Citation Nr: 1526355	
Decision Date: 06/22/15    Archive Date: 06/30/15

DOCKET NO.  13-32 950	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Chicago, Illinois


THE ISSUES

1.  Entitlement to service connection for peripheral neuropathy of the right and left upper and lower extremities.

2.  Entitlement to service connection for high cholesterol and triglycerides.

3.  Entitlement to service connection for hypertension, to include as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus (DM).

4.  Entitlement to an initial increased rating for DM. 


REPRESENTATION

Appellant represented by:	Illinois Department of Veterans Affairs




ATTORNEY FOR THE BOARD

Riley Michel


INTRODUCTION

The Veteran served on active duty from December 1968 to December 1972.  He was awarded the Combat Action Ribbon.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois. 

In a June 2012 rating decision, the RO granted service connection for DM, type II, with renal dysfunction (Agent Orange/Diabetes) at a 10 percent initial disability rating, effective from May 26, 2010.  In July 2012 the Veteran filed a notice of disagreement contesting the initial disability rating assigned to his DM. 

In April 2013 the RO in St. Louis, Missouri, issued a rating decision which granted an increased disability rating of 20 percent for DM, effective from July 25, 2012.  The Veteran continues to seek an increased evaluation for this disability.  See AB v. Brown, 6 Vet. App. 35, 38-39 (1993).  Jurisdiction over the case was subsequently retuned to the RO in Chicago, Illinois.

During the pendency of this appeal, the RO granted entitlement to service connection for erectile dysfunction as secondary to DM in an April 2014 rating decision.  Therefore, the appeal for service connection for erectile dysfunction has been resolved and is not before the Board.  

This appeal was processed using the Virtual VA and Veterans Benefits Management System (VBMS) paperless claims processing systems.  Accordingly, any future consideration of this appellant's case should take into consideration the existence of these electronic records.

The issues of entitlement to service connection for hypertension, to include as secondary to DM and Agent Orange exposure, as well as peripheral neuropathy of the upper and lower extremities, and entitlement to an initial increased rating for DM are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

High cholesterol and elevated triglycerides are laboratory findings and not disabilities for which VA disability benefits may be awarded.


CONCLUSION OF LAW

High cholesterol and elevated triglyceride levels are not diseases, disabilities, or injuries for which applicable law permits compensation or service connection.  38 U.S.C.A. §§ 101(16), 105(a), 1110, 1131 (West 2014); 38 C.F.R. § 3.303 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VA has met all statutory and regulatory notice and duty to assist provisions with the issues herein decided.  38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159 (2013). 

The RO's July 2010 letter advised the Veteran of the elements of the notice requirements.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); see also Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  It also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Accordingly, the RO satisfied the notice requirements with respect to the issue decided herein. 

The duty to assist the Veteran has also been satisfied.  The RO has obtained the Veteran's service treatment records and post-service treatment records.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  Although the Veteran was not provided with a VA examination addressing the etiology of his elevated cholesterol or triglycerides, an examination was not warranted in this case as the evidence does not show a disability for which service connection could be granted.  38 U.S.C.A. § 5103A (d); 38 C.F.R. § 3.159; see McLendon v. Nicholson, 20 Vet. App. 79, 83-86 (2006).  Finally, there is no indication in the record that additional evidence relevant to the issue being addressed is available and not already part of the record.  See Pelegrini v. Principi, 18 Vet. App. 112 (2004).  While the Board has requested in the remand that the agency of original jurisdiction attempt to obtain additional evidence concerning the other claims on appeal, as service connection cannot be granted for elevated cholesterol or triglycerides, no benefit would result to the Veteran if the claim were remanded.  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). 

Legal Criteria

Service connection may be established for a disability resulting from personal injury suffered or disease contracted in the line of duty, or for aggravation of a preexisting injury suffered or disease contracted in line of duty, in the active military, naval, or air service.  38 U.S.C.A. §§ 1110, 1131. 

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).

The term "disability," as used for VA purposes, refers to impairment of earning capacity, and Congress specifically limits entitlement to service connection for diseases or injuries that have resulted in a disability.  See 38 U.S.C.A. §§ 1110, 1131; Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc). 

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant.  38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim.  Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.

Analysis

A review of the record shows that the Veteran has a history of high cholesterol and elevated triglyceride levels.  These laboratory findings are not recognized as a disability for VA benefits purposes.  See 38 U.S.C.A. §§ 101(16), 105(a); 38 C.F.R. § 3.303(c); see also 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).

Based on the above reasons, the Board concludes that high cholesterol and elevated triglyceride levels are merely laboratory findings, and not a "disability" for which VA compensation benefits may be awarded.  Accordingly, service connection for high cholesterol and elevated triglycerides is not warranted.


ORDER

Service connection for high cholesterol and elevated triglycerides is denied.


REMAND

Hypertension and Peripheral Neuropathy

The Veteran contends that service connection is warranted for hypertension as the disability is related to service, to include exposure to Agent Orange, and/or is secondary to his service-connected DM.

In response to his claim, the Veteran was afforded a VA examination in February 2013 in which the examiner opined that the onset of hypertension did not occur with diabetic nephropathy, therefore it was less likely than not that the hypertension was secondary to the DM.

A VA addendum opinion in March 2014 stated that it was less likely than not that the hypertension was aggravated beyond normal progression by DM as the Veteran's hypertension management remained stable since the onset of DM and was well controlled. 

However, the opinions do not address whether the Veteran's hypertension is related to service, to include exposure to herbicides, namely Agent Orange.  Moreover, evidence is going to be developed on remand that is relevant to the secondary service connection aspect of the claim.

Accordingly, remand for an addendum opinion to address the etiology of the claimed hypertension is warranted.

In addition, it appears that there are outstanding records that may be relevant to the claims for service connection.  When the Veteran was seen at the Mayo Clinic in October 2006, the clinician noted "[h]is glycemic control has not changed greatly over the last two years."  Thus, it appears that there may be outstanding relevant evidence that is dated prior to October 2006.  Moreover, a March 2011 record of treatment with Dr. Dolan notes that the Veteran was seen to establish care and that he had previously been seen by Dr. Haslet.  Records of treatment with Dr. Haslet as well as any other physician who assessed or treated the Veteran for diabetes, hypertension, kidney disease and peripheral neuropathy should be sought on remand.  Finally, it is noted that the Veteran reported during the VA examination in February 2013 that he had seen a kidney specialist.  Those records should also be obtained.

DM

The Veteran is seeking a higher initial evaluation for his service-connected DM.

In a June 2012 rating decision, the RO granted service connection for DM, type II, with renal dysfunction (Agent Orange/Diabetes) at a 10 percent initial disability rating, effective from May 26, 2010.  In July 2012 the Veteran filed a notice of disagreement contesting the initial disability rating assigned to his DM. 

In April 2013 the RO in St. Louis, Missouri, issued a rating decision which granted an increased disability rating of 20 percent for DM, but only effective from July 25, 2012.  The Veteran continues to seek an increased evaluation for this disability.  See AB, 6 Vet. App. 35, 38-39. 

As the RO has not yet issued a statement of the case addressing this issue, the Board must remand this issue for the RO to issue a statement of the case and to provide the Veteran and his representative an opportunity to perfect an appeal of such issue.  Manlicon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1.  Request that the Veteran provide or authorize the release of any outstanding relevant evidence pertaining to the assessment or treatment of diabetes, hypertension, kidney disease and/or peripheral neuropathy that is dated prior to October 2006 and thereafter, including but not limited to records from Dr. Haslet, the kidney specialist the Veteran reported having seen during the VA examination in February 2013, and any updated records of Dr. Dolan dating from December 2012.

2.  Thereafter, arrange for a review of the electronic claims file by the VA examiner who examined the Veteran in February 2013 for his hypertension.  If the examiner who drafted the February 2013 opinion is unavailable, the opinion should be rendered by another appropriate medical professional.  The need for another examination is left to the discretion of the medical professional offering the addendum opinion.  The examiner is asked to opine as to the following:

(i) Is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's hypertension had its onset during service; or was caused by an incident or event that occurred during service, to include presumed Agent Orange exposure in Vietnam?

In providing this opinion, the examiner's attention is directed to the 2006 conclusion of the National Academy of Sciences (NAS) that found "limited or suggestive evidence of an association" between herbicide exposure and hypertension (notwithstanding that VA has not added hypertension to the list of conditions under 38 C.F.R. § 3.309 for which presumptive service connection due to Agent Orange exposure is available).  Relevant points addressed by the examiner may include, but are not limited to, why the clinician finds studies persuasive or unpersuasive, whether the veteran has other risk factors for developing the claimed condition, and whether the claimed condition has manifested in an unusual manner.

(ii) Is it at least as likely as not (i.e., probability of 50 percent or greater) the Veteran's service-connected DM caused him to develop hypertension?

(iii) Is it at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service connected DM aggravated (i.e., permanently worsened) hypertension beyond the natural progress of that disorder?  

In providing the responses to (ii) and (iii), the examiner should explain the significance, if any, of the presence or absence of diabetes-related kidney disease.  

The examiner must also discuss the rationale for the opinions, whether favorable or unfavorable, if necessary citing to specific evidence of the record.

3.  After completing the above actions, to include 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.

4.  Issue a statement of the case and notification of the Veteran's appellate rights on the issue of entitlement to an initial increased evaluation for DM.  See 38 C.F.R. §§ 19.29, 19.30 (2014).  The Veteran and his representative are reminded that to vest jurisdiction over this issue with the Board, a timely substantive appeal must be filed.  38 C.F.R. § 20.202 (2014).  If the Veteran perfects an appeal of this issue, it must be returned to the Board for appellate review.

The appellant has the right to submit additional evidence and argument on the 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 2014).


______________________________________________
S. S. TOTH
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs