Citation Nr: 0007799 Decision Date: 03/23/00 Archive Date: 03/28/00 DOCKET NO. 98-13 001 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an increased evaluation for hypertension, evaluated as 10 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. M. Barnard, Counsel INTRODUCTION The veteran served on active duty from April 1981 to April 1985. This appeal arose from a June 1998 rating action of the Jackson, Mississippi, Department of Veterans Affairs (VA), Regional Office (RO), which denied entitlement to the requested benefit. In June 1999, the veteran testified at a personal hearing conducted by a member of the Board of Veterans' Appeals (Board) sitting in Jackson, Mississippi. In August 1999, the Board remanded this issue for additional development. Following compliance with this remand, the veteran was informed by a supplemental statement of the case of the continued denial of his claim. The record does not show that the RO expressly considered referral of this case to the Chief Benefits Director or the Director, Compensation and Pension Service, for the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (1995). The United States Court of Appeals for Veterans Claims (known as the United States Court of Veterans Appeals prior to March 1, 1999)(hereinafter "the Court"), has recently held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from considering whether referral to the appropriate first-line official is required. The Board is still obligated to seek out all issues that are reasonably raised from a liberal reading of documents or testimony of record and to identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). Moreover, the Court has also held that the Board must address referral under 38 C.F.R. § 3.321(b)(1) only when circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218,227 (1995). Having reviewed the record with these holdings in mind, the Board finds no basis for action on the question of the assignment of an extraschedular rating. FINDING OF FACT The veteran's hypertension is manifested by diastolic readings of less than 100 and systolic readings of less than 160; continuous medication is required for control. CONCLUSION OF LAW The criteria for an increased evaluation for the service- connected hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, Code 7101 (1999). REASONS AND BASES FOR FINDING AND CONCLUSION The veteran's claim is well grounded within the meaning of 38 U.S.C.A. § 5107(a). That is, he has presented a claim which is plausible. It is also found that all relevant facts have been properly developed. The record is devoid of any indication that there are other records available which should be obtained. Therefore, no further development is required in order to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). Under the applicable criteria, disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4 (1999). When a question arises as to which of two evaluations shall be assigned, the higher evaluation will be assigned of 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 (1999). VA has a duty to acknowledge and consider all regulations which are potentially applicable based upon the assertions and issues raised in the record and to explain the reasons used to support the conclusion. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). These regulations include, but are not limited to, 38 C.F.R. § 4.1, that requires that each disability be viewed in relation to its history and that there be an emphasis placed upon the limitation of activity imposed by the disabling condition, and 38 C.F.R. § 4.2 which requires that medical reports be interpreted in light of the whole recorded history, and that each disability must be considered from the point of view of the veteran working or seeking work. These requirements for the evaluation of the complete medical history of the claimant's condition operate to protect claimants against adverse decision based upon a single, incomplete or inaccurate report and to enable VA to make a more precise evaluation of the disability level and any changes in the condition. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The veteran was originally awarded service connection by a rating action issued in May 1985. At that time, the disorder was assigned a 10 percent disability evaluation. The pertinent evidence of record included the January 1998 report of a private hospitalization, following complaints made by the veteran of chest pain. His blood pressure at that time was 135/85. A cardiac catheterization showed normal coronary arteries and a large anterior apical myocardial infarction (MI), presumably due to spasm. A chest x-ray was negative. An EKG showed sinus bradycardia; an anteroseptal infarct, age undetermined; and T-wave abnormality, consider lateral ischemia. The veteran was examined by VA in May 1998. He indicated that he could feel his heart "flutter or quiver." His reported chest pain was both exertional and nonexertional. He would take nitroglycerin, which would resolve his pain in 20 to 30 minutes. He stated that he slept on two pillows. He also complained of paroxysmal nocturnal dyspnea two to three times a month. His blood pressure readings were as follows: 150/90; 144/86 (sitting); 140/80 (reclining); and 146/86 (standing). His heart displayed a regular rate and rhythm, without murmurs, rubs or gallops. The PMI was not displaced and there was no peripheral edema. A chest x-ray revealed a normal heart. An EKG showed ST-T abnormalities, probable coronary insufficiency-evidence for an infarct was suggestive, at most. The diagnoses were hypertension and status past MI secondary to coronary artery spasm. VA outpatient treatment records developed between March and November 1998 showed that his blood pressure was 132/74 on March 27 and 123/58 on November 13. The latter record also diagnosed status post MI, angina and cardiomyopathy. Private records from 1998 and 1999 continued to reflect his treatment for hypertension and heart problems, including congestive heart failure. The veteran testified at a personal hearing before a member of the Board in June 1999. He indicated his belief that an increased evaluation was warranted for his hypertension because it caused his heart difficulties. VA re-examined the veteran in September 1999. His chief complaints included chest pain, which occurred three times a week, was both exertional and nonexertional; he described it as a dull pain to the left of his sternum. He reported dizziness upon standing and when getting out of bed. He also reported dyspnea, occasional peripheral swelling that would resolve over night and paroxysmal nocturnal dyspnea. His blood pressure readings were as follows: 136/88; 136/84 (sitting); 130/86 (reclining); and 138/90 (standing). His heart displayed a regular rate and rhythm, without murmurs, rubs or gallops. The PMI was not displaced and there was no evidence of peripheral edema. A cardiac echo conducted on August 16, 1999 had revealed a normal ejection fraction of 55 percent. There was mild aortic regurgitation and a trace of mitral regurgitation. A chest x-ray from July 16, 1999 had shown a normal cardiac silhouette. An EKG was suggestive of coronary insufficiency and an old anterior MI. The diagnoses were hypertension; and status post MI secondary to spasm. The examiner commented that the veteran had definitely had a MI secondary to spasm. The examiner also stated that "I do not know of any relationship between the patient's hypertension and myocardial infarction secondary to spasm." According to the applicable regulations, a 10 percent disability evaluation is warranted for hypertension when the diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or; the minimum evaluation for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. 38 C.F.R. Part 4, Code 7101 (1999). After a careful review of the evidence of record, it is found that an evaluation in excess of 10 percent for the service- connected hypertension is not warranted at this time. The evidence does not show that the veteran's diastolic pressure is predominantly 110 or more or that his systolic pressure is predominantly 200 or more. Moreover, the VA examination specifically ruled out the possibility that the veteran's MI was related to his hypertension. Therefore, no disability resulting from this MI can be considered when evaluating the service-connected hypertension. Therefore, it is found that the preponderance of the evidence is against the veteran's claim for an increased evaluation for the service-connected hypertension. ORDER An increased evaluation for the service-connected hypertension is denied. C. P. RUSSELL Member, Board of Veterans' Appeals