Citation Nr: 0510431 Decision Date: 04/12/05 Archive Date: 04/21/05 DOCKET NO. 03-26 006 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hypercholesterolemia and hyperlipidemia. 3. Entitlement to service connection for a skin disorder, to include contact dermatitis. 4. Entitlement to service connection for sleep apnea. 5. Entitlement to service connection for snoring and tiredness. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The veteran had active military service from July 1967 to July 1990. This matter comes properly before the Board of Veterans' Appeals (Board) on appeal from the Department of Veterans Affairs (VA) Regional Office in Columbia, South Carolina (RO). FINDINGS OF FACT 1. Service medical records reveal that the veteran had increased laboratory findings of elevated cholesterol which was identified as hypercholesterolemia. 2. Hypercholesterolemia and hyperlipidemia are laboratory findings, and not considered disabilities or diseases for VA purposes. 3. Service medical records reveal that the veteran was treated for contact dermatitis during service which was transitory in nature and resolved without residual disability. 4. Service medical records reveal a single complaint of snoring without any medical diagnosis of disability. 5. There is no indication in any of the service medical records of any diagnosis of, or treatment for, hypertension, sleep apnea, or tiredness. 6. There is no evidence that hypertension manifested within the first year after the veteran separated from military service. 7. There is no medical evidence linking any current diagnosis of hypertension or sleep apnea to military service. CONCLUSIONS OF LAW 1. Hypertension was not incurred in, or aggravated by, active military service and may not be presumed to have been incurred in service. 38 U.S.C.A. §§ 101(16), 1101, 1110, 1112, 1131, 1137, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2004). 2. Hypercholesterolemia and hyperlipidemia are not a diseases, disabilities, or injuries for which applicable law permits compensation or service connection. 38 U.S.C.A. §§ 101(16), 105(a), 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303(c) (2004). 3. A skin disorder, to include contact dermatitis, was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 4. Sleep apnea was not incurred in, or aggravated by, active military service. 38 U.S.C.A. §§ 101(16), 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303 (2004). 5. Snoring and tiredness are not diseases, disabilities, or injuries for which applicable law permits compensation or service connection. 38 U.S.C.A. §§ 101(16), 105(a), 1110, 1131, 5103A, 5107 (West 2002); 38 C.F.R. § 3.303(c) (2004). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Veterans Claims Assistance Act of 2000 In November 2000, the Veterans Claims Assistance Act of 2000 (VCAA) was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2004). First, VA has a duty to provide an appropriate claim form, instructions for completing it, and notice of information necessary to complete the claim if it is incomplete. 38 U.S.C.A. § 5102; 38 C.F.R. § 3.159(b)(2). In this case, there is no issue as to providing an appropriate application form or completeness of the application. Second, VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim, notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). The RO provided the veteran the required notice with respect to his claims for service connection in letters dated in February and September 2003. Third, VA has a duty to assist claimants to obtain evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The RO has obtained all the relevant records related to the veteran's claims. Thus, VA's duty to assist has been fulfilled. Finally, to the extent that VA has failed to fulfill any duty to notify and assist the veteran, the Board finds that error to be harmless. Of course, an error is not harmless when it "reasonably affect(s) the outcome of the case." ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). In this case, however, as there is no evidence that any failure on the part of VA to further comply with the VCAA reasonably affects the outcome of this case, the Board finds that any such failure is harmless. II. Service Connection Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. §§ 101(16), 1110. In addition, service connection may be granted for any disease diagnosed after discharge, when all the evidence including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Moreover, in the case of hypertension, service connection may be granted if such disease is manifested in service, or manifested to a compensable degree within one year following separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137; 38 C.F.R. §§ 3.307, 3.309. A. Hypertension The veteran claims that he incurred hypertension during active military service. Review of the veteran's service medical records does not reveal any diagnosis of hypertension during active military service. Although the veteran indicates that he was first diagnosed with hypertension in 1992, the first medical evidence of record of hypertension is not until 1997. Even if the first diagnosis of hypertension was in 1992, it was more than one year after the veteran separated from military service. The preponderance of the evidence is against the veteran's claim for hypertension. There is no evidence in the service medical records showing that the veteran was diagnosed with hypertension during service. The veteran was first diagnosed with hypertension in private medical records more than one year subsequent to service discharge and there is no medical evidence that links his current hypertension to service or to any incident therein. Accordingly, service connection for hypertension is not warranted. In reaching this decision the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the claim for service connection for hypertension, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). B. Hypercholesterolemia and Hyperlipidemia As noted above, applicable laws and regulations provide that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303. That a condition or injury occurred in service alone is not enough; there must be disability resulting from that condition or injury. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Brammer v. Derwinski, 3 Vet. App. 223 (1992). The veteran's service medical records reveal laboratory test results which show elevated levels of serum cholesterol during service. Service medical records dated in June 1988 reveal diagnoses of hypercholesterolemia. Private and VA medical records dated subsequent to service discharge continue to show assessments of hypercholesterolemia. In this instance, an award of service connection is not justified. The United States Court of Appeals for Veterans Claims (Court) interpreted the requirement of current disability as follows: "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. . . . In the absence of proof of a present disability there can be no valid claim." Brammer, 3 Vet. App. at 225. Hypercholesterolemia is, by definition, an abnormally high level of cholesterol in the blood. Dorland's Illustrated Medical Dictionary 792 (28th ed. 1994). Hypercholesterolemia and hyperlipidemia are essentially the same condition, that of laboratory findings of increased amounts of lipids, to include cholesterol, in the blood. These are not diseases or injuries, and thus cannot be a disability for purposes of VA compensation. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Although hypercholesterolemia itself is not a disease, injury, or disability, it may be considered a risk factor in the development of certain diseases. The veteran is diagnosed with hypertension, but there is no competent medical evidence of record which relates the current diagnosis of hypertension to the veteran's hypercholesterolemia. Inasmuch as the veteran has no current diagnosis of a chronic disability manifested by hypercholesterolemia or hyperlipidemia, there is no legal basis to grant this claim. As the law, rather than the evidence, is dispositive in this case, the claim is denied. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Accordingly, the veteran's claim of service connection for hypercholesterolemia and hyperlipidemia must be denied. C. Skin Disorder The veteran claims entitlement to service connection for a skin disorder. Review of the service medical records reveals that the veteran sought treatment for complaints of rash in September 1981 and in June 1989. The diagnosis in each case was contact dermatitis and the veteran was treated with topical medication. These rashes were treated successfully and there is no indication that there was any subsequent recurrence. There is no medical evidence of any residual disability from these two instances of contact dermatitis during service. Post service private and VA medical records are negative for complaints or diagnosis of, or treatment for, any rash or contact dermatitis. However, private medical records dated in October 1997 show diagnoses of cellulitis and herpes lesions on the lips. Nevertheless, there is no medical evidence which links these two disorders to the veteran's military service or to the instances of contact dermatitis during service. The preponderance of the evidence is against the veteran's claim for service connection for a skin disorder, to include contact dermatitis. See 38 U.S.C.A. § 5107(b). While the veteran was treated for contact dermatitis during service, there is no medical evidence of any residual disability. There is no evidence that the veteran has contact dermatitis or any current skin rash that is related to his military service. Accordingly, service connection for a skin disorder is not warranted. D. Sleep Apnea, Snoring, and Tiredness A single service medical record dated June 1988 reveals that the veteran reported that his wife complained of his snoring. However, no diagnosis of any abnormality was made and subsequent medical examination reports reveal a normal respiratory system. A series of private medical records dated in 1997 reveal that the veteran had complaints of excessive snoring and daytime fatigue. Ultimately, a December 1997 private medical consultation report revealed a diagnosis of moderate obstructive sleep apnea. The evaluating physician indicated that the level of sleep apnea found could be causing daytime fatigue. The preponderance of the evidence is against the veteran's claim for service connection for sleep apnea. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). There is medical evidence showing a current diagnosis of sleep apnea, but there is no medical evidence showing that that veteran was diagnosed with sleep apnea during service. There is also no competent medical evidence linking the veteran's current sleep apnea to service or the one report of snoring during service. As such, service connection for sleep apnea is denied. With respect to the veteran's claims for service connection for snoring and tiredness, the Board again notes that service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by military service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; see also Brammer, 3 Vet. App. at 225. In the present case, the veteran's complaints of snoring and tiredness are not shown to be of themselves disabilities within the meaning of the controlling law and regulations. Rather, the medical evidence of record indicates that the veteran's snoring and tiredness may be symptoms of his nonservice-connected sleep apnea. Accordingly, service connection for sleep apnea, snoring, and tiredness is not warranted. ORDER Service connection for hypertension is denied. Service connection for hypercholesterolemia and hyperlipidemia is denied. Service connection for a skin disorder, to include contact dermatitis, is denied. Service connection for sleep apnea is denied. Service connection for snoring and tiredness is denied. ____________________________________________ JOY A. MCDONALD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs