BVA9500068 DOCKET NO. 92-24 172 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to service connection for hearing loss. 3. Entitlement to service connection for a right hand disorder. 4. Entitlement to an increased (compensable) evaluation for chronic mechanical low back pain. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Michael E. Kilcoyne, Counsel INTRODUCTION The veteran had active military service from February 1973 to April 1991. In considering the veteran's case, the Board developed additional evidence. In accordance with Thurber v. Brown, 5 Vet.App. 119 (1993), the veteran's representative was informed of the additional evidence developed in an October 1994 letter and provided an opportunity to respond. The veteran's representative responded in December 1994, indicating that he had no further evidence or argument to present. CONTENTIONS The veteran contends that he had hypertension in service and therefore he should be service connected. He also contends that his current hearing loss was caused by his exposure to high levels of noise while in service. He maintains that he was exposed to this noise from ship engine rooms and while on board an aircraft carrier. Regarding his right hand, the veteran contends that he fractured his hand in service and as a result, he is unable to fully grip anything with that hand or exert downward pressure. With respect to his service connected back disorder, the veteran has denied the presence of chronic pain or that it causes any limitation in activity. 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 service connection for hypertension is not warranted. With respect to the veteran's claims for service connection for hearing loss and a right hand disorder, it is the decision of the Board that the evidence supports service connection for these disabilities. Regarding the veteran's claim for a compensable rating for chronic mechanical low back pain, it is the decision of the Board that this is not well grounded. FINDINGS OF FACT 1. The veteran's claim for service connection for hypertension, hearing loss and a right hand disability is plausible. 2. All relevant evidence necessary for an equitable disposition of the veteran's claims regarding service connection hypertension, hearing loss and a right hand disability has been obtained by the RO. 3. Elevated blood pressure levels were recorded in service prior to August 1986, but chronic hypertension was not demonstrated. 4. Hypertension was not present postservice. 5. The veteran had exposure to loud noises during service. 6. The veteran was diagnosed to have a hearing loss within one year after his separation from service, which was consistent with noise induced hearing loss. 7. The hearing loss noted post service had its onset in service. 8. The veteran complained of pain and numbness of the right hand during service and right hand injuries were noted. 9. In November 1991, the veteran was diagnosed to have mild decrease in grip strength of the right hand secondary to previous fractures of the hand. 10. The post service right hand disability manifested by decreased grip is attributable to the right hand injuries in service. 11. The veteran has denied chronic low back pain or limitation of activity attributable to his service connected back disability. 12. The veteran's claim for an increased (compensable) rating for a low back disability is not plausible. CONCLUSIONS OF LAW 1. Hypertension was not incurred in or aggravated by service, nor may it be presumed to have been incurred in service. 38 U.S.C.A. § § 1101, 1110, 1112, 1113, 1131, 5107 (West 1991); 38 C.F.R. § § 3.303, 3.307, 3.309 (1993). 2. Hearing loss was incurred in service. 38 U.S.C.A. § § 1110, 1131, 5107 (West 1991) (1993). 3. A right hand disorder was incurred in service. 38 U.S.C.A. § § 1110, 1131 (West 1991). 4. The veteran's claim for a compensable evaluation for chronic mechanical low back pain is not well grounded. 38 U.S.C.A. § 5107 (West 1991). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS With respect to the claims regarding hypertension, hearing loss and the veteran's right hand, the Board finds that they are well grounded. It is plausible that hypertension was incurred in service, that a hearing loss had its onset in service and the veteran's current right hand disability is related to right hand complaints in service. Moreover, the Board finds that all relevant evidence has been properly developed. The record contains the veteran's service medical records as well as the reports of examinations conducted for VA purposes in October 1991 and August 1992. Accordingly, no additional development is necessary to comply with the provisions of 38 U.S.C.A. § 5107. Under applicable criteria, service connection may be granted for disability resulting from disease or injury which was incurred in or aggravated by service. 38 U.S.C.A. § § 1110, 1131. Service connection for cardiovascular disease to include hypertension may be presumed if it became manifest to a degree of 10 percent disabling during the veteran's first year after separation from service. 38 U.S.C.A. § § 1101, 1112, 1113, 1137; 38 C.F.R. § § 3.307, 3.309. Pursuant to 38 C.F.R. § 3.303(b), with chronic disease shown as such in service so as to permit a finding of service connection, subsequent manifestations of the same chronic disease at any later date, are service connected. 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. 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. In connection with the veteran's claim for service connection for hypertension, the Board notes that according to medical texts, there is no specific dividing line between normal and high blood pressure; arbitrary levels have been established to identify individuals who have an increased risk of developing a morbid cardiovascular event and who will clearly benefit from medical therapy. The medical texts agree that a sustained diastolic pressure of 90 or more demonstrates essential hypertension; the borderline systolic pressure is listed variously as 140 or 150. R.S. Cotran et al., Robbins Pathologic Basis of Disease 1062-69 (4th ed. 1989); E. Braunwald et al., Harrison's Principles of Internal Medicine 1024-26 (11th ed. 1987); J.W. Hurst et al., The Heart 1041-44 (6th ed. 1986); L.D. Hillis et al., Manual of Clinical Problems in Cardiology 170-73 (3rd ed. 1988); Heart Disease, A Textbook of Cardiovascular Medicine 852-58 (E. Braunwald ed., 3rd ed. 1988). Hypertension which does not result from another disorder is known as primary, idiopathic or essential hypertension. Hillis, supra; Harrison, supra. Essential hypertension is idiopathic and apparently primary 90 to 95 percent of the time. Cotran, supra. Diastolic levels of 85 to 89 are classified as high-normal. The 1988 Report of the Joint National Committee on Detection, Evaluation, and Treatment of High Blood Pressure, in Archives of Internal Medicine 148(5): 1023-38 (May 1988). A review of the veteran's service medical records reveals that there were several occasions between 1973 and 1986 when his blood pressure levels were elevated. In addition, reference is made in a 1980 report of medical history to a period of hospitalization for high blood pressure attributable to his weight. In August 1986, a diagnostic impression of borderline hypertension was entered. Complaints of malaise and chest pains were noted at that time. However, following the diagnosis of borderline hypertension, there has not been any blood pressure level recorded where a systolic level measured at or above 140 or a diastolic level measured at or above 90. (The specific blood pressure measurements recorded in service medical records after August 1986 are as follows: October 1986, 118/70; May 1987, 100/60; July 1987, 120/86, 122/70; August 1987, 104/72; November 1987, 130/80; February 1989, 131/82; June 1989, 124/72; May 1990, 134/80 and June 1990, 110/80.) Following the veteran's separation from service, he was examined for VA purposes on two separate occasions. The first was in November 1991. The report of that examination revealed that the veteran related that he was hospitalized for hypertension ten years earlier, that he was prescribed blood pressure medication for approximately 7 months after that hospitalization, but that he had no difficulties related to hypertension over the last 9 years. Upon examination, the heart had a regular rate and rhythm without murmurs, gallops or rubs. The veteran's pulse was 75 and regular, his blood pressure level was measured at 140/85. The diagnosis was history of hypertension, which has not been elevated for approximately 9 years and is not elevated by the current examination and there is no evidence of endorgan damage as well. The veteran's second examination was conducted in August 1992. Again, in this examination report it was recorded that the veteran recalled a hypertension history from service years earlier, but there were no current complaints. The examiner noted that the veteran had lost weight since the episode in service. He had good exercise tolerance and no dizziness, fatigability, dyspnea on exertion, chest pains or no symptoms of congestive heart failure. Eye grounds had no evidence of papile edema, AV nicking, AV narrowing, exudate or hemorrhage. Blood pressure levels were measured at 122/84 standing and 134/88 sitting. The diagnosis was history of hypertension, probably related to increased weight. Under these circumstances, the Board concludes that the evidence does not warrant a grant of service connection for hypertension. Significantly, hypertension has not been currently demonstrated following two VA examinations. Although the record shows that there were individual episodes when high blood pressure levels were recorded in service, a chronic disease entity of this nature has never been shown. As set forth above, only normal blood pressure levels have been recorded in the service and post service medical records since 1986. Accordingly, the Board finds that a reasonable basis upon which to grant service connection for hypertension has not been presented. With respect to the veteran's claim regarding service connection for hearing loss, service connection for this disability may be granted if the disability results from disease or injury incurred in or aggravated by service, or if sensorineural type hearing loss was demonstrated to a compensable degree within one year thereafter. 38 U.S.C.A. § § 1101, 1110, 1112, 1113, 1131; 38 C.F.R. § § 3.307, 3.309. Service connection for impaired hearing will not be established when the thresholds for the frequencies of 500, 1000, 2000, 3000, and 4000 hertz are all less than 40 decibels, the thresholds for at least three of these frequencies are 25 decibels or less and speech recognition scores using the Maryland CNC test are 94 percent or better. 38 C.F.R. § 3.385. The service medical records do not show any complaints or findings of hearing loss. An audiogram dated in January 1973 revealed the veteran's hearing acuity in the right ear was 15 decibels at 500 hertz, 5 decibels at 1000 hertz, 15 decibels at 2000 hertz and 20 decibels at 4000 hertz. In the left ear, hearing acuity was 10 decibels at 500 hertz, 10 decibels at 1000 hertz, 25 decibels at 2000 hertz and 20 decibels at 4000 hertz. A July 1980 audiogram revealed right ear hearing acuity that was 5 decibels at 500 hertz, 5 decibels at 1000 hertz, 15 decibels at 2000 hertz, 25 decibels at 3000 hertz and 20 decibels at 4000 hertz. Left ear hearing acuity was 5 decibels at 500 hertz, 5 decibels at 1000 hertz, 20 decibels at 2000 hertz, 25 decibels at 3000 hertz and 15 decibels at 4000 hertz. In November 1985, an audiogram revealed right ear hearing acuity that was 10 decibels at 500 hertz, 10 decibels at 1000 hertz, 15 decibels at 2000 hertz, 25 decibels at 3000 hertz and 25 decibels at 4000 hertz. Left ear hearing acuity was 10 decibels at 500 hertz, 15 decibels at 1000 hertz, 20 decibels at 2000 hertz, 30 decibels at 3000 hertz, and 35 decibels at 4000 hertz. A June 1989 audiogram revealed right ear hearing acuity was 10 decibels at 500 hertz, 10 decibels at 1000 hertz, 15 decibels at 2000 hertz, 25 decibels at 3000 hertz and 25 decibels at 4000 hertz. Left ear hearing acuity was 5 decibels at 500 hertz, 15 decibels at 1000 hertz, 20 decibels at 2000 hertz, 30 decibels at 3000 hertz and 35 decibels at 4000 hertz. These demonstrate normal hearing for VA purposes. 38 C.F.R. § 3.385. At a VA audiologic examination in November 1991, the veteran reported being exposed to noise on an aircraft carrier and in a ship engine room primarily during his early years of service. The report of this examination, which was within one year after the veteran was discharged from service, revealed that the veteran's hearing acuity in the right ear was 15 decibels at 500 hertz, 15 decibels at 1000 hertz, 20 decibels at 2000 hertz, 40 decibels at 3000 hertz and 35 decibels at 4000 hertz. In the left ear, hearing acuity was 15 decibels at 500 hertz, 15 decibels at 1000 hertz, 25 decibels at 2000 hertz, 40 decibels at 3000 hertz and 40 decibels at 4000 hertz. Speech discrimination was 100 percent correct in the right ear and 94 percent correct in the left ear. This demonstrates a hearing loss for VA purposes and the diagnosis was "bilateral mild moderate mainly high frequency sensorineural hearing loss consistent with noise- induced hearing loss". Although this clearly shows the presence of sensorineural type hearing loss within one year of the veteran's separation from service, this level of hearing disability does not correspond to a 10 percent compensable level under the provisions of 38 C.F.R. § 4.85, Part 4 Diagnostic Codes 6100-6110. Under these provisions, evaluations of bilateral defective hearing range from noncompensable to 100 percent based on organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests together with the average hearing threshold level as measured by a pure tone audiometry test in the frequencies of 1000, 2000, 3000 and 4000 cycles per second. The rating schedule establishes 11 auditory acuity levels designated from level I for essentially normal auditory acuity to level XI for profound deafness. The veteran's hearing acuity as demonstrated on the November 1991 examination corresponds to a level I or a noncompensable evaluation. Accordingly, the provisions in the law and regulations regarding the presumption of service connection for the veteran's hearing loss are not for application. However, service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. Presumptive periods are not intended to limit service connection to diseases so diagnosed when the evidence warrants direct service connection. The presumptive provisions of the statute and Department of Veterans Affairs regulations implementing them are intended as liberalizations applicable when the evidence would not warrant service connection without their aid. 38 C.F.R. § 3.303(d). The evidence in this case shows that the November 1985 audiogram referred to above, was accomplished following the veteran's exposure in noise duties. It was also noted that he had been previously issued large bilateral ear plugs. Thus, the record shows that the veteran was exposed to a high level of noise in service as he contends. In addition, he was diagnosed to have a sensorineural hearing loss that was consistent with noise induced hearing loss, within one year after his separation from service. Moreover, the evidence does not show that the veteran was exposed to excessive noise during the period following his discharge from service and the VA audiologic examination conducted 7 months later. Under these circumstances, the Board concludes that it is reasonable to relate the veteran's current bilateral hearing loss to service. Therefore, service connection for the veteran's hearing loss is warranted. With respect to the claim regarding the veteran's right hand, the Board observes that the veteran's service medical records show that on May 10, 1976, it was noted that his right wrist had been broken on May 7th, and that his cast needed to be checked. His cast was reinforced. On May 12, 1976, it was noted that the report of the x-ray taken on May 7th had been transcribed. The x-ray of the right hand and third phalanx taken on May 7th revealed no significant abnormalities. On May 19th, the cast was removed. In January 1978, the veteran was seen for complaints of pain along the right thumb to the wrist after he slipped and bent his arm under him. He reported two previous fractures of this hand. A short arm cast was applied for one week. Reports of the x-rays taken are not of record. In December 1983, the veteran complained of numbness and cramps of the right hand and arm. X- rays of the right wrist and hands were normal. It was recorded in medical records dated in June 1985, that the veteran occasionally experienced numbness in both hands. Although it does not appear that an examination which included an evaluation of the hands was conducted at the time of the veteran's separation from service, an examination for VA purposes was conducted in November 1991, approximately 7 months after the veteran was discharged from service. The report of that examination as it relates to the right hand revealed that the veteran complained of an aching whenever he gripped an object. Examination revealed normal dexterity and normal range of motion of the thumb and fingers. There was no area of palpable tenderness and the hand was neurovascularly intact. However, there was a decreased grip strength on the right. X-rays of the right hand were normal. The diagnosis was mild decrease in grip strength of the right hand secondary to previous fractures of the hand. The available records demonstrate right hand injuries in service. While there is a history of fractures during service, not all x- ray reports are available. However, in view of the complaints related to the right hand noted both in service and after service, as well as the presence of a right hand disability diagnosed at the time of the November 1991 VA examination, the Board concludes that a reasonable basis upon which to grant service connection for residuals of right hand injuries has been presented. Accordingly, service connection for this disability is warranted. With respect to the veteran's claim regarding an increased rating for a low back disorder, the threshold question to be answered is whether he has presented a well-grounded claim. If he has not, this appeal must fail. 38 U.S.C.A. § 5107; Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board finds this claim is not well grounded and there is, therefore, no further duty to assist the veteran in the development of that claim. The evidence shows that in the most recent examination conducted for VA purposes in August 1992, the examiner recorded that the veteran "adamantly denies chronic low back pain and states he is able to pursue all activities without any limitations." Examination revealed that the veteran had no postural abnormalities and strong musculature of the back. Forward flexion was to 90 degrees, backward extension was to 45 degrees, lateral flexion was to 45 degrees and rotation was to 40 degrees. These motions were accomplished without pain and palpation of the back showed no palpable tenderness to the lumbosacral spine or areas of discomfort. There was no objective evidence of pain. The diagnosis was normal back exam with no evidence of radicular symptoms. In view of the veteran's statement that he has no back disability and the normal findings shown on recent examination, the Board finds that the veteran has not met the initial burden of presenting evidence of a well grounded claim. Accordingly, this claim is dismissed. ORDER The veteran's claim of entitlement to service connection for hypertension is denied. Service connection for hearing loss is granted. Service connection for residuals of a right hand injury is granted. The veteran's claim for a compensable evaluation for chronic mechanical low back pain is dismissed. (continued Next Page) I. S. SHERMAN 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.