BVA9500256 DOCKET NO. 92-08 618 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Honolulu, Hawaii THE ISSUES 1. Entitlement to service connection for a disability manifested by hypercholesteremia. 2. Entitlement to service connection for diabetes mellitus. 3. Entitlement to service connection for thoracic spine degenerative disk disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Siegel, Counsel INTRODUCTION The veteran served on active duty from July 1946 to August 1947, and from June 1951 to June 1981. This appeal initially arose from a rating decision of March 1991 from the Honolulu, Hawaii, Regional Office (RO). By means of Remand decisions dated in June 1993 and February 1994, the Board of Veterans' Appeals (Board) requested additional development of the record. In a rating decision of May 1994, the RO maintained its prior denial of service connection for diabetes mellitus. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, in essence, that the RO erred when it denied service connection for a disability manifested by hypercholesteremia, for diabetes mellitus, and for thoracic spine degenerative disk disease. He specifically alleges that hypercholesteremia and diabetes mellitus were diagnosed while he was on active service, and that his back problems are the product of an inservice parachute accident that occurred in May 1974. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. 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 a claim for service connection for a disability manifested by hypercholesteremia is not well grounded. It is also the decision of the Board, based on its review of the relevant evidence and for the following reasons and bases, that the preponderance of the evidence is against his claims for service connection for diabetes mellitus and thoracic spine degenerative disk disease. FINDINGS OF FACT 1. A disability manifested by hypercholesteremia is not shown. 2. All evidence necessary for an equitable disposition of the veteran's claims for service connection for diabetes mellitus and thoracic spine degenerative disk disease has been developed. 3. Diabetes mellitus was not manifested during active service, and is not shown until more than one year after the veteran's separation from his second and last period of service. The manifestation of diabetes mellitus at that time is not shown to be related to service. 4. Thoracic spine degenerative disk disease was not manifested during active service, and its presence subsequent to the veteran's separation from his second and last period of service is not shown to be related to service. CONCLUSIONS OF LAW 1. A claim for service connection for a disability manifested by hypercholesteremia is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991). 2. Diabetes mellitus was not incurred in or aggravated by active service, nor may it be presumed to have been incurred during such service. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). 3. Thoracic spine degenerative disk disease was not incurred in or aggravated by active service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Each of the issues on appeal is discussed below. I. Service Connection for a Disability Manifested by Hypercholesteremia The threshold question that must be resolved with regard to each claim is whether the veteran has presented evidence that each claim is well grounded; that is, that each claim is plausible. If he has not, his appeal fails as to that claim, and the Board is under no duty to assist him in any further development of that claim, since such development would be futile. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78 (1990). In the instant case, the evidence does not demonstrate that a disability manifested by hypercholesteremia has at any time been diagnosed or otherwise shown to have been manifested. Since service connection cannot be granted for a disability that is not shown to exist, the Board must accordingly find that a claim for service connection for any such disability is not well grounded and must be dismissed, since it does not present a question of fact or law over which the Board has jurisdiction. A review of the veteran's service medical records for the period of service from June 1951 to June 1981 reveals that on several occasions hematology studies produced cholesterol readings that could be considered elevated or abnormal. The report of a January 1978 medical examination shows that his cholesterol was 273 mg/dl, while the report of a January 1980 medical examination indicates that his cholesterol was 243 mg/dl. The report of the medical examination conducted in conjunction with his separation from his second period of service indicates that his cholesterol was 226 mg/dl. Similarly, the report of a Department of Veterans Affairs (VA) medical examination conducted in February 1991 shows that the veteran's cholesterol was found to be 232 mg/dl on laboratory testing. The laboratory report indicates a "Reference Range" of 120-200 mg/dl for cholesterol, and identifies the veteran's cholesterol as being high. The examination report indicates diagnoses to include hypercholesteremia. However, the fact that the medical evidence, both inservice and post service, demonstrates the presence of elevated cholesterol readings does not, in and of itself, establish that service connection for such readings is appropriate. The statutory provisions that govern the granting of service connection by VA stipulate, in pertinent part, that such benefit is warranted "[f]or disability resulting from personal injury suffered or disease contracted in line of duty...." 38 U.S.C.A. § 1110 (West 1991) (emphasis added); see also 38 U.S.C.A. § 1131 (West 1991). These statutory provisions in essence require that a disability or disease must be manifested for service connection to be granted. In the absence of evidence indicating the presence of a disability, a claim for service connection therefor is not plausible and accordingly is not well grounded. The United States Court of Veterans Appeals (Court), in a case in which a veteran sought service connection for hypertension, found that, "[b]ecause of the absence of any evidence of current hypertension...appellant's claim is not plausible and, therefore, not well grounded." Rabideau v. Derwinski, 2 Vet.App. 141, 144 (1992). In another case, the Court held that "[i]n the absence of proof of a present disability there can be no valid claim." Brammer v. Derwinski, 3 Vet.App. 223, 225 (1992). In the case at hand, while elevated cholesterol or hypercholesteremia has been identified, a disability that would be manifested thereby has not been identified, either in service or thereafter. As noted above, the medical evidence does not demonstrate that any such disability has at any time been diagnosed or manifested. It follows that, since a disability manifested by hypercholesteremia is not shown, service connection therefor cannot be granted. The veteran has not submitted evidence sufficient to justify a belief by a fair and impartial person that service connection for a disability manifested by hypercholesteremia could be granted, as is required under the provisions of 38 U.S.C.A. § 5107(a) (West 1991), and the Board accordingly finds that his claim for service connection therefor is not well grounded. The Court has also held that claims that are not well grounded must be dismissed by the Board. The Court has stated that [a] veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107(a) (West 1991); see Tirpak v. Derwinski, 2 Vet.App. 609, 610-11 (1992). If a claim is not well grounded, the [Board] does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet.App. 91, 93 (1993). Boeck v. Brown, 6 Vet.App. 14, 17 (1993). In other words, the Court has held that, if a claim is not well grounded, the Board does not have jurisdiction over the question of whether the benefit sought on appeal is warranted. Boeck, at 17. Since a claim that is not well grounded does not present a question of fact or law over which the Board has jurisdiction, a claim that is not well grounded must be dismissed. 38 U.S.C.A. § 7105(d)(5) (West 1991). In the case now before the Board, as has been previously noted, the veteran has not demonstrated that a disability manifested by hypercholesteremia has at any time been manifested. Since it is not plausible that service connection can be granted for a disability that is not shown to exist, a claim therefor is not well grounded. Furthermore, a grant of service connection would be patently inconsistent with the requirements of the law. See 38 C.F.R. § 3.1(m) (1993). Accordingly, pursuant to judicial interpretation of the applicable statutory and regulatory provisions, the veteran's claim for service connection for a disability manifested by hypercholesteremia is dismissed. II. Service Connection for Diabetes Mellitus With regard to the veteran's claim for service connection for diabetes mellitus, the Board initially finds that this claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not indicated that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. The Board accordingly finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), is satisfied. The veteran contends that his diabetes mellitus is related to his active service, and in particular that it was initially manifested during that service. However, after a review of the record, the Board must conclude that his contentions are not supported by the evidence, and that his claim for service connection for diabetes mellitus fails. A review of the veteran's service medical records for the period of service from June 1951 to June 1981 shows that a urinalysis conducted in May 1964 was deemed negative. Likewise, various medical examination reports dated between February 1970 and January 1978 indicate that urinalyses found that his sugar was negative. The report of a medical examination dated in January 1979, while noting that a urinalysis was negative with regard to sugar, also notes, however, that he had a "[m]ildly elevated" fasting blood sugar of 132 mg percent. The report of the medical examination conducted in conjunction with his separation from this period of service again indicates that a urinalysis was negative with regard to sugar, and that glucose was 117 mg percent. Neither this report, nor any other medical record, shows that diabetes mellitus was diagnosed during service. In fact, the medical evidence first indicates the presence of diabetes mellitus in February 1991. The report of a blood chemistry conducted in that month pursuant to a VA medical examination shows that the veteran's glucose was found to be 170 mg/dl, as compared to a "Reference Range" of 80-112; the examination report indicates a diagnosis of diabetes mellitus. This report, however, is dated more than nine years after his separation from service, and does not indicate that diabetes mellitus had been manifested prior to February 1991, or that its presence at that time was related to his active service. See 38 C.F.R. § 3.303 (1993); see also 38 U.S.C.A. §§ 1101, 1112, 1113, 1137 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1993). This does not necessarily preclude a finding by the Board that diabetes mellitus was incurred during the veteran's active service; as noted above, at least one inservice urinalysis was interpreted as indicating the presence of elevated fasting blood sugar. It must accordingly be determined whether, in fact, the diabetes mellitus first identified in 1991 had been manifested during his active service, as shown by the inservice laboratory test results. To this end, the Board, in its Remand decision of February 1994, requested that the veteran undergo a special endocrinology examination in order to ascertain, in part, whether diabetes mellitus that may be shown on that examination had been initially manifested during his active service or to a compensable degree within one year after his separation therefrom, based on a review of the evidence to include his service medical records. The resultant report of the VA examining physician, dated in April 1994, notes that the veteran, while in service, had "two elevated blood sugars by today's standards," which were the 132 recorded in January 1979 and the 117 recorded in January 1981. The examiner notes that "[reference] ranges for the institution at that time frame are not present" on the examination reports on which those blood sugars are indicated. The examiner also notes that the criteria for a diagnosis of diabetes, as established by the National Diabetic Data Group of the National Institutes of Health, are to the effect that the medical evidence must demonstrate either that fasting blood sugar was equal to or greater than 140 mg percent on at least two separate occasions; or that glucose tolerance tests have a value equal to or greater than 200 mg percent at two hours post prandial, and one other value equal to or greater than 200 during the test time. The examiner noted, in passing, that an abnormal fasting blood sugar or abnormal glucose test "can be produced by the stress of vena puncture or even fasting...." The VA physician found, with specific reference to the data included in the veteran's service medical records, that [o]f the documented fasting blood sugars in [the veteran's records], the highest are 132, and 117 (sic). These do not conform to the criteria of the diabetic group. In addition to that, his glucose tolerance test displays no values over 200, indeed, he has no values over 150, which would not even put him in the impaired glucose tolerance range. The examining physician concluded as follows: It is my opinion, therefore, that [the veteran] did not exhibit evidence of diabetes while he was in service or to a compensable degree within one year after separation. The Board notes that the medical record does not include any evidence or clinical findings that would permit a conclusion in contradiction to those indicated by the examining physician on the April 1994 examination report. In view of the foregoing, the Board must find that the preponderance of the evidence is against the veteran's claim for service connection for diabetes mellitus, and that his claim accordingly fails. 38 U.S.C.A. §§ 1101, 1110, 1112, 1113, 1131, 1137 (West 1991); 38 C.F.R. §§ 3.303, 3.307, 3.309 (1993). III. Service Connection for Thoracic Spine Degenerative Disk Disease With regard to the veteran's claim for service connection for thoracic spine degenerative disk disease, the Board initially finds that this claim, too, is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991); that is, he has presented a claim that is plausible. He has not indicated that any records of probative value that may be obtained and which have not already been associated with his claims folder are available. The Board accordingly finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), is satisfied. As indicated above, the veteran contends that he has thoracic spine degenerative disk disease that is related to his active service, and that service connection is warranted therefor. After a review of the record, however, the Board finds that his contentions are not supported by the evidence, and that his claim for service connection for thoracic spine degenerative disk disease fails. The service medical records for the period of service from June 1951 to June 1981 do not demonstrate the presence of thoracic spine degenerative disk disease, or of symptoms thereof. Reports of medical examinations conducted between February 1970 and January 1980 do not show that a thoracic disability was discerned; these reports indicate that the veteran's spine and other musculoskeletal systems were clinically evaluated as normal on all occasions. The report of the medical examination conducted in conjunction with his separation from his second period of service, dated in June 1981, likewise shows that his spine and other musculoskeletal systems were found to be clinically normal, and does not indicate that he had been accorded any inservice treatment for thoracic problems, or that he had any complaints thereof. On a report of medical history prepared by him in June 1981, he denied having or ever having had recurrent back pain, arthritis, rheumatism or bursitis. The medical evidence first indicates the presence of thoracic spine degenerative disk disease in 1991; the report of a VA examination dated in February of that year shows that "[o]ld disc-degenerative changes at T11-T12" were shown by X-ray taken in conjunction with that examination. While the report of this X-ray identifies the veteran's thoracic degenerative disk changes as "old," it must be pointed out that the evidence does not demonstrate that such changes were manifested prior to this date, or that the presence of such changes at that time was in any manner related to active service that had concluded almost nine years previously. See 38 C.F.R. § 3.303(d) (1993). In this regard, the Board notes the veteran's contentions, to the effect that current back problems may be related to an inservice parachute accident that occurred in May 1974. A review of the medical records compiled pursuant to treatment accorded him in conjunction with and subsequent to that accident, however, do not indicate any thoracic involvement, nor does the medical record attribute the thoracic spine degenerative disk changes found in 1991 to that accident, or show that those changes were deemed to be a residual thereof. The veteran's contentions must, accordingly, be found to be no more than conjecture that is unsubstantiated by any medical evidence. In view of the foregoing, the Board concludes that the preponderance of the evidence is against the veteran's claim for service connection for thoracic spine degenerative disk disease, and that his claim therefore fails. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303 (1993). ORDER A claim for service connection for a disability manifested by hypercholesteremia is dismissed. Claims for service connection for diabetes mellitus and thoracic spine degenerative disk disease are denied. LAWRENCE M. SULLIVAN Member, Board of Veterans' Appeals (CONTINUED ON NEXT PAGE) The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, ___ (1994), permits a proceeding instituted before the Board to be assigned to an individual member of the Board for a determination. This proceeding has been assigned to an individual member of the Board. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.