Citation Nr: 0810268 Decision Date: 03/28/08 Archive Date: 04/09/08 DOCKET NO. 04-29 049 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for hyperlipidemia, to include as secondary to service-connected diabetes mellitus and/or due to exposure to herbicides (Agent Orange). 2. Entitlement to service connection for chloracne, to include as secondary to service-connected diabetes mellitus and/or due to exposure to herbicides. 3. Entitlement to service connection for peripheral neuropathy of the upper and lower extremities, to include as secondary to service-connected diabetes mellitus and/or due to exposure to herbicides. 4. Entitlement to service connection for essential tremors, to include as secondary to service-connected diabetes mellitus and/or due to exposure to herbicides. 5. Entitlement to service connection for hypogonadotrophic hypogonadism with erectile dysfunction, to include as secondary to service-connected diabetes mellitus and/or due to exposure to herbicides. REPRESENTATION Appellant represented by: AMVETS WITNESSES AT HEARING ON APPEAL The veteran and his spouse ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from December 1965 to December 1967. These matters come to the Board of Veterans' Appeals (Board) following a January 2004 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In July 2007, the veteran testified during a hearing before the undersigned Acting Veterans Law Judge sitting at the RO. As noted on the title page, the veteran is seeking service connection for a number of disabilities, to include as due to exposure to herbicides. The Board notes that the United States Court of Appeals for Veterans Claims (Court) issued a decision in Haas v. Nicholson, 20 Vet. App. 257 (2006), that reversed a decision of the Board that had denied service connection for disabilities claimed as a result of exposure to herbicides. VA has appealed that decision to the United States Court of Appeals for the Federal Circuit. To avoid burdens on the adjudication system, delays in the adjudication of other claims, and unnecessary expenditure of resources through remand or final adjudication of claims based on a Court holding that may ultimately be overturned on appeal, on September 21, 2006, the Secretary of Veterans Affairs imposed a stay at the Board on the adjudication of claims affected by Haas. The Court temporarily stayed the adjudication of cases before the Board and RO that are potentially affected by Haas. See Ribaudo v. Nicholson, 21 Vet. App. 16 (2007) (Per curiam order). The specific claims affected by the stay include those based on herbicide exposure in which the only evidence of exposure is receipt of the Vietnam Service Medal or service on a vessel off the shore of Vietnam. The Court dissolved the temporary stay, but granted the Secretary's motion to stay such cases, in part. Ribaudo v. Nicholson, 21 Vet. App. 137 (2007). Exceptions to the stay include cases where motions to advance on the Board's docket have been granted, where the Secretary decides to order equitable relief, and where the Court has ordered VA to apply Haas and the Secretary has not appealed. Id. The veteran is noted to have served in the United States Army and to have received the Vietnam Service Medal, the Vietnam Campaign Medal, and the Combat Infantryman Badge. The Board finds that the evidence clearly demonstrates that the veteran served in the Republic of Vietnam while on active duty. As such, the veteran's claims on appeal are not subject to the Haas stay. The Board notes that during the July 2007 travel board hearing, the veteran's representative testified that the veteran was unemployable due to service-connected disabilities. The Board infers a claim for entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU). As the claim for a TDIU has not been adjudicated by the RO, it is not before the Board; hence, it is referred to the RO for appropriate action. The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the veteran if further action is required. REMAND The Board initially notes that in statements received by the RO in October 2003 and December 2003, the veteran raised additional theories of entitlement by which he believed his claims on appeal should be granted-on a secondary basis to his service-connected diabetes mellitus and as due to exposure to herbicides. Likewise, a report of November 2003 "endocrine diseases" VA examination reflects the examiner's report that the veteran associated most, if not all, his disabilities, with exposure to "Agent Orange". In a July 2004 VA Form 9 (Appeal to Board of Veterans' Appeals), the veteran again raised the theory that his disabilities were due to exposure to herbicides. In light of his service in the Republic of Vietnam, as noted above, the veteran is presumed to have been exposed to herbicides in Vietnam. See 38 U.S.C.A. § 1116(f) (West 2002 & Supp. 2007)); 38 C.F.R. § 3.307(a)(6)(iii) (2007). In reviewing the adjudicative actions of record, the Board notes that the RO did not consider each of the veteran's claims on appeal under the raised theories of entitlement. Accordingly, the claims on appeal must be remanded so that all pertinent theories of entitlement may be considered, in the first instance, to avoid any prejudice to the veteran. See, e.g., Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board also notes that additional evidentiary development is warranted in this case. A review of the medical evidence of record reflects a September 2003 VA progress note in which a VA physician reported that the veteran had "Agent Orange disease with peripheral neuropathy, diabetes, hyperlipidemia. Possible chloracne; hypogonadotrophic hypogonadism, and essential tremor." In VA progress notes dated in November 2004 and January 2005, the same VA physician noted a finding of Agent Orange syndrome with chloracne, essential tremor, hypogonadotrophic hypogonadism, peripheral neuropathy, and hyperlipidemia. Likewise, a January 2005 VA psychiatry note reflects a psychiatrist's opinion that, "[The veteran] has Agent Orange exposure, diabetes, peripheral neuropathy, hypogonadism, probably due to Agent Orange." Otherwise, a review of the claims file reflects competent medical evidence that the veteran does not have peripheral neuropathy or chloracne. Secondary service connection may be granted for disability that is proximately due to or the result of service-connected disability. See 38 C.F.R. § 3.310(a) (2007). The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a nonservice- connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). Recently, a provision of 38 C.F.R. § 3.310 was amended. See 71 Fed. Reg. 52744-47 (Sept. 7, 2006) (as codified at 38 C.F.R. § 3.310(b) (2007)). Although VA has indicated that the purpose of the regulation was merely to apply the Court's ruling in Allen, it was made clear in the comments to the regulation that the changes were intended to place a burden on the claimant to establish a pre-aggravation baseline level of disability for the non-service-connected disability before an award of service connection based on aggravation may be made. In a report of November 2003 VA "endocrine diseases, miscellaneous" examination, the examiner opined that the veteran's hypogonadotrophic hypogonadism with erectile dysfunction was not proximately due to service-connected diabetes mellitus. The examiner did not otherwise comment on whether the service-connected diabetes mellitus aggravated the veteran's hypogonadotrophic hypogonadism with erectile dysfunction or whether the disability was due to exposure to herbicides. Likewise, in a report of November 2003 VA "peripheral nerves" examination, the examiner made similar findings, or lack thereof, with respect to the veteran's claim for service connection for essential tremors. The Court has held that once VA undertakes the effort to provide an examination when developing a claim for service connection, even if not statutorily obligated to do so, it must provide an adequate one. See Woehlaert v. Nicholson, 21 Vet. App. 456, 464 (2007), citing Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); see also Bowling v. Principi, 15 Vet. App. 1, 12 (2001) (emphasizing the Board's duty to return an inadequate examination report "if further evidence or clarification of the evidence . . . is essential for a proper appellate decision"). Therefore, in light of the findings by the VA physician concerning Agent Orange and the veteran's disabilities, along with the incomplete medical opinions provided by the VA examiners in November 2003, the claims file should be returned to those VA examiners who performed examinations of the veteran in November 2003 for hypogonadotrophic hypogonadism with erectile dysfunction and for essential tremors, for supplemental opinions. In this case, the examiner who performed the November 2003 VA "endocrine diseases, miscellaneous" examination should opine as to whether the veteran's hypogonadotrophic hypogonadism with erectile dysfunction was made worse by service-connected diabetes mellitus, or whether that disability is due to exposure to herbicides in Vietnam. Likewise, the examiner who conducted the November 2003 VA "peripheral nerves" examination should offer a similar opinion with respect to essential tremors. Arrangements should be made for the veteran to undergo examination only if the VA examiners are unavailable or if such examination(s) is needed to answer the questions posed above. 38 U.S.C.A. § 5103A (West 2002). Additionally, the Board also notes that hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in the plasma. Thus, hyperlipidemia is a laboratory finding and is not a disability in and of itself 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 38 C.F.R. § 4.1; Allen v. Brown, 7 Vet. App. 439, 448 (1995). Here, as noted above, a VA physician has related the veteran's hyperlipidemia to exposure to herbicides in service. There is no medical evidence of record that rebuts or contradicts the VA physician's opinion. The Court has stated that, when the medical evidence is inadequate, VA must supplement the record by seeking an advisory opinion or ordering another medical examination. See Colvin v. Derwinski, 1 Vet. App. 171 (1991). In this regard, the Court held that the Board was prohibited from making conclusions based on its own medical judgment. Id. In light of the above, the Board believes the veteran should be afforded an appropriate VA medical examination and the examiner requested to provide a well reasoned medical opinion addressing the nature and etiology of the veteran's hyperlipidemia to include whether hyperlipidemia is proximately due to or aggravated by service-connected diabetes mellitus, or due to exposure to herbicides. Additionally, the Board notes that hyperlipidemia is a significant risk factor for the subsequent development of coronary artery disease. The medical evidence reflects that the veteran has been diagnosed with coronary artery disease. Therefore, the examiner should also offer an opinion on any relationship between the veteran's hyperlipidemia and any diagnosed coronary artery disease. The above opinion should be based upon consideration of the veteran's documented history and assertions through review of the claims file. See 38 U.S.C.A. § 5103A(d) (West 2002). The Board emphasizes to the veteran that failure to report to any scheduled examination, without good cause, may result in a denial of his claim(s). See 38 C.F.R. § 3.655(b) (2007). The actions identified herein are consistent with the duties imposed by the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A (West 2002 & Supp. 2007); 38 C.F.R. § 3.159 (2007). However, identification of specific actions requested on remand does not relieve VA of the responsibility to ensure full compliance with the Act and its implementing regulations. Hence, in addition to the actions requested above, any other development and/or notification action deemed warranted under the VCAA should be undertaken prior to adjudicating the claims on appeal. In view of the foregoing, the case is REMANDED for the following actions: 1. The veteran and his representative should be sent a letter requesting that the veteran provide sufficient information, and if necessary, authorization to enable it to obtain any additional pertinent evidence not currently of record regarding his claims on appeal. The veteran should be invited to submit any pertinent evidence in his possession, and the letter should explain the type of evidence that is his ultimate responsibility to submit. 2. Following the development above, the veteran's claims file should be forwarded to the examiner who performed the November 2003 VA "endocrine diseases" examination. Following a review of the claims file, that examiner should be asked to provide a supplemental opinion. The examiner should opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's hypogonadotrophic hypogonadism with erectile dysfunction was aggravated (i.e., permanently worsened) by service-connected diabetes mellitus, or whether hypogonadotrophic hypogonadism with erectile dysfunction is due to exposure to herbicides. An explanation for the opinion provided should be set forth. (An additional examination should be scheduled only if the VA examiner who conducted the "endocrine diseases, miscellaneous" examination in November 2003 is unavailable or such examination is needed to answer the questions posed above.) 3. The veteran's claims file should be forwarded to the examiner who performed the November 2003 VA "peripheral nerves" examination. Following a review of the claims file, that examiner should be asked to provide a supplemental opinion. The examiner should opine as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's essential tremors were aggravated (i.e., permanently worsened) by service-connected diabetes mellitus, or whether essential tremors are due to exposure to herbicides. An explanation for the opinion provided should be set forth. (An additional examination should be scheduled only if the VA examiner who conducted the November 2003 "peripheral nerves" examination is unavailable or such examination is needed to answer the questions posed above.) 4. The veteran should be afforded a VA heart examination. The examiner should be asked to review the claims file, to include those VA progress notes in which the veteran's hyperlipidemia was identified as being related to exposure to herbicides. The examiner should provide a well reasoned medical opinion addressing the etiology of the veteran's hyperlipidemia and whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that hyperlipidemia is proximately due to or aggravated by (i.e., permanently worsened) service-connected diabetes mellitus, or due to exposure to herbicides. Furthermore, the examiner should identify whether the veteran has coronary artery disease, and if so, whether it is as least as likely as not that the veteran's coronary artery disease is due to hyperlipidemia. The examiner should set forth all findings along with the complete rationale for the opinions expressed. 5. After undertaking any other development deemed appropriate, the veteran's claims on appeal should be re- adjudicated in light of all pertinent evidence and legal authority. The adjudication should include specific consideration of all applicable theories of entitlement to service connection: as secondary to service-connected diabetes mellitus (on the basis of causation or aggravation), and due to exposure to herbicides. If the benefits sought are not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond before the record is returned to the Board for further review. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified. The veteran has the right to submit additional evidence and argument on the matter the Board has remanded to the RO. Kutscherousky v. West, 12 Vet. App. 369 (1999). This case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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. 2007). _________________________________________________ ROBERT C. SCHARNBERGER Acting Veterans Law Judge, Board of Veterans' Appeals Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2007).