Citation Nr: 21069353 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 12-13 036 DATE: November 18, 2021 ORDER Entitlement to service connection for hypercholesterolemia is denied. Entitlement to service connection for hyperkalemia is denied. REMANDED Entitlement to service connection for a bilateral foot disability, to include as due to in-service herbicide exposure and to include as secondary to the service-connected diabetes mellitus, type II, is remanded. Entitlement to service connection for hypothyroidism, to include as due to in service herbicide exposure and to include as secondary to the service-connected diabetes mellitus, type II, is remanded. FINDINGS OF FACT 1. Hypercholesterolemia is a laboratory finding and is not a disability for which VA disability benefits may be awarded. 2. Hyperkalemia, or elevated potassium, is a laboratory test result and is not a disability for which VA disability benefits may be awarded. CONCLUSIONS OF LAW 1. The criteria for service connection for hypercholesterolemia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hyperkalemia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from February 1964 to December 1967. As he had service in the inland waterways of the Republic of Vietnam, and Agent Orange exposure has been conceded. He died in April 2012. The Appellant is his surviving spouse. See July 2019 Substitution Determination. The Appellant initially requested a videoconference hearing before the Board. See May 2012 VA Form 9 Substantive Appeal. In correspondence received by VA in August 2021, the Appellant indicated her wish to withdraw her hearing request and asked that the appeal be made based on the evidence already of record. Her hearing request is deemed withdrawn. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection requires competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated in service. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Service connection may be granted for chronic disabilities if such is shown to have been manifested to a compensable degree within one year after the Veteran was separated from service. 38 U.S.C. §§ 1101, 1113; 38 C.F.R. §§ 3.307, 3.309. The existence of a current disability is the cornerstone of a claim for VA disability compensation. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). The presence of a chronic disability at any time in the claim process can justify a grant of service connection, even if the disability has since resolved or the most recent diagnosis is negative. McClain v. Nicholson, 21 Vet. App. 319 (2007). VA administers the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 C.F.R. § 3.102. Hypercholesterolemia Prior to his death, the Veteran maintained that he had hypercholesterolemia related to his active service, to include as due to his now service-connected diabetes mellitus, type II. Hypercholesterolemia is defined as "excessive cholesterol in the blood." DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 887 (32 ed. 2012). VA awards service connection for disabilities. See, e.g., 38 U.S.C. § 1110. Hypercholesterolemia is a laboratory finding and not a disability for VA compensation purposes. See 61 Fed. Reg. 20440 (May 7, 1996) (stating, regarding hyperlipidemia, elevated triglycerides, and elevated cholesterol, that such "are actually laboratory test results, and are not, in and of themselves, disabilities"). As previously noted, the threshold requirement for service connection is competent evidence of the current existence of the claimed disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, competent evidence does not identify a disability for VA compensation purposes. Without such, this claim cannot succeed. As the preponderance of the evidence is against service connection for hypercholesterolemia, there is no doubt to be resolved. Service connection for hypercholesterolemia is denied. Hyperkalemia Prior to his death, the Veteran maintained that he had hyperkalemia related to his active service, to include as due to his now service-connected diabetes mellitus, type II. Hyperkalemia is also described as elevated potassium levels. Hyperkalemia represents a laboratory finding and is not a disability in and of itself or a disability for VA compensation purposes. As previously noted, the threshold requirement for service connection is competent evidence of the current existence of the claimed disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Here, competent evidence does not identify a disability for VA compensation purposes. Without such, this claim cannot succeed. Therefore, the preponderance of the evidence is against service connection for hyperkalemia. As such, there is no doubt to be resolved. Service connection for hyperkalemia is denied. REASONS FOR REMAND Service connection for a bilateral foot disability, to include as due to in-service herbicide exposure and to include as secondary to the service-connected diabetes mellitus, type II Prior to his death, the Veteran contended that he had a right and left foot disability related to his military service, to include as secondary to his service-connected diabetes mellitus, type II. VA and private treatment records document various complaints of bilateral foot pain resulting in functional loss and affected gait, as well as indications of bilateral flat feet and degenerative joint disease. The Veteran's service treatment records (STRs) do not reflect any complaints of, or treatment for, a bilateral foot disability. At a July 2009 VA examination, the examiner indicated that the Veteran's feet were normal and that no disability was present. The examiner noted the Veteran's longstanding history of foot pain and his reports that he experienced foot pain daily which required special-made arches and limited his ability to stand or walk for extended periods of time. In determining that the Veteran did not have a current bilateral foot disability, the examiner did not address the Veteran's complaints of pain or appear to consider his reports that his bilateral foot pain resulted in functional impairment. As such, the July 2009 examination is inadequate. The Veteran's reports of pain may constitute a current disability to the extent that they result in functional impairment. Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). This consideration is furthered by the Veteran's continued complaints of bilateral foot pain in the years following this examination and preceding his death. Additionally, no etiological opinion was provided by the July 2009 examiner. To date, no VA medical examiner has addressed whether the Veteran's bilateral foot disability is related to his military service, to include as due to his conceded herbicide exposure and/or as secondary to his service-connected diabetes mellitus, type II. Given the lack of sufficient medical evidence to make a decision on this matter, the Board finds that a VA medical opinion should be obtained to address the nature and etiology of the Veteran's bilateral foot disability. Service connection for hypothyroidism, to include as due to in-service herbicide exposure and to include as secondary to the service-connected diabetes mellitus, type II Prior to his death, the Veteran contended that he had hypothyroidism related to his military service, to include as secondary to his now service-connected diabetes mellitus, type II. VA and private treatment records document a diagnosis of hypothyroidism prior to his death. Although his STRs do not document any complaints of, or treatment for, hypothyroidism during service, as noted in the introduction to this decision, Agent Orange exposure has been conceded. At a July 2009 VA examination, the examiner noted a diagnosis of hypothyroidism. However, the examiner did not provide an etiological opinion addressing this disability. To date, no VA medical examiner has addressed whether the Veteran's hypothyroidism is related to his military service, to include as due to his conceded herbicide exposure and/or as secondary to his service-connected diabetes mellitus, type II. Given the lack of sufficient medical evidence to make a decision on this matter, the Board finds that a VA medical opinion should be obtained to address the etiology of the Veteran's hypothyroidism. Accordingly, these matters are REMANDED for the following action: 1. Identify and obtain any outstanding VA and private treatment records. The Appellant should be asked to provide any information or authorization necessary for VA assistance in obtaining private treatment records. All requests and responses for the records must be documented. If any identified records cannot be obtained, notify the Appellant of the missing records, the efforts taken, and any further efforts that will be made by VA to obtain such evidence, and allow her an opportunity to provide the missing records 2. Then, obtain a VA medical opinion from an appropriate clinician to determine the etiology of the Veteran's bilateral foot disability(ies). The record must be made available to, and be reviewed by, the VA examiner in conjunction with this examination. After reviewing the claims folder, the examiner is asked to do the following: a. Identify any bilateral foot disability(ies) that existed prior to the Veteran's death. b. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral foot disability(ies) onset in, or is(are) otherwise related to, his military service, to include his conceded herbicide exposure; and c. Notwithstanding the above, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's bilateral foot disability(ies) was(were) caused, or aggravated beyond its natural progression (worsened), by his service-connected diabetes mellitus, type II. In this regard, the Board emphasizes that causation and aggravation are two separate inquires, and both must be answered. The examiner is advised that the now-deceased Veteran was, and the Appellant is, competent to report symptoms/history and that such reports must be acknowledged and considered in formulating an opinion. If any lay reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. 3. Then, obtain a VA medical opinion from an appropriate clinician to determine the etiology of the Veteran's hypothyroidism. The record must be made available to, and be reviewed by, the VA examiner in conjunction with this examination. After reviewing the claims folder, the examiner is asked to do the following: a. Opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypothyroidism onset in, or is otherwise related to, his military service, to include as due to his conceded herbicide exposure; and b. Notwithstanding the above, opine whether it is at least as likely as not (i.e., a 50 percent or greater probability) that the Veteran's hypothyroidism was caused, or aggravated beyond its natural progression (worsened), by his service-connected diabetes mellitus, type II. In this regard, the Board emphasizes that causation and aggravation are two separate inquires, and both must be answered. The examiner is advised that the now-deceased Veteran was, and the Appellant is, competent to report symptoms/history and that such reports must be acknowledged and considered in formulating an opinion. If any lay reports are discounted, the examiner should provide a reason for doing so. A rationale for all requested opinions shall be provided. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation stating why this is so. In so doing, the examiner shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information or that he or she has exhausted the limits of current medical knowledge in providing an answer to that question. THERESA M. CATINO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Goreham 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.