Citation Nr: 1323389	
Decision Date: 07/23/13    Archive Date: 08/01/13

DOCKET NO.  10-03 285	)	DATE
	)
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On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to service connection for hypertension, claimed as due to Agent Orange exposure and/or as secondary to posttraumatic stress disorder (PTSD).

2.  Entitlement to service connection for dyslipidemia.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Chapman, Associate Counsel




INTRODUCTION

The appellant is a Veteran who served on active duty from March 1970 to October 1971.  These matters are before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Muskogee, Oklahoma Department of Veterans Affairs (VA) Regional Office (RO), which denied service connection for hypertension and dyslipidemia.  The Veteran had requested a videoconference hearing.  He withdrew that request in October 2012.

The matter of service connection for hypertension is being REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if further action on his part is required.


FINDING OF FACT

Dyslipidemia is a laboratory finding, not a disability due to disease or injury; an underlying disease or injury is not identified. 


CONCLUSION OF LAW

Service connection for dyslipidemia is not warranted.  38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a).  The VCAA applies to the instant claim.  

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007).  VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication.  A September 2008 letter explained the evidence necessary to substantiate his claim, the evidence VA was responsible for providing, and the evidence he was responsible for providing.  This letter also informed the appellant of disability rating and effective date criteria.  The Veteran has had ample opportunity to respond/supplement the record and he has not alleged that notice in this case was less than adequate.

The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured.  The RO did not arrange for a VA examination/opinion as to the claim decided herein.  As the evidence shows no current disability attributable to dyslipidemia, an examination to secure a medical nexus opinion is not necessary, as even the low threshold standard for such examination endorsed in McLendon v. Nicholson, 20 Vet. App. 27 (2006), is not met.  See 38 C.F.R. § 3.159(c)(4); Duenas v. Principi, 18 Vet. App. 512, 516 (2004).  The Veteran has not identified any evidence that remains outstanding.  VA's duty to assist is met. 

Legal Criteria

Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disability was incurred in service.  38 C.F.R. § 3.303(d).
 
To substantiate a claim of service connection, there must be evidence of the claimed disability; evidence of incurrence or aggravation of a disease or injury in service; and evidence of a nexus between the disease or injury in service and the current disability.  See Shedden v. Principi, 381 F.3d 1163, 1166-1167 (Fed. Cir. 2004).  The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value.  Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a).

When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant.  38 U.S.C.A.         § 5107(b); 38 C.F.R. § 3.102.  When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied.  Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990).

The Veteran generally contends that his dyslipidemia is related to his service, including as due to Agent Orange exposure.  VA treatment records since 2008 show that the Veteran has dyslipidemia (hyperlipidemia).  

Under applicable regulation, the term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions.             38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995).  A symptom (to include abnormal laboratory study), 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 Veteran's post-service diagnoses of dyslipidemia/hyperlipidemia only represent laboratory findings, and not an actual disability for which VA compensation benefits are payable.  See 61 Fed. Reg. 20440, 20445 (May 7, 1996).  The record does not identify or suggest (and the Veteran has not alleged) an underlying disease to which the dyslipidemia/hyperlipidemia may be related.  

As dyslipidemia of itself 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, the claim of service connection for dyslipidemia must be denied.


ORDER

Service connection for dyslipidemia is denied.


REMAND

The VCAA, 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126, and the regulations implementing it apply in the instant case.  While the notice provisions of the VCAA appear to be satisfied, the Board is of the opinion that further development of the record is required to comply with VA's duty to assist the Veteran in the development of the facts pertinent to his claim.  See 38 C.F.R.           § 3.159.

The Veteran contends he suffers from hypertension as due to either Agent Orange exposure or his service-connected PTSD.

Regarding the Veteran's claim that his hypertension is due to Agent Orange exposure, it is noteworthy that hypertension is not a disease listed in 38 C.F.R. § 3.309(e), and is specifically excluded from the definition of ischemic heart disease.  Thus, while it is not in dispute that the Veteran may have been exposed to herbicides/Agent Orange in the course of his service, the provisions of 38 U.S.C.A. § 1116 do not apply.

Regarding the Veteran's  secondary service connection theory of entitlement, it is noteworthy that he has established service connection for coronary artery (ischemic) heart disease and PTSD.  In June 2013, his representative cited to an article which indicated, in part, that "persons with PTSD have been reported to have an increased risk of hypertension..."  See June 2013 Appellant's Brief.

Secondary service connection is warranted where there is evidence of a current disability for which service connection is claimed; evidence of an already service-connected disability; and evidence that the already service connected disability caused or aggravated the disability for which service connection is sought.

The record shows that the Veteran has a diagnosis of hypertension.  He has established service connection for PTSD and for coronary artery disease.  And the submission by his representative suggests there may be a nexus between the PTSD and the hypertension.  Accordingly, a VA examination to secure a medical opinion in the matter is necessary.  McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006).

The case is REMANDED for the following:

1.  The RO should arrange for the Veteran to be examined by an internist to determine the likely etiology of his hypertension, and specifically whether or not it was caused or aggravated by his service-connected disabilities, to include PTSD and coronary artery disease.  The Veteran's claims file, to include this remand, must be reviewed by the examiner in conjunction with the examination.  Upon examination and interview of the Veteran, and review of pertinent medical history, the examiner should provide an opinion that responds to the following:

Based on the factual evidence of record, is it at least as likely as not (a 50 percent or better probability) that the Veteran's hypertension was either caused or aggravated by (increased in severity due to) his service-connected disabilities, to include CAD and PTSD?  If the opinion is to the effect that the service-connected disabilities did not cause, but aggravated, the hypertension, the examiner should identify, to the extent possible, the degree of disability that is due to such aggravation.  If the hypertension is determined to not be related to the Veteran's service-connected disabilities, please identify the etiological factor(s) considered more likely.

The examiner must explain the rationale for all opinions, citing to supporting factual data/medical literature.

2.  The RO should then readjudicate the claim of service connection for hypertension.  If it remains denied, the RO should issue an appropriate supplemental statement of the case and afford the Veteran and his representative the opportunity to respond.  The case should then be returned to the Board, if in order, for further review.

The appellant 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 for additional development or other appropriate action must be handled in an expeditious manner.  


______________________________________________
GEORGE R. SENYK
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs