Citation Nr: 20043777 Decision Date: 06/29/20 Archive Date: 06/29/20 DOCKET NO. 18-48 467 DATE: June 29, 2020 ORDER Entitlement to service connection for high cholesterol is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for residual scar from exploratory laparotomy, right upper abdomen, is remanded. Entitlement to service connection for kidney cancer. Entitlement to service connection for bilateral hand tremors is remanded. Entitlement to a separate disability rating for shrapnel, distinct from those already service connected, is remanded. Entitlement to service connection for hypertension is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for gout is remanded. FINDING OF FACT High cholesterol is not a disability for purposes of VA compensation. CONCLUSION OF LAW The criteria for service connection for high cholesterol have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran contends that his claimed high cholesterol, diagnosed as hypercholesterolemia and dyslipidemia, is attributable to his active service. The term "disability" means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1; see also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). 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); dismissed in part and vacated in part on other grounds, Sanchez-Benitez v. Principi, 239 F.3d 1356 (Fed. Cir. 2001). Hypercholesterolemia is defined as "excessive cholesterol in the blood." Dorland's Illustrated Medical Dictionary 887 (32nd ed. 2012). Dyslipidemia is defined as “abnormality in, or abnormal amounts of, lipids and lipoproteins in the blood; see also hyperlipidemia.” Id. at 578. VA has in its rulemaking capacity indicated that high cholesterol does not fall within VA's definition of disability for which compensation is warranted. 61 Fed. Reg. 20440, 20445 (May 7, 1996) (supplementary information preceding revisions to criteria for evaluating endocrine system indicating that hyperlipidemia, elevated triglycerides, and elevated cholesterol "are actually laboratory test results, and are not, in and of themselves, disabilities"). As such, there is no competent evidence of a current disability upon which to predicate a grant of service connection on any basis, and, hence, no valid claim for service connection. See Brammer v. Derwinski, 3 Vet. App. 223 (1992). As such, service connection for high cholesterol must be denied as a matter of law, and the benefit of the doubt doctrine is therefore not for application. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303. REASONS FOR REMAND The Veteran served on active duty from October 1967 to October 1970. He appeals an August 2013 rating decision denying entitlement to service connection for bilateral hand tremors, gout, sleep apnea, hypertension, high cholesterol, kidney cancer, internally embedded shrapnel, and denying an increased rating for residual scars from an exploratory laparotomy. The Board notes that the Veteran served in the Republic of Vietnam, earning a Purple Heart Medal, and thus, exposure to herbicide agents in service is conceded. The Veteran has put forward several intertwined theories as to the origin of his claimed disabilities. Primarily, he contends that his kidney cancer, hypertension, gout, and bilateral hand tremors are attributable to exposure to herbicide agents in service. Furthermore, he contends that his sleep apnea and gout may be related to his hypertension or kidney cancer. He also contends that his shrapnel injuries have contributed to his bilateral hand tremor. He also argues that he warrants a separate rating for internally imbedded shrapnel—described in the medical record as small metallic fragments in the wall of the pelvis, abdomen, liver, and right lower lobe—in addition to the ratings he already receives for other shrapnel related disabilities. Alternatively, he contends that his shrapnel disabilities sustained in service have contributed to his weight gain, which in turn may have contributed to his hypertension, sleep apnea, and gout. The Board notes that VA General Counsel Opinion 1-2017 holds that obesity may be an “intermediate step” between a service-connected disability and a current disability that may be service connected on a secondary basis under 38 C.F.R. § 3.310 (a). See VAOPGCPREC 1-2017 (Jan. 6, 2017). Lastly, he argues that his service-connected residual scar from exploratory laparotomy warrants a higher rating and should be reevaluated. The Board notes that the Veteran, through his representative, also argues that his hypertension and sleep apnea may be related to his claimed mental health condition. However, the Veteran was denied entitlement to service connection for an acquired psychiatric condition in the August 2013 and failed to submit new evidence or file a notice of disagreement as to that issue within the appeal period. As such, the August 2013 denial is final regarding such a claim. In addition, the record does not show, and the Veteran has not argued, that he filed a subsequent claim for entitlement to service connection for a mental health condition. Accordingly, the issue of entitlement to service connection for a mental health issue is not before the Board and thus, development in regard to a claimed mental health condition is not appropriate in this case. In October 2017, the Veteran participated in a hearing with a decision review officer (DRO). The DRO agreed that “examinations and medical opinions for all conditions at issue were felt to be warranted.” However, no attempt was made to schedule the Veteran for examinations or obtain medical opinions. The record does show that the Veteran was afforded a VA examination to evaluate the severity of his service-connected scars in July 2013. However, as nearly 7 years have passed since the examination, the Board finds it is too old to offer adequate probative value. See Snuffer v. Gober, 10 Vet. App. 400, 403 (1997). As such, the Board finds that remand for VA examinations and/or medical opinions is necessary to adequately adjudicate the aforementioned issues on appeal. The matters are REMANDED for the following action: 1. Obtain any outstanding VA and records that are currently not of record If the Veteran has received any relevant private treatment, he should be afforded the opportunity to submit these records. 2. After completion of the development outlined in the directive above, schedule the Veteran for a VA examination to evaluate the claimed imbedded shrapnel not already subject to VA compensation. The examiner is asked to identify all shrapnel injuries that are not already subject to VA compensation. For each identified shrapnel injury, the examiner is asked to identify the specific location of the shrapnel and describe the functional impact on the muscle group affected. 3. Obtain an opinion from a VA examiner addressing the Veteran’s claims for kidney cancer, hypertension, gout, or claimed bilateral hand tremors are related to service, to include as from exposure to herbicide agents. The evidentiary record, including a copy of this remand, must be made available to and reviewed by the clinician. A new examination is not necessary unless deemed so by the examiner. The examiner is asked to answer the following: a. Is it at least as likely as not that the Veteran’s kidney cancer, hypertension, gout, sleep apnea, or bilateral hand tremors are related to service, to include as from exposure to herbicide agents? b. Is it at least as likely as not that the Veteran’s hypertension, gout, or sleep apnea are etiologically related to his shrapnel injuries sustained in service, to include as from residual weight gain? c. Is it at least as likely as not that the Veteran’s gout or sleep apnea are etiologically related to his hypertension? d. Is it at least as likely as not that the Veteran’s claimed bilateral hand tremors are etiologically related to his shrapnel injuries sustained in service? In discussing the above questions, the Board is particularly interested in whether claimed disorders were either caused by or, in the alternative, worsened by the service-connected disability. 4. Schedule the Veteran for a VA examination to evaluate the severity of his residual scars from an exploratory laparotomy. 5. After the above has been completed to the extent possible, readjudicate the claim. If any benefit sought remains denied, provide the Veteran and his representative with a supplemental statement of the case (SSOC), and return the case to the Board. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Daniel Ballinger, Associate Counsel