Citation Nr: 21025295 Decision Date: 04/27/21 Archive Date: 04/27/21 DOCKET NO. 21-00 134 DATE: April 27, 2021 ORDER New and material evidence having been received, the claim of entitlement to service connection for a right hip disorder is reopened. To that extent only, the appeal is granted. New and material evidence having been received, the claim of entitlement to service connection for a left hip disorder is reopened. To that extent only, the appeal is granted. Entitlement to service connection for dyslipidemia is denied. REMANDED The reopened issue of entitlement to service connection for a right hip disorder is remanded. The reopened issue of entitlement to service connection for a left hip disorder is remanded. Entitlement to service connection for hypertensive cardiovascular disease is remanded. Entitlement to service connection for diabetes mellitus, type II is remanded. Entitlement to service connection for a right knee disorder is remanded. Entitlement to service connection for a left knee disorder is remanded. Entitlement to service connection for a left ankle disorder is remanded. FINDINGS OF FACT 1. A May 2011 Agency of Original Jurisdiction (AOJ) rating decision denied the claims of entitlement to service connection for right and left hip disorders; the Veteran did not perfect an appeal of the decision or submit any pertinent evidence within the appeal period. 2. The evidence received since the May 2011 AOJ decision is neither cumulative nor redundant, relates to unestablished facts necessary to substantiate the claims, and raises a reasonable possibility of substantiating the claims of entitlement to service connection for right and left hip disorders. 3. Dyslipidemia is not a disease or disability under VA law and regulations but instead is in the nature of a laboratory finding. CONCLUSIONS OF LAW 1. New and material evidence has been received to reopen a claim of entitlement to service connection for a right hip disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 2. New and material evidence has been received to reopen a claim of entitlement to service connection for a left hip disorder. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. The criteria for service connection for dyslipidemia are not met. 38 U.S.C. §§ 1110, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.303, 4.1. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Army from December 1956 to December 1957. NEW AND MATERIAL EVIDENCE Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. VA rating decisions and Board decisions that are not timely appealed are final. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.1103. A finally disallowed claim may be reopened when new and material evidence is presented or secured with respect to that claim. 38 U.S.C. § 5108. New evidence is defined as evidence not previously submitted to agency decision-makers. Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156(a). An adjudicator must follow a two-step process in evaluating a previously denied claim. First, the adjudicator must determine whether the evidence added to the record since the last final decision is new and material. If new and material evidence is presented or secured with respect to a claim that has been finally denied, the claim will be reopened and decided upon the merits. Once it has been determined that a claimant has produced new and material evidence, the adjudicator must evaluate the merits of the claim in light of all the evidence, both new and old, after ensuring that the VA’s statutory duty to assist the appellant in the development of a claim has been fulfilled. 38 U.S.C. § 5108; Elkins v. West, 12 Vet. App. 209 (1999); Vargas-Gonzalez v. West, 12 Vet. App. 321 (1999). The claim to reopen does not require the submission of new and material evidence as to each previously unproven element of a claim for that claim to be reopened. Shade v. Shinseki, 24 Vet. App. 110 (2010). For the purpose of establishing whether new evidence is material, the credibility of the new evidence, although not its weight, is presumed. Justus v. Principi, 3 Vet. App. 510 (1992). 1. New and material evidence having been presented, reopening the claim for service connection for a right hip disorder 2. New and material evidence having been presented, reopening the claim for service connection for a left hip disorder Service connection for right and left hip disabilities was originally denied in a May 2011 AOJ decision. The AOJ noted that there were no signs, symptoms, or treatment for a disability of either hip during service, and the service separation examination was negative for any significant findings. The AOJ also noted that the post-service treatment records did not show treatment for a condition of either hip. The Veteran submitted a notice of disagreement in June 2011 and a statement of the case was issued in January 2014. The Veteran did not timely perfect his appeal and the May 2011 AOJ decision is final. 38 C.F.R. § 20.302. The evidence received since the May 2011 rating decision includes an October 2014 private medical opinion from C.Q., M.D., in which Dr. Q. gave the Veteran a diagnosis of degenerative joint disease of the hips. Dr. Q. opined that the Veteran’s disorders were more probable than not secondary to his military service. The credibility of the newly submitted evidence is presumed in determining whether or not to reopen a claim. Justus v. Principi, 3 Vet. App. 510 (1992). One of the reasons the claims were previously denied was because the evidence of record did not show a current right or left hip disorder. As the newly submitted evidence shows a current diagnosis of degenerative joint disease of the hips, that evidence raises a reasonable possibility of substantiating the claim. Accordingly, the additional evidence is also material. As new and material evidence has been received, the claims for service connection for right and left hip disorders are reopened. Although the evidence discussed above is adequate for the limited purpose of reopening the claims, that does not make it sufficient to allow the grant of the benefits sought, and the newly reopened claims are being remanded for further development. SERVICE CONNECTION In general, service connection may be granted for disability or injury incurred in or aggravated by service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303. Service connection may also be granted for disability shown after service, when all of the evidence, including that pertinent to service, shows that it was incurred or aggravated in service. 38 C.F.R. § 3.303(d). To establish a service connection for a disability, a Veteran must show: (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 during service. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009); Shedden v. Principi, 381 F.3d 1163(Fed. Cir. 2004). A disability may be service connected if the evidence of record shows that the Veteran currently has a disability that was chronic in service or that was chronic as defined by regulation with continuity of symptomatology demonstrated after service. 38 C.F.R. § 3.303(a), (b); Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). A Veteran need only demonstrate that there is an approximate balance of positive and negative evidence in order to prevail. To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 1. Entitlement to service connection for dyslipidemia The Veteran contends that he is entitled to service connection for dyslipidemia. The Board concludes that service connection may not be granted, as dyslipidemia is not in itself a disability for VA purposes. The Board acknowledges that an October 2014 private opinion record shows a diagnosis of dyslipidemia. However, dyslipidemia is a laboratory result and not an actual disability for which VA compensation benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (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” means impairment in earning capacity resulting from diseases and injuries and their residual conditions. 38 C.F.R. § 4.1. See also Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991); Allen v. Brown, 7 Vet. App. 439 (1995). A symptom, without a diagnosed or identifiable underlying malady or condition or associated functional impairment, does not, in and of itself, constitute a “disability” for which service connection may be granted. See Sanchez-Benitez v. West, 13 Vet. App. 282 (1999). Thus, in this case, while dyslipidemia may be a risk factor for disability, it is not itself a disability for VA purposes. Accordingly, there is no basis for awarding service connection for dyslipidemia, and the appeal in this regard is denied. REASONS FOR REMAND 1. The reopened issue of entitlement to service connection for a right hip disorder is remanded. 2. The reopened issue of entitlement to service connection for a left hip disorder is remanded. 3. Entitlement to service connection for hypertensive cardiovascular disease is remanded. 4. Entitlement to service connection for diabetes mellitus, type II is remanded. 5. Entitlement to service connection for a right knee disorder is remanded. 6. Entitlement to service connection for a left knee disorder is remanded. 7. Entitlement to service connection for a left ankle disorder is remanded. The Board notes that some of the Veteran’s service treatment records (STRs) are unavailable, and acknowledges that in cases where a veteran’s STRs are unavailable through no fault of his or her own, there is a “heightened duty” to assist in the development of the case. See O’Hare v. Derwinski, 1 Vet. App. 365 (1991); Cuevas v. Principi, 3 Vet. App. 542 (1992). The Veteran has not been afforded a VA examination with respect to his claims for entitlement to service connection for a right hip disorder, a left hip disorder, a right knee disorder, a left knee disorder, a left ankle disorder, hypertensive cardiovascular disease, and diabetes mellitus, type II. Generally, VA must provide a medical examination or obtain a medical opinion when there is (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability, (2) evidence establishing that an event, injury, or disease occurred in service, or establishing that certain diseases manifested during an applicable presumptive period for which the claimant qualifies, and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the veteran’s service or with another service-connected disability, but (4) there is insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79 (2006); see also 38 U.S.C. § 5103A (d)(2), 38 C.F.R. § 3.159 (c)(4)(i). The third prong, which requires that the evidence of record “indicate” that the claimed disability or symptoms “may be” associated with the established event, disease or injury is a low threshold. McLendon, 20 Vet. App. at 83. The Veteran submitted an October 2014 medical opinion from Dr. Q. suggesting that his musculoskeletal, hypertensive, and diabetic related disorders are related to service. Dr. Q. documented the Veteran’s reports of exposure to multiple body traumas, a left leg fracture, and other symptoms during service. Based on the October 2014 private medical opinion, the Board finds the low threshold necessary to provide an examination has been established in this case. The matters are REMANDED for the following action: 1. The AOJ should undertake appropriate development to obtain any outstanding records pertinent to the Veteran’s claims. If the AOJ deems the records do not exist or that any additional attempts to obtain these records would be futile, the record should be annotated to reflect such, and the Veteran should be notified in accordance with 38 C.F.R. § 3.159(e). 2. The AOJ should afford the Veteran appropriate VA examinations by a physician with sufficient expertise, to determine the nature and etiology of his right hip, left hip, right knee, left knee, and left ankle disorders. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must identify each hip, knee, and left ankle disorder present during the period of the claim. Following the examination and a review of the relevant records and lay statements, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury. In doing so, the examiner must consider and discuss the October 2014 private medical opinion from Dr. Q. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 3. The AOJ should afford the Veteran an appropriate VA examination by a physician with sufficient expertise, to determine the nature and etiology of his hypertensive cardiovascular disease. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must identify any hypertensive cardiovascular disease present during the period of the claim. Following the examination and a review of the relevant records and lay statements, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury. In doing so, the examiner must consider and discuss the October 2014 private medical opinion from Dr. Q. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 4. The AOJ should afford the Veteran an appropriate VA examination by a physician with sufficient expertise, to determine the nature and etiology of his diabetes mellitus, type II. All pertinent evidence of record must be made available to and reviewed by the examiner. Any indicated tests and studies should be performed. The examiner must identify any diabetes present during the period of the claim. Following the examination and a review of the relevant records and lay statements, the examiner should address whether it is at least as likely as not (a 50 percent probability or greater) that the disorder had its onset in service or is otherwise etiologically related to any in-service disease, event, or injury. In doing so, the examiner must consider and discuss the October 2014 private medical opinion from Dr. Q. The examiner must provide a complete rationale for all proffered opinions. If the examiner is unable to provide any required opinion, he or she should explain why. If the examiner cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation as to why this is so. If the inability to provide a more definitive opinion is the result of a need for additional information, the examiner should identify the additional information that is needed. 5. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the issues remaining on appeal should be readjudicated based on the entirety of the evidence. If any benefit sought remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response Richard Kettler Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Layton, 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.