Citation Nr: 22051162 Decision Date: 09/08/22 Archive Date: 09/08/22 DOCKET NO. 17-49 172 DATE: September 8, 2022 ORDER Service connection for high cholesterol is denied. Service connection for peripheral arterial occlusive disease (claimed as muscle cramps, pain in legs, and trouble with holding and gripping items) is denied. REMANDED The issue of service connection for hypertension is remanded. The issue of service connection for diabetes mellitus is remanded. The issue of service connection for a seizure disorder is remanded. The issue of service connection for cataracts is remanded. FINDINGS OF FACT 1. High cholesterol is not a disability for VA benefits purposes. 2. The evidence of record persuasively weighs against a finding that the Veteran has had peripheral arterial occlusive disease or functional impairment of earning capacity from a disability manifested by muscle cramps, pain in legs, and trouble with holding and gripping items at any time during or proximate to the pendency of the claim. CONCLUSIONS OF LAW 1. The criteria for service connection for high cholesterol have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for service connection for peripheral arterial occlusive disease (claimed as muscle cramps, pain in legs, and trouble with holding and gripping items) have not been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1976 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In July 2022, the Veteran presented testimony before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the claims file. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from an injury suffered or disease contracted in active military, naval, or air service. 38 U.S.C. § 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of (1) current disability; (2) in-service injury or disease; and (3) a relationship between the two. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after service when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Service connection for high cholesterol. The Veteran seeks service connection for high cholesterol. For the following reasons, service connection for high cholesterol is not warranted. In the absence of proof of a present disability there can be no successful claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). See also Degmetich v. Brown, 104 F.3d 1328 (1997) (also interpreting 38 U.S.C. § 1131 as requiring the existence of a present disability for VA compensation purposes). To be present as current disability, there must be evidence of the condition at some time during the claim period or approximate thereto. Gilpin v. West, 155 F. 3d 1353, 1356 (Fed. Cir. 1998); Romanowsky v. Shinseki, 26 Vet. App. 289, 294 (2013); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007) (the Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves). A "disability" for the purposes of awarding VA disability benefits is not only a disease or an injury, but also any "other physical or mental defect." 38 U.S.C. § 1701 (1); Allen v. Brown, 7 Vet. App. 439, 444-45 (1995) (applying definition of disability in section 1701(1) to statutes describing "eligibility for disability compensation for service connected disabilities"). Disability for VA compensation purposes refers to impairment of earning capacity due to a disease or injury, rather than to a disease or injury itself. See Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018; Allen, 7 Vet. App. at 444-45. By definition, hyperlipidemia (i.e., high cholesterol) is a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglycerides and hypercholesterolemia (high cholesterol). Dorland's Illustrated Medical Dictionary 891 (32nd ed. 2012). In this regard, the Board notes that its reliance on a medical dictionary to define a term is not in error. See O'Bryan v. McDonald, 771 F.3d 1376, 1380 (Fed. Cir. 2014) (referencing Dorland's for nature of and symptoms associated with a condition); Prokarym v. McDonald, 27 Vet. App. 307, 310 (2015) (defining DC term "severe" using the New Oxford American Dictionary and online Merriam-Webster Dictionary); Terry v. Principi, 340 F.3d 1378, 1383 (Fed. Cir. 2003) (concluding statute was not ambiguous using definitions from Dorland's). VA's position is that high cholesterol does not fall within the definition of disability for which compensation benefits are payable. See 61 Fed. Reg. 20440, 20445 (May 7, 1996) (supplementary information preceding revisions to criteria for evaluating endocrine system indicating that hyperlipidemia, elevated triglycerides, and elevated cholesterol" are actually laboratory test results, and are not, in and of themselves, disabilities"). Similarly, an elevated blood sugar level, by itself, is a laboratory finding and not a disability subject to service connection, in and of itself. There is no case law to the contrary. See Neary v. Shinseki, No. 11-1407, 2012 WL 3641438 (Vet. App. Aug. 24, 2012) (declining to address argument that hyperlipidemia is not a disability but a laboratory finding that manifests itself only in laboratory test results and finding Board's reasons and bases adequate). See also Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). In sum, there is no competent evidence of a current disability upon which to predicate a grant of service connection on any basis, and, hence, no valid claim of service connection for high cholesterol. See, e.g., Brammer, 3 Vet. App. at 225; Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). As such, service connection for high cholesterol must be denied as a matter of law. Sabonis v. Brown, 6 Vet. App. 426, 430 (1994); 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 2. Service connection for peripheral arterial occlusive disease. In an August 2016 VA Form 21-4138, the Veteran reported that he had muscle cramps, pain in his legs, and trouble with gripping and holding items. In the October 2016 rating decision, the RO characterized the Veteran's reported symptoms as a peripheral arterial occlusive disability. The evidence of record does not show that a peripheral arterial occlusive disability or a disability manifested by muscle cramps, pain in his legs, and trouble with gripping and holding items was diagnosed during the appeal period. See VA treatment records (from April 2011 to December 2016). In fact, during the July 2022 Board hearing, the Veteran denied that he received treatment for a peripheral arterial occlusive disability or that he had a disability manifested by muscle cramps, pain in his legs, and trouble with gripping. Rather the Veteran testified that he "sometimes" had leg cramps. Congress has specifically limited entitlement to service connection for disease or injury to cases where such incidents have resulted in disability. See 38 U.S.C. § 1110; 38 C.F.R. § 3.303. Thus, a necessary element for establishing any claim for service connection is the existence of a current disability. See Degmetich, at 104 F. 3d 1328 (1997) (holding that section 1110 of the statute requires the existence of a present disability for VA compensation purposes); see also Gilpin, at 155 F.3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992). The presence of a disability at the time of filing of a claim or during its pendency warrants a finding that the current disability requirement has been met, even if the disability resolves prior to the Board's adjudication of the claim. McClain, 21 Vet. App. at 321. In Saunders, the Federal Circuit held that "pain alone, without an accompanying diagnosis of a present disease, can qualify as a disability" if it "reaches the level of a functional impairment of earning capacity." 886 F.3d at 1367-69. In this case, the evidence does not show that the Veteran's reported muscle cramps, pain in his legs, and trouble with gripping and holding items has resulted in functional impairment of earning capacity. Additionally, the Veteran has not reported that his muscle cramps, pain in his legs, and trouble with gripping and holding items has resulted in functional impairment of earning capacity. While the Veteran believes that he has a current diagnosis, he is not competent to provide a diagnosis in this case. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). As indicated above, the Veteran filed his claim of service connection for a muscle cramps, pain in his legs, and trouble with gripping and holding items in August 2016; however, there is no bright line rule prohibiting consideration of evidence dated prior to the claim, and the Board has considered such evidence. Romanowsky, 26 Vet. App. at 293. Accordingly, the most probative evidence of record persuasively weighs against the claim and the benefit-of-the-doubt rule does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Accordingly, service connection for peripheral arterial occlusive disability or a disability manifested by muscle cramps, pain in his legs, and trouble with gripping and holding items, is denied. REASONS FOR REMAND 1. The issue of service connection for hypertension is remanded. The Veteran claims that his hypertension is due to his military service and that it had its onset in service. Specifically, he relates his in-service stress (servicemembers firing weapons) caused his hypertension. The medical evidence shows a diagnosis of hypertension. See, e.g., VA treatment record (August 2016). The Veteran is competent to report that he experienced stress during service. To this extent, the Veteran's DD Form 214 shows that his military occupation specialty (MOS) was a cannon crew member and lance missile crew member. The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of his hypertension. As the evidence indicated that the Veteran has a current hypertension that may be associated with service, a remand is warranted to schedule him for a VA examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 2. The issue of service connection for diabetes mellitus is remanded. The Veteran claims that his diabetes mellitus is due to his military service; he estimates that the onset of his diabetes mellitus occurred during his military service. See Board hearing transcript (July 2022). Specifically, he attributes his in-service diet (such as high calorie food) to his current diabetes mellitus. Id. The medical evidence shows a diagnosis of diabetes mellitus. See, e.g., VA treatment record (August 2016). The Veteran has not been afforded a VA examination nor has an opinion been obtained to determine the etiology of his diabetes mellitus. As the evidence indicated that the Veteran has current diabetes mellitus that may be associated with service, a remand is warranted to schedule him for a VA examination. See 38 U.S.C. § 5103A(d); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 3. The issue of service connection for a seizure disorder is remanded. 4. The issue of service connection for cataracts is remanded. The Veteran claims that his seizure disorder and cataracts are secondary to hypertension and diabetes mellitus. Therefore, the issues of service connection for a seizure disorder and cataracts is inextricably intertwined with the claims of service connection hypertension and diabetes mellitus that are remanded herein; therefore, the issues of service connection for seizure disorder and cataracts must also be remanded. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination to determine the nature and etiology his hypertension. The examiner should review the entire claims file, including the Veteran's hearing testimony. The examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's hypertension had its onset in service, is related to service (to include as due to in-service stress), or manifested to a compensable degree within one year of his separation from service. The examiner must provide a complete rationale for the opinion rendered. 2. Schedule the Veteran for an examination to determine the nature and etiology his diabetes mellitus. The examiner should review the entire claims file, including the Veteran's hearing testimony. The examiner should provide an opinion as to whether it is at least as likely as not (likelihood is at least approximately balanced or nearly equal, if not higher) that the Veteran's diabetes mellitus had its onset in service (to include as due to eating high calorie food during service), is related to service, or manifested to a compensable degree within one year of his separation from service. The examiner must provide a complete rationale for the opinion rendered. (Continued on the next page) 3. After the above development has been completed, readjudicate the issues on appeal, including the inextricably intertwined issues of service connection for seizure disorder and cataracts. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Castillo, 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.