Citation Nr: 1806066 Decision Date: 01/31/18 Archive Date: 02/07/18 DOCKET NO. 13-28 439A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to service connection for hyperlipidemia. 2. Entitlement to service connection for sleep apnea, to include as secondary to service-connected hypertension. 3. Entitlement to service connection diabetes mellitus (DM). REPRESENTATION Veteran represented by: North Carolina Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD N.K., Associate Counsel INTRODUCTION The Veteran had active service from June 1979 to July 1994, with 3 years prior unverified service. These matters come before the Board of Veterans' Appeals (Board) on appeal from October 2011 and June 2012 rating decisions of the Winston-Salem, North Carolina, Regional Office (RO). This appeal was processed using the Veterans Benefits Management System (VBMS) and the Legacy Content Manager (LCM) claims file. Other than the September 2013 VA opinion for sleep apnea, LCM contains documents that are either duplicative of the evidence in VBMS or not relevant to the issue on appeal. A Travel Board hearing was held in November 2016; a transcript of this hearing is contained in VBMS. The issues of service connection for sleep apnea and diabetes are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Hyperlipidemia is not a disability for VA purposes. CONCLUSION OF LAW The criteria for service connection for hyperlipidemia have not been met. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The Duty to Notify and Assist Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board"); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The Veteran also offered testimony before the undersigned Veterans Law Judge at a Board hearing in November 2016. The Board finds that all requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2) (2017); Bryant v. Shinseki, 23 Vet. App. 488 (2010). Merits Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131 (2012); 38 C.F.R. § 3.303(a) (2017). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service - the so-called "nexus" requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)). In the absence of proof of a present disability due to disease or injury, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); McClain v. Nicholson, 21Vet. App. 319 (2007) (finding that the requirement for a current disability is satisfied if the claimant has a disability at the time a claim was filed or at any time during the pendency of the appeal, even if the disability resolves prior to the Secretary's adjudication of the claim). The Board finds against the claim for service connection for hyperlipidemia. In this regard, although the Veteran may have high cholesterol, this condition is 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) (providing that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities). Although high cholesterol may be evidence of underlying disability or may later cause disability, service connection may not be granted for a laboratory finding alone. Allen v. Brown, 7 Vet. App. 439 (1995). In this case, there is no evidence of record suggesting hyperlipidemia, on its own, has caused any disease or injury, or is a manifestation of a disease or injury, for which service connection may be granted. In the absence of proof of a current disability for which service connection may be granted, there can be no valid claim. Brammer, 3 Vet. App. at 225. As hyperlipidemia is a laboratory result and does not represent a disability in and of itself, the Board finds that service connection is denied. ORDER Service connection for hyperlipidemia is denied. REMAND With regard to the claim for service connection for sleep apnea and diabetes, remand is required for adequate VA examinations. Where VA provides the veteran with an examination in a service connection claim, the examination must be adequate. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). Generally, a medical opinion should address all appropriate theories of entitlement. Stefl v. Nicholson, 21 Vet. App. 120, 123-24 (2007). When a medical examiner states no conclusion as to etiology or diagnosis can be reached without resorting to speculation, it must be clear that the examiner has considered all procurable and assembled data" by obtaining all tests and records that might reasonably illuminate the medical analysis. Jones v. Shinseki, 23 Vet. App. 382, 389-91 (2010). The physician must clearly identify precisely what facts cannot be determined and the phrase "without resort to mere speculation" should reflect the limitation of knowledge in the medical community at large and not of a particular examiner. Jones, 23 Vet. App. at 390. With respect to the Veteran's claim for sleep apnea, a 2013 VA opinion was obtained. The September 2013 VA examiner found that the Veteran's sleep apnea was less likely than not due to or the result of hypertension. The examiner found that such was not due to or the result of hypertension, as there is no pathology to suggest that hypertension causes sleep apnea. The examiner noted that the Veteran's greatest risk factor for sleep apnea is his obesity. This opinion, however, does not address whether hypertension aggravated the Veteran's sleep apnea. Additionally, the report did not address direct service connection. The Veteran has stated that he snored and had difficulty sleeping in service. The Veteran's sister and his wife have stated that during service he began snoring extremely heavily and waking up gasping for air. Furthermore, they stated that these symptoms continued. The examiner did not address direct service connection. Accordingly, remand is required for another examination and opinion. Regarding diabetes mellitus, a December 2011 VA examination was obtained. In response to whether the Veteran's elevated glucose levels during service were at least as likely as not related to the onset of his diabetes, the examiner stated that he could only speculate about whether or not his current diagnosis of diabetes is related to active duty because the elevated glucose levels were considered normal. This opinion is speculative in nature and the examiner did not clearly identify what facts cannot be determined and whether the resort to mere speculation would reflect the limitation of knowledge in the medical community at large and not of a particular examiner. Therefore, a new examination and opinion are necessary. Accordingly, the case is REMANDED for the following action: 1. Contact the appropriate VA Medical Center and obtain and associate with the claims file all outstanding records of treatment. If any requested records are not available, or the search for any such records otherwise yields negative results, that fact must clearly be documented in the claims file. Efforts to obtain these records must continue until it is determined that they do not exist or that further attempts to obtain them would be futile. The non-existence or unavailability of such records must be verified and this should be documented for the record. Required notice must be provided to the Veteran and his representative. 2. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination any relevant medical records. Subsequently, and after securing the proper authorizations where necessary, make arrangements to obtain all the records of treatment or examination from all the sources listed by the Veteran which are not already on file. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 3. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his sleep apnea. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. First, the examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diagnosed sleep apnea had its onset in, or is otherwise caused by, by the Veteran's military service. Second, the examiner must opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran's sleep apnea was caused by or aggravated by his service connected hypertension. The examiner must address the following: 1) the Veteran's lay statements and the lay statements of his wife and sister regarding his snoring and gasping for air; 2) the Veteran's November 2016 Board hearing testimony; and 3) the 2013 VA examination. 4. After any additional records are associated with the claims file, provide the Veteran with an appropriate examination to determine the etiology of his diabetes. The entire claims file must be made available to and be reviewed by the examiner. Any indicated tests and studies must be accomplished and all clinical findings must be reported in detail and correlated to a specific diagnosis. An explanation for all opinions expressed must be provided. The examiner must provide an opinion regarding whether it is at least as likely as not (50 percent or greater probability) that the diabetes mellitus had its onset in, or is otherwise caused by, the Veteran's military service. The examiner must specifically address the following: 1) the Veteran's lay statements including his November 2016 Board Hearing testimony; and 2) the 2011 VA examination report. 5. Notify the Veteran that it is his responsibility to report for any scheduled examination and to cooperate in the development of the claims, and that the consequences for failure to report for a VA examination without good cause may include denial of the claims. 38 C.F.R. §§ 3.158, 3.655 (2017). In the event that the Veteran does not report for any scheduled examination, documentation must be obtained which shows that notice scheduling the examination was sent to the last known address. It must also be indicated whether any notice that was sent was returned as undeliverable. 6. Ensure compliance with the directives of this remand. If a report is deficient in any manner, the AOJ must implement corrective procedures. Stegall v. West, 11 Vet. App. 268, 271 (1998). 7. After completing the above action and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claims must be readjudicated. If the claims remain denied, a supplemental statement of the case must be provided to the Veteran and his representative. After the Veteran and his representative have had an adequate opportunity to respond, the appeal must be returned to the Board for appellate review. 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). 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). ______________________________________________ K. MILLIKAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs