Citation Nr: 1309680	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  08-14 261	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Montgomery, Alabama


THE ISSUES

1. Entitlement to service connection for elevated cholesterol.

2. Entitlement to service connection for sleep apnea.

3. Entitlement to service connection for a skin disorder.

4. Entitlement to service connection for an umbilical hernia.

5. Entitlement to service connection for bilateral pedal edema.

6. Entitlement to an initial compensable disability rating for residuals of a lacerated left hand, to include a scar.


REPRESENTATION

Appellant represented by:	Veterans of Foreign Wars of the United States


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from April 1978 to November 1981 and December 1990 to May 1991 with periods of National Guard service including active duty for training (ACDUTRA) thereafter through 2005. 

These matters are before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which denied service connection for elevated cholesterol, sleep apnea, umbilical hernia, a skin condition, and bilateral pedal edema and granted service connection for residual scarring of the left hand and assigned a non-compensable (0 percent) disability rating.  The file was thereafter transferred to the RO in Montgomery, Alabama.

In October 2008, the Veteran appeared at the RO at a hearing held before a Decision Review Officer.  A transcript of that hearing is in the claims file.  In February 2013, he testified at a Video Conference hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is also in the claims file.

Regarding the left hand, the Board notes that the Veteran's original claim was that of service connection for an injury to his left hand incurred in service.  In adjudicating this claim, the RO has considered only the scar resulting from the laceration.  However, the Veteran's submissions regarding limitation of function and painful grip make clear that residuals of the injury in service include more than just the scar.  The Board has recharacterized the issue on appeal accordingly.

The issue of entitlement to reopening of a claim for service connection of an acquired psychiatric disability has been raised by the record, but has not been adjudicated by the RO.  Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action.  

The issues of entitlement to service connection for sleep apnea, an umbilical hernia, a skin condition, and bilateral pedal edema, as well as that of entitlement to a compensable disability rating for residuals of laceration of the left hand are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDING OF FACT

The Veteran's elevated cholesterol level is a laboratory abnormality for which no underlying disability is shown.


CONCLUSION OF LAW

The criteria for service connection for elevated cholesterol have not been met.  38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 3.303 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

As provided for by the VCAA, VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012).

Duty to Notify

Proper notice from VA must inform the claimant of any information and medical or lay 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.  38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including the degree of disability and the effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486.

VCAA notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim.  See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

Here, the Veteran was sent a letter in September 2006 that provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal.  The letter also explained what type of information and evidence was needed to establish a disability rating and effective date.  Accordingly, no further development is required with respect to the duty to notify.

Duty to Assist

Next, VA has a duty to assist the Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.

In this case, the Veteran was not provided with a VA examination with respect to the claim of service connection for elevated cholesterol level because the condition represents an abnormal laboratory finding rather than a diagnosed disability for which service connection may be granted.  Therefore, the evidence does not indicate the existence of a disability which may be related to active service sufficient to require an examination, even under the low threshold of McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The Board has reviewed the electronic evidence contained in the Veteran's Virtual VA folder as well as the paper file.  These files together comprise the claims file.  The claims file contains the Veteran's service treatment records, as well as post-service reports of VA and private treatment and examination.  Moreover, his statements in support of the claim are of record, including testimony provided at a February 2013 hearing before the undersigned.  The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified.  The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim.

The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: The duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).

At his hearing the undersigned identified the issues, sought information as to treatment to determine whether all relevant records had been obtained, and sought information as to any changes in any of the disabilities on appeal since the last examination.  The Board thereby met the duties imposed by 38 C.F.R. § 3.103(c)(2) as interpreted in Bryant.

For the above reasons, no further notice or assistance to the Veteran 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).

Principles of Service Connection

Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131. 

Generally, to establish a right to compensation for a present disability, a Veteran must show: (1) a present disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called "nexus" requirement.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004).  All three elements must be established by competent and credible evidence in order that service connection may be granted.

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). 


Facts and Analysis

An elevated or high cholesterol level is a laboratory finding and not a "disability" for purposes of compensation benefits.  The term "disability," as used for VA purposes, refers to a condition resulting in an impairment of earning capacity.  Allen v. Brown, 7 Vet. App. 439, 448 (1995); see also 61 Fed. Reg. 20,440 (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.); 
See 38 C.F.R. §§ 4.1, 4.10 (2012); 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (Diagnoses such as hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities, and are not appropriate entities for the rating schedule).

The Veteran's private treatment records and National Guard treatment records show that he was diagnosed with high cholesterol in about 2000 and he was prescribed medication at that time.  He testified at hearing that his medication dosage had been increased over time to address the problem.  

Under the law, however, the laboratory findings reflect only an abnormal value laboratory finding, and not, in and of itself, an actual disability for which VA compensation benefits are payable.  There is no evidence that the Veteran has an underlying disability entity manifested by elevated cholesterol levels, and as high cholesterol alone is not a "disability" for VA compensation benefits purposes (i.e., not a "service-connectable" disability entity), the Veteran has not presented a valid claim of service connection.  See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  Consequently, this claim must be denied. 


ORDER

Entitlement to service connection for elevated cholesterol levels is denied.



REMAND

The Veteran also seeks service connection for sleep apnea, a skin disorder, an umbilical hernia, and bilateral pedal edema.  To date, he has not been provided a VA examination as to any of these issues, in part because his service was in the National Guard, as opposed to active duty military service.  However, a review of the Veteran's records shows that he had several periods of ACDUTRA, including in July 1999 and June 2003.  The record further shows that he was treated for bilateral pedal edema during his ACDUTRA period in June 2003, and that an umbilical hernia was noted at that time.  Clarification of any other dates should be sought and examinations scheduled accordingly.  

Under 38 C.F.R. § 3.159(c)(4), a VA examination or opinion is necessary if the evidence of record: (A) contains competent evidence that the Veteran has a current disability, or persistent or recurrent symptoms of disability; and (B) establishes that the Veteran suffered an event, injury or disease in service; (C) indicates that the claimed disability or symptoms may be associated with the established event, injury, or disease in service or with another service-connected disability, but (D) does not contain sufficient medical evidence for the Secretary to make a decision on the claim.  See McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).  

Regarding the sleep apnea claim, lay evidence from service members who served with the Veteran in the Persian Gulf (during his second tour of active duty) recalled that he had problems breathing while he was asleep and that he sometimes had to be shaken awake.  On this basis, an examination should be provided to determine if any current sleep apnea is relationship to service.

Finally, skin complaints and treatment were noted during the Veteran's first tour of active duty.  Specifically, epidermal cysts were found in June and July 1981.  Accordingly, an examination should also be afforded with respect to the skin claim.

In addition, as noted, the Veteran's left hand claim involves residuals of the laceration suffered in service.  To date, the Veteran has been afforded two VA examinations which concentrated almost exclusively on the residual scarring.  However, the Veteran has identified other residuals which should be evaluated and described in detail for a complete adjudication of the claim, such as weakened grip and limitation of function in his work as a result of pain.  A VA examination which includes consideration of these complaints should be provided.


Accordingly, the case is REMANDED for the following action:

1. Ask the appropriate state or federal records custodian to provide a list of all of the dates for which the Veteran had federalized National Guard service, to include any periods of ACDUTRA and IDT.  To the extent possible, the records custodian should also indicate whether the Veteran is to receive any credit for federalized service for the period of July 2004 through March 2005, where the record shows that he was deemed medically disqualified.  Then, prepare a chronological listing of all periods of active service, including specific dates during which the Veteran was on ACDUTRA or IDT, and add this list to the claims file. 

2. Provide the Veteran with appropriate VA examinations to address the following:

a) Was the Veteran's sleep apnea, first diagnosed in 2003, at least as likely as not (probability 50 percent or greater) manifested or present during his prior military service in 1978 through 1981 or 1990 through 1991?  The examiner should address the lay statements furnished by the Veteran's fellow service members regarding snoring and other sleep issues, as well as the Veteran's sworn testimony regarding his symptoms.

If the examiner answers the above question in the negative, then he or she should offer an opinion as to whether the disorder was at least as likely as not (probability 50 percent or greater) incurred in or aggravated by or otherwise the result of any of the Veteran's periods of service, including both active duty service and National Guard service during the periods identified as federalized service, ACDUTRA or IDT (see the list of active service compiled by the RO).

b) Does the Veteran have a current skin disorder, to include a recurrent rash or recurrent sebaceous cysts?  If so, is this disorder at least as likely as not (probability 50 percent or greater) incurred in, aggravated by or otherwise the result of any of the Veteran's periods of service, both active duty service and National Guard service during the periods identified as federalized service, ACDUTRA, or IDT?  The examiner should address the Veteran's lay statements and assertions that any such skin disorder is related to his incidents of bilateral pedal edema in service, related to time spent in the woods, or due to an allergic reaction.  The examiner should also address the sebaceous cyst removed in service and any relationship that may have to any current skin disorder.

c) Does the Veteran currently have an umbilical hernia or other hernia?  If so, is this condition at least as likely as not (probability 50 percent or greater) related to, incurred in, aggravated by, or otherwise the result of any of the Veteran's periods of service, both active duty service and National Guard service during the periods identified as federalized service, ACDUTRA, or IDT?  The examiner should address the record showing diagnosis of umbilical hernia during treatment for bilateral pedal edema in June 2003 and the Veteran's assertions that his hernia is the result of carrying ammunition during service.  

d) Does the Veteran have a chronic disease or disability which is manifested, at least in part, by recurrent bilateral pedal edema?  If so, is this disorder at least as likely as not (probability 50 percent or greater) related to, incurred in, aggravated by, or otherwise the result of any of the Veteran's periods of service, both active duty service and National Guard service during the periods identified as federalized service, ACDUTRA, or IDT?  The examiner should address the treatment records from June 2003, as well as the Veteran's lay statements regarding continuing recurrent episodes of bilateral pedal edema.  The examiner should also indicate if the Veteran has any other medical conditions which may be related to the recurrent bilateral pedal edema, to include his diagnosis of hypertension, which has not been found to be service-connected.  

The examiner should be provided access to the claims file for review and should state for the record that the claims file, including this remand and the list of National Guard service dates, has been reviewed.  The examiner is asked to provide a rationale or explanation for the opinions provided.

3. Provide the Veteran an appropriate VA examination to determine the nature and severity of all residuals of the laceration of the left hand sustained in service.  The examiner should specifically address any functional limitations resulting from such residuals, including loss of grip strength, pain, and limitation of motion.

4. On completion of the foregoing, the claim should be adjudicated.  If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board.


The Veteran has the right to submit additional evidence and argument on the 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. 2012).
  



______________________________________________
Eric S. Leboff
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs