Citation Nr: 18148238 Decision Date: 11/07/18 Archive Date: 11/07/18 DOCKET NO. 16-38 869 DATE: November 7, 2018 ORDER As new and material evidence sufficient to reopen the previously denied claim of service connection for a right ankle disability has not been received, the application to reopen this issue is denied. As new and material evidence sufficient to reopen the previously denied claim of service connection for bilateral hearing loss has not been received, the application to reopen this issue is denied. Service connection for high cholesterol is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left ankle disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for left lower extremity radiculopathy is remanded. Entitlement to a rating in excess of 20 percent for residuals of lumbar micro discectomy with diffuse degenerative lumbar disk disease (lumbar spine disability) is remanded. Entitlement to an initial rating in excess of 20 percent for radiculopathy of the right lower extremity is remanded. Entitlement to an initial compensable rating for posttraumatic stress disorder (PTSD) is remanded. Entitlement to a total rating based on individual unemployability due to service-connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. Claims for service connection for a right ankle disability and bilateral hearing loss (claimed as right ear hearing loss and left ear hearing loss) were previously denied by the Regional Office (RO) in a September 2008 rating decision; the Veteran did not appeal that decision and no new evidence pertinent to that claim was received by VA within one year from the date that the RO mailed the notice of the determination to the Veteran. 2. Evidence received since the September 2008 rating decision does not, by itself or when considered with previous evidence of record, relate to an unestablished fact necessary to substantiate the Veteran’s claims of entitlement to service connection for a right ankle disability and bilateral hearing loss. 3. Hyperlipidemia of itself is a laboratory finding, and not a chronic disability for which VA disability benefits may be awarded; an underlying disease or injury is not identified. CONCLUSIONS OF LAW 1. The September 2008 rating decision pertaining to a right ankle disability is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 2. Evidence received since the September 2008 rating decision is not new and material, and the Veteran’s claim of entitlement to service connection for right ankle disability is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The September 2008 rating decision pertaining to right ear hearing loss and left ear hearing loss is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 20.302, 20.1103. 4. Evidence received since the September 2008 rating decision is not new and material, and the Veteran’s claim of entitlement to service connection for bilateral hearing loss is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 5. Service connection for high cholesterol is not warranted. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1975 to October 1986, July 1990 to September 1992 and October 1992 to April 1996. Claims to Reopen In a September 2008 rating decision, the RO denied the Veteran’s claim for service connection for right ankle disability, finding that there was no evidence of any such disability related to service. The RO also denied the Veteran’s claims for service connection for right ear and left ear hearing loss, finding that no such disability was shown in the record. The Veteran did not appeal this decision, or submit new and material evidence within one year of that decision. The decision was thus final based on the evidence then of record. 38 U.S.C. § 7105. At the time of the September 2008 rating decision, the record included service treatment records, which are silent for complaints or findings of a right ankle disability or a hearing loss disability by VA standards (see 38 C.F.R. § 3.385). The record also included a June 2008 authorized VA examination report which noted a diagnosis of chronic right ankle sprain. The Veteran did not file a timely notice of disagreement and no new evidence pertinent to the claim was received by VA prior to the expiration of the appeal period. In addition, VA has not received or associated with the claims file any relevant official service department records that existed and was not associated with the claims file at the time of the September 2008 decision. Therefore, the September 2008 decision is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 3.104, 3.156(b) and (c), 20.302, 20.1103. In August 2014, the Veteran filed another claim for service connection for (in pertinent part) a right ankle disability and a bilateral hearing loss disability. As these claims were previously denied in the September 2008 rating decision, he must now submit new and material evidence to reopen these claims. New evidence means existing evidence not previously submitted to VA. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). For the right ankle claim, the basis of the prior final denial was the finding that there was no evidence of a current right ankle disability related to service. Thus, for the Veteran’s claim to be reopened, the new evidence added to the record since the September 2008 rating decision must addresses that basis. Evidence added to the record includes the Veteran’s own statements that he has a right ankle disability related to service. The contentions are redundant of statements made in connection with his original claim for service connection. See Bostain v. West, 11 Vet. App. 124 (1998). The evidence also includes VA and private medical records, as well as examination reports, dated from 2008 to 2015. Although the additional medical evidence submitted is new, it is not material as it does not show that the Veteran has been diagnosed with a right ankle disability related to service. For the hearing loss claim, the basis of the prior final denial was the finding that the evidence did not show a hearing loss disability for which compensation may be established. Thus, for the Veteran’s claim to be reopened, the evidence added to the record since the September 2008 rating decision must address this basis. Evidence added to the record includes the Veteran’s own statements that he has a bilateral hearing loss disability related to service. The contentions are essentially the same as statements made in connection with his original claim for service connection. See Bostain, supra. The evidence also includes VA and private medical records and examination reports dated from 2008 to 2015. Although the additional medical evidence submitted is new, it is not material as it does not show that the Veteran has been diagnosed with a bilateral hearing loss disability (by VA standards) related to service. Therefore, none of the evidence associated with the record since September 2008 relates to a previously unestablished fact necessary to substantiate the Veteran’s claims. As such, the Board finds that new and material evidence has not been presented sufficient to reopen the previously denied claims of service connection for a right ankle disability or a bilateral hearing loss disability.   Service Connection The Veteran seeks service connection for high cholesterol. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for a disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that it was incurred in service. 38. C.F.R. § 3.303(d). “Congress specifically limits entitlement to service-connected disease or injury where such cases have resulted in a disability... in the absence of a proof of present disability there can be no claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Under applicable regulation, 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). The Veteran’s post-service findings of hyperlipidemia (see VA treatment records dated from November 2014) only represent laboratory findings, and not a disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (explaining that 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 record does not identify or suggest (and the Veteran has not alleged) an underlying disease to which his hyperlipidemia may be related. See Brammer, 3 Vet. App. at 225. As high cholesterol represents a laboratory finding, and there is no medical evidence that the Veteran has a current disability manifested by hyperlipidemia, the competent evidence does not establish the presence of a current disability. As such, the preponderance of the evidence is against service connection. Reasonable doubt does not arise, and the benefit-of-the-doubt doctrine does not apply; the Veteran’s claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND Regarding the remaining issues on appeal, remand is required to obtain Social Security Administration (SSA) records. See 38 C.F.R. § 3.159 (c)(2); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). A letter from SSA indicates that the Veteran was awarded SSA disability benefits effective January 2016. However, there are no SSA records associated with the claims file and the record does not reflect that any attempt was made to obtain such records. Lumbar Spine The Veteran was most recently afforded a VA examination for his lumbar spine disability in 2015. The United States Court of Appeals for Veterans Claims has held that VA examinations for orthopedic disabilities must include joint testing for pain on both active and passive motion, in weight-bearing and non-weight-bearing, which the 2015 examination for the lumbar spine did not include. See Correia v. McDonald, 28 Vet. App. 158 (2016). Therefore, remand for a current VA examination is necessary. PTSD The Veteran was most recently afforded a VA examination for his PTSD in 2015. Statements from the Veteran, including in his August 2016 VA Form 9, substantive appeal, allege a worsening of this disability since that time, to the point that the Veteran in unable to work because of this disability. When a claimant asserts that the severity of a disability has increased since the most recent rating examination, an additional examination is appropriate. See VAOPGCPREC 11-95 (April 7, 1995); Snuffer v. Gober, 10 Vet. App. 400 (1997). Therefore, remand for VA examination is necessary to assess the current severity of the Veteran’s service-connected psychiatric symptoms. The matters are REMANDED for the following actions: 1. Undertake appropriate development to obtain any outstanding medical records pertaining to treatment or evaluation of the Veteran’s right shoulder, left ankle, sleep apnea, heart disability, GERD, erectile dysfunction, back, bilateral lower extremity radiculopathy, and PTSD. 2. Obtain a copy of the records upon which the Veteran’s 2016 award of SSA benefits was based and associate them with the claims file. 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. 3. Thereafter, the Veteran must be afforded a VA examination to determine the nature and severity of his service-connected lumbar spine disability. The electronic claims file must be made available to and reviewed by the examiner. Any indicated diagnostic tests and studies must be accomplished. All pertinent symptomatology and findings necessary to rate this disability must be reported in detail. a) The examiner must state whether there is any evidence of favorable or unfavorable ankylosis, and determine the active and passive range of motion, in degrees, by use of a goniometer. This information must be derived from testing for pain on both active and passive motion, in weight-bearing and non-weight bearing. The examination report must confirm that all such testing has been made and reflect those testing results. If any of this testing cannot be performed the examiner must note this in the report and include an explanation as to why. b) The examiner must also perform active and passive repetitive range of motion testing for the lumbar spine. If pain on motion is shown, the examiner must state at what degree the pain begins. The examiner must also state whether there is weakened movement, excess fatigability, or incoordination attributable to the service-connected disability expressed in terms of the degree of additional range of motion loss or favorable or unfavorable ankylosis due to any weakened movement, excess fatigability, or incoordination. Additionally, an opinion must be stated as to whether any pain found could significantly limit functional ability during flare-ups or during periods of repeated use, noting the degree of additional range of motion loss or favorable or unfavorable ankylosis due to pain on use or during flare-ups. c) The examiner must also state whether the Veteran has intervertebral disc syndrome; if so, the examiner must state whether the Veteran experiences incapacitating episodes requiring bed rest by a physician, and the frequency and total duration of such episodes over the course of the previous 12 months. d) A thorough neurologic examination of the Veteran’s lumbar spine must be performed. The examiner must specifically state the degree of impairment present in the left and right lower extremities, which must be expressed as complete or incomplete paralysis of any nerve. The specific nerves involved must be identified. If incomplete paralysis is found, the examiner must state whether the incomplete paralysis is best characterized as mild, moderate, or severe; with the provision that wholly sensory involvement should be characterized as mild, or at most, moderate. 4. After the record development noted above is completed, schedule the Veteran for a VA psychiatric examination to determine the current severity of his service-connected PTSD. The claims file should be made available to the examiner for review prior to the examination and the examiner should acknowledge such review in the examination report. All indicated studies should be performed. All symptoms should be reported and any functional impairment noted. An explanation for all opinions expressed must be provided. The examiner must utilize the appropriate Disability Benefits Questionnaire. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K.R.Fletcher, Counsel