Citation Nr: 18143462 Decision Date: 10/19/18 Archive Date: 10/19/18 DOCKET NO. 18-04 213 DATE: October 19, 2018 ORDER The Board having determined that new and material evidence has not been presented, reopening of the claim of entitlement to service connection for a bilateral hip disability is denied. Entitlement to service connection for diabetes is denied. Entitlement to service connection for hypertension is denied. Entitlement to service connection for high cholesterol is denied. Entitlement to service connection for a pelvic disability is denied. Entitlement to service connection for headaches is granted. Entitlement to service connection for a psychiatric disability, to include depression is granted. REMANDED Entitlement to a rating in excess of 30 percent for epilepsy, psychomotor type, is remanded. Entitlement to special monthly compensation (SMC) based on a need for regular aid and attendance is remanded. FINDINGS OF FACT 1. In a December 2007 rating decision, the RO denied entitlement to service connection for a bilateral hip condition. 2. The evidence received since the December 2007 rating decision is cumulative or redundant of the evidence of record at the time of the prior denial and does not relate to an unestablished fact necessary to establish the claim of entitlement to service connection for a bilateral hip disability. 3. Diabetes did not manifest in service and is not otherwise etiologically related to service, and did not manifest to a compensable degree within one year of separation from service. 4. Hypertension did not manifest in service and is not otherwise etiologically related to service, and did not manifest to a compensable degree within one year of separation from service. 5. High cholesterol is a laboratory finding and not a chronic disability for which VA disability benefits may be awarded. 6. The Veteran does not have a current diagnosis of a pelvic disability that is related to service. 7. The Veteran’s headaches are proximately due to or aggravated by his service-connected disabilities. 8. The Veteran’s psychiatric disability, to include depression, is proximately due to or aggravated by his service-connected epilepsy, psychomotor type. CONCLUSIONS OF LAW 1. New and material evidence has not been received to reopen the claim of entitlement to service connection for a bilateral hip disability. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2018). 2. The criteria for service connection for diabetes have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 3. The criteria for service connection for hypertension have not been met. 38 U.S.C. §§ 1101, 1110, 1112, 1131 (2012); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2018). 4. The criteria for service connection for high cholesterol have not been met. 38 U.S.C. §§ 101, 105(a), 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 5. The criteria for service connection for a pelvic disability have not been met. 38 U.S.C. §§ 101, 105(a), 1110, 1131 (2012); 38 C.F.R. § 3.303 (2018). 6. The Veteran’s headaches were proximately due to or aggravated by his service-connected disabilities. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.310 (2018). 7. The Veteran’s psychiatric disability, to include depression, was proximately due to or aggravated by his service-connected epilepsy, psychomotor type. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.310 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active military service from August 1958 to September 1960 and from August 1961 to January 1964. The Board notes that in a March 1966 administrative decision, it was determined that the Veteran’s first period of service was dishonorable for Department of Veterans Affairs (VA) purposes, and as such, constituted a bar to VA compensation benefits. However, the Veteran’s second period of service is not a bar to VA compensation benefits as his discharge status was honorable. These matters come before the Board of Veterans’ Appeals (Board) on appeal from October 2013 and October 2014 rating decisions issued by the VA Regional Office (RO) in Los Angeles, California. New and Material Evidence In a December 2007 rating decision, the RO denied entitlement to service connection for a bilateral hip condition based on a finding that the Veteran did not have a hip disability that was related to his active service. The Veteran did not appeal that decision. The pertinent evidence of record at the time of the December 2007 rating decision included the Veteran’s service treatment records between August 1961 and January 1964, post-service treatment records showing a diagnosis of right hip degenerative arthritis as early as June 1997, and the Veteran’s lay statement that he injured his hips in boot camp in 1958 and at jump school in 1959. The evidence that has been received since the December 2007 rating decision includes the Veteran’s lay statement that his hip disability was related to his service as a paratrooper and post-service treatment records. The Board finds that the additional evidence is not new and material. Service connection was denied because a nexus was not found between the Veteran’s service from August 1961 to January 1964 and his bilateral hip disability. The Board acknowledges that the Veteran has related his hip disability to his service as a paratrooper; however, the Veteran’s service records indicate that his duties were those of an anti-tank gunner from August 1961 to January 1964. Additionally, the Veteran reported that he served as a wireman after he reenlisted. As such, there is no indication from the record that the Veteran performed paratrooper duties during his period of honorable service. Regardless, the Veteran indicated prior to the last final denial that he injured his hips at jump school and that information was previously considered by VA. As new and material evidence has not been presented, reopening of the claim is not warranted. Service Connection 1. Entitlement to service connection for diabetes and hypertension. The Veteran has contended that his diabetes and hypertension are related to his active service. Service treatment records between August 1961 to January 1964 are silent for any in-service complaints of, treatment for, or diagnosis of diabetes or hypertension. A review of post-service treatment records revealed that the Veteran was noted to have hypertension in November 2001 and was noted to be pre-diabetic in November 2002. However, there is no competent evidence of record otherwise linking the Veteran’s diabetes or hypertension to his active service. Additionally, there is no indication that his diabetes or hypertension occurred in service or manifested to a compensable degree within one year of separation from service. 38 C.F.R. §§ 3.307, 3.309. Therefore, the Board finds that the medical evidence currently of record is sufficient to decide the claims of entitlement to service connection for diabetes and hypertension and no VA examination or medical opinion is warranted for either disabilities. 38 C.F.R. § 3.159(c)(4) (2016); Charles v. Principi, 16 Vet. App. 370 (2002). The Board acknowledges the lay assertions of record, including the Veteran’s sincere belief that his diabetes and hypertension are related to service. However, the Veteran is not competent to provide an opinion as to whether his diabetes or hypertension is related to service, as this particular inquiry is within the province of trained medical professionals; it goes beyond a simple and immediately observable cause-and-effect relationship. See Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011); Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007). Additionally, the Board finds that the Veteran’s lack of a diagnosis for hypertension or diabetes prior to 2001 and 2002, respectively, weighs against a finding of continuity of symptomatology since service. But see Walker v. Shinseki, 708 F.3d 1331, 1333 (Fed. Cir. 2013). In sum, the Veteran did not complain of, receive treatment for, or have a diagnosis of diabetes or hypertension while in active service. There is no evidence that any diabetic or hypertensive disabilities or symptoms manifested within one year following the Veteran’s separation from active service, and there is no competent evidence of record indicating that the Veteran’s current diabetes and hypertension are related to his active service. Accordingly, the Board finds that the preponderance of the evidence is against the claims and entitlement to service connection for diabetes and hypertension is not warranted. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 2. Entitlement to service connection for high cholesterol The Veteran has asserted that his high cholesterol is related to his active service. The Board acknowledges that the Veteran has high cholesterol; however, those results have not been attributed to a clinical diagnosis. High cholesterol in and of itself is not a recognized disability for VA compensation purposes, but rather, a mere laboratory finding. See 61 Fed. Reg. 20, 440 -20, 445 (May 7, 1996). The term “disability,” used for VA purposes, refers to impairment of earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; Allen v. Brown, 7 Vet. App. 439 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). There is no evidence of record that suggests that the Veteran’s high cholesterol causes any impairment of earning capacity. In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223 (1992); see also Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Accordingly, the Veteran cannot establish service connection for high cholesterol. 3. Entitlement to service connection for a pelvic disability The Veteran has asserted that he has a pelvic disability that is related to his active service. Additionally, he stated that he suffered from a broken pelvis. A review of post-service treatment records revealed that the Veteran broke his pelvis after he tripped over a box in November 2013. However, prior to his fall, there is no in-service or post-service medical evidence that the Veteran had a pelvic disability. The Court has held that “Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim.” Brammer v. Brown, 3 Vet. App. 223, 225 (1992); see also Rabideau v. Derwinski, 2 Vet. App. 141, 143-44 (1992). Here, competent medical evidence indicates that the Veteran does not have the disability for which service connection is sought. Accordingly, the Veteran cannot establish service connection for a pelvic disability. 4. Entitlement to service connection for headaches The Veteran has contended that his headaches are related to his active service, or, alternatively, secondarily-related to his service-connected disabilities. Service treatment records between August 1961 to January 1964 note that the Veteran had severe headaches after he fractured his skull in a motorcycle accident in July 1963. A review of post-service treatment records revealed that the Veteran complained of headaches in as early as 1967. Although there were additional complaints of headaches documented in the Veteran’s post-service treatment records, the headaches were associated with other health conditions. Additionally, he denied any currently present headaches. The Veteran was afforded a VA examination in September 2015. He reported that he initially experienced headaches, but denied any current headaches. The examiner concluded that the Veteran did not have any current headaches related to a condition that was incurred during military service. In support of that conclusion, the examiner stated that the Veteran denied any ongoing headaches related to his history of head injury during service. In April 2018, the Veteran underwent a private medical evaluation. The Veteran reported that he experienced headaches at least two or three times per month that were brought on by stress caused by his depressive disorder. The physician diagnosed migraine headaches. He opined that the Veteran’s service-connected depressive disorder (granted herein), traumatic brain injury (TBI), and epilepsy, more likely than not caused and permanently aggravated the Veteran’s headaches. In support of this opinion, the physician noted that the medical literature showed that patients with mental health disorders were more likely to develop headaches because pain and mood were regulated by the same part of the brain. Here, the Board finds the April 2018 private medical opinion highly probative as the rationale is based on the Veteran’s pertinent medical records and current medical literature and the private physician relied on his own training, knowledge, and expertise in rendering his opinion. In sum, the Veteran has migraine headaches. A private physician determined that the Veteran’s migraines were secondarily related to his service-connected disabilities. Accordingly, the Board finds that the evidence for and against the claim is at least in equipoise. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for headaches is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. 5. Entitlement to service connection for a psychiatric disability, to include depression and as secondary to service-connected epilepsy, psychomotor type The Veteran has contended that his depression is related to his active service, or is secondary to his service-connected epilepsy, psychomotor type. Service treatment records between August 1961 to January 1964 note that the Veteran had a long psychiatric history dating back to childhood. In November 1963, he was diagnosed with inadequate personality that existed prior to service. He also suffered from intermittent depression. A review of post-service treatment records showed a minimal indication of depression in 1967. He was later diagnosed with depressive disorder in February 1996. In October 2013, the Veteran was afforded a VA examination. He was diagnosed with unspecified depressive disorder. However, the examiner did not provide a nexus opinion. In February 2015, the Veteran underwent a private psychological evaluation. The psychologist determined that the Veteran’s depressive disorder was due to another medical condition, with mixed features. She opined that the Veteran’s epilepsy was more likely than not causing his depressive disorder and further aggravating his debilitating symptoms. In support of her opinion, she stated that there was a body of literature detailing the connection between medical issues and psychiatric disorder. She further noted that individuals with medical issues and depressive disorder debilitation became disabled due to the holistic effect of medical and psychiatric disturbances which was similar to the Veteran’s service-connected epilepsy and secondary depressive disorder rendering him incapacitated. The Veteran was provided an additional VA examination in May 2018. He was diagnosed with adjustment disorder with chronic depressed moods. The examiner opined that the Veteran’s depressive symptomatology, represented by the DSM-V diagnosis of adjustment disorder with chronic depressed moods was at least as likely as not incurred in and/or caused by the Veteran’s service-connected epilepsy. In support of that opinion, the examiner stated that the Veteran endorsed negative moods and depressive symptomatology that he attributed, in part, to the life activity constraints associated with his epilepsy condition. In addition, the examiner pointed to documentation (verbal and written) by medical evaluators that the Veteran’s life activities were constrained by his epileptic condition. Finally, the examiner stated that there was a well-accepted pathophysiological relationship between medical conditions that significantly interfere with and constrain one’s activities of daily living and the promotion of depressive symptomatology. In sum, the Veteran has a psychiatric disability, to include depression. The May 2018 VA examiner as well as the February 2015 private psychologist found that the Veteran’s psychiatric disability was secondarily related to his service-connected epilepsy. Therefore, reasonable doubt must be resolved in favor of the Veteran and entitlement to service connection for a psychiatric disability, to include depression, is warranted. 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. 49. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for epilepsy The Board notes that the Veteran was afforded a VA examination for his epilepsy in May 2018. Following that examination, the claim of entitlement to an increased rating for epilepsy was not readjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the issue of entitlement to an increased rating for epilepsy must be returned to the AOJ for the issuance of a supplemental statement of the case before additional appellate action is taken by the Board. 2. SMC The Board notes that the December 2013 VA examination did not include consideration of all of the Veteran’s service-connected disabilities. This is pertinent when considering that the criteria for a higher rate of SMC under 38 U.S.C. § 1114(l) require that the Veteran have significant disabilities to be in need of regular aid and attendance. Thus, a remand is necessary to obtain a VA examination which addresses all of the Veteran’s service-connected disabilities, to include headaches and depression, granted herein. The matters are REMANDED for the following action: 1. Identify and obtain any pertinent, outstanding VA and private treatment record and associate them with the claims file. 2. Then, schedule the Veteran for a VA aid and attendance examination to determine whether the Veteran requires the regular aid and attendance of another person as a result of his service-connected disabilities. The claims file must be made available to, and reviewed by the examiner. All indicated tests should be performed. 3. Confirm that the development conducted comports with this remand and undertake any other development determined to be warranted. 4. Then, readjudicate the remaining claims on appeal. If the decision remains adverse to the Veteran, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case to the Board. Kristin Haddock Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD D. Ware, Associate Counsel