Citation Nr: 1329362 Decision Date: 09/13/13 Archive Date: 09/20/13 DOCKET NO. 09-02 802 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Des Moines, Iowa THE ISSUES 1. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for high cholesterol. 2. Entitlement to service connection for high cholesterol. 3. Whether new and material evidence has been received to reopen a claim for entitlement to service connection for hypertension. 4. Entitlement to service connection for hypertension, to include as secondary to the medication used to treat a service-connected disability. ATTORNEY FOR THE BOARD M. Donohue, Counsel INTRODUCTION The Veteran served on active duty from August 1970 to August 1973 and from June 1977 to July 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal of an August 2006 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Des Moines, Iowa. The Veteran was scheduled to appear for a hearing with a Veterans Law Judge (VLJ) in January 2013. He requested a postponement of this hearing and was rescheduled for a hearing to take place in July 2013. He failed to report for this hearing. The Veteran has provided no explanation for his failure to report and has not since requested that the hearing be rescheduled. His hearing request, therefore, is deemed withdrawn. See 38 C.F.R. §§ 20.702(d); 20.704(d) (2012). Although the RO has implicitly reopened the Veteran's claims for service connection and denied them on the merits, the Board must make its own determination as to whether new and material evidence has been received to reopen a claim. That is, the Board has a jurisdictional responsibility to consider whether it was proper for a claim to be reopened, regardless of the finding of the RO. See Jackson v. Principi, 265 F.3d 1366 (Fed. Cir. 2001). Therefore, the issues have been characterized as noted on the title page. In the above-mentioned August 2006 rating decision, the RO also denied the Veteran's claim of service connection for headaches. The Veteran indicated his disagreement with this decision and the RO issued a statement of the case (SOC) in December 2008 which addressed this issue as well as the issues listed above. However, the Veteran's March 2009 substantive appeal [VA Form 9] did not list headaches among the issues being appealed. See 38 C.F.R. § 20.202 (2012) (if a SOC lists several issues, the substantive appeal must either indicate that the appeal is being perfected as to all issues or must specifically identify the issues being appealed). Accordingly, an appeal was not perfected as to the issue of entitlement to service connection for headaches and that issue is not before the Board. See Archbold v. Brown, 9 Vet.App. 124, 130 (1996) (pursuant to 38 U.S.C.A. § 7105(a), the filing of a notice of disagreement initiates appellate review in the VA administrative adjudication process, and the request for appellate review is completed by the claimant's filing of a substantive appeal after a statement of the case is issued by VA). As discussed in further detail in the following decision, the Board finds that new and material evidence sufficient to reopen the previously denied claim of entitlement to service connection for a hypertension has been received. The de novo claim for service connection 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. In a June 1997 rating decision, the RO denied the Veteran's claim for abnormal electrocardiogram (EKG) results. He appealed this decision and the issue was recharacterized to include his claimed high cholesterol. The Veteran subsequently withdrew his appeal in April 2000. 2. Evidence received since the June 1997 rating decision, as to the issue of entitlement to service connection for high cholesterol, has not previously been presented, and is so significant that it must be considered in order to fairly decide the merits of the claim. 3. Elevated cholesterol is a laboratory finding and not a disability; it has not been shown that the Veteran has any disability associated with elevated cholesterol of service origin. 4. In an unappealed February 1998 rating decision, the RO denied the claim for service connection for hypertension. 5. Evidence received since the February 1998 rating decision as to the issue of entitlement to service connection for hypertension has not previously been presented, and is so significant that it must be considered in order to fairly decide the merits of the claim. CONCLUSIONS OF LAW 1. The June 1997 rating decision that denied service connection abnormal EKG results, and was later recharacterized to include complaints of high cholesterol is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.204, 20.1103 (2012). 2. New and material evidence has been submitted since the last prior, final denial of the high cholesterol claim such that the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). 3. A disability manifested by hyperlipidemia (elevated cholesterol) was not incurred in or aggravated by service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 4. The February 1998 rating decision that denied service connection hypertension is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.160(d), 20.200, 20.201, 20.302, 20.1103 (2012). 5. New and material evidence has been submitted since the last prior, final denial of the hypertension claim in February 1998, such that the claim is reopened. 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's 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); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). In this case, the Board finds that VA's compliance with the mandates of the VCAA is sufficient to permit review of the petition to reopen the previously denied claim of entitlement to service connection for hypertension, which is remanded for further development as discussed below. As the Board's determination represents a grant of the petition to reopen, a detailed discussion of the impact of the VCAA on this appeal is not necessary. In view of the outcome, any deficiencies in such notice or assistance have not prejudiced the Veteran. See 38 U.S.C.A. §§ 5103, 5103A (West 2002); 38 C.F.R. § 3.159 (2012); Mayfield v. Nicholson, 19 Veteran. App. 103, (2005), rev'd on other grounds Mayfield v. Nicholson, 444 F.3d. 1328 (2006); Kent v. Nicholson, 20 Vet. App. 1 (2006). With regard to the claim of service connection for hyperlipidemia, notice is not required because the issue presented involves a claim that cannot be substantiated as a matter of law. See Sabonis v. Brown, 6 Vet.App. 426, 430 (1994) (where the law and not the evidence is dispositive the Board should deny the claim on the ground of the lack of legal merit or the lack of entitlement under the law); VAOPGCPREC 5-2004 (June 23, 2004) (VA is not required to provide notice of the information and evidence necessary to substantiate a claim where that claim cannot be substantiated because there is no legal basis for the claim or because undisputed facts render the claimant ineligible for the claimed benefit). I. Law and Regulations In general, RO rating decisions that are not timely appealed are final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). Pursuant to 38 U.S.C.A. § 5108, a finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. New evidence means existing evidence not previously submitted to agency decision makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a) (2012). For the purpose of establishing whether new and material evidence has been received, the credibility of the evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510, 513 (1992). In general, service connection may be granted for disability resulting from a disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2012). 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 or injury was incurred in service. See 38 C.F.R. § 3.303(d) (2012). In order to establish service connection for the claimed disorder, there must be (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); see also Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). 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. See Baldwin v. West, 13 Vet. App. 1, 8 (1999). Certain chronic disabilities, to include hypertension, are presumed to have been incurred in or aggravated by service if manifest to a compensable degree within one year of discharge from service. 38 U.S.C.A. §§ 1110, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309(a). With 'chronic disease' shown as such in service (or within the presumptive period under § 3.307), so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected, unless clearly attributable to intercurrent causes. 38 C.F.R. § 3.303(b). For the showing of a '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. 38 C.F.R. § 3.303(b). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. The term 'chronic disease,' whether as manifest during service or manifest to a compensable degree within a presumptive window following service, applies only to those disabilities listed in 38 U.S.C.A. § 1101 and 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, note(1) to Diagnostic Code 7101. II. New and Material - High Cholesterol The Veteran was initially denied service connection for abnormal electrocardiogram (EKG) results in an August 1996 rating decision. The Veteran appealed this decision and argued that in addition to his abnormal EKG test results, he has "heart flutters" and high cholesterol. In a February 1999 SOC, the RO recharacterized the Veteran's claim of service connection for abnormal EKG results to include a heart flutter and high cholesterol. The Veteran subsequently submitted a VA Form 9 and perfected an appeal as to this issue. The RO issued a SSOC in February 2000 which addressed the Veteran's claim for high cholesterol along with twenty other issues. However, in a statement received in April 2000, the Veteran indicated that he wished to withdraw all but five of these issues. His claim for abnormal EKG reports to include a heart flutter and high cholesterol were among the issues being withdrawn. The claims that remained on appeal were addressed by the Board in subsequent decisions. When the Veteran's claim was denied by the RO, the record contained his service treatment records, medical treatment records, VA examination reports, lay statements, and a September 1997 hearing transcript. Based on this evidence, the RO denied the Veteran's claim on the basis that high cholesterol is a medical finding and is not a diagnosed disability. It was noted that the medical records and VA examinations show that he had "no cardiovascular problems." The August 1996 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 3.104, 20.1103 (2012). As explained, the Veteran's claim for service connection may only be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The evidence associated with the Veteran's claims folder since the August 1996 rating decision includes a January 2008 VA treatment record which diagnosed the Veteran with hyperlipidemia. (Hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 891 (32th ed. 2012)); cited by Williams v. Shinseki, No. 12-1757 (Vet.App. Aug.31, 2013) (cited for definitional purposes only). This evidence is new and material because it relates to an unestablished fact necessary to substantiate the claim, namely, the existence of elevated cholesterol. As the new evidence is neither cumulative nor redundant the claim is therefore reopened. See 38 C.F.R. § 3.156 (2012). III. Service connection - High Cholesterol The Board has reopened the Veteran's service connection claim and is considering moving forward to discuss the claim on its merits. Before doing so, however, the Board must consider certain procedural concerns. In Bernard v. Brown, 4 Vet. App. 384 (1993), the Court held that when the Board addresses in a decision a question that has not been addressed by the RO, it must consider whether the claimant has been given adequate notice and opportunity to respond and, if not, whether the claimant will be prejudiced thereby. In the instant case, the Veteran was apprised of what is required to establish a claim of entitlement to service connection on a direct basis in an April 2006 letter. The RO also adjudicated the Veteran's claim on the merits, rather than the under the more limited question of whether new and material evidence had been received. In any event, as discussed, the Board is denying the Veteran's claim as a matter of law. As such, any due process problem cannot result in prejudice to the Veteran. 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) (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.). The term 'disability' as used for VA purposes refers to impairment of earning capacity. See Allen v. Brown, 7 Vet.App. 439, 448 (1995). The Veteran has argued that he had elevated cholesterol during service and currently has high cholesterol. See, e.g., the January 2007 notice of disagreement. He was informed in the August 2006 rating decision that "elevated cholesterol is considered a laboratory finding and is not, in itself[,] a disability for which service connection may be considered." He has presented no evidence to the contrary. There is no evidence of record suggesting the Veteran's hyperlipidemia or elevated cholesterol causes any impairment of earning capacity. Service connection may not be granted for a laboratory finding, standing alone. In the absence of proof of present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet.App. 223 (1992); see 38 U.S.C.A. §§ 1110, 1131. Nothing in the record shows the Veteran has a current disability manifested by elevated cholesterol. The Board acknowledges that lay testimony is competent to establish the presence of observable symptomatology and "may provide sufficient support for a claim of service connection." Layno, 6 Vet.App. at 465. When a condition may be diagnosed by its unique and readily identifiable features, the presence of the disorder is not a determination 'medical in nature' and is capable of lay observation. In such cases, the Board is within its province to weigh that testimony and to make a credibility determination as to whether that evidence is sufficient to support a claim for service connection. See Barr v. Nicholson, 21 Vet.App. 303 (2007). Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). In the present case, none of the Jandreau exceptions apply. The issue on appeal is based on the contention that high cholesterol is a disability. However, when the Veteran's service and post-service medical records are considered together with the applicable law (which shows that there is no competent evidence to show that the claimed condition has been associated with a disability), the Board finds that the evidence outweighs the Veteran's contentions that his high cholesterol warrants service connection. Accordingly, because the Veteran does not have a current disability for which service connection may be granted, the Board concludes that the preponderance of the evidence is against his claim of service connection for elevated cholesterol, and his claim must be denied. 38 C.F.R. § 3.102; see also Alemany v. Brown, 9 Vet. App. 518, 519 (1996). IV. New and Material - Hypertension The RO denied the Veteran's original claim of service connection for hypertension in a June 1997 rating decision. Following the receipt of additional evidence, the Veteran's claim was readjudicated and denied in a February 1998 rating decision. The Veteran was notified of this decision and of his appeal rights in a March 1998 letter, but did not perfect a timely appeal of that denial. Moreover, no new and material evidence pertaining to the Veteran's hypertension was associated with the claims file within one year of the RO's decision. When the Veteran's claim was denied in February 1998, the record contained his service treatment records, VA examination reports, medical records, and the Veteran's hearing testimony. Based on this evidence, the RO denied the Veteran's claim because there was no evidence that the Veteran had been diagnosed with hypertension and his service treatment records were negative for any finding of hypertension. The February 1998 rating decision is final. See 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.1103 (2012). As explained, the Veteran's claim for service connection may be reopened if new and material evidence is received. See 38 U.S.C.A. § 5108 (West 2002); 38 C.F.R. § 3.156 (2012); see also Barnett v. Brown, 83 F.3d 1380, 1383 (Fed. Cir. 1996). The evidence associated with the Veteran's claims folder since February 1998 includes VA treatment records, VA examination reports, statements from the Veteran and articles from the internet. Pertinent to this determination, the Veteran's VA treatment records indicate that he has been diagnosed with hypertension. See a February 2004 VA treatment record. The Veteran's claim was previously denied, in part, because there was no evidence of a current disability. As noted, there is now evidence that indicates that the Veteran has been diagnosed with hypertension. Obviously, this evidence is new in that it was not previously of record. Moreover, this evidence relates to an unestablished fact necessary to substantiate his claim. For these reasons, the Board finds that the evidence received since February 1998 warrants a reopening of the Veteran's claim of service connection for hypertension, as it is new and material evidence within the meaning of 38 C.F.R. § 3.156(a). ORDER The application to reopen a claim for entitlement to high cholesterol is granted. Service connection for hyperlipidemia is denied. The application to reopen a claim for service connection for hypertension is granted. REMAND As discussed above, the claim for service connection for hypertension is reopened based on the receipt of new and material evidence. However, before addressing the merits of this claim the Board finds that additional development is required. In his April 2006 claim, the Veteran alleged that he developed high blood pressure during service, or that he currently has hypertension as a result of medications prescribed for his service-connected disabilities. Upon review, while the Veteran's service treatment records do not indicate that he was diagnosed with hypertension while on active duty, these records indicate that he had a diastolic blood pressure of 90 mm or more on several occasions. See service treatment records in August 1990, December 1994. In addition, the Veteran has been granted service connection for thirty-one disabilities. Consequently, this issue contains certain questions which cannot be answered by the Board. See Colvin v. Derwinski, 1 Vet.App. 171, 175 (1991) (the Board is prohibited from exercising its own independent judgment to resolve medical questions). These questions concern whether the Veteran's hypertension had its clinical onset during service or is otherwise related to active duty, or whether his hypertension was caused or aggravated (permanently worsened beyond normal progression) by the medication used to treat one of his service-connected disabilities. See Charles v. Principi, 16 Vet.App. 370 (2002); see also 38 C.F.R. § 3.159(c)(4) (2012) (a medical examination or opinion is necessary if the information and evidence of record does not contain sufficient competent medical evidence to decide the claim). Finally, the Veteran has been receiving ongoing treatment at the VA Medical Center in Des Moines, Iowa. On remand, the Veteran's treatment records should also be obtained and associated with his claims folder. 38 U.S.C.A. § 5103A(c) (West 2002). See also Bell v. Derwinski, 2 Vet.App. 611 (1992) (VA medical records are in constructive possession of the agency and must be obtained if pertinent). Accordingly, the reopened issue of entitlement to service connection for hypertension, to include as secondary to the medication used to treat a service-connected disability is REMANDED for the following action: 1. The RO/AMC should conduct a search for any relevant outstanding VA treatment records from the VAMC in Des Moines, Iowa, since November 2011. 2. The RO/AMC should schedule the Veteran for a VA examination to determine the nature and etiology of the Veteran's hypertension. The claims folder must be provided to the examiner for review. All necessary testing should be conducted. Following examination and review of the claims folder, the examiner is requested to provide an opinion on the following questions: A) Where there characteristic manifestations of hypertension identified during service? B) Is at least as likely as not, i.e., a 50 percent probability or greater, that hypertension is due to an injury or other event of the Veteran's period of active service? In rendering an opinion, the examiner should comment on the service treatment records which indicate that the Veteran had a diastolic blood pressure of 90mm or more. C) Is at least as likely as not, i.e., a 50 percent probability or greater, that any current identified hypertension was caused or aggravated (permanently worsened beyond normal progression) by the medication used to treat his service-connected diseases? Complete rationale should be provided for all opinions expressed. 3. After completing all indicated development, the RO should readjudicate the issue remaining on appeal in light of all the evidence of record. If the benefit sought on appeal remains denied, the Veteran and his representative should be furnished with a fully responsive SSOC and afforded a reasonable opportunity for response. Thereafter, if indicated, the case should be returned to the Board for the purpose of appellate disposition. 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 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). ______________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs