Citation Nr: 1327548 Decision Date: 08/28/13 Archive Date: 09/05/13 DOCKET NO. 11-08 076 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Manchester, New Hampshire THE ISSUES 1. Entitlement to service connection for colon polyps. 2. Entitlement to service connection for nodules of the lungs. 3. Entitlement to service connection for high cholesterol. 4. Entitlement to service connection for hypertension. 5. Entitlement to service connection for sleep apnea. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD R. Erdheim, Counsel INTRODUCTION The Veteran served on active duty from September 1968 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) from a November 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that denied service connection for the issues on appeal. In July 2011, the Veteran testified before the Board at a hearing held via videoconference. The Veteran submitted an article in support of his claims, with a waiver of RO jurisdiction. The issues of entitlement to service connection for hypertension and sleep apnea 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. FINDINGS OF FACT 1. During the appeal period, the Veteran has not been diagnosed with or suffered from symptoms or disability related to colon polyps. 2. During the appeal period, the Veteran has not been diagnosed with any lung or respiratory disease related to his lung nodules; the lung nodules are tantamount to a laboratory finding and are not a disability for VA purposes. 3. The Veteran's high cholesterol is a laboratory finding and is not considered to be a disability for VA purposes. CONCLUSIONS OF LAW 1. The requirements for service connection for colon polyps have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304, 3.307, 3.309 (2012). 2. The requirements for service connection for nodules of the lungs have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). 3. The requirements for service connection for high cholesterol have not been met. 38 U.S.C.A. §§ 1110, 1131, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice must inform the claimant of any information and 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)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the Court 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. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable RO decision on the claim for VA benefits. In the instant case, the Board finds that VA has satisfied its duty to notify under the VCAA. In this regard, June 2010 and August 2010 notice, sent prior to the initial unfavorable RO decision issued in November 2010, advised the Veteran of the evidence and information necessary to substantiate his service connection claims as well as his and VA's respective responsibilities in obtaining such evidence and information. Additionally, the letters informed the Veteran of the evidence and information necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. Relevant to the duty to assist, the Veteran's service treatment records, as well as VA and private treatment records, have been obtained and considered. The Veteran has not identified any additional, outstanding records necessary to decide his pending appeal. In that regard, he has submitted private treatment records from his primary physician, Dr. K, and from the medical group from which he received private care, D-H. The Board has also reviewed the Veteran's Virtual VA records and finds no additional evidence. The Board notes that a VA opinion as to the etiology of his claimed conditions has not been obtained. However, as will be discussed in further detail below, his the claimed disabilities, while clinically documented, have not been associated with an underlying disease pathology. As such, the Veteran has not established that he has current disabilities for which VA benefits may be granted. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Without this threshold criterion for service connection, the Board has no basis to remand the Veteran's high cholesterol, nodules of lungs, or colon polyps claims for an examination or medical opinion. On the contrary, such development is only warranted where there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service; (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 to make a decision on the claim). See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran was also provided with a hearing related to his present claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires the VLJ who chairs a hearing fulfill two duties to comply with the above the regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. In this case, the VLJ explained the issues on appeal and inquired as to any outstanding evidence. And, the Veteran volunteered his treatment history and symptoms since service, thus fully describing the nature and severity of his claimed disabilities. Accordingly, the Veteran is not shown to be prejudiced on this basis. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the Board hearing. As such, the Board finds that, consistent with Bryant, the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2). Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis The Veteran contends that his colon polyps, nodules of the lungs, and high cholesterol were caused or aggravated by his service. Specifically, he contends that these conditions were caused by exposure to herbicides while stationed in Vietnam, or were caused by the inhalation of petroleum products and other harmful chemicals without respiratory equipment while working as petroleum storage specialist. Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may also be granted for any disease diagnosed after discharge, when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Direct service connection may granted with evidence of a current disability; in-service incurrence or aggravation of a disease or injury; and a nexus between the claimed in-service disease or injury and the present disease or injury. 38 U.S.C.A. § 1112; 38 C.F.R. § 3.304. See also Caluza v. Brown, 7 Vet. App. 498, 506 (1995) aff'd, 78 F.3d 604 (Fed. Cir. 1996) [(table)]. Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service during an applicable presumption period under 38 C.F.R. § 3.307 and (ii) present manifestations of the same chronic disease, or evidence of continuity of symptomatology. If the disability claimed is not considered to be a chronic disease under 38 C.F.R. § 3.307, credible lay evidence of continuous symptoms may establish service connection. Where a Veteran served for at least 90 days during a period of war or after December 31, 1946, and manifests certain chronic diseases, to include malignant tumors, to a degree of 10 percent within one year from the date of termination of such service, such disease shall be presumed to have been incurred or aggravated in service, even though there is no evidence of such disease during the period of service. 38 U.S.C.A. §§ 1101, 1112; 38 C.F.R. §§ 3.307, 3.309. Service treatment records are negative for any indication of colon polyps, nodules of the lungs, or high cholesterol. With respect to the Veteran's colon polyps, an August 2003 colonoscopy revealed four colon polyps that were removed. The pathology revealed adenomatous polyps with a single microscopic follicle of adenocarcinoma identified within one polyp. A September 2006 colonoscopy resulted in the removal of one diminutive left-sided polyp. A five year follow-up was suggested. During the appeal period, beginning in May 2010, there has not been an indication of any further polyps. With respect to the Veteran's high cholesterol, the Veteran has been noted to suffer from such throughout the appeal period. A December 2010 VA treatment record shows that the Veteran's hyperlipidemia was stable on medication. On November 2010 VA examination, it was found that the Veteran's hyperlipidemia was not a complication of his diabetes mellitus. It was also noted that diabetes worsened atherogensis of the blood vessels, thus worsening cholesterol. It is unclear from that statement whether such was the case for the Veteran. With respect to the Veteran's lung nodules, in January 2010, the Veteran presented to the emergency room with sweating, headache, chest discomfort, and shortness of breath a rest. He was noted to have a history of sleep apnea. A CT scan of the chest showed three pulmonary nodules on the right. It was noted that there was demonstratable pulmonary embolus on CT scan. He had no known chronic obstructive pulmonary disease and was a nonsmoker, but likely had significant occupational exposure. There was no exact etiology of the Veteran's hypoxemia. It was thought that he might have restrictive lung disease due to his obesity, but that would not explain his current symptomatology. The discharge diagnosis was dyspnea, shortness of breath. A May 2010 private treatment records reflects that the Veteran was asymptomatic with regard to the January 2010 reparatory episode. It was noted that pulmonary function tests had been normal, and there was "no evidence of any underlying lung disease." There was no evidence of asthma. It was recommended that he undergo repeat CT scan. The impression was stable pulmonary nodules. A December 2010 VA treatment records reflects that the Veteran's pulmonary nodules were stable. In light of the above, the Board finds that the Veteran's history of colon polyps, his nodules of the lungs, and his cholesterol, are documented in the record, but have not been associated with an underlying disease pathology or other clinical diagnosis throughout the pendency of this appeal. But see McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). With regard to the colon polyps, although the Veteran had such prior to the appeal period, there is no indication that he has suffered from any colon polyps during the appeal period. Therefore, there is no current disability. With regard to his cholesterol and lung nodules, those documented clinical manifestations are tantamount to laboratory findings, which are not subject to VA compensation. See generally 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (noting that hyperlipidemia and other abnormal laboratory results are not, in and of themselves, disabilities for which VA compensation benefits are payable). Indeed, such findings do not rise to the level of "disabilities," which, for VA purposes, are limited to disorders that result in impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995) (noting that based on the definition found in 38 C.F.R. § 4.1 , the term disability "should be construed to refer to impairment of earning capacity due to disease, injury, or defect, rather than to the disease, injury, or defect itself"); see also Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992) (noting that in the absence of proof of a present disability, there is no valid claim of service connection). To that extent, the private treatment records specifically found no underlying respiratory condition. Furthermore, although diabetes mellitus can worsen cholesterol, as stated on VA examination, there is no disability manifested by or caused by high cholesterol as is necessary in this case. Consequently, the Board concludes that, on the basis of the facts presented, the Veteran has not met the initial element of the three-part test for service connection, as outlined above. The Board recognizes that the Veteran himself is of the opinion that the above laboratory findings and previous colon polyps are symptomatic of recognized disabilities, which are causally related to his period of qualifying active service. While a layperson, the Veteran is competent to attest to a history of exposure to chemicals in service, and his symptoms of pain, shortness of breath, and other tangible symptoms associated with elevated cholesterol, lung nodules, and colon polyps. Moreover, any assertions he makes in this regard are presumed credible in the absence of countervailing evidence. See Caluza, 7 Vet. App. at 511. Significantly, however, the Veteran has not demonstrated that he has the requisite expertise to comment on complex medical issues, such as the underlying disease pathology and etiology of the issues in this appeal. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007) (noting general competence to testify as to symptoms, but not to speak as to diagnosis or etiology except in limited circumstances in which nexus is obvious merely through lay observation, such as a fall leading to a broken leg.). Therefore, his assertions, standing alone, are insufficient to identify the diagnoses, if any, which account for such findings and the relationships, if any, which exist between those diagnoses and his active service. See Clyburn v. West, 12 Vet. App. 296, 301 (1999) ("Although the Veteran is competent to testify to the pain he has experienced since his [active service], he is not competent to testify to the fact that what he experienced in service and since service is the same condition he is currently diagnosed with."). In summary, the Board finds that, while the Veteran has been shown to have hyperlipidemia and nodules of the lungs, neither of those laboratory findings has been attributed to a clinical diagnosis, nor etiologically related to any aspect of his qualifying active service. Moreover, he has not been shown to suffer from colon polyps during the appeal period. Therefore, the Board finds that the preponderance of the evidence weighs against his claims for service connection in conjunction with such findings. Accordingly, the benefit of the doubt rule does not apply to those particular claims and they are denied. See 38 U.S.C.A. § 5107(b). ORDER Service connection for colon polyps is denied. Service connection for nodules of the lungs is denied. Service connection for high cholesterol is denied. REMAND Additional development is necessary prior to further disposition of the claims for service connection for hypertension and for sleep apnea. With respect to the Veteran's sleep apnea, the Veteran contends that his service-connected diabetes mellitus has aggravated his sleep apnea. In that regard, the record reflects that in January 2010, the Veteran was hospitalized for dyspnea with hypoxemia. On admission, he had low oxygen saturations which gradually improved. Following testing, no definitive diagnosis was provided. It was noted that the Veteran had diabetes mellitus. He was instructed on discharge to remain on Metformin, however, he was to drink plenty of fluids and have his renal status rechecked prior to continuing his Metformin therapy. The Veteran contends that his respiratory problems in 2010 were related to sleep apnea, and that his sleep apnea and diabetes mellitus affect one another as shown in the 2010 record. Accordingly, a VA opinion should be obtained to determine whether the Veteran's diabetes mellitus caused or aggravates his sleep apnea. With respect to the Veteran's hypertension, the Veteran contends that his diabetes mellitus aggravates his hypertension. In November 2010, a VA examiner concluded that the Veteran's hypertension was not a complication of his diabetes because it was diagnosed several years prior to his diabetes diagnosis. However, the examiner then stated that hypertension was a condition that was worsened or increased by diabetes, stating that renal nephropathy was a common complication of diabetes. However, it is unclear whether the examiner was making a general statement or was in fact stating that the Veteran's diabetes mellitus had in fact aggravated his hypertension due to renal nephropathy. Specifically, it is unclear whether the Veteran suffers from renal nephropathy in this case. Therefore, further clarification is necessary. Accordingly, the case is REMANDED for the following action: 1. Schedule the Veteran for a VA examination to ascertain the etiology of his sleep apnea. The claims file must be reviewed by the examiner and the examination report. The examiner should provide the rationale for all opinions provided. The examiner should specifically opine as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's service-connected diabetes mellitus caused or aggravated (beyond the normal progression of the disease) the Veteran's sleep apnea, taking into account that in 2010, the Veteran had to adjust his diabetes management due to breathing problems and his assertion that he was told that he must use a CPAP machine because of his diabetes mellitus. 2. Schedule the Veteran for a VA examination to ascertain the etiology of his hypertension. The claims file must be reviewed by the examiner and the examination report. The examiner should provide the rationale for all opinions provided. The examiner should specifically opine as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's service-connected diabetes mellitus caused or aggravated (beyond the normal progression of the disease) the Veteran's hypertension, stating whether the Veteran has renal nephropathy. The examiner should also provide an opinion as to whether it is as least as likely as not (50 percent probability or greater) that the Veteran's hypertension was caused or aggravated by his military service, to include as due to exposure to petroleum chemicals in service. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's claims should be readjudicated based on the entirety of the evidence. If the claims remain denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. 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. 2012). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs