Citation Nr: 21008478 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 10-31 520 DATE: February 17, 2021 ORDER Service connection for hypertriglyceridemia is denied. Service connection for recurrent periodontitis for compensation purposes is denied. REMANDED Entitlement to service connection for a heart disability is remanded. Entitlement to service connection for laryngeal disorder is remanded. Entitlement to service connection for a skin disability (other than the already service-connected seborrheic dermatitis, benign lentigo, pseudofolliculitis and erysipelas) is remanded. Entitlement to service connection for gout is remanded. Entitlement to a compensable rating for service-connected LeFort I osteotomy residuals and bilateral mandibular osteotomy residuals is remanded. Entitlement to a compensable rating for service-connected LeFort I maxillary osteotomy residuals, is remanded. Entitlement to a compensable rating for kidney stones is remanded. Entitlement to a rating in excess of 10 percent for service-connected right knee disability is remanded. Entitlement to a rating in excess of 10 percent for service-connected left knee disability is remanded. Entitlement to a rating in excess of 50 percent for service-connected generalized anxiety disorder and posttraumatic stress disorder (PTSD) is remanded. Entitlement to a compensable rating for service-connected left testicular and epidydimal cysts and bilateral hydroceles is remanded. FINDINGS OF FACT 1. Hypertriglyceridemia is a laboratory finding and not considered a disability for Department of Veterans Affairs (VA) purposes. 2. The Veteran’s periodontitis is not considered a disability for VA compensation purposes. CONCLUSIONS OF LAW 1. The criteria for a grant of service connection for hypertriglyceridemia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 2. The criteria for a grant of service connection for recurrent periodontitis have not been met. 38 U.S.C. §§ 1110, 1131, 1712, 5107; 38 C.F.R. §§ 3.303, 3.381, 4.150, 17.161. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from May 1981 to September 2005. This matter is before the Board of Veterans’ Appeals (Board) originally on appeal from an October 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi. In September 2014, the Board, in pertinent part, remanded the current appellate claims for further development. There has been at least substantial compliance with respect to the heart disability, laryngeal disorder, skin disability, hypertriglyceridemia, periodontitis, psychiatric disorder, and hydrocele claims. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). Despite the foregoing, the Board notes that evidence has been added to the record since the Veteran's appeal was last formally adjudicated by the agency of original jurisdiction (AOJ). In October 2020 the Board sent correspondence to the Veteran notifying him of this development, and inquired whether he desired to waiver initial consideration of this evidence by the agency of original jurisdiction (AOJ). The correspondence also stated that if he did not respond within 45 days it would be assumed he did not desire the Board to decide his appeal at this time, and his appeal would be remanded to the AOJ for review. No response has been received from the Veteran regarding this correspondence. However, as detailed below neither the Veteran’s hypertriglyceridemia and periodontitis are conditions for which service connection may be established. The additional evidence does not contain any new information that bears meaningfully on the outcome of these claims. As such, there is no need to return the case to the AOJ for consideration of the evidence with regard to these claims. See 38 C.F.R. §§ 19.31, 20.1304(c). The Board notes that multiple other claims were also included as part of the September 2014 remand. However, service connection was either established for these disabilities by rating decisions in May 2020 and September 2020, or otherwise have not been transferred back to the Board (e.g., high glucose and obesity). Accordingly, the Board will not be addressing these claims at this time. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997). In an August 2020 statement, the Veteran contended, in essence, that the 2019 VA examinations accorded for his gout, LeFort I osteotomy residuals of the maxilla and mandible, kidney stones, and knee claims were inadequate. However, no deficiency was identified regarding the development conducted for the hypertriglyceridemia claim. Absent specific assertions to the contrary, the Board finds that the duty to assist has been satisfied. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). In addition, for the reasons detailed below, the contended deficiency does not affect the adjudication of the periodontitis claim. Service Connection Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Generally, in order to prove service connection, there must be competent, credible evidence of (1) a current disability, (2) in-service incurrence or aggravation of an injury or disease, and (3) a nexus, or link, between the current disability and the in-service disease or injury. See, e.g., Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Pond v. West, 12 Vet. App. 341 (1999). In adjudicating the Veteran’s claim, the Board observes that nothing of record shows that he has the requisite knowledge, skill, experience, training, or education to render medical opinions. Consequently, his contentions cannot constitute competent medical evidence. 38 C.F.R. § 3.159(a)(1). However, in making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and recurrence of observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the 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. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When considering whether lay evidence is competent, the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt shall be given to the claimant. 38 U.S.C. § 5107(b). When a reasonable doubt arises regarding service origin, such doubt will be resolved in the favor of the claimant. Reasonable doubt is doubt which exists because of an approximate balance of positive and negative evidence which does not satisfactorily prove or disprove the claim. 38 C.F.R. § 3.102. The question is whether the evidence supports the claim or is in relative equipoise, with the claimant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which event the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). 1. Entitlement to service connection for hypertriglyceridemia Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, and so on." Dorland's Illustrated Medical Dictionary 891 (32nd ed. 2012). VA has concluded that hypertriglyceridemia is a laboratory finding and is not a disability in and of itself for which VA compensation benefits are payable. 61 Fed. Reg. 20440, 20445 (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). Here, there is no suggestion that the Veteran's high triglyceride results in any functional impairment. Although other claims are being remanded, as outlined below, there is "no reasonable possibility" that additional development would "aid in substantiating" the Veteran's claim for service connection for hypertriglyceridemia because, as noted, the condition is not a disability for which VA compensation may be paid. See 38 U.S.C. § 5103A(a)(2); see generally Jones v. Wilkie, 918 F.3d 922, 926-27 (Fed. Cir. 2019) (discussing 38 U.S.C. § 5103A (a)(2)). For these reasons, the preponderance of the evidence is against the claim for service connection for hypertriglyceridemia, and it must be denied. In making the above determination, the Board acknowledges the Veteran has contended that his hypertriglyceridemia, high glucose, and obesity were early manifestations of his current type II diabetes mellitus. However, service connection was established for diabetes via a September 2020 rating decision. As such, the Board finds no prejudice to the Veteran in denying the present claim of service connection explicitly for hypertriglyceridemia. 2. Entitlement to service connection for recurrent periodontitis for compensation purposes As detailed in his August 2020 statement, the Veteran has contended that the 2019 VA dental examination did not adequately evaluate his periodontitis claim. The Board notes, however, that service connection for compensation purposes is not warranted for such disability even if competent medical evidence documents such a current condition was etiologically related to service. Service connection may be awarded for missing teeth due to dental trauma or bone loss in service. The law and regulations also provide that treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are considered non-disabling conditions and may be considered service-connected solely for the purpose of determining entitlement to VA dental examination or outpatient dental treatment. See 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 17.161; see also Woodson v. Brown, 8 Vet. App. 352, 354 (1995). Further, service connection for compensation purposes is only warranted for certain dental conditions. Specifically, dental disabilities that may be awarded compensable disability ratings are set forth under 38 C.F.R. § 4.150. These disabilities include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916. The Board acknowledges that a claim for service connection for a dental condition is also considered a claim for VA outpatient dental treatment. Mays v. Brown, 5 Vet. App. 302, 306 (1993). In dental claims, the RO adjudicates the claim of service connection and the VA Medical Center adjudicates the claim for outpatient treatment. As this matter stems from an adverse RO determination, the appeal is limited to the issue of entitlement to service connection for periodontitis for compensation purposes. For all these reasons, service connection for periodontitis for compensation purposes must be denied. REASONS FOR REMAND 1. Entitlement to service connection for a heart disability is remanded. 2. Entitlement to service connection for laryngeal disorder is remanded. 3. Entitlement to service connection for a skin disability (other than the already service-connected seborrheic dermatitis, benign lentigo, pseudofolliculitis and erysipelas) is remanded. As detailed above, these claims must be remanded for consideration of evidence added to the record since the time they were last adjudicated by the AOJ. 4. Entitlement to service connection for gout is remanded. The Veteran contended in his August 2020 statement that the 2019 VA examination for his gout was inadequate. He stated that the examiner only took X-rays of his feet and never asked any questions regarding his gout. He also reported that he had never received an adequate examination for his gout, and indicated that his use of medication may have made it difficult to diagnose. Further, he reported in-service treatment for his feet and that his treating clinician had asked him if he ever had gout, but that this was incident was not noted in his service treatment records. The Board also notes that the 2019 VA examination included opinions that the Veteran’s gout had not been aggravated by his service-connected disabilities. Under applicable law, disability which is proximately due to or the result of a service-connected disease or injury shall also be service connected. 38 C.F.R. § 3.310(a). Establishing service connection on a secondary basis requires evidence sufficient to show: (1) that a current disability exists; and (2) that the current disability was either (a) caused or (b) aggravated by a service-connected disability. 38 C.F.R. § 3.310; Allen v. Brown, 7 Vet. App. 439 (1995). The Court recently clarified the circumstances in which service connection is warranted based on secondary aggravation. See Ward v. Wilkie, 31 Vet. App. 233 (2019). In pertinent part, the Court held that aggravation pursuant to 38 C.F.R. § 3.310 does not require a permanent worsening of the condition. Rather, the Court explained that "aggravation" is any incremental increase in disability attributable to the service-connected disability, i.e., any additional impairment of earning capacity that is above the degree of disability existing before the increase, regardless of its permanence. Here, the Board notes that the pertinent VA examination reports included a definition of secondary aggravation consistent with the holding in Ward, supra. However, it is not clear from the examiner’s stated rationale whether the opinion is consistent with this definition, particularly in light of the fact the Veteran reported in his August 2020 statement that he experienced incapacitating episodes of his gout. In light of the foregoing, the Board finds that a remand is required to accord the Veteran a new examination to address the nature and etiology of his gout. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) 5. Entitlement to a compensable rating for service-connected LeFort I osteotomy residuals and bilateral mandibular osteotomy residuals is remanded. 6. Entitlement to a compensable rating for service-connected LeFort I maxillary osteotomy residuals, is remanded. 7. Entitlement to a compensable rating for kidney stones is remanded. 8. Entitlement to a rating in excess of 10 percent for service-connected right knee disability is remanded. 9. Entitlement to a rating in excess of 10 percent for service-connected left knee disability is remanded. 10. Entitlement to a rating in excess of 50 percent for service-connected generalized anxiety disorder and PTSD is remanded. 11. Entitlement to a compensable rating for service-connected left testicular and epidydimal cysts and bilateral hydroceles is remanded. In his August 2020 statement, the Veteran contended that his most recent VA examinations in 2019 did not adequately evaluate the current severity of his service-connected LeFort I osteotomy residuals of the maxilla and mandible, kidney stones, and knee disabilities. For example, he reported the examiner did not perform any examination of the malunion of his teeth, and did not adequately address his overbite. He also reported the examiner did not ask any question or perform any examination regarding voiding dysfunction although it was found he had no dysfunction. He maintains he does have such problems, and provided details thereof. In addition, he reported that the examiner did not perform any flexion measurements of his knees. The Board acknowledges that the 2019 VA examinations do include findings that are inconsistent with the Veteran’s contentions. In pertinent part, the examination of his knees do include findings regarding the extent of flexion for both knees. Nevertheless, in light of his contentions the Board finds that new examinations are necessary to clarify whether the evidence of record does adequately reflect the current nature and severity of these service-connected disabilities. See Colvin, supra. Moreover, the Board notes there is evidence of voiding dysfunction in the record, to include obstructed voiding, but it is not clear whether such impairment is due to his service-connected kidney stones. This further supports the need for new examinations in this case. The Board also finds that new examinations should be conducted to evaluated the Veteran’s service-connected generalized anxiety disorder and PTSD, as well as the bilateral hydroceles. The matters are REMANDED for the following action: 1. Ask the Veteran to identify, and provide appropriate releases for, any care providers who may possess new or additional evidence pertinent to the issues remaining on appeal. If he provides the necessary release(s), assist him in obtaining the records identified, following the procedures set forth in 38 C.F.R. § 3.159. Any new or additional (i.e., non-duplicative) evidence received should be associated with the record. If any of the records sought are not available, the record should be annotated to reflect that fact and the Veteran and his representative should be notified. 2. Obtain copies of records pertaining to any VA treatment the Veteran has received since the time that such records were last procured, following the procedures set forth in 38 C.F.R. § 3.159. The evidence obtained, if any, should be associated with the record. 3. After the foregoing development has been completed to the extent possible, arrange to have the Veteran scheduled for a VA examination for his gout. After examining the Veteran and reviewing the record, together with the results of any testing deemed necessary, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., whether it is 50 percent or more probable) that it was incurred in or otherwise the result of active service to include his account of foot trouble therein. If the examiner determines the Veteran’s gout is not directly related to active service, then he or she should provide an opinion as to whether it is at least as likely as not that the gout has been (a) caused or (b) aggravated by his service-connected disabilities. This opinion should reflect consideration of the Court’s holding in Ward v. Wilkie regarding secondary aggravation, as well as the Veteran’s account of recurrent incapacitating episodes for his gout. A complete medical rationale for all opinions expressed must be provided. 4. The Veteran should also be scheduled or an examination of his service-connected LeFort I osteotomy residuals of the maxilla and mandible. In pertinent part, the examiner should comment upon the significance of the malunion of his teeth, as well as his reported overbite. 5. The Veteran should be scheduled for an examination of his service-connected kidney stones. In pertinent part, the examiner should express an opinion as to whether his current voiding dysfunction is attributable to this service-connected disability, and, if so, detail the extent of such impairment. 6. The Veteran should be scheduled for an examination of his service-connected knee disabilities. The examiner should provide a full description of the Veteran's associated functional impairments as they relate to the relevant rating criteria. The examination must include testing for pain on both active and passive motion, in weight bearing and non-weight bearing. If it is not feasible to perform such testing, the examiner should explain why. The examiner must attempt to elicit information regarding functional loss due to flare-ups, if reported, and repeated use over time. If the Veteran suffers from such loss, the examiner should express the loss in terms of degrees of additional loss in range of motion (i.e., in addition to that observed clinically), if feasible, taking into account all of the evidence, including the Veteran's competent statements with respect to the frequency, duration, characteristics, and severity of her limitations. Governing law requires that if the Veteran is not exhibiting functional loss due to flare-ups and/or repeated use over time, examiners will nevertheless offer opinions with respect to functional loss based on estimates derived from information procured from relevant sources, including lay statements of the Veteran. An examiner must do all that reasonably should be done to become informed before concluding that an opinion cannot be provided without resorting to speculation. That said, if it is the examiner's conclusion that he or she cannot feasibly provide the requested opinion(s), even considering all of the available evidence, it must be so stated, and the examiner must provide the reasons why offering such opinion(s) is not feasible. 7. The Veteran should also be scheduled for examinations to evaluate the current severity of his service-connected generalized anxiety disorder and PTSD, as well as the left testicular and epidydimal cysts and bilateral hydroceles. 8. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. J. Smith Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.