Citation Nr: 21000733 Decision Date: 01/06/21 Archive Date: 01/06/21 DOCKET NO. 17-66 111 DATE: January 6, 2021 ORDER Entitlement to service connection for dyslipidemia is denied. REMANDED Entitlement to service connection for a bilateral hearing loss disability is remanded. Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for chronic cervical spine strain is remanded. Entitlement to service connection for chronic low back pain is remanded. Entitlement to service connection for degenerative joint disease, left shoulder is remanded. Entitlement to service connection for degenerative joint disease, right shoulder is remanded. Entitlement to service connection for degenerative joint disease, left elbow is remanded. Entitlement to service connection for degenerative joint disease, right elbow is remanded. Entitlement to service connection for degenerative joint disease, left wrist is remanded. Entitlement to service connection for degenerative joint disease, right wrist is remanded. Entitlement to service connection for degenerative joint disease, left hip is remanded. Entitlement to service connection for degenerative joint disease, right hip is remanded. Entitlement to service connection for degenerative joint disease, right knee is remanded. Entitlement to service connection for degenerative joint disease, left knee is remanded. Entitlement to service connection for degenerative joint disease, right ankle is remanded. Entitlement to service connection for degenerative joint disease, left ankle is remanded. Entitlement to service connection for degenerative joint disease right foot is remanded. Entitlement to service connection for degenerative joint disease left foot is remanded. Entitlement to service connection for allergic rhinitis is remanded. Entitlement to service connection for peptic ulcer is remanded. Entitlement to service connection for colon diverticulosis is remanded. Entitlement to service connection for hiatal hernia is remanded. Entitlement to service connection for erectile dysfunction is remanded. Entitlement to service connection for benign prostate hyperplasia is remanded. Entitlement to service connection for memory disorder is remanded. Entitlement to service connection for generalized anxiety disorder is remanded. Entitlement to service connection for major depression is remanded. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. FINDING OF FACT Dyslipidemia is not a disease or disability under VA law and regulations but instead is in the nature of a laboratory finding. CONCLUSION OF LAW The criteria for service connection for dyslipidemia are not met. 38 U.S.C. §§ 1110, 5103A, 5107 (2012); 38 C.F.R. §§ 3.159, 3.303, 4.1 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1963 to August 1965. This matter came before the Board of Veterans Appeals (Board) on appeal from a September 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). An October 2018 Board decision remanded the issues on appeal for further development. 1. Entitlement to service connection for dyslipidemia The Veteran contends that he is entitled to service connection for dyslipidemia. The Board concludes that service connection may not be granted, as dyslipidemia is not in itself a disability for VA purposes. The Board acknowledges that an April 2017 private opinion records shows a diagnosis of dyslipidemia. However, dyslipidemia is a laboratory result and not an actual 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. They are, therefore, not appropriate entities for the rating schedule). 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). A symptom, without a diagnosed or identifiable underlying malady or condition or associated functional impairment, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Thus, in this case, while dyslipidemia may be a risk factor for disability, it is not itself a disability for VA purposes. Accordingly, there is no basis for awarding service connection for dyslipidemia, and the appeal in this regard is denied. REASONS FOR REMAND 1. Entitlement to service connection for a bilateral hearing loss disability is remanded. 2. Entitlement to service connection for tinnitus is remanded. The October 2018 Board decision found that the September 2017 VA audiological examination was inadequate and requested a new examination, specifically noting that the September 2017 opinion had an inadequate rationale as it found that hearing loss might be associated with post-service occupational noise but was silent regarding the nature of those post-service exposures. The remand directives also asked that the Veteran’s outstanding VA treatment records, including a March 2001 VA audiological examination, be obtained. The Board’s review indicates that the requested outstanding VA treatment records, including the March 2001 VA audiological records, were obtained in March 2020. A November 2019 VA audiological examination found that the Veteran’s bilateral hearing loss and tinnitus were not due to service. As a rationale, the examiner stated that the Veteran’s separation examination was normal so there was no hearing loss measured in service, and the Veteran’s hearing loss was likely due to post-service occupational noise or aging. The Board notes that, as in the September 2017 examination, the November 2019 examination report is silent for any discussion of the nature of the post-service occupational noise exposure. The opinion therefore lacks a clear basis and is inadequate. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also finds that the opinion is inadequate as it is essentially based on the absence of a disability in service. See Hensley v. Brown, 5 Vet. App. 155, 159 (1993). Remand for a new examination is therefore required. The October 2018 Board decision also asked that outstanding private treatment records be obtained. A November 2019 letter asked the Veteran to complete an authorization for private treatment records, but the record is silent for any response from the Veteran. However, as the issues are already being remanded, the Board finds that the Veteran should be given an additional opportunity to provide the required releases. 3. Entitlement to service connection for chronic cervical spine strain is remanded. 4. Entitlement to service connection for chronic low back pain is remanded. 5. Entitlement to service connection for degenerative joint disease, left shoulder is remanded. 6. Entitlement to service connection for degenerative joint disease, right shoulder is remanded. 7. Entitlement to service connection for degenerative joint disease, left elbow is remanded. 8. Entitlement to service connection for degenerative joint disease, right elbow is remanded. 9. Entitlement to service connection for degenerative joint disease, left wrist is remanded. 10. Entitlement to service connection for degenerative joint disease, right wrist is remanded. 11. Entitlement to service connection for degenerative joint disease, left hip is remanded. 12. Entitlement to service connection for degenerative joint disease, right hip is remanded. 13. Entitlement to service connection for degenerative joint disease, right knee is remanded. 14. Entitlement to service connection for degenerative joint disease, left knee is remanded. 15. Entitlement to service connection for degenerative joint disease, right ankle is remanded. 16. Entitlement to service connection for degenerative joint disease, left ankle is remanded. 17. Entitlement to service connection for degenerative joint disease right foot is remanded. 18. Entitlement to service connection for degenerative joint disease left foot is remanded. 19. Entitlement to service connection for allergic rhinitis is remanded. 20. Entitlement to service connection for peptic ulcer is remanded. 21. Entitlement to service connection for colon diverticulosis is remanded. 22. Entitlement to service connection for hiatal hernia is remanded. 23. Entitlement to service connection for erectile dysfunction is remanded. 24. Entitlement to service connection for benign prostate hyperplasia is remanded. 25. Entitlement to service connection for memory disorder is remanded. 26. Entitlement to service connection for generalized anxiety disorder is remanded. 27. Entitlement to service connection for major depression is remanded. The Veteran has not yet been afforded a VA examination in connection with these issues. VA has a duty to provide an examination or obtain a medical opinion on an issue of service connection when the record, 1) contains competent evidence that the claimant has a current disability or signs and symptoms of a current disability, 2) indicates that the disability or signs and symptoms of a disability may be associated with active service, and 3) the record does not contain sufficient information to make a decision on the issue. 38 U.S.C. § 5103A(d) (West 2014); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In this case, the Veteran submitted an April 2017 private opinion which stated that the Veteran had diagnoses of the above listed disabilities and that those disabilities were likely due to service. The nexus opinion was already found inadequate in the October 2018 Board decision as the provider did not provide a rationale for the opinion. However, the Board notes that the threshold for determining whether the evidence “indicates” that there “may” be a nexus between a current disability and an in-service event is a low one. McLendon, 20 Vet. App. at 83. The types of evidence that indicate that a current disability may be associated with military service include, but are not limited to, medical evidence that suggests a nexus but is too equivocal or lacking in specificity to support a decision on the merits, or credible evidence of continuity of symptomatology such as pain or other symptoms capable of lay observation. Id. at 83. Here, the private opinion meets this low threshold and remand is therefore required to provide VA examinations. 28. Entitlement to a total disability rating due to unemployability (TDIU) is remanded. The issue of entitlement to TDIU must also be remanded as it is inextricably intertwined with the remanded issues of service connection. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when the adjudication of one issue could have “significant impact” on the other issue). The matters are REMANDED for the following action: 1. Ask the Veteran to complete a VA Form 21-4142 for Dr. Carlos Mora Quesada, and any other private providers who treat his claimed disabilities. Make two requests for the authorized records from all identified providers, unless it is clear after the first request that a second request would be futile. 2. After the development in (1), schedule the Veteran for an appropriate VA examination, from a different provider than the one who provided the November 2019 examination, to determine the etiology of his bilateral hearing loss and tinnitus disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. The examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral hearing loss and tinnitus are related to the Veteran’s active service. The examiner should specify the nature of any noise exposures found, including any post-service occupational or recreational exposures. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 3. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current cervical spine, lumbar spine, or bilateral shoulder, elbow, wrist, hip, knee, ankle and foot disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current cervical spine, lumbar spine, or bilateral shoulder, elbow, wrist, hip, knee, ankle and foot disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 4. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current allergic rhinitis, peptic ulcer, diverticulosis, hiatal hernia, erectile dysfunction, and benign prostate hyperplasia disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current allergic rhinitis, peptic ulcer, diverticulosis, hiatal hernia, erectile dysfunction, and benign prostate hyperplasia disability found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 5. After the development in (1), schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current memory disorder, generalized anxiety disorder or major depression disabilities. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current memory disorder, generalized anxiety disorder or major depression found to be diagnosed, the examiner should provide an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disability is related to the Veteran’s active service. In providing the opinion, the examiner should consider and discuss any lay statements of record, to include the Veteran’s statements regarding the onset and persistence of his symptoms. 6. If upon completion of the above action the appeal remains denied, the case should be returned to the Board after compliance with appellate procedures. E. I. VELEZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Arnold, Associate Counsel 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.