Citation Nr: 21010219 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 15-36 572 DATE: February 24, 2021 ORDER Entitlement to service connection for a disability manifested by high cholesterol is denied. A 70 percent rating, but no higher, for the service-connected major depressive disorder with psychotic features and associated alcohol abuse is granted for the entirety of the appeal period. REMANDED The issue of entitlement to service connection for hypertension, to include as secondary to service-connected disabilities, is remanded. FINDINGS OF FACT 1. High cholesterol is a laboratory finding and not a chronic disability for VA compensation purposes; medical evidence of record does not establish a current disability manifested by high cholesterol. 2. Throughout the entirety of the appeal period, the Veteran’s service-connected major depressive disorder with psychotic features and associated alcohol abuse has more nearly approximated occupation and social impairment with deficiencies in most areas; total social and occupational impairment has not been shown at any time during the appeal period. CONCLUSIONS OF LAW 1. The criteria for service connection for a disability manifested by high cholesterol have not been met. 38 U.S.C. § 1110; 38 C.F.R. §§ 3.102, 3.303. 2. A 70 percent rating for the service-connected major depressive disorder with psychotic features and associated alcohol abuse have been met for the entirety of the appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9434. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 1992 to February 2002. At a June 2019 hearing, the Veteran testified before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the file. In October 2020, the Board of Veterans’ Appeals (Board) remanded this appeal for further evidentiary development. In November 2020, during the pendency of the appeal, the Agency of Original Jurisdiction (AOJ) granted service connection for a left knee disability. The three issues remaining on appeal have been returned to the Board for further appellate review. Service connection for a disability manifested by high cholesterol The Veteran seeks service connection for a disability manifested by high cholesterol. Service connection is warranted where evidence shows that an injury or disease that results in a current disability was incurred during service or was aggravated by service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). To be entitled to service connection, the evidence must support (1) a current disability; (2) an in service injury or event; and (3) a nexus between the current disability and the in service injury or event. 38 C.F.R. § 3.303(a). The evidence of the record shows that the Veteran is being treated for hyperlipidemia, or high cholesterol. This condition is classified as a laboratory finding rather than a disability for VA compensation purposes. See 61 Fed. Reg. 20,440-20,445 (May 7, 1996) (diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results rather than disabilities and are therefore not appropriate entities for the rating schedule to address). Significantly, the evidence does not show that the Veteran has a clinical diagnosis of a disability manifested by high cholesterol. As previously stated, high cholesterol in itself is not considered a disability entitled to VA compensation. Thus, the Veteran does not have a current disability. Service connection requires a showing of a current disability. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the claim, the doctrine is not applicable. Entitlement to a rating in excess of 50 percent prior to January 22, 2010, and in excess of 70 percent from January 22, 2010, for the service-connected major depressive disorder with psychotic features and associated alcohol abuse The Veteran is seeks a higher rating for his psychiatric disorder, which is evaluated under Diagnostic Code 9434, in accordance with the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130. A 70 percent evaluation is warranted when there is occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a work like setting); and the inability to establish and maintain effective relationships. Id. A 100 percent evaluation is warranted if there is total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. The United States Court of Appeals for the Federal Circuit has acknowledged the "symptom-driven nature" of the General Rating Formula and that "a veteran may only qualify for a given disability rating under § 4.130 by demonstrating the particular symptoms associated with that percentage, or others of similar severity, frequency, and duration." Vazquez-Claudio v. Shinseki, 713 F.3d 112, 116 (Fed. Cir. 2013). The Federal Circuit has explained that "symptomatology should be the fact-finder's primary focus when deciding entitlement to a given disability rating." Id. at 117. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet. App. 436, 442-3 (2002). On the other hand, if the evidence shows that a veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Id. at 443. Turning now to the relevant evidence of the record, on an August 2008 Mental Health Consultation Note, the Veteran complained of depression due to his HIV diagnosis. He reported not coping well with the diagnosis. The Veteran stated that he had not been able to work since June 2008 because he felt stressed and depressed. He reported sleeping difficulties and decreased interest. He endorsed guilt regarding his diagnosis, low energy, and decreased concentration. The Veteran denied suicidal ideations. The Veteran expressed that he is happy “off and on” but usually his mood is depressed. He was happy spending time with family. See September 2008 VA Medical Treatment Record. At the February 2009 VA Examination, it was noted that the Veteran experienced symptoms of anxiety and depression daily. The Veteran also had insomnia. He had decreased energy and limited interactions with others socially. Mental status examination was noted as follows: general appearance was clean, neatly groomed, appropriately and casually dressed; psychomotor activity and speech was unremarkable; attitude was cooperative and guarded; affect was constricted; mood was anxious and depressed; attention was intact; he was oriented to person, time, and place; thought process and content was unremarkable; no delusions or hallucinations were noted; the Veteran understood the outcome of his behavior; intelligence was average; the Veteran understood that he had a problem (insight); the Veteran denied homicidal and suicidal thoughts; impulse control was noted as good and there were no periods of violence. The Veteran’s memory was normal, and he was capable of managing his own financial affairs. The Veteran did experience reduced reliability and productivity due to his mental disorder. In a September 2009 Psychology Note, the Veteran described a low mood and sleeping difficulties. His affect was somber throughout the session. He discussed the stressor regarding his recent job loss at the session. He reported experiencing depressive and anxiety symptoms related to the loss, in addition to poor sleep, anhedonia, worry, helplessness, and hopelessness but denied any current or past homicidal or suicidal ideations. The clinician noted that the Veteran appeared to suppress aspects of how he has contributed to his situation. See January 2010 VAMC Other Output/ Reports. In a December 2009 Psychology Note, the Veteran reported a lower mood and feeling stressed out. He was noted to be somber throughout the session. Recent behavior was noted be isolative. The Veteran no longer engaged in a daily exercise regimen. He discussed feelings of embarrassment from an article noting his HIV status. The clinician noted that although the Veteran was able to discuss distress, he generally suppressed the reality of his situation and displayed heightened resentment and despondency. See January 2010 VAMC Other Output/ Reports. February 2010 buddy statements contain reports regarding the Veteran’s worsening psychiatric condition. His family and friends expressed that he was always depressed and withdrawn and that he did not care about his appearance as much. At the March 2010 VA Examination, it was noted that the Veteran’s mood was expansive and depressed. Regarding his attention, the Veteran reported becoming easily frustrated by his short attention span. The Veteran has a difficult time staying focused on tasks, such as reading. The Veteran had depressive thought content, consumed with negative and hopeless aspects of situations. The Veteran had passing suicidal ideation, every once and a while. The Veteran reported not having the energy to do anything impulsively or act out aggressively. It was noted that the Veteran was able to maintain minimum personal hygiene. The Veteran reported having a lack of motivation to exercise, which was related to his depression. The Veteran expressed that while home alone, he sometimes heard voices. Recent and immediate memory were mildly impaired. The Veteran was able to manage his own financial affairs. It was noted that as his depression and concentration worsened, his wife took over more of the responsibilities. The Veteran’s depressive symptoms appeared severe and were causing significant impairment in his social and occupational functioning. In a May 2010 Mental Health Initial Evaluation Note, the Veteran reported sleeping difficulties, such as falling and staying asleep. He did not feel rested after awakening. The Veteran reported that he was no longer interested in activities he normally enjoyed. He reported a depressed mood for a duration of several months. He experienced loss of energy and felt fatigued throughout the day. He endorsed concentration difficulties and an “up and down” appetite but denied any suicidal ideation. He lived quite an isolative and reclusive life. See July 2010 VAMC Other Output/ Reports. At the October 2010 VA Examination, the Veteran continued to endorse continuous depression, insomnia, fatigue, loss of energy, feelings of worthlessness, and concentration impairment. He spent his time at home because he did not have the desire to do anything. He endorsed paranoia while out in the public. The Veteran was completely withdrawn from family and social life. The Veteran reported transient visual and auditory hallucinations and illusions. They were not persistent. It was noted that that those experiences did not appear to be consistent with a psychotic disorder and it was not clear if they occur only in the context of alcohol use or depressed disorder. Notable observations in the mental status examination was that the Veteran’s affect was guarded, and mood depressed. The Veteran reported sleeping difficulties, which included experiencing nightmares. The Veteran endorsed chronic passive suicidal ideation. He denied any current intent or plan. At the moment, the Veteran’s wife managed his own financial affairs, but the examiner remarked that there was no evidence that the Veteran was not able to manage his own financial affairs. Buddy statements submitted in June 2012 discuss the Veteran’s feelings of hurting himself and “talking about ending his life.” At the September 2012 VA Examination, the Veteran experienced social and occupational impairment with deficiencies in most areas. The psychiatric symptoms included suspiciousness, near-continuous panic or depression, chronic sleep impairment, mild memory loss, flattened affect, disturbances of motivation and mood, difficulty in establishing and maintaining effective work and social relationships, inability to establish and maintain effective relationships, and suicidal ideation. The Veteran also experienced social isolation as well as visual and auditory hallucinations, which the examiner felt was due to daily use of alcohol. In December 2012, the Veteran reported continuing to feel little motivation to engage in social activities. See November 2013 VAMC Other Output/ Reports. At the August 2015 VA Examination, the Veteran experienced occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupation tasks. The Veteran’s psychiatric symptoms included depressed mood, chronic sleep impairment, disturbances of motivation and mood, and difficulty in establishing and maintaining effective work and social relationships. During the behavioral observations, it was noted that the Veteran had to be redirected at times as he was hyper focused on what treatment and benefits he has not received. The Veteran reported not socializing often due to the fear of spreading the virus. He reported being happy to be alive and to have his wife and kids. The Veteran still endorsed feelings of hopelessness and worthlessness. At the August 2016 VA examination, the Veteran experienced occupational and social impairment with reduced reliability and productivity. The Veteran described his mood over the past two weeks as lonely. The examiner remarked that the Veteran demonstrated limited ability to engage in abstract thinking. At the June 2019 hearing, the Veteran and his wife described the effects of his depression. The Veteran still isolated himself. The Veteran’s wife stated that sometimes they can “pull him in” with regards to activities, but he would rather be on his own. See June 2019 Hearing Transcript. In October 2020, the Veteran reported still struggling with depression, especially as it relates to pain and disability. He felt useless at times, tired, and unmotivated. The Veteran endorsed experiencing insomnia. The Veteran got along with his wife and adult children. He had few friends or other social contacts. See December 2020 VA Medical Treatment Records (CAPRI). After a thorough consideration of the evidence of the record, the Board determines that the frequency, duration, and severity of the Veteran’s psychiatric symptoms more nearly approximate the severity level contemplated by the 70 percent rating criteria throughout the entirety of the appeal period. Prior to January 2010, the medical evidence shows that the Veteran experiences continuous depression and stress that significantly impacted his occupational and social life. He exhibits issues with coping dealing with stress related to his job, disabilities, and other events and becomes very isolative. The medical and lay evidence depicts that the Veteran shows continuous low energy and interest in activities he used to enjoy. The Veteran also experienced feelings of hopelessness and worthlessness. Based on the frequency of these symptoms and the severe impact on his daily life, the Board finds that the Veteran is entitled to a 70 percent rating for his service-connected psychiatric disorder for the entirety of the appeal period. However, at no time during the appeal period has the Veteran’s service-connected psychiatric disorder exhibited the severity level contemplated by the 100 percent rating criteria. Although he has experienced issues with memory, such deficiencies have never occurred to the level of forgetting his name, occupation or names of close relatives. Regarding the Veteran’s endorsement of visual and auditory hallucinations, those have been noted to be infrequent, not persistent. The Veteran has always been oriented to time, person, and place. The evidence does not depict that the Veteran has ever acted inappropriately, and he has denied ever being violent. Although he has expressed suicidal ideation, he denies any intent or plan. He has denied homicidal ideation and has not been deemed to be a persistent danger to himself or others. He is able to communicate clearly and effectively, and his thought processes have been noted to be unremarkable. The severity level of the Veteran’s social isolation is adequately contemplated by the 70 percent rating criteria throughout the entirety of the appeal period. He mostly stay to himself, but he also is able to get along with his wife, children, and a few friends. The evidence does not exhibit a complete inability to be social or communicate with others. Although the Veteran’s symptoms are severe, those symptoms do not rise to total social and occupational impairment, which is contemplated by the 100 percent rating criteria. Accordingly, a 70 percent rating, but no higher, for the service-connected major depressive disorder with psychotic features and associated alcohol abuse is warranted for the entirety of the appeal period. REASONS FOR REMAND Service connection for hypertension, to include as secondary to service-connected disabilities After a thorough consideration of the evidence of the record, the Board finds that additional evidentiary development is necessary prior to final adjudication of the Veteran’s claim for service connection for hypertension. The Veteran alleges that he developed hypertension due to his service-connected HIV, to include medication that he takes to treat his HIV. The Board previously remanded the claim to obtain a medical opinion addressing this medical question. In October 2020, the examiner provided a negative nexus opinion. The examiner reasoned that the record did not support that the Veteran was seen for hypertension during his service. The examiner continued that the Veteran left service in 2002 and was not started on medication until 2008. The examiner also noted that the Veteran gained 60 pounds since leaving service. Unfortunately, this opinion does not adequately address the theory of secondary service connection. First, the examiner bases the negative opinion on the absence of treatment in service, which is not relevant to medical questions concerning secondary service connection. The questions that need to be resolved is whether the Veteran’s HIV, to include his medication taken therefore, caused, or aggravated, his hypertension. See El-Amin v. Shinseki, 26 Vet. App. 136 (2013). The presence or absence of in-service treatment is not relevant to this aspect of the claim. Next, the examiner indicates that the Veteran gained 60 pounds since leaving service. It is unclear if the examiner was attributing the Veteran’s hypertension condition to his post-service weight gain. Medical treatment records document that the Veteran lost interest in his daily exercise regimen due to his psychiatric disorder and spent most of his time at home watching television, rather than engage in physical activities. Also, it has been noted that the Veteran’s left knee condition limits his ability to engage in exercise. The Veteran himself has also expressed that he has gained weight due to his disabilities. See February 2012 Statement in Support of Claim (VA Form 21-4138). A precedential opinion of VA's General Counsel, VAOPGCPREC 1-2017, explains that obesity may not be service-connected in and of itself but may be an "intermediate step" between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310(a). In such cases, the question is whether his or her service-connected disability(ies) or claimed service-connected disability(ies) caused the Veteran to become obese; (2) if so, whether the obesity was a substantial factor in causing the disability for which service connection is sought; and (3) whether the disability for which service connection is sought would not have occurred but for obesity caused by the service-connected disability(ies) or claimed service-connected disability(ies). Therefore, based on the evidence outlined above, the Board remands this claim to obtain a medical opinion that sufficiently addresses the theory of secondary service connection. Specifically, the opinion should address whether the Veteran’s service-connected disabilities caused him to become obese, and, if so, whether such resulting obesity is an intermediate step between those service-connected disabilities and his hypertension. Accordingly, this matter is REMANDED for the following action: 1. Provide the Veteran an opportunity to identify any pertinent treatment records for his hypertension. The AOJ should secure any necessary authorizations and associate any available VA and/or private records with the Veteran’s claims folder. If the records cannot be obtained, inform the Veteran of the records that could not be obtained, including what efforts were made to obtain them. The Veteran should also be notified that he may submit any such records. All efforts should be recorded in the claims folder. 2. Then, refer the Veteran's entire claims file to a medical professional of appropriate expertise to provide an addendum opinion (or, if the VA examiner determines that it is necessary, schedule the Veteran for a VA examination) to address the nature and etiology of the Veteran's hypertension. The claims file and a copy of this REMAND should be made available to the examiner for review. After review of the record, as well as an interview with and examination of the Veteran, the VA examiner should opine with supporting rationale as to the following inquiries, as clearly and precisely as possible: (a) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is caused by his service-connected HIV, to include the medication used to treat his HIV? (b) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran’s hypertension is aggravated (i.e., worsened beyond the natural progress) by his service-connected HIV, to include the medication used to treat his HIV? If the Veteran’s hypertension is deemed not to be due to, or aggravated by his HIV (to include his medication taken therefore), the examiner should, if possible, identify the cause considered more likely and explain why that is so. If the examiner determines that the Veteran’s hypertension is aggravated by his HIV (to include his HIV medication), the examiner should report the baseline level of severity of the condition prior to the onset of aggravation. If some of the increase in severity of hypertension is due to the natural progress of the disease, the examiner should indicate the degree of such increase in severity due to the natural progression of the disease. [In this regard, the Board notes that causation and aggravation are independent concepts. Therefore, the examiner must provide separate findings and rationales for causation and aggravation.] (c) Did the Veteran’s service-connected disabilities—to include his major depressive disorder with psychotic features and associated alcohol abuse, his service-connected left knee arthritis, and his HIV (including medication taken therefore) cause the Veteran to become obese? If so, (1) Was such resulting obesity a substantial factor in causing the Veteran’s hypertension? (2) Would the Veteran’s hypertension have not occurred but for the obesity caused by his service-connected disabilities? In rendering these opinions, the examiner is advised that the Veteran is competent to report his symptoms/history and that such reports must be acknowledged and considered in formulating any opinion. If the Veteran’s reports are discounted, the examiner should provide a reason for doing so. A fully articulated medical rationale for each opinion expressed must be set forth in the medical report. The examiner should discuss the particulars of this Veteran's medical history, pertinent lay evidence, and the relevant medical literature or studies as applicable to this case, which may reasonably explain the medical analysis in the study of this case. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 3. Then, review the record, conduct any additional development deemed necessary, and readjudicate this claim remaining on appeal. If the benefit sought remains denied, furnish to the Veteran and his representative an appropriate supplemental statement of the case (SSOC). The Veteran and his representative should be afforded the appropriate time period to respond. If indicated, the case should then be returned to the Board for appellate disposition. No action is required of the Veteran until he is notified by VA. However, he is advised of his obligation to cooperate in ensuring the duty to assist is satisfied. Kowalski v. Nicholson, 19 Vet. App. 171 (2005). His failure to report for any VA medical examination that may be scheduled may impact the determination made. 38 C.F.R. § 3.655. The Veteran also is advised that he has the right to submit additional evidence and argument with respect to this matter. Kutscherousky v. West, 12 Vet. App. 369 (1999). This appeal must be afforded prompt treatment. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Middleton, 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.