Citation Nr: 18155976
Decision Date: 12/06/18	Archive Date: 12/06/18

DOCKET NO. 15-15 458
DATE:	December 6, 2018
ORDER
Entitlement to service connection for hypercholesterolemia is denied.
New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened.  
New and material evidence having been submitted, the claim for entitlement to service connection for alcoholism is reopened.
Entitlement to service connection for an acquired psychiatric disorder other than posttraumatic stress disorder (PTSD), diagnosed as depression and/or mood disorder, is granted.
Entitlement to service connection for migraine headaches is granted.
Entitlement to service connection for sleep apnea is granted.
REMANDED
Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for joint pain is remanded.
Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for coronary artery disease is remanded.
Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for diabetes is remanded.
Entitlement to service connection for an eye disorder is remanded.
Entitlement to service connection for glaucoma is remanded.
Entitlement to service connection for bilateral hearing loss is remanded.
Entitlement to service connection for tinnitus is remanded.
Entitlement to service connection for a respiratory disorder, claimed as asthma is remanded.
Entitlement to service connection for a liver disorder is remanded.
Entitlement tot service connection for a kidney disorder is remanded.
Entitlement to service connection for erectile dysfunction is remanded.
Entitlement to service connection for residuals of a traumatic brain injury (TBI) is remanded.
Entitlement to service connection for restless leg syndrome is remanded.
Entitlement to service connection for gastroesophageal reflux disease (GERD) is remanded.
Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to lumbar strain with degenerative disc disease, is remanded.
Entitlement to service connection for bilateral upper extremity radiculopathy, to include as secondary to lumbar strain with degenerative disc disease, is remanded.
Entitlement to service connection for alcoholism is remanded.
Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.
Entitlement to service connection for an eating disorder is remanded.
Entitlement to service connection for a gum disease is remanded.
Entitlement to service connection for hypertension is remanded.
Entitlement to an initial disability rating greater than 20 percent for lumbar strain with degenerative disc disease is remanded.
Entitlement to a total disability rating based upon individual unemployability (TDIU) is remanded.
FINDINGS OF FACT
1. The Veteran’s hypercholesterolemia (high cholesterol) does not constitute a disability for VA benefits purposes.
2. In an unappealed June 2006 rating decision, which became final, the Veteran’s claim for service connection for hypertension was denied; evidence submitted since the June 2006 rating decision is not cumulative or redundant and, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.
3. In an unappealed June 2006 rating decision, which became final, the Veteran’s claim for service connection for alcoholism was denied; evidence submitted since the June 2006 rating decision is not cumulative or redundant and, combined with VA assistance and considering the other evidence of record, raises a reasonable possibility of substantiating the claim.
4. The Veteran’s acquired psychiatric disorder, diagnosed as depression and/or mood disorder, has been caused or aggravated by his service-connected back disability.
5. The Veteran’s migraine headaches caused or aggravated by his service-connected back disability and now service-connected depression/mood disorder.
6. The Veteran’s sleep apnea is caused or aggravated by his now service-connected depression/mood disorder.
CONCLUSIONS OF LAW
1. The criteria for service connection for hypercholesterolemia are not met.  38 U.S.C. §§ 1110, 5107(b); 38 C.F.R. §§ 3.102, 3.303, 4.1.
2. New and material evidence has been received to reopen the claim for service for hypertension.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 
3. New and material evidence has been received to reopen the claim for service for alcoholism.  38 U.S.C. §§ 5108, 7105; 38 C.F.R. § 3.156. 
4. The criteria for secondary service connection for an acquired psychiatric disorder other than PTSD, diagnosed as depression and/or mood disorder, are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).
5.  The criteria for service connection for migraine headaches are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).
6. The criteria for service connection for sleep apnea are met.  38 U.S.C. §§ 1110, 1131, 5107(b); 38 C.F.R. §§ 3.102, 3.310(a).
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran served on active duty from November 1975 to September 1993.
As an initial introductory matter, the Board notes that the Veteran was previously denied service connection for PTSD by the agency of original jurisdiction (AOJ) in June 2006.  However, it is acknowledged that service personnel records were subsequently added to the record.  Therefore, his service-connection claim for PTSD is being reconsidered on the merits as opposed to as a claim to reopen based on submission of new and material evidence under 38 C.F.R. § 3.156(c) (providing that if, at any time after VA issues a decision on a claim, VA receives or associates with the claims file relevant official service department records that existed and had not been associated with the claims file when VA first decided the claim, VA will reconsider the claim).  Because the added service personal records are not deemed relevant to the previously denied issues for coronary artery disease, hypertension, diabetes, joint pain, and alcoholism, however, the Board must first ascertain whether new and material evidence has been presented to reopen these five issues.
Secondly, even though the Veteran filed a claim for PTSD, the evidence contains an alternative psychiatric diagnosis of a mood disorder; thus, the Board has also recharacterized the issue of entitlement to service connection for PTSD to more broadly include entitlement to service connection for an acquired psychiatric disability pursuant to Clemons v. Shinseki, 23 Vet. App. 1 (2009) (holding that when a claimant makes a claim, he is seeking service connection for symptoms regardless of how those symptoms are diagnosed or labeled).  Because different laws and regulations apply governing claims for PTSD than claims for other psychiatric disorders, the Board has bifurcated and separately listed the encompassed claim for a non-PTSD psychiatric disorder from his initial PTSD claim.
Service Connection
1. Entitlement to service connection for hypercholesterolemia is denied.
The term disability as used for VA purposes contemplates functional impairment resulting in loss of earning capacity.  Here, the record shows that the Veteran has been found to have elevated cholesterol (also referred to as hypercholesterolemia).  See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 887 (32nd ed. 2012).  However, there is nothing in law or fact to suggest that his elevated cholesterol, in and of itself, diminishes earning capacity in any way, and VA has stated that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities.  61 Fed. Reg. 20,440, 20,445 (May 7, 1996).  As the Veteran’s elevated cholesterol does not qualify as a disability, his claim for service connection for that condition must be denied at a matter of law.  
2. New and material evidence having been received, the claim for entitlement to service connection for hypertension is reopened.
The AOJ denied service connection for hypertension in a June 2006 rating decision, stating that hypertension was not diagnosed until 1998 and a “[r]eview of your service medical records show one elevated reading of blood pressure in 1987. There is no evidence of a diagnosis of hypertension and diabetes in service.”  Even though some evidence was submitted within the one-year period following the decision, that evidence was not “new and material” so as to preclude finality under 3.156(b).  As such, the June 2006 rating decision became final with respect to the denial of service connection for hypertension.
The evidence submitted after June 2006, including additional treatment records and lay statements, which prompted the AOJ to obtain a VA examination and opinion in January 2015, relates to unestablished facts necessary to substantiate this service connection claim.  Therefore, the Board finds that the hypertension claim should be reopened.
3.  New and material evidence having been submitted, the claim for entitlement to service connection for alcoholism is reopened.
The AOJ denied service connection for alcoholism in a June 2006 rating decision, stating that “[a]lcoholism is not a disease that is subject to being service connected.”  Even though some evidence was submitted within the one-year period following the decision, that evidence was not “new and material” so as to preclude finality under 3.156(b).  As such, the June 2006 rating decision became final with respect to the denial of service connection for alcoholism.
The evidence submitted after June 2006, including additional medical and lay evidence, which has now resulted in the grant of service-connection for the Veteran’s mood disorder/depression (as will be explained in more detail below), relates to unestablished facts necessary to substantiate this service connection claim.  Therefore, the Board finds that the alcoholism claim should be reopened.
4. Entitlement to service connection for an acquired psychiatric disorder other than PTSD, diagnosed as depression and/or mood disorder, is granted.
The Veteran alleges, in part, that he has a psychiatric disorder related to his service-connected back disability.  Secondary service connection is warranted for a disorder that is proximately due to, or aggravated by a service-connected disease or injury.  38 C.F.R. § 3.310. 
As an initial matter, the Board acknowledges that the Veteran has been diagnosed with depression (see, e.g., December 2006 and January 2007 VA treatment reports), as well as mood disorder (September 2013 private psychiatric report and Disability Benefits Questionnaire).  Accordingly, a current psychiatric disability is shown.
In ascertaining whether there is a link between the diagnosed depression/mood disorder and the Veteran’s service-connected back, a September 2013 private psychologist provided a probative opinion in support of causation or, at the very least, aggravation of his psychiatric disorder beyond its natural progression:  
This injury [of the back in service], in turn continues to manifest as a mood disorder, moreover, this expert opines the physical injury has caused the mood disorder.  There is a body of literature detailing the connection between medical issues, specifically pain, like the pain [the Veteran] struggles with and psychiatric disorder, similar to his complaints.  In fact, there is a causal relationship between medical and psychiatric difficulty [citation omitted]. . . .  [I]t is the belief of this examiner, based on interview and the C-File that [the Veteran’s] service connected lumbar strain with Degenerative Disc Disease is more likely than not aggravating his Mood Disorder.
See September 2013 private psychiatric evaluation and DBQ.  
Given the favorable nexus evidence of record, the Board finds that the evidence is at least in equipoise to support the establishment of service connection for an acquired psychiatric disorder, diagnosed as depression and/or mood disorder, on a secondary basis.
5. Entitlement to service connection for migraine headaches is granted.
As an initial matter, the Board acknowledges that the Veteran has been diagnosed with migraines.  See e.g. March 2018 private DBQ.  Accordingly, a current disability is shown.
In a March 2018 private examination report, the private physician explained that “Research has shown patients who have mental health disorders like depression, mood disorders, and anxiety are more likely to develop headaches because pain and mood are regulated by the same part of the brain,” citing a study entitled, “Depression in Headaches:  Chronicification,” which concluded that mental health disorders can both cause or aggravate headaches.  The examiner provided a positive opinion regarding secondary service connection, stating:
Based on my interview with the [V]eteran, review of the claims file, and the above cited medical literature[,] it is my opinion the [V]eteran’s headaches are more likely that not cause[d] and permanently aggravated by his mood disorder and service connected lumbar strain.  It is my opinion it would be impossible to determine which condition aggravates his headaches more than the other.  In fact, they equally contribute to the [V]eteran’s headaches.
See March 2018 private DBQ.
Given the favorable, probative nexus evidence of record, the Board finds that the evidence is at least in equipoise to support the establishment of service connection for migraine headaches on a secondary basis.
6.  Entitlement to service connection for sleep apnea is granted.
As an initial matter, the Board acknowledges that the Veteran has been diagnosed with sleep apnea.  See September 2013 VA treatment report (reporting a sleep study assessment of obstructive sleep apnea).  Accordingly, a current disability is shown.
In a March 2018 private examination report, the private physician explained the following association between sleep apnea and psychiatric disorders: 
Research has shown psychiatric disorders are commonly associated with OSA [obstructive sleep apnea].  A recent study found that subjects with depression compared with non-depressed controls have a higher prevalence of sleep apnea diagnosis.  This study found that with CPAP treatment, both OSA and psychiatric symptoms decreased providing further evidence of the co-morbity of these conditions”
The examiner concluded, “Based on my interview with the [V]eteran, review of the claims file, and the above cited medical literature[,] it is my opinion the [V]eteran’s mood disorder more likely than not aided in the development of, and permanently aggravates, his OSA.” 
See March 2018 private DBQ.
Given the favorable, probative nexus evidence of record, the Board finds that the evidence is at least in equipoise to support the establishment of service connection for sleep apnea on a secondary basis.
REASONS FOR REMAND
1. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for joint pain is remanded.
2. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for coronary artery disease is remanded.
3. Whether new and material evidence has been submitted to reopen the claim for entitlement to service connection for diabetes is remanded.
4. Entitlement to service connection for an eye disorder is remanded.
5. Entitlement to service connection for glaucoma is remanded.
6. Entitlement to service connection for bilateral hearing loss is remanded.
7. Entitlement to service connection for tinnitus is remanded.
8. Entitlement to service connection for a respiratory disorder, claimed as asthma is remanded.
9. Entitlement to service connection for a liver disorder is remanded.
10. Entitlement tot service connection for a kidney disorder is remanded.
11. Entitlement to service connection for erectile dysfunction is remanded.
12. Entitlement to service connection for residuals of a TBI is remanded.
13. Entitlement to service connection for restless leg syndrome is remanded.
14. Entitlement to service connection for GERD is remanded.
15. Entitlement to service connection for bilateral lower extremity neuropathy, to include as secondary to lumbar strain with degenerative disc disease is remanded.
16. Entitlement to service connection for bilateral upper extremity radiculopathy, to include as secondary to lumbar strain with degenerative disc disease is remanded.
17. Entitlement to service connection for alcoholism is remanded.
18. Entitlement to service connection for posttraumatic stress disorder (PTSD) is remanded.
19. Entitlement to service connection for an eating disorder is remanded.
20. Entitlement to service connection for a gum disease is remanded.
21. Entitlement to service connection for hypertension is remanded.
22. Entitlement to an initial disability rating higher than 20 percent for lumbar strain with degenerative disc disease is remanded.
23. Entitlement to TDIU is remanded.
For all the remanded issues, there are outstanding potentially relevant records.  First, the Board recognizes that the AOJ obtained Social Security Administration (SSA) records in March 2010; however, it appears the Veteran subsequently appealed the SSA’s denial because he later submitted an undated letter in  February 2012 in which SSA favorably found that the Veteran became entitled to disability benefits beginning April 2009, explaining that SSA will pay him beginning November 2011 but withhold benefits for April 2009 through September 2011 until a decision was made regarding the lump sum payment due.  See SSA determination letter from 2011.  Because none of the records from the appeal/favorable finding by SSA have been obtained, a remand is required to allow VA to request these relevant records.  Second, it also appears that there are outstanding private treatment records.  In this regard, it was noted that the Veteran was seen during service in 1990 at Highland Park Hospital; these private records should be obtained on remand with any necessary assistance from the Veteran.  Third, a remand is necessary to obtain VA treatment records since May 2016.
Regarding the Veteran’s claim for bilateral upper extremity radiculopathy, in a November 1995 private treatment neurology report, it was noted that the Veteran injured his neck and back in 1978 while serving in the military; significantly, the impression rendered was of possible “cervical radiculopathy given his signs and symptoms, particularly his weak biceps muscle and the pain which radiates down his right arm from his neck.”  This information is sufficient VA’s duty to obtain an opinion regarding the nature and etiology of his claimed upper extremity symptoms.
Regarding the claim for alcoholism, as discussed above, the Veteran is now service-connected for an acquired psychiatric disorder, diagnosed as depression and/or mood disorder.  In a November 2006 VA treatment report, the reported psychiatric symptoms of a “daily routine of depression” and suicidal ideation of trying to “drink myself to death.”  Although service connection is precluded under 38 U.S.C. § 1110 for primary alcohol/substance abuse and for secondary disabilities resulting from primary alcohol/substance abuse, service connection may be granted for an alcohol/substance abuse disability if such disability is secondary to a service-connected disability.  Thus, a VA examination and medical opinion should be obtained so that the Board may ascertain whether the Veteran’s alcohol dependence is a manifestation of his now service-connected psychiatric disability.  
Regarding the Veteran’s claim for hypertension, the existing January 2015 VA opinion regarding the etiology of the Veteran’s hypertension is based on an inaccurate factual premise, that there was only one sole elevated blood pressure reading in service:  “BP checks . . . all normal except one with a periodic physical exam, Jan 1987, recorded 134/98.”  A review of service treatment records, however, reveal other elevated readings, including 148/94 in December 1991, 140/90 in February 1993 (noted twice in the records).  Additionally, his blood pressure of 130/80 was underlined by the in-service medical provider, and it was noted that the Veteran was given verbal/written information on high blood pressure in conjunction with his November 1992 health risk assessment.  An addendum opinion is needed considering this in-service evidence suggesting symptomatology possibly related to hypertension beginning in the military.
Regarding the Veteran’s claim for a higher initial rating for his spine, the Board notes that the VA examinations from July 2010 and January 2015, the examinations do not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158, 168 (2016).  The examinations do not contain passive range of motion measurements or pain on weight-bearing testing.  
Finally, regarding the claim for TDIU, a September 2013 private opinion found that the Veteran’s service-connected back and secondary mood disorder (the latter of which is newly service-connected) “renders him incapacitated.”  However, the Board may not consider an award of TDIU at this juncture because the schedular criteria for application of 38 C.F.R. § 4.16(a) are not met.  Therefore, adjudication of TDIU must be deferred until the AOJ adjudicates the remanded issues and effectuates the Board’s award of service connection for mood disorder/depression, migraine headaches, and radiculopathy and assigned initial ratings and effective dates.  Then, if he still does not meet the schedular criteria, a referral is needed for extraschedular consideration by the Director, Compensation Service, pursuant to 38 C.F.R. § 4.16(b).
The matters are REMANDED for the following actions:
1. Obtain the Veteran’s post-March 2010 records from the SSA, including those relied upon to support a grant of SSA disability benefits in 2011.  Document all requests for information, as well as all responses in the claims file.
2. Obtain the Veteran’s VA treatment records for the period from May 2016 through the present. 
3. Ask the Veteran to complete a VA Form 21-4142 for the Highland Park Hospital treatment records from September 1990.  Make two requests for the authorized records from this facility, unless it is clear after the first request that a second request would be futile.
4. Schedule the Veteran for an examination to determine the nature and etiology of his claimed bilateral upper extremity radiculopathy.  For any diagnoses rendered, the examiner must provide and opinion as to whether it at least as likely as not that the disability was incurred in or is related to service, including the reported in-service injury.  
Please note that that there is a May 1977 service treatment record reporting the Veteran was lifting wall lockers, a June 1977 service report noting pain in the right upper back, assessing a strained muscle, and a September 1977 service treatment report noting an injury occurring while walking with an “81 motor board.” 
5. Schedule the Veteran for an examination to determine the nature and etiology of his alcohol dependence.  The examiner must provide and opinion as to whether it at least as likely as not that the Veteran’s diagnosed alcohol dependence is caused or aggravated by his service-connected depression/mood disorder.
6. Obtain an addendum opinion regarding the nature and etiology of the Veteran’s hypertension.  The need for a new examination is left to the discretion of the examining clinician.  The examiner must provide an opinion as to whether the Veteran’s hypertension had its onset in service or is otherwise related to service.  In doing so, the examiner must comment on the elevated blood pressure readings from January 1987, December 1991, and again in February 1993, along with the fact the Veteran was counseled regarding hypertension in conjunction with his November 1992 in-service health risk assessment.
7. Schedule the Veteran for an examination of the current severity of his back disability. The examiner should 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 his disability alone and discuss the effect of the Veteran’s back 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).
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8. Finally, after readjudicating all the remanded issues, if the Veteran still does meet the schedular criteria for TDIU of 38 C.F.R. § 4.16(a), refer the issue of TDIU to the Director, Compensation Service, pursuant to the provisions of 38 C.F.R. § 4.16(b) for consideration of whether an extraschedular rating.
 
H.M. WALKER
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	K.Gielow, Counsel