Citation Nr: 21022401 Decision Date: 04/15/21 Archive Date: 04/15/21 DOCKET NO. 19-10 561 DATE: April 15, 2021 ORDER Entitlement to service connection for hypothyroidism, as due to exposure to herbicide agents, is granted. Entitlement to service connection for hyperlipidemia (claimed as “cholesterol”), as due to exposure to herbicide agents, is remanded. REMANDED Entitlement to service connection for hypertension (claimed as high blood pressure), to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus, Type II, is remanded. FINDING OF FACT 1. The Veteran served onboard the USS Paul Revere, which operated on the Republic of Vietnam’s close coastal waters; and is therefore, presumed to have been exposed to herbicides during his active duty service. 2. Resolving all reasonable doubt in favor of the Veteran, the Veteran’s hypothyroidism is presumed to be related to his exposure to herbicide agents during active military service in the Republic of Vietnam’s inland waterways. 3. High cholesterol (hyperlipidemia) is a laboratory finding and not a disability for which VA disability benefits may be awarded. CONCLUSIONS OF LAW 1. The criteria for entitlement to service connection for hypothyroidism, as due to exposure to herbicide agents, have been met. 38 U.S.C. §§ 1110, 1116, 5107; 38 C.F.R. §§ 3.303, 3.307, 3.309; National Defense Authorization Act for Fiscal Year 2021. 2. The criteria for establishing service connection for hyperlipidemia (claimed as “cholesterol”) are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C. § 7101(a)(2). The Veteran served on active duty in the Navy from February 1968 to November 1969. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut. 1. Entitlement to service connection for hypothyroidism, as due to exposure to herbicide agents. The Veteran contends that his hypothyroidism is directly related to his exposure to the herbicide agent, Agent Orange, during his service onboard the USS Paul Revere. Generally, service connection may be granted for a disability resulting from disease or injury incurred in or aggravated during military service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Establishing service connection generally requires evidence showing (1) current disability; (2) in-service incurrence in or aggravation of a disease or injury; and (3) a nexus between the claimed in-service disease or injury and the present disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010); 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Additionally, VA regulations provide that if a Veteran was exposed to herbicides during service, and meets the requirements for a presumption of herbicide exposure under 38 C.F.R. § 3.307, certain listed diseases, including hypothyroidism, are presumptively service-connected. National Defense Authorization Act for Fiscal Year 2021; 38 U.S.C. § 1116(a)(2); 38 C.F.R. § 3.309(e). A review of the record reveals the Veteran has a current diagnosis of hypothyroidism, as shown by competent and credible medical evidence of record. (See VA and private treatment records). Additionally, the Board notes that the Veteran’s service records reflect that he served onboard the USS Paul Revere during the applicable period, which is recognized by VA as a ship that operated on Vietnam’s close coastal waters for extended periods with evidence that smaller craft from the ship regularly delivered supplies or troops ashore; and thus, the Veteran’s service on this vessel is eligible for presumption of Agent Orange exposure. The Board further notes that the Veteran has provided lay statements corroborating his service onboard the USS Paul Revere, where he noted they sailed into Da Nang harbor and docked for 3 to 4 days while loading more than 4,000 marines and their supplies and equipment, during which time he personally went ashore. Therefore, based on the above, and given that VA has already conceded to the Veteran’s herbicide exposure, the Board finds that it is presumed that the Veteran was exposed to the herbicide agent of Agent Orange during his active duty service. See Rating Decision, February 2019; see also 38 C.F.R. § 3.307(a)(6)(iii). As the record confirms that the Veteran has been diagnosed with hypothyroidism: a disease listed as presumptively associated with exposure to herbicide agents during the applicable period, the Board concludes that based on the applicable laws, and resolving any reasonable doubt in favor of the Veteran, service connection for the Veteran’s hypothyroidism, as due to herbicide exposure is warranted on a presumptive basis. See National Defense Authorization Act for Fiscal Year 2021. Accordingly, the claim is granted. 2. Entitlement to service connection for hyperlipidemia (claimed as “cholesterol”), as due to exposure to herbicide agents, is denied. The Veteran contends that his current high cholesterol (claimed as “cholesterol”) is directly related to his exposure to the herbicide agent, Agent Orange, during his service onboard the USS Paul Revere. Post-service treatment records reflect that the Veteran has been treated for high cholesterol, or hyperlipidemia, since at least 2010. However, elevated cholesterol is a laboratory finding and not a disability in and of itself for which VA compensation benefits are payable. 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 and are therefore not appropriate for the rating schedule). Further, the term disability, as used for VA purposes, refers to impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (2018). There is no evidence of record suggesting the Veteran’s elevated cholesterol causes any functional impairment of earning capacity. See Wait v. Wilkie, 33 Vet. App. 8 (2020). Here, although there is evidence of the Veteran’s elevated cholesterol, there is no competent evidence of a resulting disability. In the absence of proof of a current disability stemming from high cholesterol, service connection for high cholesterol is not warranted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 143 44 (1992). Service connection can only be granted for a disability resulting from an in-service disease or injury. 38 U.S.C. § 1110. High cholesterol is a laboratory finding that manifests itself only in laboratory test results and is not a disability for which service connection can be granted. The preponderance of the evidence weighs against a finding that the Veteran has a disability for which VA compensation may be awarded. As there is no evidence of a current disability for VA compensation purposes, the Board need not discuss whether the claimed condition is related to the Veteran’s military service, to include his in-service herbicide exposure. See generally, Brammer, 3 Vet. App. 225. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable. 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990); 38 C.F.R. § 3.102. For these reasons, the claim is denied. REASONS FOR REMAND 1. Entitlement to service connection for hypertension (claimed as high blood pressure), to include as due to exposure to herbicide agents and/or as secondary to service-connected diabetes mellitus, Type II, is remanded. The Veteran contends that his current hypertension is directly related to his exposure to the herbicide agent, Agent Orange, during his service onboard the USS Paul Revere, or is otherwise proximately caused and/or aggravated by his service-connected diabetes mellitus. As an initial matter, the Board reiterates the Veteran’s conceded exposure to herbicides while on active duty service. However, as hypertension is not a listed disease for presumptive service connection under 38 C.F.R. § 3.309, the Board notes that consideration under a presumptive basis as due to exposure to herbicide agents is not applicable here. In February 2019, the Veteran was provided a VA medical opinion to assess the current nature and etiology of his claimed condition on a direct and secondary basis. Upon review, the examiner provided unfavorable opinions as to the Veteran’s hypertension being etiologically related to his active service or aggravated by his service-connected diabetes mellitus. Nevertheless, the Board finds these opinions to be inadequate for adjudicative purposes, as the examiner failed to consider the Veteran’s conceded exposure to herbicides on a direct basis and failed to provide an opinion regarding the causation prong of a secondary service connection claim. Therefore, the Board finds that the Veteran should be provided addendum VA medical opinions. Additionally, the Board notes that a review of the record reflects a notation of high blood pressure on the Veteran’s February 1968 entrance examination, which raises the question as to whether the Veteran had high blood pressure/hypertension prior to service that was aggravated by such service, and thus, consideration of the presumption of soundness must be addressed. As such, the Board finds that a remand is necessary to obtain addendum VA medical opinions to adequately address the Veteran’s claim, to include the theory of presumption of soundness, prior to re-adjudication of the claim. The matter is REMANDED for the following action: 1. Request the Veteran to identify all medical providers (VA and private) from whom he has received treatment for his hypertension, and obtain any outstanding records and associate them with the Veteran’s claims file. 2. After associating all newly acquired records with the claims file, schedule the Veteran a VA examination and provide the Veteran with an addendum VA medical opinion from an appropriate clinician to determine the nature and etiology of the Veteran’s hypertension. The entire claims file, including a copy of this remand, must be made available to the examiner, and note review of the record in the examination report. Any indicated tests or studies should be performed, and all material relevant evidence should be discussed. All pertinent medical complaints, symptoms, and clinical findings must be reported in detail. The Veteran should be scheduled for another examination if deemed necessary by the person providing the addendum report to address the following: (a) Opine whether there is clear and unmistakable (obvious or manifest) evidence that the Veteran’s high blood pressure/hypertension existed prior to his entrance into any period of active duty service. (b) If so, opine whether there is clear and unmistakable (obvious or manifest) evidence that the preexisting high blood pressure/hypertension did NOT undergo an increase in severity beyond the natural scope of the disability during any period of the Veteran’s active duty service. (c) If not, opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension had its onset during any period of active duty service, or is otherwise related to his active duty service, to include the conceded exposure to herbicide agents and any in-service elevated blood pressure readings. (d) Opine whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s hypertension was caused by or aggravated (beyond its natural progression) by his service-connected diabetes mellitus? Please note: the examiner must address both causation and aggravation in providing the requested opinion. (e) All opinions should be supported by detailed rationale. The examiner should consider the entire claims file, and discuss the Veteran’s lay statements regarding the nature, onset, and chronicity of symptoms. The examiner is advised that the Veteran is competent to report symptoms, and that his reports must be considered in formulating the requested opinion. (g) If the examiner is unable to offer the requested opinion, it is essential that the examiner offer a rational for the conclusion that an opinion could not be provided without resorting to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Hodges, 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.