Citation Nr: 1330009	
Decision Date: 09/19/13    Archive Date: 09/25/13

DOCKET NO.  10-45 910	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Cleveland, Ohio


THE ISSUES

1.  Entitlement to service connection for dyslipidemia. 

2.  Entitlement to service connection for a heart disability to include hypertension, claimed as elevated blood pressure readings. 

3.  Entitlement to service connection for diabetes mellitus type II. 

4.  Entitlement to an increased rating in excess of 30 percent for posttraumatic stress disorder (PTSD). 


REPRESENTATION

Appellant represented by:	Carl K. Price, Claims Agent



WITNESSES AT HEARING ON APPEAL

Appellant and spouse


ATTORNEY FOR THE BOARD

Adrian Jackson, Counsel


INTRODUCTION

The Appellant is a Veteran who served on active duty from July 1967 to July 1969.  He had combat service in Vietnam. 

This matter comes to the Board of Veterans' Appeals ("Board") on appeal from a January 2010 rating decision issued by the Department of Veterans Affairs ("VA") Regional Office ("RO") in Cleveland, Ohio, which denied the Veteran's claims.

In July 2011, the Veteran testified during a Board video conference hearing before the undersigned Veterans Law Judge sitting in Washington, DC.  In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that 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 undersigned VLJ set forth the issues to be discussed at the hearing.  The Veteran's representative asked questions pertinent to the requirements of service connection.  Thus, any error in this regard is nonprejudicial.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record.

Here, although the Veteran has claimed entitlement to service connection for elevated blood pressure, the record reflects that he is generally seeking service connection for a heart disability and hypertension.  In light of the Clemons case, the Board finds that the claim for service connection should be considered as set forth above. Clemons v. Shinseki, 23 Vet. App. 1   (2009). 

The issues of service connection for diabetes mellitus and a heart disability to include hypertension and an increased rating for PTSD 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.


FINDING OF FACT

Dyslipidemia is a laboratory finding, not a disease or disability under VA law and regulations.

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

Before addressing the underlying merits of a claim, the Board generally is required to ensure that VA's duties to notify and assist the claimant with the claim have been satisfied under the Veterans Claims Assistance Act (VCAA).  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).

The Board also notes that the United States Court of Appeals for Veterans Claims (Court) has held that in cases where the law is dispositive of the claim, the claim should be denied due to a lack of entitlement under the law and VCAA notice is not required.  See Sabonis v. Brown, 6 Vet. App. 426 (1994); also see Parker v. Principi, 15 Vet. App. 407, 412 (2002); Livesay v. Principi, 15 Vet. App. 165, 178-79 (2001).  

Therefore, as discussed below, because the claim of entitlement to a service connection for dyslipidemia is being denied as a matter of law for reasons that will be explained below, the Board finds that discussion of the mandates of the VCAA is not required.  Also in this regard, while the Veteran has not been afforded a VA examination for his claim for dyslipidemia, a VA examination would not change the outcome of that decision. 

In general, service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active military service.  38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a).

To establish entitlement to direct service connection for the claimed disability, there must be:  (1) medical evidence of current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus or link between the claimed in-service disease or injury and the current disability.  Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004), citing Hansen v. Principi, 16 Vet. App. 110, 111 (2002).

Service connection is granted for disabilities.  As noted, there must be a current disability Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998).  The term "disability" as used in chapter 11, and specifically in § 1110, which provides compensation, should be construed to refer to impairment of earning capacity due to disease, injury, or defect.  See Allen v. Brown, 7 Vet. App. 439, 448 (1995).  Therefore, not every medical condition is a disability within the meaning of the law and regulations providing benefits.  38 C.F.R. §§ 3.303, 4.9.  The Court has affirmed that it is permissible for VA to interpret and refine what is meant by "disability" in section 1110.  See Palczewski v. Nicholson, 27 Vet. App. 174 ( 2007). 

VA has determined that dyslipidemia is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable.  See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445  (May 7, 1996), noting that diagnoses of dyslipidemia, 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.  As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law.  Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994).  

Service connection cannot be granted for dyslipidemia. 


ORDER

Service connection for dyslipidemia is denied.


REMAND

The Board is of the opinion that additional evidentiary development is required prior to resolution of the remaining claims.  The Veteran is claiming that an increased rating is warranted for PTSD.  At his video conference hearing,  he and his spouse reported that his symptoms have increased in severity.  A VA examination was conducted in November 2009.  Given that nearly four years have passed since the most recent VA compensation examination, the evidence has become stale, at least as it pertains to the current level of disability.  Therefore, the Board finds that the Veteran should be afforded another VA compensation examination to assess the current degree of disability of his PTSD.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181-82 (2007); Snuffer v. Gober, 10 Vet. App. 400, 403 (1997).

The Veteran testified that VA medical personnel have now diagnosed diabetes mellitus type II.  Related evidence is not on file. Any outstanding VA medical records need to be obtained for consideration in this appeal.  38 C.F.R. § 3.159(c)(1), (c)(2) and (c)(3).  See also Bell v. Derwinski, 2 Vet. App. 611, 613 (1992) (VA records are constructively part of the record and must be considered). Since the records shows that the Veteran served in Vietnam, and diabetes mellitus type II is considered a presumptive disease of Agent Orange exposure, further examination is needed.  

Additionally, the Veteran has been diagnosed as having elevated blood pressure; however, the record is unclear as to whether the Veteran has an underlying heart disability, to include ischemic heart disease or hypertension.  Thus, further examination and opinion is needed.  

Accordingly, the case is REMANDED for the following action:

1.  Give the Veteran an opportunity to identify any healthcare provider that has treated him for his PTSD, heart problems, high blood pressure, and diabetes mellitus type II.  And after securing any necessary authorization from him, obtain all identified treatment records that are not already on file, including especially, but not limited to, those at the VA facility in Grove City.  Appropriately notify the Veteran of any inability to obtain any identified records. 

2.  The Veteran should be scheduled for an appropriate VA compensation examination to determine the nature and etiology of any heart disability and/or hypertension. The claims file must be provided to the examiner.  The examiner must identify any current heart disorders and determine whether the Veteran has hypertension.  For any heart disorder that is not identified as ischemic heart disease, an opinion should be provided as to whether it is at least as likely as not that such heart disability is related to a disease or injury in service. For any diagnosed hypertension, an opinion should be provided as to whether it is at least as likely as not that such is related to a disease or injury in service, developed within one year of service separation, or is caused or aggravated by a service-connected disability.

3.  The Veteran should be scheduled for an appropriate VA compensation examination to determine whether he has diabetes mellitus, type II currently.  The claims file must be provided to the examiner for review in conjunction with the examination. All appropriate testing should be accomplished.  

4.  Also schedule a VA compensation examination to reassess the severity of the Veteran's PTSD.  To this end, the examiner is asked to report on the presence or absence of the specific symptoms in the General Rating Formula for Mental Disorders, but more so on how these and any other symptoms (even if not listed in the rating criteria) affect the Veteran's social and occupational functioning.  The examiner also must assign a GAF score consistent with DSM-IV and explain what the assigned score means, including in terms of the functional (social and occupational) impairment specifically attributable to the PTSD versus conditions that are not service connected, whether mental or physical.

All diagnostic testing and evaluation needed to make these determinations should be performed, and all clinical findings reported in detail.  The claims file must be made available to the examiners for review of the pertinent medical and other history. 

*The Veteran is hereby advised that his failure to report for the scheduled VA examinations, without good cause, may have detrimental consequences on these pending claims.  38 C.F.R. § 3.655.

5.  Then readjudicate these claims in light of this and all other additional evidence.  If these claims are not granted to the Veteran's satisfaction, send him and his representative a supplemental statement of the case (SSOC) and give them an opportunity to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of these claims.

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).

These claims 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. Parakkal
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs