Citation Nr: 21066071 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 18-55 181 DATE: October 28, 2021 ORDER Entitlement to service connection for a cardiovascular disability, claimed as hypertensive cardiovascular disease and dyslipidemia, is denied. Entitlement to a total disability rating due to individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The Veteran does not have a diagnosed cardiovascular disability. 2. Dyslipidemia, hyperlipidemia, and hypercholesterolemia are laboratory findings and are not disabilities for which compensation can be awarded. 3. The Veteran is currently not in receipt of service connection for any disability. CONCLUSIONS OF LAW 1. The criteria for service connection for a cardiovascular condition, claimed as hypertensive cardiovascular disease and dyslipidemia, are not met. 38 U.S.C. §§ 1131, 1112, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.309. 2. The criteria for entitlement to a TDIU are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.3, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from April 1957 to August 1957. This matter comes before the Board of Veterans' Appeals (Board) from an October 2018 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). In October 2019, the Board remanded this matter for further development. The Board notes that in July 2020 and August 2020, as well as in March 2021, the Veteran filed two VA Forms 20-0996, Decision Review Request: Higher-Level Review, and selected the box to withdraw his appeals from the legacy system and opt-in to the modernized system governed by the Appeals Modernization Act (AMA). These forms, however, are not valid, as the prior Statement of the Case (SOC) was issued in November 2018 before the effective date of the AMA, in February 2019, and they were filed almost two years from the date of issuance of the SOC, beyond the 60-day deadline. 38 U.S.C. § 5104B; 38 C.F.R. §§ 3.2400, 3.2500, 3.2601, 19.52. In a September 2020 Correspondence, the VA notified the Veteran of the steps it had taken to obtain his pre-2005 VA treatment records and that all efforts to obtain such records were unsuccessful. 1. Entitlement to service connection for a cardiovascular disability, claimed as hypertensive cardiovascular disease and dyslipidemia, is denied. The Veteran asserts that he has a cardiovascular condition, to include hypertensive cardiovascular disease and dyslipidemia, caused by his active service. See August 2018 VA Form 21-526EZ. Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303. The three-element test for service connection requires evidence of: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship (nexus) between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). Under applicable regulation, 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 Allen v. Brown, 7 Vet. App. 439, 448 (1995); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Symptoms or clinical findings, such as laboratory findings, are not disabilities within the law. Absent evidence of a current disability, a claim for service connection must be denied. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, the August 2021 C&P examiner indicated the Veteran has never been diagnosed with a heart condition and that physical examination of the Veteran did not support a diagnosis of a heart condition, to include hypertension. See August 2021 C&P heart conditions examination at 2; August 2021 C&P medical opinion. The examiner performed a physical examination, reviewed the Veteran's treatment records and claims file, and reviewed the July 2021 echocardiogram. The examiner determined that there was no evidence of a heart condition at the time of the examination, nor was there evidence of complaints in service that would indicate hypertension or a cardiac condition in service. The examiner determined the Veteran was asymptomatic for any heart condition and noted that the Veteran denied hypertension, unstable angina, or any heart condition, and was without history of any cardiac condition. The examiner noted that the Veteran denied experiencing symptoms attributable solely to a cardiac condition with any level of physical activity. The examiner determined that the echocardiogram findings of mild left ventricular hypertrophy and mildly increased left atrium as well as valvular findings are not indicative of any cardiac disease. Instead, they are normal findings for the Veteran's age and thus do not warrant a diagnosis. The Veteran's VA treatment records are also silent for any cardiovascular conditions. See May 2019 (cardiovascular negative); October 2018 (negative for hypertension); December 2014 (no chest pain and cardiac rhythm regular); November 2012 (cardiovascular regular rate and rhythm; no murmurs or gallops); November 2012 (atypical chest pain but no evidence of ischemia); May 2004 (cardiovascular rhythm is regular); May 2004 (cardiovascular assessment: no deviations). VA treatment records do not show a prescription for lisinopril and the Veteran's blood pressure readings do not meet the criteria for hypertension for VA purposes. See 38 C.F.R. § 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (defining hypertension for VA purposes as diastolic blood pressure predominantly 90 mm. or greater or systolic blood pressure predominantly 160mm. or greater with a diastolic blood pressure of less than 90 mm.). Although a June 2018 private medical opinion by Dr. C.M.Q. includes hypertensive cardiovascular disease and dyslipidemia in a list of medical diagnoses, the opinion provides no basis for these diagnoses, such as the results of physical examinations and diagnostic tests. The Board finds that the May 2021 C&P examination and VA treatment records indicating a lack of a cardiovascular diagnosis outweigh the June 2018 private medical opinion, as the VA records contain greater detail and evidence that physical examinations and diagnostic tests were conducted. The Veteran's VA treatment records are also silent for a diagnosis of dyslipidemia, but they do indicate a diagnosis of hyperlipidemia. See, e.g., November 2019, May 2019, November 2018, and June 2018 VA treatment records. However, hyperlipidemia is a laboratory result and not an actual disability for which VA compensation benefits are payable. See Schedule for Rating Disabilities; Endocrine System Disabilities, 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (stating 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"). Nevertheless, even if the Veteran was diagnosed with dyslipidemia, under the same reasoning as used in the Federal Register regarding hyperlipidemia, dyslipidemia, a related blood condition, is similarly a laboratory result and not an actual disability for which VA compensation benefits are payable. Id. The term "disability," as used for VA purposes, refers to impairment of earning capacity. See Saunders v Wilkie, 886 F.3d 1356 (2018); Allen v. Brown, 7 Vet. App. 439, 448 (1995). However, there is nothing in law or fact to suggest that the Veteran's hyperlipidemia, in and of itself, diminishes his earning capacity in any way. February 2018 VA treatment records state it was under "excellent control off meds." There is no other competent opinion of record addressing whether the Veteran has a diagnosed cardiovascular condition, to include dyslipidemia, or whether his hyperlipidemia constitutes a specific disease or disorder as opposed to a laboratory finding. In this regard, the Veteran is not competent to determine whether his hyperlipidemia represents a disability, or whether he has a diagnosed cardiovascular condition, as these determinations require medical expertise. Thus, a preponderance of the competent evidence of record establishes that the Veteran's hyperlipidemia is a clinical laboratory finding and not a disability for which VA compensation benefits are payable, and that the Veteran does not have a diagnosed cardiovascular condition, to include hypertension or dyslipidemia. The competent evidence of record also establishes that even if the Veteran had been diagnosed with dyslipidemia, such a condition is also a clinical laboratory finding and not a disability for which VA compensation benefits are payable. Thus, the first element of service connection, a current disability, is not established for VA purposes, and the benefit sought on appeal is denied on this basis alone. 2. Entitlement to a TDIU is denied. The Veteran asserts that he is unemployable, to include as a result of service-connected disabilities. See July 2020 VA Forms 21-4192 and 21-8940; August 2018 VA Form 21-526EZ. A total disability rating may be assigned, where the schedular rating is less than total, when it is found that the Veteran is unable to secure or follow a substantially gainful occupation as the result of service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. It is the policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of a service-connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). Therefore, if a veteran fails to meet the schedular requirements set forth in 38 C.F.R. § 4.16(a), an extraschedular rating may nevertheless be considered under 38 C.F.R. § 4.16(b) where a veteran is unemployable due to service-connected disabilities. In short, to meet the criteria for either schedular or extraschedular TDIU, the Veteran must have a service-connected disability or disabilities which form the basis of the claim for unemployability. The Veteran is not in receipt of service connection for any disability. See March 2021 and October 2018 Codesheets. Thus, as the Veteran has no service-connected disability, he does not meet the criteria for entitlement to a TDIU, and the benefit sought on appeal must be denied. Marissa Caylor Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. deBruyn, Associate 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.