Citation Nr: 1743931 Decision Date: 09/14/17 Archive Date: 10/10/17 DOCKET NO. 12-14 364 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for a heart disorder, to include coronary artery disease (CAD), mixed dyslipidemia, and residuals of a myocardial infarction (MI). 2. Entitlement to service connection for high cholesterol. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J. Coogan, Associate Counsel INTRODUCTION The Veteran had active service from June 1987 to June 1989 . These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. The Veteran testified at a video conference hearing before the undersigned Veterans Law Judge (VLJ) in May 2017. A transcript of the hearing is of record. FINDINGS OF FACT 1. A chronic heart disorder, to include coronary artery disease, mixed dyslipidemia, and residuals of a myocardial infarction, was not manifest during service, was not manifest within one year of separation, and is not attributable to service. 2. High cholesterol is not a disability for VA benefits purposes. CONCLUSIONS OF LAW 1. The criteria to establish service connection for a heart disorder, to include coronary artery disease, mixed dyslipidemia, and residuals of a myocardial infarction, are not met. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (2016). 2. The criteria to establish service connection for high cholesterol are not met. 38 U.S.C.A. §§ 1101, 1131 (West 2014); 38 C.F.R. §§ 3.102, 3.303 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist Under applicable criteria, the VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2016). In this case, required notice was provided and neither the Veteran, nor his representative, has either alleged, or demonstrated, any prejudice with regard to the content or timing of the VA's notices or other development. See Shinseki v. Sanders, 556 U.S. 1696 (2009). Thus, adjudication of his claims at this time is warranted. The VA also satisfied its duty to assist the Veteran in the development of his claims for entitlement to service connection for a heart disorder, to include coronary artery disease (CAD), mixed dyslipidemia, and residuals of a myocardial infarction (MI), and for high cholesterol. The VA's duty to assist includes assisting the claimant in the procurement of service and other relevant records. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board notes that many of the Veteran's service treatment records (STRs) are missing and could not be found. The VA has conducted an exhaustive search for the Veteran's STRs and has deemed them unavailable. For example, the record in this case shows that the VA's search for the Veteran's STRs included a Request for Information form with search notations from January 5, 2010 to April 6, 2010, an e-mail request for a search on May 5, 2010 (including, after the records were not located, a "flagging" of the system in case the records were located in the future), a Formal Finding of Unavailability of Service Records in July 2010, and a notice letter to the Veteran on July 7, 2010 that his STRs could not be located. In a case, as here, where the Veteran's STRs are unavailable through no fault of his, there is a heightened obligation for the VA to assist him in developing his claim and to provide reasons or bases for any adverse decision rendered without the benefit of these records. See O'Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). And although there is no presumption of service connection arising in this unfortunate circumstance, that is, no presumption that the missing records, if available, necessarily would support the claim, the VA is obligated to exercise greater diligence in assisting the Veteran with the development of the evidence in support of his claim. Cromer v. Nicholson, 19 Vet. App. 215, 217-18 (2005). But having said that, the Board must also reiterate that the O'Hare precedent does not raise a presumption that the missing medical records, if available for consideration, necessarily would support the claim. That is to say, missing STRs do not lower the threshold for an allowance of a claim; there is no reverse presumption for granting a claim. The legal standard for proving a claim is not lowered; rather, the Board's obligation to discuss and evaluate evidence is heightened. See Russo v. Brown, 9 Vet. App. 46, 51 (1996). The case law does not establish a heightened 'benefit of the doubt,' only a heightened duty of the Board to consider the applicability of the benefit-of-the-doubt doctrine, to assist the claimant in developing the claim, and to explain its decision when a claimant's medical records have been lost or destroyed. See Ussery v. Brown, 8 Vet. App. 64, 68 (1995). Thus, missing STRs, alone, while indeed unfortunate, do not obviate the need for competent and credible evidence confirming a diagnosis for the condition being alleged and supporting evidence suggesting a correlation between the Veteran's claimed condition and his military service. See Milostan v. Brown, 4 Vet. App. 250, 252 (1993). The records of this case document the VA's repeated attempts to locate the Veteran's STRs, without success, and the VA's July 2010 Formal Finding of Unavailability of Service Records states that the VA could not locate the STRs. See 38 C.F.R. § 3.159(c)(2). Unfortunate as it may be that many of the STRs are missing, VA's duty to assist is met. Service Connection The Board notes that the Veteran has claimed entitlement to (1) service connection for a heart disorder, to include coronary artery disease, mixed dyslipidemia, and residuals of a myocardial infarction, and (2) service connection for high cholesterol. Specifically, he contends that he had high cholesterol during his service period, that he was not told that he had high cholesterol or was not told that the laboratory results constituted high cholesterol, that the Army physicians did not treat him for this condition, and that he therefore did not know to seek treatment or medication for his high cholesterol, which he contends resulted in continued high cholesterol and a 2005 heart attack. In adjudicating these claims, the Board has reviewed all of the evidence in the record on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss each and every piece of evidence, certainly not in exhaustive detail. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as deemed appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, concerning the claims. Service connection may be established for a disability resulting from diseases or injuries that are clearly present in service or for a disease diagnosed after discharge from service, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 U.S.C.A. § 1131; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence of (1) a current disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the claimed in-service disease or injury and the present disability. See, e.g., Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Service connection may also be granted for chronic disabilities, such as heart disease, if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. As an alternative to the nexus requirement, service connection for this chronic disability may be established through a showing of continuity of symptomatology since service. 38 C.F.R. § 3.303(b). The option of establishing service connection through a demonstration of continuity of symptomatology rather than through a finding of nexus is specifically limited to the chronic disabilities listed in 38 C.F.R. § 3.309(a). See Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). For a showing of continuity of symptomatology, however, the showing must still be made during the period of service or within one year after separation from service. It should also be noted that the Code of Federal Regulations section laying out "Principles Relating to Service Connection" to allow compensation for chronic diseases states: "This rule does not mean that any manifestation of joint pain, any abnormality of heart action or heart sounds, any urinary findings of casts, or any cough, in service will permit service connection of arthritis, disease of the heart, nephritis, or pulmonary disease, first shown as a clearcut clinical entity, at some later date. For the showing of 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, as distinguished from merely isolated findings or a diagnosis including the word 'Chronic.'" 38 C.F.R. § 3.303(b). 1. Heart Disorder The available in-service medical records show only one record of any cholesterol testing. That single record, on April 14, 1989, states that the Veteran's cholesterol was 279. There are no available follow-up notes of further testing or treatment. A January 27, 2010 "buddy statement" submitted for the Veteran from a Physician's Assistant (PA) states: "I have personal knowledge about [the Veteran] and his dyslipidemia while we were in the service from 1987 through 1989. I was a medical corpsman (91A) in the military and [the Veteran] had mentioned his dyslipidemia and I remember seeing a blood donation card with results showing elevated lipid levels." This same Physician's Assistant, in a May 2, 2017 supplemental submission titled "Rebuttal to Supplemental Statement of Case," acknowledged that he had no knowledge of any in-service treatment for the Veteran, and no knowledge of any confirmation cholesterol test, pointing to this as a failure on the part of in-service medical care. On July 23, 1988, the Veteran's in-service medical record shows that, during treatment for apparent food poisoning, the Veteran's blood pressure was elevated. There are no other available in-service medical records showing elevated blood pressure. The Veteran indicates that he first became aware that he had high cholesterol in 1994, when he went to a screening event, five years after his active duty service ended in 1989. There is some evidence that the Veteran began taking medication for his cholesterol around this time. See, e.g., "Buddy Statement" Letter received by VA July 11, 2017. The Veteran has stated that he did not see doctors very much over the next few years, and that his medical visits were not for heart-related issues. See, e.g., May 5, 2017 Board of Veterans' Appeals Hearing Transcript at p. 6. Then, on September 8, 2005, the Veteran suffered a heart attack, and his private medical records state that he was noted to have coronary artery disease. (The 2005 medical records regarding his heart attack indicate that the Veteran may have stated at that time that he had had a history of dyslipidemia since 1997, but there are no available medical records about a 1997 medical visit or test.) The evidence of record supports the fact that the Veteran had a heart attack, and that he has coronary artery disease. Therefore, the first criterion necessary for service connection has been met. Turning to the Veteran's period of active service, the Veteran's available in-service medical records show just one, single incident of a high cholesterol laboratory result, one incidence of elevated blood pressure, and no diagnosis of heart disease. Similarly, the available record does not contain any evidence of high cholesterol or heart disease within a year of the Veteran's separation from active duty in June 1989. The Veteran has provided two opinions by each of two private medical professionals, an Internal Medicine Physician (September 2010 and May 2017) and a Physician's Assistant (November 2010 and May 2017; this is the same PA who provided the above-referenced January 2010 and May 2017 declarations). These private medical opinions state that "most likely" the reason for the Veteran's heart attack was the "gross failure" of the in-service treating medical professional to notify the Veteran of his "severely elevated cholesterol during his time in service," and that the Veteran's heart attack was "directly due to his elevated cholesterol levels, which started during his time in service." These private opinions include ample medical research to buttress their medical conclusions about the connections between high cholesterol and heart disease. The Veteran's case was submitted to a VA examiner for an opinion, which was issued on November 4, 2016. (The VA examiner did not perform a physical examination of the Veteran.) The VA examiner determined, after a review of the available evidence and the applicable medical literature, that it was less likely than not that the Veteran's coronary artery disease and myocardial infarction were incurred in service or caused by high cholesterol during service. The VA examiner noted, based on known science in 1989 and the Veteran's known family history in 1989, that as of the 1989 date of the single in-service high cholesterol test result, it would have met the standard of care to implement lifestyle modifications and initially not treat with cholesterol lowering medications. In reaching her conclusion that it was less likely than not that the Veteran's coronary artery disease and heart attack were incurred in or caused by high cholesterol during service, the VA examiner noted other contributing factors, including that the Veteran's mother had undergone coronary artery bypass graft at age 57. The VA examiner determined that "this Veteran has multiple risk factors for developing CAD [coronary artery disease] which are not associated with his military service, including low HDL, obesity and family history of both CAD and dyslipidemia." The Board has considered the private medical opinions and treatment records. While the PA has stated that he, when a medical corpsman, saw a "blood donation card" for the Veteran sometime in 1987-1989 showing elevated lipid levels, the private medical evidence demonstrating a current heart disorder is dated well after the Veteran's period of active service and does not show that the Veteran's heart disorder or dyslipidemia occurred in service or is otherwise related to service. Where there are conflicting statements or opinions from medical professionals, it is within the Board's province to weigh the probative value of those opinions. See Guerrieri v. Brown, 4 Vet. App. 467, 470-71 (1993). So long as the Board provides an adequate reason or basis for doing so, the Board does not err by favoring one competent medical opinion over another. Owens v. Brown, 7 Vet. App. 429, 433 (1995). A medical examination report must contain not only clear conclusions with supporting data, but a reasoned medical explanation connecting the two. Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 300-301 (2008). Here, the November 2016 VA opinion shows that the VA examiner reviewed and listed in detail the available medical and related documents in the record that she had relied on in forming her opinion, including private treatment records and the limited available in-service records. The VA opinion also addressed other risk factors for the Veteran's heart disorder and myocardial infarction in detail, e.g., noting the Veteran's mother's coronary artery bypass graft at age 57 and noting that the earliest weight available for the Veteran, in 2008, reported exogenous obesity. The VA examiner discussed the medical literature and put the Veteran's particular case in context with the medical literature. The VA examiner also noted certain important information missing from the record, e.g., that the record did not contain details on the Veteran's pre-MI treatment for dyslipidemia and did not contain details on lipid levels before and after the MI. The VA examiner noted that the earliest suggestion that the Veteran had elevated cholesterol was a total cholesterol level of 279 on April 14, 1989, less than three months prior to his military separation. The VA examiner's conclusion, after a persuasive discussion citing to the Veteran's medical history and the related medical literature, was that it was less likely than not that the Veteran's CAD and MI were incurred in or caused by high cholesterol during service. In May 2017, as noted above, the Internal Medicine Physician and PA who had previously provided private medical opinions for the Veteran supplemented their opinions in response to the Supplemental Statement of the Case and/or the VA examiner's November 2016 opinion. Both the Physician and the PA, as noted, reached the strong conclusion that the Veteran's MI was "most likely" or "directly" due to his high cholesterol in service and the fact that the in-service medical professionals failed to treat it, and that his "condition started during his time in service." These opinions, however, though citing to medical literature about the connection between cholesterol and heart disease, still contain very little detail about the facts of the Veteran's particular case. Each private health care provider states that he has examined the Veteran and his records and knows the Veteran's case, but neither specifically discusses the details of the Veteran's case, history or test results, or relates the case specifics to the literature, other than to point to the Veteran's April 1989 cholesterol reading of 279 and his July 1988 elevated blood pressure finding. In sum, the more probative and competent evidence is against a finding that the Veteran's claimed heart disorder, to include coronary artery disease, mixed dyslipidemia, and residuals of a myocardial infarction, was caused or aggravated by his period of active duty. The Board notes that the Veteran's available service treatment records are silent as to any diagnosis of heart disease, despite the single record of high cholesterol on April 14, 1989. Further, there is no evidence that any such disorder was diagnosed within one year following separation from active duty service in 1989. Therefore, the evidence in this case is not so evenly balanced as to allow application of the benefit-of-the-doubt rule as required by law and VA regulations. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The preponderance of the evidence is against the Veteran's claim, and as such entitlement to service connection for a heart disorder, to include coronary artery disease, mixed dyslipidemia, and residuals of a myocardial infarction, is denied. 2. High Cholesterol The Veteran is also seeking service connection for high cholesterol. The Veteran is currently receiving treatment for high cholesterol. Although high cholesterol may be a risk or warning factor, high cholesterol is not a disability for VA purposes. Service connection can only be granted for a disability resulting from disease or injury. See 38 U.S.C.A. § 1110. High cholesterol is a laboratory finding that manifests itself only in laboratory test results and is not a disability for which service connection can be granted. 61 Fed. Reg. 20440, 20445 (May 7, 1996) (an elevated cholesterol level represents only a laboratory finding, and not an actual disability in and of itself for which VA compensation benefits are payable). As such, service connection for high cholesterol is not warranted. In sum, the evidence demonstrates that the Veteran is not entitled to service connection for high cholesterol. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply. See 38 U.S.C.A. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). ORDER Service connection for a heart disorder, to include coronary artery disease, mixed dyslipidemia, and residuals of a myocardial infarction, is denied. Service connection for high cholesterol is denied. ____________________________________________ Lesley A. Rein Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs