Citation Nr: 1109149 Decision Date: 03/08/11 Archive Date: 03/17/11 DOCKET NO. 04-03 492A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for heart disease, to include as secondary to service-connected diabetes mellitus type II. 2. Entitlement to service connection for high cholesterol, to include as secondary to service-connected diabetes mellitus type II. 3. Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus type II and/or ischemic heart disease, diagnosed as coronary artery disease. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD A. Hinton, Counsel INTRODUCTION The Veteran served on active duty from October 1968 to May 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2003 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, which denied service connection for diabetes mellitus type II, and claimed related complications, to include hypertension, high cholesterol, and heart disease. The Veteran perfected an appeal as to the denial of service connection for these claimed disorders. In a May 2009 rating decision, the RO granted service connection for diabetes mellitus type II. Thereafter, in October 2009, the Board remanded the remaining issues for further development and the case now returns to the Board. However, as relevant to the issue of entitlement to service connection for hypertension, the Board finds that another remand is necessary in order to ensure compliance with due process considerations and, therefore, such issue is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDINGS OF FACT 1. The Veteran was exposed to herbicides during service in Korea. 2. The Veteran has a current diagnosis of coronary artery disease, which is included in VA's definition of ischemic heart disease. 3. Ischemic heart disease, diagnosed as coronary artery disease, is presumed to be a result of exposure to herbicides in Korea. 4. High cholesterol (hypercholesterolemia) is a laboratory finding, is not productive of functional impairment, and is not a disease for VA compensation purposes. CONCLUSIONS OF LAW 1. Ischemic heart disease, diagnosed as coronary artery disease, is presumed to have been incurred in service. 38 U.S.C.A. §§ 1110, 1116 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.303, 3.307, 3.309 (2010); 75 Fed. Reg. 14,391 (March 25, 2010); 75 Fed. Reg. 53,202 (August 31, 2010). 2. Service connection for high cholesterol is not warranted. 38 U.S.C.A. §§ 1110, 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.159, 3.303 (2010); 61 Fed. Reg. 20,440, 20,445 (May 7, 1996); Allen v. Brown, 7 Vet. App. 439, 448 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). In this decision, the Board grants service connection for ischemic heart disease, diagnosed as coronary artery disease, which represents a complete grant of the benefits sought on appeal regarding that claim. As such, no discussion of VA's duty to notify or assist is necessary on that claim. Relevant to the Veteran's claim of entitlement to service connection for high cholesterol, VA notified the Veteran of the information and evidence needed to substantiate and complete a claim by way of a number of letters provided in November 2002, May 2003, July 2009, and November 2009. These documents in combination provided notice of what part of that evidence is to be provided by the claimant, and notice of what part VA will attempt to obtain. The AOJ informed the Veteran of the specific criteria to substantiate his claim for service connection, to include on a direct and secondary basis. The AOJ has also provided adequate notice of how disability ratings and effective dates are assigned in accordance with Dingess/Hartman, supra. The claim was most recently readjudicated in a March 2010 supplemental statement of the case, thus curing any defect with respect to the timing of the VCAA notice. See Mayfield v. Nicholson, 444 F. 3d 1328, 1333-34 (Fed. Cir. 2006); Prickett v. Nicholson, 20 Vet. App. 370 (2006). Moreover, to the extent the Veteran did not receive full notice prior to the initial decision, after pertinent notice was provided, he was afforded a meaningful opportunity to participate in the adjudication of the claim on appeal decided below. The claimant was provided the opportunity to present pertinent evidence. The record contains service treatment and personnel records, and records of medical treatment received from VA. The duty to assist includes the duty to provide a medical examination or obtain a medical opinion when such is necessary to make a decision on the claim, as defined by law. The Veteran was afforded a VA examination in February 2010. The Board finds that the findings from the examination reports are adequate for the purposes of deciding the claim on appeal. See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). The Board observes that the Veteran's claim was remanded in October 2009 in order to obtain any outstanding treatment records identified by the Veteran and afford him a VA examination. Thereafter, in a November 2009 letter, the AOJ requested that the Veteran identify all treatment providers for his claimed disorders, to which he did not respond, and obtained outstanding VA treatment records. Additionally, as indicated in the preceding paragraph, the Veteran was afforded a VA examination in February 2010. Therefore, the Board finds that the AOJ substantially complied with the October 2009 remand orders such that no further action is required in this regard. See D'Aries v. Peake, 22 Vet. App. 97, 106 (2008); Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (remand not required under Stegall v. West, 11 Vet. App. 268 (1998), where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002). In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. VA has fulfilled its duty to assist the claimant by obtaining identified and available evidence needed to substantiate the claim, and, as warranted by law. Significantly, the Veteran has not identified, and the record does not otherwise indicate, that any additional evidence exists that has not been obtained and would be necessary for a fair adjudication of the claim. Hence, no further notice or assistance is required to fulfill VA's duty to assist the Veteran in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). II. Service Connection for Heart Disease The Veteran claims entitlement to service connection for a heart disease, in part on the basis that he was exposed to herbicides while serving in Korea and that he currently has a diagnosis of ischemic heart disease, i.e., coronary artery disease. Therefore, he claims that presumptive service connection is warranted for his ischemic heart disease, diagnosed as coronary artery disease. The Board notes that the Veteran has, in the alternative, alleged entitlement to service connection for heart disease as secondary to his service-connected diabetes mellitus type II. However, as service connection for ischemic heart disease is granted herein on a presumptive basis, the Board need not reach a determination with regard to the Veteran's alternative theory of entitlement. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). VA regulations provide that a Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period from January 9, 1962, to May 7, 1975, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307(a)(6)(iii). The Veteran did not have service in Vietnam, however, therefore exposure to Agent Orange may not be presumed on that basis. Here the Veteran does not claim exposure as a result of service in Vietnam, rather he claims that he was exposed to herbicides including Agent Orange while serving in Korea. The Veteran's DD Form 214 shows that he served from October 1968 to May 1971. Service personnel records show that he had almost 20 months of foreign service with United States Army Pacific (USARPAC), and served in Korea beginning July 1969. His last duty assignment was with Headquarters and Headquarters Battery (HHB), 5th Battalion, 38th Artillery, 2nd Infantry Division, Eighth Army. The Department of Defense (DOD) has confirmed that Agent Orange was used along the Korean DMZ (demilitarized zone) from April 1968 through July 1969. Exposure to Agent Orange can be conceded for Veterans who were assigned to certain units during this period. These units include elements of the 2nd, 7th, 9th, 17th, 23rd, 31st, 32nd, and 38th Infantry; the 7th and 10th Cavalry; the 72nd Armor; the 12th, 15th, 17th, 38th, and 31st Artillery; and the United Nations Command Security Battalion, Joint Security Area. See MR21-1MR, Part IV, Subpart ii, Chapter 2, Section C. If it is determined that a Veteran who served in Korea during this time period belonged to one of the units identified by DOD, then it is presumed that he or she was exposed to herbicides containing Agent Orange, and the presumptions outlined in 38 C.F.R. § 3.309(e) will apply. Id. In a letter with attachments received in June 2004 in response to an inquiry from the RO, the Director, U.S. Armed Services Center for Unit Records Research reported on the Veteran's unit history as it pertains to potential exposure to herbicides in Korea. These documents substantiate that the Veteran's unit in Korea (5th Battalion, 38th Artillery) served as a direct support for the 2nd Infantry Division. These documents confirmed that units assigned to the 2nd Infantry Division conducted operations in the DMZ, and that herbicides were used along the southern boundary of the DMZ during the period from 1967 to 1969. Based on the foregoing, the Board presumes that the Veteran was exposed to herbicides including Agent Orange while serving in Korea. Thus the presumptions outlined in 38 C.F.R. § 3.309(e) apply. Current VA regulations provide that the following diseases shall be service connected if the Veteran was exposed to an herbicide agent during active service, even though there is no record of such disease during service, and provided further that the requirements of 38 C.F.R. § 3.307(d) are satisfied: AL amyloidosis, chloracne or other acneform disease consistent with chloracne, type II diabetes mellitus, Hodgkin's disease, chronic lymphocytic leukemia, multiple myeloma, non-Hodgkin's lymphoma, acute and subacute peripheral neuropathy, porphyria cutanea tarda, prostate cancer, certain respiratory cancers, and soft tissue sarcoma. 38 C.F.R. § 3.309(e) (2010). On October 13, 2009, in accordance with authority provided in 38 U.S.C. § 1116, the Secretary of VA announced his decision to establish presumptions of service connection, based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era, for three new conditions: ischemic heart disease, Parkinson's disease, and B cell leukemias. On March 25, 2010, the Secretary published in the Federal Register a proposed rule that would amend 38 C.F.R. § 3.309(e) to establish a presumption of service connection for ischemic heart disease, Parkinson's disease, and B cell leukemias based upon exposure to herbicides used in the Republic of Vietnam during the Vietnam era. 75 Fed. Reg. 14,391. On August 31, 2010, the Secretary published in the Federal Register a final rule amending 38 C.F.R. § 3.309(e) to establish such presumptions. 75 Fed. Reg. 53,202. The final rule was effective August 31, 2010. In the proposed rule, which was ultimately adopted, VA noted that, according to Harrison's Principles of Internal Medicine (Harrison's Online, Chapter 237, Ischemic Heart Disease, 2008), IHD [ischemic heart disease] is a condition in which there is an inadequate supply of blood and oxygen to a portion of the myocardium; it typically occurs when there is an imbalance between myocardial oxygen supply and demand. Therefore, for purposes of the regulation, the term ''IHD'' [ischemic heart disease] includes, but is not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal's angina. Since the term refers only to heart disease, it does not include hypertension or peripheral manifestations of arteriosclerosis such as peripheral vascular disease or stroke. 75 Fed. Reg. 14,391, 14,393 (March 25, 2010). The record reflects that the Veteran has a diagnosis of coronary artery disease, which is included in VA's definition of ischemic heart disease. Specifically, a February 2010 VA examination report contains a diagnosis of coronary artery disease. Therefore, the Veteran's ischemic heart disease, diagnosed as coronary artery disease, is presumed to be a result of exposure to herbicides. Consequently, service connection for such disease is warranted. III. Service Connection for High Cholesterol The Veteran is claiming entitlement to service connection for high cholesterol. As reflected in the report of a February 2010 VA heart examination, the Veteran has been diagnosed with high cholesterol. By definition, hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypercholesterolemia, which is defined as excessive cholesterol in the blood. Dorland's Illustrated Medical Dictionary 899, 903 (31st ed. 2007). Hypercholesterolemia or elevated serum (blood) cholesterol is not a disability for which VA compensation benefits are payable. Diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities. See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Furthermore, the term "disability," as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). In this case, there is no indication that the Veteran's high cholesterol is manifested by such impairment. To the extent that the Veteran's high cholesterol is part of his diabetes mellitus and/or coronary artery disease, these diseases are now both service-connected. Therefore, to that extent, granting separate service connection for high cholesterol would constitute "pyramiding" of compensation, which is not permitted under the applicable regulation. See 38 C.F.R. § 4.14 (2010) (the evaluation of the same disability under various diagnoses is to be avoided). Nothing in the medical evidence on file reflects that the Veteran has a current or underlying disability manifested by high cholesterol that is not part of his already service-connected diabetes mellitus and/or coronary artery disease. To the extent the Veteran associates high cholesterol with his claim for service connection for hypertension, such claim is addressed in the remand below. There are no other symptoms, clinical findings, or other manifestations, or any deficits in bodily functioning associated with this laboratory finding of high cholesterol. As such, it is not a disability within the meaning of the law granting compensation benefits. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303; Allen, supra. The Veteran has not argued that his high cholesterol, a laboratory finding, is symptomatic and, to the extent that he is claiming high cholesterol as a manifestation of a disease (versus a risk factor in developing certain diseases), there is no evidence of any underlying disease that is not part of the service-connected diabetes mellitus type 2 and/or coronary artery disease, or the claimed hypertension addressed in the remand below. Moreover, VA examiners who examined the Veteran have not diagnosed a disability or disease they have opined to be manifested by an elevated serum (blood) cholesterol level. In the absence of proof of a current disability, there can be no valid claim. Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (indicating service connection presupposes a current diagnosis of the condition claimed). As high serum cholesterol is a laboratory result and does not represent a disability in and of itself, the Board finds that service connection for high cholesterol must be denied. Id.; see also 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303; 61 Fed. Reg. 20,440, 20,445 (May 7, 1996); Allen, supra. ORDER Service connection for ischemic heart disease, diagnosed as coronary artery disease, is granted. Service connection for high cholesterol is denied. REMAND In the decision above, the Board granted service connection for coronary artery disease. During the recent VA heart examination in February 2010, the examiner provided an opinion as to the likelihood that the Veteran's hypertension was due to his service-connected diabetes mellitus type II. However, the VA examiner did not address the relationship, if any, between the Veteran's now service-connected ischemic heart disease, diagnosed as coronary artery disease, and his hypertension. Therefore, given the complex nature of the pathophysiology and potential interrelationship of the diagnosed coronary artery disease and concomitant hypertension, the AOJ should now obtain an opinion as to the likelihood that the Veteran's hypertension is due to or aggravated by his service-connected ischemic heart disease, diagnosed as coronary artery disease. Additionally, the Board notes that the VA examiner at the February 2010 VA heart examination opined that the correlation between the Veteran's hypertension and his diabetes was the same as with respect to the Veteran's coronary artery disease. In essence, the examiner opined that he did not believe that the diabetes was aggravating the Veteran's hypertension; and he could not opine as to whether the hypertension was due to his diabetes without resorting to speculation. The examiner based that opinion primarily on the rationale that the Veteran's diabetes was of a mild nature and the Veteran had been able to maintain reasonable blood sugar control with oral medication for the previous ten years, suggesting the diabetes was not particularly severe or aggressive. However, review of the claims file shows that, prior to the February 2010 VA examination, the most recent VA clinical evidence regarding the Veteran's diabetes mellitus (in August 2009) included laboratory findings (hemoglobin A1C), which the treatment provider found to show poor control of the Veteran's diabetes mellitus. The finding at that time was that A1C was 8.2 percent in July 2009. The provider at that time recommended that the A1C should be less than 7 percent. Review of the record shows previous findings for A1C of 7.6 in September 2004, 8.2 in January 2008, and 7.4 in March 2008. Based on the August 2009 VA treatment provider's comments, these findings are above the recommended level, and, therefore, may, to some extent, reflect poor control. Therefore, after reviewing such laboratory findings, the examiner should again offer an opinion regarding whether the Veteran's hypertension was caused or aggravated by his diabetes mellitus type II. Based on the foregoing, the AOJ should arrange for an addendum opinion to be obtained, if feasible from the examiner who conducted the February 2010 VA heart examination, as ordered below. Prior to that, any additional VA treatment records generated since that examination should be obtained. Additionally, the Veteran should be provided with proper VCAA notice as to the information and evidence necessary to substantiate his claim of entitlement to service connection for hypertension as secondary to the now service-connected ischemic heart disease, diagnosed as coronary artery disease. Accordingly, the case is REMANDED for the following action: 1. The Veteran should be provided with proper VCAA notice regarding the evidence and information necessary to substantiate his claim of entitlement to service connection for hypertension as secondary to his now service-connected ischemic heart disease, diagnosed as coronary artery disease. 2. Obtain updated VA treatment records dated since February 2010. All reasonable attempts should be made to obtain any identified records. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C.A. § 5103A(b)(2) and 38 C.F.R. § 3.159(e). 3. After the above development has been completed, return the claims files to the examiner who conducted the February 2010 VA examination for heart disorders, if he is available; and if not, to an appropriate medical professional. Provide the examiner with the claims file and a copy of this REMAND for review of the record and to provide an addendum to the February 2010 VA examination for an opinion addressing the nature and etiology of any hypertension disorder diagnosed, pursuant to the questions below. Examination of the Veteran is not required unless the examiner deems additional examination necessary. The claims file should be made available to the examiner, who should review the entire claims folder in conjunction with this examination. This fact should be so indicated in the examination report. After review of the claims file's medical evidence of treatment for cardiovascular/hypertension symptomatology, and if deemed necessary, performing any necessary examination/studies, the examiner should provide a medical opinion as to whether it is at least as likely as not that the Veteran's hypertension was caused or aggravated by his service-connected ischemic heart disease, diagnosed as coronary artery disease, and/or diabetes mellitus type II, either singularly or jointly. In rendering an opinion, the examiner is requested to review the laboratory findings regarding the Veteran's diabetes mellitus type II. The rationale for any opinion expressed should be included in the examination report. 4. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The Veteran has the right to submit additional evidence and argument on the matter 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 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. 2010). ______________________________________________ A. JAEGER Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs