Citation Nr: 21013873 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-53 742A DATE: March 10, 2021 ORDER 1. Entitlement to service connection for high cholesterol is denied. REMANDED 2. Entitlement to service connection for a lumbar spine (back) disability is remanded. 3. Entitlement to service connection for a left ankle disability, to include gout, is remanded. 4. Entitlement to service connection for a right ankle disability, to include gout, is remanded. 5. Entitlement to service connection for sinusitis is remanded. 6. Entitlement to service connection for acid reflux is remanded. 7. Entitlement to service connection for a left wrist disability, to include carpal tunnel syndrome, is remanded. 8. Entitlement to service connection for a right wrist disability, to include carpal tunnel syndrome, is remanded. 9. Entitlement to service connection for hypertension, claimed as high blood pressure, is remanded. 10. Entitlement to service connection for headaches is remanded. FINDING OF FACT High cholesterol is not a disability for VA benefits purposes. CONCLUSION OF LAW The criteria for service connection for high cholesterol have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 1988 to March 1989 and December 1990 to May 1991, with additional National Guard service. In January 2019, in pertinent part, the Board issued a decision that denied the Veteran’s claims of entitlement to service connection for gout of the left and right ankles; back problems; sinusitis; high cholesterol; acid reflux; and carpal tunnel syndrome of the left and right wrists. The issues of entitlement to service connection for headaches and hypertension were also remanded in the decision. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In September 2019, the Veteran and the Secretary of VA (parties) filed a Joint Motion for Partial Remand (JMPR) with respect to the part of the January 2019 Board decision that denied the listed claims above, to vacate and remand the claims back to the Board, which was granted by the Court. In June 2020, the Board remanded the claims pursuant to the September 2019 JMPR. Additional development is required for compliance with the Board’s remand directives to decide the claims on appeal. See Stegall v. West, 11 Vet. App. 268 (1998). 1. Entitlement to service connection for high cholesterol. The Veteran seeks service connection for high cholesterol. High cholesterol is also referred to as hypercholesterolemia or hyperlipidemia and post-service treatment records document diagnoses of hyperlipidemia. A “disability” for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any “other physical or mental defect.” 38 U.S.C. § 1701(1). By definition, hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglycerides and hypercholesterolemia (high cholesterol). DORLAND’S ILLUSTRATED MEDICAL DICTIONARY (32nd ed. 2012). VA has in its rulemaking capacity similarly indicated that high cholesterol does not fall within VA’s definition of disability for which compensation is warranted. 61 Fed. Reg. 20440, 20445 (May 7, 1996) noting that supplementary information preceding revisions to criteria for evaluating endocrine system indicating that hyperlipidemia, elevated triglycerides, and elevated cholesterol “are actually laboratory test results, and are not, in and of themselves, disabilities.” The term disability, for VA purposes, refers to impairment in earning capacity. The preponderance of the evidence is against a finding that the Veteran’s high cholesterol, in and of itself, causes any functional impairment of earning capacity. The Veteran’s high cholesterol is a laboratory finding and has not been shown to be a disability productive of functional impairment in earning capacity. While the Board acknowledges that the claim is included as part of the September 2019 JMPR for the Board to ensure compliance with the duty to assist, specifically obtaining service treatment records from periods of active duty training (ACDUTRA) and inactive duty training (INACDUTRA), such records would not assist the Veteran in substantiating his claim even if high cholesterol is shown in service as it is not a disability for VA benefits purposes. As such, service connection for high cholesterol must be denied as a matter of law. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 2. Entitlement to service connection for a lumbar spine (back) disability is remanded. 3. Entitlement to service connection for a left ankle disability, to include gout, is remanded. 4. Entitlement to service connection for a right ankle disability, to include gout, is remanded. 5. Entitlement to service connection for sinusitis is remanded. 6. Entitlement to service connection for acid reflux is remanded. 7. Entitlement to service connection for a left wrist disability, to include carpal tunnel, is remanded. 8. Entitlement to service connection for a right wrist disability, to include carpal tunnel, is remanded. 9. Entitlement to service connection for hypertension, claimed as high blood pressure is remanded. 10. Entitlement to service connection for headaches is remanded. The parties to the September 2019 JMPR found that the Board erred when it failed to comply with the duty to assist because it did not ensure that the Veteran’s service treatment records were obtained from the periods of ACDUTRA and INACDUTRA. The parties noted that in its January 2019 decision, the Board remanded the Veteran’s claim for hypertension in order to for VA to provide a listing of the Veteran’s specific periods of active duty, ACDUTRA, and INACDUTRA, and to ensure that all service personnel records, including ACDUTRA and INACDUTRA records were associated with the claims file. Thus, remand was warranted for the Board to ensure that the Veteran’s service records are complete and in order for VA to comply with the duty to assist. In June 2020, the Board remanded the Veteran’s claims to obtain such records. A Defense Personnel Records Information Retrieval System (DPRIS) Official Military Personnel File (OMPF) request was performed in July 2020. An August 2020 Report of General Information indicates that VA contacted the Defense Finance Accounting Service (DFAS) and was informed that a copy of the Veteran’s Master Military Pay Account (MMPA) would not be provided and that the Veteran would have to go to the DFAS website to request the information. On August 5, 2020, VA sent correspondence to the Veteran informing him that he would need to log into the DFAS website to request the MMPA. August 11, 2020 VA correspondence to the Veteran indicated that his service personnel records were requested and that it was determined that the records cannot be located and future attempts to attempt the records would be futile. A subsequent Personnel Information Exchange Systems (PIES) request was made in September 2020. The Veteran submitted a screenshot of his military pay records request with DFAS in November 2020. An October 2020 PIES response noted that all available personnel documents and/or service treatment records were uploaded to the Veteran’s claims file. In December 2020, the Veteran submitted a screenshot from his DFAS request, which he requested a status on his document request. It was noted that the “ticket is awaiting response.” In February 2021 correspondence, in response to the January 2021 supplemental statement of the case (SSOC), the Veteran’s representative stated that the August 11, 2020 “final attempt” letter from VA mentioned in the SSOC was not received and that it appeared VA did not make the request to DFAS as required by the June 2020 remand. She stated that if VA should need further assistance from the Veteran, please indicate what is needed and the Veteran would be happy to assist. The Veteran’s representative requested that the claims should not be returned to the Board until there has been substantial compliance with the June 2020 remand. Based on the Veteran’s submission of the December 2020 screenshot of his DFAS request, it appears that the Veteran attempted to complete the steps indicated in the August 5, 2020 VA correspondence to request the his MMPA. It is unclear whether DFAS has completed the Veteran’s request and the MMPA records are not associated with the claims file. As such a remand is necessary to ensure compliance with the June 2020 Board remand directives and any further development as necessary to adjudicate the claim pursuant to the September 2019 JMPR. Forcier v. Nicholson, 19 Vet. App. 414, 425 (2006); Stegall, 11 Vet. App. 268. The matters are REMANDED for the following action: 1. Take the appropriate action to verify the dates of the Veteran’s ACDUTRA and INACDUTRA and any other type of Reserve service by contacting the Defense Finance and Accounting Service (DFAS) and requesting the Veteran’s Master Military Pay Account (MMPA). This should include contacting the Veteran with necessary instructions required to request / check on the status of his MMPA request with DFAS, and any necessary step(s) needed from the Veteran to obtain such records. See 1) VBMS entry with document type, “VA 27-0820 Report of General Information,” receipt date 08/04/2020; and 2) VBMS entry with document type, “Subsequent Development Letter,” receipt date 08/05/2020. Inform the Veteran and afford his representative an opportunity to submit any copies of records obtained in his possession. The duty to assist a claimant is not a one-way street and the Veteran shall cooperate to the full extent in the development of his claims. The AOJ must document all steps taken to obtain this record. Document any negative responses received. 2. If needed, the AOJ should compile a complete list of any verified period of active duty, ACDUTRA, and INACDUTRA service and include it in the electronic claims file for review. 3. Obtain the Veteran’s service treatment records and personnel records for all periods of active duty, ACDUTRA, and INACDUTRA service from the appropriate records repositories and associate all available records with the claims file. If no additional records can be located, make a formal finding as to their unavailability. 4. After all available evidence has been associated with the record, review the evidence and determine if further development is warranted. A. P. SIMPSON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Cheng, 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.