Citation Nr: A21020508 Decision Date: 12/27/21 Archive Date: 12/27/21 DOCKET NO. 210818-179026 DATE: December 27, 2021 REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is remanded. Entitlement to service connection for a stroke is remanded. Entitlement to an initial rating in excess of 20 percent for DMII is remanded. Entitlement to an initial rating in excess of 60 percent for urinary incontinence and polyuria is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. REASONS FOR REMAND The Veteran served on active duty from July 1963 to July 1967. These matters come before the Board of Veterans' Appeals (Board) on appeal from September 2020 and January 2021 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO). By way of history, a September 2019 rating decision denied service connection for an acquired psychiatric disorder and a stroke. The March 2020 statement of the case denied increased initial ratings for the service-connected conditions of DMII and urinary incontinence and polyuria. In April 2020, the Veteran submitted a request for Higher-Level Review under the Appeals Modernization Act (AMA) for increased initial ratings for DMII and urinary incontinence and polyuria. A request for Higher-Level Review was submitted in September 2020 for entitlement to service connection for an acquired psychiatric disorder and a stroke. A Higher-Level Review rating decision was issued in September 2020, denying increased initial ratings for DMII and urinary incontinence and polyuria. A Higher-Level Review rating decision was issued in January 2021, denying entitlement to service-connection for an acquired psychiatric disorder and a stroke. In August 2021, the Veteran submitted VA Form 10182 Notice of Disagreement and requested Evidence Submission regarding the issues of initial ratings for DMII and urinary incontinence and polyuria, to include a TDIU consideration, and service-connection for an acquired psychiatric disorder and a stroke. Under the Evidence Submission lane, the Board may review the same evidence of record at the time of the RO rating decision and at the time of the supplemental statement of the case, plus, evidence submitted with the notice of disagreement or within 90 days of the notice of disagreement. In order to fully consider the Veteran's claim, the issue of entitlement to service connection for an acquired psychiatric disorder has been recharacterized as set forth above. Clemons v. Shinseki, 23 Vet. App. 1 (2009). This appeal has been advanced on the docket pursuant to 38 C.F.R. § 20.900. The Veteran contends that his acquired psychiatric disorder is related to events he witnessed in service and that his service-connected disabilities have caused his anxiety and depression. The Veteran has also stated that his stroke was related to his DMII. The issue of entitlement to a TDIU has been raised by the Veteran, as well as by the record itself. 1. Entitlement to service connection for an acquired psychiatric disorder, to include anxiety and depression, is remanded. 2. Entitlement to service connection for a stroke is remanded. Under the AMA framework, the Board may remand where there has been a duty to assist error prior to issuance of a rating decision. While the Board regrets the additional delay, due to the VA's failure to assist, the Veteran's claims must be remanded. The VA has the duty to make reasonable efforts to assist a claimant in securing evidence necessary to substantiate their claims for VA benefits. See 38 U.S.C. § 5103, 5103A; 38 C.F.R. § 3.159(c). As part of that duty to assist, the VA must obtain an examination in service connection claims when there is an indication that the current disability may be associated with the Veteran's service and there is a lack of sufficient evidence to decide the claim. See McClendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In regard to an acquired psychiatric disorder, the RO denied service-connection based on a lack of a diagnosis. However, the record demonstrates that the Veteran has been determined to have anxiety and depression. See Treatment Plan Note, March 2020. Furthermore, the Veteran submitted a statement explaining how events from his military service have caused him ongoing psychological problems, and his service-connected disabilities have resulted in anxiety and depression. His wife also submitted a statement that corroborates the Veteran's anxiety and depression due to his service-connected disabilities. Moreover, evidence associated with the record prior to the September 2019 rating decision clearly explained that living with DMII can be stressful. See Patient Education Information, July 2015. Thus, suggesting that the Veteran's acquired psychiatric disability may be related to his service-connected disabilities. Therefore, the record satisfactorily shows the Veteran has anxiety and depression, which may be related to his military service. Consequently, the Veteran should have been afforded a VA mental health examination to consider the nature and etiology of his acquired psychiatric disorder. As the Veteran had not yet been afforded a VA mental health examination, the RO did not comply with the duty to assist and remand is necessary to afford the Veteran a VA mental health examination. Concerning the Veteran's claim for service connection for stroke, the RO denied the claim because the evidence did not establish that the Veteran was diagnosed with or treated for a stroke during his military service. However, the Veteran has not argued, and does not contend, that he suffered a stroke during his military service. The Veteran's statements indicate that he contends that his stroke is secondary to, or aggravated by, his service connected DMII. See VA diabetes examination, April 2017. The Board notes that the RO did provide a favorable finding that the Veteran has a diagnosis of a stroke. In reviewing the evidence of record prior to the September 2019 rating decision, the medical documentation clearly establishes an association between DMII and the potential of having a stroke. A stroke risk reduction plan from July 2015 was received in the record in August 2019, showing that part of the plan required controlling diabetes. The July 2015 Discharge Report noted diagnoses of stroke, hypertension, and DMII as the reason for the Veteran's admission to the medical center following the Veteran's recovery from a stroke. A July 2015 progress note also revealed that the Veteran was educated on stroke risks, and that one of those risks is DMII. Therefore, the record sufficiently demonstrated that prior to September 2019 the Veteran's stroke may have been caused or aggravated by his service-connected DMII. However, the Veteran was not afforded a VA examination to consider this possibility, in violation of the duty to assist. As such, remand is necessary to afford the Veteran with a VA examination to determine the nature and etiology of his stroke. 3. Entitlement to an initial rating in excess of 20 percent for DMII is remanded. 4. Entitlement to an initial rating in excess of 60 percent for urinary incontinence and polyuria is remanded. While the Board regrets the additional delay, due to the VA's failure to assist, the Veteran's claims must be remanded. The Veteran was afforded a VA DMII examination in April 2017. However, medical records associated with the case file in August 2019 show that the Veteran was seeking assistance with managing his DMII, suggesting he was having difficulty controlling his DMII and that the DMII may have worsened. Medical records received in March 2020, prior to issuance of the March 2020 statement of the case, indicate that the Veteran was educated on the potential complications with poorly controlled DMII and that he needed to improve his DMII. See March 2020 Medical Note. As such, it appears that the Veteran was being treated for a worsening case of DMII. Likewise, the Veteran was afforded a VA urinary tract examination in January 2018, but an April 2018 medical note directed that testing needed to be completed to verify his renal function. Moreover, an August 2018 medical note states that the Veteran had a decrease in renal function. The Veteran is currently evaluated for urinary incontinence based on the Rating of the Genitourinary System - Dysfunction 38 C.F.R. § 4.115A for voiding disorder at the highest available rating of 60 percent. Nonetheless, a higher rating is available if it were determined that the Veteran has renal dysfunction. Medical evidence at the time of the March 2020 statement of the case suggest potential renal dysfunction. Given that the evidence demonstrates a potential worsening of the Veteran's DMII and urinary incontinence and polyuria, he should have been afforded new VA examinations. As such, the Veteran is entitled to current VA examinations to assess his current levels of disability. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (VA has a duty to provide the Veteran with a thorough and contemporaneous medical examination); see also Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 5. Entitlement to a TDIU is remanded At the Veteran's January 2018 VA DMII examination, he mentioned that his DMII and frequent urination impacted his work. The February 2018 VA diabetic retinopathy examiner specifically found that the Veteran's service-connected disability caused a functional impact as the Veteran was functionally blind in both eyes. Therefore, the issue of entitlement to a TDIU was raised by the record at the time of the March 2020 statement of the case. Rice v. Shinseki, 22 Vet. App. 447 (2009). As such, the RO should have developed the issue, providing the Veteran with information advising him of the evidence necessary to support his claim, and providing him with a VA examination to assess the functional impairment caused by his service-connected disabilities as it pertains to his ability to function in an occupational environment. In the case of a disability compensation claim, VA's duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on the claim. 38 U.S.C. § 5103A(d); 38 C.F.R. § 3.159(c)(4). Here, a VA examination is necessary in order to provide an assessment of the Veteran's functional impairment, and to consider the total effect of his service-connected disabilities on his employability. Accordingly, remand is warranted for development. The matters are REMANDED for the following action: 1. Send a letter to the Veteran advising him of the evidence necessary to support his claim for a TDIU. 2. Schedule the Veteran for an examination with an appropriate VA examiner for the issuance of a medical opinion as to the nature and etiology of his acquired psychiatric disorder. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The examiner should thoroughly review the Veteran's entire claims file, including a copy of this Remand. The examiner must be advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. The examiner should provide the following: (a.) Identify all diagnosed mental health disabilities. (b.) With respect to each diagnosed psychiatric disorder, the examiner should opine as to whether it is at least as likely as not (50 percent probability or greater) related to an event, injury or disease incurred in service. The examiner must specifically address the Veteran's statements regarding events he experienced during military service, and whether those experiences are related to his current acquired psychiatric disorder. (c.) Based on the examination and review of the record, the examiner is asked to provide an opinion whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's diagnosed psychiatric disorder is (1) proximately due to any of his service-connected disabilities; or (2) aggravated beyond its natural progression by any of his service-connected disabilities. Specifically, the Veteran contends that his service-connected disabilities have caused his anxiety and depression. Please review and discuss the articles submitted by the Veteran addressing the association with disabilities/pain and psychiatric disorders. The examiners are advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. A complete rationale for any opinion expressed must be provided. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of his stroke. Any evaluations, studies, or tests deemed necessary by the examiner should be accomplished and any such results must be included in the examination report. The examiner should obtain a complete, pertinent history from the Veteran and review the claims file in conjunction with the examination. Based on the examination and review of the record, the examiner is asked to provide an opinion whether it is at least as likely as not (i.e. a 50 percent probability or greater) that the Veteran's stroke was (1) proximately due to a service-connected disability, to include DMII or (2) aggravated beyond its natural progression by a service-connected disability, to include DMII. The examiners are advised that the term "aggravation" is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression. If aggravation is present, the clinician should indicate, to the extent possible, the approximate level of disability (i.e., a baseline) before the onset of the aggravation. The examiner must provide a complete rationale for any opinion expressed. 4. Schedule the Veteran for a VA DMII examination to determine the current severity and manifestations of his service-connected DMII. The claims file must be made available to and reviewed by the examiner. The examination report should include a discussion of the Veteran's DMII history and his reported symptoms. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. 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 is also asked to comment on and describe the functional impairment caused by the Veteran's service-connected DM as it pertains to his ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on such work activities as interacting with customers or coworkers and using technology, plus other such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling for up to eight hours per day. 5. Schedule the Veteran for a VA genitourinary system examination to determine the current severity and manifestations of his service-connected urinary incontinence and polyuria. The claims file must be made available to and reviewed by the examiner. The examination report should include a discussion of the Veteran's urinary incontinence and polyuria history and his reported symptoms. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is advised that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. 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. (Continued on the next page) The examiner is also asked to comment on and describe the functional impairment caused by the Veteran's service-connected urinary incontinence and polyuria as it pertains to his ability to function in an occupational environment. The examiner should, for instance, describe the limitations and restrictions imposed by his service-connected impairments on such work activities as interacting with customers or coworkers and using technology, plus other such work activities as sitting, standing, walking, lifting, carrying, pushing, and pulling for up to eight hours per day. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Temple, 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.