Citation Nr: 18154901 Decision Date: 12/03/18 Archive Date: 11/30/18 DOCKET NO. 16-38 625 DATE: December 3, 2018 ORDER Entitlement to a total disability rating based on individual unemployability (TDIU) due to service connected disabilities is granted. New and material evidence having been submitted, the claim of entitlement to service connection for a heart condition is reopened. Entitlement to service connection for elevated cholesterol is denied. REMANDED Whether new and material evidence has been received to reopen the claim of entitlement to service connection for gingivitis is remanded. Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected degenerative disc disease, lumbar spine with scar and/or service-connected depressive disorder, is remanded. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease, lumbar spine with scar, is remanded. FINDINGS OF FACT 1. The Veteran is unable to secure and follow substantially gainful employment as a result of his service-connected disabilities. 2. A June 2008 rating decision denied entitlement to service connection for a heart condition based on a determination that the evidence did not show the Veteran had a heart condition that began in service and resulted in a chronic heart condition. The Veteran was notified of that decision, but did not initiate an appeal, and new and material evidence was not received within one year of the rating decision. 3. Since the June 2008 rating decision, a January 2016 VA primary care note indicates a finding of sinus bradycardia on an electrocardiogram. The Board finds this new evidence is material as when it is considered with the Veteran’s March 2007 claim and service treatment records, it indicates the Veteran may have a current heart condition related to sinus bradycardia and arrhythmia noted during active duty service. Therefore, it raises a reasonable possibility of substantiating the claim of service connection for a heart condition. 4. The finding of high cholesterol is a laboratory measurement, which by itself does not constitute a recognized disability for VA benefits. CONCLUSIONS OF LAW 1. The criteria for entitlement to TDIU throughout the appeal period have been met. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2017). 2. The June 2008 rating decision, which denied the Veteran’s claim of entitlement to service connection for a heart condition, is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.104, 3.156, 20.201, 20.302, 20.1103 (2017). 3. The additional evidence received since the June 2008 rating decision is new and material, and the claim of entitlement to service connection for a heart condition is reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156 (2017). 4. The criteria for service connection for elevated cholesterol have not been met. 38 U.S.C. § 1110, 1131, 5107(b) (2012); 38 C.F.R. § 3.102, 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from May 1984 to July 1992. The Veteran also served in the Reserves. In the case of Rice v. Shinseki, 22 Vet. App. 447 (2009), the United States Court of Appeals for Veterans Claims held that a claim for TDIU due to service-connected disabilities is part and parcel of an increased rating claim when such claim is raised by the record. The Veteran has indicated that he cannot work due to his service-connected back disability. See June 2017 VA Form 21-8940. Accordingly, the Board has characterized the issues on appeal to include a claim for entitlement to TDIU. In August 2018, the Veteran perfected appeals as to entitlement to an increased initial disability rating for depressive disorder, and entitlement to an earlier effective date for the grant of service connection for depressive disorder. However, in an October 2018 letter, the Veteran’s representative requested the Board wait a full 90 days before issuing a decision as the representative intends to submit additional evidence and argument on those claims. Accordingly, the Board will defer decision on the appeals for entitlement to an increased initial disability rating, and entitlement to an earlier effective date for the grant of service connection, for depressive disorder. 1. Entitlement to TDIU It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16. A finding of total disability is appropriate “when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation.” 38 C.F.R. §§ 3.340(a)(1), 4.15. The Veteran is currently service connected for depressive disorder, rated as 70 percent disabling, and degenerative disc disease, lumbar spine with scar, rated as 20 percent disabling. The Veteran’s current combined rating is 80 percent. See February 2017 rating decision. Accordingly, the Veteran meets the initial criteria for schedular consideration for the grant of TDIU under 38 C.F.R. § 4.16(a). The Board finds that the totality of the evidence of record indicates the functional impairments caused by the Veteran’s service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation. The Veteran’s prior work experience includes radioactive lab technician, security guard, photo lab technician, retail manager, private investigator, greenhouse worker, drywall installer, and forestry aid. See June 2017 VA Form 21-8940; May 2007 Social Security Administration (SSA) disability benefits decision; June 2005 Mark Twain National Forest formal notice. The Veteran has not worked since 2005. See June 2017 VA Form 21-8940; May 2007 SSA disability benefits decision. In a May 2007 decision, SSA awarded disability benefits based on the determination the Veteran’s residual functional capacity due to his back disability rendered him unable to perform his past relevant work. The evidence of record indicates that throughout the appeal period, the Veteran’s service-connected back disability continues to impair his ability to lift, and to walk, stand, or sit for prolonged periods of time, including during a typical eight-hour work day. See, e.g., July 2016 VA back examination; November 2013 VA back examination; see also April 2007 Dr. T.D. Medical Source Statement – Physical. Further, the Veteran’s VA treatment records indicate the Veteran has continued to be prescribed narcotic pain medications for his back pain, which his former VA physician indicated cause a decrease in the Veteran’s concentration. See April 2007 Dr. T.D. Medical Source Statement – Physical. Finally, Dr. H.H.-G. opined that due to the Veteran’s service-connected depressive disorder, he would be expected to miss work and leave work early three or more days per month. More than three days per month, for at least seven out of eight hours of a work day, the Veteran would also not be able to stay focused to complete simple repetitive tasks. Finally, Dr. H.H.-G. opined that more than once per month, the Veteran would respond to the normal pressures and constructive criticisms of a job in an angry manner. Dr. H.H.-G. ultimately opined that the Veteran cannot sustain the stress from a competitive work environment and cannot be expected to engage in gainful activity due to his major depressive disorder. See November 2014 Medical Opinion on Service Connected Impairments re: Ability to do Work-Related Activities (Mental); November 2014 Mental Disorder Disability Benefits Questionnaire and opinion. Accordingly, the Board finds that the evidence of record indicates it is at least as likely as not the manifestations of the Veteran’s service-connected back disability and depressive disorder impair his ability to sit or stand and to maintain the focus and concentration necessary to successfully complete occupational tasks throughout a full work day, and attend a substantially gainful job on a regular basis. Therefore, based on the evidence of record and resolving all reasonable doubt in the Veteran’s favor, the Board finds that the totality of the evidence of record indicates the functional impairments caused by the Veteran’s service-connected disabilities render the Veteran unable to secure or follow a substantially gainful occupation, and entitlement to TDIU is warranted throughout the appeal period. Finally, although the Veteran has been awarded entitlement to TDIU, the Board has found that entitlement to TDIU is based on the combined effects of multiple service-connected disabilities, and is not based on a single disability. Therefore, the Veteran does not have a single service-connected disability rated as 100 percent disabling. Accordingly, the Board finds the issue of entitlement to special monthly compensation at the housebound rate has not been raised. See 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i); 75 Fed. Reg. 11,229, 11,230, Summary of Precedent Opinions of the VA General Counsel (March 10, 2010) (withdrawing VAOPGCPREC 6-1999 in light of Bradley v. Peake, 22 Vet. App. 280 (2008)). 2. Entitlement to service connection for elevated cholesterol The Veteran’s private and VA treatment records include findings of high cholesterol, as well as assessments of hyperlipidemia and dyslipidemia. Hyperlipidemia, or high cholesterol, is a form of dyslipidemia, an abnormal amount of lipids in the blood (e.g. triglycerides, cholesterol, and/or fat phospholipids). These diagnoses are classified as a laboratory finding, rather than a disability, for VA compensation purposes. See 61 Fed. Reg. 20,440-20,445 (May 7, 1996). Congress has specifically limited entitlement to service-connected benefits to cases where there is a current disability. “In the absence of proof of a present disability, there can be no valid claim.” Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As elevated cholesterol, hyperlipidemia, and dyslipidemia are not considered a disability for VA compensation purposes, the Veteran has not presented a valid claim of service connection as to this issue. Accordingly, the Veteran’s claim of entitlement to service connection for elevated cholesterol must be denied. [Continued on next page]   REASONS FOR REMAND 1. Whether new and material evidence has been received to reopen the claim of entitlement to service connection for gingivitis is remanded. In an October 2013 VA Form 21-4142, the Veteran identified relevant outstanding private treatment records. A remand is required to allow VA to obtain authorization and request these records. 2. Entitlement to service connection for a heart disability is remanded. The Veteran contends he has a current heart disability related to findings of sinus bradycardia during his active duty service. See March 2007 claim; June 1992 electrocardiogram report; April 1990 electrocardiogram report. A January 2016 VA primary care note indicates a finding of sinus bradycardia on an electrocardiogram, and a May 2016 VA telephone encounter note indicates the Veteran was to schedule a nuclear stress test through the Veteran’s Choice program. A remand is required to obtain the Veteran’s updated VA treatment records, as well as to obtain authorization and request any relevant private treatment records. Further, a remand is required to afford the Veteran a VA examination to determine the nature and etiology of any current heart disability. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. Entitlement to service connection for a sleep disorder, to include as secondary to service-connected degenerative disc disease, lumbar spine with scar and/or service-connected depressive disorder, is remanded. The Veteran’s VA treatment records include an assessment of insomnia, as well as prescription medications for insomnia. See, e.g., April 2011 VA primary care physician note. The evidence of record indicates the Veteran’s complaints of sleep impairment may be related to his back disability and/or his depressive disorder. See, e.g., June 2018 LHI mental disorders examination report; September 2014 VA neurosurgery consultation. A remand is required to afford the Veteran a VA examination to determine the nature and etiology of any current sleep disorder. See 38 U.S.C. § 5103A(d); McLendon, 20 Vet. App. at 81. 4. Entitlement to a disability rating in excess of 20 percent for degenerative disc disease, lumbar spine with scar is remanded. The Veteran was last afforded a VA examination of his back in July 2016. However, the examination does not comply with the requirements in Sharp v. Shulkin, 29 Vet. App. 26, 34-36 (2017). While the examiner stated that an opinion could not be provided regarding functional loss because the Veteran’s condition was not currently flared up, the examiner did not ascertain adequate information from the record regarding how factors such as pain, weakness, and/or fatigability limit the Veteran’s functional ability of the lumbar spine during flare-ups and/or following repetitive use over time. Further, the July 2016 VA examiner did not address the Veteran’s complaints of radiculopathy symptoms, particularly in his left lower extremity, as documented in his VA treatment records. See, e.g., September 2014 VA neurosurgery consultation; June 2014 VA primary care physician note. On remand, the Veteran should be provided an opportunity to report for a VA examination to ascertain the current severity and manifestations of his service-connected back disability. The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Spring View Dental and any non-VA cardiology treatment and/or testing, including stress testing. Make two requests for the authorized records from each identified provider, unless it is clear after the first request that a second request would be futile. 2. Obtain the Veteran’s relevant VA treatment records from May 2016 to the present. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current heart disability. After a review of the claims file, and interview and examination of the Veteran, the examiner is asked to respond to the following inquiries: a) Please identify with specificity all heart disabilities which are currently manifested, or which have been manifested at any time since February 2013. The examiner should specifically address the January 2016 VA primary care note indicating a finding of sinus bradycardia on an electrocardiogram. b) For each heart disability identified, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current heart disability was either incurred in, or is otherwise related to, the Veteran’s military service? The examiner should specifically discuss the findings of sinus bradycardia and sinus arrhythmia on electrocardiograms in April 1990 and June 1992. 4. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current sleep disorder. After a review of the claims file, and interview and examination of the Veteran, the examiner is asked to respond to the following inquiries: a) Please identify with specificity all sleep disorders which are currently manifested, or which have been manifested at any time since February 2013. The examiner should specifically address the April 2011 assessment of insomnia by the Veteran’s VA primary care physician. b) For each disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current sleep disorder was caused by his service-connected back disability and/or depressive disorder, alone or in combination? The examiner should address the Veteran’s reports that he has sleep problems due to his back pain, as well as indications by VA examiners that sleep impairment is related to his depressive disorder. c) For each disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current sleep disorder is aggravated by his service-connected back disability and/or depressive disorder, alone or in combination? Aggravation indicates a worsening of the underlying condition as compared to an increase in symptoms. If aggravation is found, the examiner should attempt to identify the baseline level of the sleep disorder that existed before aggravation occurred. d) For each disability, is it at least as likely as not (i.e. probability of 50 percent or greater) that the Veteran’s current sleep disorder was either incurred in, or is otherwise related to, the Veteran’s military service? 5. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected back disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s lumbar spine disability under the rating criteria. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the examiner should identify any symptoms and functional impairments due to the lumbar spine disability alone and discuss the effects of the Veteran’s lumbar spine disability on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). The examiner should also address the Veteran’s reports of radiculopathy symptoms, particularly in the left lower extremity, as documented in his VA treatment records. [Continued on next page]   6. After the above development, and any additionally indicated development, has been completed, readjudicate the issues on appeal. If any benefit sought is not granted to the Veteran’s satisfaction, send the Veteran and his representative a supplemental statement of the case and provide an opportunity to respond. If necessary, return the case to the Board for further appellate review. DONNIE R. HACHEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD S. Delhauer, Counsel