Citation Nr: 1314173 Decision Date: 04/30/13 Archive Date: 05/15/13 DOCKET NO. 07-15 329 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an increased rating in excess of 20 percent for diabetes mellitus type II. 2. Entitlement to service connection for hypertension, including as secondary to service-connected diabetes mellitus. 3. Entitlement to service connection for high cholesterol. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Catherine Cykowski, Counsel INTRODUCTION The Veteran (Appellant or Claimant) had active duty service from September 1967 to September 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri. In July 2012, the Veteran submitted a statement indicating that he would like to claim service connection for erectile dysfunction secondary to service-connected diabetes mellitus. The Veteran also submitted a doctor's statement, dated in May 2012, regarding the relationship between diabetes mellitus and erectile dysfunction. The issue of entitlement to service connection for erectile dysfunction, secondary to service-connected diabetes mellitus, is referred to the AOJ for appropriate action. The issue of entitlement to an increased rating for diabetes mellitus 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. FINDINGS OF FACT 1. The Veteran did not experience any injury, disease, or chronic symptoms of hypertension in service. 2. Hypertension did not manifest to a compensable degree within one year of separation from service. 3. Symptoms of hypertension have not been continuous since service. 4. The Veteran's hypertension is not related to service. 5. The Veteran's hypertension is not causally related to or permanently worsened by service-connected diabetes mellitus. 6. High cholesterol is a laboratory test result, and is not a "disability" for VA purposes. CONCLUSIONS OF LAW 1. Hypertension was not incurred in active service, is not presumed to have been incurred in service, and is not caused or aggravated by a service-connected disability. 38 U.S.C.A. §§ 1110, 1112, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.3.07, 3.309, 3.310 (2012). 2. High cholesterol is not a disability for which compensation is warranted. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353 -356 (April 30, 2008). The United States Court of Appeals for Veterans Claims (Court) issued a decision in the appeal of Dingess v. Nicholson, 19 Vet. App. 473 (2006), which held that the 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, including the degree of disability and the effective date of an award. Those five elements include: (1) veteran status; (2) existence of a disability; (3) a connection between a veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. In letters dated in January 2006 and April 2009, the RO notified the Veteran of the evidence required to substantiate the claim for service connection for hypertension. The January 2006 and April 2009 letters advised the Veteran of VA's duties to assist him in obtaining evidence and included notice of how disability ratings and effective dates are determined. March 2006 and June 2006 letters also provided the Veteran with notice regarding disability ratings and effective dates. While a fully compliant VCAA notice was provided after the initial adjudication of the claims on appeal, the provision of the fully compliant notice letter in April 2009, followed by a subsequent readjudication in a supplemental statement of the case in March 2012, cured the timing of the notice. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case (SOC) or supplemental statement of the case (SSOC), is sufficient to cure a timing defect). In May 2009, the Veteran submitted a VCAA notice response, in which he indicated that he had provided all the remaining information and evidence, and he had no other information or evidence to provide regarding his claims. In a June 2009 letter, the RO advised the Veteran that the additional records identified by him in May 2009 were requested. The Board is also satisfied VA has made reasonable efforts to obtain relevant records and evidence. The information and evidence that has been associated with the claims file includes the Veteran's service treatment records, post-service VA and private treatment records, and the Veteran's statements. The Veteran was afforded a VA examination for hypertension in June 2010. The June 2010 VA examiner provided a medical opinion regarding the claimed hypertension based upon a review of all of the pertinent evidence of record, to include service treatment records and post-service VA medical records, and the Veteran's reported history of hypertension. Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c)(4). The Veteran was not afforded a VA examination for high cholesterol. A VA examination is not necessary because there is no reasonable possibility that such assistance would aid in substantiating the claim; even if hypercholesterolemia were found upon examination, there is no reasonable possibility that this finding could substantiate the claim because such a finding does not provide evidence of a current disability. 38 U.S.C.A. § 5103A(a)(2); 38 C.F.R. § 3.159(d). For these reasons, the Board finds that VA has fulfilled the duties to notify and assist the Veteran. Service Connection Laws and Regulations Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in service, and; (3) a relationship of nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999), citing Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd, 78 F.3d 604 (Fed. Cir. 1996). In this case, cardiovascular-renal disease, including hypertension, is a "chronic disease" listed under 38 C.F.R. § 3.309(a). Therefore, the presumptive provisions for "chronic" symptoms in service and "continuous" symptoms after service of 38 C.F.R. § 3.303(b) apply to the claim for service connection for hypertension. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic disease as such in service, subsequent manifestations of the same chronic disease at any later date, however remote, are service connected, unless clearly attributable to intercurrent causes. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Service connection may also be granted for a disability that is proximately due to or the result of a service-connected disability. See 38 C.F.R. § 3.310(a). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. See 38 C.F.R. § 3.310(a); Harder v. Brown, 5 Vet. App. 183, 187 (1993). "Aggravation" is defined for this purpose as a chronic, permanent worsening of the underlying condition, beyond its natural progression, versus a temporary flare-up of symptoms. The controlling regulation has been interpreted to permit a grant of service connection not only for disability caused by a service-connected disability, but for the degree of disability resulting from aggravation of a non-service-connected disability by a service-connected disability. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). To prevail on the theory of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection (causation or aggravation) between the current disability and the service-connected disability. Wallin v. West, 11 Vet. App. 509, 512 (1998); Reiber v. Brown, 7 Vet. App. 513, 516-17 (1995). In rendering a decision on appeal the Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). Service Connection for Hypertension The Veteran asserts that he currently has hypertension, which is either caused or aggravated by service-connected diabetes mellitus. He submitted medical statements to the effect that diabetes, hypertension, and hyperlipidemia were inter-related. He has not contended that his hypertension began in service or is directly related to service. After a review of all of the evidence, the Board finds that the weight of the evidence demonstrates that the Veteran did not experience in-service cardiovascular injury or disease or manifest chronic symptoms of hypertension in service. Upon enlistment in February 1967, a blood pressure reading of 124/80 was noted. A blood pressure reading of 130/82 was recorded at service separation in September 1969. The Veteran does not allege, nor does the record reflect, that the Veteran's hypertension began in service or that symptoms of hypertension were chronic in service; therefore, the presumptive provision of 38 C.F.R. § 3.303(b) based on chronic symptoms during service is not warranted. If a condition noted during service is not shown to be chronic, then generally, a showing of continuity of symptoms after service is required for service connection. 38 C.F.R. § 3.303(b). Hypertension is defined as diastolic blood pressure that is predominantly 90 mm. or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. To support a diagnosis of hypertension the blood pressure readings must be taken two or more times on at least three different days. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); 38 C.F.R. § 4.104, Diagnostic Code 7101 (Note 1). A 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104. The evidence of record does not show that hypertension manifested to a compensable degree within one year of separation from service; therefore, service connection for hypertension may not be presumed as having been incurred in service. 38 C.F.R. §§ 3.307, 3.309(a). The Board next finds that the weight of the evidence demonstrates that hypertension symptoms have not been continuous since service separation in September 1969. The service separation examination did not indicate any history or current symptoms of hypertension by the Veteran, and did not indicate any findings or diagnosis of hypertension. Following separation from service in September 1969, the evidence of record shows no complaints, findings, diagnosis, or treatment for hypertension until 1998, almost 30 years after service separation. The absence of post-service complaints, findings, diagnosis, or treatment for almost 30 years after service is one factor that tends to weigh against a finding of continuous hypertension symptoms after service separation. See Buchanan v. Nicholson, 451 F.3d 1336 (Fed. Cir. 2006) (the lack of contemporaneous medical records is one fact the Board can consider and weigh against the other evidence, although the lack of such medical records does not, in and of itself, render the lay evidence not credible). The Board further finds that the weight of the evidence demonstrates that the Veteran's currently diagnosed hypertension is not related to his active service. There is no competent evidence of a link between active service and current hypertension or showing of continuous symptoms since service to establish such a nexus to service. Indeed, the weight of the evidence demonstrates no in-service injury, disease, or chronic symptoms of hypertension to which the current hypertension could be related by a medical opinion. The Veteran is contending that hypertension may be related to (caused or aggravated by) service-connected diabetes mellitus. To prevail on the theory of secondary service causation, the record must show (1) evidence of a current disability, (2) evidence of a service-connected disability, and (3) medical nexus evidence establishing a connection between the current disability and the service-connected disability. Wallin, 11 Vet. App. at 512; Reiber, 7 Vet. App. at 16-17. The Board finds that the weight of the evidence demonstrates that hypertension is not related to, that is, is not caused or aggravated by (permanently worsened in severity), service-connected diabetes mellitus. The Veteran had a VA examination in June 2010. The Veteran reported a history of hypertension with date of onset in 1998. The VA examiner in June 2010 opined that hypertension is less likely than not related to service-connected diabetes mellitus. The VA examiner reasoned that hypertension is usually essential in nature unless it occurs secondary to some other condition. The VA examiner explained that diabetics may develop hypertension as a secondary condition in the presence of renal disease. The VA examiner indicated that the Veteran has no evidence of renal disease; therefore, it is less likely than not that his hypertension is caused by or aggravated by diabetes mellitus. The VA examiner noted that the Veteran had adequate hypertensive control on a single oral agent. Further, the Board has considered the statements of the Veteran that his hypertension may be related to diabetes mellitus. Questions of medical etiology of disorders such as hypertension require specialized testing by a medical professional and medical (anatomical) knowledge of cardiovascular system. While the Veteran is competent to report some hypertension symptoms, he is not competent by knowledge, training, or experience to determine the etiology of his hypertension; thus, his statements do not establish a connection between his hypertension and diabetes mellitus. The etiology of hypertension is not a matter that is subject to lay observation, but requires medical knowledge because the disease is internal, is diagnosed by specific clinical measures (systolic and diastolic blood pressure readings), and manifests symptoms that are not unique to hypertension so as to be highly suggestive of hypertension. Therefore, the Veteran's lay assertion that hypertension is related to service-connected diabetes mellitus is not competent evidence. For these reasons, the Board finds that the lay and medical evidence that is of record weighs against the claim for service connection for hypertension, including the occurrence of any in-service disease or injury manifesting in hypertension, chronic in-service hypertension symptoms, or continuous post-service hypertension symptoms. The Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for hypertension, including as secondary to the service-connected diabetes mellitus, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. Service Connection for High Cholesterol The Veteran contends that current high cholesterol is related to service-connected diabetes mellitus. Both VA and private treatment records and statements dated during the current claim period reflect findings of hyperlipidemia. Hyperlipidemia and elevated cholesterol are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (noting that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are actually laboratory results and are not, in and of themselves, disabilities under the rating schedule). Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, such as hypertriglyceridemia, hypercholesterolemia, and so on." Dorland's Illustrated Medical Dictionary 883 (30th ed. 2003). In the absence of proof of a current disability, there can be no valid claim for service connection. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). As elevated cholesterol does not constitute a disability, service connection for high cholesterol cannot be awarded, regardless of whether the Veteran has the claimed findings of hyperlipidemia, elevated triglycerides, or elevated cholesterol. A symptom or a finding, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). The Court consistently has held that, under the law, a "determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service." Watson v. Brown, 4 Vet. App. 309, 314 (1993). This principle has been repeatedly reaffirmed by the Federal Circuit Court, which has stated that "a veteran seeking disability benefits must establish . . . the existence of a disability [and] a connection between the veteran's service and the disability." Boyer v. West, 210 F.3d 1351, 1353 (Fed. Cir. 2000). The existence of a current disability is the cornerstone of a claim for VA disability compensation. See Degmetich v. Brown, 104 F. 3d 1328 (1997) (holding that the VA's and the Court's interpretation of 38 U.S.C.A. §§ 1110 and 1131 as requiring the existence of a present disability for VA compensation purposes cannot be considered arbitrary and, therefore, the decision based on that interpretation must be affirmed). For the reasons expressed above, the Board finds that a preponderance of the evidence is against the Veteran's claim for service connection for high cholesterol, and the claim must be denied. Because the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. ORDER Service connection for hypertension is denied. Service connection for high cholesterol is denied. REMAND In a March 2006 rating decision , the RO denied an increased rating in excess of 20 percent for diabetes mellitus type II, service connection for hypertension, and service connection for high cholesterol. In June 2006, the Veteran submitted a notice of disagreement as to all the issues denied in the March 2006 rating decision. In April 2007, the RO issued a Statement of the Case as to the issues of service connection for hypertension and service connection for high cholesterol. The April 2007 Statement of the Case did not address the issue of an increased rating in excess of 20 percent for diabetes mellitus type II. A remand is warranted for issuance of a SOC with regard to the issue of an increased rating in excess of 20 percent for diabetes mellitus type II. 38 C.F.R. § 19.26 (2012); Manlincon v. West, 12 Vet. App. 238 (1999). The Board notes that a March 2012 SSOC adjudicated the issue of increased rating for diabetes mellitus, and that in the reasons and bases section the RO specifically advised the Veteran of the rating criteria for a higher rating of 40 percent that required evidence of "regulation of activities," providing the Veteran with the substance of the rating criteria at 38 C.F.R. § 4.119, Diagnostic Code 7913 (2012). Notwithstanding that the SSOC provided such substantive information regarding the next higher rating criteria for diabetes, VA regulations provide that in "no case will a Supplemental Statement of the Case be used to announce decisions by the agency of original jurisdiction on issues not previously addressed in the Statement of the Case, or respond to a notice of disagreement on newly appealed issues that were not addressed in the Statement of the Case." 38 C.F.R. § 19.31(a) (2012). Instead, the same regulation directs that a SOC is to be used to respond to issues raised in a notice of disagreement. Accordingly, the claim for an increased rating for diabetes mellitus type II is REMANDED for the following action: 1. The RO/AMC should issue a SOC on the issue of increased rating in excess of 20 percent for diabetes mellitus type II. The Veteran should be given an opportunity to respond. 2. Should the Veteran respond by submitting a timely substantive appeal, the issue of increased rating for diabetes mellitus should be returned to the Board for further review. 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 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). ______________________________________________ J. PARKER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs