's transient ischemic attack. 2. Entitlement to a rating in excess of 20 percent for diabetes mellitus is remanded. 3. Entitlement to a rating in excess of 20 percent for left lower extremity peripheral neuropathy is remanded. 4. Entitlement to a rating in excess of 20 percent for right lower extremity peripheral neuropathy is remanded. 5. Entitlement to a rating in excess of 60 percent for coronary artery disease, status post coronary artery bypass grafting is remanded. VA examination is needed to ascertain the current severity of the Veteran's service-connected diabetes mellitus, diabetic peripheral neuropathy of the lower extremities, and coronary artery disease as the evidence indicates that such may have worsened since his most recent examinations in November 2014 and January 2015. Specifically, VA medical records generated since the most recent November 2014 VA diabetes mellitus examination suggests that the Veteran has developed diabetic retinopathy (February 1, 2019) and that his peripheral neuropathy has resulted in increased falls, to the point of necessitating home modifications. Indeed, a February 25, 2019, VA treatment note shows that the Veteran applied for housing modification after experiencing experienced more than six falls during the first two months of 2019. Additionally, the evidence indicates that there may be outstanding VA medical records relevant to the severity of the Veteran's diabetic and heart disabilities. In this regard, while VA medical treatment records indicate that the Veteran has been in receipt of ongoing care, records of such care are only current through August 2019. Relevant statutory and regulatory provisions emphasize the importance of obtaining VA records as part of the duty to assist. See 38 U.S.C. § 5103A (c)(2); 38 C.F.R. § 3.159(c)(2); see also Bell v. Derwinski, 2 Vet. App. 611 (1992); Sullivan v. McDonald, 815 F.3d 786 (Fed. Cir. 2016). Consequently, the Board concludes that it must remand this case in order to obtain any such records. 6. Entitlement to automobile or other conveyance and adaptive equipment or for adaptive equipment only is remanded. 7. Entitlement to special monthly compensation based on aid and attendance is remanded. The Veteran's claims for automobile or other conveyance and adaptive equipment or for adaptive equipment only and special monthly compensation based on aid and attendance are also remanded, as they are inextricably intertwined with his claims for a higher ratings. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from August 2019 to present. 2. Schedule the Veteran for appropriate examinations to determine the current severity of his service-connected diabetes mellitus, peripheral neuropathy, and coronary artery disease. The examiner should provide a full description of each disability and report all signs and symptoms necessary for evaluating each disability under the applicable rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of symptoms. As to diabetes mellitus, the examiner should address the nature and severity of the diabetic retinopathy referenced in the VA treatment record dated February 1, 2019. As to peripheral neuropathy, the examiner should elicit information regarding the actual remaining function if the lower extremities, such as whether acts of balance and propulsion could be accomplished equally well by an amputation stump with prothesis. (Continued on the next page) 3. Obtain an addendum opinion from an appropriate clinician regarding the nature and etiology of the Veteran's claimed stroke, to include whether such is proximately due to or the result of a service-connected disability. An opinion to the effect is necessary even if the examiner determines that the claimed disability resolved during or shortly prior to the Veteran's claim. The examiner is to address the March 2014 hospitalization for transient ischemic attack, as well as the May 2014 prescription of clopidogrel bisulphate. STEVEN D. REISS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Joshua R. Castillo, 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.