Citation Nr: 21023118 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 18-28 549A DATE: April 20, 2021 ORDER Entitlement to service connection for a disability manifested by high cholesterol (to include hyperlipidemia), and as secondary to the service-connected diabetes mellitus II, is denied. Entitlement to service connection for hypothyroidism, to include as secondary to Agent Orange exposure, is granted. REMANDED Entitlement to service connection for bilateral foot issues, also claimed as jungle rot, is remanded. FINDINGS OF FACT 1. High cholesterol is a laboratory finding and not a disability for which VA disability benefits may be awarded. 2. The Veteran’s currently diagnosed hypothyroidism is presumed to be the result of in-service exposure to herbicide agents. CONCLUSIONS OF LAW 1. The criteria for establishing service connection for high cholesterol are not met. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for hypothyroidism have been met on a presumptive basis. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service in the United States Navy from June 1966 to November 1967, to include service in Vietnam. These matters come before the Board of Veterans’ Appeals (Board) on appeal from the November 2016 and September 2017 rating decisions by the Department of Veteran Affairs (VA) Regional Office (RO). The Veteran provided testimony in February 2021 before the undersigned Veteran Law Judge (VLJ). A copy of the transcript is associated with the claims file. This appeal has been advanced on the Board’s docket pursuant to 38 C.F.R. § 20.900(c). Service Connection Service connection may be granted for disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 5107; 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 between the current disability and the in-service disease or injury. Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004). 1. Entitlement to service connection for a disability manifested by high cholesterol (to include hyperlipidemia), and as secondary to the service-connected diabetes mellitus II, is denied. The Veteran claims that his cholesterol is secondarily related to his diabetes mellitus II. During his February 2021 hearing, the Veteran reported that medical research supports an association between cholesterol and diabetes, and that he might have been previously told by a doctor that his cholesterol is due to his diabetes. VA treatment records reflect a diagnosis and treatment for high cholesterol, or hyperlipidemia. See September 2012 CAPRI/VA treatment records. Hyperlipidemia is “a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, and so on.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 887 (32nd ed. 2012). High cholesterol is a laboratory finding and is not a disability in and of itself for which VA compensation benefits are payable. 61 Fed. Reg. 20440, 20445 (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 term “disability” as used for VA purposes refers to impairment of earning capacity. Allen v. Brown, 7 Vet. App. 439, 448 (1995). Congress has specifically limited entitlement for service-connected disease or injury to cases where such incidents have resulted in a disability. In the absence of proof of a present disability there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). In this case, there is no evidence showing that the Veteran’s high cholesterol has resulted in a disability or any functional impairment of earning capacity. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). As such, the preponderance of the evidence is against entitlement to service connection for high cholesterol and the appeal is denied. 2. Entitlement to service connection for hypothyroidism, to include as secondary to Agent Orange exposure, is granted. The Veteran contends that his hypothyroidism is due to his Agent Orange exposure in service. A Veteran who, during active military, naval, or air service, served in the Republic of Vietnam during the period beginning on January 9, 1962, and ending on May 7, 1975, 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. If a Veteran was exposed to an herbicide agent during active service, the following diseases shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied: Chloracne or other acne form disease consistent with chloracne; Type 2 diabetes (also known as Type II diabetes mellitus or adult-onset diabetes); Hodgkin’s disease; chronic lymphocytic leukemia; B cell leukemia, Parkinson’s disease, multiple myeloma; non-Hodgkin’s lymphoma; early-onset peripheral neuropathy; porphyria cutanea tarda; prostate cancer; respiratory cancers (cancer of the lung, bronchus, larynx or trachea); soft-tissue sarcoma (other than osteosarcoma, chondrosarcoma, Kaposi’s sarcoma, or mesothelioma); and ischemic heart disease, (including, but not limited to, acute, subacute, and old myocardial infarction; atherosclerotic cardiovascular disease including coronary artery disease (including coronary spasm) and coronary bypass surgery; and stable, unstable and Prinzmetal’s angina), shall be service-connected if the requirements of 38 C.F.R. § 3.307(a)(6) are met, even though there is no record of such disease during service, provided further that the rebuttable presumption provisions of 38 C.F.R. § 3.307(d) are also satisfied. 38 C.F.R. § 3.309(e). VA treatment records reflect a diagnosis and treatment for hypothyroidism. See September 2016 CAPRI/VA treatment records. The Veteran’s personnel records confirm service as U.S. Naval Support Activity in the Republic of Vietnam. See DD-214. Thus, the Veteran’s exposure to herbicide agents is presumed due to his service in Vietnam. 38 C.F.R. § 3.307(a)(6)(iii). The Board notes Section 9109 of the National Defense Authorization Act of Fiscal Year 2021 added three diseases to the list of diseases presumptively associated with exposure to herbicide agents, including hypothyroidism, the addition of which will be codified at 38 U.S.C. § 1116(a)(2)(J). Although this law did not contain an effective date and has not yet been codified, in the absence of such guidance it must be presumed that the law became effective upon its January 1, 2021, enactment. See Gozlon-Peretz v. United States, 498 U.S. 395, 404 (1991) (“It is well established that, absent a clear direction by Congress to the contrary, a law takes effect on the date of its enactment”). As the Veteran has been diagnosed with a disease presumptively associated with herbicide agents, and he is presumed to have been exposed to herbicide agents based on his service in Vietnam, entitlement to service connection for hypothyroidism is warranted on a presumptive basis. Thus, entitlement to service connection for hypothyroidism is granted. 3. Entitlement to service connection for bilateral foot issues, also claimed as jungle rot, is remanded. The Veteran claims that his bilateral foot issue, believed to be jungle rot, is related to service. As indicated above, the Veteran’s personnel records confirm service in Da Nang, Vietnam. See DD-214. VA medical records reflect treatments for tinea of the feet with topical cream. See October 2014 CAPRI. During his February 2021 hearing, the Veteran reported that he worked 12-hour daily shifts doing construction in Da Nang and in the DMZ as a Navy Seabee. He asserted that he was given only one pair of boots which was often submerged in over a foot of water and never reported to sickbay even though he believed his condition to be related to jungle rot. He also asserted that his condition started in service and has not resolved since. Hence, a VA examination and medical opinion regarding the nature and etiology of the Veteran’s bilateral foot condition, claimed as jungle rot, is necessary to comprehensively evaluate the Veteran’s claim for service connection. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The matters are REMANDED for the following action: 1. With any necessary assistance from the Veteran, obtain any outstanding VA and/or private treatment records. All efforts to obtain such records should be documented. 2. Schedule the Veteran for a VA examination by an appropriate clinician to determine the nature and etiology of the Veteran’s bilateral foot condition, claimed as jungle rot. The examiner must review the claims file, including a copy of this remand. A complete history should be elicited from the Veteran. The examiner must indicate whether it is at least as likely as not (50 percent or greater probability) that the Veteran’s bilateral foot condition is related to service. The examiner must consider the Veteran’s statements regarding daily use of wet boots submerged in over a foot of water while doing construction in Da Nang, Vietnam, and his current topical treatments for tinea of the feet. A complete rationale should be provided for any opinion or conclusion expressed. A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be helpful to the Board. DELYVONNE M. WHITEHEAD Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Y. Asfaw, 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.