Citation Nr: 18151164 Decision Date: 11/19/18 Archive Date: 11/16/18 DOCKET NO. 16-29 666 DATE: November 19, 2018 REMANDED Entitlement to service connection for sleep apnea, to include as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for hypertension, to include as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. Entitlement to service connection for hyperlipidemia, to include as due to herbicide exposure and/or as secondary to service-connected diabetes mellitus, is remanded. REASONS FOR REMAND The Veteran served on active duty from August 1966 to June 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran’s appeal had originally included the issue of entitlement to service connection for benign prostate hypertrophy. However, the Veteran did not submit a substantive appeal for that particular issue following the issuance of the April 2016 statement of the case. Instead, he limited his appeal to the issues of entitlement to service connection for sleep apnea, hyperlipidemia, and hypertension. Therefore, that issue no longer remains in appellate status, and no further consideration is required. The Board notes that the Veteran was not afforded VA examinations in connection with claims for service connection for sleep apnea, hypertension, or hyperlipidemia. The Veteran served in the Republic of Vietnam during the Vietnam era; therefore, he is presumed to have been exposed to herbicides during his military service. He has claimed sleep apnea, hypertension, and hyperlipidemia were caused by his Agent Orange exposure. See June 2016 VA Form 9. Although the issues on appeal are not on the list of diseases that VA has associated with Agent Orange exposure, the regulations also provide that service connection may be granted for any disease diagnosed after discharge, when all evidence, including that pertinent to service, establishes that the disability was incurred in service. 38 C.F.R. §§ 3.303(d), 3.309(e); see also Combee v. Brown, 34 F.3d 1039 (Fed. Cir. 1994). In other words, a presumption of service connection provided by law is not the sole method for showing causation in establishing a claim for service connection for disability due to herbicide exposure. See Stefl v. Nicholson, 21 Vet. App. 120 (2007) (holding that the availability of presumptive service connection for some conditions based on exposure to Agent Orange does not preclude direct service connection for other conditions based on exposure to Agent Orange). The Veteran’s post-service treatment records show he has diagnoses for sleep apnea and hypertension and has received treatment for hyperlipidemia. See May 2011 report (Veteran has sleep apnea, uses CPAP with nasal pillows; has high blood pressure and hyperlipidemia). Regarding hyperlipidemia, elevated cholesterol is considered a laboratory finding, and as such, hyperlipidemia and high cholesterol levels are not disabilities in and of themselves 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.) The Board notes that, under 38 C.F.R. § 4.1, the term “disability” as used for VA purposes refers to impairment of earning capacity resulting from diseases and injuries and their residual conditions. See also Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). In this case, although the post-service medical records show that he has been prescribed medication for high cholesterol, it is unclear from the record as to whether the Veteran’s high cholesterol has been productive of any disability. Additionally, the Veteran has alleged that his sleep apnea, hypertension, and hyperlipidemia may be due to his service-connected diabetes mellitus. See January 2013 statement. For these reasons, the Board finds that medical examinations and opinions are needed to determine the nature and etiology of the claimed disorders. The matters are REMANDED for the following action: 1. The Agency of Original Jurisdiction (AOJ) should request that the appellant provide the names and addresses of any and all health care providers who have provided treatment for the Veteran’s sleep apnea, hypertension, and hyperlipidemia. After acquiring this information and obtaining any necessary authorization, the AOJ should obtain and associate these records with the claims file. The AOJ should also obtain any outstanding VA medical records. 2. After completing the foregoing development, the Veteran should be afforded a VA examination to determine the nature and etiology any sleep apnea that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s sleep apnea manifested in service or is otherwise causally or etiologically related to his military service, to include his presumed herbicide exposure therein (notwithstanding the fact that such an association is not presumed). He or she should also opine as to whether it is at least as likely as not that any current sleep apnea is either caused by or permanently aggravated by his service-connected diabetes mellitus. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 3. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any hypertension that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. It should be noted that the Veteran is competent to attest to factual matters of which he has first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the appellant, the examiner should provide a fully reasoned explanation. The examiner should provide an opinion as to whether it is at least as likely as not that the Veteran’s hypertension is causally or etiologically related to his military service, to include any presumed herbicide exposure therein (notwithstanding the fact that such an association may not be presumed). He or she should also opine as to whether it is at least as likely as not that any current hypertension is either caused by or permanently aggravated by his service-connected disabilities diabetes mellitus. (The term “at least as likely as not” does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of a certain conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability be viewed in relation to its history[,]” 38 C.F.R. § 4.1, copies of all pertinent records in the appellant’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 4. After obtaining any outstanding records, the Veteran should be afforded a VA examination to determine the nature and etiology of any resulting disability from hyperlipidemia that may be present. Any and all studies, tests, and evaluations deemed necessary by the examiner should be performed. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran’s service treatment records, post-service medical records, and assertions. The examiner should note that the Veteran is competent to attest to factual matters of which he has first-hand knowledge. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should state this with a fully reasoned explanation. The examiner should note that hyperlipidemia and elevated cholesterol are laboratory findings and are not disabilities in and of themselves for which VA compensation benefits are payable. The examiner should address whether the Veteran’s hyperlipidemia has been productive of any disability. If so, he or she should state whether it is at least as likely as not that such a disorder is causally or etiologically related to his military service, to include any presumed herbicide exposure therein (notwithstanding the fact that such an association may not be presumed). He or she should also opine as to whether it is at least as likely as not that any current disability resulting from hyperlipidemia is either caused by or permanently aggravated by his service-connected disabilities, diabetes mellitus. A clear rationale for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. Because it is important “that each disability is viewed in relation to its history,” copies of all pertinent records in the Veteran’s claims file, or in the alternative, the claims file, must be made available to the examiner for review. 5. After completing these actions, the AOJ should conduct any other development as may be indicated by a response received as a consequence of the actions taken in the preceding paragraphs. J.W. ZISSIMOS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Kuczynski