Citation Nr: 9817889 Decision Date: 06/10/98 Archive Date: 06/22/98 DOCKET NO. 93-16 588A ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for service-connected hypertension, currently evaluated 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD C. Wasser Chambers, Associate Counsel INTRODUCTION The veteran served on active duty from May 1966 to March 1968, and from November 1969 to May 1992. This case comes to the Board of Veterans’ Appeals (Board) from an April 1993 RO decision which granted service connection for hypertension, with a 10 percent rating. The veteran appealed for a higher rating. CONTENTIONS OF APPELLANT ON APPEAL The veteran contends that his service-connected hypertension is more disabling than currently evaluated. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991 & Supp. 1998), 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 claim for an increase in a 10 percent rating for hypertension. FINDING OF FACT The veteran's service-connected hypertension is productive of diastolic pressure predominantly 100 or less, systolic pressure predominantly 160 or less, and the need of continuous medication for control of hypertension with a history of diastolic blood pressure predominately 100 or more when not on medication. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for service-connected hypertension have not been met. 38 U.S.C.A. § 1155 (West 1991 & Supp. 1998); 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997); 62 Fed. Reg. 65204 - 65224 (1997) (effective January 12, 1998). REASONS AND BASES FOR FINDING AND CONCLUSION I. Factual Background The veteran served on active duty from May 1966 to March 1968, and from November 1969 to May 1992. A review of his service medical records shows that he was treated for hypertension, with some diastolic blood pressure readings of 132 in February 1991, and he was placed on regular medication (Calan and Procardia) for this condition. From February to April 1991, his diastolic readings were mostly below 100, with some higher readings. At an April 1991 internal medicine consultation, the examiner indicated a diagnostic impression of hypertension, with intermittent control, and questionable evidence of heart disease (noting that the veteran's abnormal electrocardiograms (ECGs) could be caused by other conditions), two episodes of palpitations without chest pain or shortness of breath, and no exertional chest pain. In mid-May 1991, it was determined that his hypertension was insufficiently controlled with Calan, which was discontinued and replaced with Vasotec. One week later, it was noted that better blood pressure control was shown on the current medication. From late May to June 1991, the veteran's diastolic readings varied from 73 to 138. In September 1991, the veteran's blood pressure was 180/120, and he was still taking hypertension medication. In January 1992, his blood pressure was 171/112, and in February 1992 it was 169/103. On medical examination performed for retirement purposes in March 1992, his blood pressure was 179/119, and his heart was clinically normal. At an April 1992 consultation examination, his blood pressure was 150/90, and an increase in the daily dose of Vasotec (from 20 milligrams to 30 milligrams per day) was planned. The examiner noted that his blood pressure was 148/102 in the left arm, and 155/108 in the right arm, that the veteran had no complaints of chest pain or shortness of breath, and that he had grade I retinopathy. In May 1992, the veteran submitted a claim for service connection for hypertension. At a June 1992 VA compensation examination, the veteran reported no symptoms from hypertension. Blood pressure was 180/115 (sitting), and 180/120 (lying). His peripheral vessels were normal, and his heart rhythm was regular, with no murmurs. The examiner noted that the veteran was currently taking 30 milligrams each of Procardia and Vasotec on a daily basis. The diagnoses included essential hypertension, moderately severe, and obesity. Post-service medical records from Fort Jackson dated from July 1992 to June 1993 show periodic examinations to monitor the veteran's hypertension. He was still taking hypertension medication, and his dosage was increased in August 1992. His blood pressure was 168/109 in July 1992, 178/120 in August 1992, 116/84 in December 1992, 110/75 in February 1993, 130/80 three days later in February 1993, and 150/100 in April 1993. A February 1993 ECG showed a normal sinus rhythm, a normal axis, left ventricular hypertrophy by voltage criteria, and diffuse ST- and T- wave abnormalities possibly secondary to a strain pattern versus ischemia. Service connection was established for hypertension, with a 10 percent rating, in an April 1993 RO decision. By a statement dated in June 1993, the veteran's representative asserted that his service medical records and the VA compensation examination demonstrated that his diastolic readings have usually been above 120. By a statement dated in August 1993, the veteran asserted that his service medical records showed hypertension symptoms including a pounding heart and a fluttering heart, and that such symptoms require an increased rating. At a September 1993 VA compensation examination, the veteran reported no symptoms from hypertension. Blood pressure was 100/70 (sitting), 120/90 (lying), and 110/75 (standing). No gross cardiomegaly was noted, there was no murmur, and the heart rhythm was regular. The diagnoses were essential hypertension, well-controlled, and obesity. A chest X-ray study was normal. A VA compensation examination was scheduled in February 1998, but the veteran failed to report for such examination. In March 1998, the RO mailed a supplemental statement of the case to the veteran at his last known address. This document was returned by the post office as undeliverable. In March 1998, the veteran's representative stated that the only address he had for the veteran was the last address of record. II. Legal Analysis The veteran's claim for an increased rating for his service- connected hypertension is well grounded, meaning plausible. All relevant facts have been properly developed to the extent possible and, therefore, the VA's duty to assist the veteran has been satisfied. 38 U.S.C.A. § 5107(a). The Board notes that the veteran failed to report for a scheduled examination. The duty to assist is not a one-way street, and the veteran has not fulfilled his duty to cooperate in this matter. 38 C.F.R. §§ 3.326, 3.327, 3.655; Olson v. Principi, 3 Vet. App. 480 (1992). Correspondence with the veteran has also been returned as undeliverable. The Board finds that the veteran has failed in his duty to keep the VA apprised of his whereabouts. Hyson v. Brown, 5 Vet. App. 262 (1993) (if the veteran has not apprised the VA of his whereabouts, there is no burden on the part of the VA to turn up heaven and earth to find him). When rating the veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). However, the present level of disability is of primary concern in a claim for an increased rating; the more recent evidence is generally the most relevant in such a claim, as it provides the most accurate picture of the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55 (1994). 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. During the course of the veteran’s appeal, the VA criteria for rating cardiovascular disorders were revised. The veteran’s hypertension was initially evaluated under 38 C.F.R. § 4.104, Code 7101 (effective prior to January 12, 1998). This code provides that a 10 percent rating is assigned when diastolic pressure is predominantly 100 or more, or when continuous medication is shown to be necessary for control of hypertension with a history of diastolic blood pressure predominately 100 or more. A 20 percent rating is assigned when diastolic pressure is predominantly 110 or more with definite symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7101 (1997). On January 12, 1998, the rating criteria for hypertension (38 C.F.R. § 4.104, Code 7101) were revised. This revised code provides that a 10 percent rating will be assigned when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or; when continuous medication is shown to be necessary for control of hypertension with a history of diastolic blood pressure predominately 100 or more. A 20 percent rating will be assigned when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. 62 Fed. Reg. 65204-65224 (1997) (effective January 12, 1998). As the veteran’s claim for an increased rating for hypertension was pending when the regulations pertaining to cardiovascular disabilities were revised, he is entitled to the version of the law most favorable to him. Karnas v. Derwinski, 1 Vet. App. 308 (1990). Here, either the prior or current rating criteria may apply, whichever are most favorable to the veteran. The evidence shows the veteran's service-connected hypertension is currently well-controlled with medication. His diastolic blood pressure has been predominantly 100 or less since his hypertension medication was increased in August 1992, and his systolic pressure has been predominantly 160 or less for the past several years. There have been a few higher blood pressure readings, but such do not reflect the predominant disability picture. Most recently, at the September 1993 VA hypertension examination, the veteran's blood pressure was 100/70 (sitting), 120/90 (lying), and 110/75 (standing), and he continued taking hypertension medication. The veteran has stated that he has symptoms from hypertension, but the 1993 VA examination and other recent medical records do not show complications or definite symptoms attributable to hypertension. Inasmuch as the veteran has a past history of diastolic readings predominantly over 100, and must take hypertension medication to control the disorder, the current 10 percent rating is supported by either the old or new version of Code 7101. However, the medical records do not reflect predominant systolic or diastolic readings approaching the 20 percent rating criteria of either the old or new version of Code 7101, and an increased rating is not warranted. As the preponderance of the evidence is against the veteran's claim, the benefit-of-the-doubt rule is inapplicable, and the claim for an increase in a 10 percent rating for hypertension must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App 49 (1990). ORDER An increased rating for hypertension is denied. L. W. TOBIN Member, Board of Veterans' Appeals NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991 & Supp. 1998), 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 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. - 2 -