Citation Nr: 1012985 Decision Date: 04/06/10 Archive Date: 04/14/10 DOCKET NO. 08-37 082 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for chronic obstructive pulmonary disease (COPD). 2. Entitlement to an increased evaluation for hypertension, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD Carolyn Wiggins, Counsel INTRODUCTION The Veteran served on active duty from August 1965 to December 1968 and from January 1970 to February 1987. This appeal arises from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. FINDINGS OF FACT 1. The claims folder does not include any competent medical evidence linking any current pulmonary disorder to service. 2. The Veteran's hypertension does not produce blood pressure readings predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. COPD was not incurred or aggravated in active military service. 38 U.S.C.A. § 1110 (West 2002); 38 C.F.R. § 3.303 (2009). 2. 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 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board must first address VA's duty to notify and assist claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2005); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). The Veteran submitted his claim in May 2006. The RO responded with a letter in June 2006 that met its notice requirements. In addition, the Veteran's VA and private records of treatment were obtained. A VA examination was conducted and a medical opinion was obtained. The Veteran did not wish to appear at a hearing. The Veteran has not identified any additional relevant evidence which has not been obtained or submitted. The Board finds that no further notification or assistance is necessary. Service Connection for COPD To establish service connection for a claimed disability, the facts as shown by evidence must demonstrate that a particular disease or injury resulting in current disability was incurred during active service or, if preexisting active service, was aggravated therein. 38 U.S.C.A. §§ 1110, 1131 (West 2002). On service entrance examination in August 1965 no disorders of the lungs were found. On physical inspection for entry into his second period of active service the Veteran's lungs and chest were noted to be normal. In service the Veteran was treated for an upper respiratory infection in January 1972. He was admitted to the hospital in July 1973 with pneumonia. He complained of a cough, body aches, and fever in March 1980 and pneumonia was diagnosed. He was treated in September 1981 and February 1982 for an upper respiratory infections. December 1986 service treatment records indicate he had a cough, was short of breath, and had tightness in his neck He was noted to be a nonsmoker. An upper respiratory infection was diagnosed. Service medical facility records in November 1988 indicate he was again treated for a viral upper respiratory infection. Private medical records include results of a pulmonary function test which revealed moderately severe obstructive airway disease. December 2005 VA records noted there had been a diagnosis of COPD by pulmonary function testing. A evaluation by a private physician in July 2006 includes a diagnosis of chronic obstructive pulmonary disease (COPD). A VA physician reviewed the Veteran's medical records and rendered the following opinion in November 2007. There is in CPRS a pulmonary function study performed on October 10, 2007 in preparation for this examination today. The FEV1/ FEV was normal. FVC was decreased. This combination of findings indicates that Veteran had restrictive disease. He has a large abdominal panniculus and drinks six to eight beers per day. It is my opinion that his restrictive disease is caused by his body habitus particularly his large protuberant abdomen. . . . It is my opinion that neither the restrictive pulmonary condition caused by his large protuberant abdomen nor his chronic obstructive pulmonary disease are caused by the right lower lobe pneumonia documented as having occurred in the military. The Veteran's present pulmonary conditions are not the same as those occurring in the military. The Veteran contends that his current pulmonary disorders first began in service and in the alternative asserts they are related to exposure to second hand smoke in service. Generally, in order to establish service connection for the claimed disorder, there must be (1) medical evidence of a current disability; (2) medical, or in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. See Hickson v. West, 12 Vet. App. 247, 253 (1999). The claims folder includes current diagnoses of both obstructive and restrictive pulmonary defects. There is also no question the Veteran was treated in service for various respiratory disorders. The question is whether there is a link between the respiratory disorders treated in service and his currently diagnosed obstructive defect. While the Veteran is certainly competent to describe his symptoms, the evidence does not indicate he has any special expertise or training which would qualify him to render a medical opinion. 38 C.F.R. § 3.159 (2009). For that reason the RO requested a medical opinion. The VA physician stated unequivocally that the pneumonia and respiratory infections treated in service are unrelated to the current pulmonary disorders. In the alternative the Veteran asserts his current pulmonary disorder was caused by exposure to second hand smoke in service. While the law prohibits granting service connection for disability attributable to the "Veteran's" use of tobacco products (See 38 C.F.R. § 3.300), no such prohibition exists for disease related to exposure to second hand smoke. The Veteran submitted numerous articles in support of his contention that he developed of his pulmonary disorders as result of exposure to second hand smoke. In weighing the evidence the Board noted the Court has instructed that medical textbooks, and articles may be too general in nature to provide, alone, the necessary evidence to link a current disability and a disease contracted during service. See Sacks v. West, 11 Vet. App. 314, 316-17 (1998). The medical treatise, [textbook, or article] must provide more than speculative, generic statements not relevant to the Veteran's claim but must discuss generic relationships with a degree of certainty for the facts of a specific case. Wallin v. West. 11 Vet. App. 509, 514 (1998). The articles submitted by the appellant do not provide statements based on the facts specific to his claim and are therefore without probative value here. The only competent medical evidence addressing the etiology of his pulmonary disorders does not link any current pulmonary disorder, including COPD to service or to exposure to second hand smoke in service. In the absence of competent medical evidence linking the claimed disability to service, service connection is not warranted. Increased Rating for Hypertension Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Board notes that while the regulations require review of the recorded history of a disability by the adjudicator to ensure an accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the level of the Veteran's disability during the appeal period is the primary concern. Staged ratings are appropriate whenever the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The Schedule for Rating Disabilities provides the following criteria for rating hypertension: A 10 percent rating is assigned 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. A 20 percent rating is assigned with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). Hypertension was diagnosed and treated in service. Upon his discharge from the service the Veteran applied for service connection and in June 1987 service connection for hypertension was granted and a 10 percent rating was assigned. The Veteran is seeking a higher rating for his service-connected hypertension. The rating for hypertension is based on blood pressure readings. A higher rating requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. The Board has reviewed the Veteran's private records of treatment, his VA medical records, and thoroughly reviewed his claims folder and found no evidence of any blood pressure readings which demonstrate diastolic pressure of 110 or more, or systolic pressure of 200 or more. The VA examination report of July 2006 did not include an elevated blood pressure reading meeting the criteria for a 20 percent rating. The evidence includes occasions when his blood pressure was taken in supine, standing and seated positions, blood pressure readings were taken on multiple dates and over several years. There are also readings recorded at each of his visits to his private physician none of which include the required elevated readings required for a higher rating. The evidence of record is clearly sufficient to provide a accurate picture of the severity of his hypertension as reflected by his blood pressure readings. Not only are there no blood pressure readings which include diastolic pressure of 110 or more, or systolic pressure of 200 or more, there is no pattern of such elevated readings establishing the Veteran's blood pressure is predominantly elevated to that level. An increased rating for hypertension is not warranted. ORDER Service connection for COPD is denied. An increased rating for hypertension is denied. ____________________________________________ MICHAEL E. KILCOYNE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs