Citation Nr: 0000279 Decision Date: 01/05/00 Archive Date: 01/11/00 DOCKET NO. 94-03 227 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial disability rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD M. C. Graham, Counsel INTRODUCTION The appellant served on active duty from September 1970 to July 1977. DD Form 214s provided by the appellant also show service in the Air National Guard from March 1979 to July 1992 with an additional one year, eight months, and four days of inactive service. The veteran indicated that he had a period of active duty for training with the Reserves from 1977 to 1979, that he was on Title 32 active duty with the Reserves from 1979 to 1981, and that he was on Title 10 active duty from 1981 to 1992. A confirmation request to the National Personnel Records Center (NPRC) only confirmed dates of active duty service from November 1970 to July 1977 and from March 1979 to July 1992. The instant appeal arose from a March 1993 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), in Nashville, Tennessee, which granted a claim for service connection for hypertension and assigned a noncompensable disability evaluation. In a November 1993 rating decision an increased rating, to 10 percent, was granted. Since this claim has not been withdrawn, an increased rating above 10 percent remains at issue on appeal. See AB v. Brown, 6 Vet. App. 35 (1993) (a claim remains in controversy where less than the maximum available benefits are awarded). This case was remanded by the Board in September 1998 for further development and for due process reasons. FINDING OF FACT From his separation from service to the present, the appellant's service-connected hypertension has been manifested by diastolic pressure predominantly less than 110 and systolic pressure always less than 200 with medication and without significant symptoms; one instance of moderate voltage criteria for left ventricular hypertrophy on electrocardiogram (EKG) which has not recurred on subsequent EKGs; consistently normal chest X-rays; and no evidence of arteriosclerotic complication of hypertension. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). REASONS AND BASES FOR FINDING AND CONCLUSION The Board finds that the appellant has submitted evidence which is sufficient to justify a belief that his claim is well grounded. 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet. App. 78 (1990). That is, he has presented a claim which is plausible. Generally, a claim for an increased evaluation is considered to be well grounded. A claim that a condition has become more severe is well grounded where the condition was previously service-connected and rated, and the claimant subsequently asserts that a higher rating is justified due to an increase in severity since the original rating. Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992). VA has a duty to assist the appellant to develop facts in support of well-grounded claims. 38 U.S.C.A. § 5107(a) (West 1991) and Murphy v. Derwinski, 1 Vet. App. 78 (1990). All necessary development was performed. The veteran underwent several VA examinations and diagnostic testing, and this case was remanded for further development. He recently reported that all of his treatment for hypertension was performed at the Nashville VA Medical Center (MC), and all available records have been developed from this source. He has not asserted that there are any missing, relevant records. For these reasons, the Board finds that VA's duty to assist the appellant, 38 U.S.C.A. § 5107(a) (West 1991), has been discharged. Furthermore, the undersigned finds that this case has been adequately developed for appellate purposes. A disposition on the merits is now in order. In evaluating the appellant's request for an increased rating, the Board considers the medical evidence of record. The medical findings are compared to the criteria in the VA Schedule for Rating Disabilities. 38 C.F.R. Part 4 (1999). In so doing, it is the Board's responsibility to weigh the evidence before it. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). In evaluating service-connected disabilities, the Board looks to functional impairment. The Board attempts to determine the extent to which a service-connected disability adversely affects the ability of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. §§ 4.2, 4.10 (1999). 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. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (1999). The Board must determine whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either case, or whether the preponderance of the evidence is against the claim, in which case the claim must be denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b) (West 1991). Service connection for hypertension was granted in a March 1993 rating decision which noted that the service medical records revealed a history elevated blood pressure which normalized with medication. A noncompensable disability evaluation was assigned because the service medical records showed that the high blood pressure medication was discontinued and the veteran's blood pressure readings remained normal at the time of his separation from service. The Board has reviewed VA treatment records from August to November 1993. An August 1993 VA treatment record revealed a standing blood pressure reading of 158/108 and a sitting blood pressure reading of 160/123. The veteran denied complaints, including chest pain and dizziness. Medication, namely Lisinopril, was prescribed. VA records in September and October 1993 revealed blood pressure readings with diastolic pressure less than 110. The veteran did not have any complaints and he reported that the blood pressure readings he took at home showed his diastolic pressure always less than 110. In November 1993 the veteran underwent a VA hypertension examination. The examiner noted that the veteran had "no subjective or objective complaints or high blood pressure." His blood pressure readings were 174/109, sitting; 170/99, lying; and 179/112, standing. The examiner noted that the veteran was taking Lisinopril and that his heart was enlarged. Chest X-ray was normal. EKG showed normal sinus rhythm, axis, and intervals, and there was moderate voltage criteria for left ventricular hypertrophy. By a November 1993 rating decision, the disability evaluation for hypertension was increased to 10 percent, effective from the day following separation from active service. The Board has reviewed additional VA outpatient treatment records dated from November 1993 to April 1998. These records show that the veteran's blood pressure was checked regularly. Most of the blood pressure readings in 1994 and 1995, including the readings the veteran took at home, revealed a diastolic pressure of less than 110. Only three records over this period note blood pressure readings with diastolic pressure of 110 or more. An April 1994 record noted a reading of 174/114 with a range of readings taken at home from 156- 160/120. As a result, the medication Nisoldipine was prescribed. Another undated record, presumably later in 1994, showed a reading of 169/110, and the veteran's Nisoldipine dosage was increased. The only other record of a blood pressure reading with diastolic pressure over 110 was a June 1995 record showing a reading of 165/115. As a result of this reading, the veteran's Nisoldipine dosage was again increased. However, at that time the veteran reported that the diastolic pressure readings at home were consistently below 100. The home readings revealed a range of 140-156/95-98. Thus, the Board concludes that during this period, the veteran's diastolic pressure was predominantly below 110. The Board notes that the medication Metoprolol was added in October 1995 and that by May 1996 Hydrochlorothiazide (HCTZ) and Metoprolol were the only medications the veteran was taking for hypertension. Since June 1995, the medical evidence does not reveal a diastolic blood pressure reading in excess of 110, and most readings were in the 80s or 90s. Notes in the record from 1996 to 1998 indicate comments like "[blood pressure] looks great" and that hypertension was "well-controlled." The Board further notes that none of the VA treatment records from 1993 to 1998 revealed significant complaints or symptoms of hypertension. The veteran consistently denied shortness of breath, chest pain, palpitations, nausea, vomiting, or dizziness. One record, dated in June 1995, noted a complaint of headaches; however, there are no other significant complaints of headaches in the medical records. In February 1999 the veteran underwent another VA hypertension examination. The examiner noted that the veteran had "no symptoms." His blood pressure readings were 134/102, sitting; 122/92, lying; and 156/114, standing. Examination of the heart revealed that the point of maximal impulse was not displaced, rate and rhythm was regular, and there were no murmurs, gallops, or rubs. Peripheral pulses were present without bruits. Significantly, the examiner noted no evidence of "arteriosclerotic complication of hypertension." Chest X-ray was unremarkable, and EKG was normal. An August 1999 VA examination noted that the veteran reported at that time that his blood pressure was "well-controlled with present regimen[] of medications and he has had no chest pain, no shortness of breath, no strokes, and no other manifestations of high blood pressure." The examiner noted good blood pressure control. The veteran's hypertension is presently evaluated as 10 percent disabling under Diagnostic Code 7101 for hypertension. The regulations pertaining to rating cardiovascular disorders, to include hypertension, were changed, effective January 12, 1998. 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 stated that where the law or regulation changes during the pendency of a case, the version most favorable to the veteran will generally be applied. See West v. Brown, 7 Vet. App. 70 (1994); Hayes v. Brown, 5 Vet. App. 60 (1993); Karnas v. Derwinski, 1 Vet. App. 308 (1991). In the instant case, the Board will consider whether the veteran in entitled to a higher rating under both the old and the new regulations. The RO had originally evaluated the veteran's hypertension pursuant to those regulations in effect prior to January 1998. However, pursuant to the Board's September 1998 remand, in March 1999 a supplemental statement of the case was issued which concluded that an increased evaluation was not warranted under either the old or the new rating criteria. According to the hypertension regulations in effect prior to January 1998, a 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). "When continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent will be assigned." Id., Note 2. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more with definite symptoms, and a 40 percent rating is warranted for diastolic pressure predominantly 120 or more with moderately severe symptoms. Id. The maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more with severe symptoms. Id. The criteria for hypertension are slightly different under the new regulations. A 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1999). A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Id. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more, and the maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. Id. After a careful review of the evidence of record, it is found that that evidence does not support a finding of entitlement to a rating in excess of 10 percent between August 1, 1992, and January 12, 1998 (the date of the promulgation of the new rating criteria) under the old rating criteria. The medical evidence does not show sustained diastolic hypertension with diastolic readings of 110 or more with definite symptoms. The medical evidence shows that the veteran's diastolic readings over this period were predominantly in the 80s, 90s, and 100s. Although there is evidence over this time of 3 or 4 readings of 110 or more, the evidence does not reveal sustained readings of 110 or more. In addition, the record is mostly silent for definite symptoms. There is only one record of a complaint of headaches. As noted above, VA treatment records and VA examination reports consistently show that the veteran denied symptoms of hypertension like shortness of breath, chest pain, palpitations, nausea, vomiting, or dizziness. For these reasons, the Board does not find that an increased rating is warranted under the old regulations at any time since his separation from service. Nor does the evidence support a finding of entitlement to a rating in excess of 10 percent since January 12, 1998, under either the old or the new regulations. As explained above, at no time since August 1, 1992, has the medical evidence supported a finding of a rating in excess of 10 percent under the old criteria for hypertension. Since the effective date of the new regulations, the medical evidence does not show that an increased rating is warranted under the amended rating criteria. The Board notes that the criteria for hypertension did not change significantly in the amended regulations. Other than slightly different notes following Diagnostic Code 7101, only change in the new Diagnostic Code is the elimination of the criteria of severity of symptoms from the regulation and the addition of the systolic pressure criteria. Thus, the rationale for denying an increased evaluation under the old criteria is, in part, the same as that for denying an increased evaluation under the new criteria. As detailed above, the veteran's diastolic pressure was not predominantly 110 or more. In addition, the medical evidence reveals that the veteran's systolic pressure has not been predominantly 200 or more. In fact, the medical evidence reveals that none of the blood pressure readings show systolic pressure of 200 or more. The Board has considered the application of other Diagnostic Codes. The Board does not find that the Diagnostic Code for arteriosclerotic heart disease (coronary artery disease) is for application in this case. The Board notes that there is one instance in the record of findings indicating an enlarged heart. However, the September 1998 Board remand requested a medical opinion as to whether the veteran had hypertensive heart disease, and the February 1999 VA examiner specifically concluded that there was no evidence of arteriosclerotic complications of hypertension. Therefore, the Board finds that Diagnostic Codes referable to heart disease are not for application. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, the Board notes that this claim is based on the assignment of an initial rating for a disability following an initial award of service connection for that disability. In Fenderson v. West, 12 Vet. App. 119 (1999), the Court held that the rule articulated in Francisco did not apply to the assignment of an initial rating for a disability following an initial award of service connection for that disability. Fenderson, 12 Vet. App. at 126; Francisco, 7 Vet. App. at 58. The Board notes that it has recharacterized the issue on appeal in order to comply with the Fenderson Court. The Court held, in pertinent part, that the RO had never properly provided the appellant with a statement of the case concerning an issue, as the document addressing that issue "mistakenly treated the right-testicle claim as one for an '[i]ncreased evaluation for service[-]connected ... residuals of surgery to right testicle' ... rather than as a disagreement with the original rating award, which is what it was." Fenderson, 12 Vet. App. at 132 (emphasis in the original). The Court then indicated that "this distinction is not without importance in terms of VA adjudicative actions," and remanded the matter for the issuance of a statement of the case. Id. As in Fenderson, the RO in this case has also misidentified the issue on appeal as a claim for an increased disability rating for the veteran's service-connected hypertension, rather than as a disagreement with the original rating award for this condition. However, the RO's July 1993 statement of the case and the subsequent supplemental statements of the case provided the veteran with the appropriate, applicable law and regulations and an adequate discussion of the basis for the RO's assignment of an initial disability evaluation for this condition. In addition, the veteran's pleadings herein clearly indicate that he is aware that his appeal involves the RO's assignment of an initial disability evaluation. Consequently, the Board sees no prejudice to the veteran in recharacterizing the issue on appeal to properly reflect the veteran's disagreement with the initial disability evaluation assigned to his service-connected hypertension. See Bernard v. Brown, 4 Vet. App. 384 (1993). The veteran was dissatisfied with his initial rating for hypertension. At the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged ratings." Fenderson, 12 Vet. App. at 126. In this case, the RO granted service connection and originally assigned a 0 percent evaluation for hypertension with arteriosclerotic heart disease as of the day following the veteran's separation from service, August 1, 1992. See 38 C.F.R. § 3.400 (1998). Subsequent to this decision, the RO granted a 10 percent disability rating, effective as of August 1, 1992. The Board has reviewed all the evidence dating from the time of his separation from service and has determined that at no time from that time to the present has the evidence supported a rating in excess of 10 percent for the veteran's hypertension. Id.; Fenderson v. West, 12 Vet. App. 119 (1999). For these reasons, it is found that the 10 percent evaluation currently assigned to the veteran's service-connected hypertension is adequate. In conclusion, it is found that the preponderance of the evidence is against the veteran's claim for a rating in excess of 10 percent between August 1, 1992, and January 12, 1998, according to the old rating criteria, and is against an evaluation in excess of 10 percent between January 12, 1998, and the present, under either the old or the new rating criteria. ORDER A claim for entitlement to a rating in excess of 10 percent for hypertension is denied. C. P. RUSSELL Member, Board of Veterans' Appeals