Citation Nr: 1124161	
Decision Date: 06/24/11    Archive Date: 06/29/11

DOCKET NO.  10-07 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUES

1.  Entitlement to service connection for hypertension, to include as secondary to service-connected diabetes mellitus.

2.  Entitlement to service connection for posttraumatic stress disorder (PTSD).

3.  Entitlement to service connection for glaucoma, left eye, to include as secondary to service-connected diabetes mellitus.

4.  Entitlement to service connection for tinnitus.

5.  Entitlement to service connection for high cholesterol.


REPRESENTATION

Appellant represented by:	The American Legion


WITNESSES AT HEARING ON APPEAL

Appellant and Appellant's Spouse


ATTORNEY FOR THE BOARD

A. Barone, Counsel


INTRODUCTION

The Veteran had active duty service from March 1970 to October 1971.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of a Department of Veterans Affairs (VA) Regional Office (RO).  A notice of disagreement was received in October 2009, a statement of the case was issued in January 2010, and a substantive appeal was received in February 2010.

The Veteran testified at a Board hearing in December 2010.  A transcript of this hearing is of record.

The issues of entitlement to service connection for hypertension, PTSD, glaucoma of the left eye, and tinnitus are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

Elevated cholesterol represents a laboratory finding and is not an actual disability in and of itself for which VA compensation benefits are payable.


CONCLUSION OF LAW

High cholesterol is not disease, disability, or injury for which applicable law permits the award of service connection.  38 U.S.C.A. §§ 1101, 1110, 1701(1) (West 2002); 38 C.F.R. §§ 3.303, 3.304 (2010).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Board acknowledges the Veterans Claims Assistance Act of 2000 (VCAA).  38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002).  This legislation provides, among other things, for notice and assistance to claimants under certain circumstances.  VA has issued final rules to amend adjudication regulations to implement the provisions of VCAA.  See 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a).  The intended effect of the regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim.

Duty to Notify

After reviewing the claims folder, the Board finds that the claimant has been notified of the applicable laws and regulations which set forth the necessary criteria for the benefits currently sought.  The claimant was informed of the information and evidence necessary to warrant entitlement to the benefits sought in a letter dated in October 2008.  Moreover, in this letter, the appellant was advised of the types of evidence VA would assist him in obtaining as well as his own responsibilities with regard to identifying relevant evidence.  See Quartuccio v. Principi, 16 Vet. App. 183 (2002); Charles v. Principi, 16 Vet. App. 370 (2002).  The Board notes that this letter was sent to the appellant prior to the September 2009 RO rating decision on appeal.  The VCAA notice was therefore timely.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).

The Board finds that all notices required by VCAA and implementing regulations were furnished to the appellant and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters.

During the pendency of this appeal, on March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued a decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), which held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim.  Those five elements include: 1) veteran status; 2) existence of a disability; 3) a connection between the veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability.  The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application.  Id. at 486.  Additionally, this notice must include notification that a disability rating and an effective date for the award of benefits will be assigned if the benefits are awarded.  Id. at 488.

In this case, the timely letter sent in October 2008 provided the notice contemplated by Dingess.  The appellant was provided with notice of the types of evidence necessary to establish a disability rating and an effective date for any rating that may be granted, and this letter explained how VA determines disability ratings and effective dates.

The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of his claims, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004).  In any event, the Veteran has not demonstrated any prejudice with regard to the content of the notice.  The U.S. Court of Appeals for the Federal Circuit previously held that any error in VCAA notice should be presumed prejudicial, and that VA must bear the burden of proving that such an error did not cause harm.  Sanders v. Nicholson, 487 F.3d 881 (2007).  However, the U.S. Supreme Court has recently reversed that decision, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2), which provides that, in conducting review of decision of the Board, a court shall take due account of rule of prejudicial error.  The Supreme Court in essence held that -except for cases in which VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim- the burden of proving harmful error must rest with the party raising the issue; the Federal Circuit's presumption of prejudicial error imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process, and determinations on the issue of harmless error should be made on a case-by-case basis.  Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

Duty to Assist

Furthermore, the Board finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations.  The record as it stands includes sufficient competent evidence.  All available pertinent records including in-service records, post-service VA reports,  and private records have been obtained.  Pertinent records in the custody of the Social Security Administration (SSA) have also been obtained and associated with the claims file.

There is no competent evidence that the Veteran's high cholesterol may be associated with his active service.  In any event, the Board notes that the claim of entitlement to service connection for high cholesterol must be denied on the basis that, as discussed below, elevated cholesterol is not recognized as a disability for VA benefits purposes.  Therefore, the claim does not present an indication of a current disability or persistent or recurrent symptoms of a disability.  Thus, the 'low threshold' standard as to when an examination to secure a nexus opinion is necessary is not met; development for a nexus examination in this matter is not necessary.  38 C.F.R. § 3.159(c)(4); McLendon v. Nicholson, 20 Vet App 79 (2006).

The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary.  See generally 38 C.F.R. § 3.159(c)(4).  No additional pertinent evidence has been identified by the claimant as relevant to this appeal.  Under these circumstances, no further action is necessary to assist the claimant with this appeal.

Analysis

The Veteran claims entitlement to service connection for high cholesterol.  The Veteran primarily contends that he has high cholesterol causally linked to his military service or to another allegedly service-connected disability.

Applicable law provides that service connection will be granted if it is shown that the Veteran suffers from disability resulting from an injury suffered or disease contracted in line of duty, or for aggravation of a preexisting injury or disease in the line of duty, in the active military, naval, or air service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303.  That an injury occurred in service alone is not enough; there must be chronic disability resulting from that injury.  If there is no showing of a resulting chronic condition during service, then a showing of continuity of symptomatology after service is required to support a finding of chronicity.  38 C.F.R. § 3.303(b).  Service connection may also 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).

The Veteran reports that he has high cholesterol.  As explained in his December 2010 Board hearing testimony, the Veteran does not contend that he was treated for any disability involving high cholesterol during service.  Rather, the Veteran contends that he currently has high cholesterol that is in some way related to his stress during service or to other allegedly service connected disabilities; the Veteran specifically identified hypertension (for which service connection is also contended) as allegedly connected with his high cholesterol.  The Veteran has not identified any other diagnosis (apart from what is otherwise contemplated in his other claims for service connection currently on appeal) as the basis of his express claim of entitlement to service connection for high cholesterol; the medical evidence of record does not otherwise associate a disability diagnosis with this claim of entitlement to service connection for high cholesterol.

However, elevated cholesterol is not recognized as a disability for VA benefits purposes.  See 38 U.S.C.A. §§ 101(16), 105(a), 1110; 38 C.F.R. § 3.303(c); see also 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).  The term 'disability' as used for VA purposes refers to impairment of earning capacity.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  The Court has also interpreted the requirement of current disability thus: "Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability.  See 38 U.S.C. § 1110.  In the absence of proof of a present disability there can be no valid claim."  Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Accordingly, an award of service connection for high cholesterol is not justified.


ORDER

Entitlement to service connection for high cholesterol is not warranted.  To this extent, the appeal is denied.


REMAND

Service Connection for Tinnitus

The Board finds that additional development is necessary to permit informed appellate review of the issue of entitlement to service connection for tinnitus in this case.

In disability compensation (service connection) claims, VA must provide a medical examination when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, and (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran's service or with another service-connected disability, but (4) insufficient competent medical evidence on file for the VA to make a decision on the claim.  McLendon v. Nicholson, 20 Vet. App. 79 (2006).

In this case, the Board finds that the evidence of record contains competent post-service evidence of a current chronic tinnitus disability; the Veteran is competent to report current symptoms of tinnitus.  The Veteran contends, as explained in his December 2010 hearing testimony, that he believes that his tinnitus is the result of noise exposure during his service in Vietnam.  Although the specific noise exposure and claimed tinnitus symptoms are not documented in the Veteran's service records, the Veteran served in a combat zone in Vietnam and testifies that he was near enough to explosions and combat noise to experience acoustic trauma, despite not actually participating in combat.  He has also testified that he experienced tinnitus during service.

The Board finds that the criteria of McLendon have been met.  It appears that there has been no VA examination conducted to specifically address the etiology of the Veteran's claimed current chronic tinnitus.  There is otherwise insufficient competent medical evidence on file to permit informed appellate review of the critical medical questions in this case at this time.  The Board notes that recent case law has held that 38 C.F.R. § 3.159(c)(4)(C) establishes a low threshold for satisfying the requirements to trigger the Secretary's duty to assist by providing a medical examination.  See McLendon v. Nicholson, 20 Vet. App. 79 (2006); Locklear v. Nicholson, 20 Vet. App. 410 (2006).

PTSD

The Veteran essentially claims that he has PTSD related to stressors during his service in Vietnam during the Vietnam war.  His claim has been denied to date for lack of corroboration of his claimed stressors.

The Board notes, however, that there was an amendment to 38 C.F.R. § 3.304(f) effective from July 13, 2010.  See 75 Fed. Reg. 39843 (July 13, 2010).  This amendment eliminated the requirement for corroboration that the claimed in-service stressor occurred if a stressor claimed by the Veteran is related to the Veteran's fear of hostile military or terrorist activity and a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA had contracted, confirms that the Veteran's symptoms are related to the claimed stressor, provided that the claimed stressor is consistent with the places, types, and circumstances of the Veteran's service.  Under the circumstances, the Board believes that the case must be returned to the RO for appropriate consideration under this recent amendment to 38 C.F.R. § 3.304(f).

Glaucoma of the Left Eye, and Hypertension

The Veteran's contentions and his December 2010 hearing testimony have expressed that "my only grief in all of this is that one [disability] may be related to the other, the reason I have what I'm going through.  I don't seriously know what's going on with me ...."  At the December 2010 Board hearing, the Veteran answered questions discussing the possibility that his glaucoma and his hypertension may be linked to his service connected diabetes mellitus.  The undersigned inquired as to whether the Veteran recalled any doctor expressing that his hypertension or glaucoma may have been caused by diabetes mellitus; the Veteran responded by indicating that he did not recall a doctor expressing such a link.  However, the Board does not believe that this answer adequately resolves the medical question of whether any medical link exists; it is unclear whether any doctor has been specifically asked to address the possibility of such a link.

The Board notes that review of the Veteran's VA treatment records reveals multiple instances in which the Veteran's glaucoma and hypertension are ambiguously discussed together with the diabetes mellitus, at least suggesting some medical significance to the diabetes mellitus in the medical consideration of treatment of the glaucoma and hypertension.  Examples include: a February 2009 VA treatment record showing that the Veteran's hypertension and eye health were assessed and discussed in conjunction with a consultation regarding diabetes; a February 2009 VA treatment record showing that the Veteran had undergone a diabetic eye examination but did not know the results, and was also evaluated for issues expressly involving his diabetes mellitus; an October 2009 VA treatment record concerned with the Veteran's hypertension noting that the history of hypertension is accompanied by a history of diabetes mellitus, hyperlipidemia, and glaucoma; and a December 2009 VA treatment report authorizing an eye examination to evaluate the Veteran's glaucoma with reference to his diabetes mellitus.

The Board takes judicial notice of the general knowledge that the systemic disease of diabetes mellitus can cause or aggravate problems with hypertension or eye disease.  Although not entirely clear, the Veteran's contentions and his medical treatment records lead the Board believes that the question of whether hypertension and/or left eye glaucoma have been caused or aggravated by service-connected diabetes mellitus is a part of this appeal.  There is currently inadequate competent medical evidence in this case to permit an informed determination as to whether the Veteran's hypertension and/or left eye glaucoma have been caused or aggravated by his service-connected diabetes mellitus.  

Since the Veteran's hypertension and left eye glaucoma may be related in part to service connected diabetes mellitus, the Board finds that a VA examination is warranted to determine whether or not the Veteran's hypertension and left eye glaucoma are related to service, to include as secondary to service connected diabetes mellitus.

Additionally, the Board notes that the Veteran should be provided with a VCAA letter providing him with the required notice appropriate for claims of service connection on a secondary basis.

Accordingly, the case is REMANDED for the following action:

1.  The RO should furnish the Veteran with VCAA secondary service connection notice for his claim.

2.  The Veteran should be scheduled for a VA examination to determine the nature, extent, and etiology of any currently manifested tinnitus.  The claims file must be made available to the examiner for review in connection with the examination.  After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether it is at least as likely as not (a 50% or higher degree of probability) that any current tinnitus is etiologically related to any event during service, including any noise exposure or in-service symptomatology.

3.  The Veteran should be scheduled for an appropriate VA PTSD examination by a VA psychiatrist or psychologist, or a psychiatrist or psychologist with whom VA has contracted.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  After examining the Veteran and reviewing the claims file, the examiner should offer an opinion as to whether the Veteran suffers from PTSD related to the Veteran's fear of hostile military activity.

4.  The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his hypertension.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  Any medically indicated special tests should be accomplished.  After reviewing the claims file and examining the Veteran, the examiner should respond to the following:

a)  Please state whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's hypertension first manifested during the Veteran's active duty service, was caused during the Veteran's active duty service, was permanently aggravated during the Veteran's active duty service, or is otherwise etiologically linked to the Veteran's service.  In answering this question, please discuss any relevant service and post-service medical records pertaining to the Veteran's hypertension or elevated blood pressure. 

b)  Please state whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's hypertension is due to or has been permanently aggravated by the Veteran's service connected diabetes mellitus.

5.  The Veteran should be scheduled for an appropriate VA examination to determine the nature and etiology of his glaucoma of the left eye.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  Any medically indicated special tests should be accomplished.  After reviewing the claims file and examining the Veteran, the examiner should respond to the following:

a)  Please state whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's glaucoma of the left eye first manifested during the Veteran's active duty service, was caused during the Veteran's active duty service, was permanently aggravated during the Veteran's active duty service, or is otherwise etiologically linked to the Veteran's service.  In answering this question, please discuss any relevant service and post-service medical records pertaining to the Veteran's left eye glaucoma or any pertinent left eye health issues. 

b)  Please state whether it is at least as likely as not (a 50% or higher degree of probability) that the Veteran's glaucoma of the left eye is due to or has been permanently aggravated by the Veteran's service connected diabetes mellitus.

6.  After completion of the above and any other development deemed necessary, the RO should review the claims file and adjudicate the Veteran's claims as appropriate.  If any claim on appeal remains denied, the Veteran and his representative should be furnished an appropriate supplemental statement of the case and be afforded an opportunity to respond thereto.  Thereafter, the case should be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the matter or matters 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 of Veterans' Appeals 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).


______________________________________________
ALAN S. PEEVY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs