Citation Nr: 18157630 Decision Date: 12/13/18 Archive Date: 12/12/18 DOCKET NO. 08-29 504 DATE: December 13, 2018 ORDER The claim of entitlement to service connection for macular degeneration is reopened; to this limited extent, the appeal of this issue is granted. A rating in excess of 10 percent for skin disorder, to include tinea cruris, tinea pedis, tinea capitis, and pseudofolliculitis barbae, is denied. A compensable rating for onychomycosis of the toenails is denied. Service connection for hyperlipidemia is denied. Service connection for asthma, to include as secondary to service-connected rhinitis with history of sinusitis, is denied. REMANDED Service connection for an eye disorder, to include macular degeneration and keratoconus, is remanded. Service connection for diabetes mellitus is remanded. Service connection for hypertension is remanded. A rating in excess of 70 percent for depressive disorder is remanded. FINDINGS OF FACT 1. In a decision of August 2003, the RO denied the claim of service connection for macular degeneration for lack of a current diagnosis; the Veteran was notified of the decision and of his appellate rights but he did not appeal. 2. The additional evidence since the RO’s decision in August 2003 is not redundant or cumulative evidence previously considered and it relates to an unestablished fact necessary to substantiate the claim for service connection for macular degeneration. 3. The Veteran failed, without adequate reason or good cause, to report for a November 2017 VA examination to evaluate the severity of his skin disorder, to include tinea cruris, tinea pedis, tinea capitis, and pseudofolliculitis barbae, and onychomycosis of the toenails. 4. Hyperlipidemia is a laboratory finding not a ratable disability for VA compensation purposes. 5. Asthma has not been shown during the pendency of the appeal. CONCLUSIONS OF LAW 1. The August 2003 RO decision, which denied the Veteran’s claim of service connection for macular degeneration is final. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.302, 20.1103. 2. New and material evidence has been presented to reopen a claim of entitlement to service connection macular degeneration. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. Since the Veteran failed, without good cause, to report for the November 2017 VA examination scheduled in connection with his claim of entitlement to a rating in excess of 10 percent for skin disorder, to include tinea cruris, tinea pedis, tinea capitis, and pseudofolliculitis barbae, that claim is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.158, 3.655. 4. Since the Veteran failed, without good cause, to report for the November 2017 VA examination scheduled in connection with his claim of entitlement to a compensable rating for onychomycosis of the toenails, that claim is denied. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.158, 3.655. 5. The criteria for service connection for hyperlipidemia have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for asthma have not been met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from August 1991 to August 1995, including service in the Southwest Asia theater of operations from May 1992 to May 1993. These matters are before the Board of Veterans’ Appeals (Board) on appeal from rating decisions by the Buffalo, New York Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in November 2003, July 2005, March 2013, December 2015, and October 2017. In October 2017, the Board dismissed the issues of entitlement to a rating in excess of 10 percent for residuals of a right index finger disability and entitlement to a rating in excess of 10 percent for gastroesophageal reflux disease; granted a 70 percent rating for depressive disorder with alcohol disorder; denied the issue of whether the record reflects the Veteran received the correct amount of retroactive payment due to the March 2013 Board decision; and remanded the issues of entitlement to service connection for macular degeneration (on a new and material basis), hyperlipidemia, hypertension, diabetes mellitus, asthma, and increased ratings for a skin disorder, and onychomycosis. The Veteran testified before the undersigned Veterans Law Judge in a September 2012 videoconference hearing. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900 (c) (2017). 38 U.S.C. § 7107(a)(2) (2012). By the decision below, the previously denied claim for service connection for macular degeneration is reopened. In accord with Clemons v. Shinseki, 23 Vet. App. 1 (2009), the issues of entitlement to service connection for macular degeneration and keratoconus have been recharacterized as a single, more inclusive issue: entitlement to service connection for an eye disorder, to include macular degeneration or keratoconus. 1. The claim of entitlement to service connection for macular degeneration is reopened; to this limited extent, the appeal of this issue is granted. The Veteran previously submitted a claim of entitlement to service connection for macular degeneration, which was denied in August 2003 rating decision for lack of a current diagnosis. The August 2003 rating decision became final because the Veteran did not submit a Notice of Disagreement or new evidence in connection with the claim within the appeal period. See 38 C.F.R. § 3.156 (b). In connection with the Veteran’s claim to reopen, VA received evidence of macular flattening, which appears to indicate degeneration of the macula. See, e.g., VA treatment record (March 17, 2014). Thus, the Board finds that new and material evidence has been received sufficient to reopen his previously denied claim. 38 C.F.R. § 3.156 (a); Shade v. Shinseki, 24 Vet. App. 110, 117-18 (2010). 2. An initial rating in excess of 10 percent for skin disorder, to include tinea cruris, tinea pedis, tinea capitis, and pseudofolliculitis barbae is denied. 3. Entitlement to an initial compensable rating for onychomycosis of the toenails is denied. The Veteran seeks increased ratings for a skin disorder, to include tinea cruris, tinea pedis, tinea capitis, and pseudofolliculitis barbae, and onychomycosis of the toenails. When a claimant fails to report for an examination scheduled in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with any other original claim, a reopened claim for a benefit which was previously disallowed, or a claim for increase, the claim shall be denied. Examples of “good cause” include, but are not limited to, the illness or hospitalization of the claimant, death of an immediate family member, etc. See 38 C.F.R. § 3.655; see also Engelke v. Gober, 10 Vet. App. 396, 399 (1997). Historically, in March 2013, the Board remanded the increased ratings for a skin disorder and onychomycosis to obtain a VA examination to ascertain the current severity of the disorders. While an October 2014 VA examination noted acne, it did not address other skin disorders or onychomycosis, or the percentage of exposed and unexposed areas affected by a skin disorder. As the October 2014 VA examination provided insufficient evidence to evaluate the severity of the Veteran’s skin disorders and onychomycosis, in December 2015, the Board remanded the matters for VA examinations. A March 2016 Supplemental Statement of the Case (SSOC) noted the Veteran failed to report for VA examinations scheduled earlier that month. However, review of the evidence of record reveals no indication the Veteran was ever notified of the examinations, or that the RO attempted to re-schedule the examinations after he failed to appear for the examinations in March 2016. As it appears the Veteran failed to report to the March 2016 VA examinations for lack of notice, in October 2017, the Board remanded the matters for VA examinations. Upon remand, the Veteran was scheduled for VA examinations in November 2017; however, he failed to appear to the examinations without cause. An April 2018 SSOC noted the Veteran failed to report for VA examinations scheduled in November 2017. Since the scheduled November 2017 examinations, the Veteran has submitted numerous statements, as recently as November 2018; however, none of the statements indicate why he failed to report to the scheduled VA examinations, let alone provide good cause for his failure to report. Indeed, the Veteran has since attended several VA examinations for unrelated disorders. Significantly, in the April 2018 SSOC, the RO provided the Veteran with 38 C.F.R. § 3.655 (b), which advised him that when a claimant fails to report for an examination scheduled in conjunction with an original increased rating claim, “the claim shall be denied.” To date, the Veteran has not presented any reason for his failure to report for the scheduled examination. Because 38 C.F.R. § 3.655 provides that when a claimant fails to report for an examination that is scheduled in conjunction with a claim for an increase, the claim shall be denied. As explained above, the Veteran failed to report for the scheduled September November 2017 VA examinations. The claims of entitlement to increased ratings for his skin disorder, to include tinea cruris, tinea pedis, tinea capitis, and pseudofolliculitis barbae, and onychomycosis of the toenails are therefore denied. 4. Service connection for hyperlipidemia is denied. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. “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. 2010) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). Hyperlipidemia, elevated triglycerides, and elevated cholesterol are considered to be laboratory results and not disabilities for compensation purposes. See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20440, 20445 (May 7, 1996). 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). Hyperlipidemia is a laboratory finding and not a disability for which VA compensation benefits are payable. 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 present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The preponderance of the evidence is against the claim for service connection for hyperlipidemia because of the absence of disability for which service connection may be granted; there is no doubt to be resolved; and service connection is not warranted. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 5. Service connection for asthma, to include as secondary to service connected rhinitis with history of sinusitis, is denied. The Veteran seeks service connection for asthma, which he contends is secondary to his service-connected sinusitis. First, the Veteran failed to report to a November 2017 VA examination, which was ordered to ascertain the nature and etiology of the Veteran’s claimed asthma. Prior to the examination, the Veteran was provided notice of the examination. After the examination, the April 2018 SSOC noted the Veteran failed to report to the examination in November 2017. Since the scheduled November 2017 examination, the Veteran has submitted numerous statements, as recently as November 2018; however, none of the statements address indicate why he failed appear to the scheduled VA examination, let alone provide good cause for his failure to report. Indeed, the Veteran has since attended several VA examinations for unrelated disorders. Significantly, in the April 2018 SSOC, the RO provided the Veteran with 38 C.F.R. § 3.655(b), which advised him that when a claimant fails to report for an examination scheduled in conjunction with an original service connection claim, “the claim shall be rated based on the evidence of record.” To date, the Veteran has not presented any reason for his failure to report for the scheduled examination. Accordingly, the issue of entitlement to service connection for asthma must be decided on the evidence of record. Second, the evidence shows that the Veteran does not have asthma. While he is competent to report symptoms such as difficulty breathing and shortness of breath, he has not demonstrated the requisite medical expertise to self-diagnose a complex medical condition such as asthma, particularly given the presence of his service-connected disabilities that manifest with symptoms such as chest pain and difficulty breathing (e.g., service-connected sinusitis and non-cardiac chest pain). See Jandreau v. Nicholson, 492 F.3d 1372, 1377, n. 4 (Fed. Cir. 2007). Moreover, the competent medical evidence pertaining to the presence of asthma consists of the VA medical opinion dated October 2011, which shows that the Veteran does not have a current asthma. Since the October 2011 VA respiratory examination, treatment records affirmatively show that the Veteran does not have asthma. See, e.g., VA treatment record (December 3, 2012). The Board finds that the VA examination report is consistent with medical records throughout the pendency of the appeal, which show that the Veteran has not had asthma. Accordingly, as the competent medical evidence shows that the Veteran has not had asthma, service connection for asthma is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for an eye disorder, to include macular degeneration and keratoconus, is remanded. The evidence shows macular flattening as well as keratoconus. The Veteran contends that his keratoconus causes macular degeneration. He further relates both disorders to service. VA examination is needed to ascertain the nature and etiology of any current eye disorders. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. Service connection for diabetes mellitus is remanded. 3. Service connection for hypertension is remanded. The Veteran was initially diagnosed with hypertension in April 2009 and diabetes mellitus in December 2011. He contends that both conditions had onset in service; that his service-connected chest pain disorder caused or aggravated his hypertension; and that his hypertension caused or aggravated his diabetes mellitus. The Veteran is service-connected for depressive disorder. A VA study indicates a possible link between psychiatric disorders and heart disease. See http://www.research.va.gov/currents/spring2015/spring2015-8.cfm. Thus, a remand for VA examination is warranted for the Veteran’s service connection claims. 4. A rating in excess of 70 percent for depressive disorder is remanded. The issue of entitlement to a rating in excess of 70 percent for depressive disorder is inextricably intertwined with the Veteran’s pending finding of incompetency. Specifically, in November 2018, the Veteran appealed the RO’s October 2018 proposed finding of incompetency. The Veteran is currently scheduled for a personal RO hearing in February 2019. See Notice of hearing (November 2018). As this testimony taken at this hearing, as well as any other development conducted to determine the Veteran’s competency, may yield information regarding social and occupational impairment stemming from the Veteran’s service-connected depressive disorder, a decision on the increased rating claim for depressive disorder would be premature at this time. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any current eye disorder, to include macular degeneration and/or keratoconus. The examiner must clarify all current disorders affecting the eyes, to include whether the Veteran has had a current diagnosis of macular degeneration. As to each current disorder, the examiner must address whether it is at least as likely as not that such is (i) related to an in-service injury, event, or disease, to include exposure to environmental hazards in the Persian Gulf; (ii) caused by a service-connected disability, to include any required medication; or (iii) aggravated by a service-connected disability, to include any required medication. 2. Schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of the Veteran’s current hypertension and diabetes mellitus. The examiner must address whether it is at least as likely as not the current hypertension and diabetes mellitus are (i) related to an in-service injury, event, or disease, to include exposure to environmental hazards in the Persian Gulf; (ii) caused by a service-connected disability, to include depressive disorder as well as any required medication; (iii) aggravated by a service-connected disability, to include any required medication; and (iv) whether the Veteran’s hypertension caused or has aggravated his diabetes mellitus. In answering (iii), please discuss the VA study referenced above. 3. After adjudicating the issue of whether the Veteran is competent, readjudicate his claim of entitlement to a rating in excess of 70 percent for depressive disorder. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Joshua Castillo, Counsel