Citation Nr: 21007244 Decision Date: 02/09/21 Archive Date: 02/09/21 DOCKET NO. 17-11 637 DATE: February 9, 2021 ORDER Entitlement to service connection for dyslipidemia is denied. REMANDED Entitlement to service connection for tinnitus is remanded. Entitlement to service connection for chronic bronchitis is remanded. Entitlement to service connected for generalized anxiety disorder also claimed as major depression is remanded. Entitlement to service connection for post-traumatic stress disorder is remanded. Entitlement to service connection for Alzheimer’s disease stage III-IV is remanded. Entitlement to service connection for hypertensive cardiovascular disease (hypertension) is remanded. Entitlement to service connection for diabetes mellitus is remanded. Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for asthma is remanded. Entitlement to service connection for glaucoma is remanded. Entitlement to service connection for bilateral upper extremity peripheral neuropathy is remanded. Entitlement to service connection for bilateral lower extremity peripheral neuropathy is remanded. Entitlement to service connection for a kidney disability 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 November 1954 to November 1956. This matter came before the Board of Veterans Appeals (Board) on appeal from a February 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A January 2018 Board decision remanded the issues on appeal for further development. A September 2017 rating decision granted entitlement to special monthly pension based on the need for aid and attendance and a June 2020 rating decision granted service connection for a bilateral hearing loss disability. As these decisions constitute a full grant of the benefits sought on appeal for those issues, they are not before the Board. 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 a July 2016 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 tinnitus 2. Entitlement to service connection for chronic bronchitis 3. Entitlement to service connection for Alzheimer’s disease stage III-IV The January 2018 Board remand asked that outstanding private treatment records be obtained, specifically indicating that the Veteran should be asked to provide a release for Dr. Mora Quesada, who provided the October 2014 and July 2016 private opinions, as well as any additional identified providers. The remand directives also asked that records be obtained from the Social Security Administration (SSA). The Board’s review indicates that the RO requested records from SSA, and that in June 2020 SSA responded that they were unable to provide records as they did not exist. The Board therefore finds that there has been substantial compliance with that remand directive. An April 2018 letter asked the Veteran to provide a release for private providers, including Dr. Mora Quesada. Another development letter was sent in June 2019, again asking the Veteran to complete a release for any private providers, but not specifically referencing Dr. Mora Quesada. The record indicates that the Veteran then returned a completed general authorization in July 2019 and also provided a specific release for a private gastroenterologist, and those records were requested in August 2019. However, the record is silent for any indication that any records were requested from Dr. Mora Quesada, as requested in the remand directives, or that any additional attempt was made to obtain additional information regarding the Veteran’s treatment by that provider. Given that the Veteran responded in a timely manner to the request for a general authorization, particularly as the June 2019 letter did not advise the Veteran that a specific release for Dr. Mora Quesada was still needed, the Board finds that the issues should be remanded in order to ensure compliance with the January 2018 remand directives. Stegall v. West, 11 Vet. App. 268 (1998). 4. Entitlement to service connected for generalized anxiety disorder also claimed as major depression 5. Entitlement to service connection for post-traumatic stress disorder (PTSD) The Veteran contends that he is entitled to service connection for his depression and anxiety disorder. The Board notes that October 2014 and July 2016 private opinions stated that he had diagnoses of generalized anxiety disorder and depressive disorder that were due to service. The Board finds that no rationales were provided for the nexus opinion and they are therefore inadequate for review. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board also notes that the opinions are silent regarding which records were reviewed and whether in-person examinations were conducted. Both opinions are also silent for any indication that the diagnoses were made in accordance with DSM-V as required by 38 C.F.R. § 4.125. A December 2015 VA psychiatric examination found that the Veteran did not have a current mental disorder. The examiner noted that the Veteran denied any personal psychiatric history and had never been in psychiatric treatment. In a December 2015 opinion, the examiner addressed the October 2014 private Medical Data Review and its psychiatric diagnoses, stating that the provider was an internal medical specialist and was therefore not qualified to diagnose or treat mental disorders. The provider noted that the Veteran did not have symptoms of any of the mental disorders mentioned in the private opinion and found that the Veteran did not have symptoms of a mental disorder that would meet DSM-V. The Board’s review indicates that since the December 2015 VA examination, the Veteran has been prescribed psychiatric medication to treat symptoms of depression. June 2017 VA treatment records show that the Veteran had a positive depression screening and the provider prescribed medication for depression. As the record shows that the Veteran may now have a current psychiatric disability, a new VA examination is required to determine if the Veteran now has an acquired psychiatric diagnosis that is related to service. While the October 2014 and October 2016 opinion are inadequate for review, the nevertheless constitute an indication that any current psychiatric disability may be related to service. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). In so finding, 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. 6. Entitlement to service connection for hypertensive cardiovascular disease (hypertension) 7. Entitlement to service connection for diabetes mellitus 8. Entitlement to service connection for diverticulitis 9. Entitlement to service connection for asthma 10. Entitlement to service connection for glaucoma The Veteran contends that he is entitled to service connection for hypertension, diabetes mellitus, diverticulitis, asthma and glaucoma. While the Veteran’s hypertension, diabetes and glaucoma were diagnosed in January 2016 VA examinations, the examiners did not provide an etiological opinion. A February 2016 VA respiratory examination then diagnosed asthma, but again did not include an etiological opinion. January 2016 private treatment records show a diagnosis of diverticulosis of the colon, but the Veteran has not been provided a VA examination regarding that disability. October 2014 and July 2016 private opinions stated that the Veteran had diagnoses of hypertension, diabetes, diverticulitis, asthma and glaucoma and that they were due to service. The Board finds that no rationale was provided for the nexus opinions and they are therefore inadequate for review. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). However, as discussed above the opinions nevertheless constitute an indication that the Veteran’s diagnosed hypertension, diabetes mellitus, diverticulitis, asthma and glaucoma may be related to service and remand for VA examinations and etiological opinions is therefore required. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 11. Entitlement to service connection for bilateral upper extremity peripheral neuropathy 12. Entitlement to service connection for bilateral lower extremity peripheral neuropathy A January 2016 VA examination found that the Veteran did not have diabetic peripheral neuropathy in the upper or lower extremities. However, October 2017 VA treatment records listed diabetic neuropathy among the Veteran’s current diagnoses, stating that it was “controlled,” but not indicating which extremities were affected. As the record indicates that the Veteran may now have a diagnosis of peripheral neuropathy, a new VA examination is required to determine its nature and etiology. The Board notes that the Veteran submitted October 2014 and July 2016 private opinions stating that his peripheral neuropathy was due to service. The Board finds that no rationale was provided for the nexus opinion and it is therefore inadequate for review. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Again, while the opinions are inadequate, they nevertheless constitute an indication that any current disability of peripheral neuropathy may be related to service and remand for an etiological opinion is therefore required. 13. Entitlement to service connection for a kidney disability The Veteran has not yet been afforded a VA examination in connection with this issue and the Board finds that the record is unclear regarding whether the Veteran has a current kidney disability. June 2002 VA treatment records noted a history of nephrolithiasis and August 2013 VA treatment records contain an echogram of the abdomen, including the kidneys, and noted right renal cysts but stated that there were no renal calculi or hydronephrosis. Subsequent VA treatment records are silent for diagnosis or treatment for a kidney disease. October 2014 and July 2016 private opinions stated that the Veteran had a diagnosis of nephrolithiasis and that it was due to service. However, while the opinions are titled “Medical Data Review,” they are silent regarding what records were reviewed and whether an in-person examination was conducted, and the basis of the diagnosis is therefore unclear. In addition, no rationale was provided for the nexus opinions and thus they are inadequate for review. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board therefore finds that remand for a VA examination is required. The record indicates that the Veteran has a history of nephrolithiasis and renal cysts, and the private opinions, while inadequate for review, nevertheless constitute an indication that any current kidney disability of peripheral neuropathy may be related to service. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 14. Entitlement to a total disability rating due to unemployability (TDIU) 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. Make two requests for the authorized records from Dr. Mora Quesada, unless it is clear after the first request that a second request would be futile. 2. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current acquired psychiatric disability, to include anxiety and depression. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current acquired psychiatric 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. 3. Schedule the Veteran for an appropriate VA examination, to determine the etiology of his hypertension, diabetes mellitus, diverticulitis, asthma and glaucoma. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current hypertension, diabetes mellitus, diverticulitis, asthma or glaucoma 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. Schedule the Veteran for an appropriate VA examination, to determine the etiology of any current bilateral upper or lower extremity peripheral neuropathy. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current upper or lower extremity peripheral neuropathy 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. Schedule the Veteran for an appropriate VA examination, to determine the nature and etiology of any current kidney disability. The examiner should review the file and provide a complete rationale for all opinions expressed. For any current kidney 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. 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 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.