Citation Nr: 18145441 Decision Date: 10/29/18 Archive Date: 10/29/18 DOCKET NO. 16-32 185 DATE: October 29, 2018 ORDER Whether new and material evidence exists to reopen the claim of service connection for hypercholesterolemia is denied. REMANDED Entitlement to service connection for diabetes to include as secondary to service-connected disabilities, to include sleep apnea, is remanded. FINDINGS OF FACT 1. In a March 2004 rating decision, the RO denied service connection for hypercholesterolemia. The Veteran did not appeal the decision. 2. New and material evidence has not been received since the March 2004 rating decision which denied service connection for hypercholesterolemia. CONCLUSIONS OF LAW 1. The March 2004 rating decision denying service connection for hypercholesterolemia is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2017). 2. Evidence received since the March 2004 rating decision is not new and material and the claim of entitlement to service connection for hypercholesterolemia is not reopened. 38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1981 to August 2003. This matter is before the Board of Veterans’ Appeals (Board) on appeal of an October 2013 rating decision of the Louisville, Kentucky, Regional Office (RO) of the Department of Veterans Affairs (VA). 1. Whether new and material evidence exists to reopen the claim of service connection for hypercholesterolemia is denied. Duties to Notify and Assist The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2017). VCAA notice was provided in February 2013. The Board also concludes VA’s duty to assist has been satisfied. The Veteran’s service treatment records and VA medical records are in the file. Private medical records identified by the Veteran have been obtained, to the extent possible. The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev’d on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). New and Material Evidence Pursuant to 38 U.S.C. § 7104 (b), a decision by the Board may not thereafter be reopened and allowed and a claim based upon the same factual basis may not be considered. As well, a claim that has been denied in a final unappealed rating decision by the RO may not thereafter be reopened and allowed. 38 U.S.C. § 7105(c). The exception to this rule is described under 38 U.S.C. § 5108, which provides that “[i]f new and material evidence is presented or secured with respect to a claim which has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim.” Therefore, once a rating decision has been issued, absent the submission of new and material evidence, the claim cannot be reopened or adjudicated by VA. 38 U.S.C. §§ 5108, 7104(b); 38 C.F.R. § 3.156, 20.1105; see Barnett v. Brown, 83 F.3d 1380 (Fed. Cir. 1996) (reopening after a prior Board denial). New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence is defined as existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. 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 (a). The Board will generally presume the credibility of the evidence in determining whether evidence is new and material. Justus v. Principi, 3 Vet. App. 510, 512-513 (1992). Significantly, however, the United States Court of Appeals for the Federal Circuit (Federal Circuit) has held that evidence that is merely cumulative of other evidence in the record cannot be new and material even if that evidence had not been previously presented to the Board. Anglin v. West, 203 F.3d 1343 (2000). In deciding whether new and material evidence has been submitted the Board looks to the evidence submitted since the last final denial of the claim on any basis. Evans v. Brown, 9 Vet. App. 273, 285 (1996). The threshold for determining whether new and material evidence raises a reasonable possibility of substantiating a claim is “low.” See Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). As to the claim of entitlement to service connection for hypercholesterolemia, new and material evidence has not been submitted since the March 2004 rating decision denying the claim. The evidence of record at the time of the March 2004 rating decision which denied the claim was in-service diagnosis of hypercholesterolemia. The claim was denied on the basis that hypercholesterolemia is a laboratory finding and is not considered an actually disabling condition. Since the March 2004 rating decision, no new evidence was submitted in regard to this claim. The claim continued to be denied by the October 2013 rating decision on the basis that hypercholesterolemia is a laboratory finding and is not considered an actually disabling condition. Therefore, evidence received subsequent to the March 2004 rating decision does not satisfy the definition of new and material evidence. 38 C.F.R. § 3.156 (a). Hypercholesterolemia, in and of itself, is a laboratory finding. It is not a disease, injury, or disability for VA compensation purposes, even though it may be considered a risk factor in the development of certain diseases. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (providing that 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.). Again, there is no dispute that the Veteran has hypercholesterolemia, the law simply does not provide benefits for elevated laboratory findings without a disability, so the claim must be denied. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). For the foregoing reasons, the evidence submitted since the March 2004 rating decision denying service connection for hypercholesterolemia is cumulative of the evidence already of record and does not relate to any of the bases for the prior denial. The evidence is therefore not new and material and reopening the claim for service connection for hypercholesterolemia is not warranted. REASONS FOR REMAND 1. Entitlement to service connection for diabetes, to include as secondary to service-connected disabilities, to include sleep apnea. Of record is the August 2016 VHA opinion of record, which opined that in-service abnormal glucose readings were not indicative of diabetes diagnosis. By September 2018 rating decision, service connection for sleep apnea was granted. The Veteran has iterated by July 2018 statement his belief that his sleep apnea has caused or worsened his diabetes. A November 2017 VA treatment note reflects that untreated sleep apnea may have an adverse effect on diabetes. Further, the Veteran has iterated his belief that his high cholesterol in service is related to his diabetes, which was not addressed by the VHA opinion. For these reasons, an additional VA examiner’s opinion is required. The examiner is requested to opine whether the service-connected sleep apnea causes or permanently aggravated the diabetes. The examiner is also requested to opine as to whether the in-service high cholesterol is related to the Veteran’s present diabetes. The matter is REMANDED for the following action: 1. Send the Veteran’s full claims file to a VA examiner for an opinion on the Veteran’s present diabetes. The examiner must opine whether the diabetes is at least as likely as not related to an in-service injury, event, or disease, including in-service high cholesterol. The examiner is requested to opine whether the diabetes is at least as likely as not (1) proximately due to service-connected disabilities, or (2) aggravated beyond its natural progression by service-connected disabilities, to include service-connected sleep apnea. Please address the evidence of record which indicates sleep apnea may be related to diabetes. 2. After the above is complete, readjudicate the Veteran’s claim. If a complete grant of the benefits requested is not granted, issue a supplemental statement of the case (SSOC) to the Veteran and his representative to afford them the opportunity to respond before returning the case to the Board. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD K. M. Georgiev