BVA9505718 DOCKET NO. 93-11 021 ) DATE ) ) On appeal from the decision of the Department of Veterans Affairs Regional Office in Muskogee, Oklahoma THE ISSUES 1. Entitlement to an increased evaluation for hepatitis, currently evaluated as 10 percent disabling. 2. Entitlement to service connection for hypertension as secondary to service-connected hepatitis. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The appellant ATTORNEY FOR THE BOARD Nancy R. Kegerreis, Associate Counsel INTRODUCTION The veteran served on active duty from January 1962 to January 1965. This matter comes before the Board of Veterans' Appeals (Board) from an August 1991 rating decision by the Department of Veterans' Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma, which denied an increased evaluation for hepatitis, and from a September 1992 rating decision which denied service connection for hypertension as secondary to hepatitis. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends, essentially, that his hepatitis has become worse, causing his stomach to be continuously upset and requiring him to continue with dieting and medication. He alleges that it also has caused him to be overweight and to have high blood pressure. 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 veteran's claim for an increased evaluation for hepatitis. It is further the decision of the Board that the appellant has not met the initial burden of submitting evidence sufficient to justify a belief by a fair and impartial individual that his claim for secondary service connection for hypertension is well grounded, and that, therefore, this claim must be dismissed. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the appeal has been obtained. 2. The veteran's hepatitis currently is manifested by questionable liver enlargement, a mild tenderness in the right upper quadrant, and intermittent mild gastrointestinal disturbances, reflective of mild impairment. 3. The veteran has hypertension, which has not been shown to be related to his hepatitis. CONCLUSIONS OF LAW 1. The schedular criteria for a disability rating greater than 10 percent for hepatitis have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.1-4.14, and 4.114, Diagnostic Code 7345 (1994). 2. The veteran has not submitted evidence of a well-grounded claim for secondary service connection for hypertension; the claim must be dismissed. 38 U.S.C.A. §§ 1110, 5107(a), 7105(d)(5) (West 1991); 38 C.F.R. § 3.303 (1994). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Increased Evaluation for Hepatitis The Board notes that the veteran's claim for an increased evaluation is well grounded within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). That is, the Board finds that he has presented a claim which is plausible. The Board also is satisfied that all relevant and available facts have been properly developed. No further assistance to the veteran is required to comply with the duty to assist mandated by 38 U.S.C.A. § 5107(a). The veteran initially was granted service connection for hepatitis in March 1967, and assigned an evaluation of 10 percent, effective from December 1966. In January 1972, the RO terminated payments because the veteran had failed to report for a medical examination. The veteran subsequently filed a claim for an increase, but the RO denied a compensable evaluation in April 1990. This decision was confirmed and continued in December 1990. In January 1991, the RO allowed an increased evaluation to 10 percent, effective from September 1990, implementing a hearing officer's decision. This decision was confirmed and continued in August 1991. An increased evaluation was denied in March 1992 and again in a September 1992 rating decision, in which service connection for hypertension was also denied. Although the Board must consider the whole record, see 38 C.F.R. § 4.2 (1993), those documents created in proximity to the recent claim are the most probative in determining the current extent of impairment. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994). In this regard, the Board principally will consider evidence received subsequent to the January 1991 rating decision implementing the grant of a 10 percent evaluation. A September 1990 abdominal echogram revealed a mildly enlarged liver of increased echogenicity. These findings were noted to be consistent with fatty infiltration of the liver. The gall bladder and gall bladder wall were within normal limits with no evidence of biliary duct dilthetation. The spleen and right kidney were normal. The diagnostic impression was mild hepatosplenomegaly and hyperechoic liver parenchyma consistent with fatty infiltrate. Outpatient clinical reports, dating from January 1991 to June 1991 indicated treatment for gastrointestinal symptoms, a chronic cough, and insomnia. A January 1991 report noted that the veteran had a history of alcoholism and narcotic dependence, and antisocial personality, but was then being seen for evaluation of liver function. The veteran related a history of intermittent right upper quadrant pain, occasionally radiating to the left upper quadrant or to the lower back. The diagnostic impression was gastritis and duodenitis. In January 1992, the veteran was admitted to a VA hospital with diagnoses of hepatitis C and hypertension. A reported medical history revealed that the veteran had been hospitalized in 1963 with infectious hepatitis with jaundice and had had a recurrence in 1967 or 1968. His last hospital admission had been in December 1991 for hepatitis C, when a liver biopsy was done. His past medical history was significant for chronic active hepatitis and hypertension. Intravenous drug abuse also was noted, with the last use reportedly in July of 1981. There was a question of possible alcoholic liver disease. On physical examination the veteran was found to be well- developed, obese, and in no acute distress. The abdomen was protuberant, soft, and nontender. The liver was not palpable. No abnormalities were noted. It was reported that the gastrointestinal service saw him on the date of admission and began him on Interferon intramuscularly. He was later taught to give self-injections subcutaneously, and was placed on a diet with no added salt. Outpatient clinical notes from the Nutrition Clinic, dating from January 1991 through February 1992, revealed that the veteran had recently received a diagnosis of Type II diabetes mellitus and that he had seen a dietician for dietary guidance. He later reported that he had been successful with his diet and had lost 5 3/4 pounds. The report of a VA disability evaluation examination in March 1992 indicated that the veteran had been taking Interferon for hepatitis C. He reported that he had good and bad days, although he sometimes felt lethargic. He was on a diabetic diet with a 13 pound weight loss, and would be attending diabetic education classes. A physical examination was generally negative, although there was some redness around the Interferon injection sites, and mild right upper quadrant tenderness with voluntary guarding. Relative to the digestive system, the veteran was found to be obese and mildly tender in the right upper quadrant of the abdomen. There was a questionable mass in this area, but the examiner could not define it. There was some guarding. The examiner thought there was questionable enlargement of the liver. The diagnoses were hepatitis C; hypertension, well controlled; and questionable diabetes. A VA examination in August 1992 noted that although the veteran had nearly completed a six month course on Interferon, liver function tests had never completely normalized. The veteran was not working at that time. He complained of shortness of breath after walking one block and that he became a little weak at times. He walked about a mile a day. He had no specific abdominal discomfort or food intolerance, no nausea or vomiting, and no specific pain anorexia. In general, he was noted to be doing pretty well. The diagnosis was hypertension and hepatitis. Disability evaluations are based upon the average impairment of earning capacity as contemplated by a schedule for rating disabilities. See 38 U.S.C.A. § 1155 (West 1991). Each disability be evaluated in light of the veteran's medical and employment history, and from the point of view of the veteran's working or seeking work. See 38 C.F.R. §§ 4.1, 4.2 (1994); Schafrath v. Derwinski, 1 Vet.App. 589, 592 (1991). The veteran currently is evaluated as 10 percent disabled under 38 C.F.R. § 4.114, Diagnostic Code 7345 (1994), relative infectious hepatitis. For a 100 percent evaluation, there must be marked liver damage manifested by liver function test and marked gastrointestinal symptoms, or with episodes of several weeks duration aggregating three or more a year and accompanied by disabling symptoms requiring rest therapy. Moderate liver damage, manifested by recurrent episodes of gastrointestinal disturbance, fatigue, and mental depression, warrants a 60 percent evaluation. If there is minimal liver damage with associated fatigue, anxiety, and gastrointestinal disturbance of lesser degree and frequency, but necessitating dietary restriction or other therapeutic measures, a 30 percent evaluation is assigned. Demonstrable liver damage with mild gastrointestinal disturbance warrants a 10 percent evaluation. Under Diagnostic Code 7345, to obtain a 30 percent evaluation, the veteran must show minimal liver damage, together with symptomatology requiring dietary restriction or other therapeutic measures. In September 1990 the veteran was shown to have a mildly enlarged liver with fatty infiltrate by echogram, and in March 1992, the liver was found to be questionably enlarged. During 1991, the veteran had been treated for gastritis and duodenitis and was mildly tender in the right upper quadrant. Although he still had mild right upper quandrant tenderness on VA examination in March 1992, during the August 1992 VA examination, the veteran reported no specific abdominal discomfort or food intolerance. The veteran was placed on a dietary restriction of no added salt in January 1992. Although which tthe diet was for possible Type II diabetes mellitus, obesity, or both. Finally, although the veteran has complained of shortness of breath and weakness on recent VA examination, those symptoms have not specifically been attributed to his service-connected condition. Based upon this evidence, the Board finds that the veteran's symptomatology clearly attributable to his hepatitis, questionable enlargement of the liver, mild tenderness in the right upper quadrant, and intermittent mild gastrointestinal disturbances, more nearly approximates the criteria for the currently assigned l0 percent evaluation. See 38 C.F.R. § 4.7 (1994). The Board also has considered whether an increased rating on an extra-schedular basis is warranted for the veteran's hepatitis. It finds, however, that this disability does not present such an exceptional or unusual picture, with such related factors as marked interference with employment or frequent periods of hospitalization, so as to render impractical the application of the regular schedular standards and to warrant the assignment of an increased extra-schedular evaluation. See 38 C.F.R. § 3.321(b)(1) (1994). II. Service Connection for Hypertension The threshold question to be answered as to this claim is whether the veteran has presented a well-grounded claim within the meaning of 38 U.S.C.A. § 5107 (West 1991). That is, the claim must be plausible and capable of substantiation. If he has not, there is no duty to assist him in the development of the claim, and his appeal must fail. See 38 U.S.C.A. § 5107(a) (West 1991); Murphy v. Derwinski, 1 Vet.App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet.App. 49, 55-56 (1990). A claim which is not well grounded must be dismissed. See 38 U.S.C.A. § 7105(d)(5); Boeck v. Brown, 6 Vet.App. 14, 17 (1993). The veteran claims that his hepatitis has caused him to be overweight and to have high blood pressure; however, there is no medical evidence of record which supports the veteran's contentions. Clinical records in March 1991 contain blood pressure readings of 160/120, 188/112, 130/80 before the initiation of medication and 152/106, and 150/100 one week later. During his January 1992 hospital admission, however, his blood pressure appeared to be well controlled, as physical examination noted that his vital signs were within normal limits. Blood pressure readings in January and February 1992 were 120/90 and 120/70, and the records did not indicate any specific treatment for hypertension. Examination in March 1992 noted readings of 118/84 and 102/80 (sitting) and 110/76 (standing). The examiner stated that the hypertension appeared to be well-controlled. The August 1992 examination noted readings of 124/82 and 134/94 (sitting) and 132/92 (standing), and there was no indication in the record that the blood pressure was problematic. The examiner stated that he did not believe there was any connection between the veteran's hepatitis and hypertension and that, in his opinion, the hepatitis did not cause the high blood pressure. The Board finds that the veteran has provided no evidence whatsoever to support his contention of a causal relationship between his hepatitis and his hypertension; he appears to assume that because the two conditions coexist, one must have caused the other. While a lay person may, in some instances, be able to offer probative evidence as to the physical manifestations of a disorder, only someone with medical knowledge and experience is qualified to testify as to causation of a disability. Thus, the veteran is not capable of providing competent evidence as to the etiology of his hypertension. See Espiritu v. Derwinski, 2 Vet.App. 492, 495 (1992). In the absence of competent evidence in support of the veteran's contention as to an alleged relationship between service-connected hepatitis and hypertension, the veteran's claim is not plausible and must be dismissed. See 38 U.S.C.A. § 7105(d)(5); Boeck, 6 Vet.App. at 17; Tirpak v. Derwinski, 2 Vet.App. 609, 611 (1992). ORDER An increased evaluation for hepatitis is denied. The claim for service connection for hypertension as secondary to service-connected hepatitis is dismissed. JACQUELINE E. MONROE 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.