Citation Nr: 1000052 Decision Date: 01/04/10 Archive Date: 01/14/10 DOCKET NO. 06-34 390A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to service connection for a right shoulder disability. 2. Entitlement to service connection for a scar of the Veteran's back (posterior chest) residual from lipoma excision. 3. Entitlement to service connection for residuals of lipomas of the Veteran's back, other than residual scar from lipoma excision. 4. Entitlement to service connection for lung disease. 5. Entitlement to an initial compensable rating for hypertension. 6. Entitlement to an initial rating greater than 30 percent for gastritis (also claimed as gastroesophageal reflux) and ulcerative colitis with hepatitis B. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J.G. Reinhart, Associate Counsel INTRODUCTION The Veteran had active service from October 1979 to July 1985 and from October 1991 to June 2005. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. In his February 2006 notice of disagreement, the Veteran referred to urogenital and larynx issues. It is unclear whether he wished to file claims for VA disability compensation benefits for disabilities of his urogenital system and larynx. This matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. The Veteran's current right shoulder bursitis began during active service. 2. The RO granted service connection for a scar of the Veteran's right posterior chest, residual, lipoma excision, in a January 2008 rating decision. 3. The Veteran has no residuals of an in-service lipoma of his back, other than a scar for which service connection has already been established. 4. The Veteran does not have lung disease. 5. The Veteran's hypertension has never resulted in diastolic pressure of predominantly 100 mm. Hg. or greater or systolic pressure predominantly 160 mm. Hg. or greater and he does not have a history of diastolic pressure of 100 mm. Hg. or more. 6. The Veteran's gastritis and ulcerative colitis with hepatitis B has not resulted in material weight loss, anemia, severe impairment of health, health that is only fair, malnutrition, any incapacitating episodes, hepatomegaly, or any fatigue, malaise, or anorexia. CONCLUSIONS OF LAW 1. The criteria for service connection for right shoulder bursitis have been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 2. There is no disputed question of law or fact as to whether service connection is warranted for a scar of the Veteran's back (posterior chest) residual of an inservice lipoma excision and the appeal is dismissed. 38 U.S.C.A. §§ 7104, 7105 (West 2002). 3. The criteria for service connection for residuals of an inservice lipoma of the Veteran's back (posterior chest), other than a residual scar, have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 4. The criteria for service connection for lung disease have not been met. 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303 (2009). 5. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.104, Diagnostic Code (DC) 7101 (2009). 6. The criteria for an initial rating greater than 30 percent for gastritis (also claimed as gastroesophageal reflux) and ulcerative colitis with hepatitis B have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.14, 4.114, 4.115a, DC's 7326, 7345, 7346 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Before assessing the merits of the appeal, VA's duties under the Veterans Claims Assistance Act of 2000 (VCAA) must be examined. The VCAA provides that VA shall apprise a claimant of the evidence necessary to substantiate his claim for benefits and that VA shall make reasonable efforts to assist a claimant in obtaining evidence unless no reasonable possibility exists that such assistance will aid in substantiating the claim. In letters issued in August and September 2005 and March 2006, VA notified the appellant of the information and evidence needed to substantiate and complete his claims, including what part of that evidence he was to provide and what part VA would attempt to obtain for him. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). These letters informed the appellant to submit medical evidence relating the claimed disabilities to active service and noted other types of evidence the Veteran could submit in support of his claims. These letters also informed the appellant to submit medical evidence showing that his service-connected hypertension and gastritis (also claimed as gastroesophageal reflux) and ulcerative colitis with hepatitis B had worsened. The Veteran also was informed of when and where to send the evidence. After consideration of the contents of these letters, the Board finds that VA has satisfied substantially the requirement that the Veteran be advised to submit any additional information in support of his claims. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As will be explained below in greater detail, the evidence does not support granting service connection for any of the claims disabilities. The evidence also does not support assigning increased ratings for the Veteran's service- connected hypertension or gastritis (also claimed as gastroesophageal reflux) and ulcerative colitis with hepatitis B. Thus, any failure to develop these claims under the VCAA cannot be considered prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The claimant also has had the opportunity to submit additional argument and evidence and to participate meaningfully in the adjudication process. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Additional notice of the five elements of a service- connection claim was provided in the March 2006 VCAA notice letter, as is now required by Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board notes that the United States Court of Appeals for Veterans Claims (Veterans Court), in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service- connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Thus, Vazquez-Flores is inapplicable to the Veteran's increased rating claims. The Board notes that the Federal Circuit had held previously that any error in VCAA notice should be presumed prejudicial and VA must bear the burden of proving that such an error did not cause harm. Sanders v. Nicholson, 487 F.3d 881 (2007). The Supreme Court recently reversed the Federal Circuit's decision in Sanders, finding it unlawful in light of 38 U.S.C.A. § 7261(b)(2) which provides that, in conducting review of decision of the Board, a court shall take due account of the rule of prejudicial error. The Supreme Court essentially held in Sanders that-except in cases where VA has failed to meet the first requirement of 38 C.F.R. § 3.159(b) by not informing the claimant of the information and evidence necessary to substantiate the claim-(1) the burden of proving harmful error must rest with the party raising the issue; (2) the Federal Circuit's presumption of prejudicial error in Sanders imposed an unreasonable evidentiary burden upon VA and encouraged abuse of the judicial process; and (3) determinations on the issue of harmless error should be made on a case-by-case basis. Shinseki v. Sanders, 129 S. Ct. 1696 (2009). In light of the Supreme Court's recent decision in Sanders, the Board finds that any failure to satisfy the duty to notify is not prejudicial. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007), rev'd sub nom., Shinseki v. Sanders, 129 S. Ct. 1696 (2009). With respect to the timing of the notice, the Board points out that the Veterans Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim for VA benefits. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Here, the August and September 2005 letters were issued to the Veteran and his service representative prior to the January 2006 rating decision which denied the benefits sought on appeal; thus, this notice was timely. Because all of the appellant's claims are being denied in this decision, any question as to the appropriate disability rating or effective date is moot and there can be no failure to notify the appellant. See Dingess, 19 Vet. App. at 473. And any defect in the timing or content of the notice provided to the Veteran and his service representative has not affected the fairness of the adjudication. See Mayfield, 444 F.3d at 1328. The Board also finds that VA has complied with the VCAA's duty to assist by aiding the Veteran in obtaining evidence and affording him the opportunity to give testimony before the RO and the Board, although he declined to do so. It appears that all known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; the Veteran has not contended otherwise. As to any duty to provide an examination and/or seek a medical opinion, the Board notes that in the case of a claim for disability compensation, the assistance provided to the claimant shall include providing a medical examination or obtaining a medical opinion when such examination or opinion is necessary to make a decision on the claim. An examination or opinion shall be treated as being necessary to make a decision on the claim if the evidence of record, taking into consideration all information and lay or medical evidence (including statements of the claimant) contains competent evidence that the claimant has a current disability, or persistent or recurring symptoms of disability; and indicates that the disability or symptoms may be associated with the claimant's act of service; but does not contain sufficient medical evidence for VA to make a decision on the claim. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). The Veteran has been provided with VA examinations which address the contended causal relationship between the claimed disabilities and active service. He also has been provided with VA examinations which address the current nature and severity of his service-connected hypertension and gastritis (also claimed as gastroesophageal reflux) and ulcerative colitis with hepatitis B. In summary, VA has done everything reasonably possible to notify and to assist the Veteran and no further action is necessary to meet the requirements of the VCAA. Service connection The Veteran contends that he incurred a right shoulder disability, a scar of the back residual from lipoma excision, residuals of lipomas of the back other than a scar, and lung disease during active service. He specifically contends that his lung disease is a result of in-service asbestos exposure. Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C.A. §§ 1110, 1131 (West 2002); 38 C.F.R. § 3.303(a) (2009). "To establish a right to compensation for a present disability, a Veteran must show: "(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service"-the so-called "nexus" requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Right shoulder disability Service treatment notes do not document any findings of reports of symptoms of a musculoskeletal right shoulder disability. The March 2005 report of medical examination includes a normal clinical evaluation of the Veteran's upper extremities. This tends to show that, as recently as March 2005, the Veteran had no musculoskeletal right shoulder disability or symptoms of a musculoskeletal right shoulder disability. However, the RO received the Veteran's claim for service connection for right shoulder bursitis in May 2005, prior to his separation from active service. This is evidence that the Veteran had symptoms of a right shoulder musculoskeletal disability while still on active duty. This tends to show that a current musculoskeletal disability of the right shoulder had onset during his active service. In December 2005, the Veteran underwent a VA examination of his right shoulder and was found to have tenderness of the right acromioclavicular joint. The examiner diagnosed bursitis of the right shoulder. He attributed the right shoulder pain to subacromimal bursitis due to impingement syndrome. The Board finds that the preponderance of the evidence supports granting service connection for a right shoulder disability. Within a short period of time following his separation from active service, competent evidence established that the Veteran has the disability of which, given his claim filed prior to separation from service, he obviously had symptoms during service. The closeness in time between the diagnosed disability and the Veteran's reports while in service is sufficient to establish that his current right shoulder bursitis had onset during his active service. As all elements of a service connection claim have been met, service connection is granted for right shoulder bursitis due to impingement syndrome. Lipoma of the back Service treatment records include July and August 1999 notes documenting that the Veteran had a 4 centimeter lump medial to the right scapula. This was found to be a soft tissue lipoma which was excised in August 1999. Closing the incision required a single suture with staples on the skin. There is no evidence from this treatment note that there were any residuals of that excision. In February 2005 he had a lipoma removed from his right shoulder. Service connection has already been established for a scar from that right shoulder excision. A March 2005 report of medical examination includes normal clinical evaluations of the Veteran's skin and of his spine and other musculoskeletal system. He received an abnormal clinical evaluation for identifying marks, scars and tattoos with a notation that he had a linear right acromioclavicular and a right medial scapula scar. This corresponds with the surgeries described above. The December 2005 VA examination included an examination of the Veteran's skin and musculoskeletal system. Muscle and joints examination was normal other than that the Veteran had tenderness over the right shoulder. There is no mention of residuals of a lipoma excision of his upper back. This is evidence against his claim because it tends to show that he has no disability resulting from the lipoma that was removed in 1999 or from the excision of that lipoma. In November 2007, the Veteran underwent a "scars" examination. Under a heading for medical history, the examiner noted that the Veteran had a lipoma removed from his right chest in 1999 and his right anterior shoulder in 2005. The examiner recorded the Veteran's report as follows: "The scar of the right posterior chest is tender and he has some minimal discomfort." Physical examination revealed a scar of the right shoulder and "another scar about the right posterior chest inferior to the scapula horizontally placed measuring 6.5 cm." As an impression, the examiner stated that the Veteran had scars of the right shoulder and the left posterior chest. Although the examiner listed "left" instead of "right" in his diagnosis, it is clear from the record that the Veteran has only one scar of his posterior chest. Also of note is that although the examiner referred to the scar as of the "posterior chest" as opposed to the back, this is simply a different way of referring to the same location as "posterior" chest (as opposed to "anterior chest") refers to the scar on the Veteran's back. Following that examination, the RO issued the January 2008 rating decision establishing service connection for a scar, right shoulder, residual, lipoma excision and a scar, right posterior chest, residual, lipoma excision. Service connection has thus already been established for scars residual of both inservice lipoma surgeries. The Veteran has not appealed the rating decision that established service connection for the residual scar of his posterior chest (his back). The Board may dismiss any appeal that fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105(d)(5). Here, the only asserted error with regard to a scar of the Veteran's back residual from lipoma removal was that VA incorrectly denied service connection. As service connection has been established for that scar there remains no alleged error of fact or law regarding that scar. As such his appeal as to disability benefits for a scar residual of excision of a lipoma of his back is dismissed. In a July 2008 writing, the Veteran's representative reported that the Veteran "further states that he has recurrent lipomas to the area, which have to be surgically removed." The record is absent for any evidence of a lipoma of the Veteran's back, or any other location, since his separation from service. There is no evidence that he had an existing lipoma of his back at separation from service. He has had two examinations since service and there are VA treatment records, including dermatology records, from 2007 and 2008 associated with the claims file. These records make no mention of any lipoma. The Board notes that January 2008 VA dermatology records indicate that the Veteran has other skin conditions including multiple areas of lichenification and excoriation over majority of his body, sparing his midback and has been diagnosed with scabies. This is not a lipoma, however, and there is no evidence to suggest that his scabies of his entire body is in any way related to the lipoma that was removed in 1999. The Board finds the medical evidence through January 2008 that includes specific references to the Veteran's back but provides no finding of a recurrent lipoma more probative than the report from the Veteran's representative that the Veteran's lipoma had recurred. This is because the medical evidence was generated from examination of the Veteran by medical experts. If the Veteran's lipoma of his back had recurred, it is highly likely that such would have been noted in his VA treatment records which include references to the skin of his back. That there are references to skin disease, a reference to the absence of such disease of his midback, and no references to a recurrent lipoma is taken by the Board to be the most probative evidence of record that the Veteran does not have any lipoma of his back related to his active service. In the absence of proof of a present disability (and, if so, of a nexus between that disability and service), there can be no valid claim for service connection. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). To be present as a current disability, the claimed condition must be present at the time of the claim for benefits, as opposed to sometime in the distant past. Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998). The Gilpin requirement that there be a current disability is satisfied when the disability is shown at the time of the claim or during the pendency of the claim, even though the disability subsequently resolves. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). In the instant case all evidence tends to show that, other than the scar for which service connection has already been established, there have been no other residuals of the Veteran's in-service lipoma surgery and no other lipomas of the Veteran's back since service. Hence, his appeal - other than to the extent that the appeal referred to a scar - must be denied. Lung disease There is no specific statutory guidance with regard to asbestos-related claims. Nor has the Secretary promulgated any regulations in regard to such claims. VA has issued a circular on asbestos-related diseases, however. DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988), provides guidelines for considering compensation claims based on exposure to asbestos. The information and instructions from the DVB Circular were included in the VA Adjudication Procedure Manual, M21-1 (M21-1), Part VI, § 7.21. In December 2005, M21-1, Part VI was rescinded and replaced with a new manual, M21-1MR, which contains the same asbestos- related information as M21-1, Part VI. The Court has held that VA must analyze an appellant's claim of service connection for asbestosis or asbestos-related disabilities using the administrative protocols found in the DVB Circular guidelines. See Ennis v. Brown, 4 Vet. App. 523 (1993); McGinty v. Brown, 4 Vet. App. 428 (1993). VA's Manual 21-1MR, Part IV, subpart ii, Chapter 2, Section C, essentially acknowledges that inhalation of asbestos fibers can result in fibrosis and tumors, and produce pleural effusions and fibrosis, pleural plaques, mesotheliomas of the pleura and peritoneum, and cancer of the lung, gastrointestinal tract, larynx, pharynx and urogenital system (except the prostate), with the most common resulting disease being interstitial pulmonary fibrosis (asbestosis). Also noted is the increased risk of bronchial cancer in individuals who smoke cigarettes and have had prior asbestos exposure. Id. With respect to claims involving asbestos exposure, VA must determine whether or not military records demonstrate evidence of asbestos exposure during service, develop whether or not there was pre-service and/or post-service occupational or other asbestos exposure, and determine whether there is a relationship between asbestos exposure and the claimed disease. M21-1MR, Part IV, Subpart ii, Chapter 1, Section H, Topic 29; DVB Circular 21-88-8, Asbestos-Related Diseases (May 11, 1988). In this case, the record shows that the RO complied with these procedures. The RO sent the Veteran letters in August and September 2005 requesting information as to his claimed in-service asbestos exposure. In a document received by VA in September 2005 the Veteran reported as follows: Exposed to asbestos in Arden Hills, MN with the 19th CMMC Rank SFC/E7. Were stationed there from April 1998 to June 2002. The Army ammunition plant was part of a super fund site by Federal government to clean all soil in and around Arden Hills, MN also including lead that was found inside the building of employment some names of other service people are [names omitted]. Cigaretts was in use which may cause cancer, however had quit prior to exposure. The type of work done before service is social work (1 yr) recreation assistant (3 yrs) and custodial in and out jobs (1 yr). In his February 2006 notice of disagreement, the Veteran repeated this information adding the following: No one expected the building we worked out of was contaminated with asbestos and lead until the inspectors assessed the building around the year of 2000. Even though the x-rays from VA do not show anything, please explain to me why I continue to cough frequently and why I continue to have chest pains, urogenital and larynx issues. Service treatment records are negative for any findings that the Veteran has ever had a lung disease. In 1999 and 2000 the Veteran reported chest pains, including pain upon taking a deep breath. He was evaluated but no cardiac or lung disease was found; the only diagnosis being "non-cardiac- muscle pull." X-rays from February 2001 showed some minimal scarring present within the left lung base. There is no diagnosis of any lung disease. In a March 2005 report of medical history, the Veteran indicated that he had bronchitis in March of 2002, a dry cough at night, an irritating itch in his throat from time to time, and that he had chest pains by touch and on certain movements and due to breathing. Also in March 2005, the Veteran responded to a question as to whether he intended to seek VA disability benefits by noting that he did and referring to a number of physical conditions but with no mention of lung disease. There is no mention of asbestos exposure. A March 2005 report of medical examination includes normal clinical evaluations of the Veteran's lungs and chest, mouth and throat, nose, sinuses, and neck. There is no mention of any disease let alone a disease that has been associated with asbestos exposure. In December 2005, the Veteran underwent a VA medical examination. In a medical history section of the report, the examiner noted that the Veteran had no mouth, throat, or sinus symptoms, but had reported the following pulmonary symptoms: cough, chest pain, productive sputum, and dyspena on moderate exertion. Sinus, mouth, throat, and neck physical examination were all normal. Pulmonary inspection, palpation, auscultation and percussion of the right and left chest were all normal. Chest x-ray showed his lungs to be well expanded and clear, the heart was not enlarged and there was no evidence of congestive failure or chest neoplasm. As to pulmonary examination, physical examination revealed no abnormal respiratory findings, normal excursion of the diaphragm, normal chest expansion, no venous congestion or edema, and no conditions that may be associated with pulmonary restrictive disease. Chest x-rays showed normal cardiomediastinal silhouette and showed no hilar masses. Both lungs were clear and there were no effusions. Bony thorax was unremarkable. There was no evidence of cor pulmonale, no evidence of pulmonary hypertension, and no evidence of right ventricular hypertrophy. As a summary of all problems, the examiner provided a diagnosis of "no respiratory disease with subjective history of asbestos exposure." The Board finds that the preponderance of the evidence is against the Veteran's claim of service connection for lung disease. The medical evidence tends to show that the Veteran does not have any lung or other respiratory disease or disability. Whether the Veteran was exposed to asbestos during service is of no importance in this claim. VA disability compensation is available only for diseases and injuries incurred during service. Exposure to asbestos is not in itself either a disease or an injury. In the absence of evidence of a disease or injury associated with any exposure to asbestos service connection cannot be granted. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992); Gilpin v. West, 155 F. 3d 1353 (Fed. Cir. 1998); McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). Increased ratings In general, disability evaluations are assigned by applying a schedule of ratings that represent, as far as can be determined, the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria that must be met for specific ratings. The regulations require that, in evaluating a given disability, the disability be viewed in relation to its whole recorded history. 38 C.F.R. § 4.2; see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In deciding the Veteran's increased evaluation claims, the Board has considered whether separate ratings are warranted for separate periods of time based on the facts found, a practice referred to as "staged ratings" See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability or the same manifestations of the disability under different diagnoses is to be avoided. 38 C.F.R. § 4.14. To do so is to 'pyramid' the ratings. In cases where the record reflects that the appellant has multiple problems due to service-connected disability, it is possible for an appellant to have "separate and distinct manifestations", permitting separate ratings. Esteban v. Brown, 6 Vet. App. 259, 261 (1994). The critical element is that none of the symptomatology for any of the conditions is duplicative or overlapping with the symptomatology of the other conditions. Id. Hypertension A 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 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. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Id. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Id Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For 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. Id. Service and post service treatment records show that the Veteran has never had a diastolic pressure of predominately 100 or more, or; systolic pressure predominantly 160 or more. The March 2005 report of medical examination includes that his systolic pressure was 131 and his diastolic was 84. During the December 2005 examination, the Veteran's blood pressure was no higher than 139 over 94. In March 2008, the Veteran again underwent VA examination with regard to his hypertension. He reported that he occasionally has headaches, which the Veteran attributed to his hypertension. He also reported taking hydrochlorothiazide daily. Physical examination found the Veteran to have a blood pressure no higher than 146 over 94. Other measurements were 134 over 96 and 120 over 90. There was no peripheral edema. The Board finds that the preponderance of the evidence is against assigning an initial compensable rating for hypertension. Whether or not the Veteran's service-connected hypertension requires continuous medication does not matter in this case as he has no history of a diastolic pressure predominately 100 or greater. The Board has considered the Veteran's reports of headaches which he believes to be associated with his hypertension. Service connection already has been established for headaches and a 30 percent rating assigned since the day after the date of his separation from active service. Regardless of the cause of his headaches, an additional rating is not warranted. 38 C.F.R. § 4.14. Gastritis and ulcerative colitis with hepatitis B Service connection was established for ulcerative colitis with hepatitis B and gastritis in the January 2006 rating decision and a 10 percent rating was assigned. In an April 2007 rating decision, the RO increased the rating to 30 percent, effective the day after the date that the Veteran was separated from active service. Ulcerative colitis that is pronounced, resulting in marked malnutrition, anemia, and general debility, or with serious complication as liver abscess, is assigned a 100 percent rating. 38 C.F.R. § 4.114, Diagnostic Code 7323. Severe ulcerative colitis, with numerous attacks a year and malnutrition, the health only fair during remissions, is assigned a 60 percent rating. Id. Moderately severe ulcerative colitis, with frequent exacerbations is assigned a 30 percent rating. Id. The Board has also considered the criteria found at 38 C.F.R. § 4.114, DC 7346, for rating hiatel hernia. Hiatal hernia with symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health is assigned a 60 percent rating. 38 C.F.R. § 4.114, DC 7346. Hiatal hernia with persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health is assigned a 30 percent rating. Id. The RO has included in the description of the Veteran's disability "hepatitis B". Therefore, the RO has also considered whether a rating is warranted under 38 C.F.R. § 4.115a, DC 7345, for chronic liver disease without cirrhosis (including hepatitis B, chronic active hepatitis, autoimmune hepatitis, hemochromatosis, drug-induced hepatitis, etc., but excluding bile duct disorders and hepatitis C). A 100 percent rating for chronic liver disease without cirrhosis requires near constant debilitating symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain. Id. A 60 percent rating for chronic liver disease without cirrhosis requires daily fatigue, malaise and anorexia with substantial weight loss (or other indication of malnutrition) and hepatomegaly; or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least six weeks, during the past twelve- month period, but not occurring constantly. Id. A 40 percent rating for chronic liver disease without cirrhosis requires daily fatigue, malaise, and anorexia, with minor weight loss and hepatomegaly, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least four weeks, but less than six weeks, during the past 12-month period. A 20 percent rating for chronic liver disease without cirrhosis requires daily fatigue, malaise, and anorexia (without weight loss or hepatomegaly), requiring dietary restriction or continuous medication, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least two weeks, but less than four weeks, during the past 12-month period A 10 percent rating for chronic liver disease without cirrhosis requires intermittent fatigue, malaise, and anorexia, or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12- month period. Note (2) under DC 7345 defines an "incapacitating episode" as "a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician." Further, the term "substantial weight loss" means a loss of greater than 20 percent of the individual's baseline weight, sustained for three months or longer; and the term "minor weight loss" means a weight loss of 10 to 20 percent of the individual's baseline weight, sustained for three months or longer. 38 C.F.R. § 4.112 (2009). Finally, Note (3) provides that hepatitis B infection must be confirmed by serologic testing in order to evaluate it under DC 7345. The December 2005 examination includes a medical history that the Veteran had no medical history of fever, chills, malaise, night sweats, or dizziness, no endocrine symptoms. History of gastrointestinal symptoms included vomiting, diarrhea, indigestion, heartburn, regurgitation, and diffuse abdominal pain in all four quadrants. There was no history of dysphasia, abdominal mass, abdominal swelling, jaundice, hematemesis, melena, fecal incontinence, pancreatitis, gallbladder attacks, or post prandial symptoms aver ulcer surgery. The Veteran reported a history of daily nausea associated with esophageal disease precipitated by certain foods and a reclining position. There was no history of vomiting pain, or dysphagia associated with esophageal disease. There was a history of daily heartburn and daily regurgitation. He treated his problems esophageal reflux with zantac in the past, and currently with antacids. There was no history of hematemesis or melena and the only continuous medication was antacids. Physical examination in December 2005 revealed that the Veteran's overall general health was good; there were no signs of anemia and no pulmonary abnormalities from aspiration. The Veteran weighed over 204 pounds at a height of 70 inches and there were no signs of significant weight loss, malnutrition or weight change. Other significant findings included diffuse abdominal tenderness with hypoactive bowel sounds but no organomegaly and no masses. The examiner stated in December 2005 that endoscopic examination while the Veteran was in the military revealed no evidence of esophagitis but did show evidence of gastritis without being H. Pylori positive. As a summary the examiner stated that the Veteran had chronic gastritis, H. Pylori negative in the past; with not evidence of esophagitis on endoscopy performed while in the military. As to ulcerative colitis, the examiner found a date of onset of 2003 and that the Veteran reported abdominal pain, with constipation / diarrhea and bloody stools. Physical examination revealed no signs of anemia, weight loss or malnutrition, or abdominal mass, but he had generalized abdominal tenderness. Liver palpation was normal; his overall general health was good. As to the hepatitis B, the examiner reported in December 2005 that the Veteran was diagnosed with hepatitis on routine blood work, had not undergone any treatment, and was asymptomatic. There was no elevation of the Veteran's liver enzymes during service, no current treatment, and the Veteran had been stable since onset. He had no history of incapacitation episodes of chronic liver disease during the previous 12 month period. There were no extra - hepatic manifestations of the disease and no current symptoms. Physical examination revealed a liver of normal size and consistency, no evidence of malnutrition and no evidence of ascites or portal hypertension and no other signs of liver disease. In March 2008, the Veteran underwent another VA examination with regard to his digestive disability. The Veteran reported that he had no overall weight gain or loss, has nausea, but no vomiting and has no constipation but does have diarrhea once per week that lasts one day. He reported this as consisting of three or possibly a few more bowel movements per day. He had no history of fistula. The Veteran reported that he takes medication regularly, but the examiner noted that the last prescription of the Veteran's medication was a three month prescription in August 2002. The Veteran reported pains of the upper abdomen on a daily basis and worse with certain foods or if he does not eat. He reported a flare up in September, although the examiner noted that there was nothing in the record to indicate treatment at that time. The examiner also noted that on the last appointment in the VA gastrointestinal clinic it was noted that the Veteran stated that he felt fine, had no problem, no side effects from medications, no emergency room visits, and had compliance with medication. As to gastroesophageal reflux, the Veteran reported that he has a burning pain in the epigastric area that is brought on with certain foods and that he treats this with over the counter Pepcid once per week. He reported that he has no dysphagia and no hematasis but that he does have blood in his stools, which the Veteran thought was due to colitis. There was no regurgitation or vomiting. He had no hospitalizations or surgeries. As to hepatitis B, the Veteran reported that he was diagnosed in 2004. The examiner noted that the Veteran had a negative hepatitis B surface antigen testing in 2005. He also noted that the Veteran has had no incapacitating episodes, no fatigue, malaise, anorexia, weight loss, right upper quadrant pain, or hematomegaly. He had no extra-hepatic manifestation of liver disease. The examiner provided a diagnosis of hepatitis B resolved with no residual. The Board finds that the preponderance of the evidence is against assigning an initial rating greater than 30 percent for gastritis and ulcerative colitis with hepatitis B. These examination reports, along with the service treatment records provide evidence against assigning a disability rating based on hepatitis B. The Veteran's condition meets none of the criteria for any rating for hepatitis B. He always has been asymptomatic. There is no evidence favorable to assigning a rating based on his hepatitis B. The Veteran also has never been found to suffer from malnutrition so an initial rating greater than 30 percent is not warranted based on application of DC 7323. Indeed, there are affirmative findings that the Veteran has no malnutrition and no affirmative findings that he has ever had malnutrition. Although the Veteran has reported pain and there is at least one report of vomiting, there are affirmative findings that he has not had any significant weight loss and there are no findings to the contrary. Similarly, the Veteran has never been found to have anemia but there are findings that he does not have anemia. Importantly, he has always been found to be in good general health. There are no findings that the Veteran has ever had considerable impairment of health due to his gastritis and ulcerative colitis with hepatitis B. Hence, all evidence of record is against assigning an initial rating greater than 30 percent for the Veteran's gastritis and ulcerative colitis with hepatitis B. Extraschedular ratings The RO considered whether ratings outside of the schedule were appropriate with regard to the Veteran's hypertension and gastritis and ulcerative colitis with hepatitis B and determined that referral for extraschedular consideration was not warranted. The Board agrees. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2009). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). More recently, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board first must determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. All symptoms and the level of disability resulting from the Veterans hypertension and gastritis and ulcerative colitis with hepatitis B are addressed by criteria found in the rating schedule. Although headaches, which the Veteran attributes to his hypertension, are not addressed in the criteria for hypertension, the Veteran is in receipt of disability compensation benefits for his headaches under different criteria. Therefore, the first prong of the Thun test is not satisfied and referral for extraschedular consideration is not warranted. ORDER Entitlement to service connection for right shoulder bursitis is granted. Entitlement to service connection for lung disease is denied. The claim for service connection for a scar of the Veteran's back, residual of inservice lipoma excision, is dismissed. Entitlement to service connection for lipomas of the Veteran's back, other than a residual scar, is denied. Entitlement to an initial rating greater than 30 percent for gastritis (also claimed as gastroesophageal reflux) and ulcerative colitis with hepatitis B is denied. Entitlement to an initial compensable rating for hypertension is denied. ____________________________________________ MICHAEL T. OSBORNE Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs