Citation Nr: 1742272	
Decision Date: 09/26/17    Archive Date: 10/04/17

DOCKET NO.  12-10 150	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUES

1.  Entitlement to service connection for high cholesterol.

2.  Entitlement to service connection for a heart disorder.


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

D. Barrett, Associate Counsel


INTRODUCTION

In June 2017, the Veteran testified at a video conference Board hearing before the undersigned Veterans Law Judge.  A transcript of that proceeding is of record.

In the present appeal, the Veteran seeks service connection for a fatigue and lightheadedness.  At his hearing before the undersigned, the Veteran testified that he believes his symptoms of fatigue and lightheadedness are manifestations of an underlying heart disability, and specifically hypertrophic obstructive cardiomyopathy.    

Upon review of the file, the Board notes that the current claim is based on the same factual basis as his previously denied claim for service connection for cardiomyopathy, which was denied in May 1994.  In considering whether the claim presented is one to reopen or is a new claim to be adjudicated on the merits, "the focus of the Board's analysis must be on whether the evidence presented truly amounts to a new claim 'based upon distinctly diagnosed diseases or injuries' or whether it is evidence tending to substantiate an element of a previously adjudicated matter."  Velez v. Shinseki, 23 Vet. App. 199, 204 (2009) (quoting Boggs v. Peake, 520 F.3d 1330, 1337 (Fed. Cir. 2008).  Therefore, under Boggs and Velez, new and material evidence is required to reopen the Veteran's claim of entitlement to service connection for a heart disability, now claimed as fatigue and lightheadedness, as this claim is part-and-parcel of the previously denied claim and the underlying basis for the current claim arises from the same circumstances/injury as the previously denied claim.  

Generally, new and material evidence would be required where a Veteran seeks to reopen a previously denied claim, as in this instance.  However, the Board observes that subsequent to the May 1994 rating action, additional service department records were received from the Veteran.  Based on the listing of evidence in the prior rating decisions, these records were not previously considered.  As these records are pertinent to the claim, the claim is being reconsidered without regard to the finality of the prior rating decision.  38 C.F.R. § 3.156 (c).  

Finally, the Board has also recharacterized the issue on appeal as 'entitlement to service connection for a heart disorder' shown on the title page.  See Clemons v. Shinseki, 23 Vet. App. 1 (2009); Brokowski v. Shinseki, 23 Vet. App. 79, 86-87 (2009).

The issue of service connection for a heart disorder is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDING OF FACT

High cholesterol is not a disability for VA benefits purposes.


CONCLUSION OF LAW

The criteria for service connection for high cholesterol are not met.  38 U.S.C.A. §§ 1131, 5107(b) (West 2015); 38 C.F.R. § 3.303 (2016).


REASONS AND BASES FOR FINDING AND CONCLUSION

Analysis

The Veteran seeks entitlement to service connection for high cholesterol.  The Board has limited the discussion below to the relevant evidence required to support its findings of fact and conclusions of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record.  See Robinson v. Peake, 21 Vet. App. 545, 552 (2008).

Service connection will be granted for a disability resulting from a disease or injury incurred in or aggravated by active military, naval, or air 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 the evidence, including that pertinent to service, establishes that the disease incurred in service.  38 C.F.R. § 3.303(d).  

High cholesterol is also referred to as hypercholesterolemia or hyperlipidemia and post-service treatment records document diagnoses of hyperlipidemia and hypercholesterolemia.  See November 2003 Augusta VA Medical Center diagnosis notes and March 2006 primary care physician assistant note.  A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect."  38 U.S.C.A. § 1701(1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities").  The Court in Allen also indicated that disability for VA compensation purposes refers to impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself.  Id.

VA has in its rulemaking capacity indicated that high cholesterol does not fall within VA's definition of disability for which compensation is warranted.  61 Fed. Reg. 20440, 20445 (May 7, 1996) (supplementary information preceding revisions to criteria for evaluating endocrine system indicating that hyperlipidemia, elevated triglycerides, and elevated cholesterol "are actually laboratory test results, and are not, in and of themselves, disabilities").

In the absence of proof of present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992).  See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C.A. § 1131 as requiring the existence of a present disability for VA compensation purposes).  

As such, service connection for high cholesterol must be denied as a matter of law, and the benefit of the doubt doctrine is therefore not for application.  38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990).


ORDER

Service connection for high cholesterol is denied.


REMAND

Although the Board regrets the delay, remand is necessary to ensure that due process is followed and that there is a complete record upon which to decide the Veteran's claims so that he is afforded every possible consideration.  See 38 U.S.C.A. § 5103A (West 2015); 38 C.F.R. § 3.159 (2016).

The Veteran asserts that his heart disorder was aggravated by his period of active duty service from November 1990 to October 1991.  He asserts that the physical stress of service, including as a result of his military occupational specialty and duties as PT instructor, caused him to develop cardiomyopathy.  

Service treatment records from the Veteran's first period of service are negative for a diagnosed heart disability.  The Veteran was hospitalized for idiopathic atrial fibrillation in June 1984.  The Veteran was called to active duty in November 1990.  A physical examination was conducted on November 7, 1990 for purposes of activation; the examination revealed abnormal heart findings.  The Veteran was noted to have a history of PA tachy/fibrillation.  He was found fit for retention.  The accompanying Report of Medical History shows that he was on medication for a 5 year history of an irregular heart beat and received treatment at a VA hospital.  

In January 1991, the Veteran sought treatment at a VA medical center for loss of sensation in his hands with numbness and tingling attenuating from the left to the right hands for approximately 90 to 100 minutes and chest pain for about a week.  The Veteran was issued a permanent physical profile against strenuous physical exertion.  In April 1991, a medical board found the Veteran was not qualified for retention based on findings of a soft systolic ejection murmur, left lower sternal border; and cardiomyopathy.  The formal diagnosis was hypertrophic obstructive cardiomyopathy.  In May 1991, a Medical Evaluation Board (MEB) determined that the hypertrophic cardiomyopathy was incurred during a period of base pay.  However, in September 1991, a Physical Evaluation Board (PEB) determined that the Veteran's cardiomyopathy had existed prior to service and was not permanently aggravated by service after conducting additional development which included a hearing.

The claims file does not contain an opinion regarding the etiology of the Veteran's heart disorder, and specifically whether it was aggravated by military service.  Therefore, upon remand the Veteran should be afforded a VA examination and the opportunity to submit any additional evidence pertinent to his claim.

Accordingly, the case is REMANDED for the following action:

1.  Contact the Veteran and request that he identify any outstanding medical records not already associated with the claims file.  After receiving authorization, request outstanding treatment records from any identified treatment provider.  If these records are unavailable, the Veteran's claims file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e).  Also, obtain all VA treatment records from June 2016 to present.

2.  Schedule the Veteran for an appropriate VA examination to determine the nature and etiology of his heart disorder.  The entire claims folder, and a copy of the Remand, must be provided to and reviewed by the examiner.  All indicated tests and studies should be performed, and all findings should be set forth in detail.  

The examiner is asked to identify all current heart disabilities found present on examination or during the pendency of the appeal.  Then following review of evidence, the examiner should address each of the following questions:

(a) Does the evidence of record clearly and unmistakably show (i.e., this is an onerous test, it must be undebatable) that hypertrophic obstructive cardiomyopathy existed prior to the Veteran's period of active duty from November 17, 1990 to October 14, 1991?

(b) If the evidence clearly and unmistakably shows hypertrophic obstructive cardiomyopathy existed upon the Veteran's entrance into service from November 17, 1990 to October 14, 1991, does the evidence of record also clearly and unmistakably show that this disability was NOT aggravated by that period of service or; that any increase in disability was due to the natural progression of the disease?

The examiner is advised that aggravation is defined for legal purposes as a chronic worsening of the underlying condition beyond its natural progression versus a temporary flare-up of symptoms.  

(c) If the answer to either b) or c) is no, then is it at least as likely as not (e.g. at least a 50 percent probability) that the hypertrophic obstructive cardiomyopathy had onset during that period of service from November 17, 1990 to October 14, 1991; or is it otherwise related to that period of service?

d) If atrial fibrillation is found on current examination or during the pendency of the appeal, the examiner is asked to answer the same questions (a) - (c) with respect to that diagnosis.

e) For any other heart disability found present on current examination (other than hypertrophic obstructive cardiomyopathy and atrial fibrillation), is it at least as likely as not that such disability had onset during, or is otherwise related to any period of active service?

The examination report must include a thorough rationale for all opinions expressed.  In offering the opinion, and to eliminate the necessity for another opinion, the clinician must consider the full record.  If the examiner feels that a requested opinion cannot be rendered without resorting to speculation, the examiner must state why this is so.

3.  Finally, readjudicate the appeal.  If the benefit sought is not granted, furnish the Veteran and his representative a supplemental statement of the case and afford them an opportunity to respond.

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 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 2015).



______________________________________________
D. JOHNSON
Veterans Law Judge, Board of Veterans' Appeals

Under 38 U.S.C.A. § 7252 (West 2015), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims.  The remand portion is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal.  38 C.F.R. § 20.1100(b) (2016).

Department of Veterans Affairs