Citation Nr: 21063637 Decision Date: 10/15/21 Archive Date: 10/15/21 DOCKET NO. 20-09 796 DATE: October 15, 2021 ORDER Entitlement to service connection for hyperlipidemia is denied. REMANDED The issue of entitlement to service connection for erectile dysfunction is remanded. The issue of entitlement to service connection for diabetes mellitus, type II, is remanded. The issue of entitlement to service connection for coronary arteriosclerosis is remanded. The issue of entitlement to service connection for tinnitus is remanded. The issue of entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Hyperlipidemia is not a disability for VA benefits purposes. CONCLUSION OF LAW The criteria for establishing entitlement to service connection for hyperlipidemia 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 served on active duty from August 1963 to July 1965. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2018 rating decision of the Department of a Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for hyperlipidemia, erectile dysfunction, diabetes, coronary arteriosclerosis, tinnitus, and bilateral hearing loss. The Veteran timely perfected an appeal. See February 2018 Notice of Disagreement; January 2020 Statement of the Case; March 2020 VA Form 9. On the Veteran's March 2020 VA Form 9, he requested a Board hearing. Thereafter, the Veteran's requested hearing was scheduled in July 2021. However, according to the Veterans Appeals Control and Locator System, the Veteran failed to appear for his scheduled hearing. When a Veteran fails to appear for a scheduled hearing and a request for postponement has not been received and granted, the case will be processed as though the request for a hearing had been withdrawn. 38 C.F.R. § 20.704 (d). Under these circumstances, the Board finds that the Veteran has been afforded his opportunity for a hearing and that his request to testify before the Board has been withdrawn. Service Connection for Hyperlipidemia The Veteran seeks service connection for hyperlipidemia. Service connection is warranted where the evidence of record establishes that a particular injury or disease resulting in disability was incurred in the line of duty in the active military service or, if pre-existing such service, was aggravated thereby. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303 (a). Establishing service connection generally requires (1) evidence of a current disability; (2) evidence of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the present disability. Shedden v. Principi, 381 F. 3d 1163, 1167 (Fed. Cir. 2004); see also Caluza v. Brown, 7 Vet. App. 498, 506 (1995), aff'd per curiam, 78 F. 3d 604 (Fed. Cir. 1996) (table); 38 C.F.R. §§ 3.303. Here, treatment records show that the Veteran has been diagnosed with hyperlipidemia and high cholesterol. However, hyperlipidemia and high cholesterol are laboratory finding and 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 Veteran's diagnosis of hyperlipidemia and high cholesterol readings only represent laboratory findings and not an actual disability for which VA compensation benefits are payable. As high cholesterol and hyperlipidemia are not disabilities for VA compensation benefits purposes, i.e., not "service-connectable" disability entities, and the evidence does not otherwise show functional impairment of earning capacity, the Veteran has not presented a valid claim and service connection must be denied. See Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). REASONS FOR REMAND Duty to Notify Initially, the Board notes that notice under the Veterans Claims Assistance Act of 2000 (VCAA) is necessary. Following the Veteran's November 2017 claim, VA did not send the Veteran VCAA notice with regards to the requirements for establishing entitlement to service connection for his claimed disabilities. Thus, such notice must be sent to the Veteran on remand. Outstanding Records The Board notes that there is an overall dearth of medical evidence currently associated with the claims file. In this regard, other than a March 2008 VA treatment record and private treatment records dated in 2017, there are no medical records associated with the claims file. Accordingly, on remand, the RO should obtain and outstanding VA treatment records, and the Veteran should be provided with one more opportunity to identify and/or submit any outstanding, relevant private treatment records. See Lind v. Principi, 3 Vet. App. 493, 494 (1992); Murincsak v. Derwinski, 2 Vet. App. 363 (1992); see also Wood v. Derwinski, 1 Vet. App. 191 (1991) ("The duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining the putative evidence."). Hearing Loss and Tinnitus The Veteran seeks service connection for bilateral hearing loss and tinnitus. The Veteran's service records indicate that he served as an indirect fire infantryman. As this military occupational specialty (MOS) has been determined by the Department of Defense to involve a "highly probable" likelihood of hazardous noise exposure, in-service noise exposure is conceded. See VA Fast Letter 10-35 (Sept. 2, 2010) (providing Duty MOS Noise Exposure Listing and stating that if the duty position is shown to have a "Highly Probable" likelihood of exposure to hazardous noise, exposure to such noise will be conceded for purposes of establishing the in-service event). To date, the Veteran has not been afforded a VA audiological examination. VA's duty to assist includes providing a medical examination when it is necessary to make a decision on a claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159. In light of the foregoing, the Board finds it necessary to remand this issue to obtain a VA examination to determine the etiology of the Veteran's bilateral hearing loss and tinnitus. McLendon, 20 Vet. App. at 79. Coronary Arteriosclerosis and Diabetes Mellitus The Veteran contends that his coronary arteriosclerosis and diabetes mellitus are related to herbicide exposure while serving in Korea. Effective February 24, 2011, VA amended its regulations (38 C.F.R. § 3.307) to extend a presumption of herbicide exposure to certain Veterans who served in Korea. 76 Fed. Reg. 4245 -01 (Jan. 25, 2011). Specifically, a Veteran who, during active military, naval, or air service, served between April 1, 1968 and August 31, 1971, in a unit that, as determined by the Department of Defense (DoD), operated in or near the Korean DMZ in an area in which herbicides are known to have been applied during that period, shall be presumed to have been exposed during such service to an herbicide agent, unless there is affirmative evidence to establish that the Veteran was not exposed to any such agent during that service. 38 C.F.R. § 3.307 (a)(6)(iv). Once exposure has been established by the evidence, the presumptions found at 38 C.F.R. § 3.309 (e) are applicable. Here, the Veteran's personnel records show that the Veteran served in Korea from August 1964 to July 1965. Thus, he did not serve during the applicable time period to trigger the presumption discussed above. VA has adopted specific procedures for verification of herbicide exposure when, as here, a Veteran claims exposure in Korea and he did not have service between September 1, 1967 and August 31, 1971. See VA's Adjudication Procedure Manual, M21-1, Part VII, Subpart i, Chapter 1, Section A, Paragraph 3(c) (July 29, 2021). The Board is not bound by VA's Adjudication Manual, DAV v. Sec'y of Veterans Affairs, 859 F.3d 1072, 1077 (Fed. Cir. 2017), but it "is required to discuss any relevant provisions contained in the M21-1 as part of its duty to provide adequate reasons or bases." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). Specifically, if sufficient information was not already provided to verify exposure to herbicides, the M21 requires that the Veteran be asked to provide further details and allowed 30 days to respond to the request. Once additional information has been received, VA is to request verification of the exposure with the Military Records Research Center (MRRC), or if no such information is received, proceed with adjudicating the claim. Here, as noted above, the RO did not notify the Veteran of the requirements for substantiating any claim for service connection, much less a claim related to herbicide exposure. Moreover, VA did not request additional information from the Veteran or attempt to verify herbicide exposure with the MRRC as directed by the M21. This should be accomplished on remand. Erectile Dysfunction The issue of entitlement to service connection for erectile dysfunction is inextricably intertwined with the issue of entitlement to service connection for diabetes mellitus and is deferred pending the development requested herein. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Provide the Veteran with proper VCAA notice that informs him of the evidence and information necessary to establish entitlement to service connection for the conditions on appeal. 2. Undertake all appropriate efforts to attempt to verify the Veteran's claimed exposure to herbicides while serving in Korea per current M21-1 provisions. All documentation sent and received by the AOJ must be associated with the claims file. 3. Request that the Veteran provide the names, addresses, and approximate dates of treatment of all medical care providers who have treated him for the issues on appeal. After the Veteran has signed the appropriate releases, those records not already on file should be obtained and associated with the claims folder. Additionally, obtain and associate with the Veteran's claims file all outstanding VA treatment records showing treatment for the issues on appeal. If no such records are located, this fact should be clearly documented in the claims file. 4. After all available records have been associated with the claims file, the Veteran should be afforded an appropriate VA examination to determine the nature and etiology of his bilateral hearing loss and tinnitus. The claims file and a copy of this remand must be made available to the examiner in conjunction with the examination. After review of the claims file and examination of the Veteran, the examiner is asked to confirm whether the Veteran has a current bilateral hearing loss disability, per VA regulatory standards. If he does, the examiner should opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's bilateral hearing loss began in service, was caused by service, or is otherwise related to service. The examiner should also opine as to whether it is at least as likely as not (i.e., 50 percent probability or greater) that the Veteran's tinnitus is related to service or to the Veteran's bilateral hearing loss. The Veteran's lay assertions regarding noise exposure and subjective hearing loss and tinnitus must be considered and discussed when formulating an opinion. For purposes of this opinion, the examiner should presume that the Veteran suffered an "in-service injury" of acoustic trauma. The examiner is also advised that the Veteran is competent to report his symptoms and history, and such reports must be acknowledged and considered in formulating any opinion. A complete rationale must be provided for all opinions offered. If an opinion cannot be offered without resorting to mere speculation, the examiner should explain in full why this is the case and identify what additional evidence (if any) would allow for a more definitive opinion. CONTINUED ON NEXT PAGE 5. After completing the requested actions, and any additional notification and/or development deemed warranted, re-adjudicate the Veteran's claim. If the claim remains denied, the Veteran and his representative should be furnished a supplemental statement of the case and be allowed an appropriate period of time for response. The case should be returned to the Board for further appellate review, if otherwise in order. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R. Kipper, Counsel 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.