Citation Nr: 0001345 Decision Date: 01/14/00 Archive Date: 01/27/00 DOCKET NO. 96-32 366 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUES 1. Entitlement to service connection for a low back disorder. 2. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Wm. Kenan Torrans, Associate Counsel INTRODUCTION The veteran served on active duty from November 1982 to May 1986. This matter arose from rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio, which denied the veteran's claim to reopen a previously denied claim for service connection for a low back disorder and which denied his claim for entitlement to an evaluation in excess of 10 percent for hypertension. By a remand decision of January 1998, the Board of Veterans' Appeals (Board) determined that new and material evidence had been submitted to reopen a previously denied claim for service connection for a low back disorder, and referred the two issues on appeal here back to the RO for further development. The requested development having been completed, the case has been returned to the Board for resolution. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable resolution of the issues on appeal has been obtained by the RO. 2. The veteran has been diagnosed as having a mild disc protrusion at L5-S1. 3. The record on appeal contains competent medical evidence of a nexus between the veteran's currently diagnosed low back disorder and his active service. 4. The veteran's hypertension is objectively shown to be productive of not more than diastolic pressure predominantly 100 or more, but not consistently or predominantly 110 or more. In addition, his hypertension is not objectively shown to be productive of more than a diastolic pressure reading of predominantly more than 100, or systolic pressure predominantly 160 or more. The veteran's hypertension is shown to require continuous medication for control. CONCLUSIONS OF LAW 1. The veteran's low back disorder was incurred in service. 38 U.S.C.A. §§ 1131, 5107 (West 1991); 38 C.F.R. §§ 3.102, 3.303, 3.304 (1999). 2. The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321(b)(1), 4.1-4.14, 4.104, Diagnostic Code 7101 (1999); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Service Connection for a Low Back Disorder As a preliminary matter, the Board finds that the veteran's claim for service connection for a low back disorder is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a) (West 1991). See Murphy v. Derwinski, 1 Vet. App. 78, 81 (1990); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). That is, the Board finds that the veteran has presented a claim that is not implausible when his contentions and the evidence of record are viewed in the light most favorable to that claim. The Board is also satisfied that all relevant facts pertaining to this issue have been properly and sufficiently developed. Service connection may be granted for a disability resulting from an injury or disease incurred in or aggravated coincident to service. See 38 U.S.C.A. § 1131 (West 1991); 38 C.F.R. § 3.303 (1999). In addition, if a condition noted during service is not shown to have been chronic, then generally, a showing of continuity of symptomatology after service is required for service connection. See 38 C.F.R. § 3.303(b) (1999). Regulations also provide that 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. Service connection is warranted for a disability if the evidence supports the claim or is in relative equipoise. If the preponderance of the evidence is against the claim, the claim must be denied. See 38 U.S.C.A. § 5107(b) (West 1991); Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). The veteran's service medical records, to include the report of his service separation examination are completely negative for any complaint or indication of a low back disorder. Likewise, the report of a VA rating examination conducted in October 1986, following shortly after the veteran's discharge from service is also negative for any complaints or other indications of a low back disorder. The veteran first filed a claim for service connection for a low back disorder in November 1988. This claim was denied by a rating decision of December 1988 which found that given the complete lack of any evidence including complaints of or treatment for a low back disorder, service connection for a low back disorder was not warranted. In November 1996, the veteran filed a claim to reopen his previously denied claim for service connection for a low back disorder. This claim was denied by a December 1996 rating decision. In the ensuing appeal, the Board determined, in January 1998, that the veteran had submitted new and material evidence with respect to his claimed low back disorder, and that his claim for service connection was reopened. The Board then remanded the case back to the RO for additional development, and the RO again denied the veteran's claim for service connection for a low back disorder. Contemporaneous clinical treatment records dating from approximately July 1986 through March 1999 show that the veteran was first seen for complaints of low back pain in February 1989. He continued to complain of experiencing low back pain from February 1989 to the present time. In March 1992, the veteran was found to have what was characterized as a mild diffuse disc bulge at the L5-S1 level, which was slightly greater on the right with a small bony spur projecting in the midline, minimally compressing the anterior aspect of the thecal sac. Mild facet hypertrophy was noted at that time, but the veteran's nerve root exits showed no significant encroachment. He was diagnosed with a mild discogenic disease at L5-S1. The veteran continued to complain of experiencing low back pain until the present time. Of some interest is a treatment note from the veteran's treating physician, Berthold J. Pembaur, M.D., dated in January 1995, which indicates that an X-ray of the lumbar spine showed minimal scoliosis. At that time, no arthritis or disc disease was apparent, according to Dr. Pembaur. Dr. Pembaur also submitted a statement in March 1996 stating, in effect, that he had treated the veteran for low back pain, and that his low back pain was felt to be the result of a mild scoliosis. However, Dr. Pembaur's finding of scoliosis was the only such diagnosis contained within the voluminous medical treatment records. In support of his claim, the veteran submitted a statement dated in October 1992 from a chiropractor, James T. Tassell, D.C., indicating that the veteran had stated that he had sustained a back injury in service. The chiropractor concluded with a diagnosis of lumbar intervertebral disc syndrome, and that X-rays dating back to 1986 revealed lumbo- sacral misalignment at L5-S1. There was no indication, however, as to which X-rays "dating back to 1986" the chiropractor was referring, particularly given that none of the X-rays associated with the veteran's claims file show any disc abnormalities prior to March 1992. A statement dated in November 1996 was received from an orthopedic surgeon, David H. Gillis, M.D., whom the veteran had seen for purposes of obtaining a medical opinion regarding a diagnosis and opinion as to the etiology of his low back disorder. Dr. Gillis stated that the veteran reported having sustained a low back injury in service in 1984, and that he currently experienced all manner of physical impairments due to that injury. Dr. Gillis stated that he had reviewed X-rays taken by a VA hospital, and indicated that those X-rays showed evidence of degenerative disc disease of the low back with mild osteoarthritis. In addition, Dr. Gillis offered that there appeared to be evidence of a slight retrolisthesis present at L5-S1. He concluded with diagnoses of chronic sprain/strain of the lumbosacral spine, secondary to mechanical low back deformity (L5-S1 retrolisthesis and degenerative disc disease); and aggravation of pre-existing conditions above, secondary to the alleged 1984 injury, with early osteoarthritis at the lumbosacral junction. Dr. Gillis continued to state that he had "thoroughly reviewed the records" pertaining to the veteran, and that after taking into consideration all factors involved in the alleged accident, he was convinced by a "medical probability far greater than 50 percent" that the "aggravation of pre-existing conditions" should be service connected, because they were present in 1984 at the time of the alleged injury. Dr. Gillis failed to state, however, what "conditions" were pre-existing, or upon what specific evidence he based that opinion. In any event, in a follow-up letter dated in April 1998, Dr. Gillis reiterated his earlier conclusion that the veteran's low back disorder had been incurred in or aggravated by service. He stated that "I unequivocally continue to maintain that I am greater than 50 percent certain that all his (the veteran's) present diagnoses are directly and indirectly related to the initial trauma. . ." (the alleged 1984 low back injury). Pursuant to the Board's January 1998 Remand Order, the veteran underwent a two-part VA rating examination in May 1998. The report of first part of the examination includes the veteran's self-reported history of having sustained an injury to his low back while lifting heavy objects in service in 1984. The veteran reported that he had experienced problems with his back since that time, and that physical activities, particularly work-related activities, tended to aggravate his low back disorder. The examiner concluded with diagnoses of degenerative disc disease of the lumbar spine and chronic right radiculopathy at L5. With respect to the etiology of the veteran's low back disorder, the examiner offered that the veteran's currently diagnosed low back disorder was consistent with a previous back injury, although was unclear as to when that injury actually occurred. He stated that the veteran's back disorder was compatible with his claim of having sustained an injury in 1984, but that there was no mention of a back injury during service or as reflected by the report of the service separation examination. Therefore, the examiner stated that given the lack of any indication of a low back injury in service, it was unlikely that the veteran's low back disorder stemmed from his active service. However, the Board observes that in a stricken portion of the examiner's conclusion, he had previously indicated that "by the veteran's history, it is at least as likely as not that his current back disorder does stem, at least in part, from his period of active duty." The Board acknowledges that while this portion of the examination report was stricken, and that the language stating that the veteran's low back disorder did not likely stem from his active service was inserted in its place. Even so, the stricken portion of the examiner's conclusion underscores the fact that the absence of any indication of an injury in service was the sole basis for concluding that the veteran's currently diagnosed low back disorder had not been incurred in service. This conclusion was reached despite the examiner's finding that the veteran's diagnosed low back disorder was compatible with an injury dating back to 1984. The veteran also underwent a neurological examination in May 1998, as the second component of the rating examination conducted pursuant to the Board's January 1998 Remand Order. The report of that examination shows that the veteran was unable to state with any degree of clarity or certainty when or how his low back injury allegedly occurred in 1984. He initially stated that he injured his back while jumping off trucks, and later indicated that he had sustained the injury while lifting objects in the supply room. In any event the veteran reported experiencing a variety of symptoms including chronic pain, weakness, and numbness in the extremities. On examination, the veteran was found to be very muscularly developed, but nonetheless, put forth what the examiner characterized as a "very poor effort throughout the examination" in addition to his account of the alleged 1984 injury. Of some note was the examiner's observation that the veteran demonstrated no more than 3/5 strength, despite very well developed muscles, but that when surprised, he was shown to have 5/5 strength. The examiner concluded that the veteran suffered from lumbosacral strain and from very mild, early, diabetic neuropathy. She offered her opinion that she did not believe the veteran's low back disorder had any relationship with his active service, because of his inability to state with any clarity how or when he was injured, and the fact that he did not seek any medical treatment until several years after his alleged injury. The examiner offered her opinion that given the lack of any evidence of a low back injury in service the most likely etiology of his currently diagnosed back disorder was an injury sustained at his job with the United States Postal Service (USPS) in the early 1990s. A statement dated in May 1999 was received from an additional chiropractor, Randall J. Fick, D.C., D.A.B.C.O., stating that he had first seen the veteran in March 1999 for what he characterized as a service-incurred low back injury. The chiropractor stated that he reviewed numerous X-ray reports, and that based upon that review and a physical examination, he concluded to within a reasonable degree of medical certainty that the current status of the veteran's low back disorder was consistent with his descriptions of having been injured in service in 1984. The chiropractor stated that the subsequent degeneration of the L5-S1 disc space also fit within the time line of an injury sustained in 1984. He further offered his opinion that he could not find any "medical findings to refute (the veteran's) report of an injury from lifting in the supply room while in the Army in 1984." The Board has evaluated the objective medical and quasi- medical evidence, and concludes that after resolving all reasonable doubt in favor of the veteran, the evidence supports a grant of service connection for a low back disorder. The Board notes that the veteran testified and otherwise stated that he did not report the injury at the time of its incurrence in 1984, because he feared being discharged from the service prematurely. While this purported explanation does not adequately account for the veteran's failure to report the back injury at the time of his service separation examination or at the time of the October 1986 VA rating examination, his account has essentially remained consistent since approximately 1988 when he first filed a claim for service connection for a low back disorder. The Board also acknowledges the VA rating examiner's observations that the veteran was unable to offer a coherent or credible account regarding the incurrence of the alleged injury itself. However, the veteran has presented evidence consisting of medical opinions from Dr. Gillis that his diagnosed low back disorder was incurred as a result of an in-service injury in 1984, and opinions from chiropractors, all stating that his low back disorder was incurred in service. The Board finds that the evidence containing the greatest probative value, however, consists of the medical examination report of May 1998 from the VA rating examiner who conducted the examination of the veteran's lumbar spine, and the May 1999 report from the veteran's chiropractor, Randall J. Fick, D.C. Both reports stated, in substance, that the degree of severity of the veteran's low back disorder was consistent with an injury sustained in 1984. The Board acknowledges that the VA rating examiner ultimately concluded that the veteran's low back disorder had not been incurred in service. However, from the nature of the report, including the stricken portion referred to above, it appears that the examiner's conclusion in this regard was based solely upon the lack of any complaint of a low back disorder in service, even though he had also noted that the degree of severity of the veteran's diagnosed low back disorder "was compatible with" his claim of having sustained an injury in 1984. In addition, the Board observes that the veteran's chiropractor, in his May 1999 report, also concluded that based on a review of the record that the degree of degeneration of the L5-S1 disc space also fit within the time line of an injury sustained in 1984. Accordingly, the Board finds that while some medical opinions presented, such as those offered by Dr. Gillis, fail to contain adequate support or explanation, (aside from merely noting current clinical findings) for the assertions contained therein, particularly with regard to Dr. Gillis' references to a "pre-existing" condition of some sort, the evidence is at least in equipoise. Accordingly, after resolving all reasonable doubt in favor of the veteran, the evidence supports a grant of service connection for a low back disorder. In reaching this decision, the Board also recognizes that the veteran has presented multiple symptoms and complaints regarding the nature and severity of his low back disorder. In addition, the Board acknowledges that the rating examiner who conducted the neurological portion of the May 1998 rating examination observed that the veteran's complaints and demonstrated symptomatology appeared to be greatly exaggerated. However, such issues are not currently before the Board and are not for consideration at this time. II. Increased Rating for Hypertension The veteran's claim for entitlement to an evaluation in excess of 10 percent for his hypertension is well grounded. An allegation that a service-connected disability has increased in severity is sufficient to well ground a claim for an increased rating. See Caffrey v. Brown, 6 Vet. App. 337, 381 (1994); Proscelle v. Derwinski, 2 Vet. App. 628, 632 (1992). The Board also finds that all relevant facts have been properly developed. See 38 U.S.C.A. § 5107(a). The evidence includes the veteran's service medical records, records of treatment following service, reports of VA rating examinations, transcripts of personal hearing testimony given before a Hearing Officer at the RO, and personal statements made by the veteran in his own behalf. The Board is unaware of any additional relevant evidence which is available in connection with this appeal. Therefore, no further assistance to the veteran regarding the development of evidence is required. See McKnight v. Gober, 131 F.3d 1483 (Fed. Cir. 1997). Disability evaluations are determined by evaluating the extent to which the veteran's service-connected disability affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. §§ 4.1, 4.2, 4.10 (1999). In addition, where entitlement to service connection has already been established, and an increase of a disability evaluation is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Historically, service connection for hypertension was granted by a November 1986 rating decision. A 10 percent evaluation was assigned, effective from May 28, 1986. In February 1996, the veteran filed a claim for an increased rating for his hypertension, in which he contended that his hypertension had increased in severity, and that it had also resulted in diabetes mellitus. This claim was denied by an April 1996 rating decision, and this appeal followed. By a remand decision of January 1998, the Board granted service connection for the veteran's diabetes mellitus. That issue is no longer before the Board. In addition, the Board noted that during the pendency of the veteran's appeal, the regulations governing disability evaluations for hypertension had been revised before they could have been considered by the RO. Accordingly, that issue was referred back to the RO for further development. Contemporaneous clinical treatment records dating from approximately July 1986 through May 1999 fail to show that the veteran's diastolic pressure predominantly exceeded 100, or that his systolic pressure predominantly exceeded 160. In fact, the record shows that in August 1987, the veteran did have a systolic pressure of 164, but the systolic pressure dropped back down to 125 by October 1997. There is no other indication in the voluminous treatment records of the veteran's systolic pressure meeting or exceeding 160. With respect to diastolic pressure, the clinical treatment records show that the veteran's diastolic pressure predominantly remained below 100, with isolated and periodic exceptions noted. However, the treatment records consistently show that it was necessary to control the veteran's blood pressure through medication, and that when his medication was disrupted, his blood pressure would typically rise. The veteran underwent a VA rating examination in May 1998. The report of that examination shows that his blood pressure was 130/84, and that his cardiovascular system had a regular rate and rhythm. The examiner concluded with a diagnosis of hypertension. Under the rating criteria for hypertension in effect at the time the veteran filed his claim, a 10 percent evaluation was assigned for diastolic pressure of predominantly 100 or more. If continuous medication was shown to be necessary for control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a minimum rating of 10 percent was assigned. A 20 percent rating was contemplated in situations in which the diastolic pressure was predominantly 110 or more with definite symptoms. Upon a showing of diastolic pressure predominantly 120 or more, and with moderately severe symptoms, a 40 percent rating was contemplated. Assignment of a 60 percent rating required a showing of diastolic pressure predominantly 130 or more with severe symptoms. Id. By a regulatory amendment which became effective from January 12, 1998, substantive changes were made to the schedular criteria for evaluating cardiovascular disorders, including hypertension, as set forth in 38 C.F.R. §§ 4.104, et seq. See 62 Fed. Reg. 65207-65224 (1997). Where a law or regulation changes while a case is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v. Derwinski, 1 Vet. App. 308, 312-13 (1991). However, in Rhodan v. West, 12 Vet. App. 55 (1998), the United States Court of Appeals for Veterans Claims (Court) noted that, where compensation is awarded or increased "pursuant to any Act or administrative issue, the effective date of such an award of increase. . . shall not be earlier than the effective date of the Act or administrative issue." Id. at 57. See also 38 U.S.C.A. § 5110(g) (West 1991). As such, the Court found that this rule prevents the application of a later, liberalizing law to a claim prior to the effective date of the date of the liberalizing law. Under the revised criteria under 38 C.F.R. § 4.104, Diagnostic Code 7101 (1999), a 10 percent rating is warranted where there is diastolic pressure predominantly 100 or systolic pressure predominantly 160 or more, or; where the individual has a history of diastolic pressure of 100 or more who requires continuous medication for control. Assignment of a 20 percent evaluation is contemplated in situations in which the diastolic pressure is predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted where there is diastolic pressure that is predominantly 120 or more. A 60 percent rating, the highest available under Diagnostic Code 7101, is assigned where the diastolic pressure is predominantly 130 or more. Id. Applying both the former and the revised criteria for evaluating hypertension to the evidence of record, the Board concludes that the currently assigned 10 percent rating adequately reflects the severity of the veteran's hypertension disability. In addition, the Board finds that the preponderance of the evidence is against assignment of a higher rating under any other diagnostic code. With respect to his claim for entitlement to an evaluation in excess of 10 percent for his hypertension, the veteran has advanced the arguments that on one occasion he had an elevated blood pressure of 128/88 after an exercise test, and that he had experienced elevated diastolic pressure readings between 100 and 110. The Board acknowledges that it is indeed true that the veteran had periodic diastolic readings between 100 and 110, and that he may likely have experienced a blood pressure reading of 128/88 following exercise. In fact, the Board observes that on one occasion, in August 1997, the veteran's blood pressure was found to be 164/118, as noted above. However, true as they may be, these contentions are irrelevant for purposes of assessing the degree of severity of the veteran's hypertension within the rating schedule under both the former and revised Diagnostic Codes 7101. Under the applicable criteria, in order to be assigned an evaluation in excess of 10 percent, the former regulations required a showing of a predominantly elevated diastolic pressure reading of 110 or more, with definite symptoms. Under the revised regulations, assignment of an evaluation in excess of 20 percent requires a showing of a predominantly elevated diastolic pressure reading of 110 or more, or a systolic pressure reading of predominantly 200 or more. As noted, the evidence fails to show that the veteran's has predominantly elevated diastolic pressure of 110 or more, and his systolic pressure was only shown to be above 160 on one isolated occasion. Such blood pressure readings do not meet the criteria for a higher rating under either the former or the revised rating schedules. Moreover, the Board finds that the veteran's blood pressure readings, by themselves, fail to show a predominant diastolic pressure reading of 100 or more, or a predominant systolic pressure reading of 120 or more. However, the Board finds that as the veteran's hypertension is necessarily controlled by medication, the currently assigned 10 percent rating is appropriate under both the former and the revised criteria. Accordingly, his claim for assignment of an evaluation in excess of 10 percent for hypertension is denied. The Board has considered the potential application of various provisions of Title 38 of the Code of Federal Regulations (1999). See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Here there has been no showing that the disability under consideration, hypertension, has caused marked interference with employment, has necessitated frequent periods of hospitalization, or otherwise renders impracticable the application of the regular schedular standards. The Board notes that the veteran requires medication to control his hypertension, and that he requires regular maintenance from health care professionals to ensure that his blood pressure does not rise to excessively high levels. However, the veteran has not been shown to have undergone any inpatient treatment for his hypertension, and is currently noted to be employed by the U.S. Postal Service. The Board finds, therefore, that the evidence presented contraindicates any contention, whether actually raised or not, that the veteran is unable to obtain or retain gainful employment as a result of his hypertension. In the absence of factors suggestive of an unusual disability picture, further development in keeping with the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) (1999) is not warranted. See Bagwell v. Brown, 9 Vet. App. 337 (196); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Because there is not an approximate balance of positive and negative evidence regarding the merits of the veteran's claim that would give rise to reasonable doubt in his favor, the provisions of 38 U.S.C.A. § 5107 are not applicable. Should the veteran's disability picture change, he may apply for an increase in his assigned disability rating. See 38 C.F.R. § 4.1. At present, however, the Board finds no basis upon which to grant an increased rating for the veteran's hypertension. ORDER Service connection for a low back disorder is granted. Entitlement to an evaluation in excess of 10 percent for the veteran's hypertension is denied. WARREN W. RICE, JR. Member, Board of Veterans' Appeals