Citation Nr: 1309761	
Decision Date: 03/22/13    Archive Date: 04/01/13

DOCKET NO.  07-30 039	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUES

1. Entitlement to service connection for hypertension claimed as secondary to the service-connected lumbar spine strain.  

2. Entitlement to service connection for high cholesterol claimed as secondary to the service-connected lumbar spine strain.   


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran



ATTORNEY FOR THE BOARD

M. Mac, Counsel


INTRODUCTION

The Veteran served on active duty from October 1988 to January 1992. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. 

A hearing was held on July 16, 2010, at the RO in Waco, Texas, before the undersigned, who was designated by the Chairman to conduct the hearing pursuant to 38 U.S.C.A. § 7107(c), (d)(1) and who is rendering the determination in this case.  A transcript of the hearing testimony is in the claims file.

The Board notes that the issues on appeal were previously characterized as one issue, however as they are separate and distinct claims they have been separated into two issues as reflected on the title page.  

A review of the Virtual VA paperless claims processing system reveals documents that are either duplicative of the evidence of record or are not pertinent to the present appeal.  

In April 2011, the Board denied service connection for hypertension and high cholesterol on a direct basis and remanded the issues of entitlement to service connection for hypertension and high cholesterol as secondary to the service-connected lumbar spine disability.  Additional development remains necessary regarding the issue of secondary service connection for hypertension.  This 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, DC.


FINDING OF FACT

High cholesterol is a laboratory finding and not a disability for VA compensation purposes.


CONCLUSION OF LAW

High cholesterol was not caused or aggravated by a service-connected disability.  38 U.S.C.A. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.303, 3.310 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate the claim. 

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.  The VCAA notice requirements apply to all five elements of a service connection claim.  The five elements are: (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The RO provided pre-adjudication VCAA notice by letter dated in September 2007.  The Veteran was notified of the evidence needed to substantiate the claim for service connection, as well as what information and evidence must be submitted by the Veteran, what information and evidence would be obtained by VA, and the provisions for disability ratings and for the effective date of the claim.  

VA also fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate the claim decided herein.  Service treatment records, VA medical records, private medical records, and lay statements have been associated with the file.  

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of the adjudication as to the issue decided herein.  38 C.F.R. § 3.159(c). 

Analysis

In general, service connection will be granted for a disability resulting from injury or disease incurred in or aggravated by active military service.  38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303.  In order to establish service connection for a present disability, the Veteran must show: (1) the existence of a present disability; (2) 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.  Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 

Service connection on a secondary basis is based on evidence that a service-connected disability caused or aggravated a non-service-connected disability.  38 C.F.R. § 3.310.  Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) caused by or (b) aggravated by a service-connected disability.  Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc).

In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

In January 2010 and in other statements, the Veteran contends that he has high cholesterol due to medications for his service-connected low back strain and his inability to exercise as a result of the disability.  VA treatment records from 2006 to 2011 show treatment for high cholesterol.

The Board acknowledges the current findings of high cholesterol.  VA, however, has found that diagnoses of hyperlipidemia and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities for compensation purposes.  See Schedule for Rating Disabilities:  Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996).  The evidence does not show nor has the Veteran contended that his high cholesterol, a laboratory finding, is a manifestation of an underlying disease that is secondary to his service-connected lumbar strain.  Without a current disability, service connection may not be granted.  Brammer  v. Derwinski, 3 Vet. App. 223, 225 (1992). 

Therefore the preponderance of the evidence is against the claim and the doctrine of reasonable doubt is not for application.  38 C.F.R. § 3.102.  The claim is denied.


ORDER

Service connection for high cholesterol is denied. 



REMAND

Although the Board regrets the additional delay, remand is necessary to ensure that there is a complete record upon which to decide the Veteran's claim.  Remand is required to obtain clarification of an etiological opinion.

In April 2011, the Board remanded the issue of service connection for hypertension secondary to the service-connected lumbar spine disability for a VA opinion as to whether the Veteran's hypertension is secondary to the medications taken for his service-connected lumbar spine disability.  

Service connection on a secondary basis is based on evidence that a service-connected disability caused or aggravated a non-service-connected disability.  38 C.F.R. § 3.310.  Generally, a medical opinion should address the appropriate theories of entitlement.  Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007).  In addition, a medical opinion's probative value is based in the rationale provided.  Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008)

In a VA opinion dated in May 2011 the examiner concluded that hypertension was not caused by medications taken for the service-connected low back disability.  He noted the following:  that the Veteran injured his low back during service in 1989 and was placed on Motrin, a non-steroidal anti-inflammatory drug (NSAID); that the Veteran's blood pressure remained normal (108/70); and that in 2005 the Veteran started taking Piroxicam, 20 milligrams daily, which did not increase his hypertension.  The examiner noted that hypertension insidiously began in 2005-2006 while the Veteran was on Vicodin and Flexeril.  The examiner noted that should NSAIDs cause renal impairment with hypertension, both will subside once the medication is discontinued.  He stated that the Veteran's hypertension has continued even though he is not on NSAIDs.  The examiner concluded that the Veteran's hypertension is more likely than not genetically induced and that the Veteran's weight variability did not influence his blood pressure readings.   

Although the May 2011 VA examiner addressed causation, he did not address whether any of the medications that the Veteran has taken for his service-connected lumbar spine disability aggravated his hypertension.  Further, the examiner stated that hypertension insidiously began in 2005-2006 while the Veteran was on Vicodin and Flexeril, however the examiner did not opine whether these medications aggravated the hypertension.  

Accordingly, the case is REMANDED for the following action:

1.  If available, return the claims file to the examiner who rendered the May 2011 opinion regarding hypertension.  If this examiner is not available, the Veteran's claim folder should be reviewed by another appropriate examiner.  The claims file and a separate copy of this remand must be made available to and reviewed by the examiner.  The examiner is asked to provide a rationale for the opinions rendered.  If the examiner is not able to provide an opinion, he or she should explain why.

The examiner must provide an opinion as to whether it is at least as likely as not (50 percent probability or more) that the hypertension was aggravated by any of the medications taken for the Veteran's service-connected lumbar spine strain, to include any NSAIDs, Piroxicam, Tramadol, Methacarbamole, or Methyl Salicylate.  If there is aggravation, the examiner should identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.  If some of the increase in severity is due to natural progress, the examiner should identify the degree of increase in severity due to natural progression.  


The examiner also is asked to consider the following:

* A VA progress note dated in February 2005, which shows that the Veteran for the last 10-15 years has been treated conservatively for low back pain with NSAIDs.  

* A VA progress noted dated in March 2010, which shows that the examiner instructed the Veteran to stop taking Piroxicam for his low back as it increased his blood pressure.  

* Medical literature submitted by the Veteran that identifies high blood pressure as a possible side effect of NSAIDs.  

The examiner is also asked to provide an opinion on whether it is at least as likely as not (50 percent probability or more) that the Veteran's lack of exercise due to his service-connected lumbar spine strain aggravated his hypertension.  The examiner should identify the baseline level of severity prior to the onset of aggravation, or by the earliest medical evidence created at any time between the onset of aggravation and the receipt of medical evidence establishing the current level of severity.  If some of the increase in severity is due to natural progress, the examiner should identify the degree of increase in severity due to natural progression.  

2.  If the benefit sought on appeal remains denied, issue the Veteran and his representative a supplemental statement of the case before the claims file is returned to the Board.

The Veteran 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. 2012).




______________________________________________
K. MILLIKAN
Acting Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs