BVA9502482 DOCKET NO. 93-09 504 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUES 1. Entitlement to service connection for a chronic neck disorder. 2. Entitlement to service connection for a chronic back disorder. 3. Entitlement to service connection for a chronic lung disorder. 4. Entitlement to service connection for a chronic disorder manifested by painful joints. 5. Entitlement to service connection for essential hypertension. 6. Entitlement to an increased evaluation for human immunovirus (HIV) infection, currently evaluated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Alice A. Booher, Counsel INTRODUCTION The veteran had active service from October 1985 to November 1989. This appeal is, in part, from a rating action by the Department of Veterans Affairs (VA) Regional Office in Cleveland, Ohio in March 1990. The veteran provided testimony at a personal hearing at the Pittsburgh, Pennsylvania Regional Office (RO) in December 1991, after which the Hearing Officer granted an increased rating to 30 percent for the veteran's HIV infection and a 10 percent rating for his service-connected sebaceous cysts. After the RO effectuated that decision in May 1992, the veteran indicated that he intended to continue to pursue his appeal on the issue of an increased rating for HIV infection. CONTENTIONS OF APPELLANT ON APPEAL In substance, the veteran argues that he injured his back and neck in service, and that he now experiences symptoms involving lung, back, neck and joint problems as well as high blood pressure; and although he is unsure which of these symptoms, if any, may be related to his HIV infection, he argues that they developed in or as a result of service, and compensation is warranted. He also contends that his HIV infection causes disability greater than reflected in the current 30 percent rating. 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 veteran's claim for service connection for a chronic neck, back or lung disorder, a chronic disorder manifested by painful joints or essential hypertension, is not well-grounded. The Board finds that the preponderance of the evidence is against the veteran's claim for an increased evaluation for HIV infection in excess of the 30 percent now assigned. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the issues on appeal is of record. 2. The veteran has not submitted credible evidence and there is no medical opinion that he has a chronic neck, back or lung disorder, a chronic disorder manifested by painful joints, or essential hypertension that can be related to service. 3. Prior to March 24, 1992, the HIV infection was not manifested by exacerbations of a week or more, greater than 2 or 3 times a week or symptomatology productive of more than moderate impairment of health. 4. Currently, the veteran takes AZT for his HIV infection; he has episodes of no more than intermittent, nonbloody diarrhea, fatigue and he experienced weight loss in early 1992 but no pathological weight loss since has been reported. He has not had opportunistic infections; his T-4 count is almost 300 after having dipped to below 200 on one occasion, after which he had prophylactic Septra. 5. The veteran has not presented evidence tending to show that his HIV infection presents an unusual disability picture requiring frequent periods of hospitalization or resulting in marked interference with employment. CONCLUSIONS OF LAW 1. The veteran's claim for service connection for a chronic neck, chronic back and chronic lung disorder, a chronic disorder manifested by painful joints, and essential hypertension, is not well grounded. 38 U.S.C.A. 5107(a), 7105(d)(5) (West 1991). 2. The criteria for an increased evaluation for HIV infection in excess of 30 percent are not met. 38 U.S.C.A. §§ 1155, 5107(a) (West 1991); 38 C.F.R. Part 4, § 4.7, Diagnostic Code 6351 (1994) and Diagnostic Code 6352-6350 (1990). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Service Connection Service connection may be granted for disability which is the result of disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1131 (West 1991). 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, 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) (1994). 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. 38 C.F.R. § 3.303(d) (1994). Where a veteran served continuously for 90 days or more during a period of war or during peacetime service after December 3l, l946, and arthritis or essential arterial hypertension 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 (West 1991); 38 C.F.R. §§ 3.307, 3.309 (1994). History The service medical records do not reflect the presence of back or neck disability. Except for upper respiratory tract infections, there were no chest complaints. There was no reference to complaints of neck, back or joint problems. In service blood pressure readings were as follows: March 1986, 110/80; April 1986, 125/62 and 130/68; May 1986, 116/62, 110/71, and 115/68; March 1987, 124/70; October 1987, 140/72; July 1988, 164/83 (when seen regarding his HIV seropositive screening test), and 130/90 (when examination recorded chest clear to auscultation and percussion, but heart revealed a I-II/VI systolic ejection murmur in the left upper sternal border) and 130/92; November 1988, 132/78, and 120/70; January 1989, 135/73; March 1989, 131/78; April 1989, 129/82 and 146/90; May 1989, 155/69; and August 1989, 140/90. Since service, the veteran had been examined and evaluated regularly because of his HIV. He has not been found to have a chronic lung, back, neck or joint disorder, or essential hypertension. On VA examination in January 1990, blood pressure reading was 110/70; an electrocardiogram was described as borderline (sinus arrhythmia). Blood pressure reading in June 1992 was 139/78. Since service, no VA or military facility examination has demonstrated the presence of a chronic lung, back, neck or joint disorder, or essential hypertension. While a VA physician in February 1992 opined that joint complaints could be related to HIV infection, but that lung problems and hypertension were unrelated, the accompanying physical examination report did not confirm the presence of lung disease, hypertension or joint disability. The veteran has testified that there is a possibility that some of these disorders or symptoms thereof may, in time, be associable with his HIV. In that case, he is free to provide evidence to that effect and it will be considered accordingly. However, it remains that he does not now exhibit a chronic lung, neck, back or painful joint disorder including arthritis, nor does he now have essential hypertension, and he has not submitted either evidence or medical opinion in support of that contention. In Boeck v. Brown, 6 Vet.App. 14 (1993), the United States Court of Veterans Appeals (the Court) held that A veteran claiming entitlement to VA benefits has the burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that the claim is well grounded. See 38 U.S.C.A. § 5107, and see Tirpak v. Derwinski, 2 Vet. App. 609, 610-11 (1992). If a claim is not well grounded, the Board does not have jurisdiction to adjudicate that claim. See Grottveit v. Brown, 5 Vet. App. 9l, 93 (l993). The veteran is seeking service connection (separate and apart from his HIV infection) for chronic disorders of the neck, back, lungs, and multiple joints, and essential hypertension. This requires a finding that there is a current disability which has a definite relationship with a disease or some other manifestation of the disability during service. See Rabideau v. Derwinski, 2 Vet.App. 141, 143 (1992) and Cuevas v. Principi, 3 Vet. App. 542, 548 (1992). The veteran must submit or identify evidence that he has such disabilities which are the result of his service or service-connected disabilities or his claim is not well grounded. In light of Grivois v. Brown, 6 Vet.App. 136 (1994), purported adjudication of claims which are not well-grounded are a nullity in contemplation of law. The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). Since the veteran's claim is not well grounded and does not present a question of fact or law over which the Board has jurisdiction, the case is dismissed 38 U.S.C.A. §§ 5107(a), 7l05(d)(5). However, the Board notes that if the veteran were to submit competent medical evidence relating chronic neck, back, lung disorders, a chronic disorder manifested by painful joints, or essential hypertension to service, or to either of his service- connected disabilities, his claim would be well grounded. Robinette v. Brown, No. 93-985 (U.S. Vet. App. Oct. 21, 1994). Increased Evaluation In questions relating to claimed entitlement to increased compensation benefits, the Court has found that, within the confines of certain parameters, the allegation by a veteran that he has increased disability tends to establish a well-grounded claim. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is satisfied that the facts relevant to this issue on appeal have been properly developed and the statutory duty of the VA to assist the veteran in the development of his claim has been satisfied. 38 U.S.C.A. § 5107(a). 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. Part 4. Separate diagnostic codes identify the various disabilities. Recent changes were undertaken to revise the schedular evaluation of HIV infection. Prior to March 24, l992, the VA used three diagnostic codes for rating HIV-related illness: Diagnostic Code 6351 for acquired immunodeficiency syndrome (AIDS); Diagnostic Code 6352 for AIDS Related Complex; and Diagnostic Code 6353 for HIV seropositivity. Where a veteran was HIV seropositive, i.e., his or her body had produced antibodies as to the human immunodeficiency virus (HIV) as identified through laboratory testing only, without underlying disease, a noncompensable rating was assigned under Diagnostic Code 6353. Diagnostic Codes 6351 and 6352 were rated according to the severity of the "underlying diseases", i.e., the constitutional or neurologic disease, opportunistic infection, etc., associated with HIV-related illnesses. As for any other disorder for which separate diagnostic criteria were not provided, HIV-related illness was rated by analogy under 38 C.F.R. § 4.20 (1994). AIDS Related Complex (ARC) was evaluated between zero and 100 percent using an evaluation for the analogous diagnostic code selected. Chronic lupus erythematosus was assigned a 60 percent rating when chronic, with frequent exacerbations and multiple joint and organ manifestations productive of moderately severe impairment of health. With exacerbations of a week or more 2 or 3 times a year, or symptomatology productive of moderate impairment of health, a 30 percent rating was assigned. 38 C.F.R. 4.88a, Diagnostic Code 6352-6350, effective prior to March 24, 1992. In the fall of 1991, the VA undertook to revise the provisions available for rating disabilities due to HIV-related illnesses. The VA proposed to rate HIV-related illnesses under a single Diagnostic Code 6351, and 38 C.F.R. § 4.88a (1994) was amended accordingly to remove codes 6352 and 6353. A review of the RO's consideration and recent reevaluation for the veteran's HIV-related disease indicates that he has been appropriately considered under the currently applicable provisions of Diagnostic Code 6351. These provisions specifically state that when asymptomatic, following the initial diagnosis of HIV infection, with or without lymphadenopathy or decreased T4 count, a zero percent evaluation is assignable. Following the development of definite medical symptoms, T4 cell count less than 500, and on approved medication(s), or with evidence of depression or memory loss with employment limitations, a 10 percent rating is assignable. When there are recurrent constitutional symptoms, intermittent diarrhea, and on approved medication(s), or as a minimum rating with T4 cell counts less than 200, or hairy cell leukoplakia or oral candidiasis, a 30 percent evaluation is warranted. A 60 percent evaluation is assignable when there are refractory constitutional symptoms, diarrhea, and pathological weight loss, or as a minimum rating following development of AIDS-related opportunistic infection or neoplasm. A l00 percent evaluation is warranted for AIDS with recurrent opportunistic infections or with secondary diseases afflicting multiple body systems, or HIV-related illness with debility and progressive weight loss, without remission, or few or brief remissions. Notes are provided within the schedular criteria to the effect that the term "approved medication(s)" includes medications prescribed as a part of a research protocol at an accredited medical institution; and that central nervous system manifestations, opportunistic infections, and neoplasms may also be rated separately under appropriate diagnostic codes if a higher overall evaluation results, but not in combination with the percentages otherwise assignable thereunder. 38 C.F.R. Part 4, Diagnostic Code 6351, effective March 24, 1992. In any evaluation, 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In exceptional cases where the schedular evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average impairment of earning capacity due exclusively to the service- connected disability or disabilities may be approved provided the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (l994). The Board must also consider all facets of the disorder including alternative schedular provisions which may be applicable, or with respect to the history of the disorder pursuant to Schafrath v. Derwinski, 1 Vet.App. 589 (1991). History A Medical Board report, dated in September 1989, reflects that the veteran was noted to have had HIV associated syndrome since 1988 with HTLV III positive by ELISA and Western Blot; he had total anergy without involuntary weight loss greater than 10 percent baseline since March 1989 (185 to 160 pounds), compatible with Walter Reed Class 1B, and a history of herpes zoster in 1985. Clinically, he was noted to have had occasional severe aphthous ulcers and some loose stools. T-4 helper cell count had gone from 913 the prior year to 484 and then back up to 583 on that examination. On VA examination in 1990, the veteran gave a history of prior weight loss, herpes zoster and cold sores in his mouth, and said he had had a few night sweats, diarrhea and a few lymph nodes in the neck. Currently, he reported shortness of breath 4-5 times per year, more common in the summer when the pollen count was high. He gave a history of neck and back pain after a motor vehicle accident in 1988 which he said "went away", and he was without current problems. He reported a history of rapid heart beats, first felt in 1989, and since then, he had had a few episodes of mid sternal chest pains. He said a mild murmur had been previously detected. He complained of constant right wrist pain for 2 years but no finger problems. The subcutaneous cysts were bothersome for which a separate examination was conducted. In general, he described himself as feeling "fairly normal" now. He reportedly weighed 172 pounds and was described as well built and nourished. A narrative summary from the medical facility at Lackland Air Force Base (AFB) dated in March 1991 is of record, showing the veteran's HIV associated syndrome to be consistent with Walter Reed State 3-B. He reported that he had had no new weight loss. He denied chronic sweats, fever, diarrhea or fatigue. His T-4 count was 275. He responded to 2 of 4 cutaneous antigens with a negative positive protein derivative (PPD) conversion test. He was well developed and weighed 171 pounds. Psychiatric evaluations were normal. The veteran was given a prescription of AZT to begin dosage of 100 mg. 5 times per day. He was also told to take an annual flu vaccination and Pneumovax. He was also told to monitor his T-4 count and when it went below 200 or remained in the low 200's persistently, he should begin anti- Pneumocystis prophylactic therapy (i.e. Pentamidine or Bactrim). Outpatient treatment records in February 1992 show that he was tolerating AZT well. He complained of joint aching in his knee and wrist over the past 3 years without episodes of frank arthritis. He had complaints of tingling in the tips of his hands and toes, and nonbloody diarrhea for several months but with good appetite. He reported losing 17 pounds in the past 4-6 weeks. Examination showed no adenopathy or thrush. There were no abnormal lung or heart findings, and no arthritis of any joints including heat or redness. Except for the weight loss and fatigue, there were no significant current symptoms. A neurological evaluation in June 1992 for complaints of multiple joint aches showed no clinical evidence of nervous system involvement. On laboratory testing, he was partially anergic and PPD was negative. A report of a generalized service department evaluation in September 1992 is also of record. It was noted that his T-4 cells were 312 in March 1992. Because of one T-4 count below 200, he had been started on Septra prophylaxis for Pneumocystis carinii pneumonia, as well as his ongoing AZT therapy. Examination showed a left posterior cervical lymph node (1 x 1 cm.). He weighed 173 pounds. He was told to follow-up on a slight low white blood count. His T-4 count was 293 and he was described as being Walter Reed Class IV-B. In summary, the veteran's T-4 count has in recent period of time, dropped below 200 and he was started on prophylactic medication for Pneumocystis carinii pneumonia; it has since risen to almost 300. He reportedly had had recurrent diarrhea until he lost 17 pounds in early 1992. However, his weight, as recorded on evaluations from 1990 to 1992, has remained at about 170 pounds and he remains well nourished. He continues to tolerate AZT well. There is no current evidence in the file of thrush or opportunistic infections (although examiners have noted that he will be followed closely for signs of that), he has partial anergy, and only minimal cervical lymph node swelling was found on last examination. The Board notes that the veteran's T-4 count did deteriorate at one point to below 200, and he was given Septra as a prophylaxis against a specific opportunistic infection (Pneumocystis), but there is no indication that he had or has since developed that or other opportunistic infections. In view of his taking AZT, in the absence of evidence of opportunistic infections, and with no more than intermittent diarrhea and no pathological weight loss since early 1990, the Board finds that an evaluation in excess of 30 percent is not warranted either before or after March 24, 1992. In this regard, however, the veteran should know that if his HIV infection related symptoms deteriorate in the future, he is free to offer objective evidence at that time to reopen his claim. At this time, however, neither do there appear to be alternatively applicable schedular provisions which would provide increased compensation, nor does the veteran more nearly approximate the criteria for the higher evaluation pursuant to 38 C.F.R. § 4.7. It is noteworthy that the impact of the diagnosed HIV infection on his employment is one factor which is taken into consideration in assigning an evaluation. However, the veteran has not submitted evidence tending to show that his HIV infection results in an unusual disability picture, with such related factors as marked interference with work or repeated hospitalizations, as to warrant consideration on an extraschedular basis. 38 C.F.R. § 3.321(b)(1). ORDER The claim for service connection for a chronic neck disorder, a chronic back disorder, a chronic lung disorder, a chronic disorder manifested by painful joints, and essential hypertension is dismissed. An increased evaluation for HIV infection in excess of 30 percent is denied. THOMAS J. DANNAHER 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.