Citation Nr: 9825177 Decision Date: 08/21/98 Archive Date: 07/27/01 DOCKET NO. 97-07 903 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to service connection for hypercholesterolemia. ATTORNEY FOR THE BOARD Michael J. Skaltsounis, Associate Counsel INTRODUCTION The veteran had active service from July 1959 to December 1959, and from August 1970 until his retirement in September 1994. CONTENTIONS OF APPELLANT ON APPEAL In his substantive appeal, dated in January 1997, the veteran notes that beginning in service in 1992, physicians have prescribed medication for high cholesterol as a preventive measure analogous to the treatment of hypertension. He further indicates that he is presently on medication for this problem, and that this problem should therefore be considered a disability for which service connection may be established. DECISION OF THE BOARD The Board of Veterans' Appeals (Board), in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), has reviewed and considered all of the evidence and material of record in the veteran's claims files. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the veteran has not submitted evidence of a well- grounded claim for service connection for hypercholesterolemia. FINDINGS OF FACT Disability related to hypercholesterolemia was not shown in service; disability related to hypercholesterolemia is not currently shown. CONCLUSION OF LAW The claim for service connection for hypercholesterolemia is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Background Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991 & Supp. 1998). For the showing of chronic disease in service there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. 38 C.F.R. § 3.303(b) (1997). If chronicity in service is not established, a showing of continuity of symptoms after discharge is required to support the claim. Id. Service connection may be granted for any disease diagnosed after discharge, when all of the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The threshold question that must be resolved with regard to a claim is whether the veteran has presented evidence that the claim is well grounded. Under the law, it is the obligation of the person applying for benefits to come forward with a well-grounded claim. 38 U.S.C.A. § 5107(a). A well-grounded claim is "[a] plausible claim, one which is meritorious on its own or capable of substantiation. Such a claim need not be conclusive but only possible to satisfy the initial burden of § 5107(a)." Epps v. Brown, 126 F.3d 1464, 1468 (Fed. Cir. 1997). Mere allegations in support of a claim that a disorder should be service-connected are not sufficient; the veteran must submit evidence in support of the claim that would "justify a belief by a fair and impartial individual that the claim is plausible." 38 U.S.C.A. § 5107(a); Tirpak v. Derwinski, 2 Vet. App. 609, 611 (1992). The quality and quantity of the evidence required to meet this statutory burden depends upon the issue presented by the claim. Grottveit v. Brown, 5 Vet. App. 91, 92-93 (1993). The United States Court of Veterans Appeals (Court) has held that, in general, a claim for service connection is well grounded when three elements are satisfied with competent evidence. Caluza v. Brown, 7 Vet. App. 498 (1995). First, there must be competent medical evidence of a current disability (a medical diagnosis). Rabideau v. Derwinski, 2 Vet. App. 141, 144 (1992); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Second, there must be evidence of an occurrence or aggravation of a disease or injury incurred in service (lay or medical evidence). Cartwright v. Derwinski, 2 Vet. App. 24, 25 (1991); Layno v. Brown, 6 Vet. App. 465 (1994). Third, there must be a nexus between the in-service injury or disease and the current disability (medical evidence or the legal presumption that certain disabilities manifest within certain periods are related to service). Grottveit v. Brown, 5 Vet. App. 91, 93; Lathan v. Brown, 7 Vet. App. 359 (1995). The Court has further held that the second and third elements of a well-grounded claim for service connection can also be satisfied under 38 C.F.R. § 3.303(b) (1997) by (a) evidence that a condition was "noted" during service or an applicable presumption period; (b) evidence showing post- service continuity of symptomatology; and (c) medical or, in certain circumstances, lay evidence of a nexus between the present disability and post-service symptomatology. See 38 C.F.R. § 3.303(b); Savage v. Gobber, 10 Vet. App. 488, 495-97 (1997). Alternatively, service connection may be established under 38 C.F.R. § 3.303(b) by evidence of (i) the existence of a chronic disease in service or during an applicable presumption period and (ii) present manifestations of the same chronic disease. Ibid. The Court has further held that a lay person is not competent to make a medical diagnosis or to relate a medical disorder to a specific cause. See Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). Therefore, if the issue is one of medical etiology or a medical diagnosis, competent medical evidence must be submitted to make the claim well grounded. See Grottveit at 93. If the veteran fails to submit a well-grounded claim, the Department of Veterans Affairs (VA) is under no duty to assist in any further development of the claim. Id. Furthermore, a claim that is not well grounded must be denied. The veteran's service medical records are essentially silent as to relevant findings until December 1987, at which time the veteran began being followed for increased cholesterol which was noted to be at 272. In February 1988, the veteran's cholesterol was at 251, triglycerides (TG) was 238, low-density lipoprotein (LDL) was 167, and high-density lipoprotein (HDL) was at 36, and the plan was for the veteran to follow a diet low in cholesterol. In May 1988, cholesterol was at 211, LDL was 120, HDL was 35, and TG was 281, and the assessment was that the veteran had borderline high cholesterol. In June 1988, cholesterol was at 222, LDL was 154, HDL was 37, and TG was 154, and the assessment was that the veteran had borderline high cholesterol. The assessment was the same in August 1988 with July 1988 readings of cholesterol at 216, LDL at 134, HDL at 34, and TG at 216. Service medical records reflect an increase in cholesterol as of October 1988 with cholesterol at 233, LDL at 163, HDL at 37, and TG at 164. In November 1988, cholesterol was 181, LDL was 112, HDL was 39, and TG was 153, and cholesterol was again considered to be borderline high in February 1989 with a reading of 225, LDL of 151, HDL of 38, and TG of 179. In April 1989, cholesterol was at 215, TG was at 149, HDL was at 35, and LDL was at 150. Based on these readings, the veteran was to continue with his diet and return to the clinic in six weeks. December 1991 periodic physical examination revealed that the veteran's cholesterol was at 273, TG was at 268, and HDL was at 42, and it was noted that the normal range for cholesterol for a male was between 0 and 240, that the normal range for TG was between 40 and 160, and that HDL should be between 27 and 58. The diagnosis included elevated cholesterol and TG. Service medical records reflect that in February 1992, Dr. D. prescribed Lopid for increased cholesterol and TG. In May 1992, the veteran's LDL was noted to be decreased at 118, and his cholesterol was noted to be 183. It was also indicated that he had slightly increased serum glutamic oxaloacetic transaminase (SGOT), and that the Lopid prescription would be continued. In October 1992, cholesterol was at 202 and TG was at 146, and in May 1993, cholesterol was at 197, HDL was at 38, and TG was at 153. In both October 1992 and May 1993, the veteran received refills of his Lopid medication. In November 1993, service medical records reflect that the veteran received additional prescription refills which included Lopid, and that his cholesterol was at 214, his HDL was 36, his TG was 143, and his LDL was 149. Service medical records also indicate that at some point in 1994, cholesterol was at 200, HDL was 38, TG was 97, and LDL was 143, and the veteran was again provided with a refill of his Lopid prescription. June 1994 retirement physical examination revealed cholesterol of 221, TG of 134, HDL of 38, and LDL of 156. Following his retirement from the military in September 1994, the veteran continued to receive treatment at the same military medical facility, and medical records from Kirkland Air Force Base, Albuquerque, New Mexico dated in July 1995 reflect cholesterol at 222 and TG at 175, and an increase in the veteran's Lopid prescription. In October 1995, cholesterol was at 222, TG was 184, HDL was 39, and LDL was 146, and the level of the Lopid prescription was continued. VA general medical examination in November 1995 indicated that the veteran had a medical history which included hypercholesterolemia which was first diagnosed in 1988 or 1990. This was noted to have been controlled with Lopid, but was considered to be an ongoing problem. Cholesterol at this time was at 222, TG was at 184, HDL was at 39, and LDL was at 146. The overall diagnosis included hypercholesterolemia. Records from Kirtland Air Force Base reflect that the veteran's Lopid prescription was again continued in May of 1996. VA mental disorders examination in April 1997 revealed that the veteran reported elevated cholesterol levels. II. Analysis The Board has considered the evidence relevant to this claim, and finds that it shows no current diagnosis of a disability with respect to the veteran's hypercholesterolemia. While elevated levels of cholesterol have been indicated during and post service, the most recent examinations do not reveal disability related to the veteran's elevated readings, and under the case law, it is clear that a fundamental element of a well-grounded claim is competent evidence of "current disability" (medical diagnosis). Rabideau v. Derwinski, supra; Brammer v. Derwinski, supra. The Board further finds that "current disability" means a disability shown by competent medical evidence to exist at the time of the claim for service connection, or in other words a "present disability." Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997); Chelte v. Brown, 10 Vet. App. 268 (1997). As the Court has held, the regulatory definition of "disability" is the "...impairment of earning capacity resulting from such diseases or injuries and their residual conditions...." 38 C.F.R. § 4.1 (1997); Hunt v. Derwinski, 1 Vet. App. 292, 296 (1991). Under these criteria, "disability" for VA compensation benefit purposes is not shown to be present in this case as there is no demonstration of impairment of earning capacity. The Board recognizes that the veteran has made an effort to submit evidence that his high levels of cholesterol are representative of disability which is related to service by way of evidentiary statements and assertions. However, the Court has said that claimants unversed in medicine are not competent to make medical determinations involving medical diagnosis or causation. In other words, since the veteran has had no medical training, his assertion that he currently has disability related to high cholesterol which is related to certain symptoms he experienced in service, carries no weight. See Espiritu v. Derwinski, supra. In this context, the Board does not find the appellant's status as a social worker to establish medical competence to provide an opinion as to the existence of a disability or medical causation in an area involving the cardiovascular system. See Black v. Brown, 10 Vet. App. 279 (1997). Further, while the Board has noted the appellant's argument that hypercholesterolemia should be viewed as analogous to hypertension in terms of potential development of future disability, the Board must again point out that, under the controlling case law, a grant of service connection must be based upon existing or "present disability," not upon speculation as to potential future disability. ". . . [I]t is clear that allegations of a future disability are not sufficient for an award of compensation. . . . Degmetich, 104 F.3d. at 1331. In the event that there is a diagnosis of disability with respect to the veteran's hypercholesterolemia at some point in the future, the veteran may then proceed to submit an appropriate application to reopen his claim, at which time he should also provide the medical evidence necessary to link any such diagnosed disability to service. ORDER The claim for service connection for hypercholesterolemia is denied as not well grounded. Richard B. Frank Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), a decision of the Board of Veterans' Appeals granting less than the complete benefit, or benefits, sought on appeal is appealable to the United States Court of Veterans Appeals within 120 days from the date of mailing of notice of the decision, provided that a Notice of Disagreement concerning an issue which was before the Board was filed with the agency of original jurisdiction on or after November 18, 1988. Veterans' Judicial Review Act, Pub. L. No. 100-687, § 402, 102 Stat. 4105, 4122 (1988). The date which appears on the face of this decision constitutes the date of mailing and the copy of this decision which you have received is your notice of the action taken on your appeal by the Board of Veterans' Appeals.