Citation Nr: 18147954 Decision Date: 11/06/18 Archive Date: 11/06/18 DOCKET NO. 16-08 506 DATE: November 6, 2018 ORDER Entitlement to service connection for a psychiatric disorder, diagnosed as unspecified depressive disorder, is granted. Entitlement to service connection for high cholesterol, to include as due to exposure to herbicide agents, is denied. REMANDED Entitlement to service connection for a low back disorder is remanded. Entitlement to service connection for blood clots is remanded. Entitlement to service connection for hypertension is remanded. FINDINGS OF FACT 1. The Veteran’s psychiatric disorder, diagnosed as unspecified depressive disorder, was incurred during active service. 2. High cholesterol is a laboratory test result, and is not a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria to establish entitlement to service connection for a psychiatric disorder, diagnosed as unspecified depressive disorder, have been met. 38 U.S.C. § 1101, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303. 2. The criteria to establish entitlement to service connection for high cholesterol have not been met. 38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Navy from August 1971 to July 1975. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from rating decisions dated in January 2013 and January 2014. In addition to the Veteran’s service connection claim for high cholesterol, the January 2013 rating decision also addressed his service connection claims for ischemic heart disease, diabetes mellitus type II, peripheral neuropathy of the left lower extremity, and peripheral neuropathy of the right lower extremity. On August 16, 2018, the Federal Circuit ordered the appeal of Procopio v. Wilkie, No. 17-1821 (U.S. Fed. Cir.). The order stated that the questions before the Federal Circuit include the following: “Does the phrase ‘served in the Republic of Vietnam’ in 38 U.S.C. § 1116 unambiguously include service in offshore waters within the legally recognized territorial limits of the Republic of Vietnam, regardless of whether such service included presence on or within the landmass of the Republic of Vietnam?” As of the date of this decision, Procopio is pending. As the Veteran’s appeal of these issues may be affected by the resolution of Procopio, the Board will “stay” or postpone action on this matter. Although the February 2016 statement of the case characterized the Veteran’s service connection claim for high cholesterol as including the theory that it was due to exposure to herbicide agents, the Board finds that the claim will not be affected by the holding of Procopio. As explained in greater detail below, the basis for the denial of the claim is the fact that high cholesterol is not a disability for VA compensation purposes. I. Duties to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). As to the issue of entitlement to service connection for high cholesterol, VA's General Counsel has determined that the notice and duty to assist provisions of the VCAA are inapplicable where undisputed facts render a claimant ineligible for the benefit claimed and where further factual development could not lead to an award. VAOPGCPREC 2-2004; VAOPGCPREC 5-2004. Where the law is dispositive, the claim must be denied due to a lack of legal merit. As the claim of service connection for high cholesterol is decided as a matter of law herein, no discussion of the duties to notify and assist is required with respect to this issue. See Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994); Mason v. Principi, 16 Vet. App. 129 (2002). II. Law and Analysis Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service-the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). The absence of any one element will result in denial of service connection. Service connection may also be granted for any disease initially diagnosed after service when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 38 C.F.R. § 4.125(a) provides that all psychiatric diagnoses must conform to the fifth edition of the American Psychiatric Association's Diagnostic and Statistical Manual of Mental Disorders (DSM-IV). 38 C.F.R. § 3.304(f). Effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations that define the term "psychosis" to remove outdated references to the DSM-IV and replace them with references to the recently updated DSM-5. See 79 Fed. Reg. 45, 094 (August 4, 2014). VA adopted as final, without change, this interim rule and clarified that the provisions of this interim final rule do not apply to claims that have been certified for appeal to the Board or are pending before the Board on or before August 4, 2014. See Schedule for Rating Disabilities - Mental Disorders and Definition of Psychosis for VA Purposes, 80 Fed. Reg. 14,308 (March 19, 2015). As the RO certified the Veteran's appeal to the Board in June 2016, the DSM-5 is applicable in the present case. 1. Entitlement to service connection for a psychiatric disorder. The Veteran contends that he has a psychiatric disorder that was incurred in active service. The Veteran service treatment records (STRs) are silent for any complaints, treatment, or diagnoses related to a psychiatric disorder. In the January 1971 pre-induction examination, the Veteran’s psychiatric functioning was noted to be normal in the clinical evaluation. The January 1971 Report of Medical History includes the Veteran’s denial of depression or excessive worry, and frequent or terrifying nightmares. Although the Veteran did report frequent trouble sleeping, the physician’s summary noted that he had insomnia without pathology. By the time of his July 1975 separation examination, there continued to be no abnormalities found in his psychiatric functioning. After service, there were no findings to indicate the presence of a psychiatric disorder until April 2012. At that time, a private treatment record noted an assessment of anxiety and depression. Later in October 2015, a VA treatment record documented an assessment of depression. However, the Veteran’s family members submitted statements dated in January and February of 2016 asserting that his symptoms of depression began during service and had been present since that time. The Veteran’s stepmother reported that she had known him since he was eleven years old. She recalled that prior to his military service, the Veteran had many friends, attended church, and participated in activities such as playing the drums in a band. The stepmother noted that the Veteran had been able to serve on the same ship as his brother during service until the brother was transferred to another ship. The stepmother believed that this transfer negatively impacted the Veteran as his communications home became less frequent, and the Veteran seemed a little down after the transfer. Following the Veteran’s discharge, the stepmother noted that the Veteran had been depressed, quieter, withdrawn, and less involved in old hobbies. This change in disposition had continued since that time. The Veteran’s two sisters similarly reported that the Veteran had been outgoing, fun, close to his family, and good friends with many people before service. One sister remembered that at the beginning his service, the Veteran wrote letters home expressing that he was enjoying his time in the Navy. The sister stated that she still had many of these letters. However, she sensed from subsequent letters that he was no longer enjoying being in the Navy. Both sisters recalled that when he returned home from his service, he had changed. The sisters stated that he seemed depressed, quiet, distant, and easily aggravated. One sister stated that a year or two after service, she found the Veteran crying by himself outside. However, she indicated that since that time, she continued to occasionally come across the Veteran in this state. Each sister stated that the Veteran’s symptoms of depression had persisted since he came home from active service. The Board notes that the Veteran’s personnel records include a January 1973 entry in which he acknowledged a profound desire to serve on duty with his brother. One of the Veteran’s sisters also offered a possible explanation for the lack of evidence of psychiatric symptoms during or soon after service. The sister noted that the Veteran had always been a very private person, and he did not like to discuss his depression. She additionally opined that at the time of his discharge from service, it would have been degrading for the Veteran to be singled out for a mental health problem. The Veteran’s family members are competent to describe the Veteran’s observable symptoms and to relay the contents of the letters he wrote home during service. See Jandreau v. Nicholson, 492 F.3d 1372, 1366-67 (Fed. Cir. 2007). The Board also finds their statements to be credible in light of their internal consistency, the consistency with the other evidence of record, and the provided explanation for the lack of evidence of depression until 2012. In April 2017, H.H.G, PhD, a psychologist, completed a Disability Benefits Questionnaire (DBQ) related to psychiatric disorders and diagnosed unspecified depressive disorder under the DSM-5. H.H.G. also opined that the disorder more likely than not began during the Veteran’s military service, and it had continued uninterrupted since that time. H.H.G. reported that there was a body of medical literature that detailed the emergence of mental health symptoms within active duty servicemen. She cited to one article’s findings that active military service impacts depression, anxiety, and quality of life satisfaction. In addition, other researchers revealed that guilt was a salient feature in mental health diagnoses of active duty military personnel. In fact, active duty military personnel became disillusioned with their personal and professional lives as a result of chronic guilt and shame associated with their service identities, and they experienced more mental health events than civilians. H.H.G. also found that the statements from the Veteran’s family indicated that his depressive disorder symptoms were the result of his military service, and had become exacerbated since his military separation. The Board finds this opinion to be probative as H.H.G reached a conclusion after conducting an examination of the Veteran, and her opinion reflects a consideration of the Veteran’s history as well relevant medical literature. There is also no negative medical opinion to weigh against H.H.G.’s determination. Consequently, the most probative evidence demonstrates that the Veteran's unspecified depressive disorder was incurred in active service. Although the Veteran has received diagnoses for different psychiatric disorders, the evidence does not differentiate symptoms attributable to unspecified depressive disorder versus those due to other diagnoses. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Board considers all manifested psychiatric symptoms as being due to his unspecified depressive disorder. Service connection for a psychiatric disorder, diagnosed as unspecified depressive disorder, is therefore granted. 2. Entitlement to service connection for high cholesterol, to include as due to exposure to herbicide agents. The Veteran contends that he has high cholesterol that is related to his active service. The record has also raised the theory that the Veteran’s high cholesterol is due to exposure to herbicide agents during service. See February 2016 Statement of the Case. During the appeal period, the Veteran has been noted to have hyperlipidemia and hypercholesterolemia. See April 2012 VA treatment record; March 2018 Letter from R.G. The Board notes that hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, such as . . . hypercholesterolemia, and so on." Dorland's Illustrated Medical Dictionary 891 (32nd ed. 2012). In turn, hypercholesterolemia is "excessive cholesterol in the blood." Id., at 887. However, the Board notes that these results are laboratory findings. A laboratory finding is an indication of an injury or disease which could result in disability, rather than a disability in and of itself 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.). Although the Board acknowledges that the Veteran has high cholesterol, these results have not been attributed to an underlying disability. The term "disability," used for VA purposes, refers to impairment of earning capacity resulting from diseases and injuries and their residual conditions. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). In this case, there is no evidence of record that suggests that the Veteran's high cholesterol caused any impairment of earning capacity. The existence of a current disorder is a required element of a claim for VA disability compensation. 38 U.S.C. §§ 1110, 1131; see Degmetich v. Brown, 104 F.2d 1328, 1332 (1997). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As there is no basis in the law to grant the Veteran's appeal, the claim for service connection for high cholesterol must be denied. See Sabonis, 6 Vet. App. at 430 (1994). REASONS FOR REMAND Entitlement to service connection for a low back disorder; entitlement to service connection for blood clots; and entitlement to service connection for hypertension are remanded. A remand is needed to obtain outstanding Social Security Administration (SSA) records. A March 2018 letter from R.G., DO, indicates that the Veteran has applied for SSA disability benefits. R.G.’s letter also reflects that the Veteran’s claim was based on complaints related to the lumbar spine, blood clots, and hypertension. VA has a duty to assist claimants to obtain evidence needed to substantiate a claim, including making as many requests as are necessary to obtain relevant records from a federal department or agency such the SSA. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159(c)(2). As the record does not show that the RO has attempted to obtain these SSA records, efforts to obtain the records should be made upon remand. The matters are REMANDED for the following action: Contact the Social Security Administration and obtain a copy that agency's decision concerning the Veteran's claim for disability benefits, including any medical records used to make that decision. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.C. Spragins, Associate Counsel