Citation Nr: 18139941 Decision Date: 10/01/18 Archive Date: 10/01/18 DOCKET NO. 16-11 876 DATE: October 1, 2018 ORDER Service connection for sleep apnea is granted. Service connection for high cholesterol is denied. REMANDED Service connection for fibromyalgia is remanded. Service connection for a left shoulder disability is remanded. Service connection for a left hip disability is remanded. Service connection for a right hip disability is remanded. Service connection for a left knee disability is remanded. Service connection for tinnitus is remanded. Service connection for a throat condition is remanded. Service connection for a respiratory condition is remanded. Service connection for hypertension is remanded. Service connection for acid reflux is remanded. Evaluation for right knee chondromalacia patella syndrome, to include degenerative joint disease, currently rated as 10 percent disabling, is remanded. Evaluation for pseudofolliculitis barbae, to include residual scarring, currently rated as 10 percent disabling, is remanded. Entitlement to an earlier effective date for the grant of service connection for right knee chondromalacia patella syndrome, to include degenerative joint disease, is remanded. Entitlement to an earlier effective date for the grant of a 10 percent disability rating for pseudofolliculitis barbae, to include residual scarring, is remanded. FINDINGS OF FACT 1. Sleep apnea was caused by the Veteran’s psychiatric disability. 2. High cholesterol is a laboratory finding and not a disease or disability under VA law and regulations. CONCLUSIONS OF LAW 1. The criteria for service connection for sleep apnea have been met. 38 U.S.C. § 1110 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309, 3.310 (2017). 2. The criteria for Service connection for high cholesterol have not been met. 38 U.S.C. §§ 1110, 1131, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 4.119 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1980 to October 1983. This matter comes before the Board of Veterans’ Appeals (BVA or Board) on appeal from an April 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. In July 2016, a motion to advance on docket has been raised by the Veteran due to homelessness. The undersigned is granting that motion and advancing the appeal on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107 (a)(2) (West 2012). Service Connection Service connection may be established for a disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Service connection requires evidence showing: (1) a current disability; (2) incurrence or aggravation of a disease or injury in service; and (3) a nexus between the current disability and the disease or injury incurred or aggravated in service. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. § 3.303 (d). 1. Service connection for sleep apnea Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310(a); Allen v. Brown, 7 Vet. App. 439 (1995). The Veteran has been previously granted service connection for major depressive disorder. In a November 2017 opinion, the private physician opined that it is as likely as not that the Veteran’s depressive disorder and prescribed treatment for his mental health symptoms aided in the development of and permanently aggravates his obstructive sleep apnea. The physician referred to medical research on the matter and the Veteran’s specific case, including the Veteran’s reports regarding his sleep apnea. In light of the foregoing medical evidence, the Board finds service connection for sleep apnea is warranted on a secondary basis. 2. Service connection for high cholesterol Concerning the high cholesterol claim, the Board notes that this is a laboratory result and not an actual disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). (Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. They are, therefore, not appropriate entities for the rating schedule.) The term “disability” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Thus, in this case, while elevated cholesterol may be a risk factor for disability, it is not itself a disability for VA purposes. Accordingly, there is no basis for awarding service connection for high cholesterol, and the appeal in this regard is denied. REASONS FOR REMAND 1. Service connection for fibromyalgia, a left shoulder disability, a left hip disability, a right hip disability, a left knee disability, tinnitus, a throat condition, a respiratory condition, hypertension, and acid reflux and evaluation for pseudofolliculitis barbae, to include residual scarring, currently rated as 10 percent disabling, are remanded. The Veteran reported in the January 2014 application for benefits (Form 21-526) that he has been receiving VA treatment since 1993. It does not appear that all the Veteran’s treatment records are contained in the file as the earliest post-service treatment records are dated in 2002. Also, the most recent VA treatment records are dated in May 2017 and there is no indication that the Veteran has discontinued treatment for his claimed disabilities. As such, the Veteran’s VA treatment records must be obtained on remand. Regarding the issue for service connection for tinnitus, the Veteran was afforded a VA examination in April 2014; however, the examiner did not address the Veteran’s report of inservice noise exposure in the opinion provided. As such, another VA examination is necessary. Regarding the issue of service connection for hypertension, the Veteran has claimed that this condition is due to pain and not sleeping well. No examination has been provided for this disability. As service connection is being granted for sleep apnea, a VA opinion is necessary in this case. Finally, the Veteran asserts that his fibromyalgia, left knee, right and left hips, and acid reflux are due to his service. Specifically, his fibromyalgia, left knee and right and left hips are due to carrying heavy weight and marching and his acid reflux is from the food that he ate in service. As the Veteran has been diagnosed with fibromyalgia and reflux, and pain in the right and left hips and abnormal range of motion of the left knee have been shown during treatment, a VA examination should be afforded to the Veteran to determine if these conditions are related to service. Evaluation for right knee chondromalacia patella syndrome, to include degenerative joint disease, currently rated as 10 percent disabling, is remanded. The Veteran was last afforded a VA examination for his service-connected right knee disability in September 2016. The September 2016 VA examination did not meet the requirements set forth in Correia v. McDonald, 28 Vet. App. 158 (2016), which provides a precedential finding that the final sentence of 38 C.F.R. § 4.59 requires that VA examinations include joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with range of motion measurements of the opposite undamaged joint. Given this, a further examination is necessary. 38 C.F.R. § 3.159(c)(4). Entitlement to an earlier effective date for the grant of service connection for right knee chondromalacia patella syndrome and grant of a 10 percent disability rating for pseudofolliculitis barbae are remanded. Regarding the claim of service connection for depression, the Veteran submitted a timely notice of disagreement with the April 2014 rating decision on appeal. No statement of the case (SOC) has yet been issued. Although the RO included these issues in the August 2017 supplemental statement of the case noting that no SOC was issued, the regulations require that a SOC must be issued and the Veteran must be afforded an opportunity to appeal. A remand is required for the AOJ to issue a SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). The matters are REMANDED for the following action: 1. The RO must contact the Veteran and afford him the opportunity to identify or submit any additional pertinent evidence in support of the issues on appeal. Based on his response, the RO must attempt to procure copies of all records which have not previously been obtained from identified treatment sources. When requesting records not in the custody of a Federal department or agency, such as private treatment records, the RO must make an initial request for the records and at least one follow-up request if the records are not received or a response that records do not exist is not received. Regardless of the Veteran’s response, the RO must attempt to obtain the Veteran’s complete VA treatment records prior to 2002 and from May 2017. All attempts to secure this evidence must be documented in the claim file by the RO. If, after making reasonable efforts to obtain named records the RO is unable to secure the same, the RO must notify the Veteran and (a) identify the specific records the RO is unable to obtain; (b) briefly explain the efforts that the RO made to obtain those records; (c) describe any further action to be taken by the RO with respect to the claim; and (d) that he is ultimately responsible for providing the evidence. The Veteran must then be given an opportunity to respond. 2. After the development above has been completed, the RO must provide the Veteran with an appropriate examination to determine the etiology of the Veteran’s fibromyalgia, a left hip disability, a right hip disability, a left knee disability, tinnitus, hypertension, and acid reflux. The claim file must be made available to the examiner for review. Based on the clinical examination, a review of the evidence of record, and with consideration of the Veteran’s statements, the examiner must provide an opinion as to whether any diagnosed fibromyalgia, a left hip disability, a right hip disability, a left knee disability, tinnitus, hypertension, and acid reflux had its onset during, or is related to, active service. The examiner must consider the Veteran’s statements, including his reported inservice noise exposure, carrying heavy weight and marching and the food that he ate in service. The examiner must also provide an opinion as to whether any diagnosed hypertension is caused or aggravated by the service-connected sleep apnea and right knee disability. The term “aggravated” in the above context refers to a worsening of the underlying condition, as contrasted to temporary or intermittent flare-ups of symptomatology which resolve with return to the baseline level of disability. The examiner must provide a complete rationale for all opinions expressed. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 3. After the development in (1) above has been completed, Afford the Veteran appropriate VA examination(s) to determine the current severity of his service-connected connected left shoulder strain, left ankle strain and dermatitis of the chest and upper back, to include all associated residuals. The claim file must be made available to the examiner for review. Based on the examination and review of the record, the examiner is to address all pertinent manifestations of the Veteran’s right knee and the severity of any and all manifestations found. All pertinent symptomatology and findings are to be reported in detail. Any indicated diagnostic tests and studies must be accomplished. The examiner must first record the range of active and passive motion of the Veteran’s right knee on clinical evaluation, in terms of degrees with a goniometer. If there is clinical evidence of pain on motion, the examiner must indicate the specific degree of motion at which such pain begins. The same range of motion studies must then be repeated after at least three repetitions and after any appropriate weight bearing exertion. This information must be derived from joint testing for pain on both active and passive motion, in weight-bearing and nonweight-bearing, and with range of motion measurements of any opposite undamaged joint. The examination report must confirm that all such testing has been made and reflect the results of the testing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, the examiner must clearly explain why that is so. Then, after reviewing the Veteran’s complaints and medical history, the examiner must render an opinion as to the extent to which the Veteran experiences functional impairments, such as weakness, excess fatigability, lack of coordination, or pain due to repeated use or flare-ups, etc. Objective evidence of loss of functional use can include the presence or absence of muscle atrophy and/or the presence or absence of changes in the skin indicative of disuse due to the service-connected right knee disability. A complete rationale for all opinions must be provided. If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. The examiner must indicate whether there was any further need for information or testing necessary to make a determination. Additionally, the examiner must indicate whether any opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner. 4. Send the Veteran and his representative a statement of the case that addresses the issues of entitlement to an earlier effective date for the grant of service connection for right knee chondromalacia patella syndrome and grant of a 10 percent disability rating for pseudofolliculitis barbae. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issues should be returned to the Board for further appellate consideration. 5. If upon completion of the above action the claims remain denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Department of Veterans Affairs