BVA9503031 DOCKET NO. 92-52 645 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in San Francisco, California THE ISSUES 1. Entitlement to an increased evaluation for hypertension, currently evaluated as 10 percent disabling. 2. Entitlement to an increased (compensable) evaluation for inactive tuberculosis. ATTORNEY FOR THE BOARD L. Jennifer Lane, Associate Counsel INTRODUCTION The veteran had active service from July 1969 to March 1973. The appeal arises from an August 1991 rating decision in which the Regional Office (RO) denied increased evaluations for hypertension and inactive tuberculosis. In June 1992, the Board denied the appellant's appeal of the denial of increased evaluations for his service-connected hypertension and inactive tuberculosis. The appellant appealed that decision to the United States Court of Veterans Appeals (Court). In December 1992, the Court remanded the matter to the Board for further proceedings. The case was remanded by the Board in June 1993. The case is now ready for further proceedings. Since the veteran filed the claims currently on appeal, he has attempted to raise a number of additional claims, including entitlement to service connection for various disorders and entitlement to a total disability rating for compensation purposes based on individual unemployability. The RO has requested that the veteran submit evidence in support of some of these claims. However, it appears that the RO has not addressed the claims in a rating decision. Inasmuch as the additional issues have not been developed for appellate consideration on this appeal, and are not inextricably intertwined with the issue on appeal, the matter is referred to the RO for appropriate action, to include clarification as to the specific claims the veteran wishes to pursue. Holland v. Brown, No. 92-728 (U.S. Vet. App. May 23, 1994). CONTENTIONS OF APPELLANT ON APPEAL The veteran essentially contends that increased evaluations are warranted for hypertension and inactive tuberculosis. The veteran also asserts that an abnormal electrocardiogram associated with a VA examination in June 1991 is significant. 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 preponderance of the evidence is against the claims for increased evaluations for hypertension and inactive tuberculosis. FINDINGS OF FACT 1. All relevant information necessary for an equitable disposition of the appeal has been developed. 2. The veteran's diastolic pressure which is controlled by medication is predominantly less than 110. 3. The veteran's tuberculosis remains inactive and is productive of no more than minimal symptoms. 4. Neither the veteran's hypertension nor his inactive tuberculosis presents such an unusual or exceptional disability picture so as to render impractical the application of the regular schedular standards. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, Part 4, Diagnostic Code 7101 (1993). 2. The criteria for a compensable evaluation for inactive tuberculosis are not met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.7, 4.10, 4.88b Part 4, Diagnostic Code 6731, 6732 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board finds that the claims for entitlement to increased evaluations for hypertension and inactive tuberculosis are "well- grounded" within the meaning of 38 U.S.C.A. § 5107, that is, the claims are plausible, meritorious on their own or capable of substantiation. Murphy v. Derwinski, 1 Vet.App. 78 (1990). The Board further finds that the Department of Veterans Affairs (VA) has met its duty to assist in developing the facts pertinent to the veteran's claims. 38 U.S.C.A. § 5107. The Board notes that the veteran has submitted several written statements in which he refers to documents considered by the VA as "fakes" or "frauds" along with various copies of records and documents. Review of his statements and the records and documents discloses that most of the veteran's statements pertain to issues other than those currently on appeal and that the copies of any pertinent documents, such as recent medical records regarding treatment for or examination of hypertension and inactive tuberculosis, were already of record and have been considered by the Board. Disability ratings are based on schedular requirements which reflect the average impairment of earning capacity occasioned by the current state of a disorder. 38 U.S.C.A. § 1155. Separate rating codes identify the various disabilities. 38 C.F.R. Part 4. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. An evaluation of the level of disability present must also include consideration of the functional impairment of the veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. Also, 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. I. Hypertension The history of the veteran's hypertension may be briefly described. Within a year after the veteran's separation from service, asymptomatic, mild, essential hyper-tension was diagnosed at a July 1973 VA examination. In a rating decision dated in September 1973, the RO granted service connection for mild arterial hypertension and assigned a noncompensable evaluation for that disability under the provisions of Diagnostic Code 7101 of the VA Schedule for Rating Disabilities, effective in March 1973. 38 C.F.R. Part 4. At a November 1979 VA examination, the veteran reported that he was not taking medication for his hypertension. Blood pressure was 150/104. Under Diagnostic Code 7101, a 10 percent evaluation is warranted for hypertensive vascular disease (essential arterial hypertension) when diastolic pressure is predominantly 100 or more or when continuous medication is shown necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more; and a 20 percent evaluation is warranted when diastolic pressure is predominantly 110 or more with definite symptoms. 38 C.F.R. Part 4. VA outpatient treatment records dated in 1990 show that the veteran's diastolic blood pressure was predominantly less that 100. Only one VA outpatient treatment record dated in April 1990 indicates that the veteran's diastolic pressure was over 110. According to that record the veteran's blood pressure was 140/100, 152/104 and 166/140. However, the latter blood pressure was crossed out. Also, a VA outpatient treatment record dated in May 1990 shows that the veteran complained of proximal nocturnal dyspnea, dyspnea and dizziness and includes an impression of hypertension. The veteran's blood pressure was taken three times at a VA examination in January 1991, and the diastolic blood pressure was less than 100 each time. In a February 1991 rating decision, the RO assigned a 10 percent evaluation for hypertension, effective in April 1990. The most probative evidence in evaluating the severity of the veteran's hypertension is recent medical evidence, including private treatment records dated from 1991 to 1994 and the report of VA examination performed in June 1991. Significantly, the private treatment records show that the veteran's diastolic blood pressure was predominantly less that 100. Furthermore, the blood pressure readings at the VA examination were 148/97, 161/95 and 153/97. Additionally, the veteran reported having resumed the use of medication for hypertension in 1990 after many years. Also, according to the history portion of the examination report, the veteran was asymptomatic for his heart. An abnormal electrocardiogram was also associated with the June 1991 VA examination, and the veteran appears to believe said electrocardiogram supports his claim for entitlement to an increased evaluation for hypertension. However, the criteria under which hypertension is evaluated does not include an abnormal electrocardiogram. 38 C.F.R. Part 4, Diagnostic Code 7101. Moreover, the overwhelming preponderance of the medical evidence shows that the veteran's hypertension is well-controlled on medication and that diastolic pressure is predominantly less than 100, rather than predominantly more than 110 with definite symptoms. 38 C.F.R. Part 4. Thus, the probative evidence shows that the criteria for a 10 percent evaluation under Diagnostic Code 7101 most closely reflect the severity of the veteran's hypertension. Therefore, a schedular evaluation in excess of 10 percent for that disability is not warranted. 38 C.F.R. § 4.7. II. Inactive Tuberculosis The history of the veteran's inactive tuberculosis may also be briefly described. The service medical records include an impression of pleurisy in October 1971 and diagnosis of pleural effusion in November 1971. According to a February 1972 service medical record, the veteran was being treated for presumed primary tuberculosis. An August 1972 record includes an impression of inactive primary tuberculosis pleurisy. In July 1972, the veteran complained of chest pain, worse on deep breathing, and in October 1972, he complained of shortness of breath. After service, minimal, inactive pulmonary tuberculosis, manifested by pleural effusion (which had cleared) was diagnosed at the July 1973 VA examination. In the September 1973 rating decision dated, the RO granted service connection for inactive pulmonary tuberculosis, manifested by pleural effusion, and assigned a noncompensable evaluation for that disability under the provisions of Diagnostic Code 6732 of the VA Schedule for Rating Disabilities, effective in March 1973. 38 C.F.R. Part 4. The diagnoses at the November 1979 VA examination included pulmonary tuberculosis, arrested. Diagnostic Code 6732 provides for consideration of the provisions of 38 C.F.R. §§ 4.88b and 4.89 for inactive tuberculous pleurisy. 38 C.F.R. Part 4. The provisions of 38 C.F.R. § 4.88b apply when the veteran initially became entitled to compensation for nonpulmonary tuberculosis after August 19, 1968. Under 38 C.F.R. § 4.88b, following a total rating for the 1 year period after date of inactivity, the schedular evaluation for residuals of nonpulmonary tuberculosis, i.e., ankylosis, surgical removal of a part, etc., will be assigned under the appropriate diagnostic code for the residual preceded by the diagnostic code for tuberculosis of the body part affected. However, the veteran has been diagnosed with inactive pulmonary tuberculosis. Therefore, the Board has evaluated that disability under the more appropriate provisions of Diagnostic Code 6731. 38 C.F.R. Part 4. Under Diagnostic Code 6731, a noncompensable evaluation is warranted for chronic inactive pulmonary tuberculosis when there are healed lesions, minimal or no symptoms, and a 10 percent evaluation is warranted when the veteran is definitely symptomatic with pulmonary fibrosis and moderate dyspnea on extended exertion. 38 C.F.R. Part 4. Medical evidence dated in the last few years shows that the veteran continues to complain of respiratory related symptoms. A VA outpatient treatment record dated in May 1990 shows that the veteran complained of shortness of breath and vague chest pain. Also, according to the report of the VA examination in January 1991, the veteran had shortness of breath, coughed daily, and expectorated about 5 to 10 centimeters of grayish sputum. It was also noted that the veteran had constant chest pain. The diagnosis was pulmonary tuberculosis - negative chest X-ray. A private medical report of a cardiopulmonary exercise test performed in February 1991 shows that the test was stopped due to shortness of breath. However, the examiner's conclusion was that there was no evidence of respiratory limitation in exercise performance. Significantly, the examining physician noted that the reduction in total work was probably related to submaximal effort and deconditioning. According to a polysomnogram report dated in May 1991 from a private medical facility, the veteran was tested because of restless sleep, snoring, observed apnea, stress, depression, mild diabetes and hypertension. Under "IMPRESSION", it was reported that the nocturnal ambulatory polysomnogram was abnormal and that there was moderately severe sleep apnea, primarily obstructive, with moderately severe O2 desaturations recorded. In a letter dated in July 1991, John Tysell Jr., MD, a private physician related that an abnormal sleep test had suggested that the veteran had sleep apnea which was obstructive and caused his oxygen levels to go down at night. Significantly, neither the May 1991 report nor Dr. Tysell's letter includes any reference to tuberculosis. Moreover, Fredrick Nachtwey, M.D., another private physician who diagnosed obstructive sleep apnea, included "history of old [tuberculosis]" as one of the veteran's diagnoses. At the June 1991 VA examination, the veteran complained of shortness of breath and only being able to walk two level blocks and one flight of stairs before becoming dyspneic. The veteran also reported having a nonproductive cough, wheezing particularly at night, three to four pillow orthopnea and nocturia times one to two. He related that he used an inhaler for his pulmonary symptoms and Nitroglycerin for associated chest pain. Examination revealed two centimeters of chest expansion. There was also good diaphragm excursion, and auscultation revealed good air exchange without wheezes, rales or rhonchi. Thus, while the veteran reported subjective complaints, the majority of clinical findings were described as good or negative. Furthermore, pulmonary function tests which were ordered to help assess the degree of restriction and obstruction produced by the veteran's pulmonary disability were normal. The Board also notes that chest X-rays were negative. Private medical records dated after the June 1991 VA examination show that the veteran continued to complain of difficulty breathing and chest pain. A private medical record dated in September 1992 includes an assessment of atypical chest pain, and examination of the chest at that time revealed rales. However, the rales were described as few. According to a record dated in September 1993, the veteran's shortness of breath occurred day or night and sitting or standing and was worse when walking up stairs or 30 steps on a flat surface. The veteran related that he used to experience shortness of breath all the time but only on and off since 1990. The impression was intermittent episodic shortness of breath for three years. Also, the medical record suggests that there were many possibilities for the cause of the shortness of breath and includes an impression of "[rule out] pulmonary". Another private medical record dated in April 1994 shows that the veteran complained of paroxysmal nocturnal dyspnea, orthopnea and shortness of breath with exertion. While recent medical evidence shows some pulmonary abnormalities, the evidence suggesting pulmonary impairment consists primarily of the veteran's subjective complaints. Furthermore, there is no probative evidence of pulmonary fibrosis and moderate dyspnea on extended exertion. 38 C.F.R. Part 4, Diagnostic Code 6731. Also, medical evidence has suggested that the veteran's primary complaint, shortness of breath, may be caused by a disorder other than pulmonary tuberculosis. Therefore, the Board finds that a noncompensable evaluation under Diagnostic Code 6731 is warranted for the veteran's pulmonary tuberculosis as the criteria for such an evaluation most closely approximate the severity of that disability. 38 C.F.R. § 4.7. The Board has also considered the various other provisions of 38 C.F.R. Parts 3 and 4 in accordance with Schafrath v. Derwinski, 1 Vet.App. 589 (1991), but finds that they do not provide a basis upon which to grant evaluations higher than those already assigned for hypertension and inactive tuberculosis. For example, when 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, an extra-schedular evaluation is warranted. 38 C.F.R. § 3.321(b). However, there is no probative evidence that either the veteran's hypertension or inactive tuberculosis has caused marked interference with employment. As discussed above, the veteran's hypertension is well-controlled. Also, a test in February 1991 revealed no evidence of respiratory limitation in exercise performance, and pulmonary function tests in June 1991 were normal with no restriction or obstruction noted. Moreover, there is no probative evidence that either disability has required frequent hospitalizations. Therefore, an extra-schedular evaluation for either of those disabilities is not warranted. 38 C.F.R. § 3.321(b). Finally, when after consideration of all evidence and material of record, there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving such matter shall be given to the claimant. 38 U.S.C.A. § 5107(b). However, the preponderance of the evidence is against the veteran's claims for entitlement to increased evaluations for hypertension and inactive tuberculosis. Therefore, the resolution of doubt is not necessary, and those claims are denied. ORDER Increased evaluations for hypertension and inactive tuberculosis are denied. LAWRENCE M. SULLIVAN 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.