Citation Nr: 0810249 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 03-26 529 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for high cholesterol. 2. Whether new and material evidence has been submitted to reopen a claim for service connection for hypertension and, if so, whether service connection is warranted. REPRESENTATION Appellant represented by: Alabama Department of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Vella Camilleri, Associate Counsel INTRODUCTION The veteran served on active duty from October 1964 to October 1967 and from July 1974 to July 1991. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which appears to have reopened the veteran's claim for service connection for hypertension and denied the claim for service connection for high cholesterol. The veteran presented testimony at the RO before a Decision Review Officer (DRO) in February 2004. A transcript of the hearing is of record. As will be discussed in more detail below, the veteran's original claim for entitlement to service connection for hypertension was adjudicated by the RO as entitlement to service connection for a heart condition with sinus bradycardia and hypertension. See November 1991 and August 1992 rating decisions. The veteran has made several references to problems with his heart since the issuance of these rating decisions, to include arteriosclerotic heart disease (ASHD), blockage of his heart, and a slight arrhythmia. See September 2003 VA Form 9; May 2004 VA Form 21-4138. It appears that he is seeking to reopen his claim for entitlement to service connection for a heart condition. As review of the claims folder does not reveal that the RO has addressed this issue, it is REFERRED for appropriate action. FINDINGS OF FACT 1. High cholesterol is not a disability for which VA compensation is payable. 2. An unappealed August 1992 rating decision denied the claim for service connection for a heart condition with sinus bradycardia and hypertension on the basis that the condition was not found on examination (no current disability). 3. Additional evidence received since August 1992 on the issue of service connection for hypertension is new and material, as it includes evidence related to an unestablished fact necessary to substantiate the claim. 4. There is no medical evidence of record showing that the veteran's hypertension is etiologically related to active service. CONCLUSIONS OF LAW 1. Service connection for high cholesterol is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2000); 38 C.F.R. § 3.303 (2007). 2. The August 1992 rating decision that denied entitlement to service connection for a heart condition with sinus bradycardia and hypertension is final. 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302, 20.1103 (1992). 3. New and material evidence has been submitted to reopen the claim for entitlement to service connection for hypertension. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). 4. The criteria for service connection for hypertension have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service connection claim To establish service connection for a claimed disability, the evidence must demonstrate that a disease or injury resulting in current disability was incurred during active service or, if pre-existing, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2007). The veteran contends that he suffers from high cholesterol as a result of service. He asserts that the condition was discovered while on active duty, that control of high cholesterol was of great concern during service, and that he is currently receiving treatment for high cholesterol. The veteran also reports undergoing an angioplasty to clear a blockage that had been discovered in service. See March 2002 VA Form 21-4138; January 2003 notice of disagreement (NOD); September 2003 VA Form 9; February 2004 hearing transcript; May 2004 VA Form 21-4138. The veteran's service medical records reveal that he was found to have elevated cholesterol/triglycerides/elevated low-density lipoprotein (LDL) level in November 1989. See medical record. The following month, he was referred for a consultation due to elevated blood lipids with a provisional diagnosis of hyperlipidemia. He was familiarized with dietary restrictions for lipid lowering diet. See DA Form 4700. At the time of his retirement from service, the veteran's triglyceride level was 215, cholesterol was 220 and glucose was 94; the veteran was noted to have hypercholesterolemia. See April 1991 report of medical examination. Post-service medical evidence reveals that the veteran has received treatment for hypercholesterolemia and hypertriglyceridemia. See records from Dr. Woodard; VA treatment records and clinical lab reports. The evidence of record does not support the claim for entitlement to service connection for high cholesterol. High cholesterol is also referred to as hypercholesterolemia or hyperlipidemia. Hypercholesterolemia is an "excess of cholesterol in the blood." Dorland's Illustrated Medical Dictionary 792 (28th ed. 1994). Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc." Id. at 795. Hyperlipidemia and elevated cholesterol are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (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.). The term "disability" as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). There is no evidence of record suggesting the veteran's elevated cholesterol or hypertriglyceridemia causes any impairment of earning capacity. "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 present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (citation omitted); see 38 U.S.C.A. §§ 1110, 1131 (West 2002). Service connection can only be granted for a disability resulting from disease or injury. See 38 U.S.C.A. §§ 1110, 1131 (West 2002). Despite the in-service evidence that reveals elevated cholesterol, triglycerides, and LDL level, and post-service evidence that reveals the veteran is treated for hypercholesterolemia and hypertriglyceridemia, high cholesterol is a laboratory finding that manifests itself only in laboratory test results and is not a disability for which service connection can be granted. As such, service connection for high cholesterol is not warranted. II. New and material evidence claim The veteran seeks to establish service connection for hypertension. See March 2002 VA Form 21-4138. The RO appears to have reopened the claim, but has continued the denial issued in a previous final decision. The Board has an obligation to make an independent determination of its jurisdiction regardless of findings or actions by the RO. Barnett v. Brown, 8 Vet. App. 1 (1995), aff'd, 83 F.3d 1380 (Fed. Cir. 1996). The veteran initially filed a claim for entitlement to service connection for hypertension in August 1991. See VA Form 21-526. The issue was adjudicated as entitlement to service connection for a heart condition with sinus bradycardia and hypertension. See November 1991 and August 1992 rating decisions. The August 1992 rating decision denied the claim on the basis that the condition was not found on examination (no current disability). The veteran was informed of this decision by letter dated September 21, 1992, but he did not file a timely appeal. See 38 U.S.C.A. § 7105(c) (West 1991); 38 C.F.R. § 20.302(a) (1992) (a claimant must file a NOD with a determination by the agency of original jurisdiction (AOJ) within one year from the date that that agency mails notice of the determination). An unappealed determination of the AOJ is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.160(d), 20.302(a) (2007). The veteran filed a claim to reopen in March 2002, and this appeal ensues from the January 2003 rating decision that appears to have reopened the claim, but continued the denial of service connection for hypertension. As a general rule, once a claim has been disallowed, that claim shall not thereafter be reopened and allowed based solely upon the same factual basis. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156(a) (2007). If the claimant can thereafter present new and material evidence, however, the claim shall be reopened and the former disposition of the claim shall be reviewed. 38 U.S.C.A. § 5108 (West 2002). New evidence means existing evidence not previously submitted to agency decision makers. 38 C.F.R. § 3.156(a) (2007). Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. Id. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final decision of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. Id. In addition to establishing entitlement to service connection on a direct basis, hypertension may also be service-connected if it became manifest to a degree of 10 percent within one year of separation from service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113 (West 2002); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2007). Pursuant to VA regulations, hypertension means that diastolic blood pressure is predominantly 90mm or greater. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2007). Evidence before the RO in August 1992 consisted of the veteran's service medical records, which are devoid of reference to complaint of, or treatment for, high blood pressure or hypertension. At the time of his retirement from active service, the veteran denied high or low blood pressure and a clinical evaluation of his vascular system was normal. See April 1991 report of medical examination. The evidence also included several VA compensation and pension (C&P) examination reports, during which there was no complaint of high blood pressure or hypertension made by the veteran or any notation related to either condition made by the examining physicians. See February 1968 (blood pressure readings of 108/70, 114/72 and 110/70) and February 1974 reports (blood pressure 120/80). During a May 1992 VA C&P general medical examination, which was conducted in conjunction with his original claim, the veteran reported being told previously that he had hypertension. He denied being placed on any medication for this condition or having any recent blood pressure readings, but indicated that he had dieted and used exercise to control the condition. Examination of the veteran's cardiovascular system was normal and his sitting blood pressure was 140/80. There was no diagnosis of high blood pressure or hypertension made. Evidence added to the record since the RO's 1992 decision includes both VA and private treatment records, which contain diagnoses of hypertension. See e.g., July 2002 record from Decatur VA outpatient clinic; April 2004 record from Dr. Woodard. These records are new, as they were not of record when the RO issued its August 1992 rating decision. They are also material, as they raise a reasonable possibility of substantiating the claim. Having found that new and material evidence has been presented, the claim for entitlement to service connection for hypertension is reopened for review on the merits. The veteran contends that he has hypertension as a result of active service, and asserts this condition is clearly indicated in his service medical records. The veteran reports that the stress of military life and worry over his health caused his hypertension. He also asserts that hypertension is directly related to high cholesterol as it is indicative of high levels of fat in the blood which causes hardening of the arteries and results in hypertension. See March 2002 VA Form 21-4138; January 2003 NOD; September 2003 VA Form 9; February 2004 transcript. The Board finds that service connection for hypertension must be denied. As an initial matter, and as noted above, the veteran's service medical records are devoid of reference to complaint of, or treatment for, high blood pressure or hypertension. His blood pressure was measured throughout both periods of active service; while there are several diastolic pressure readings of 90, the diastolic blood pressure was not predominantly 90mm or greater throughout service. See service medical records. At the time of his retirement, the veteran denied having high or low blood pressure, his blood pressure was measured at 124/77, and there was no notation related to high blood pressure or hypertension. See April 1991 report of medical examination. Moreover, there is no evidence of hypertension within one year of the veteran's separations from service. See 38 U.S.C.A. §§ 1112, 1137 (West 2002); 38 C.F.R. §§ 3.307, 3.309 (2007); February 1968, February 1974 and May 1992 VA C&P examination reports. The Board acknowledges the veteran's contention that he was warned of elevated blood pressure on several occasions, and also acknowledges the more recent post-service medical evidence that reveals he has been diagnosed with hypertension. See February 2004 transcript; VA treatment records; records from Dr. Woodard. There is no competent medical evidence of record, however, that establishes a link between hypertension and service. The veteran's own statements that hypertension had its onset during service or is related to his active service are not competent. In the absence of competent medical evidence showing that the veteran's hypertension had is onset during service or is related to service, service connection is not warranted and the claim must be denied. See 38 C.F.R. § 3.303 (2007). At this juncture, the Board must also acknowledge the veteran's contention that his diagnosed hypertension is directly related to high cholesterol. In addition to establishing service connection on a direct or presumptive basis, service connection may also be granted on a secondary basis for a disability that is proximately due to or the result of an established service-connected disorder. 38 C.F.R. § 3.310 (2007). Similarly, 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. Allen v. Brown, 7 Vet. App. 439 (1995). In this case, however, the veteran's claim for entitlement to service connection for high cholesterol has been denied on the basis that high cholesterol is not a disability for which VA compensation is payable. As such, the veteran's claim that high cholesterol has caused hypertension cannot be allowed. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. § 3.102 (2007). III. Duties to notify and assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2007); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2007); 38 C.F.R. § 3.159(b) (2007); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Proper notice must also ask the claimant to provide any evidence in his or her possession that pertains to the claim. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). During the pendency of the veteran's appeal, the Court of Appeals for Veterans' Claims (Court) issued a decision regarding the notice requirements associated with claims to reopen. VA must notify a claimant of the evidence that is needed to reopen the claim as well as the evidence that is needed to establish entitlement to the underlying claim. More specifically, the RO must provide notice as to what evidence is necessary to substantiate the element(s) of service connection that was found insufficient in its previous denial. Kent v. Nicholson, 20 Vet. App. 1 (2006). As the claim for service connection for hypertension has been reopened, any defect in the notice as required by Kent would be harmless. Prior to the issuance of the January 2003 rating decision that is the subject of this appeal, the veteran was advised of the evidence necessary to substantiate a claim for service connection and of his and VA's respective duties in obtaining evidence. See March 2002 letter. Although the veteran may not have been specifically informed of the need to provide any evidence in his possession that pertains to the claim, the March 2002 letter did ask him to send information describing additional evidence, or the evidence itself, to the RO, which would include evidence in his possession. Accordingly, the duty to notify has been fulfilled concerning these claims. The veteran was also provided notice of the appropriate disability rating and effective date of any grant of service connection, as required by Dingess v. Nicholson, 19 Vet. App. 473 (2006). See March 2006 letter. VA also has a duty to assist claimants in obtaining evidence needed to substantiate a claim. 38 U.S.C.A. § 5103A (West 2002); 38 C.F.R. § 3.159 (2007). This duty has also been met, as the veteran's service medical, VA, and private treatment records have been associated with the claims folder. The veteran was afforded a VA examination in conjunction with his original claim, which the Board acknowledges was conducted prior to the veteran being diagnosed with hypertension. See May 1992 VA examination report. Remand for a medical opinion as to the etiology of hypertension is not warranted, however, because the service medical records are negative for any complaints or findings of high blood pressure or hypertension, there is no evidence of continuity of symptomatology, and there is no medical evidence suggesting a nexus to service. See 38 C.F.R. § 3.159(c)(4) (2007). The record does not suggest the existence of additional, pertinent evidence that has not been obtained. For the reasons set forth above, and given the facts of this case, the Board finds that no further notification or assistance is necessary, and deciding the appeal at this time is not prejudicial to the veteran. ORDER Service connection for high cholesterol is denied. The reopened claim for service connection for hypertension is denied. ____________________________________________ P.M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs