BVA9402432 DOCKET NO. 92-06 575 ) DATE ) ) ) THE ISSUES 1. Entitlement to an increased rating for cluster headaches, currently evaluated as 50 percent disabling. 2. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. 3. Entitlement to an increased rating for Grade I spondylolisthesis at L4-5, currently evaluated as 10 percent disabling. 4. Entitlement to an increased (compensable) disability rating for the residuals of an excised right forearm sebaceous cyst. 5. Entitlement to an increased (compensable) disability rating for the residuals of an excised right leg sebaceous cyst. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD Martin F. Dunne, Counsel INTRODUCTION This matter comes before the Board of Veterans' Appeals (Board) from rating decisions of the Department of Veterans Affairs (VA) Montgomery, Alabama, Regional Office (RO). The veteran served on active duty from February 1976 until July 1991. A rating decision in September 1991 granted the veteran's claim for service connection for the conditions currently under consideration and assigned the compensable and noncompensable disability ratings being appealed. The appellant was notified of the decision by VA letter dated in October 1991. A notice of disagreement was received from him in November 1991 contending that the disability ratings assigned should have been greater. A statement of the case was issued to the veteran under cover letter dated in December 1991. The veteran then filed a substantive appeal in March 1992. The veteran's claims folder was forwarded to the Board in Washington, D.C., where it was received in May 1992. The appellant's accredited representative, The American Legion, prepared and submitted an informal presentation to the Board in June 1992. In March 1993, the Board remanded the case to the RO for further development. As instructed by the Board's remand, the RO, by VA letter dated in mid-March 1993, inquired of the veteran whether he wished to raise on appeal the issues of individual unemployability and service connection for a lung condition. If no response was forthcoming from him within 60 days, he was advised that it would be assumed he did not wish to raise those issues. No response was received from the veteran nor was VA's letter of March 1993 returned to the RO as being undeliverable. The assumption was made in the RO that the veteran did not wish to raise those issues. Because those issues have not been developed and certified for appeal, they are not before the Board at this time. Also pursuant to the Board's March 1993 remand, the veteran was scheduled in April 1993 for a VA comprehensive examination for evaluation purposes. The veteran did not report for the examination. A notation indicates that the veteran called to cancel his appointment "as he cannot come in at this time." By VA letter dated in early June 1993, the veteran was advised that the RO had been notified he had not reported for the scheduled examination and instructed him that, if he were still willing to report for an examination, he was to notify the RO within 15 days. No response was received from the veteran and VA's letter of June 1993 was not returned to the RO as being undeliverable. In July 1993, the veteran's claims folder was returned to the Board. The veteran's accredited representative prepared and submitted another informal presentation to the Board in July 1993. CONTENTIONS OF APPELLANT ON APPEAL Essentially, the veteran contends that his service-connected disabilities are such that more than the currently assigned disability ratings are warranted. In particular, he asserts that he experiences severe headaches, not migraine but cluster headaches, which have an adverse affect on him obtaining employment. It is his belief that the combined 60 percent service-connected disability rating does not accurately reflect his current medical condition. In support of the contentions, reliance is made upon the evidence of record. DECISION OF THE BOARD The Board, in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all of the evidence and material of record in the veteran's claims file. The Board has determined that only those items listed in the "Certified List" attached to this decision and incorporated by reference herein are relevant evidence in the consideration of the veteran's claim. Based on its review of the relevant evidence in this matter, and for the following reasons and bases, it is the decision of the Board that the evidence is against the claims for increased ratings for cluster headaches, hypertension, Grade I spondylolisthesis at L4-5, the residuals of an excised right forearm sebaceous cyst, and for the residuals of an excised right leg sebaceous cyst. FINDINGS OF FACT 1. All relevant evidence necessary for an equitable disposition of the veteran's claim has been obtained by the RO. 2. The veteran's cluster headaches are manifested by complaints of frequent headaches as often as 5 to 6 per day. CT scan results show no abnormality. 3. Since 1988, continuous medication is shown necessary for the control of the veteran's hypertension and there is a history of diastolic pressure of predominantly 100 or more but not predominantly 110 or more. 4. The veteran's Grade I spondylolisthesis is manifested by complaints of back pain with X-rays showing L4-5 spondylolysis with approximately 25 percent spondylolisthesis. 5. In 1987, a sebaceous cyst was excised from the veteran's right forearm. No subsequent medical treatment is recorded for any residuals thereof. 6. In 1987, a sebaceous cyst was excised from the calf of the veteran's right leg. No subsequent medical treatment is recorded for any residuals thereof. CONCLUSIONS OF LAW 1. The veteran's cluster headaches are 50 percent disabling, according to the schedular rating criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 3.321, 4.2, 4.20, Part 4, Code 8100 (1993). 2. The veteran's hypertension is 10 percent disabling, according to the schedular rating criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. § 4.2, Part 4, Code 7101 (1993). 3. The veteran's Grade I spondylolisthesis at L4-5 is 10 percent disabling, according to the schedular rating criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. §§ 4.2, 4.40, Part 4, Code 5293 (1993). 4. The residuals of the veteran's excised right forearm sebaceous cyst are noncompensably disabling, according to the schedular rating criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 7805 (1993). 5. The residuals of the veteran's excised right leg sebaceous cyst are noncompensably disabling, according to the schedular rating criteria. 38 U.S.C.A. §§ 1155, 5107 (West 1991); 38 C.F.R. Part 4, Code 7805 (1993). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS This section of the Board, in reaching its decision in accordance with the provisions of 38 U.S.C.A. § 7104 (West 1991), has reviewed and considered all relevant evidence and material of record incorporated in the claims folder and its attachments. Initially, the Board finds that the veteran has presented a well- grounded claim; that is, one which is plausible. The Board also finds that VA has adequately fulfilled its responsibility to assist him in the development of his claim. 38 U.S.C.A. § 5107(a) (West 1991). In March 1993, the Board remanded the case to the RO for further development. By VA letter dated in March 1993, the veteran was requested to submit additional information and to provide clarification as to his claim. No response was received from him. Under separate cover letter, also dated in March 1993, the veteran was advised that arrangements were being made for him to undergo a VA physical examination. The veteran canceled the April 1993 scheduled examination. He was sent a follow-up letter by VA in June 1993 pertaining to rescheduling that examination. No response was received from the veteran. The Board stresses that the duty to assist the veteran in the development of his claim is not a one-way street. The veteran bears some responsibility in this regard. Wood v. Derwinski, 1 Vet.App. 190 (1991). In particular, the appellant has an obligation to report for scheduled VA physical examinations. When he fails to report for such examination in conjunction with an original compensation claim, the claim shall be rated based on the evidence of record. When the examination was scheduled in conjunction with a claim for increase, the claim shall be denied. 38 C.F.R. § 3.655 (1993). In evaluating service-connected disabilities, the Secretary shall adopt and apply a schedule of ratings, based on reductions in earning capacity, for specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairment of earning capacity resulting from such injuries in civil occupations. 38 U.S.C.A. § 1155 (West 1991). In considering the residuals of injury, the medical history and circumstances of the injury are taken into consideration. 38 C.F.R. § 4.41 (1993). I. Cluster Headaches The veteran served on active duty for 15 and one-half years. During this period of time, his service medical records show that he had multiple hospitalizations for treatment of cluster headaches. Toward the end of his active duty service, he was complaining of headaches as frequently as 5 to 6 times a day. In September 1990, he underwent a Vidian neurectomy. Post-operatively, he did well with relief of headaches; however, there was a recurrence of the headaches approximately one month following the surgery. In December 1990, he was again hospitalized prior to a military medical board evaluation. The results of a neurological examination, conducted while the veteran was hospitalized in January 1991, were essentially normal. The impression noted was chronic cluster headaches. The 1991 military Medical Evaluation Board report notes that the veteran was experiencing 2 to 8 headaches a day, each lasting approximately an hour or longer. At the time, he was receiving only moderate relief with narcotic analgesics. The prognosis for recovery was listed as guarded. The physical examination report also notes that the veteran had a history of chronic cluster headaches that had not responded to various treatment protocols. The report concluded that this condition restricted the veteran's ability to perform his military duties and that the veteran's condition rendered him unfit for further active duty service. VA's Schedule for Rating Disabilities is used for evaluating the degree of disabilities in claims for disability compensation. The provisions contained in the rating schedule represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations resulting from disability. Ratings are based, as far as practical, upon the average impairment of earning capacity with the additional proviso that the Secretary shall, from time to time, readjust the schedule of ratings in accordance with experience. In exceptional cases, where the scheduled evaluations are found to be inadequate, an extraschedular evaluation commensurate with the average earning capacity impairment due exclusively to the service- connected disability, or disabilities, may be made. The governing norm in such cases is to make a finding that the case presents such an exceptional or unusual disability picture with related factors, such as marked interference with employment or frequent periods of hospitalization, as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321 (1993). When an unlisted condition is encountered, it will be permissible to rate the condition under a closely related disease or injury in the Schedule for Rating Disabilities in which not only the functions affected but the anatomical localization and symptomatology are closely analogous. Conjectural analogies will be avoided, as will the use of analogous ratings for conditions of doubtful diagnoses or for those not fully supported by clinical and laboratory findings. Ratings assigned organic diseases and injuries will not be assigned by analogy to conditions of functional origin. 38 C.F.R. § 4.20 (1993). VA's Schedule for Rating Disabilities rates cluster headaches analogous with migraine headaches. Under Code 8100, a 50 percent evaluation requires very frequent, completely prostrating and prolonged attacks productive of severe economic inadaptability. This is the maximum schedular rating afforded for service-connected cluster headaches. In the case at hand, the veteran's cluster headaches are rated 50 percent disabling. For a rating in excess of 50 percent, the record must reflect an exceptional or unusual disability picture. A review of the veteran's medical records does not show that such exceptional circumstances exist. The latest clinical evidence, as noted at the military medical evaluation shortly before his service discharge in 1991, shows the veteran experiencing 2 to 8 headaches a day with normal neurological examination findings. The veteran was recently afforded the opportunity to undergo VA examination for evaluation purposes but he did not report for the scheduled examination nor did he express his desire to have the examination rescheduled, although he was invited to do so. Under the circumstances, the 50 percent disability rating properly reflects the severity of the veteran's cluster headaches. II. Hypertension The veteran's service medical records show that hypertension was diagnosed in 1988. Since that time, he has been taking medication to control the hypertension. During the last several years of the veteran's military service numerous blood pressure readings were taken, with several diastolic readings of 110 or above having been registered. However, the diastolic readings were overwhelmingly under 110, with many under 100. At the time of his Medical Board Evaluation, the veteran, 33 years old at the time, was described as mildly obese, in no acute distress and afebrile. He had a blood pressure reading of 150/100, a pulse of 100 and a respiratory rate of 20. The diagnosis was uncomplicated hypertension. He was given a good prognosis and the hypertension was considered to be fairly well controlled with medication. Under Code 7101, a 10 percent evaluation is warranted for hypertensive vascular disease (essential arterial hypertension) where the diastolic pressure is predominantly 100 or more. A minimum 10 percent evaluation is also assigned when continuous medication is shown to be necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. In order to warrant a 20 percent disability evaluation, the medical evidence must show that the diastolic pressure has been predominantly 110 or more with definite symptoms. Although the veteran's diastolic pressure has, on occasion, registered 110 or higher, the diastolic blood pressure readings have been predominantly under 110 with medication necessary for control. Under the circumstances, the criteria for a disability rating in excess of 10 percent have not been met. III. Grade I Spondylolisthesis The veteran's service medical records show that, beginning in August 1987, he began complaining of acute low back pain which radiated into the right paraspinous area, right buttock and down the right posterior part of his thigh to his right knee. At the time, X-rays were taken which revealed L4-5 spondylolysis with approximately 25 percent spondylolisthesis at that level. He was thereafter seen on occasion for complaints of low back pain. In late 1989, he was seen for low back pain which had its onset while he was chopping wood. However, subsequent medical records, including the Military Evaluation Board assessment, do not reflect complaints or treatment for back problems. Under Code 5293, a 10 percent evaluation is warranted for mild intervertebral disc syndrome. A 20 percent evaluation requires moderate intervertebral disc syndrome with recurring attacks. Given the medical evidence showing that in service X-rays revealed L4-5 spondylolysis with approximately 25 percent spondylolisthesis, but a lack of recent medical evidence showing a greater degree than mild interveterbral disc syndrome, a 10 percent rating is considered to reflect appropriately the severity of the veteran's back disability. The medical evidence does not show that the veteran is experiencing moderate interveterbral disc syndrome with recurring attacks such as to meet the criteria for a 20 percent disability rating. The 10 percent rating currently in effect takes into consideration the veteran's complaints of back pain and functional loss of the back. 38 C.F.R. § 4.40 (1993). IV. Residuals of a Right Forearm Sebaceous Cyst Excision The veteran's service medical records show that he had a sebaceous cyst removed from his right forearm in May 1987. The subsequent medical records do not indicate that the cyst recurred, and there is no indication in those records that the veteran received any follow- up treatment for the cyst or treatment for any residuals of the excised cyst. The residuals of the veteran's excised cyst are rated as scars pursuant to VA's Schedule for Rating Disabilities. Under Code 7805, scars may be evaluated on the basis of any related limitation of function of the body part which they affect. The schedule does not provide a zero percent rating for a scar on the forearm; however, where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (1993). Under Code 7804, a 10 percent evaluation is warranted for superficial scars which are tender and painful on objective demonstration. The medical evidence of record does not show either that the scar at the site of the excised cyst is tender and painful or that it causes any limitation of function of the forearm. On the basis of the current medical record, the criteria for a 10 percent rating for the residuals of the veteran's excised cyst from the right forearm are not met. V. Residuals of a Right Leg Sebaceous Cyst Excision In May 1987, the veteran also underwent the excision of a sebaceous cyst from his right calf. The subsequent medical evidence does not show any complaints or symptomatology associated with follow-up treatment for residuals of the excision of the cyst. The residual scar from the excision may be evaluated on the basis of any related limitation of function of the affected area. However, the medical records do not show that the veteran has either any such limitation at the site of the excised cyst or that the scar is tender and painful on objective demonstration. As with the veteran's residuals of the excised right forearm sebaceous cyst, the residuals of the sebaceous cyst excised from the right calf are also rated under Code 7804 and same criteria apply. A zero percent is currently in effect which accurately reflects the severity of the disability. ORDER Entitlement to increased ratings for cluster headaches, hypertension, Grade I spondylolisthesis at L4-5, the residuals of an excised right forearm sebaceous cyst, and for the residuals of an excised right leg sebaceous cyst are denied. BOARD OF VETERANS' APPEALS WASHINGTON, D.C. 20420 BETTINA S. CALLAWAY MATTHEW J. GORMLEY, III * (Member temporarily absent) *38 U.S.C.A. § 7102(a)(2)(A) (West 1991) permits a Board of Veterans' Appeals Section, upon direction of the Chairman of the Board, to proceed with the transaction of business without awaiting assignment of an additional member to the Section when the Section is composed of fewer than three Members due to absence of a Member, vacancy on the Board or inability of the Member assigned to the Section to serve on the panel. The Chairman has directed that the Section proceed with the transaction of business, including the issuance of decisions, without awaiting the assignment of a third Member. NOTICE OF APPELLATE RIGHTS: Under 38 U.S.C.A. § 7266 (West 1991), 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 (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.