Citation Nr: 9903160 Decision Date: 02/03/99 Archive Date: 02/10/99 DOCKET NO. 98-10 205 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUE Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Richard Giannecchini, Associate Counsel INTRODUCTION The veteran had active military service from September 1971 to May 1978. A perfected appeal to the Board of Veterans' Appeals (Board) of a particular decision entered by a Department of Veterans Affairs (VA) regional office (RO) consists of a Notice of Disagreement (NOD) in writing received within one year of the decision being appealed and, after a Statement of the Case (SOC) has been furnished, a substantive appeal (VA Form 9) received within 60 days of the issuance of the Statement of the Case or within the remainder of the one-year period following notification of the decision being appealed. The present appeal arises from a March 1998 rating decision in which the RO denied the veteran's increased rating for hypertension. The disability was evaluated as 10 percent disabling, effective from May 1980. The veteran filed an NOD in May 1998, and an SOC was issued the following month. A substantive appeal was filed in June 1998. The veteran did not request a personal hearing. FINDINGS OF FACT 1. All evidence necessary for an equitable disposition of the veteran's appeal has been obtained by the RO. 2. On VA medical examination in December 1997, the veteran's blood pressure readings were recorded as 194/102 (sitting), 181/108 (standing), and 184/110 (supine position); there was no clubbing, cyanosis or edema; and an EKG (electrocardiogram) showed normal sinus rhythm with normal axis and no ischemic STT wave abnormality. 3. The evidence shows that the veteran's hypertension is not productive of diastolic pressure readings predominantly 110 or more, or systolic pressure readings predominately 200 or more. CONCLUSION OF LAW The criteria for an evaluation greater than 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.1, 4.2, 4.7, 4.10, 4.104, Diagnostic Code 7101 (1998). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Factual Basis A review of the claims file reflects that the veteran was service connected for hypertension in an August 1978 rating decision. The disability was evaluated as 10 percent disabling, effective from May 1978. In April 1983, the veteran was medically examined for VA purposes. Recorded blood pressure readings during the examination were 160/94, 160/100, and 160/100. The examiner's diagnosis was hypertensive vascular disease with suboptimal response to therapeutic management. In a May 1983 rating decision, the RO continued the veteran's disability rating for hypertension at 10 percent. Thereafter, in November 1997, the veteran filed a Statement in Support of Claim (VA Form 21-4138), requested an increased rating for hypertension. The veteran noted that he had had several hypertensive episodes and changes in medication, and that his condition continued to worsen. In support of his claim, he submitted discharge summaries and outpatient treatment records, in addition to laboratory and X-ray reports, from Richland Memorial Hospital, Northeast Diagnostic Imaging, Northeast Family Practice, Palmetto Pathology Services, an unidentified VA medical facility, C.S. Roche Biomedical Laboratories, and E.I. du Pont de Nemours & Company Medical Division. These records were dated from October 1989 to March 1997. The veteran also submitted copies of his service medical records. A review of this evidence reveals the veteran was being treated with Cardizem and Hytrin. In October 1989, the veteran was hospitalized at Richland Memorial Hospital with a hypertensive emergency. On two separate occasions during the course of his stay, the veteran's blood pressure was recorded as 160/118 and 156/110. Subsequently, in September 1993, while he was being treated at Northeast Family Practice, the veteran's blood pressure was measured as 160/110. It was noted that the reading was repeated using a large cuff, and the blood pressure was 140/90. Service medical records dated in May and July 1977 note blood pressure readings of 158/110 and 174/110, respectively. In December 1997, the veteran was medically examined for VA purposes. The veteran reported that his hypertension was being treated with Cardizem CD and Zestril. On physical examination, normal S1 and S2 were noted without murmur, rub or gallop. Apical impulse was medial to the midclavicular line. In addition, there was no clubbing, cyanosis, or edema; and an EKG (electrocardiogram) revealed a normal sinus rhythm with normal axis and no ischemic STT wave abnormality. Recordings of the veteran's blood pressure were 194/102 (sitting), 181/108 (standing), and 184/110 (supine position). The examiner's diagnosis was "Hypertension: Currently poorly controlled on present regimen. The patient is asked to seek follow up with his primary physician for this problem." In a March 1998 rating decision, the RO confirmed and continued the veteran's disability rating for hypertension at 10 percent. Subsequently, the veteran filed an NOD in May 1998, in which he contended that the blood pressure readings recorded on VA examination were subject to the ability of the individual taking the reading, and also affected by the use of a proper cuff size. The veteran also noted that, with one of the blood pressure readings, he had only been 2mm Hg under the 110 requirement. He further reported that the three blood pressure readings had been done in less than five minutes, and that he did not feel he was afforded a proper blood pressure evaluation. In a subsequent substantive appeal (VA Form 9), dated in June 1998, the veteran contended that 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1), requires that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. He also noted that over the years he had suffered from hypertensive crises, and had required hospitalization several times resulting from his condition. II. Analysis The veteran has submitted a well-grounded claim with 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 he has submitted a claim which is plausible. This finding is based on the appellant's assertion that his service-connected hypertension is more severe then previously evaluated. Proscelle v. Derwinski, 2 Vet.App. 629 (1992). The Board is also satisfied that all relevant evidence necessary for an equitable disposition of the veteran's appeal has been obtained, and that no further assistance is required to comply with the duty to assist him as mandated by 38 U.S.C.A. § 5107(a). Disability evaluations are determined by the application of a schedule of rating which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a reasonable doubt as to the degree of disability, such doubt shall be resolved in favor of the claimant, and 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. 38 C.F.R. §§ 3.102, 4.3, 4.7 (1998). Where entitlement to compensation has already been established, and an increase in the disability rating is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet.App. 55, 58 (1994); 38 C.F.R. §§ 4.1, 4.2 (1998). The veteran's service-connected hypertension had assigned to it a 10 percent rating under 38 C.F.R. § 4.104 Diagnostic Code (DC) 7101, "Hypertensive vascular disease (hypertension and isolated systolic hypertension)." Under this code, a 60 percent rating is warranted if diastolic pressure is predominantly 130 or more; 40 percent, if diastolic pressure is predominantly 120 or more; 20 percent, if diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more; and 10 percent, if diastolic pressure is predominantly 100 or more, or systolic pressure is predominately 160 or more, or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For the purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Note (2) requires that hypertension be evaluated due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. A review of the evidence reflects that medical records submitted by the veteran for the period of October 1989 to March 1997 reflect three occasions during which the veteran's diastolic blood pressure reached 110 or higher. On VA examination in December 1997, the veteran's blood pressure readings were recorded as 194/102 (sitting), 181/108 (standing), and 184/110 (supine position). Thus, while we appreciate the veteran's sincere belief in the merits of his claim and that his hypertension has increased in severity, the Board finds a lack of actual objective findings which would support a rating assignment greater than 10 percent under DC 7101. The veteran has not shown that his diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more, to warrant a 20 percent rating. Furthermore, since the veteran has not met the rating criteria for a 20 percent rating, we logically conclude he also does not meet the rating criteria for a 40 or 60 percent rating. In reaching this conclusion, we are aware of the various contentions raised by the veteran that his examination was inadequately conducted and cursory, and that a proper evaluation with regard to his hypertension would require measuring his blood pressure over a number of days. The Board notes that we understand Note (1) of 38 C.F.R. § 4.104, DC 7101, as referenced by the veteran, to require the initial diagnosis of hypertension or isolated systolic hypertension, with respect to service connection, to be conducted two or more times on three different days. In this instance, the veteran has already been diagnosed and service connected for hypertension. Therefore, Note (1) is inapposite in this particular instance. Furthermore, even if the Board were to accept the veteran's diastolic pressure reading of 108 as more approximating 110, which would reflect two readings in which the veteran's diastolic pressure was 110, there still would not be a predominant showing of diastolic blood pressure readings of 110 or more. As noted above, medical records submitted show only three instances between 1989 and 1997, two within an hour of each other in October 1989, in which the veteran's diastolic pressure has been 110 or more. Therefore, a single showing on VA exam of two readings of diastolic pressure of 110 or more would not necessarily establish a predominant showing as is required under the schedular criteria. As for the veteran's claim that his VA examination was inadequate and cursory, we note that on review of the examination report, it appears the veteran's complaints were noted, factual findings made, and a medical conclusion reached. Thus, we see no reason why the veteran's VA medical examination in December 1997 should be found other than proper and adequate. In reaching this decision, the Board has considered the doctrine of reasonable doubt under 38 U.S.C.A. § 5107(b) and 38 C.F.R. §§ 3.102, 4.3, but finds the evidence is not of such approximate balance as to warrant its application. The preponderance of the evidence is determined to be clearly against the veteran's claim for a rating higher than 10 percent at this time. ORDER A preponderance of the evidence is against an increased rating for hypertension, and the claim is denied. ANDREW J. MULLEN 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. - 8 -