Citation Nr: 20055041 Decision Date: 08/19/20 Archive Date: 08/19/20 DOCKET NO. 16-53 280A DATE: August 19, 2020 ORDER Entitlement to service connection for hypertension is denied. Entitlement to service connection for elevated cholesterol is denied. The claim of entitlement to a nonservice-connected pension has been withdrawn, and is dismissed. REMANDED Entitlement to a rating in excess of 10 percent for a left wrist disability is remanded. Entitlement to an effective date of the award of service connection for a left wrist disability, prior to January 14, 2011, is remanded. Entitlement to service connection for multiple myeloma is remanded. Entitlement to service connection for obstructive sleep apnea is remanded. Entitlement to service connection for gout is remanded. Entitlement to service connection for a mood disorder is remanded. Entitlement to service connection for residuals of a cerebrovascular accident (CVA) is remanded. Entitlement to service connection for left side weakness is remanded. Entitlement to service connection for tension headaches is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. The Veteran’s hypertension was not present in service or for many years thereafter and is not otherwise etiologically related to service. 2. The Veteran does not have a disability associated with his elevated cholesterol for which service connection can be granted. 3. At his September 2019 Board hearing, prior to the promulgation of a decision in the appeal, the Veteran stated that he wished to withdraw the issue of entitlement to a nonservice-connected pension. CONCLUSIONS OF LAW 1. The criteria for service connection for hypertension are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for elevated cholesterol are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. The criteria for withdrawal of the claim of entitlement to a nonservice-connected pension by the appellant have been met. 38 U.S.C. § 7105; 38 C.F.R. § 20.205. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1980 to February 1981 and February 1982 to February 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2013, July 2015, and October 2016 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). At the outset, the Board notes that the July 2015 rating decision found that new and material evidence was not submitted sufficient to reopen the claims for service connection for hypertension, gout, left side weakness, headaches, and a mood disorder. However, the Veteran timely appealed the May 2013 rating decision in October 2013 and the October 2016 statement of the case (SOC) addressed the merits of the claims. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, at his September 2019 Board hearing, the appellant, through his representative, made a knowing withdrawal of his claim for entitlement to a nonservice-connected pension and, hence, there remain no allegations of errors of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal and it is dismissed. Service Connection Service connection is awarded for disability that is the result of a disease or injury in active service. 38 U.S.C. § 1110. Service connection requires competent evidence showing: (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. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002); see also Caluza v. Brown, 7 Vet. App. 498 (1995). A Veteran bears the evidentiary burden to establish all elements of a service connection claim, including the nexus requirement. See Fagan v. Shinseki, 573 F.3d 1282, 1287-88 (2009); see also Walker v. Shinseki, 708 F.3d 1331, 1334 (Fed. Cir. 2013). In making its ultimate determination, the Board must give a veteran the benefit of the doubt on any issue material to the claim when there is an approximate balance of positive and negative evidence. See Fagan, 573 F.3d at 1287 (quoting 38 U.S.C. § 5107 (b)). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A lay witness is competent to testify as to the occurrence of an in-service injury or incident where such issue is factual in nature. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). In some cases, lay evidence will also be competent and credible on the issues of diagnosis and etiology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Specifically, lay evidence may be competent and sufficient to establish a diagnosis where (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau, 492 F.3d at 1377; see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). Entitlement to Service Connection for Hypertension The Veteran contends that his headaches and dizziness noted in service were manifestations of his later diagnosed hypertension. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166 -67 (Fed. Cir. 2004). The Board concludes that, while the Veteran has a diagnosis of hypertension, the preponderance of the evidence is against finding that it began during active service, or is otherwise related to an in-service injury or disease. The October 2019 private practitioner M.J.F. opined that the Veteran’s hypertension was at least as likely as not present in service as evidenced by his headaches and dizziness; however, the opinion is not probative because the preponderance of the evidence weighs against finding that the Veteran had hypertension in service. Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993). In this case, and according to the Veteran’s reports, he was diagnosed with hypertension in 1987, two years after separation from service. The Veteran’s service treatment records show that he had complaints of headaches and dizziness, usually associated with nausea, high fever, or other indications of illness. Although, as the private practitioner M.J.F. noted, headaches and dizziness are symptoms of hypertension, hypertension is a diagnosis confirmed through measuring blood pressure. In this instance, the Veteran’s blood pressure was taken and recorded numerous times throughout his military service. No blood pressure readings taken during service were indicative of hypertension and the Veteran was not taking any medication during service to control hypertension. For rating purposes hypertension is defined as diastolic blood pressure predominantly 90 or greater, or systolic blood pressure predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Note 1. Readings noted in the Veteran’s service treatment records include 122 over 76 at his enlistment examination, 120 over 80 at his separation examination, and 100 over 78, 100 over 60, 98 over 60, 100 over 74, and 110 over 76 at various points during his service. As noted, none of these readings are indicative of hypertension. While the Veteran believes his hypertension started in service or is otherwise related to his headaches and dizziness in service, the Board reiterates that the preponderance of the evidence weighs against finding an in-service occurrence of hypertension. Likewise, as it was diagnosed more than 1 year after service, service connection for hypertension may not be presumed. 38 U.S.C. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.303, 3.307, 3.309. Entitlement to Service Connection for Elevated Cholesterol The Veteran is seeking service connection for elevated cholesterol. Elevated cholesterol represents only a laboratory finding, and it is not a disability 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). The Board can identify no medical evidence of a current disability related to any purported elevated cholesterol reading. As applicable laws and regulations do not permit service connection for hyperlipidemia, alone, the claim must be denied. 38 U.S.C. §§ 1110, 5107(b); see Degmetich v. Brown, 104 F.3d 1328, 1332 (1997) (holding that interpretation of sections 1110 and 1113 of the statute as requiring the existence of a present disability for VA compensation purpose cannot be considered arbitrary). The Board notes the Veteran’s testimony that he experienced symptoms of elevated cholesterol while in service, however, even if this were true, it would not alleviate the need for a diagnosed disease related to elevated cholesterol. REASONS FOR REMAND Regarding the claim for entitlement to a rating in excess of 10 percent for residuals of a left wrist fracture, the Veteran testified at his September 2019 Board hearing that the symptoms are more frequent and severe than noted at the March 2013 VA exam. As that examination was over 7 years ago, a new examination to determine the current nature and severity of the Veteran’s disability is warranted. Further, the Veteran’s timely December 2016 notice of disagreement indicated a desire to appeal both the 10 percent rating for his wrist disability and the effective date assigned for that rating. However, no statement of the case regarding the issue of an effective date prior to January 14, 2011 for the award of service connection for a left wrist disability has been issued. As such, remand is required for the RO to issue an SOC. 38 C.F.R. § 20.200; Manlincon v. West, 12 Vet. App. 238, 240-41 (1999). Regarding the Veteran’s claim for service connection for multiple myeloma, it is unclear from the available records if the Veteran has a diagnosis of multiple myeloma. A May 2014 treatment note indicates that following his diagnosis from VA, he received outside opinions that refute the diagnosis of multiple myeloma. As the diagnosis is not clear, an examination should be sought to determine what, if any, disability the Veteran has. Further, the private medical records referenced by the Veteran have not been obtained. On remand, the RO should attempt to obtain these records and associate them with the file. Regarding the claim for entitlement to service connection for obstructive sleep apnea, the Veteran contends that his snoring in service was an early symptom of his sleep apnea diagnosed in February 2011. The Board notes the positive nexus opinion of Dr. M.J. Feinstein; however, the Board assigns little probative value to this opinion. The Veteran has been noted to be a poor historian and Dr. M.J. Feinstein relies entirely on the Veteran’s report of in service snoring to determine that the Veteran’s OSA was present in service. Further, the examiner did not provide a detailed rationale for his opinion, thus making it impossible for the Board to issue an informed and well-reasoned decision in this matter. As the Veteran has not been afforded a VA examination, remand is warranted to provide the Veteran with a VA examination. Regarding the claim for service connection for gout, the Veteran has testified that he had what he believes to be gout pain in service, or, alternatively, that his drinking in service led to his gout. The Veteran is not competent to differentiate gout from other joint pain nor to determine that his drinking caused his gout. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms but not to provide medical diagnosis). Although the Veteran was afforded an examination in March 2013, no opinion was rendered. Further, the October 2019 private opinion submitted by the Veteran stated that gout was an issue on appeal, the examiner failed to provide an opinion on the nature and etiology of the Veteran’s gout. As such, there is no opinion of record concerning the nature and etiology of the Veteran’s gout on which the Board can base a conclusion. As such, remand is warranted. On remand, the RO should address both the Veteran’s contentions that his gout was present in service and that his drinking in service caused his gout. Regarding the claim of entitlement to service connection for a mood disorder, the October 2019 private examiner, Q. Austin-Small, a psychologist, noted that the March 2013 VA examiner (who diagnosed the Veteran to have a mood disorder), was not qualified to conduct the examination for mental disorders. Specifically, Mr. Austin-Small noted that in the body of the examination report itself, instructions provided that in order to conduct an initial examination for mental disorders, the examiner must be: a board-certified or board-eligible psychiatrist; a licensed doctorate-level psychologist; a doctorate-level mental health provider under the close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist; a psychiatry resident under close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist; or a clinical or counseling psychologist completing a one-year internship or residency (for purposes of a doctorate-level degree) under close supervision of a board-certified or board-eligible psychiatrist or licensed doctorate-level psychologist. The March 2013 VA examiner, as noted by the private examiner, is an ambulatory care doctor specializing in internal medicine, which does not appear to include the requisite qualifications to perform the examination. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). As it happens, the October 2019 private psychologist’s opinion is not sufficient to grant the benefits sought. The examiner stated that it was more likely than not that the Veteran’s depressive disorder began during military service. However, it is not apparent from the record if the Veteran’s current depressive disorder is the same as any depressive disorder that may have been present in service. In a March 2011 psychiatric examination, Dr. A. Gill diagnosed the Veteran with cognitive disorder NOS, mild in severity secondary to three cerebrovascular accidents. The Veteran’s regular VA mental health counselor from 2011 to 2013, routinely diagnosed the Veteran’s condition as a mood disorder secondary to CVA or infrequently as depressive disorder due to organic causes. Throughout these treatment sessions there is no indication that the Veteran’s depressive disorder began in or was related to service. Additionally, the July 2011 initial assessment noted that the Veteran had no prior mental health history. Further, although not adequate to determine a diagnosis, the Veteran stated at his March 2013 VA examination that his episodes of sadness, which lasted several days, began after his stroke. Additional statements made by the Veteran’s friends and family also indicate that his depressive symptoms began after his stroke. As the previous VA examination is not adequate, and there are conflicting diagnoses regarding the exact nature of the Veteran’s mental disorder, remand for a new examination is warranted. Regarding the claim for service connection for residuals of a cerebrovascular accident, the October 2019 private examiner, M.J. Feinstein, opined that it was more likely than not due to his hypertension. The Board has denied the Veteran’s claim for service connection for hypertension. However, Q. Austin-Small stated that the Veteran’s CVA is at least as likely as not due to his mental disorder. Thus, the Board finds that the claims of entitlement to service connection for a mental disorder and residuals of a CVA are inextricably intertwined, and remand is necessary. Finally, because a decision on the remanded issue of entitlement to service connection for a CVA could significantly impact a decision on the issues of entitlement to service connection for left side weakness, tension headaches, and a TDIU, the issues are inextricably intertwined. A remand of the claims for entitlement to service connection for left side weakness, tension headaches, and a TDIU is required. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected left wrist disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. 2. Send the Veteran and his representative a statement of the case that addresses the issue of entitlement to an effective date prior to January 14, 2011 for the award of service connection for a wrist disability. If the Veteran perfects an appeal by submitting a timely VA Form 9, the issue should be returned to the Board for further appellate consideration. 3. Ask the Veteran to complete a VA Form 21-4142 for any private physicians who have pertinent records, including the opinions he received regarding his multiple myeloma diagnosis Make two requests for the authorized records from any identified provider, unless it is clear after the first request that a second request would be futile. 4. After obtaining any records identified by the Veteran, schedule the Veteran for an examination by an appropriate clinician to determine the nature and etiology of any multiple myeloma, obstructive sleep apnea, gout, and mood disorder. For each disability listed, the examiner must opine whether it is at least as likely as not that such disability was present in service or related to an in-service injury or disease. Regarding the Veteran’s multiple myeloma, the examiner must specifically address the Veteran’s contention that it was present in service and lay dormant for many years prior to manifesting at the time of his diagnosis. Regarding the Veteran’s gout, the examiner must specifically address the Veteran’s contention that it was caused by his drinking in service or was otherwise present in service. Regarding the Veteran’s obstructive sleep apnea, the examiner must specifically address the Veteran’s contention that his snoring in service was evidence of the presence of the disability. Regarding the Veteran’s claimed mood disorder, to include a depressive disorder, the examiner must determine if the Veteran has a diagnosed mood disorder, to include depressive disorder. Further the examiner must specifically discuss the October 2019 private opinion which opined that the Veteran’s depressive disorder was present in service as evidenced by his substance abuse, the March 2011 examination by Dr. A. Gill, and the other medical and lay evidence of record. If the examiner determines that there is a mental disorder that was present in service, the examiner is asked if that disorder is different from the one identified by Dr. A. Gill in March 2011 and in VA treatment records. If different diagnoses are present, the examiner should identify which symptoms are associated with each diagnosis and the level of impairment associated with each. (Continued on the next page)   5. After the above development, and any additionally indicated development, to include additional examinations as may be required for any intertwined issue, has been completed, readjudicate the issues on appeal, including the intertwined issues of entitlement to service connection for a cerebrovascular accident, left side weakness, tension headaches, and a TDIU. MICHAEL E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Uller The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.