Citation Nr: 0002330 Decision Date: 01/28/00 Archive Date: 02/02/00 DOCKET NO. 95-16 425 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Indianapolis, Indiana THE ISSUES 1. Entitlement to service connection for depressive disorder with anxiety and obsessional features. 2. Entitlement to service connection for arthritis of the hands and fingers. 3. Entitlement to service connection for a low back disorder. 4. Entitlement to service connection for a left wrist fracture. 5. Entitlement to service connection for conjunctivitis. 6. Entitlement to service connection for prostatic hypertrophy. 7. Entitlement to a compensable disability rating for hypertension prior to May 25, 1995. 8. Entitlement to a disability rating greater than 10 percent for hypertension as of May 25, 1995. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Michelle L. Nelsen, Associate Counsel INTRODUCTION The veteran had active duty from May 1981 to September 1992. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 1994 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Milwaukee, Wisconsin. The claims folder was subsequently transferred to the RO in Indianapolis, Indiana. The Board observes that the veteran opted to reschedule his hearing before a member of the Board that was originally scheduled in June 1997. In a September 1999 statement, the veteran's representative advised the RO that the request for a hearing before a member of the Board was withdrawn. FINDINGS OF FACT 1. There is no competent medical evidence of a nexus between the veteran's depressive disorder with anxiety and obsessional features and his period of active duty service. 2. There is no competent medical evidence of a nexus between the veteran's alleged arthritis of the hands and fingers and his period of active duty service. 3. There is no competent medical evidence of a nexus between the veteran's alleged low back disorder and his period of active duty service. 4. There is no competent medical evidence of a nexus between the veteran's alleged left wrist fracture and his period of active duty service. 5. There is no competent medical evidence of a nexus between the veteran's alleged conjunctivitis and his period of active duty service. 6. There is no competent medical evidence of a nexus between the veteran's prostatic hypertrophy and his period of active duty service. 7. The evidence shows a blood pressure reading of 150/106 on March 27, 1995. There is no blood pressure reading with a diastolic pressure of 100 or more before this date. Records dated on April 12, 1995, show that the veteran was taking Atenolol. 8. There is no evidence of the veteran having a diastolic pressure of 110 or more or definite symptoms associated with hypertension. CONCLUSIONS OF LAW 1. The veteran's claim of entitlement to service connection for depressive disorder with anxiety and obsessional features is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 2. The veteran's claim of entitlement to service connection for arthritis of the hands and fingers is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 3. The veteran's claim of entitlement to service connection for a low back disorder is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 4. The veteran's claim of entitlement to service connection for a left wrist fracture is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 5. The veteran's claim of entitlement to service connection for conjunctivitis is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 6. The veteran's claim of entitlement to service connection for prostatic hypertrophy is not well grounded. 38 U.S.C.A. § 5107(a) (West 1991); 38 C.F.R. § 3.102 (1999). 7. The criteria for a compensable disability rating for hypertension prior to April 12, 1995, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). 8. The criteria for a 10 percent disability rating for hypertension have been met as of April 12, 1995. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). 9. The criteria for a disability rating greater than 10 percent for hypertension after April 12, 1995, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Claims Service connection may be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred or aggravated in active military service. 38 U.S.C.A. §§ 1110, 1131 (West 1991); 38 C.F.R. § 3.303(a) (1999). Service connection may be demonstrated either by showing direct service incurrence or aggravation or by using applicable presumptions, if available. Combee v. Brown, 34 F.3d 1039, 1043 (Fed. Cir. 1994) (specifically addressing claims based ionizing radiation exposure). Direct service connection requires a finding that there is a current disability that has a definite relationship with an injury or disease or some other manifestation of the disability during service. Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). A disorder may be service connected if the evidence of record reveals that the veteran currently has a disorder that was chronic in service or, if not chronic, that was seen in service with continuity of symptomatology demonstrated thereafter. 38 C.F.R. § 3.303(b); Savage v. Gober, 10 Vet. App. 488, 494-97 (1997). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. 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, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). Disorders diagnosed after discharge may still be service connected if all the evidence, including pertinent service records, establish that the disorder was incurred in-service. 38 U.S.C.A. § 1113(b); 38 C.F.R. § 3.303(d). Some chronic diseases are presumed to have been incurred in service, although not otherwise established as such, if manifested to a degree of ten percent or more within one year of the date of separation from service. 38 U.S.C.A. § 1112(a)(1); 38 C.F.R. § 3.307(a)(3); see 38 U.S.C.A. § 1101(3) and 38 C.F.R. § 3.309(a) (listing applicable chronic diseases, including arthritis). However, a person claiming VA benefits must meet the initial burden of submitting evidence "sufficient to justify a belief in a fair and impartial individual that the claim is well grounded." 38 U.S.C.A. § 5107(a); Murphy v. Derwinski, 1 Vet. App. 78, 91 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). A claim that is well grounded is plausible, meritorious on its own, or capable of substantiation. Murphy, 1 Vet. App. at 81; Moreau v. Brown, 9 Vet. App. 389, 393 (1996). For purposes of determining whether a claim is well grounded, the Board presumes the truthfulness of the supporting evidence. Arms v. West, 12 Vet. App. 188, 193 (1999); Robinette v. Brown, 8 Vet. App. 69, 75 (1995); King v. Brown, 5 Vet. App. 19, 21 (1993). In order for a claim to be well grounded, there must be competent evidence of a current disability (a medical diagnosis); of incurrence or aggravation of a disease or injury in service (lay or medical evidence); and of a nexus between the in-service injury or disease and the current disability (medical evidence). Epps v. Gober, 126 F.3d 1464, 1468 (1997); Caluza, 7 Vet. App. 498, 504 (1995). Where the determinative issue involves a medical diagnosis, there must be competent medical evidence to the effect that the claim is plausible; lay assertions of medical status do not constitute competent medical evidence. Grottveit v. Brown, 5 Vet. App. 91, 93 (1993); Espiritu v. Derwinski, 2 Vet. App. 492, 494 (1992). VA's duty to assist a veteran in developing facts pertinent to his claim is not triggered until and unless the veteran submits a well grounded claim. Morton v. West, 12 Vet. App. 477, 486 (1999). Considering the evidence of record, the Board finds that each of the veteran's claims is not well grounded. The first requirement of a well grounded claim is a medical diagnosis of a current disability. However, there is no medical evidence of current arthritis of the hands and fingers, a low back disorder, a left wrist fracture, or conjunctivitis. That is, the medical evidence of record fails to reveal the presence of arthritis in the hands or fingers, any low back pathology, no evidence of a left wrist fracture or residuals thereof, or any current conjunctivitis or other eye disorder. A claim cannot well grounded if there is no present disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). Concerning the two remaining claims, depressive disorder with anxiety and obsessional features and prostatic hypertrophy, the evidence does reveal current diagnoses of the claimed disorders. As to the second requirement of a well grounded claim, the veteran generally asserts that each disorder began in service. For purposes of determining whether the claims are well grounded, the Board presumes the truth of this assertion. Arms, 12 Vet. App. at 193; Robinette, 8 Vet. App. at 75; King, 5 Vet. App. at 21. However, in this case, the final element of a well grounded claim is not met. That is, there is no competent medical evidence of a nexus between the veteran's psychiatric and prostate disorders and his period of active duty service. Similarly, with the disorders for which there is no diagnosis, discussed above, there can necessarily be no medical evidence of a relationship between the alleged disorder and service. Such evidence is required to establish that the claim is plausible. Epps, 126 F.3d at 1468. To the extent the veteran argues that he has experienced symptoms from any of the listed disorder since service, the Board emphasizes that such argument is insufficient to establish a well grounded claim. Although continuity of symptomatology may be a valid basis for service connection, the provisions of 38 C.F.R. § 3.303(b) do not relieve a veteran of the burden of providing a medical nexus in order to establish a well grounded claim. Rather, a veteran diagnosed with a chronic disorder must still provide a medical nexus between the current disorder and the putative continuous symptomatology. Voerth v. West, 13 Vet. App. 117 (1999); McManaway v. West, 13 Vet. App. 60, 66 (1999). Some of the medical evidence reflects the veteran's reports to the physician of a history of associated symptoms experienced in service. Such reports are also not an adequate basis for a well grounded claim. Medical history provided by a veteran and recorded by an examiner without additional enhancement or analysis is not competent medical evidence. LeShore v. Brown, 8 Vet. App. 406, 409 (1995). In that same vein, the Board observes that the veteran is a lay person untrained in medicine. Although he is competent to relate or describe symptoms, he is not competent to offer an opinion on matters that require medical knowledge, such as a medical diagnosis or a determination as to etiology of a disorder. Grottveit, 5 Vet. App. at 93; Espiritu, 2 Vet. App. at 494. Under these circumstances, the Board finds that the veteran has not submitted a well grounded claim for service connection for depressive disorder with anxiety and obsessional features, arthritis of the hands and fingers, a low back disorder, a left wrist fracture, conjunctivitis, or prostatic hypertrophy. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102; Epps, 126 F.3d at 1468. Therefore, the duty to assist is not triggered and VA has no obligation to further develop the veteran's claim. Epps, 126 F.3d at 1469; Morton, 12 Vet. App. at 486; Grivois v. Brown, 5 Vet. App. 136, 140 (1994). If the veteran wishes to complete his application for service connection for the listed disorders, he should submit competent medical evidence showing that he is currently diagnosed as having each alleged disorder and that the disorder is in some way related to service. 38 U.S.C.A. § 5103(a); Robinette, 8 Vet. App. at 77-80. Increased Rating for Hypertension When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to be well grounded as long as the rating schedule provides for a higher rating and the claim remains open. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995). Accordingly, the Board finds that the veteran's claim for an increased rating is well grounded. 38 U.S.C.A. § 5107(a); 38 C.F.R. § 3.102. The Board is also satisfied that all relevant facts have been properly and sufficiently developed to address the issue at hand. Factual Background The veteran's July 1992 separation physical examination yielded a blood pressure reading of 138/96. Notes of a December 1992 visit to First Care Walk-In Medical Clinic showed a blood pressure of 130/88. In January 1993, the veteran underwent a Persian Gulf War registry examination. His blood pressure was 120/70. He was not taking medication. In January 1994, the veteran submitted a claim for service connection for various disorders, including hypertension. In June 1994, the veteran was afforded a VA examination. He reported that he had received medication for hypertension for a month or during service, though thereafter he had normal blood pressure without medication. He had not taken blood pressure medication since service. Blood pressure at that time, in the seated position, was 132/96, and 124/90, recumbent. Notes of a visit to Beaumont Clinic in February 1995 revealed a blood pressure reading of 118/80. VA outpatient records dated in March 1995 showed a recorded blood pressure of 150/106. The veteran was not currently taking hypertension medication. The veteran presented at St. Vincent Hospital in April 1995 for unrelated problems. It was noted that his medications included Atenolol. His blood pressure was 122/80. The veteran again visited a VA outpatient clinic in May 1995. His blood pressure was 132/93. Notes did not reveal whether he was taking any medication. The veteran returned about three weeks later in May 1995. It was noted that he was taking Atenolol. The veteran underwent another VA examination in July 1995. He reported that, since March 1995, he had been taking Atenolol, which was controlling his blood pressure. Blood pressure at that time, in the seated position, was 130/100, 146/90, recumbent, and 130/94, standing. The examiner commented that there was no angina, congestive heart failure, or stroke. The veteran was hospitalized in August 1995 for an unrelated disorder. Blood pressure at admission was 140/78. At discharge, his medications included Atenolol. In January 1998, the veteran was afforded another VA examination. He continued to take Atenolol. He denied angina, congestive heart failure, arrhythmia, or cardiomegaly. His seated blood pressure at that time was 128/88, and 120/80, recumbent. Analysis Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board observes that, in a claim of disagreement with the initial rating assigned following a grant of service connection, as is the situation in this case, separate ratings can be assigned for separate periods of time, based on the facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). See AB v. Brown, 6 Vet. App. 35, 38 (1993) (on a claim for an original or an increased rating, it is presumed that the veteran seeks the maximum benefit allowed by law and regulation, and it follows that such a claim remains in controversy when less than the maximum available benefit is awarded). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). During the pendency of the veteran's appeal, VA promulgated new regulations amending the criteria for rating cardiovascular disorders, effective January 12, 1998. See 62 Fed. Reg. 65,207 (1997) (codified at 38 C.F.R. pt. 4). Generally, where the law or regulation changes after a claim has been filed or reopened but before the administrative or judicial appeal process has been concluded, the version most favorable to the veteran will apply. Karnas v. Derwinski, 1 Vet. App. 308, 313 (1991). However, when amended regulations expressly state an effective date and do not include any provision for retroactive applicability, application of the revised regulations prior to the stated effective date is precluded, notwithstanding Karnas. Rhodan v. West, 12 Vet. App. 55, 57 (1998). Therefore, the Board may apply only the previous version of the regulations up to January 12, 1998. Thereafter, the Board must apply whichever version of the regulations is more favorable to the veteran. The Board notes that, in its July 1998 supplemental statement of the case, the RO considered the amended version of the rating criteria. Accordingly, the Board may similarly consider each version of the regulations without determining whether the veteran will be prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 392-94 (1993). However, a review of the pertinent diagnostic code in this case finds no appreciable or applicable differences between the previous version of the rating schedule and the amended version, such that neither is more favorable to the veteran. Under Code 7101, a 10 percent rating is assigned when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 ore more. 38 C.F.R. § 4.104, Code 7101, Note 2 (in effect prior to January 12, 1998); 38 C.F.R. § 4.104, Code 7101 (1999). Under the previous version of the regulations, a 20 percent rating is assigned when diastolic pressure is predominantly 110 or more with definite symptoms. 38 C.F.R. § 4.104 (in effect prior to January 12, 1998). Under the amended version of the regulations, a 20 percent rating requires only a diastolic pressure of 110 or more. 38 C.F.R. § 4.104 (1999). The evidence of record shows that the first incident of diastolic blood pressure of 100 or more was recorded during a March 27, 1995, VA outpatient visit. This evidence is insufficient to establish entitlement to a 10 percent rating because the Board cannot conclude that one reading constitutes a "predominant" finding, as is required for a 10 percent rating. 38 C.F.R. § 4.7. Thereafter, the veteran's blood pressure was no monitored again until the April 12, 1995, visit to St. Vincent Hospital. At that time, the veteran was taking Atenolol and his blood pressure was 122/80. Although there is no medical entry showing the exact date of the prescription for Atenolol, it appears from the evidence of record that the veteran has continuously taken the medication since that time. Therefore, resolving doubt in the veteran's favor, the Board finds that the evidence is sufficient to establish entitlement to a 10 percent rating under Code 7101 as of April 12, 1995, the first date on which it is documented that the veteran was taking Atenolol. 38 C.F.R. § 4.7. However, the Board also finds that the preponderance of the evidence is against a rating greater than 10 percent thereafter. The subsequent evidence shows a blood pressure reading of 130/100 during the July 1995 VA examination. Otherwise, the veteran's diastolic blood pressure readings have been under 100. There is no evidence demonstrating that the veteran experienced any symptoms associated with his hypertension. Thus, the disability picture does not more nearly approximate the criteria for a 20 percent rating. 38 C.F.R. § 4.7. In summary, the Board finds that the evidence supports entitlement to no more than a 10 percent rating for hypertension as of April 12, 1995. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Code 7101 (1999); 38 C.F.R. § 4.104, Code 7101 (1997). ORDER Service connection for depressive disorder with anxiety and obsessional features is denied. Service connection for arthritis of the hands and fingers is denied. Service connection for a low back disorder is denied. Service connection for a left wrist fracture is denied. Service connection for conjunctivitis is denied. Service connection for prostatic hypertrophy is denied. Entitlement to a compensable disability rating for hypertension prior to April 12, 1995 is denied. Subject to the laws and regulations governing the payment of monetary benefits, entitlement to a 10 percent disability rating for hypertension as of April 12, 1995, is granted. Entitlement to a disability rating greater than 10 percent for hypertension from April 12, 1995 is denied. RENÉE M. PELLETIER Member, Board of Veterans' Appeals