Citation Nr: 1759957 Decision Date: 12/22/17 Archive Date: 01/02/18 DOCKET NO. 11-28 155 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUES 1. Entitlement to service connection for hyperlipidemia. 2. Entitlement to service connection for malignant neoplasm of the prostate, history of prostatic malignancy, dysplasia of the prostate, carcinoma in situ, and UNC behavior. (The issues of service connection for a right arm tendon, depression, and plantar fasciitis will be adjudicated in a separate decision) REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD S. Hurley, Associate Counsel INTRODUCTION The Veteran had active military service from July 1989 to July 2009. These matters come before the Board of Veterans' Appeals (Board) on appeal from a March 2010 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied service connection for hyperlipidemia and for malignant neoplasm of the prostate, history of prostatic malignancy, dysplasia of the prostate, carcinoma in situ, and UNC behavior (prostate disability). These matters were before the Board in October 2014, at which time they were remanded for additional evidentiary development, including issuing a VCAA [Veterans Claims Assistance Act of 2000] notice for the claim of service connection for hyperlipidemia and for a VA examination to determine the etiology of the Veteran's prostate disability. Pursuant to the Board's remand instructions, a VCAA letter was sent in December 2014 and a VA examination was performed in July 2015. Accordingly, the Board finds that the prior remand instructions have been satisfied. While the matter was in remand status, in a January 2016 rating decision, the RO granted service connection for diabetic dermopathy (claimed as bumps on both legs, insect bites). The grant of service connection constitutes a full award of the benefits sought on appeal with respect to the claim of service connection for diabetic dermopathy. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). The record currently available to the Board contains no indication that the Veteran has initiated an appeal with the initial rating or effective date assigned. Grantham, 114 F. 3d at 1158 (holding that a separate notice of disagreement must be filed to initiate appellate review of "downstream" elements such as the disability rating or effective date assigned). Thus, this issue is not in appellate status at this juncture. Furthermore, the October 2014 remand instructed the RO to issue a Statement of the Case (SOC) for the issues of increased ratings for diabetes mellitus, Type 2, and anal skin tag. An SOC was issued in January 2015 and the Veteran did not submit a timely substantive Form 9, or substantive appeal, in order to perfect the appeal. Lastly, in the January 2016 rating decision, the RO also granted service connection for benign prostatic hypertrophy (BPH) with lower urinary tract symptoms (LUTS). FINDINGS OF FACT 1. Hyperlipidemia is not a disability for VA purposes. 2. The Veteran has been diagnosed with prostatic hypertrophy with lower urinary tract symptoms (LUTS), which was previously service connected in a January 2016 rating decision. The competent evidence weighs against a finding that the Veteran has been diagnosed with any additional prostate disabilities during the period on appeal. CONCLUSIONS OF LAW 1. The criteria for service connection for hyperlipidemia have not been met. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). 2. The criteria for service connection for malignant neoplasm of the prostate, history of prostatic malignancy, dysplasia of the prostate, carcinoma in situ, and UNC behavior. 38 U.S.C. § 1110, 1131, 5107 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Notify and Assist VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. The VA's duty to notify was satisfied through letters dated in November 2009 and December 2014, which fully addressed all notice elements. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Service treatment records are associated with claims file. Post-service medical records have been obtained. The Veteran has not sufficiently identified any additional records that should be retrieved prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. The Veteran was afforded VA examinations with regard to his prostate disability in December 2009 and July 2015. These examinations are adequate for the purposes of the pending claim for service connection for a prostate disability as it was based on the diagnosis of any current prostate disability. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has not been provided a VA examination for his claim of service connection for hyperlipidemia. As discussed below, the Veteran has not asserted a disability for VA purposes. Accordingly, the Board finds that a VA examination would not assist with the adjudication of the pending claim. As such, the Board will proceed to the merits. Legal Criteria Service connection will be granted for a disability resulting from an injury or disease contracted in the line of duty, or for aggravation of a pre-existing injury suffered or disease contracted in the line of duty, in the active military, naval, or air service. 38 U.S.C. § 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). Service connection requires evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Factual Background and Analysis I. Hyperlipidemia The Veteran asserts that service connection is warranted for high cholesterol. High cholesterol is also referred to as hypercholesterolemia or hyperlipidemia. Hypercholesterolemia is an "excess of cholesterol in the blood." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 887 (32nd ed. 2012). Hyperlipidemia is "a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc." Id. at 891. The Board observes that high cholesterol is shown by the medical evidence of record. However, service connection is only warranted where the evidence demonstrates a diagnosed disability. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). "Disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. See Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); 38 C.F.R. § 4.1. A symptom, without a diagnosed or identifiable underlying malady or condition, does not, in and of itself, constitute a "disability" for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999), aff'd and rev'd on other grounds, Sanchez-Benitez v. Principi, 259 F.3d. 1356, 1361-62 (Fed. Cir. 2001). High cholesterol is simply a laboratory test result, and not a disability in and of itself. See 61 Fed. Reg. 20440, 20445 (May 7, 1996). As such, it cannot provide a basis for a valid claim for service connection. See Brammer, 3 Vet. App. at 225. The reasonable doubt doctrine is not for application, and the Veteran's claim of entitlement to service connection for hyperlipidemia is denied. See 38 C.F.R. §§ 3.102, 3.303. II. Prostate Disability The Veteran filed a claim for malignant neoplasm of the prostate, history of prostatic malignancy, dysplasia of the prostate, carcinoma in situ, and UNC behavior in November 2009. The Veteran was afforded a VA examination in December 2009, at which time he complained of decreased urinary flow and daytime voiding. Physical examination revealed the prostate was significantly enlarged. The examiner assessed the Veteran with prostatic hypertrophy with lower urinary tract symptoms (LUTS). He found no evidence of any history of malignant neoplasm of the prostate, dysplasia of the prostate, carcinoma in situ of the prostate, or other neoplasm of the prostate. The Veteran underwent a subsequent VA examination in July 2015, at which time the examiner assessed him with prostatic hypertrophy with LUTS. As discussed in the introduction, the RO granted service connection for benign prostatic hypertrophy (BPH) with LUTS in a January 2016 rating decision. After a review of the evidence, the Board finds that the Veteran has not been diagnosed with any additional prostate disabilities other than prostatic hypertrophy with LUTS. The Board acknowledges the abnormal lab results in August 2009 and noted ICD (International Classification of Diseases) diagnoses codes of malign neoplasm prostate, history-prostatic malignancy, dysplasia of prostate, CA in situ prostate, and UNC behavior neo prostate. However, these ICD codes are not actual diagnoses from a medical provider, but rather, a classification system for medical billing. See generally, https://www.cms.gov/Medicare/Coding/ICD10/index.html [Page Last Modified 08/31/2017]. Moreover, the December 2009 VA examiner concluded that there was no evidence of any history of malignant neoplasm of the prostate, dysplasia of the prostate, carcinoma in situ of the prostate, or other neoplasm of the prostate. Furthermore, both the December 2009 and July 2015 examiners only found a current diagnosis of prostatic hypertrophy with LUTS. Absent a showing of a current disability that has not been previously service connected, there is no disability for which VA compensation may be paid (i.e., service connection cannot be granted). Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328, 1333 (1997) (holding that the existence of a current disability is the cornerstone of a claim for VA disability compensation). As such, the criteria for establishing service connection for malignant neoplasm of the prostate, history of prostatic malignancy, dysplasia of the prostate, carcinoma in situ, and UNC behavior is denied have not been met. 38 C.F.R. § 3.303. In sum, the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim of service connection for malignant neoplasm of the prostate, history of prostatic malignancy, dysplasia of the prostate, carcinoma in situ, and UNC behavior must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). ORDER Service connection for hyperlipidemia is denied. Service connection for malignant neoplasm of the prostate, history of prostatic malignancy, dysplasia of the prostate, carcinoma in situ, and UNC behavior is denied. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs