Citation Nr: 1018463 Decision Date: 05/18/10 Archive Date: 06/04/10 DOCKET NO. 02-08 880A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Newark, New Jersey THE ISSUES 1. Entitlement to service connection for claimed diabetes mellitus, to include as secondary to renal glycosuria. 2. Entitlement to service connection for arteriosclerotic cardiovascular disease, to include as secondary to claimed diabetes mellitus. 3. Entitlement to service connection for hypercholesterolemia and hypertriglycerides, to include as secondary to claimed diabetes mellitus. 4. Entitlement to service connection for enlarged fatty liver, to include as secondary to claimed diabetes mellitus. 5. Entitlement to an initial evaluation in excess of 20 percent for the renal glycosuria. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD G. Jackson, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1961 to August 1965 This matter initially came before the Board of Veterans' Appeals (Board) on appeal from March 1999 and May 2006 rating decisions issued by the RO. The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing at the Board in Washington, D.C. in January 2008. A transcript of the hearing is of record. The Board remanded the issues back to the RO in February 2008 for further development of the record. The issues of entitlement to service connection for diabetes mellitus, to include as secondary to the renal glycosuria; entitlement to service connection for arteriosclerotic cardiovascular disease, to include as secondary to claimed diabetes mellitus; and entitlement to an evaluation in excess of 20 percent for the renal glycosuria are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDINGS OF FACT 1. The VA has fully informed the Veteran of the evidence necessary to substantiate his claim and the VA has made reasonable efforts to develop such evidence. 2. Elevated cholesterol and triglyceride levels alone do not constitute a disability for which VA compensation benefits may be awarded. 3. Enlarged fatty liver is not a disorder within in the meaning of applicable legislation for disability compensation purposes. CONCLUSIONS OF LAW 1. A disability manifested by elevated cholesterol and triglyceride levels is not shown to be due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). 2. A disability manifested by enlarged fatty liver, as a separate disability in and of itself, is not shown to be due to disease or injury that was incurred in or aggravated by active service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.159, 3.303 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the United States Court of Appeals for Veterans Claims (the Court) have been fulfilled by information provided to the Veteran in correspondence from the RO dated in August 2003, May 2008 and July 2008. Those letters notified the Veteran of VA's responsibilities in obtaining information to assist the Veteran in completing his claims and identified the Veteran's duties in obtaining information and evidence to substantiate his claims. (See 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a)), Quartuccio v. Principi, 16 Vet. App. 183 (2002), Pelegrini v. Principi, 18 Vet. App. 112 (2004). See also Mayfield v. Nicholson, 19 Vet. App. 103, 110 (2005), reversed on other grounds, 444 F.3d 1328 (Fed. Cir. 2006), Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); Mayfield v. Nicholson (Mayfield II), 20 Vet. App. 537 (2006). The Veteran has been made aware of the information and evidence necessary to substantiate his claims and has been provided opportunities to submit such evidence. The RO has properly processed the appeal following the issuance of the required notice. Moreover, all pertinent development has been undertaken, examinations have been performed, and all available evidence has been obtained in this case. Thus, the content of the notice letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). No further action is necessary for compliance with the VCAA. During the pendency of this appeal, the Court in Dingess/Hartman found that the VCAA notice requirements applied to all elements of a claim. An additional notice as to these matters was provided in March 2006 as well as in the May and July 2008 letters. The notice requirements pertinent to the issue addressed in this decision have been met and all identified and authorized records relevant to the matter have been requested or obtained. Further attempts to obtain additional evidence would be futile. The Board finds the available medical evidence is sufficient for an adequate determination. There has been substantial compliance with all pertinent VA law and regulations and to move forward with the claims would not cause any prejudice to the appellant. Laws and Regulations The law provides that service connection may be granted to a veteran for disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2009). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time. If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Service connection may also be granted for any disease diagnosed after discharge when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. See Cuevas v. Principi, 3 Vet. App. 542 (1992); Rabideau v. Derwinski, 2 Vet. App. 141 (1992). The Federal Circuit has held that a veteran seeking disability benefits must establish the existence of a disability and a connection between service and the disability. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The Court has held that where the determinative issue involves medical causation or a medical diagnosis, competent medical evidence is required. Grottveit v. Brown, 5 Vet. App. 91 (1993); see also Espiritu v. Derwinski, 2 Vet. App. 492 (1992). The Federal Circuit has also recognized the Board's "authority to discount the weight and probity of evidence in light of its own inherent characteristics and its relationship to other items of evidence." Madden v. Gober, 125 F.3d 1477, 1481 (Fed. Cir. 1997). VA is free to favor one medical opinion over another provided it offers an adequate basis for doing so. See Owens v. Brown, 7 Vet. App. 429 (1995). Laboratory test results are not in and of themselves disabilities. See 61 Fed. Reg. 20440, 20,445 (May 7, 1996) (supplementary information preceding Final Rule amending the criteria for evaluating endocrine system disabilities indicates that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory test results, and are not, in and of themselves, disabilities). It is the policy of VA to administer the law under a broad interpretation, consistent with the facts in each case with all reasonable doubt to be resolved in favor of the claimant; however, the reasonable doubt rule is not a means for reconciling actual conflict or a contradiction in the evidence. 38 C.F.R. § 3.102 (2009). Factual Background and Analysis The Veteran asserts that he has current disability manifested by elevated cholesterol and triglyceride levels and enlarged fatty liver which onset during his period of service. However, his service treatment records contain no complaints of, treatment for or findings referable to elevated cholesterol and triglyceride levels or enlarged fatty liver. At the time of his May 1965 separation physical examination, laboratory findings were unremarkable. Subsequent to service, VA and private facility records are replete with reference to treatment for and findings referable to elevated cholesterol and triglyceride levels and fatty liver. However, there is no medical evidence of record that the Veteran's elevated cholesterol and triglyceride levels and fatty liver are actual disabilities of their own. In this regard, the elevated cholesterol and triglyceride levels and fatty liver are symptoms of other disabilities and not independent disabilities for VA purposes. See 61 Fed. Reg. 20440, 20,445 (May 7, 1996); Sanchez-Benitez v. Principi, 259 F.3d 1356 (Fed. Cir. 2001) (holding that a symptom without a diagnosed or identifiable underlying malady or condition, does not in and of itself constitute a disability for which service connection may be granted). As a general matter, service connection for a disability on the basis of the merits of such claim is focused upon (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Despite the noted findings of the elevated cholesterol and triglyceride levels and fatty liver symptoms, there is no evidence of a current disability for VA purposes related thereto causally related to his period of service. See Sanchez-Benitez supra. For these reasons, the Board finds that service connection for hypercholesterolemia and hypertriglycerides and enlarged fatty liver is not warranted in this case. ORDER Entitlement to service connection for hypercholesterolemia and hypertriglycerides is denied. Entitlement to service connection for enlarged fatty liver is denied. REMAND The provisions of the Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a), and as interpreted by the Courts are applicable to this appeal. The Veteran contends that the renal glycosuria is productive of a level of disablement greater than the currently assigned 20 percent rating. To that end, the Board is aware that the minimum rating for renal glycosuria is 20 percent. Higher evaluations can be awarded based on renal dysfunction. The Board is aware that VA examination reports in 2006 and 2007 showed no evidence of hyaline casts or granular casts and the recorded blood pressure was 110/65. However, there was no discussion on whether transient or slight edema was present; or whether his hypertension was controlled by continuous medication (such findings would support the assignment of an increased rating). The Board observes there is evidence of record that the Veteran has previously been prescribed medication for his hypertension, and that he has been prescribed compression stockings for edema of the lower extremities (April 2007) and had a VA vascular consult in May 2007. VA regulations provide that where "the [examination] report does not contain sufficient detail, it is incumbent upon the rating board to return the report as inadequate for evaluation purposes." 38 C.F.R. §§ 4.2, 19.9 (2009). Where the Board makes a decision based on an examination report that does not contain sufficient detail, remand is required by the courts "for compliance with the duty to assist by conducting a thorough and contemporaneous medical examination." Goss v. Brown, 9 Vet. App. 109, 114 (1996); Stanton v. Brown, 5 Vet. App. 563, 569 (1993). Given the last VA examination evaluating the renal glycosuria was in 2007, the Board finds that a more contemporaneous VA examination is necessary. With regard to the Veteran's claim for service connection for diabetes mellitus, to include as secondary to the renal glycosuria, the Board finds the evidence confusing and convoluted. In service, an April 1963 lab record indicates rule out diabetes. In a May 1963 service record, the provisional diagnosis was "diabetes - renal glycosuria." In the June 1963 follow-up, the impression was low renal threshold for glucose. The examiner explained glucose tolerance test may vary; however, presently the diagnosis was not consistent with diabetes. It was consistent with persistent glycosuria. The Veteran was advised to repeat a glucose tolerance test in one year. The May 1965 Separation examination noted "sugar in urine 1963, diets recommended, no recurrence." Subsequent to service, the record is replete with reference to treatment for and diagnosis of diabetes mellitus. In August 1999 and March 2002 private treatment records, the physician reported the Veteran had been his patient from 1994 to September 1998. The physician reported that the Veteran was clearly shown to be diabetic in June 1994. The Veteran's history of renal glucosuria was noted. It was reported that there was a known relationship between glucosuria and the presence of diabetes. In this regard, the physician further opined that it was likely there was a relationship between the Veteran's renal glucosuria and his diabetes. In a July 2003 VA examination report, the diagnosis, in pertinent part, was diabetes mellitus type 2, uncontrolled secondary to noncompliance of medications. The examiner noted that the Veteran had been diagnosed with renal glycosuria during his period of service; however, the glucose tolerance test at that time was normal. The physician explained that renal glycosuria without positive "GGT" (which he had in service) was not an indication of diabetes. In a February 2004 VA examination report, the examiner explained that a normal 2-hour post-prandial or post-glucose tolerance plasma glucose level was less than 140 mg/dl. The Veteran's post-glucose level was clearly normal in service, indicating that he had neither diabetes mellitus or impaired glucose tolerance. Since there was no evidence that renal glycosuria with normal glucose tolerance was a precursor or indicator of diabetes, the examiner concluded that there was no reason to believe that his current condition could be related to the benign condition, renal glycosuria, diagnosed during his period of service. In an October 2004 private treatment record, the physician noted that the Veteran had document glucosuria during his period of military service. The physician explained that the Veteran underwent a 3 hour glucose tolerance test during service (May 1963) that by current criteria demonstrated elevated fasting blood glucose of 108 mg/dl. At that time the findings were considered normal; however, currently findings over 100 mg/dl at a fasting time is considered abnormal and would be labeled impaired fasting glucose. The Veteran subsequently developed diabetes and other related complications. The physician reported that it was medically known that people with low renal threshold for glucose might have glucosuria in the absence of demonstrable diabetes at the time of testing but the greatest majority of these people eventually developed diabetes. The physician explained that in the Veteran's case although the criteria were not met for diabetes at that time on the basis of his original glucose tolerance test, those same figures using current criteria would indicate an abnormality. In an April 2006 VA examination report, the examiner explained that renal glycosuria and normal glucose tolerance testing was not an indicator of diabetes mellitus or a precursor or diabetes mellitus. Thus, the examiner opined that the currently diagnosed diabetes was not related to the benign glycosuria diagnosed during his period of service. In a November 2006 VA examination report, the examiner opined that the relationship between renal glycosuria and diabetes was questionable. In a March 2007 VA addendum opinion, the examiner explained that a determination of a relationship between diabetes and renal glycosuria could not be resolved without resort to mere speculation. Given this confusing and contradictory evidence of record, the Board finds that a more contemporaneous VA examination is necessary to determine the etiology of the currently diagnosed diabetes. Irrespective of this evidence, the Board notes that a disability which is proximately due to, or results from, another disease or injury for which service connection has been granted shall be considered a part of the original condition. 38 C.F.R. § 3.310(a). Specifically, when aggravation of a disease or injury for which service connection has not been granted is proximately due to, or the result of, a service-connected condition, the Veteran shall be compensated for the degree of disability over and above the degree of disability existing prior to the aggravation. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Any increase in severity of a nonservice-connected disease or injury that is proximately due to or the result of a service-connected disease or injury, and not due to the natural progress of the nonservice-connected disease, will be service connected. 38 C.F.R. § 3.310(b). The Veteran contends that his currently diagnosed diabetes mellitus is secondary to his renal glycosuria. Despite this contention, none of the evidence of record addresses whether the Veteran's diabetes mellitus was aggravated by his renal glycosuria. See Goss supra. Given the action requested herein, the Board finds that the Veteran's claim for service connection for arteriosclerotic cardiovascular disease as secondary to diabetes mellitus should be held in abeyance, pending additional development and readjudication of his claim for service connection for diabetes mellitus. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A (West 2002 & Supp. 2009), the need for additional evidence regarding his claims for an increased rating for his renal glycosuria and for entitlement to service connection for diabetes mellitus, to include as secondary to the renal glycosuria. This letter should reflect all appropriate regulatory and legal guidance. See 38 C.F.R. § 3.310(a),(b) (2009); see also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 2. The RO should contact the Veteran and obtain the names, addresses, and approximate dates of treatment of all medical care providers, VA and non-VA, who treated him for renal glycosuria and diabetes mellitus. After the Veteran has signed the appropriate releases, those records not already on file, should be obtained and associated with the claims folder. All attempts to procure records should be documented in the file. If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. The Veteran should be afforded a VA genitourinary examination to evaluate the current severity of his renal glycosuria. The entire claims folder must be made available to the examiner for review in conjunction with the examination and should be so documented in the examination report. All tests and studies that the examiner deems necessary should be performed. The examination must be conducted following the protocol in VA's Disability Examination Worksheet for VA Genitourinary Conditions Examinations. The examiner should provide an accurate and fully descriptive assessment of the Veteran's renal glycosuria. The examiner should include a complete rationale for the findings and opinions expressed. 4. The Veteran should also be afforded a VA examination by an endocrinologist to determine, if possible, the etiology of his diabetes mellitus. The Veteran's claims folder must be made available for the physician's review prior to the entry of any opinion. A notation to the effect that this record review took place should be included in the examiner's report. All indicated tests and studies are to be performed. Following the examination, the examiner is requested to provide an opinion as the following questions: a) Is it at least as likely as not (50 percent probability or greater) that the claimed diabetes mellitus is related to the renal glycosuria? b) If not related, then is the claimed diabetes mellitus aggravated (i.e., worsened beyond its natural progression) by the Veteran's renal glycosuria? If so, the examiner should attempt to objectively quantify the degree of aggravation above and beyond the level of impairment had no aggravation occurred. A complete rationale should be given for all opinions and conclusions expressed. 5. The Veteran must be given adequate notice of the date and place of the requested examinations. A copy of all notifications, including the address where the notice was sent must be associated with the claims folder. The Veteran is to be advised that failure to report for scheduled VA examinations without good cause shown may have adverse effects on his claims. 6. After completion of the above development, the Veteran's claims should be readjudicated. If the determinations remain adverse to the Veteran, he and his representative should be furnished with a Supplemental Statement of the Case and given an opportunity to respond thereto. Then, if indicated, this case should be returned to the Board for the purpose of appellate disposition. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ RENÉE M. PELLETIER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs