Citation Nr: 1306667 Decision Date: 02/27/13 Archive Date: 03/01/13 DOCKET NO. 10-31 708 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a disability evaluation in excess of 20 percent for degenerative arthritis with spondylolysthesis, thoracolumbar spine. 2. Entitlement to a compensable disability evaluation for residuals, scar, status post excision of lipoma, right thigh. 3. Entitlement to a disability evaluation in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD James G. Reinhart, Counsel INTRODUCTION The Veteran served on active duty from July 1971 to July 1974 and from March 1976 to September 1994. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction is with the Portland Oregon RO. In August 2012, the Veteran testified via video-conference at a hearing before the undersigned Veterans Law Judge. A transcript of that hearing is associated with the claims file. FINDINGS OF FACT 1. During the August 2012 Board hearing, which was prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to a disability evaluation in excess of 20 percent for degenerative arthritis with spondylolysthesis, thoracolumbar spine. 2. During the August 2012 Board hearing, which was prior to the promulgation of a decision in the appeal, the Veteran withdrew his appeal as to the issue of entitlement to a compensable disability evaluation for residuals, scar, status post excision of lipoma, right thigh. 3. During the appeal period, the Veteran's systolic blood pressure has not been predominantly 110 mm. Hg. or greater and diastolic blood pressure has not been predominatly 200 mm. Hg. or greater. CONCLUSIONS OF LAW 1. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a disability evaluation in excess of 20 percent for degenerative arthritis with spondylolysthesis, thoracolumbar spine, have been met. 38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 2. The criteria for withdrawal of a substantive appeal on the issue of entitlement to a compensable disability evaluation for residuals, scar, status post excision of lipoma, right thigh have been met. 38 U.S.C.A. §§ 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012). 3. The criteria for a disability evaluation in excess of 10 percent have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104 Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Issues Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.202 (2012). Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204 (2012). In his May 2009 notice of disagreement, the Veteran appealed the RO's denial of all of the claims he had filed in October 2008. Following issuance of the June 2010 statement of the case, the Veteran indicated in block 9 of his July 2010 VA Form 9 substantive appeal that he had read the statement of the case and was appealing "only these issues." He did not list any issues in that block. In block 10 of that form he provided reasons for why he thought VA incorrectly decided the hypertension and back condition issues. On the record during the August 2012 Board hearing, the Veteran acknowledged that he wanted to withdraw the issues of entitlement to a disability evaluation in excess of 20 percent for degenerative arthritis with spondylolysthesis, thoracolumbar spine and entitlement to a compensable disability evaluation for residuals, scar, status post excision of lipoma, right thigh. See Board Hearing Transcript (T.) at 2. The Board finds that the Veteran's statement acknowledging his intention to withdraw the appeal as to those issues, once transcribed as a part of the record of his hearing, satisfies the requirements for the withdrawal of a substantive appeal. See, e.g., Tomlin v. Brown, 5 Vet. App. 355 (1993). The Veteran has withdrawn his appeal regarding those issues, and, hence, there remains no allegation of error of fact or law for appellate consideration. Accordingly, the Board does not have jurisdiction to review the appeal of those issues, and they is dismissed. II. Duties to Notify and Assist As to the remaining issue before the Board, the Veterans Claims Assistance Act of 2000 (VCAA) provides that VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the RO. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The RO sent a letter to the Veteran in October 2008 providing him with adequate notice as to the evidence necessary to substantiate his claim and his and VA's respective duties in obtaining such evidence. In July 2009, it sent him an additional letter providing notice as to the criteria for rating hypertension. VA has a duty to assist a claimant in the development of a claim. This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained VA treatment records. The Veteran has not indicated any additional relevant outstanding records. VA provided the Veteran with adequate examinations in November 2008 and January 2012. An examination is adequate "where it is based upon consideration of the veteran's prior medical history and examinations and also describes the disability, if any, in sufficient detail so that the Board's 'evaluation of the claimed disability will be a fully informed one.'" Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007) (quoting Ardison v. Brown, 6 Vet. App. 405, 407-08 (1994)). There was no need for an opinion in this case as the rating criteria is simple and the Veteran has not reported any observable symptoms of limitations due to his hypertension other than that has to take medication. It is noted that the November 2008 examiner indicated that the claims file was not available for review and the January 2012 examiner did not state whether or not the claims file had been reviewed. However, the November 2008 report includes that the examiner reviewed the Veteran's medical records and the January 2012 examination provides information, such as recent laboratory results and blood pressure measurements prior to the date of the examination, that shows that she also reviewed the Veteran's medical history. There is no requirement that the claims file be reviewed, only that the relevant medical history is taken into consideration. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 303-04 (2008) (holding "that claims file review, as it pertains to obtaining an overview of the claimant's medical history, is not a requirement for private opinions"). Although, the holding in Nieves-Rodriguez is in terms of private medical opinions, the same principle applies to VA examinations. What is important is that the examiner review the medical history. Both examiners did so. Furthermore, there is nothing with regard to the Veteran's hypertension included in the claims file other than blood pressure measurements and medication lists, and all of that data in the claims file is consistent with what the examiners reported. Thus, the Board concludes that the examiners reviewed the relevant medical history and provided a sufficiently detailed description of the Veteran's hypertension. The examinations are adequate. The Board has considered that part of the hearing transcript in which the undersigned discussed leaving the record open for the Veteran to submit additional evidence. Specifically, the undersigned referred to the possibility of a new examination. T. at 6. Just prior to that statement, after the Veteran's representative requested that VA provide a new examination, the undersigned replied that "I'll take a look at the evidence and see if that indicates that would happen. Id. at 5. Having reviewed the evidence, it is clear that there is sufficient evidence of record to adjudicate the appeal. Also considered is the Veteran's representative's argument that another examination should be provided "to obtain appropriate ratings, you know, the confirmed ratings taken two or more times on at least three different days with the supporting new evidence that we're awaiting today, the personal log, and the doctors' notes. Id. at 5. That argument is without merit. First, the Veteran has not provided a personal log and there is no indication that there are any outstanding doctors' notes. Second, the representative's statement that appropriate readings are confirmed readings taken two or more times on at least three different days is misplaced in this case. The representative draws this argument from Note (1) under 38 C.F.R. § 4.104 Diagnostic Code 7101, which provides as follows: Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the systolic blood pressure is predominantly 160 mm or greater, with a diastolic blood pressure of less than 90 mm. The Board does not dispute that the Veteran has hypertension. This note goes only to confirming that the individual has hypertension. The Board does not dispute that the Veteran has hypertension. Furthermore, the note only refers to confirmation by readings taken; it does not impose a requirement that VA examinations consist of two or more readings taken on three different days. Even if that were the case, two or more readings were taken on three or more days in this case, during the January 2012, during the November 2008 examination, and on February 9, 2009, as documented in VA treatment records. Regardless, whether the Veteran has hypertension is not disputed and this note does not go to a rating higher than 10 percent. Accordingly, the Board finds that VA has met its duty to assist, with respect to obtaining a VA examination with respect to the issue on appeal, has been met. 38 C.F.R. § 3.159(c)(4). As indicated above, the Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the U.S. Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the RO Decision Review Officer or Veterans Law Judge who chairs a hearing to fulfill two duties: (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the August 2012 hearing, the undersigned Veterans Law Judge identified the single issue on appeal that had not been withdrawn. Also, the Veteran's representative elicited detailed information as to the nature of the Veteran's disability. It is clear from the hearing transcript that the Veteran was aware, and indeed the undersigned informed him, of the criteria for a higher evaluation and the Veteran explained why he believed a higher evaluation is warranted. The undersigned explained the issue and suggested the submission of evidence that the Veteran may have failed to submit, for example evidence from a physician who treats him for his hypertension. The examiner informed the Veteran that the record would be held upon for 60 days, specifically, until October 8, 2012, so that the Veteran could submit such evidence. Based on these facts, the Board finds that there has been compliance with the Court's holding requiring that the issue be "explained . . . in terms of the scope of the claim for benefits," and any "outstanding issues material to substantiating the claim" are fully explained. See Bryant, 23 Vet. App. at 497. Significantly, the Veteran has not submitted any evidence since the hearing or informed the Board that there is any such evidence in existence. As such, the Board finds that, consistent with Bryant, the undersigned Veterans Law Judge complied with the duties set forth in 38 C.F.R. 3.103(c)(2) and that the Board may proceed to adjudicate the claim based on the current record. Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist under the VCAA. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). III. Merits Service connection was established for hypertension in a May 1995 rating decision and a noncompensable disability evaluation was assigned. In an April 2006 rating decision, the RO granted an increased evaluation, to 10 percent, effective in January 2006. More recently filed in the claims file than that decision is a VA Form 21-4138 date stamped as received on October 24, 2007 and signed by the Veteran's representative in January 2006. In that document the representative requested an increased rating for the Veteran's hypertension. This document is stamped "Duplicate." It is a copy of the document received in January 2006. However filed just behind the copy stamped as received on October 24, 2007 is a 7 page "log" of blood pressure measurements for dates between January 1, 2007 and July 31, 2007. None of those pages bear a date stamp. Given the dates listed in the log and the date stamped on the "Duplicate" document, the Board concludes that the log was also received on October 24, 2007. Yet another copy is filed later in the claims file and the log is date stamped August 15, 2007. In the January 2009 decision on appeal, the RO stated that it had received the Veteran's claim on October 17, 2008. This is incorrect. The claim was received August 15, 2007. The fact that the document received August 15, 2007 was a copy of the document received in January 2006 does not matter. The accompanying blood pressure log taken together with the submission of the somewhat generic request for an increased rating places the date of claim as August 15, 2007. It is noted that no new and material evidence was received within one year of the April 2006 rating decision so there is no question as to whether that decision became final. It did. The evidence received with the August 15, 2007 relates to the current claim, not to the claim adjudicated in April 2006. The Board finds that the RO's error as to the date of claim in this case is harmless error and a remand is not necessary. This is because there is no evidence favorable to the Veteran's claim for the dates from August 2006 to October 17, 2007 (one year prior to the correct date of claim to one year prior to the incorrect date of claim). At this point, the Board notes that all diastolic and systolic blood pressure measurement results listed in this document are in units of millimeters (mm.) of mercury (Hg.). Where blood pressures are recorded with a slash, the systolic is the first number and the diastolic is the second number; i.e., systolic/diastolic. The examiner who examined the Veteran in November 2008 considered a log of blood pressure measurements presented to that examiner by the Veteran and noted that he had one diastolic measurement of 110. The log contained in the file, and first received in August 2007, is not significantly different in light of the rating criteria. It includes approximately 180 separate dates of measurements. There is one diastolic pressure above 110; i.e. 113 on February 10, 2007. The highest systolic pressure is 180 recorded on April 16, 2007. The values listed in the claims file between August 2006 and January 2007 are even less favorable to his claim. As is evident from the rating criteria listed further along in the instant decision, the log submitted in August 2007 and the earlier evidence in the claims file is evidence unfavorable to the Veteran's claim for an increased rating and is so consistent with the November 2008 examination report that remanding the matter for the RO to consider those values, or in the alternative to schedule another examination, is not warranted. The Veteran was not prejudiced by the error in the date of claim on the part of the RO, it is harmless error and is not a reason to delay adjudication of this appeal by the Board. See generally Shinseki v. Sanders, 129 S. Ct. 1696 (2009) (explaining the harmless error rule in the context of claims for VA benefits). Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Once service connection has been established and the Veteran is not disagreeing with the initial rating but rather is asserting that the disability has worsened and a higher rating is warranted, as in this case, "the relevant temporal focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim." See Hart v. Mansfield, 21 Vet. App. 505, 509 (2007) (explaining a difference between an increased rating claim and a disagreement with the initial rating assigned). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether 'staged ratings" are warranted; i.e. separate ratings for different periods of time, based on the facts found. Hart v. Mansfield, 21 Vet. App. 505 (2008). Hypertension is rated based on the criteria found at 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Diastolic pressure predominantly 120 or more warrants a 40 percent rating. Id. Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, warrants a 20 percent rating. Id. Diastolic pressure predominantly 100 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominately 100 or more who requires continuous medication for control, warrants a 10 percent rating. Id. Included in the VA treatment records going back to prior to one year before he filed his claim are blood pressure measurements "faxed" to VA from the Veteran or his spouse. None of the measurements included a systolic value at or above 200 or a diastolic value at or above 110 and most were well below those numbers. December 2006 treatment notes are representative and include 6 blood pressure measurements. These list the pressure measurements and state that the range of 6 blood pressure readings for the dates of December 1, 2006 to December 6, 2006 was 127-162 / 78-104. These values are all less than the systolic value of 200 and less than the diastolic value of 110 specified in the rating criteria. This evidence is therefore evidence unfavorable to his claim for a rating higher than 10 percent. The log of blood pressure measurement for the dates between January 1, 2007 and July 31, 2007 is evidence against the Veteran's claim. No systolic blood pressure was greater than 180 and most were under 150. One diastolic pressure was above 110 and most were under 100. That log shows that his hypertension does not approximate the criteria for a rating higher than the 10 percent already assigned. As noted above, VA provided two examinations during the course of this appeal. Although the claims file was not reviewed for the first examination, in November 2008, the examiner indicated that the Veteran's medical records were available and she did review them. The examiner recorded a clinical history including information clearly obtained from the Veteran, a record of his blood pressure measurements that he had taken. The examiner documented that the Veteran reported taking his blood pressure the same time every day and she noted that his systolic pressure for the first two weeks ranged from 123 to 157. The examiner also stated that he had one diastolic pressure that was 100, one that was 110 during those two weeks, one of 110 the previous month, and that otherwise all were below 90. She noted that he was taking medication in treatment of his hypertension. Physical examination included blood pressure measurements of 139/91, 129/80, and 122/68. Diagnosis was hypertension, in fairly good control on oral medication. This examination report is evidence unfavorable to the Veteran's claim because it shows that his hypertension did not approximate the criteria for a rating higher than 10 percent. Since that examination, and prior to the January 2012 examination, VA treatment records include numerous blood pressure measurements, for example, as follows: 138/91 and 120/76 on February 9, 2009; 129/74 on November 21 2011, 127/82 on October 31, 2011, 141/82 on October 19, 2011, 126/74 on September 21, 2011. 119/68 August 10, 2011, 134/81 on August 6, 2011, 132/74 on April 5, 2011, 105/65 on November 1, 2010, 136/91 on June 22, 2010, 138/89 on April 23, 2010, and 132/77 on January 25, 2010. This evidence is therefore evidence unfavorable to his claim because it shows that his hypertension did not approximate the criteria for a rating higher than 10 percent. The January 2012 examination report documents a relevant medical history including that the Veteran had been on medication for hypertension since being diagnosed in 1991 and that the medications have not changed significantly in the past year. She stated that control was fair based on recent available readings. She documented blood pressure readings from December 2011, of 147/99, 149/91, and 145/92. She stated that he had a history of diastolic elevation to predominantly 100 or more when off medication with infrequent elevations greater than 100 when on medication. Measurements obtained during the examination were 131/83, 133/80, and 120/69. The examiner reported that his hypertension did not impact on his ability to work. Although the examiner did not specifically state that she had or had not reviewed the claims file, she noted the history just described as well as noting a laboratory result (serum creatinine) from October 2011. This indicates that she considered the relevant medical history. This examination report is therefore evidence unfavorable to his claim for a rating higher than 10 percent. This medical evidence is unfavorable to a finding that the Veteran's hypertension has approximated the schedular criteria for a rating higher than 10 percent for any time on appeal. This is clear from the results just discussed as the Veteran's systolic pressure was never near 200 and his diastolic pressure was not predominantly 110 or greater. The Veteran's statements regarding a higher disability rating for his hypertension are best characterized as arguments and contentions rather than opinions. With regard to those statements, the Board finds the examination reports and treatment records more probative than his statements. During the August 2012 hearing, the Veteran testified that his systolic pressure has gone as high as 182 and that his diastolic goes to 105. Id. at 4. He then testified that "I'm under the 110 mark but it does go over occasionally." Id. Thus, even accepting his testimony as accurate, the criteria have not been approximated for a rating higher than 10 percent. His statements are consistent with denying a higher rating. Based on all evidence of record, the preponderance of evidence shows that the Veteran's hypertension has not approximated the criteria for a schedular rating higher than 10 percent for any period of time on appeal. Also considered by the Board is whether referral is warranted for a rating outside of the schedule. 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) (2012). 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. 38 C.F.R. § 3.321(b). Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, the Board or the RO 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. Here, there are no reported symptoms of his hypertension during the appeal period, only the blood pressure readings. Although not in the context of seeking an extraschedular rating, the Veteran's representative reported that a physician had written a statement that the Veteran has significant hypertension requiring multiple prescription medications and that if he is not able to take his medication, elevation of his blood pressure would put him at significant risks of life threatening complications. T. at 4. She also argued that his comorbid diabetes increases such risks making it imperative that he remains on all of his medications. Id. This argument is one of possibilities and the need to follow medical advice. It is not one of symptomatology or one that he has a level of disability that is not contemplated by the schedular criteria. Here, the schedular criteria contemplates his symptoms in that it provides ratings for the extent of his elevated blood pressure. Moreover, it cannot be said that the level of disability he has is not addressed by the schedular criteria. His disability is the extent of elevated blood pressure and the schedule provides ratings not only for his current level of disability but for greater disability as is reflected by the ratings available for more elevated blood pressures. The Board can discern no symptomatology or level of disability suffered by the Veteran that is not addressed by the criteria. Hence, the Board declines to remand this issue for referral for extraschedular consideration. (CONTINUED ON NEXT PAGE) In summary, the preponderance of evidence is against the Veteran's claim for a rating higher than 10 percent for hypertension. The appeal as to this issue must therefore be denied. There is no reasonable doubt to be resolved as to this issue. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER The issue of entitlement to a disability evaluation in excess of 20 percent for degenerative arthritis with spondylolysthesis, thoracolumbar spine, is dismissed. The issue of entitlement to a compensable disability evaluation for residuals, scar, status post excision of lipoma, right thigh, is dismissed. Entitlement to a disability evaluation in excess of 10 percent for hypertension is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs