Citation NR: 9630028 Decision Date: 10/28/96 Archive Date: 11/08/96 DOCKET NO. 94-22 064 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an increased rating for history of a torn meniscus of the left knee, currently rated as noncompensable. 2. Entitlement to an increased rating for allergic rhinitis and hay fever, currently rated as noncompensable. 3. Entitlement to an increased rating for tortuous aorta with hypertension, currently evaluated as 20 percent disabling. 4. Entitlement to an increased rating for diabetes mellitus, currently evaluated as 20 percent disabling. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Melissa Brown, Associate Counsel INTRODUCTION The veteran served on active duty from June 1963 to April 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a November 1991 notification of a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Chicago, Illinois, which established service connection for allergic rhinitis and a torn left meniscus at a noncompensable rating, diabetes mellitus as 10 percent disabling, and hypertension as 20 percent disabling. The veteran disagreed with the disability ratings assigned to each of those conditions. During the process of the appeal the disability rating for the diabetes mellitus was increased from 10 percent to 20 percent by a June 1993 hearing officer’s decision. The veteran’s appeal has been referred to the Board for review. The veteran’s claims for increased ratings for diabetes mellitus and hypertension are addressed below, while the increased rating claims for a torn meniscus and allergic rhinitis are remanded for the action detailed at the end of this decision. CONTENTIONS OF APPELLANT ON APPEAL The veteran asserts that the disability rating assigned to his hypertension does not reflect the severity of his condition. He also maintains that his diabetes has become more severe since he separated from service. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1995), has reviewed and considered all of the evidence and material of record in the veteran's claims files. 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 claim for an increased rating for tortuous aorta with hypertension and diabetes mellitus. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of this appeal has been obtained. 2. The veteran’s hypertension is manifested by sustained diastolic readings between 90 and 110. 3. Medical records indicate the veteran requires Humulin and insulin doses for diabetes mellitus and a restricted diet but do not report a need for regulation of activities. CONCLUSION OF LAW 1. The criteria for an evaluation higher than 20 percent for tortuous aorta with hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.104, Diagnostic Code 7100-7101 (1995). 2. The criteria for an evaluation greater than 20 percent for diabetes mellitus have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.119, Diagnostic Code 7913 (1995). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS As a preliminary matter, the Board finds that the veteran's claim is "well grounded" within the meaning of 38 U.S.C.A. § 5107(a). 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 claims which are not implausible when his contentions and the evidence of record are viewed in the light most favorable to those claims. The Board is also satisfied that all relevant facts have been properly and sufficiently developed and that no further assistance to the veteran is required to comply with the duty to assist mandated by statute. In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41 and 4.42 and Schafrath v. Derwinski, 1 Vet.App. 589 (1991), the Board has reviewed the service medical records and all other evidence of record pertaining to the history of the veteran’s hypertension and diabetes mellitus. The Board has found nothing in the historical record which would lead it to conclude that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of the remote clinical histories and findings pertaining to the veteran's mental condition. The veteran has a history of hypertension and diabetes mellitus beginning while in service for which he takes medication. A VA examination was conducted in July 1991, shortly after the veteran’s discharge from active duty. The examination report notes that the veteran was hospitalized about a year earlier for elevated blood glucose and elevated blood pressure. The veteran had been taking Glucotrol for diabetes since the hospitalization. The examiner noted that the veteran’s blood sugar ran about 150 to 200. The veteran reportedly had fair control over his hypertension with the help of Aldactone, Klotrix, and Furosemide. He stated that he had been told that he had an enlarged heart and kidney changes. His weight at that time was 180 pounds with a maximum weight in the past year of 190 pounds. The examiner recorded blood pressure readings of 144/90 sitting, 138/82 recumbent, and 140/90 standing and a pulse while seated of 72 regular. The veteran reportedly had a regular sinus rhythm, no murmurs, no rubs, and no gallops. Diabetes mellitus, presently under treatment with oral hypoglycemics with past treatment with insulin and hypertension, fairly well controlled with treatment were diagnosed. Based upon the service medical records and the July 1991 examination service connection was granted for hypertension and diabetes mellitus with rating assignments of 20 percent and 10 percent respectively. A hearing was held at the regional office in August 1992. The veteran testified to having blood pressure readings of 120 over 60 or 70 and 150 over 120 or 110. He reported experiencing dizzy spells, vision problems, and bad attacks that caused him to break out in a sweat. He reported following a strict diet excluding red meat, turkey, and fish. The veteran indicated that to control his hypertension he was taking Minoxidil, Furosemide, Spironolactone, and Klotrix twice a day in addition to Zantac for the resulting upset stomach due to all the medication including for headaches. The veteran reported taking Glucotrol for diabetes and checking his blood sugar, as well as his blood pressure, daily. He estimated his normal blood sugar to be about 120 to 125. The hearing officer concluded the hearing with his stated intention for the veteran to be examined in connection with each of his four claims. A VA examination was conducted in November 1992 which focused on hypertension and diabetes mellitus. The veteran reported taking Aldactone, Minoxidil, Lasix, and Klotrix for hypertension and Glucotrol for diabetes. He indicated he was receiving treatment at Scott Air Force Base Medical Center. The veteran reported having leg cramps at night since about 1988 and experiencing numbness on the distal third of both feet since about 1989. Blood pressure readings were 140/100 sitting, 134/110 standing, and 130/90 lying. The examiner reported a regular sinus rhythm and no murmur. Left eye ground changes were noted and the veteran was referred to the eye clinic for further examination. The veteran did not have carotid bruits and there was no hepatosplenomegaly. The examiner noted no history of ketoacidosis or hypoglycemic reaction. The veteran reported eating fish but no other meat and that the doctor told him to follow a low salt, 2,500 calories per day diet. The veteran described his weight as stable at 180 pounds. The examination report indicates the veteran had good pulses in the lower extremities, good pin prick sensation in the feet and legs, and feet which were not cold to the touch. Some darkened hyperpigmentation of the toenails was noted. The diagnoses were hypertension and gynecomastia excised bilaterally secondary to medication that was used for high blood pressure (Aldactone) and noninsulin dependent diabetes mellitus with symptoms of peripheral neuropathy on the distal third of both feet. An eye examination was conducted by a VA specialist later in November 1992. The veteran reported no changes or complaints with vision since an eye examination conducted about five months earlier. The examiner noted the lens and cornea of both eyes were clear, pigment in both eyes, no rubeosis, no hemes, no holes, no tears, no detachment, and quiet macula. The examiner assessed the eyes as stable upon examination. Medical records dated June 1991 to September 1992 from Scott Air Force Base Medical Center are included in the claims folder. The records appear to relate to periodic maintenance visits including requests for medication refills and blood pressure monitoring. An entry dated June 1991 notes the need for blood pressure to be monitored at home due to hypertension. A November 1991 entry notes that the diabetes mellitus was stable due to the Glucotal. The hearing office increased the disability rating for diabetes mellitus from 10 percent to 20 percent based upon the veteran’s need to take medication to control his blood sugar. A VA treatment entry dated June 1993 indicates the veteran suffered an impact injury to the corner of his eye. The veteran complained of his blood sugar going up and his vision fluctuating several months earlier. It appears from the examiner’s comments that there were no permanent results of the injury. The veteran was again examined in January 1994 by a VA physician for hypertension and diabetes mellitus. Since the November 1992 examination the veteran switched from oral hypoglycemics to Humulin and insulin. The veteran reported increased blood sugar levels and a resulting visit to the emergency room a few days before the examination. He was asked to record his blood sugar at home and later reported to his doctor that his blood sugar went from 133 on one morning to 266 in that afternoon and 416 in the evening. The examination report indicates the veteran was told to continue his medication at the same dosage. The veteran reported not following a specific diet, although he did not eat pork. His weight at the time of the examination was about 210 pounds. The examiner referred to the veteran’s eye examination in June 1993 and noted that there had been no diabetic changes in the eye grounds. Blood pressure readings were 170/110, 160/110, and 160/100. The veteran was taking Spironolactone, Minoxidil, Kay Ciel, and Lasix for hypertension. The examiner also noted regular sinus rhythm of the heart, clear lungs, no pedal edema, no murmur of the heart, and a glucose reading of 180. Insulin dependent diabetes mellitus, uncontrolled at the present time and hypertension, uncontrolled at the present time were diagnosed. Disability evaluations are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R. Part 4 (1995). The Board attempts to determine the extent to which the veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, and the assigned rating is based, as far as practicable, upon the average impairment of earning capacity in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.10 (1995). Regulations require that where there is a question as to which of two evaluations is to 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. The Board finds that the criteria required for a disability evaluation of 40 percent for tortuous aorta with hypertension have not been met. The Ratings Schedule assigns a 20 percent disability rating for hypertension when the diastolic pressure is predominantly 110 or more with definite symptoms and a 40 percent rating when the diastolic pressure is predominately 120 or more with moderately severe symptoms. 38 C.F.R. § 4.104, Disability Code 7101. The veteran’s recent diastolic pressure readings have been between 90 and 110 and no abnormalities involving his heart have been noted in recent medical records. This more nearly approximates the criteria associated with a 20 percent evaluation for hypertension under the Rating Schedule. 38 C.F.R. § 4.7. Therefore, a preponderance of the evidence is against an evaluation greater than 20 percent. 38 U.S.C.A. § 5107. The Board also finds that the criteria required for a disability evaluation in excess of 20 percent for diabetes mellitus have not been met. The evidence of record indicates that medication and a restricted diet have been prescribed to the veteran for control of his diabetes mellitus. There is no indication that the veteran has been told to restrict or regulate his activities due to diabetes mellitus. This additional symptom differentiates a 20 percent disability rating from a 40 percent rating. Under the Rating Schedule a 20 percent disability rating is assigned for diabetes mellitus requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet and 40 percent is assigned when insulin, restricted diet, and regulation of activities is prescribed for the condition. The veteran’s symptoms more closely approximate a 20 percent rating and a preponderance of the evidence is therefore against an evaluation greater than 40 percent. ORDER Increased ratings for hypertension and diabetes mellitus are denied. REMAND The veteran has not been afforded VA examinations specifically for his left knee and allergic rhinitis/hay fever. In order to accurately determine whether an increased rating is warranted for the veteran’s disabilities, the Board requires medical evidence of the veteran’s present condition. As to any current disability experienced by the veteran due to the previously torn meniscus in his left knee, the Board is particularly concerned about functional loss due to pain and weakness. In DeLuca v. Brown, 8 Vet. App. 202 (1995), the United States Court of Veterans Appeals (Court) held that in evaluating a service-connected left shoulder disability, the Board erred in not adequately considering functional loss due to pain under 38 C.F.R. § 4.40 and functional loss due to weakness, fatigability, and coordination or pain on movement of a joint under 38 C.F.R. § 4.45. The Court held that Diagnostic Code 5201 does not subsume 38 C.F.R. §§ 4.40 and 4.45, and that the rule against pyramiding set forth in 38 C.F.R. § 4.14 does not forbid consideration of a higher rating based on a greater limitation of motion due to pain on use, including use during flareups. The Court remanded the case to the Board to obtain a medical evaluation that addressed whether pain significantly limits functional ability during flareups, or when the arm is used repeatedly over a period of time. The Court also held that the examiner should be asked to determine whether the left shoulder exhibited weakened movement, excess fatigability, or incoordination. If feasible, these determinations were to be expressed in terms of additional range of motion loss due to any weakened movement, excess fatigability, or incoordination. A VA examination which specifically addresses the issues reflected in the Court’s opinion in DeLuca would be helpful to the Board in deciding this appeal. Additionally, in his notice of disagreement from June 1992 the veteran indicated that his allergic rhinitis had become “much worse.” This is further reason for a VA examination in order to adequately assess the veteran’s present condition. Based upon the foregoing, the case is REMANDED to the RO for the following actions: 1. The veteran should be requested to provide the names, addresses, and approximate dates of treatment for all health care providers who have treated him in recent years for problems associated with his left knee and allergic rhinitis. With any necessary authorization, the RO should attempt to obtain copies of pertinent treatment records identified by the veteran, which have not been previously secured. 2. Thereafter, the veteran should be afforded an orthopedic examination by a board certified specialist, if available, to determine the nature, extent, and current severity of the residuals of a torn meniscus in the veteran’s left knee. All indicated studies should be performed and all manifestations should be described in detail including range of motion studies. A complete rationale should be given for any opinions and conclusions expressed. The claims folder should be provided to the examiner for review prior to examination. The orthopedic examiner should determine, to the extent possible, the symptomatology which is a result of the veteran's service-connected residuals of a torn meniscus in the left knee, including whether there is tenderness or pain on objective demonstration and describe in degrees of excursion any limitation of the left knee that is found to be present, and due to the service-connected residuals of a torn meniscus. The examiner is also requested to: (1) Express an opinion as to whether pain, associated with the residuals of a torn meniscus, could significantly limit the functional ability of the left knee, or when the left knee is used repeatedly over a period of time, and express this determination, if feasible, in terms of the additional loss of range of motion due to pain on use or during flareups; (2) determine whether as a result of the residuals of a torn meniscus, the left knee exhibits weakened movement, excess fatigability, or incoordination, and express this determination, if feasible, in terms of the additional loss of range of motion due to any weakened movement, excess fatigability, or incoordination. 3. Additionally, the RO should arrange for examination of the veteran by an appropriate specialist to determine the current severity of his allergic rhinitis and hay fever. All necessary and appropriate diagnostic tests and procedures should be conducted. A complete rationale should be given for any opinions and conclusions expressed. The claims folder should be provided to the examiner for review prior to examination. 4. Following completion of the foregoing, the RO must review the claims file and ensure that all of the foregoing development actions have been conducted and completed in full. If any development is incomplete, including if the requested examination does not include the requested opinion, appropriate corrective action is to be implemented prior to undertaking further adjudicative action. 5. Then, in light of the additional evidence obtained pursuant to the requested development, the RO should readjudicate the remaining issues on appeal, with appropriate consideration of DeLuca, supra. If the benefits sought on appeal are not granted to the veteran's satisfaction or if a timely Notice of Disagreement is received with respect to any other matter, the veteran and his representative should be issued a Supplemental Statement of the Case on all issues in appellate status and afforded an appropriate opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. All issues properly in appellate status should be returned to the Board at one time. In taking this action, the Board implies no conclusion as to any ultimate outcome warranted. No action is required of the veteran until he is otherwise notified by the RO. ROBERT E. SULLIVAN Member, Board of Veterans' Appeals The Board of Veterans' Appeals Administrative Procedures Improvement Act, Pub. L. No. 103-271, § 6, 108 Stat. 740, 741 (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 & Supp. 1995), 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, 102 Stat. 4105, 4122 (1988). The date that appears on the face of this decision constitutes the date of mailing and the copy of this decision that you have received is your notice of the action taken on your appeal by the Board of Veterans’ Appeals. Appellate rights do not attach to those issues addressed in the remand portion of the Board’s decision, because a remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (1995). - 2 -