Citation Nr: 19168725 Decision Date: 09/05/19 Archive Date: 09/04/19 DOCKET NO. 16-24 498A DATE: September 5, 2019 ORDER Entitlement to service connection for hyperlipidemia is denied. Entitlement to service connection for residuals of cold injuries to the hands and feet is denied. Entitlement to service connection for peripheral vascular disease is denied Entitlement to service connection for coronary artery disease is denied Entitlement to service connection for hypertension is denied. Entitlement to service connection for residuals of a left sided stroke is denied. FINDINGS OF FACT 1. Hyperlipidemia is a laboratory finding and not a disability for VA compensation purposes. 2. The evidence of record preponderates against finding that the Veteran currently has residuals of cold injuries to the hands and feet. 3. Peripheral vascular disease was not demonstrated inservice, and the evidence of record preponderates against finding that it is due to or aggravated by a service connected disorder. 4. Coronary artery disease was not demonstrated inservice, it was not compensably disabling within a year of the claimant’s separation from active duty and the evidence of record preponderates against finding that it is due to or aggravated by a service connected disorder. 5. Hypertension was not demonstrated inservice, it was not compensably disabling within a year of the claimant’s separation from active duty and the evidence of record preponderates against finding that it is due to or aggravated by a service connected disorder. 6. Residuals of a left sided stroke were not demonstrated inservice, and the evidence of record preponderates against finding that it is due to or aggravated by a service connected disorder. CONCLUSIONS OF LAW 1. The claim of entitlement to service connection for hyperlipidemia is legally insufficient. 38 U.S.C. §§ 1110, 5303(a), (b)(2); 38 C.F.R. § 3.12(c)(2). 2. Chronic residuals of cold injuries to the hands and feet were neither incurred nor aggravated during service. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303. 3. Peripheral vascular disease was neither incurred nor aggravated during service, nor was it caused or aggravated by a service connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 4. Coronary artery disease was not incurred or aggravated during service, it may not be presumed to have been so incurred, and it was not caused or aggravated by a service connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309, 3.310. 5. Hypertension was not incurred or aggravated during service, it may not be presumed to have been so incurred, and it was not caused or aggravated by a service connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. 6. A left-sided stroke or residuals thereof were neither incurred nor aggravated during service, nor were they caused or aggravated by a service connected disability. 38 U.S.C. §§ 1110, 5107; 38 C.F.R. §§ 3.102, 3.303, 3.310. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from September 1951 to September 1954. This matter is before the Board of Veterans’ Appeals (Board) on appeal of rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a hearing before the undersigned in February 2019. Duty to assist Unfortunately, the Veteran’s complete service medical records are not available. If they were at the National Personnel Records Center in 1973 they may have been destroyed in a fire at that facility. The evidence shows that VA made two requests for the Veteran’s service medical records in May 2012. The response from the National Personnel Records Center was that all available service treatment records had been mailed to VA and there existed no information that could lead to more records. After concluding that additional searches for the records would be futile, VA prepared in September 2012 a Formal Finding of Unavailability and placed it in the Veteran’s file. VA also sought out Veteran’s service personnel records to include a request made in December 2014. In response some personnel records and a copy of the Veteran’s service separation examination report were received, however, no additional records were available. VA labeled the examination report as partial because it was not accompanied by a medical history report. The National Personnel Records Center was provided a Request for Information Needed to Reconstruct Medical Data forms in March 2015 and in June 2016. On these “Requests” the Veteran identified two instances of inservice treatment for which he wanted records obtained. One is not relevant to this appeal. The other was treatment for cold injury residuals in Korea. The appellant identified his service organization at the time he allegedly sustained cold injuries, as well as when and where he was allegedly treated. Unfortunately, these requests did not yield additional records. The Board finds that VA made an adequate search for the Veteran’s service records and that further searches would br futile. 38 C.F.R. § 3.159(c)(2). VA gave adequate notice to the Veteran and his representative about that process and its outcome. 38 C.F.R. § 3.159(e). The claim may be fairly decided on the evidence now of record. Where, as here, service treatment and examination records are not available, VA has a heightened duty to explain its findings and conclusions. O’Hare v. Derwinski, 1 Vet. App. 365, 367 (1991). Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. § 1110; 38 C.F.R. § 3.303(a). Generally, service connection requires: (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. See Shedden v. Principi, 381 F.3d 1163, 1166-67 (Fed. Cir. 2004).   Service connection may be granted for a disease first diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310. Any additional impairment of earning capacity resulting from an already service-connected condition, regardless of whether the additional impairment is itself a separate disease or injury caused by the service-connected condition, should also be compensated. Allen v. Brown, 7 Vet. App. 439 (1995). When service connection is thus established for a secondary condition, the secondary condition shall be considered a part of the original condition. Id. at 444. Service connection may be presumed for certain chronic diseases, to include cardiovascular disease and hypertension which develop to a compensable degree within one year after discharge from active duty, even though there is no evidence of such disease during that service. 38 U.S.C. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307(a)(3), 3.309(a). The presumption that a chronic disease is service connected is rebuttable by probative evidence to the contrary. Service connection can be established with a showing of continuity of symptomatology. Where the evidence shows that a chronic disease that is named in 38 C.F.R. § 3.309 occurred either during service or within the applicable post-service presumptive period established in 38 C.F.R. § 3.307 (i.e., one year after separation from service) and manifestations of that same chronic disease occur later, however remote they are in time, then the chronic disease can be service connected. 38 C.F.R. § 3.303(b); Walker v. Shinseki, 708 F.3d 1331, 1335-37 (Fed. Cir. 2013). VA is responsible for determining whether the evidence assembled supports the claim or is in relative equipoise, with a veteran prevailing in either event, or   whether a preponderance of the evidence weighs against a claim, in which case the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. When symptoms are capable of lay observation, a layman can be competent to testify about such matters as a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and medical treatment received or such symptoms. Charles v. Principi, 16 Vet. App. 370, 374 (2002). When considering whether lay evidence is competent, the Board must determine in each case whether the disability is one concerning which lay statements may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011). The Board has a duty to address all issues and theories of entitlement reasonably raised by the record or by the claimant that are pertinent to a claim. See Roebuck v. Nicholson, 20 Vet. App. 307, 213 (2006). Hyperlipidemia The Veteran seeks service connection for hyperlipidemia. Hyperlipidemia is “a general term for elevated concentrations of any or all of the lipids in the plasma, including hypertriglyceridemia, hypercholesterolemia, etc.” Dorland’s Illustrated Medical Dictionary 891 (32nd ed. 2012). VA has determined that hyperlipidemia and elevated cholesterol are laboratory findings rather than disabilities themselves for which VA benefits are payable. See 61 Fed. Reg. 20,440, 20,445 (May 7, 1996). Thus, hyperlipidemia and elevated cholesterol are not disabilities included in VA’s Schedule for Rating Disabilities. There is no court decision to the contrary. See Neary v. Shinseki, No. 11-1407, 2012 U.S, App. Vet. Claims LEXIS 1819 (August 24, 2012). As hyperlipidemia is not a cognizable disability under VA law, the claim is legally insufficient and therefore will be denied. See Sabonis v. Brown, 6 Vet. App. 426, 439 (1994); 38 C.F.R. § 3.12(c)(2). Service connection for residuals of cold injuries of the bilateral hands and feet The appealed rating decision found that there was not enough evidence that the Veteran sustained cold injuries in Korea to grant his claim. The Veteran’s September 1954 service separation examination, which is available but not accompanied by a medical history report, attributes no abnormality of a body system to the Veteran. As noted, however, service connection may be granted for any disease first diagnosed after discharge when the evidence establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). The Veteran served in Korea during the Korean War. His DD-214 lists his specialty as “2356” which was a “barracks supervisor.” http://www.koreanwar-educator.org/topics/p_mos.htm The claimant states that while stationed in Korea he was exposed to severe winter weather. In his notice of disagreement, he reported serving in the Korean mountains during the winter months, that many soldiers suffered frostbite, and that he was treated in Korea for cold injuries. While there is no corroborating evidence of record, the Board will concede for purposes of the claim that the Veteran served in Korea in snowy, exceptionally cold weather. He was, accordingly, exposed to conditions in Korea that theoretically could have caused him to incur cold injuries of the hands and feet, or frostbite. The Veteran was seen for a VA cold weather injury examination in May 2016. At that examination the appellant reported that he had been exposed to cold winter weather in Korea for two months. Physical examination revealed that the Veteran’s toes on both feet were numb and cold, and pedal pulses in the feet were feeble. The examiner identified mild deformities of the toes of both feet. Significantly, however, the examiner found no evidence of any cold injury residual. The examiner reviewed earlier medical records for the Veteran that were in the file. The examiner explained that not only were cold injury residuals not manifested during his own examination, but private physicians who had treated the Veteran for vascular conditions in 1999, 2007, and 2012 had also not diagnosed any residuals of a cold injury. The examiner also pointed to the lack of findings of any abnormality of any body system in the report of the Veteran’s September 1954 separation examination. The examiner observed that the Veteran had peripheral vascular disease, that he had been hospitalized for peripheral vascular disease in May 2013, and that the disease was again diagnosed in April 2015 following an arterial doppler study. The examiner noted the significance of the Veteran’s history of smoking for 10 to 15 years, while acknowledging the appellant’s report that he had stopped smoking “50 years ago.” The examiner opined that the Veteran did have a history of longterm smoking of a kind that was a known cause of peripheral vascular disease. Thus, the examiner concluded that peripheral vascular disease was caused by smoking, and not an inservice cold injury. In his June 2016 substantive appeal the Veteran expressed disappointment with what he believed was an indifferent or disrespectful attitude of the VA examiner. The evidence, however, shows that the examination was thorough, and that the medical opinion was based on the Veteran’s medical history and medical literature concerning peripheral vascular disease, and most significantly, the absence of any evidence of cold injury residuals. Supporting the findings of the VA examiner are a private podiatrist’s records of an office visit during which the Veteran reported foot pain and toenail trouble. The podiatrist noted that the Veteran complained of toe pain; the podiatrist suggested that painful, thickened toenails might be causing the toe pain. Review of systems identified thickened toenails (integumentary), numbness and foot pain (neurological), and arthritis, foot pain, and leg pain (musculoskeletal). Treatment consisted of debridement of the toenails. Significantly, no diagnosis of a cold injury residuals was recorded, although it was noted that cold weather aggravated the condition in concern. Thus, while the Veteran may have suffered acute injuries to the hands and feet in Korea, he does not currently demonstrate residuals of cold injuries today. When the condition for which benefits are sought is not present, service connection is unavailable. It is not enough that a veteran may have had the disability in the past. See Degmetich v. Brown, 104 F.3d 1328 (Fed. Cir. 1997). Therefore, the claim cannot be granted. In addition to peripheral vascular disease, Veteran has current diagnoses of residuals of a left sided stroke, hypertension, and coronary artery disease. In seeking service connection for these disorders, he maintains that they are secondary to his cold injuries, for which service connection has been denied. He does not allege that he received a diagnosis, or experienced symptoms, of peripheral vascular disease, hypertension, coronary artery disease or stroke inservice. Further, there is no competent evidence that either hypertension or coronary artery disease was compensably disabling within one year of the claimant’s separation from active duty. Thus, there is no basis to grant service connection for peripheral vascular disease, hypertension, coronary artery disease or stroke on either a direct or presumptive basis. Finally, as service connection for cold injury residuals has been denied, there is no basis to grant service connection for peripheral vascular disease, hypertension, coronary artery disease or stroke on a secondary basis. The medical evidence weighs decidedly against the claims. The Veteran, while he can speak of his experience of symptoms, is not qualified to ascribe those symptoms to a medical condition so as to establish a diagnosis for them. The disorders at issue are not amenable to lay diagnosis because their etiologies are not simple and obvious, but complex. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). There is no medical evidence or opinion in the record to support the Veteran’s belief The Board notes that the Veteran has service connected disabilities of posttraumatic stress disorder, left knee arthritis, tinnitus, right ear hearing loss, and a left knee scar. There is no medical evidence or assertion by the Veteran that the disorders at issue were caused or aggravated by any of those disorders. Service connection is thus not warranted for cold injury residuals of the hands and feet, peripheral vascular disease (arteriosclerosis), hypertension, coronary artery disease, or residuals of a left sided stroke. 38 C.F.R. §§ 3.303, 3.310. In reaching these conclusions, the Board has considered whether the positive and negative evidence pertaining to any of the claims is balanced enough to create reasonable doubt about its merits and therefore require that it be granted. However, the preponderance of the evidence weighs decidedly against each claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The appeals are denied. DEREK R. BROWN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Pitts, 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.