BVA9503872 DOCKET NO. 93-12 147 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling. 2. Entitlement to service connection for an ulcer. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD J. Andrew Ahlberg, Associate Counsel INTRODUCTION The veteran served on active duty from January 1980 to November 1987. This case comes before the Board of Veterans' Appeals (hereinafter Board) on appeal from adverse rating action by the Portland, Oregon, Regional Office (hereinafter RO). The Board concludes that "new" and "material" evidence sufficient to reopen the veteran's claim for service connection for an ulcer has been presented in the form of a report from a January 1992 VA examination that included a discussion of the possible relationship between the veteran's ulcer and in-service gastrointestinal symptomatology. 38 U.S.C.A. § 5108; 38 C.F.R. § 3.156; Manio v. Derwinski, 1 Vet.App. 140 (1991); Colvin v. Derwinski, 1 Vet.App. 171 (1991); Smith v. Derwinski, 1 Vet.App. 178 (1991). Once a claim has been reopened, de novo consideration of all the evidence on file is warranted. Manio. The RO did not specifically conclude that "new" and "material" evidence sufficient to reopen the veteran's claim had been presented and the Board is aware of the holding in Bernard v. Brown, 4 Vet.App. 384 (1993). However, during this appeal, the merits of the issue involved has been considered by the RO and addressed by the veteran and his representative. Thus, inasmuch as the substantive merits and not merely procedural aspects of the claim have been considered and addressed, there can be no prejudice to the veteran by the Board entering a decision on the merits of the appeal as to that issue. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that the evidence of record shows that the diastolic blood pressures of record are predominantly over 110 with secondary symptomatology caused by hypertension. Thus, he contends that the criteria for a higher rating for hypertension are met. The veteran also contends that service connection for an ulcer is warranted given what he contends is significant clinical evidence contained in the service medical records of an ulcer or gastrointestinal symptoms indicative of the early stages of an ulcer. He contends that he had the ulcer during service, and that it was misdiagnosed by the physician's assistants that treated him in service. He also asserts that application of the provisions of 38 C.F.R. § 3.307(c) warrants a grant of his claim for service connection for an ulcer. 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 the preponderance of the evidence is against the veteran's claims. FINDINGS OF FACT 1. All relevant available evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. The clinical evidence of record does not show that the veteran's diastolic blood pressure is predominantly 110 or greater with definite physical symptoms caused by hypertension. 3. The report from the January 1992 VA examination is not cumulative of other evidence of record and is probative as to the issue of service connection for an ulcer. 4. An ulcer was not shown in service or within one year of service. 5. The weight of the evidence shows that the ulcer first objectively shown in May 1989 was not etiologically related to in-service symptomatology or pathology. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101 (1994). 2. "New" and "material" evidence sufficient to reopen a claim for service connection for an ulcer has been presented. 38 U.S.C.A. § 5108 (West 1991); 38 C.F.R. § 3.156 (1994). 3. An ulcer was not incurred in or aggravated by service, nor may it be presumed to have been so incurred. 38 U.S.C.A. §§ 1101, 1112, 1113, 1131, 1137, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.307, 3.309 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the veteran has presented sufficient evidence to conclude that his claims are "well-grounded" within the meaning of 38 U.S.C.A. § 5107(a). The Board is also satisfied that the duty to assist mandated by 38 U.S.C.A. § 5107(a) has been fulfilled as the pertinent evidence of record to make an equitable decision in the veteran's appeal has been obtained. In adjudicating a well-grounded claim, the Board determines whether (1) the weight of the evidence supports the claim or, (2) the weight of the "positive" evidence in favor of the claim is in relative balance with the weight of the "negative" evidence against the claim: The veteran prevails in either event. However, if the weight of the evidence is against the veteran's claim, the claim must be denied. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet.App. 49 (1990). I. Entitlement to an increased rating for hypertension. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. §§ 3.102, 4.3, 4.7. In addition, the Board will consider the potential application of the various other provisions of 38 C.F.R., Parts 3 and 4, whether or not they were raised by the veteran, as well as the entire history of the veteran's disorder in reaching its decision, as required by Schafrath v. Derwinski, 1 Vet.App. 589 (1991). Hypertensive vascular disease (essential arterial hypertension) manifested by diastolic pressure readings (the second number in a blood pressure reading) that are predominantly 100 or greater warrants a 10 percent disability rating. Hypertensive vascular disease manifested by diastolic pressure readings that are predominantly 110 or more with definite symptoms of the disease warrants a 20 percent disability rating. 38 C.F.R. § 4.104, Code 7101. The following is a summary of the relevant clinical history. The veteran's blood pressure was recorded at 110/70 on his entrance examination. A January 1984 service medical record showed the veteran's blood pressure to be 170/110 and the assessment was a new onset of hypertension. A series of blood pressure readings in February 1984 revealed diastolic readings that ranged from 70 to 104. Medication was prescribed and the veteran was referred to the nutrition clinic for instruction on how to maintain a low salt and low cholesterol diet. The assessment was mild hypertension in March 1984 after his blood pressure was recorded at 140/88 in the right arm and 138/94 in the left arm. In November 1984, the veteran apparently had a brief seizure associated with a fainting spell and had to be taken to an emergency room. The blood pressure readings at that time were 118/78, 130/100 and 158/112. A CAT scan of the brain was negative and there were no significant residuals resulting from the seizure. Records from treatment of unrelated conditions showed the veteran's blood pressure to be 160/92 in September 1985 and 138/94 in October 1985. A service medical record dated in February 1986 showed the veteran reporting that he "passed out" during a physical training test. His blood pressure was recorded at 142/98 and it was indicated that while he had been taking medication in the past to control his blood pressure, he had not taken it for the previous four months. A March 1986 record showed the veteran to be taking his blood pressure medication, and his blood pressure was measured at 144/96. The veteran was still taking his blood pressure mediation in July 1986, and it was indicated that his blood pressure was under control. In August 1986, the veteran complained that his blood pressure medication made him sick and the medication was accordingly changed. It was indicated that the new medication was working in September 1986, and the veteran' blood pressure was recorded at 116/70. In May 1987, the veteran experienced what was described as a "near syncope episode." Nausea and lightheadedness were reported and the diastolic blood pressure readings were between 80 and 102. A neurologic examination was negative. Dehydration or a medication side effect were listed as possible causes of the syncopic episode. Diastolic pressure readings in June and July 1987 were recorded between 72 and 109. It was reported that the veteran was still taking his blood pressure medication at that time. The August 1987 separation examination showed the veteran's blood pressure to be 124/80. A routine hypertension check-up in that month showed the veteran to be complaining about slight dizziness in hot weather. Blood pressure was recorded at 150/90 and the dosage of his blood pressure medication was increased. In September and October 1987, diastolic blood pressure readings were recorded between 92 and 100. Service connection for hypertension was established by a July 1988 rating decision. A noncompensable evaluation was assigned and it was reported that the veteran did not report for a scheduled VA examination. The first relevant post-service clinical evidence of record is contained in reports from in patient treatment for an ulcer in May 1989. The veteran did not indicate he was taking any hypertensive medication at that time and he reported that a recent check of his blood pressure in a drugstore showed it to be normal. Diastolic pressure during this hospitalization was recorded between 70 and 98 with heart rates from 92 to 108. Before he received his first unit of blood in the hospital, he exhibited signs of a syncopal episode for less than one minute but seemed to "come to" after that. No residuals associated with this episode were reported. A report from a January 1991 examination conducted in conjunction with an attempt to secure employment as a bus driver showed the veteran's blood pressure to be 150/112 and 162/120. It was indicated that he would not be able to work as a bus driver if his blood pressure remained that high. Also in that month, the veteran was found to be not eligible for entrance into the Army National Guard due to his ulcer and hypertension, as an enlistment examination conducted in that month recorded the veteran's blood pressure at 154/110, 160/120 and 154/104. A private clinical record dated in January 1991 recorded the veteran's blood pressure at 150/120, and the veteran indicated that he had not been taking hypertensive medication since his separation from service. A report from treatment by this same physician dated in February 1991 showed blood pressure readings of 132/94 and 130/98 and the veteran reported episodes of dizziness. A report from a March 1991 VA examination indicated that the veteran had been on hypertensive medication since January 1991. The veteran denied any secondary symptoms or complications due to hypertension. Diastolic pressure readings were 90, 108 and 110. The impression was "most likely" essential hypertension given the lack of any evidence of secondary symptoms, and the veteran was referred to a VA hypertension clinic for follow up treatment. Based in part on the report from this examination, the disability rating for hypertension was increased to 10 percent by an April 1991 rating decision. In May 1991, the veteran was admitted to an emergency room with complaints of a sudden onset of anterior chest pain and tingling in the arms. An X-ray and electrocardiogram were normal and the physical examination was normal except for tenderness to palpation over the anterior chest wall. Blood pressure was recorded at 140/90 upon admission to the emergency room. The assessment was chest wall pain and hyperventilation and the veteran was discharged in a stable condition. A November 1991 emergency room report showed the veteran complaining about elevated blood pressure and headaches. Diastolic blood pressure readings at that time were 98, 110, 118, 120 and 130. A January 1992 VA examination recorded the veteran's blood pressure at 152/94. The veteran described continuing headaches and lightheadedness. Reports from an April 1992 VA examination showed the veteran complaining about lightheadedness when changing his physical position. He also contended that his diastolic blood pressure was over 110 sometimes when he measured it in his home. Blood pressure was measured at 158/106, 156/106 and 158/108. The diagnosis was poorly controlled essential hypertension despite taking the maximum dose of the prescribed medication. The hypertensive medication was changed and the veteran was to return for follow up treatment in three months. The veteran was seen again in late April 1992. Recorded blood pressure readings at that time were 154/102, 154/106, and 158/108. It was noted that the veteran needed better blood pressure control and some change was made in his medication. Applying the provisions of 38 C.F.R. § 4.104, DC 7101 to the clinical evidence summarized above, the Board concludes that the criteria for a 20 percent rating under DC 7101 are not met. While there are some isolated diastolic readings above 110 of record, the diastolic readings are not predominantly greater than 110, and the reports from the most recent VA examination or record showed all the diastolic reading to be under 110. These findings from the most recent VA examination of record are to be afforded greater probative weight than the more remote findings, as it is the veteran's current level of disability that is of primary concern in determining whether a higher disability rating is warranted. Francisco v. Brown, 7 Vet.App. 55 (1994). Even assuming for the purposes of argument only that the evidence of record showed diastolic readings that were predominantly greater than 110, a 20 percent rating under DC 7101 would also require "definite" secondary symptoms of hypertension. Such secondary symptoms of hypertension have not been objectively shown, and the Board notes in this regard that the veteran denied the existence of any symptoms secondary to hypertension at the time of his March 1991 VA examination. Moreover, the electrocardiograms and X-rays of record show no significant cardiac abnormalities, and there are no clinical findings of record linking any symptoms to hypertension. 38 C.F.R. § 3.321(b)(1) provides that where the disability picture is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disabilities, an extraschedular evaluation will be assigned. However, neither frequent hospitalization nor marked interference with employment due to hypertension is demonstrated. Therefore, an extraschedular evaluation under the provisions of 38 C.F.R. § 3.321(b)(1) is not warranted. II. Entitlement to service connection for an ulcer. Service connection may be granted for a disability resulting from injury or disease incurred in or aggravated by active service. 38 U.S.C.A. § 1131. For the showing of a 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." Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or where the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in service is not adequately supported, then a showing of continuity after discharge is required to support the claim. 38 C.F.R. § 3.303(b). Where a veteran served continuously for ninety days or more during a period of war or during peacetime service after December 31, 1946, and an ulcer becomes manifest to a degree of 10 percent within 1 year from date of termination of such service, such disease shall be presumed to have been incurred in service, even though there is no evidence of such disease during the period of service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. To establish service connection for a chronic disease on the basis that it is manifested to a degree of 10 percent or more within one year of separation from service, it is not required that the disease be diagnosed in the presumptive period, but only that there be then shown by acceptable medical or lay evidence characteristic manifestations of the disease to the required degree, followed without unreasonable time lapse by definite diagnosis. Symptomatology shown in the prescribed period may have no particular significance when first observed, but in light of subsequent developments it may gain considerable significance. Cases in which a chronic condition is shown to exist within a short time following the applicable presumptive period, but without evidence of manifestations within the period, should be developed to determine whether there was symptomatology which in retrospect many be identified and evaluated as manifestation of the chronic disease to the required 10-percent degree. 38 C.F.R. § 3.307(c). The following is a summary of the evidence relevant to the claim for service connection for an ulcer. A Report of Medical History from the November 1979 entrance examination showed the veteran stating that he had gastric symptoms one year previously but that an upper-gastrointestinal series had been negative for an ulcer. He reported no gastric symptoms at the time. Shortly after induction in February 1980, the veteran reported episodes of vomiting for the previous two to three days and difficulty in going to the bathroom. There was tenderness in the left lower quadrant and the assessment was "rule out ulcer-constipation." Other assessments in that month included "ulcer vs. nerves" and gastritis. He was given Mylanta and told to restrict his diet. An upper gastrointestinal series was negative for any ulcers. The veteran again described difficulty in digesting food with vomiting in October 1982. The assessment was probable viral gastroenteritis. He also complained about an upset stomach and vomiting in January 1983, and the assessment again was probable gastroenteritis. No gastrointestinal complaints were noted on a Report of Medical History completed in conjunction with a March 1984 periodic examination or on the remaining service medical records. The reports from the August 1987 separation examination were negative for any gastrointestinal findings, although the veteran indicated on a Report of Medical History completed at that time that he had almost continual heartburn. The first relevant post-service clinical evidence is contained in reports from in-patient treatment for an ulcer at a private medical facility in May 1989 referred to in the first section. An upper gastrointestinal series taken at that time showed an ulcer in the anterior wall of the duodenum that was approximately one centimeter in size. Also shown was a marked prominence of the duodenal fold and a prominence and thickening of the gastric rugal folds in a fashion that was felt to be secondary to gastritis. The veteran did not give a history or even a "hint" of previous gastric disease or gastrointestinal bleeding. In fact, he indicated that gastrointestinal symptoms began only within the previous two weeks. It was reported that the veteran had recently suffered from a significant amount of emotional stress due to concerns about his business and his son. He also reported that the symptoms had begun following the consumption of alcohol at a work function. The final diagnoses included acute upper gastrointestinal bleeding secondary to a duodenal ulcer and hypoproteinemia which was presumed to be secondary to hypertrophic, hypersecretory gastropathy. In January 1991, the veteran told a private physician that he was still vomiting occasionally. A report from a January 1992 VA examination showed the veteran complaining about frequent nausea and vomiting that included "coffee-ground" emesis. Also described was a black stool. In describing the history of the veteran's gastrointestinal disorder, the examiner reported that he had a long history, including during service, of dyspepsia relieved with antacids. He indicated that the veteran had a bleeding ulcer one year after discharge, and stated that "[t]hese symptoms are probably related, i.e. a pre-ulcer peptic acid condition existed for years which ultimately resulted in a full- blown ulcer, [and] these symptoms are continuing now." A further work-up and testing was thought indicated. A report from an April 1992 VA examination indicated that during the prior six months, the veteran's abdominal complaints had worsened and that a recent upper gastrointestinal series had shown active peptic ulcer disease and past peptic ulcer disease manifested by residual scarring. The veteran claimed his symptoms at that time were exactly the same as those he suffered from during service. The veteran was scheduled for a VA examination to be conducted by a gastroenterologist who was to review the veteran's claims file and provide an opinion as to whether the in-service gastrointestinal symptoms were early manifestations of the later diagnosed ulcer. This examination was accomplished in August 1992, and the examiner concluded there was no etiologic link between in-service symptomatology and the post-service ulcer. Instead, the examiner concluded that the veteran's ulcers and gastritis were related to his heavy cigarette smoking. His opinion was based on a review of the service medical records, as the August 1992 examination report contains specific references to the 1980, 1982 and 1983 service medical records and the separation examination which were all summarized above. The examiner felt the in-service symptomatology was probably representative of gastritis. As noted above, that had been the in-service diagnosis. Applying the relevant laws and regulations to the evidence summarized above, the Board concludes that the weight of the "negative" evidence outweighs the "positive" evidence of record. The "positive" evidence consisting of the service medical records pertaining to treatment of the veteran's gastrointestinal symptoms and the January 1992 conclusion by the VA examiner essentially linking those symptoms to the ulcer shown in May 1989 has been considered. However, in the opinion of the Board, the report from the August 1992 VA examination, which included the conclusion by the examiner that there was no relationship between in-service symptomatology and the veteran's ulcer, is of greater probative value than the "positive" evidence from the January 1992 VA examination. The Board makes this determination because unlike the January 1992 VA examination, the evidence indicates that the veteran's service medical records were thoroughly reviewed by the examiner in August 1992 before he reached his conclusion. The Board finds such a conclusion based on a complete and accurate review of the service medical records to necessarily be of more probative value than one that did not include such a thorough examination of the relevant service medical records. Support for the conclusion by the VA examiner in August 1992 is shown by the fact that the May 1989 contemporaneous reports from the hospitalization for treatment for an ulcer at that time did not refer to symptomatology or pathology in service, but instead indicated that the ulcer was of sudden onset and the result of symptomatology that began at most within a few weeks of the May 1989 hospital admission. Treatment for the gastrointestinal complaints in service was confined to a period between February 1980 and January 1983, and the symptoms shown on the October 1982 and January 1983 service medical records were thought to be indicative of viral gastroenteritis and not evidence of an ulcer or gastritis. While the Board notes the statement of the veteran at the time of his August 1987 separation examination that he suffered from almost continuous heartburn, the fact the February 1980 upper gastrointestinal series was negative and that no further treatment for a gastrointestinal disorder was shown on the service medical records between January 1983 and 1987 is more probative evidence that a "chronic" gastrointestinal disorder did not exist in service. Thus, "continuity of symptomatology" under 38 C.F.R. § 3.303(b) from separation from service to the first post-service evidence of an ulcer dated in May 1989 is required for service connection to be established on a "direct" basis. However, there is no evidence of treatment for any gastrointestinal disorders during this period and the records pertaining to the May 1989 hospitalization, as noted above, indicate that the veteran's ulcer was of a recent onset, possibly related to increasing stress. Absent a showing of continuity of gastrointestinal symptoms between the November 1987 separation from service and the May 1989 hospitalization, service connection for the veteran's ulcer shown at that time cannot be established on a "direct" basis. In addition, service connection for an ulcer cannot be "presumed" to have been incurred in service, as there is no evidence of record that the veteran was suffering from an ulcer that was 10 percent disabling within one year of separation. 38 U.S.C.A. §§ 1101, 1112, 1113, 1137; 38 C.F.R. §§ 3.307, 3.309. While we have considered the contentions of the veteran and his representative with regard to what they feel is an etiologic link between in-service symptomatology and the ulcer first shown in May 1989, such conclusions regarding medical causation made by lay persons are of minimal probative value and are outweighed by the "negative" objective evidence of record. Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). The Board also notes that contrary to the contention of the veteran in his April 1992 substantive appeal, an ulcer was not diagnosed in service. There was a finding of "rule out" an ulcer. This means that tests to verify that diagnosis are indicated. The February 1980 upper gastrointestinal series conducted specifically to rule out the existence of an ulcer was negative. As such, there is no ulcer identified in service. As for the veteran's contention that 38 C.F.R. § 3.307(c) provides the basis for an allowance, there is no objective evidence of gastrointestinal symptoms within one year of separation from service. No history of treatment for such symptoms was reported on the clinical records from the May 1989 hospitalization and the veteran has not indicated that he was treated for a gastrointestinal disorder during this period. Therefore, service connection for an ulcer cannot be granted through the application of the provisions of 38 C.F.R. § 3.307(c). ORDER Entitlement to a rating in excess of 10 percent for hypertension is denied. Entitlement to service connection for an ulcer is denied. MICHAEL D. LYON Member, Board of Veterans' Appeals 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.