Citation Nr: 21073251 Decision Date: 12/08/21 Archive Date: 12/08/21 DOCKET NO. 14-24 923 DATE: December 8, 2021 ORDER A substantive appeal of the June 2008 rating decision was timely filed and the petition for appellate review of that decision is granted. Service connection for hyperlipidemia is denied. Service connection for obstructive sleep apnea is granted. Service connection for insomnia is denied. Service connection for allergic rhinitis is denied. Service connection for respiratory reactive airway disease (asthma) is denied. REMANDED Service connection for arthritis in joints other than knees, ankles and elbows is remanded. Service connection for a bilateral elbow condition / epicondylitis is remanded. Service connection for a bilateral knee condition is remanded. Service connection for a bilateral ankle condition, claimed as degenerative joint disease with swollen and painful ankles, is remanded. Service connection for pes planus is remanded. Service connection for bilateral testicular pain is remanded. Service connection for fatty liver, claimed as liver disease, is remanded. Service connection for coronary artery disease/atherosclerosis is remanded. An initial compensable rating for status post hemorrhoidectomy is remanded. FINDINGS OF FACT 1. The Veteran submitted a claim for VA benefits in November 2007; a June 2008 rating decision granted service connection for status post hemorrhoidectomy; service connection for arthritis in joints; bilateral elbow condition - epicondylitis; a bilateral knee condition; degenerative joint disease with swollen and painful ankles; pes planus/flat feet; allergic rhinitis; respiratory reactive airway disease (asthma); insomnia; hyperlipidemia; fatty liver; and bilateral testicular pain was denied. 2. Notice of the June 2008 rating decision was sent on June 25, 2008. 3. The Veteran submitted a notice of disagreement (NOD) that was received by the RO on June 8, 2009; the RO issued a statement of the case (SOC) on April 7, 2010. 4. The Veteran's VA Form 9 was received by the RO on April 15, 2011, more than one year after the Veteran was advised of the decision made in the June 2008 rating decision and more than 60 days after the RO sent the Veteran the SOC. 5. The Board resolves all doubt in favor of the Veteran by finding that correspondence received on June 9, 2010, reflects his intent to continue his appeal to the Board and that the statement was sufficient to be an appeal in lieu of a VA Form 9. 6. Hyperlipidemia is a lab result and not a disability for which VA compensation is payable. 7. The Board resolves reasonable doubt in favor of the Veteran by finding that his obstructive sleep apnea was incurred during active duty service. 8. A current diagnosis of insomnia is not shown by the evidence of record. 9. A current diagnosis of allergic rhinitis is not shown by the evidence of record. 10. A current diagnosis of respiratory reactive airway disease (asthma) is not shown by the evidence of record. CONCLUSIONS OF LAW 1. A timely substantive appeal of the June 2008 rating decision was submitted. 38 U.S.C. §§ 7105(d)(3), 7108; 38 C.F.R. §§ 20.200, 20.202, 20.302, 20.305 (2018). 2. The criteria for service connection for hyperlipidemia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 3. The criteria for service connection for obstructive sleep apnea have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 4. The criteria for service connection for insomnia have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 5. The criteria for service connection for allergic rhinitis have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. 6. The criteria for service connection for respiratory reactive airway disease (asthma) have not been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. § 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from June 1975 to June 1981 and from May 1985 to August 2006. These matters come before the Board of Veterans Appeals (Board) on appeal from adverse determinations issued by the Department of Veterans Affairs (VA) Regional Office (RO). An April 19, 2011 determination letter advised the Veteran that his VA Form 9 received on April 15, 2011, was not timely as to the June 2008 rating decision. A February 2014 rating decision denied claims for service connection for obstructive sleep apnea and coronary artery disease / atherosclerosis. The Veteran submitted a VA Form 9 that was received in July 2014 that should have been construed as an NOD to the February 2014 rating decision since he indicated he wanted to appeal the issues identified on a VA Form 21-526 and included discussion of coronary artery disease and obstructive sleep apnea. Although the RO did not treat this submission as an NOD, the Veteran subsequently filed a supplemental claim that was adjudicated in a February 2018 rating decision that confirmed and continued the denial of service connection for these claims, to include on a secondary basis, and the Veteran appealed that rating decision. For these reasons, the Board finds that the February 2014 rating decision is the rating decision on appeal concerning the claims for coronary artery disease/atherosclerosis and obstructive sleep apnea. The issue of whether the Veteran filed a timely substantive appeal of the June 2008 rating decision was remanded by the Board in September 2018 to schedule the Veteran for a Decision Review Officer (DRO) hearing. The Veteran presented testimony at a Board hearing before the undersigned Veterans Law Judge in July 2021. A transcript is of record. The Board notes that a February 2020 private opinion indicates that that the Veteran's bilateral plantar fasciitis is as likely as not due to his high impact activities while enlisted in the military. Since the Veteran's original claim did not include plantar fasciitis and that disorder now has its own diagnostic code, the Veteran is notified that should he want to file a claim for service connection for plantar fasciitis, it must be submitted on the application form prescribed by the Secretary. 38 C.F.R. § 3.1(p), 3.155, 3.160. 1. Timeliness of the substantive appeal of the June 2008 rating decision The primary issue to be resolved in this case is whether the Veteran filed a timely substantive appeal of a June 2008 rating decision. An appeal consists of a timely filed NOD in writing and, after an SOC has been furnished, a timely filed substantive appeal. 38 U.S.C. § 7105(a); 38 C.F.R. § 20.200. A substantive appeal consists of a properly completed VA Form 9, "Appeal to the Board of Veterans' Appeals," or correspondence containing the necessary information; the substantive appeal should set out specific arguments relating to errors of fact of law made by the agency of original jurisdiction in reaching the determination, or determinations, being appealed. To the extent feasible, the argument should be related to specific items in the SOC. 38 C.F.R. § 20.202 (2018). The claimant is afforded a period of 60 days from the date the SOC is mailed to file the substantive appeal, or within the remainder of the one-year period from the date of mailing of the notification of the determination being appealed, whichever is later. 38 U.S.C. § 7105(d)(3); 38 C.F.R. § 20.302(b) (2018). The date of mailing of the SOC will be presumed to be the same as the date of the SOC, and the date of mailing of the determination will be presumed to be the same as the date of that letter, for purposes of determining whether an appeal has been timely filed. 38 C.F.R. § 20.302(b) (2018). An extension for filing a substantive appeal may be granted for good cause if a motion is filed prior to the expiration of the time limit described above. 38 C.F.R. § 20.303 (2018). In this case, a June 2008 rating decision granted service connection for status post hemorrhoidectomy and denied service connection for arthritis in joints; bilateral elbow condition - epicondylitis; a bilateral knee condition; degenerative joint disease with swollen and painful ankles; pes planus/flat feet; allergic rhinitis; respiratory reactive airway disease (asthma); insomnia; hyperlipidemia; fatty liver; and bilateral testicular pain. The file contains a letter dated June 25, 2008, in which the RO advised the Veteran of the decision. The Veteran filed an NOD that was received by the RO on June 8, 2009. The RO issued an SOC on April 7, 2010, and sent the SOC to the Veteran with a cover letter, a VA Form 9, and a discussion of appeals options. To perfect the appeal, the Veteran was required to file a substantive appeal within one year of the issuance of the determination being appealed (i.e., not later than June 25, 2009) or within 60 days of the mailing of the SOC (i.e., not later than June 7, 2010), whichever was later. In this case, the Veteran's substantive appeal (VA Form 9), dated April 10, 2011, was not received at the RO until April 15, 2011, more than one year after the Veteran was advised of the decision made in the June 2008 rating decision and more than 60 days after the RO sent the Veteran the SOC. As noted above, an extension for filing a substantive appeal may be granted on motion filed prior to the expiration of the time limit described above. 38 C.F.R. § 20.303 (2018). Review of the claims file discloses that in correspondence received on June 9, 2010, the Veteran wrote "reference my notice of disagreement and your letter dated 7 Apr, 2010. I am requesting 60 days extension. I am currently working on getting more information on my claim to present why it is important to approve my claim." A handwritten notation "VACOLS diary June 19, 2010," appears on this document, but the RO never responded to the Veteran's request for an extension. Resolving all doubt in favor of the Veteran, the Board finds that this statement reflects his intent to continue his appeal to the Board and that the statement was sufficient in this case to be an appeal in lieu of a VA Form 9. Based on the foregoing, the petition for appellate review of the issues adjudicated in the June 2008 rating decision is granted and appeal of those claims will be considered by the Board in this decision. 2. Service connection for hyperlipidemia The Veteran seeks service connection for hyperlipidemia. VA has found that diagnoses of hyperlipidemia, elevated triglycerides, and elevated cholesterol are laboratory results and are not, in and of themselves, disabilities for compensation purposes. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Congress specifically limits entitlement for service-connected disease or injury to cases where such incidents have resulted in a current disability for VA compensation purposes. See 38 U.S.C. § 1110. In the absence of proof of present disability that may be compensated by VA, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); see also Degmetich v. Brown, 104 F.3d 1328 (1997). The Board does not dispute that the Veteran has been assessed with hyperlipidemia; however, having hyperlipidemia does not constitute a disability. Accordingly, service connection for hyperlipidemia must be denied. 3. Service connection for obstructive sleep apnea 4. Service connection for insomnia 5. Service connection for allergic rhinitis 6. Service connection for respiratory reactive airway disease (asthma) The Veteran's original claim was for service connection for frequent trouble sleeping / insomnia and respiratory reactive airway disease. The claims for obstructive sleep apnea, insomnia, allergic rhinitis, and respiratory reactive airway disease (asthma) appear to be interrelated and the Veteran's attorney stated at the Board hearing that the respiratory issues are covered under obstructive sleep apnea. It has been reported that the Veteran had insomnia and snoring during service and was evaluated in Korea with inconclusive results. In essence, it is claimed that the Veteran showed symptoms of obstructive sleep apnea well before a formal diagnosis was made in 2013. The Veteran was diagnosed with obstructive sleep apnea during a 2013 sleep study conducted in conjunction with examination prior to his civilian deployment to Afghanistan. Since the first criterion for establishing service connection has been met, the question becomes whether this condition is related to service. Service treatment records indicate that during a June 2006 report of medical history, the Veteran reported shortness of breath and frequent trouble sleeping. During an April 2008 ENT examination conducted in Korea, the Veteran reported a history of snoring, sometimes sleep apnea (recently aggravated); the diagnosis was snoring. In an undated letter, a physician assistant (PA) reported that the Veteran was a patient from 2005-2006 and that he would occasionally mention increased daytime drowsiness and excessive snoring. The PA reported that the Veteran was encouraged to have this further worked up for possible sleep apnea while noting that at that time, there was no sleep study facility in the area, which meant the Veteran would have had to travel to have this done. In an April 2014 letter, the same PA provided an opinion that it is likely that had this test been done at the time the Veteran was a patient (2005-2006), he would have been diagnosed with sleep apnea while on active duty. A July 2013 record authored by a cardiologist assessed the Veteran with nonspecific interventricular conduction delay. The cardiologist noted that electrocardiographic changes may be related to right sided cardiac enlargement, which may in turn be related to occult sleep apnea. It was the cardiologist's opinion that since the Veteran's electrocardiographic appearance has not changed since his initial evaluation while on active duty, it is likely that his sleep apnea has been active since that time. Given this opinion, the Board resolves reasonable doubt in favor of the Veteran by finding that his obstructive sleep apnea was incurred during active duty service. With respect to the claims for insomnia, allergic rhinitis, and respiratory reactive airway disease (asthma), the preponderance of the evidence is against the claims for service connection for insomnia, allergic rhinitis, and respiratory reactive airway disease (asthma), the evidence of record dated during the appeal period does not indicate that the Veteran has been diagnosed with any of these conditions. Although the April 2008 respiratory examination conducted in Korea diagnosed suspicious of bronchial asthma (less likely), but did not establish that the Veteran had asthma, and such has not been shown. Without evidence of current diagnoses of insomnia, allergic rhinitis, and/or respiratory reactive airway disease (asthma) during the course of the claim, service connection for those disabilities is not warranted, and the claims must be denied. The Board notes Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018), which held that a "disability" under 38 U.S.C. § 1110 refers to functional impairment of earning capacity. However, the functional impairment in this case, as acknowledged during the hearing by the Veteran's attorney, has been diagnosed as obstructive sleep apnea. As service connection is being granted for sleep apnea, denial of the other claims for lack of diagnosis is appropriate. REASONS FOR REMAND 1. Service connection for arthritis in joints other than knees, ankles and elbows is remanded. 2. Service connection for a bilateral elbow condition - epicondylitis is remanded. 3. Service connection for a bilateral knee condition is remanded. 4. Service connection for a bilateral ankle condition, claimed as degenerative joint disease with swollen and painful ankles, is remanded. 5. Service connection for pes planus/flat feet is remanded. The Veteran asserts that he has orthopedic problems involving his feet, ankles, knees, hips, back, shoulders, and elbows as a result of parachute jumps during active duty service. He testified that he did over 75 jumps and had a couple of hard landings. Since claims specific to the knees, elbows, and ankles have been adjudicated separately, the Board has recharacterized the claim originally adjudicated as arthritis of the joints as service connection for arthritis in joints other than the knees, ankles, and elbows. Service treatment records document complaints involving both shoulders, both knees, the right ankle, the right biceps muscle and coracoid process, and the right foot. The May 1985 entrance examination contained no notations of pes planus/flat feet and clinical evaluation of the Veteran's feet was normal at that time. Service treatment records from the Veteran's first period of active duty service are not available. The post-service evidence of record indicates that the Veteran was seen in February 2017 with persistent left shoulder pain and weakness after falling through the ceiling of his home last October; the exam was consistent with rotator cuff tear. In May 2017 the Veteran was assessed with bilateral flat feet and in June 2017, the Veteran was assessed with left lateral epicondylitis and left shoulder biceps tendonitis. There are no post-service treatment records indicating that the Veteran was seen for problems involving either knee, either ankle, either hip, the right elbow, the right shoulder, or the lumbar spine. There is a private opinion of record that the Veteran's bilateral knee and ankle pain are as likely as not due to his paratrooper activities while enlisted in the military. The physician also provided an opinion that the Veteran's bilateral pes planus, which was noted on the entrance physical as being asymptomatic, is now worsened more likely than not due to his military experience. Medical articles related to the ankles and the prevalence of osteoarthritis being more common in military service members were attached. Since the Veteran's orthopedic and foot claims have never been examined by VA, remand for appropriate examinations is needed to address these claims. 6. Service connection for bilateral testicular pain is remanded. The Veteran testified that he hurt his testicles during one of his hard landings while doing parachute jumps. He reported being taken to the clinic where it was determined that some of his urine had gone back inside his testicles. Service treatment records document that the Veteran was seen in February 1988 with complaint of left testicle pain for two days after a parachute landing; the assessment was mild epidydimal irritation. The post-service evidence includes the findings from an April 2008 genitourinary examination conducted in Korea in conjunction with the Veteran's claim. The Veteran complained of chronic bilateral testicular pain and after examination, was diagnosed with bilateral scrotal hydrocele; rule out both chronic epididymitis. A May 2008 report indicates that a small amount of fluid collection had been seen on both sides of the scrotum but that both testicles were normal. No opinion was provided. The post-service evidence also includes September 2017 assessments of acute pain in scrotum; scrotal swelling; retractile testis; unspecified undescended testicle. A September 2017 ultrasound contains an impression of bilateral epididymal head cysts; normal testicles. Examination is needed to address this claim. 7. Service connection for fatty liver, claimed as liver disease, is remanded. 8. Service connection for coronary artery disease/atherosclerosis is remanded. The Veteran seeks service connection for fatty liver, claimed as liver disease, and coronary artery disease/atherosclerosis. It has been asserted that he has a metabolic syndrome, which includes coronary artery disease and fatty liver; that coronary artery disease was present in service; and that parachute landings caused orthopedic problems which led to weight gain and metabolic syndrome. It has also been asserted that that a 2006 electrocardiogram (EKG) conducted during service was abnormal, that repeat EKG done in 2013 prior to the Veteran's civilian deployment to Afghanistan contained the same appearance as the 2006 EKG, and that the Veteran's heart enlargement and EKG findings are directly related to sleep apnea. Service treatment records indicate that the Veteran was seen with complaint of chest pain in March 2006 but that a stress test was negative. A June 2006 EKG was abnormal and possible right ventricular hypertrophy was noted. A June 2006 report of medical history documents the Veteran's report of shortness of breath; pain or pressure in the chest; and palpitation, pounding heart or abnormal heartbeat. The Veteran was found to have mild fatty liver in July 2006. Post-service medical evidence includes diagnoses of metabolic syndrome, asymptomatic coronary artery disease, and a June 2019 laboratory finding of elevated liver enzymes. There is a private medical opinion that concluded findings of metabolic syndrome, including fatty liver and coronary artery disease as a complication of hyperlipidemia, is as likely as not due to his sedentary lifestyle from musculoskeletal injuries that occurred while enlisted in the military. Thus, this issue is intertwined with the claims for service connection for orthopedic disabilities. Additionally, Veteran submitted an article that discussed the increased risk of cardiovascular disease in individuals with sleep apnea. A VA examination is needed to address these claims. 9. Entitlement to an initial compensable rating for status post hemorrhoidectomy is remanded. The Veteran's service-connected disability was last evaluated in conjunction with his claim for service connection. A contemporaneous examination is needed. The matters are REMANDED for the following action: 1. Schedule the Veteran for appropriate VA examinations to determine the nature of the claimed orthopedic disorders involving the feet, ankles, knees, hips, back, shoulders, and elbows, and to obtain an opinion as to whether any diagnosed condition is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran suffers from disorders involving the feet, ankles, knees, hips, back, shoulders, and/or elbows. The examiner should then provide an opinion as to whether it is at least as likely as not that any current disability, to include the already-diagnosed left lateral epicondylitis, left shoulder biceps tendonitis, and bilateral flat feet, arose during service or is otherwise related to service, to include consideration of the Veteran's parachute jumps and the in-service treatment he received related to both shoulders, both knees, the right ankle, the right biceps muscle and coracoid process, and the right foot. If there is no current diagnosed disability involving the feet, ankles, knees, hips, back, shoulders, and/or elbows, the examiner should specifically indicate whether the Veteran has functional impairment of earning capacity as a result of the feet, ankle, knee, hip, back, shoulder, and/or elbow symptomatology. If the examiner finds that pes planus undebatably existed prior to service, an opinion addressing whether the condition was permanently worsened beyond normal progression by service should be provided. A rationale for all opinions expressed should be provided. The examiner must address the articles submitted in support of the private medical opinion related to the ankles and the prevalence of osteoarthritis being more common in military service members. 2. Schedule the Veteran for an appropriate VA examination to determine the nature of the claimed bilateral testicular pain and to obtain an opinion as to whether any diagnosed condition is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran suffers from a condition of the bilateral testicles. The examiner should then provide an opinion as to whether it is at least as likely as not that any current disability arose during service or is otherwise related to service, to include consideration of the Veteran's assertion that he injured his testicles during a parachute jump and the in-service treatment he received that corroborates this assertion. If there is no current diagnosed disability involving the testicles, the examiner should specifically indicate whether the Veteran has functional impairment of earning capacity because of the bilateral testicle symptomatology. A rationale for all opinions expressed should be provided. The examiner must address the in-service complaint of left testicle pain for two days after a parachute landing and assessment of mild epidydimal irritation in February 1988; the findings during the April 2008 genitourinary examination conducted in Korea; the September 2017 assessments of acute pain in scrotum, scrotal swelling, retractile testis, and unspecified undescended testicle; and the September 2017 ultrasound impression of bilateral epididymal head cysts; normal testicles. 3. Schedule the Veteran for appropriate VA examinations to determine the nature of the claimed fatty liver and coronary artery disease/atherosclerosis, to include consideration of whether the Veteran has fatty liver and/or coronary artery disease/atherosclerosis as part of the diagnosed metabolic syndrome, and to obtain an opinion as to whether any diagnosed condition is possibly related to service. The claims file should be reviewed by the examiner in conjunction with the examination. All necessary tests should be conducted, and the results reported. Following review of the claims file and examination of the Veteran, the examiner should indicate whether the Veteran suffers from fatty liver, coronary artery disease/ atherosclerosis, and/or metabolic syndrome. The examiner should then provide an opinion as to whether it is at least as likely as not that any current disability arose during service or is otherwise related to service. If the examiner provides a negative opinion on direct service connection for any diagnosed coronary artery disease/atherosclerosis, then the examiner must address whether it is at least as likely as not (i.e., probability of 50 percent or greater) that the Veteran's service-connected obstructive sleep apnea caused or aggravated (i.e., caused an increase in severity of) any diagnosed coronary artery disease/atherosclerosis. If there is no current diagnosed disability involving the liver or heart, the examiner should specifically indicate whether the Veteran has functional impairment of earning capacity because of the liver and/or heart symptomatology. A rationale for all opinions expressed should be provided. The examiner must address the in-service complaint of chest pain in March 2006 with negative stress test; the abnormal June 2006 EKG with notation of possible right ventricular hypertrophy; the Veteran's June 2006 report of medical history to include shortness of breath; pain or pressure in the chest; and palpitation, pounding heart or abnormal heartbeat; and the July 2006 finding of mild fatty liver. The examiner must also address the article on obstructive sleep apnea and cardiovascular disease that discussed the increased risk of cardiovascular disease in individuals with sleep apnea, and an article on the effects of CPAP on right ventricular myocardial performance index in obstructive sleep apnea without hypertension. 4. Schedule the Veteran for a VA examination to determine the current severity of the status post hemorrhoidectomy. The claims file should be reviewed by the examiner. All necessary tests should be performed, and the results reported. All symptomatology associated with the status post hemorrhoidectomy should be reported. 5. If the claims remain denied, issue a supplemental statement of the case. K. A. BANFIELD Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Van Wambeke, 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.