Citation Nr: 18144296 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 16-01 302 DATE: October 25, 2018 ORDER New and material evidence having been received, the claim of entitlement to service connection for diabetes mellitus is reopened. The appeal is allowed to this extent. New and material evidence having been received, the claim of entitlement to service connection for hypertension is reopened. The appeal is allowed to this extent. New and material evidence having been received, the claim of entitlement to service connection for sleep apnea is reopened. The appeal is allowed to this extent. New and material evidence has not been received sufficient to reopen the claim of entitlement to service connection for obesity, and the claim to reopen is denied. Entitlement to service connection for vision impairment, to include astigmatism is denied. Entitlement to service connection for a dental disability is denied. Entitlement to service connection for high cholesterol is denied. REMANDED Entitlement to service connection for diabetes mellitus, to include as secondary to service-connected disability and/or as due to asbestos exposure is remanded. Entitlement to service connection for hypertension, to include as secondary to service-connected disability and/or as due to asbestos exposure is remanded. Entitlement to service connection for sleep apnea, to include as secondary to service-connected disability and/or as due to asbestos exposure is remanded. Entitlement to service connection for bilateral hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. FINDINGS OF FACT 1. In a decision dated February 2011, the Regional Office (RO) denied the Veteran’s claim of entitlement to service connection for diabetes mellitus, hypertension, sleep apnea, and obesity. The Veteran was notified of this decision and he did not perfect an appeal. 2. Evidence added to the record since the February 2011 RO decision denying entitlement to service connection for diabetes mellitus, hypertension, and sleep apnea is not cumulative or redundant of the evidence of record at the time of the decision and raises a reasonable possibility of substantiating the Veteran’s claims. 3. However, evidence added to the record since the February 2011, rating decision denying entitlement to service connection for obesity is cumulative or redundant, does not cure a prior evidentiary defect, and does not raise a reasonable possibility of substantiating the Veteran’s claim. 4. Visual impairments that are refractive errors, including astigmatism, are not considered a disability for VA purposes. 5. The Veteran does not have a dental disability as the result of combat, other in-service trauma, or disease such as osteomyelitis; any current dental disability manifested after active service and is not considered a disability for VA purposes. There was no mandible involvement shown. 6. High cholesterol is a laboratory finding, and does not qualify as a disability for VA purposes. CONCLUSIONS OF LAW 1. The February 2011 rating decision denying service connection for diabetes mellitus, hypertension, sleep apnea, and obesity is final. 38 U.S.C. § 7105 (2012); 38 C.F.R. §§ 3.104, 20.204, 20.302, 20.1103 (2017). 2. New and material evidence has been presented to reopen claims of entitlement to service connection for diabetes mellitus, hypertension, and sleep apnea. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 3. New and material evidence has not been presented to reopen the claim of entitlement to service connection for obesity. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). 4. The criteria for entitlement to service connection for vision impairment, to include astigmatism have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304 (2017). 5. The criteria for entitlement to service connection for a dental disability have not been met. 38 U.S.C. §§ 1131, 1712, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304, 3.381, 4.150, 17.161 (2017). 6. The criteria for entitlement to service connection for high cholesterol have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.304. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from November 1983 to March 1988. In February 2016, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A transcript of that hearing is of record. The Board acknowledges that a December 2015 statement of the case denied all of the issues on appeal, and included terminology as to why no new and material evidence had been received to reopen the various service connection claims. Upon review, the Board finds that the new and material evidence claims pertain only to the issues of entitlement to service connection for diabetes mellitus, hypertension, sleep apnea, and obesity. Further discussion is provided below. Whether new and material evidence has been received sufficient to reopen the claims of entitlement to service connection for diabetes mellitus, hypertension, and sleep apnea. In a February 2011 rating decision, VA denied entitlement to service connection for diabetes mellitus, hypertension, sleep apnea, and obesity. The Veteran did not appeal; therefore, the February 2011 rating decision became final. 38 U.S.C. § 7105. As such, the February 2011 rating decision was the last final denial of the Veteran’s claims of service connection for diabetes mellitus, hypertension, sleep apnea, and obesity. Subsequently, the Veteran filed a claim to reopen these previously denied issue, along with several additional service connection claims. In pertinent part, his claim to reopen was again denied by a rating decision dated May 2013, which he later timely appealed. When a claim to reopen is presented VA must first determine whether the evidence presented or secured since the last final disallowance of the claim is new and material. 38 U.S.C. § 5108; 38 C.F.R. § 3.156(a). New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156. The evidence need not relate to the specific reason why the claim was last denied; rather it need only relate to any unestablished fact necessary to substantiate the claim. See Shade v. Shinseki, 24 Vet. App. 110, 118 (2010). In determining whether this low threshold is met, VA should not limit its consideration to whether the newly submitted evidence relates specifically to the reason why the claim was last denied, but instead should ask whether the evidence could reasonably substantiate the claim were the claim to be reopened, including by triggering VA’s duty to assist. Id. At the time of the February 2011 rating decision, the evidence of record included in part, the Veteran’s service treatment records, service personnel records, and some medical treatment records, which indicated that the Veteran is diagnosed with diabetes mellitus, hypertension, and sleep apnea. After the Veteran filed his new claim, he raised the theory of secondary service connection, to include as due to asbestos exposure. Then, in February 2016, he testified as to his claimed conditions and alleged onset in or soon after his discharge from service. The Veteran also included a February 2016 private report from Dr. Jones, who stated that the Veteran’s hypertension and diabetes mellitus were first diagnosed during service and required ongoing treatment. When taken as a whole, these records and presumed credible testimony raise a reasonable possibility of substantiating the claims by triggering the VA’s duty to assist. Accordingly, the claims are reopened. 38 U.S.C. § 5108.   Whether new and material evidence has been received sufficient to reopen the claim of entitlement to service connection for obesity. In a similar vein, this appeal arises out of the Veteran’s contention that his claimed obesity is attributable to service. As discussed above, the February 2011 rating decision was the last final denial with respect to this issue. This rating decision noted that while the Veteran has been treated for obesity, obesity is not considered a disability for VA purposes. Evidence added to the record since the February 2011 rating decision includes the Veteran’s own statements that his obesity was incurred in-service or, alternatively, is secondary to any of his potentially service-connected disabilities. The contentions are redundant of statements made in connection with his original claim for service connection. The evidence also includes medical records showing a current diagnosis of obesity. This, too is redundant of medical records in evidence at the time of his original claim showing a diagnosis of obesity. This evidence, while new, is not material as it does not relate to a previously unestablished fact necessary to substantiate the Veteran’s claim. Therefore, none of the evidence associated with the record since February 2011 rating decision relates to a previously unestablished fact necessary to substantiate the Veteran’s claim. As such, the Board finds that new and material evidence has not been presented sufficient to reopen the previously denied claim pertaining to obesity. As an incidental matter, the Board notes that the finding that obesity is not a disability for VA compensation purposes is a legal finding. This issue was recently brought before the Court of Appeals for Veterans Claims (Court). The Court affirmed a Board decision that denied service connection for obesity, to include as secondary to the Veteran’s service-connected bilateral knee osteoarthritis, based on a finding that obesity, in and of itself, is not a disability for VA compensation purposes. See Marcelino v. Shulkin, No. 16-2149, 2018 U.S. App. Vet. Claims LEXIS 64 (Vet. App. Jan. 23, 2018). The Board decision in that instance was also issued prior to a January 2017 precedential opinion by VA’s Office of General Counsel (OGC), VAOPGCPREC 1-2017, which the Secretary relied heavily upon in its arguments to the Court. As relevant to this case, the OGC opinion held that obesity is not a “disease” or “disability” for VA purposes and, therefore, is not eligible for service connection on a direct or secondary basis. The Court held that it does not have jurisdiction to review the content of the rating schedule, to include whether VA should consider obesity as a disability, after discussing its statutory jurisdiction and applicable Federal Circuit cases. Accordingly, it affirmed the Board decision. Id. at 6. The Board acknowledges that although service connection is not allowed for obesity on its own, obesity could act as an “intermediate step” to establish service connection for another disability as secondary to an already service-connected disability under certain circumstances. The Board reiterates that the Veteran is not currently in receipt of service connection for any disability. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may 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). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; 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). Entitlement to service connection for a vision disorder, to include astigmatism. The Veteran contends that he is entitled to service connection for visual impairment, to include astigmatism. The Board takes judicial notice of the fact that an astigmatism is a type of refractive error. Refractive errors are not considered diseases or injuries for VA purposes, and thus provide no basis for service connection. 38 C.F.R. §§ 3.303(c), 4.9 (2017); Beno v. Principi, 3 Vet. App. 439, 441 (1992). In the absence of a superimposed disease or injury, service connection may not be allowed for refractive error of the eye even if visual acuity decreased in-service, as it is not a disability within the meaning of applicable legislation relating to service connection. See id.; see also VAOPGCPREC 82-90 (1990), 55 Fed. Reg. 45,711 (1990). Instead, an astigmatism is considered equivalent to a congenital or developmental defect, which is unrelated to military service and cannot be aggravated by service. There is no evidence, and the Veteran does not assert, that he suffered a superimposed injury or disease in-service in connection with his astigmatism or that he has any visual impairment other than refractive error. Thus, based on the evidence of record and the law, the Veteran’s claim for service connection for visual impairment, to include astigmatism is denied. 38 U.S.C. § 5107(b). Entitlement to service connection for a dental disability. Disability compensation and VA outpatient dental treatment may be provided for certain specified types of service-connected dental disorders. For other types of service-connected dental disorders, the claimant may receive treatment only and not compensation. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150, 17.161. Dental disabilities that may be compensable are set forth in 38 C.F.R. § 4.150. They include chronic osteomyelitis or osteoradionecrosis of the maxilla or mandible, loss of the mandible, nonunion or malunion of the mandible, limited temporomandibular motion, loss of the ramus, loss of the condyloid or coronoid processes, loss of the hard palate, loss of teeth due to the loss of substance of the body of the maxilla or mandible and where the lost masticatory surface cannot be restored by suitable prosthesis, when the bone loss is a result of trauma or disease but not the result of periodontal disease. 38 C.F.R. § 4.150, Diagnostic Codes 9900-9916 (2017). In this case, the Board has thoroughly reviewed the Veteran’s service treatment records, and acknowledges that he received dental treatment during his military service. However, the term “service trauma” does not include the intended effects of therapy or restorative dental care and treatment provided during a veteran’s active service. See 38 C.F.R. § 3.306(b)(1); VAOGCPREC 5-97. No such trauma is apparent in the service treatment records, nor does it appear the Veteran has identified specific in-service dental trauma in his statements of record. As such, service connection is not warranted for residuals of dental trauma. The Board further notes that even if the Veteran did have in-service dental trauma, service connection for compensation purposes would still be denied in this case. Under the current law, compensation is only available for certain types of dental and oral conditions, such as impairment of the mandible, loss of a portion of the ramus, and loss of a portion of the maxilla. See 38 C.F.R. § 4.150. Compensation is available for loss of teeth if such loss is due to the loss of substance of body of the maxilla or mandible, but only if such bone loss is due to trauma or disease (such as osteomyelitis), and not to the loss of the alveolar process as a result of periodontal disease, as such loss is not considered disabling. Id; Note to Diagnostic Code 9913. Treatable carious teeth, replaceable missing teeth, dental or alveolar abscesses, and periodontal disease are not compensable disabilities. 38 U.S.C. § 1712; 38 C.F.R. §§ 3.381, 4.150. The Veteran has not presented, and the remaining evidence of record does not otherwise contain, any competent evidence showing that the Veteran has a dental disability for which service connection for compensation purposes may be granted. The Veteran is a layperson and does not cite to supporting medical opinion or clinical or medical treatise evidence to demonstrate that his dental disability is of a nature eligible for service-connected compensation under the applicable regulations. Based on the foregoing, the Board concludes that the preponderance of the evidence is against the Veteran’s claim of service connection for a dental disability for compensation purposes. 38 U.S.C. § 5107(b). (If the Veteran is seeking dental treatment he and or his representative should file an appropriate claim with the appropriate VA Medical Center where treatment eligibility determinations are made.) Entitlement to service connection for high cholesterol. The Veteran maintains entitlement to service connection for high cholesterol, or hyperlipidemia. However, VA’s stated policy is that hyperlipidemia is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc., and is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable. See 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. They are, therefore, not appropriate entities for the rating schedule). There is no competent evidence of record to indicate the Veteran has been diagnosed with a chronic disability resulting from findings of high cholesterol, regardless of its etiology. In the absence of proof of a present disability there can be no valid claim of service connection on a direct basis pursuant to 38 C.F.R. § 3.303. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also McClain v. Nicholson, 21 Vet. App. 319 (2007) (a “current disability” exists if the diagnosed disability is present at the time of the claim or during the pendency of that claim). There being no competent medical evidence of a diagnosed chronic disability resulting from high cholesterol, the preponderance of the evidence weighs against the Veteran’s claim, and the benefit of the doubt rule does not apply. Service connection for high cholesterol must be denied. 38 U.S.C. § 5107(b). REASONS FOR REMAND Entitlement to service connection for diabetes mellitus, hypertension, and sleep apnea, to include as secondary to service-connected disability and/or as due to asbestos exposure. As noted above, the Board has reopened the Veteran’s claims of entitlement to service connection with respect to these issues. Although the Veteran is not currently in receipt of service connection for any disabilities, a theory of secondary service connection has been raised. Specifically, the Veteran and his representative have asserted that the Veteran’s diabetes mellitus has resulted in additional health problems, including his claimed hypertension and sleep apnea It is also contended that these disorders may be related to asbestosis exposure. Service connection may be established on a secondary basis for a disability which is proximately due to or the result of service-connected disease or injury. 38 C.F.R. § 3.310(a) (2017). Establishing service connection on a secondary basis requires evidence sufficient to show (1) that a current disability exists and (2) that the current disability was either (a) proximately caused by or (b) proximately aggravated by a service-connected disability. Allen v. Brown, 7 Vet. App. 439, 448 (1995) (en banc); see also 38 C.F.R. § 3.310(b). The Veteran and his representative have also alleged that the Veteran’s disabilities are due to service, to include as due to Agent Orange exposure, ionizing radiation, and/or asbestos exposure. The Board observes that a December 2015 VA memorandum found that there is not enough evidence of record to concede exposure to herbicides, to include Agent Orange. To date, no additional evidence has been received and any further attempts to verify any alleged exposure would appear to be futile. Furthermore, the Veteran’s claimed disabilities are not listed in the presumptive conditions associated with radiation-exposed veterans. See 38 C.F.R. § 3.311 (2017). Nevertheless, service connection may be granted if shown to be related to service or such in-service exposure. The Board observes an October 2015 deferred rating decision, which determined that the Veteran’s military occupational specialty of Computer Number Control (CNC) Technician is associated with minimal to moderate probability of exposure to asbestos in-service. Importantly, the Veteran included a February 2016 report from Dr. James in support of his claim. Dr. James stated that he has been treating the Veteran for chronic hypertension, diabetes mellitus, and sleep apnea. He also stated that: The hypertension and diabetic conditions were first diagnosed while he served in the United States Navy. A workup at that time by Naval physicians, consistent with the standard of care at that time, diagnosed those conditions. Post discharge from the Navy, he had continued treatments by his civilian primary care physician. It was after the unfortunate death of that physician that I continued the care of those chronic illnesses. The hypertension and diabetic states must be considered as lifelong ailments. Please accept this letter as confirmation that these conditions have been present since he was serving in the Navy and will remain needing treatment lifelong. It is unclear upon what, other than the Veteran’s history this finding was made, as it does not appear to be confirmed by any service treatment records on file. To date, the Veteran has not received VA examinations for these claimed disabilities. Therefore, VA examinations would help shed considerable light on these issues. The Board emphasizes that if service connection is established for the Veteran’s claimed diabetes mellitus, hypertension, and/or sleep apnea, an opinion as to secondary service connection with respect to the remaining issues should be included in the record. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran seeks entitlement to service connection for bilateral hearing loss Essentially, he contends that his bilateral hearing loss is due to acoustic trauma experienced in-service, to include high frequency noises while serving as submariner. In February 2016, the Veteran testified that his hearing problems onset in-service, where he was exposed to high frequency noises. He also stated that the submarine he was aboard would often change depths, which caused his ears to pop due to changes in the water pressure. It is unclear to the Board whether the Veteran currently suffers from hearing loss disability for VA purposes. Given this uncertainty, and the fact that he has not received a VA examination for bilateral hearing loss, the Board finds that a VA examination would be of considerable assistance in resolving this issue. Entitlement to a total disability rating based on individual unemployability (TDIU) is remanded. Here, because a decision on the remanded issues could significantly impact a decision on the issue of entitlement to a TDIU, these issues are inextricably intertwined. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (two issues are “inextricably intertwined” when they are so closely tied together that a final decision on one issue cannot be rendered until a decision on the other issue has been rendered). Remand of the TDIU claim is therefore required as well. Finally, it is apparent that the Veteran has received some VA and private treatment for his claimed conditions. The latest available treatment reports are from approximately 2016. All outstanding treatment records should also be obtained. The matters are REMANDED for the following action: 1. With the assistance of the Veteran as necessary, identify and obtain any outstanding, relevant treatment records and associate them with the Veteran’s electronic claims file. Dr. James should also be contacted to ascertain the basis of the opinion he entered relating the disorders to in-service events. If the Agency of Original Jurisdiction (AOJ) cannot locate or obtain such records, it must specifically document the attempts that were made to locate or obtain them, and explain in writing why further attempts to locate or obtain any government records would be futile. The AOJ must then: (a) notify the claimant of the specific records that it is unable to obtain; (b) explain the efforts VA has made to obtain that evidence; and (c) describe any further action it will take with respect to the claim. All attempts to obtain records should be documented in the Veteran’s electronic claims file. 2. Then, after pertinent records are obtained, but whether or not records are obtained, schedule the Veteran for VA examination(s) with a VA examiner(s) of appropriate expertise to determine the nature and etiology of his claimed diabetes mellitus, hypertension, and sleep apnea. The examiner(s) is/are to be provided access to the Veteran’s electronic claims file and must specify in the report that these records have been reviewed. Following a review of the full record, the appropriate examiner(s) should respond to the following: (a) Did the Veteran’s diabetes mellitus, hypertension, and/or sleep apnea manifest in service or within one year of his separation from service? (b) Is it at least as likely as not (50 percent or higher degree of probability) that the Veteran’s diabetes mellitus, hypertension, and/or sleep apnea had its onset in, or is otherwise related to, the Veteran’s military service, to include potential exposure to asbestos? (c) If service connection is established for the Veteran’s claimed diabetes mellitus, hypertension, and/or sleep apnea, an opinion as to secondary service connection with respect to the remaining issues should be included in the record. To wit, if not directly related to service, please offer an opinion as to whether it is at least as likely as not (50 percent or higher degree of probability) that the Veteran’s diabetes mellitus, hypertension, and/or sleep apnea was caused by any other service-connected disability. (d) The examiner should then opine whether the Veteran’s diabetes mellitus, hypertension, and/or sleep apnea is aggravated (i.e., permanently worsened beyond the normal progression of that disease) by a service-connected disability. The examiner(s) should provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner(s) should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. The examiner(s) should also address and reconcile any prior reports (including the February 2016 report from Dr. James), as well as any other pertinent evidence of record. 3. Next, schedule the Veteran for a VA examination with an audiologist to determine the nature and etiology of the Veteran’s claimed bilateral hearing loss. The audiologist is to be provided access to the Veteran’s electronic claims file. The audiologist is requested to review all pertinent records associated with the claims file, the Veteran’s service treatment records, post-service medical records, and the Veteran’s own assertions. Any indicated diagnostic tests and studies should also be accomplished. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology and conceded in-service noise exposure. If there is a medical basis to support or doubt the history provided by the Veteran, the audiologist should provide a fully reasoned explanation. The VA audiologist must opine whether it is at least as likely as not (50 percent or higher degree of probability) that any bilateral hearing loss found manifested in-service or is otherwise causally or etiologically related to his military service, to include noise exposure. The VA audiologist should provide a complete rationale for any opinions expressed, based on the examiner’s clinical experience, medical expertise, and established medical principles. If an opinion cannot be made without resort to speculation, the examiner should provide an explanation as to why this is so and note what, if any, additional evidence would permit such an opinion to be made. It should also be indicated whether any hearing loss that is found is the type typically seen in cases of acoustic trauma, or is more likely due to advancing age, infection, or other cause. All prior reports should be reconciled, as necessary. 4. After the development requested has been completed, the AOJ should review any report to ensure that it is in complete compliance with the directives of this remand. The issue of entitlement to a TDIU should be adjudicated as well. If a report is deficient in any manner, the AOJ must implement corrective procedures at once. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Miller, Associate Counsel