Citation Nr: 0812211 Decision Date: 04/11/08 Archive Date: 04/23/08 DOCKET NO. 02-17 941 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD), as secondary to diabetes mellitus. 2. Entitlement to service connection for glaucoma, as secondary to diabetes mellitus. 3. Entitlement to service connection for exogenous obesity, as secondary to diabetes mellitus. 4. Entitlement to service connection for hypothyroidism, as secondary to diabetes mellitus. 5. Entitlement to service connection for hyperlipidemia, as secondary to diabetes mellitus. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Heather M. Gogola, Associate Counsel INTRODUCTION The veteran served on active duty from February 1962 to February 1964. The veteran also has served with the National Guard. This matter is before the Board of Veterans' Appeals (Board) on appeal from an August 2002 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), in Pittsburgh , Pennsylvania. The case was remanded in June 2004. The record on appeal raises the issue of entitlement to service connection for erectile dysfunction secondary to diabetes mellitus. This issue, however, is not currently developed or certified for appellate review. Hence, it is referred to the RO for appropriate action. FINDINGS OF FACT 1. The veteran's COPD is not related to his service- connected diabetes mellitus. 2. The veteran's open-angle glaucoma, if extant, is not related to his service-connected diabetes mellitus. 3. The preponderance of the evidence is against finding that exogenous obesity is related to his diabetes mellitus. 4. The veteran has hypothyroidism that is not related to his service-connected diabetes mellitus. 5. Hyperlipidemia is not a recognized disease or disability. CONCLUSIONS OF LAW 1. COPD was not incurred in, or aggravated by active service, nor is such disorder proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310 (2007). 2. Glaucoma was not incurred in, or aggravated by active service, nor is such disorder proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 3. Exogenous obesity was not incurred in, or aggravated by active service, nor is such disorder proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 4. Hypothyroidism was not incurred in, or aggravated by active service, nor is such disorder proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. 5. Hyperlipidemia was not incurred in, or aggravated by active service, nor is such disorder proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. §§ 1131, 5103, 5103A, 5107(b); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met. There is no issue as to providing an appropriate form or completeness of the application. VA notified the veteran in May 2001, July 2004 and July 2005 correspondence of the information and evidence needed to substantiate and complete a claim, to include notice of what part of that evidence is to be provided by the claimant and notice of what part the VA will attempt to obtain. VA has fulfilled its duty to assist the claimant in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examination. VA informed the claimant of the need to submit all pertinent evidence in his possession, and provided adequate notice of how disability ratings and effective dates are assigned. While the appellant did not receive full notice prior to the initial decision, after pertinent notice was provided the claimant was afforded a meaningful opportunity to participate in the adjudication of the claims, and the claims were readjudicated in an October 2007 supplemental statement of the case. The claimant was provided the opportunity to present pertinent evidence and testimony. In sum, there is no evidence of any VA error in notifying or assisting the appellant that reasonably affects the fairness of this adjudication, and the evidence detailed above rebuts any suggestion that the veteran was prejudiced by VA's action. Background Service connection will be granted if it is shown that the veteran suffers from disability resulting from an injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in active military service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. The term "active military, naval or air service" includes active duty, any period of active duty for training during which the individual concerned was disabled or died from a disease or injury incurred or aggravated in the line of duty, and any period of inactive duty training during which the individual concerned was disabled or died from an injury incurred or aggravated in the line of duty. 38 U.S.C.A. § 101(24) (West 2002). To establish service connection, there must be: (1) a medical diagnosis of a current disability; (2) medical or, in certain cases, lay evidence of in-service occurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between an in-service injury or disease and the current disability. Hickson v. West, 12 Vet. App. 247, 252 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd 78 F.3d 604 (Fed. Cir. 1996). Service connection may be granted for a disability that is proximately due to, or the result of, a service-connected disability. 38 U.S.C.A. § 3.310 (2005). To establish entitlement to service connection on a secondary basis, there must be competent medical evidence of record establishing that a current disability is proximately due to, or the result of, a service-connected disability. Lantham v. Brown, 7 Vet. App. 359, 365 (1995). Additionally, service connection is permitted for aggravation of a non-service-connected disability caused by a service- connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995). The veteran contends that the claimed conditions are related to his service-connected diabetes mellitus. He does not contend that his above-listed disabilities occurred during service. The veteran's service medical records are silent to any respiratory, thyroid, or eye complaints. Additionally, there were no complaints or diagnoses for COPD, hypothyroidism, or glaucoma during active service. Reserve records noted that the veteran consistently did not meet weight criteria and was overweight from November 1987 to November 1992. There is, however, no evidence that the veteran was diagnosed with exogenous obesity during any term of active duty, or active duty for training. There further is no evidence that exogenous obesity is due to an injury incurred during a term of inactive duty training. VA treatment records dated between January 1984 and July 1993 noted treatment for hypothyroidism, and diabetes mellitus. A chest x-ray dated January 1984 noted no evidence of active pulmonary disease. Records from Dr. C.T.J., indicate primary care treatment from July 1992 to May 2001, for diabetes mellitus, COPD, and hyperlipidemia. Further, they note that medications were prescribed to treat the veteran's thyroid and COPD. A December 2000 treatment record indicated complaints of shortness of breath possibly due to weight and deconditioning. The veteran was afforded a VA examination in May 2001. The examiner noted a pertinent history of diabetes mellitus, COPD, glaucoma, obesity, hypothyroidism, and hyperlipidemia. The examiner noted a history of glaucoma for which the veteran uses drops on a daily basis. A March 2002 letter from Northwest Physicians Associates noted that the veteran's diabetes complications included coronary artery disease, cardiomyopathy, and congestive heart failure. The physician also noted a past medical history of hyperlipidemia, COPD, and hypothyroidism, as well as some glaucoma. The examiner did not state that of these were related to diabetes mellitus. The veteran was afforded a hearing before the undersigned Veterans Law Judge in December 2003. The primary testimony at the hearing regarded the veteran's handling of chemicals, including Agent Orange during his active service. The veteran, however, also stated that his heart doctor stated that diabetes could have caused his other disabilities. VA treatment records dated February 2002 to November 2005 reflected treatment for diabetes mellitus, coronary artery disease, hyperlipidemia, hypothyroidism, COPD, glaucoma, back pain, and gout. The veteran was afforded a VA heart examination in February 2006. The examiner noted that the veteran was obese with a history of diabetes mellitus, severe restrictive lung disease, and a history of glaucoma. The examiner diagnosed, in pertinent part, glaucoma, severe restrictive lung disease, hypothyroidism, diabetes mellitus, type 2, and hyperlipidemia. The examiner did not address the etiology of any of these disorders, and he did not link the disorders to diabetes. The veteran was also afforded a VA eye examination in February 2006. Examination revealed incipient cataracts which were not visually significant. The examiner also noted a history of primary open-angle glaucoma, based on the appearance of his optic disk, however, the veteran's intraocular pressures were currently normal with his current glaucoma treatment. In September 2006, the veteran was returned for another VA eye examination. The examiner noted that the veteran's private ophthalmologist diagnosed him with cataracts and glaucoma. The veteran denied vision problems, and diplopia, but admitted to some intermittent injection and tearing. The impressions were diabetes without retinopathy in the left eye, background diabetic retinopathy of the right eye, primary open-angle glaucoma by history, cataracts bilaterally, vitreous floaters, and dry syndrome. Goldman visual field examination was completely normal in either eye. Intraocular pressures were normal and the veteran had some cupping of the optic nerves. The examiner stated that it was difficult for him to say that the veteran actually had primary open-angle glaucoma based on normal Goldman field tests during the current VA examination and an examination dated February 2006. The examiner stated that he could not see how glaucoma could be service connected. In January 2007, the veteran was afforded another VA eye examination. Following the examination the examiner diagnosed diabetes without retinopathy of the left eye, minimal background diabetic retinopathy of the right eye, primary open-angle glaucoma by history, and cataracts bilaterally. The veteran submitted private treatment records from B.D.S., M.D., dated April 2003 through June 2007 reflecting treatment for ocular hypertension and cataracts. The veteran was afforded an examination in August 2007. The examiner was requested to opine whether the veteran's claimed disorders were "in any way secondary to" diabetes mellitus. The examiner noted a history of diabetes mellitus dating to 1993 for which he took regular insulin. The veteran reported hypothyroidism for several years for which he takes levothyroxine. The veteran admitted easy fatigability, but denied excessive thirst or frequency of urination. The examiner noted that the veteran was a very obese individual. The veteran also complained of shortness of breath when walking only 20 feet and used two liters of oxygen a day. There were no pulmonary rales. The examiner noted that previous pulmonary function tests indicated obstructive lung disease and current tests suggested severe obstructive lung disease. The veteran also reported a history of glaucoma and cataracts. The examiner's pertinent impressions were a history of glaucoma and cataracts not related to diabetes mellitus; exogenous obesity not related to diabetes mellitus; hyperlipidemia not related to diabetes; chronic obstructive pulmonary disease with severe obstructive lung defect, not related to diabetes mellitus; and hypothyroidism controlled with medication, not related to diabetes mellitus. While the medical evidence shows current COPD and hypothyroidism, there is no competent evidence of record that either of these disorders are related to his service- connected diabetes mellitus. In contrast the August 2007 VA examiner opined that the veteran's COPD and hypothyroidism were not related to his diabetes mellitus. Thus, the evidence of record does not show that either COPD or hypothyroidism were caused by or aggravated by his service- connected diabetes mellitus, or by any other incidence of service. Hence, service connection for these disorders is denied. Regarding the claim of entitlement to service connection for glaucoma, the Board assumes that the veteran actually has glaucoma, although the record is not completely clear on this point. Where the record, however, is clear is that the only competent evidence addressing the etiology of this disorder was provided in August 2007 when the VA examiner specifically found that glaucoma is not related to diabetes mellitus. There is no competent evidence to the contrary. Hence, service connection for glaucoma is denied. While the veteran currently has a diagnosis of hyperlipidemia, this is not a disability rather, 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). Moreover, the only medical opinion addressing the etiology of this finding found no relationship between this laboratory sign and diabetes. Therefore, service connection for hyperlipidemia is denied. With respect to the claim of entitlement to service connection for obesity the record shows that the veteran was found to be overweight while performing reserve service. As noted above, however, service connection may only be granted for an injury incurred while serving in an inactive duty for training capacity, and there is no competent evidence that exogenous obesity was incurred while performing a term of active duty for training. Finally, it is noted that the only competent evidence addressing the etiology of the appellant's obesity comes from the August 2007 report which found no relationship between exogenous obesity and diabetes. Therefore, service connection for exogenous obesity is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the appellant's claims, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet.App. 49 (1990). ORDER Entitlement to service connection for COPD, glaucoma, exogenous obesity, hypothyroidism, and hyperlipidemia each claimed to be secondary to diabetes is denied. ____________________________________________ DEREK R. BROWN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs