Citation Nr: 0004562 Decision Date: 02/22/00 Archive Date: 02/28/00 DOCKET NO. 95-27 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston- Salem, North Carolina THE ISSUE Entitlement to a rating greater than 30 percent for hypertensive cardiovascular disease with left ventricular hypertrophy, for the period from April 20, 1994, through December 25, 1996. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARINGS ON APPEAL Appellant INTRODUCTION The veteran served on active duty from July 1968 to July 1971, and from January 1973 to March 1984. This case first came before the Board of Veterans' Appeals (Board) from a rating decision rendered by the Winston-Salem, North Carolina, Regional Office (RO) in August 1994, wherein service connection was granted for hypertension and assigned a 10 percent rating, effective as of April 20, 1994, the date of receipt by VA of the veteran's claim for service connection. In a July 1995 rating action, the RO increased the rating for the veteran's cardiovascular disorder, now characterized as hypertensive cardiovascular disease, to 30 percent, again effective as of April 20, 1994. In December 1996 and December 1997, the Board remanded the veteran's claim of entitlement to a rating greater than 30 percent for hypertensive cardiovascular disease. At a personal hearing held at the RO in August 1997, the veteran testified that a rating of 40 percent (premised on application of rating criteria set forth at Diagnostic Code 7101 of the rating schedule) would satisfy his claim for an increased rating for his hypertension. The RO, in an April 1998 rating decision, assigned a 60 percent rating (premised on application of rating criteria set forth at Diagnostic Code 7007 of the rating schedule) for his cardiac disorder, which was now characterized as hypertensive cardiovascular disease with left ventricular hypertrophy. In view of the veteran's statements at his August 1997 personal hearing, the grant of a 60 percent rating for this disorder is deemed to constitute a full grant of benefits sought with regard to this issue. See AB v. Brown, 6 Vet. App. 35 (1993). In its April 1998 rating decision, however, the RO determined that the 60 percent rating that it assigned therein for the veteran's cardiac disorder was effective only as of December 26, 1996. The veteran thereafter indicated disagreement with the assignment of that effective date, alleging that the 60 percent rating should be effective as of April 20, 1994. While this claim has been characterized on appeal as one concerning an appropriate effective date, the Board notes that the question that is actually before it is whether a rating greater than 30 percent can be awarded at any time during the period from April 20, 1994, through December 25, 1996. See Fenderson v. West, 12 Vet. App. 119 (1999). FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's claim has been developed. 2. Between April 20, 1994, and December 25, 1996, hypertensive cardiovascular disease with left ventricular hypertrophy was manifested primarily by diastolic pressure readings at times at or exceeding 120, and by possible enlargement of the heart; during this period, dyspnea on exertion or preclusion from more than light manual labor as shown by clinical findings was not demonstrated. CONCLUSION OF LAW The criteria for an increased rating for hypertensive cardiovascular disease with left ventricular hypertrophy, for the period from April 20, 1994, through December 25, 1996, are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. Part 4, § 4.104, Diagnostic Code 7007 (in effect prior to January 12, 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION Initially, the Board finds that the veteran's 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. (See Proscelle v. Derwinski, 2 Vet. App. 629 (1992), with regard to the application of the well-grounded standard for claims for increased compensation.) He has not alleged the existence of any records of probative value that may be obtained, and which are not already associated with his claims folder. The Board accordingly finds that the duty to assist him, as mandated by 38 U.S.C.A. § 5107(a) (West 1991), has been satisfied. As indicated above, the Board has determined that the issue before it at this time is properly characterized as one concerning entitlement to a rating greater than 30 percent for a cardiac disorder in the period from April 20, 1994, through December 25, 1996. After a review of the relevant evidence, the Board finds that the veteran's claim is not supported by the evidence, and that a rating in excess of 30 percent at any time during this period is not appropriate. The severity of a service-connected disability is ascertained, for VA rating purposes, by the application of criteria set forth in VA's Schedule for Rating Disabilities, 38 C.F.R. Part 4 (1999) (Schedule). As a preliminary matter, the Board notes that the criteria that pertain to cardiac disorders were revised effective as of January 12, 1998; that is, subsequent to the ending date of the period that is of concern herein. Accordingly, referral to the rating criteria that had been in effect prior to January 12, 1998, is necessary. See 38 U.S.C.A. § 5110(g) (West 1991). Under these criteria, the 30 percent rating that was in effect for the period from April 20, 1994, through December 25, 1996, contemplated hypertensive heart disease that was manifested by definite enlargement of the heart, sustained diastolic hypertension of 100 or more, and moderate dyspnea on exertion. 38 C.F.R. § 4.104, Diagnostic Code 7007 (in effect prior to January 12, 1998). A rating greater than 30 percent would have been warranted for hypertensive heart disease that was manifested by marked enlargement of the heart as confirmed by X-ray, or by the apex beat beyond the midclavicular line; by sustained diastolic hypertension exemplified by diastolic pressure readings of 120 or more and which may have later been reduced; by dyspnea on exertion; and by the inability to engage in more than light manual labor. The Board also notes that the diagnostic criteria discussed above are not set forth in the alternative; that is, the Schedule does not provide for a 60 percent rating if only one of these criteria are satisfied. While a cursory reading of this regulation could lead one to conclude that this matter is unsettled, based on an absence of either "and" or "or" in its enumeration of the criteria, the Board must point out that, under the schedular criteria in effect at the same time, hypertensive vascular disease that was manifested by diastolic pressure readings of predominately 120 or greater, along with moderately severe symptoms, would have warranted only a 40 percent rating; see 38 C.F.R. § 4.104, Diagnostic Code 7101 (in effect prior to January 12, 1998). It therefore follows that a rating of 60 percent under Diagnostic Code 7007 - that is, the assignment of a rating that is deemed to represent more significant industrial impairment than that reflected by a 40 percent rating - required the presence of other symptoms in addition to diastolic pressure readings greater than 120 and what could be characterized as "moderately severe symptoms." With regard to the veteran's claim, the Board notes that the medical record compiled during the period in question is replete with reports of hospitalizations, outpatient treatment and VA examinations pertaining to the veteran's cardiac disorder. The report of VA hospitalization in September 1994 shows that he was seen for uncontrolled hypertension, but does not indicate that the criteria for a 60 percent rating were satisfied; rather, it shows that his heart was regular, that there was no history of shortness of breath, that blood pressure was "200/22 (sic) on admission" and 130/85 on discharge, and that he was a maintenance worker (that is, it does not indicate that he was precluded from engaging in more than light manual labor). The report of a May 1995 VA examination shows that diastolic pressure readings of 120 (twice) and 124 were noted, as was left ventricular hypertrophy as indicated by electrocardiogram; the report also specifically notes that the veteran did not have shortness of breath or chest pain, and does not indicate that he was precluded from more than light manual labor. In addition, the report of a chest X-ray conducted at that time, while noting a "slight" increase in the transverse diameter of the cardiac silhouette, also notes that this was "probably secondary to the patient's failure to take a deep breath rather than cardiac enlargement although the latter cannot be completely excluded." VA outpatient records dated between March 1995 and October 1996 show that the veteran was accorded occasional treatment for his cardiovascular disorder, which was often characterized as uncontrolled hypertension. However, these records also show that his diastolic pressure was recorded as being below 120 (six readings) almost as often as it was recorded as being at 120 or higher (seven readings). While he testified at his February 1996 personal hearing that he was employed by the local municipality as a "light" maintenance worker, the clinical records do not demonstrate, by reference to physical limitations, that he was in fact precluded from engaging in more than light manual labor. The Board also finds significant the fact that these records do not demonstrate that his cardiac problems were manifested by dyspnea on exertion; to the contrary, they show that he specifically denied on several occasions experiencing either dyspnea or shortness of breath. In brief, the medical evidence demonstrates that, during the period from April 20, 1994, through December 25, 1996, some but not all of the criteria enumerated in Diagnostic Code 7007 of the Schedule (as constituted prior to January 12, 1998) were manifested. While diastolic pressure readings appeared to range above 120 as often as they were below 120, the evidence is equivocal as to whether there was marked enlargement of the heart. In addition, while the veteran testified during this period to the effect that his employment involved performing "light" maintenance, the clinical record is devoid of findings that his cardiac disorder precluded him from engaging in more than light manual labor. Finally, it must be pointed out that this evidence does not indicate that he experienced dyspnea or shortness of breath. The Board must accordingly conclude that, with reference to the criteria set forth in Diagnostic Code 7007, the preponderance of the evidence is against his claim for an increased rating for his cardiac disorder, for the period from April 20, 1994, through December 25, 1996. The Board recognizes that Diagnostic Code 7101, as constituted prior to January 12, 1998, also provided for a rating greater than 30 percent when, as indicated above, hypertensive vascular disease was manifested by diastolic pressure readings of predominately 120 or greater and moderately severe symptoms were present. In its grant of service connection in August 1994, the RO assigned its initial disability evaluation in accordance with the rating criteria set forth in Diagnostic Code 7101. In its July 1995 rating decision, however, the RO based its determination that a higher rating was appropriate since the date of the veteran's claim on the criteria set forth in Diagnostic Code 7007; at that time, the RO changed its characterization of the veteran's disability from hypertension to hypertensive cardiovascular disease with left ventricular hypertrophy. Even if, for the purpose of this discussion only, the Board were to find that the rating criteria of Diagnostic Code 7101 were more appropriate, it would nonetheless have to conclude that the preponderance of the evidence is against the veteran's claim. It must be emphasized that Diagnostic Code 7101, as constituted prior to January 12, 1998, required the presence of elevated diagnostic readings and moderately severe symptoms. The various outpatient treatment records compiled during the period in question note complaints at times of chest pain, headaches, nausea and "partial impotence," but do not show the presence of other impairment (such as dyspnea or shortness of breath) that would allow the Board to conclude that the symptoms of his hypertensive vascular disease were moderately severe in nature. ORDER Entitlement to a rating greater than 30 percent for hypertensive cardiovascular disease with left ventricular hypertrophy, for the period from April 20, 1994, through December 25, 1996, is denied. M. S. SIEGEL Acting Member, Board of Veterans' Appeals