Citation Nr: 0125772 Decision Date: 11/02/01 Archive Date: 11/13/01 DOCKET NO. 99-11 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Detroit, Michigan THE ISSUES 1. Entitlement to a compensable initial rating for hypertension with premature ventricular contractions and hyperlipidemia, prior to February 22, 1995. 2. Entitlement to an increased initial rating for hypertension with premature ventricular contractions and hyperlipidemia, rated as 10 percent disabling from February 22, 1995. REPRESENTATION Appellant represented by: Vietnam Veterans of America WITNESS AT HEARINGS ON APPEAL The veteran ATTORNEY FOR THE BOARD C. Crawford, Counsel INTRODUCTION The veteran had active service from August 1957 to February 1958 and from February 1962 to February 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 1994 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Waco, Texas, which granted service connection for hypertension and assigned a noncompensable rating, effective April 28, 1993. In May 1995, the noncompensable initial rating was increased to 10 percent, effective February 22, 1995. Thereafter, the veteran's claims folder was transferred to the RO in Detroit, Michigan. In October 2000, the Board remanded the case for additional evidentiary development. The matters remain denied, and, as such, have been returned for appellate review. FINDINGS OF FACT 1. The VA has made reasonable efforts to assist the veteran in obtaining information and evidence necessary to substantiate his claims. 2. Prior to February 22, 1995, the veteran's hypertension was manifested by diastolic pressure that was predominantly less than 100. 3. Since February 22, 1995, the veteran's hypertension has been manifested by diastolic pressure predominantly less than 110 and systolic pressure predominantly less than 200. CONCLUSIONS OF LAW 1. The criteria for a compensable initial rating for hypertension with premature ventricular contractions and hyperlipidemia have not been met at any time prior to February 22, 1995. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7101 (in effect prior to January 12, 1998). 2. The criteria for an initial rating in excess of 10 percent for hypertension with premature ventricular contractions and hyperlipidemia have not been met at any time since February 22, 1995. 38 U.S.C.A. §§ 1155, 5107 (West 1991 & Supp. 2001); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101 (in effect prior to and since January 12, 1998). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In this case, the Board is satisfied that all relevant facts pertaining to this claim have been properly and sufficiently developed. During this appeal, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA). 38 U.S.C.A. § 5100 et. seq. (West Supp. 2001). This law, among other things, redefines the obligations of VA with respect to the duty to assist. Regulations implementing the VCAA were issued in August 2001. 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R. §§ 3.102, 3.159, and 3.326(a)). Despite the change in the law brought about by the VCAA, a remand of the issues on appeal is not required for compliance with the notice and duty to assist provisions contained in the new law. Here, the veteran has received notice of the evidence and information needed to substantiate his claims. A statement of the case was issued to him in April 1999 and supplemental statements of the case were issued in June 1999, August 1999 and June 2001. The documents informed the veteran of applicable law, regulations, and reasons and bases associated with his claims, as well as the type of evidence needed to substantiate the claims. The June 2001 SSOC also provided VCAA notice. In addition, the VA has made reasonable efforts to assist the veteran in obtaining evidence necessary to substantiate his claims. The veteran's private medical records and VA medical records have been obtained and incorporated into the claims folder, and VA examinations have been conducted. The veteran also has not identified any outstanding medical evidence. In the October 2001 informal hearing presentation, the veteran's representative argued that contrary to the Board's October 2000 remand instructions, the veteran's examination was not conducted by a board-certified physician or even a physician at all. In this regard, it is noted that while the VA examination accomplished in March 1999 was conducted by a physician's assistant, the evaluation was supervised by a physician. Further, the VA examination, which was accomplished in May 2001, was conducted by B.H., M.D., a Cardiology Fellow of the General Cardiology Clinic, and M.R.S., M.D., the Chief of the Cardiology Section. It is also noted that the Board's request for a VA cardiovascular examination by a board-certified specialist was conditioned on if one was available. The Board did not require that the examination only be conducted by a board-certified cardiology examiner. The representative also alleged that in May 2001, the examiners' noted that they had reviewed the veteran's medical record, but the veteran's medical record is not necessarily the same as his claims file. Thus, additional development was warranted. For this matter, the Board notes that the details contained within the May 2001 examination report are consistent with review of the veteran's claims file. The blood pressure readings discussed from 1968 to 1975 are generally consistent with those documented in the veteran's service medical records. Additionally, the blood pressure readings detailed after service are consistent with the veteran's VA and non-VA medical records. The examination report also contains pertinent clinical findings of the matter at issue as well as a discussion of the examiners' assessment and plan. In light of the foregoing, the Board finds that the May 2001 examination report is adequate for rating purposes. Prior to examining the veteran, the veteran's medical history was reviewed in compliance with the Board's remand instructions and the provisions of 38 C.F.R. § 4.2, and the examination report is sufficient to equitably dispose of the matters on appeal. Accordingly, the Board finds the RO complied with directions in the prior remand order and no additional action in this regard is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). Because the Board finds that no additional notification or development action is required under the VCAA and where the record demonstrates that the statutory mandates have been satisfied, the regulatory provisions likewise are satisfied, it would not be potentially prejudicial to the veteran if the Board were to proceed to issue a decision at this time. See Bernard v. Brown, 4 Vet. App. 384, 392-394 (1993). As previously noted, in May 1994, the RO granted service connection for hypertension with premature ventricular contractions and hyperlipidemia and rated the disability as noncompensably disabling, effective April 28, 1993. The veteran appealed. In May 1995, the noncompensable rating was increased to 10 percent, effective February 22, 1995. When a claimant is awarded service connection for a disability and subsequently appeals the RO's initial assignment of a rating for that disability, the claim continues to remain open as long as the rating schedule provides for a higher rating. Shipwash v. Brown, 8 Vet. App. 218, 224 (1995); see also AB v. Brown, 6 Vet. App. 35 (1993). Further, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on facts found-a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the veteran seeks a compensable initial rating prior to February 1995 and an initial rating in excess of 10 percent thereafter. Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment of earning capacity. Different diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. § Part 4. Effective prior to January 12, 1998, an evaluation of 10 percent was warranted for hypertensive vascular disease (essential arterial hypertension) with diastolic pressure predominantly of 100 or more. A 20 percent evaluation was warranted for diastolic pressure predominantly of 110 or more with definite symptoms, and a 40 percent evaluation was warranted for diastolic pressure predominantly of 120 or more with moderately severe symptoms. A 60 percent was warranted for diastolic pressure predominantly of 130 or more with severe symptoms. 38 C.F.R. § 4.104, Diagnostic Code 7101 (effective prior to January 12, 1998). By regulatory amendment effective January 12, 1998, substantive changes were made to the schedular criteria for evaluating diseases of the heart, as set forth in 38 C.F.R. § 4.104, Diagnostic Codes 7000-7017. See 62 Fed. Reg. 65207- 65244 (1997). Current regulation provides that a 10 percent rating is warranted for hypertensive vascular disease (hypertension and isolated systolic hypertension) with diastolic pressure predominantly of 100 or more, or; systolic pressure predominantly of 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Hypertensive vascular disease with diastolic pressure predominantly of 110 or more, or; systolic pressure predominantly 200 or more warrants a 20 percent rating; diastolic pressure predominantly 120 or more warrants a 40 percent rating; and diastolic pressure predominantly 130 or more warrants a 60 percent rating. 38 C.F.R. § 4.104, Diagnostic Code 7101 (effective since January 12, 1998). Note (1): 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 diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note (2): Hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is evaluated as part of the condition causing it rather than by a separate evaluation. It is noted that where the law or regulations governing a claim change while the claim is pending, the version most favorable to the claimant applies, absent congressional intent to the contrary. See Karnas v Derwinski, 1 Vet. App. 308, 312-313 (1991). However, where a change in the rating schedule has occurred, the revised version of the rating schedule cannot be applied prior to the effective date of the change. VAOPGCPREC 3-2000 (April 10, 2000). As such, the claim for an increased initial rating prior to February 1995 will be adjudicated under the old criteria, and the claim for an increased initial rating thereafter may be adjudicated under the old or the new criteria, whichever is more favorable to the veteran. 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. After reviewing and weighing the clinical data, the Board finds that the criteria for a compensable initial rating prior to February 22, 1995, have not been met, and the criteria for an initial rating in excess of 10 percent thereafter have not been met. Prior to February 22, 1995, the veteran's blood pressure readings failed to reveal a diastolic pressure predominantly of 100 or more. On VA examination in October 1993, the veteran reported that he was receiving private medical treatment for hypertension. However, objective VA examination showed a blood pressure reading of 140/90. Further, the heart appeared to be clinically normal in size with a regular rhythm and the veteran's peripheral pulses were normal. X-rays revealed that the cardiomediastinal silhouette and hila were within normal limits as well. The diagnoses included hypertension, essential, for which the veteran took Procardia and Corgard. Even though medical reports from D.H., M.D., record a blood pressure reading of 146/100 in August 1993, the reports thereafter do not show diastolic pressure of 100 or more. In December 1993 the veteran's blood pressure was 144/96 and 140/94, and in January 1994 it was 140/90 and 120/80. The reports also show that in March 1994 it was 124/86 and 130/90, and in June 1994 and July 1994 it was 148/94 and 110/78, respectively. The diagnoses were hypertension, hypertension-borderline controlled, and hypertension controlled. Additionally, in August 1994, D.H. reported the veteran's medical history included well-controlled hypertension on medication, and cardiovascular history, which was essentially negative. He also reported that on physical examination at that time the veteran's blood pressure was 128/74. Examination of the heart revealed a regular rate and rhythm with no murmurs, gallops, clicks, or rubs, and the point of maximal impulse was not displaced, sustained, or enlarged. The impressions included hypertension, well-controlled currently; isolated premature ventricular contractions on electrocardiogram with no ischemic changes, no symptoms of cardiac arrhythmia or palpitation, and no symptoms of angina; and hyperlipidemia, moderate. Further, although in January 1995, D.H. wrote that he had treated the veteran for severe hypertension since August 1993, and a private progress note in August 1993 reflected a diagnosis of 146/100, reported diastolic pressures in December 1993, January 1994, March 1994, June 1994, and July 1994 never exceeded 96. The January 1995 medical report showed a blood pressure reading of 130/96. Given the foregoing medical evidence, the Board finds that the prior to February 22, 1995, the requirements for a compensable evaluation were not met. The evidence does not demonstrate hypertensive vascular disease with diastolic pressure predominantly of 100. 38 C.F.R. §§ 4.3, 4.7, 4.31, 4.104, Diagnostic Code 7101 (effective prior to January 12, 1998). Review of the clinical data also fails to show that the requirements for an initial rating in excess of 10 percent have been met at any time since February 22, 1995. In December 1998, U.S.R., M.D., stated that, within the past one year, the veteran had had problems with uncontrolled hypertension, and that it had been necessary to initiate another medication to help control his blood pressure to a better extent. It was noted the veteran would be continued under close medical supervision for uncontrolled hypertension. A diastolic pressure reading was not recorded at that time. VA examinations were conducted in March 1999. On VA examination for hypertension and the heart, it was reported that the veteran's medications included daily Procardia, Cardura, Lipitor, and Synthroid. During the interview, the veteran reported that he walked approximately one mile three times a week and tried to keep himself in good shape. He also reported that he was able to walk up two flights of stairs as long as he did not move too quickly. He, however, noted intermittent light-headedness when rising too quickly. Physical examination showed a blood pressure reading while standing of 170/92; while sitting of 162/98; and while lying down of 140/86. The heart had normal rate and rhythm; the lungs were clear to auscultation; there was no jugular venous distention or ankle edema; and there was no sign of heart failure. It was recorded that an electrocardiogram revealed a normal sinus rate of 87 and diffuse nonspecific T-wave abnormalities. An adenosine sestamibi was normal. There were no perfusion abnormalities, and there was normal wall motion and thickening of the left ventricle with an ejection fraction of 56 percent. The diagnoses included hypertension, no evidence of coronary artery disease. Private medical reports dated from 1998 to 1999 show blood pressure readings of 140/98 in November 1998; 148/98 in December 1998; and 152/98 in April 1999. Additionally, during this period, clinical findings were essentially normal. The diagnosis remained hypertension. Of record is an Ambulatory Blood Pressure Report dated in April 1999 showing a blood pressure reading of 140/90. The highest and lowest systolic and diastolic readings were reported as 157 and 112, respectively. In July 1999, U.S.R. wrote that the veteran had moderately severe hypertension which required two medications to control, and that the veteran's blood pressure reading was 148/112. Additionally, an attached handwritten report shows blood pressure readings of 120/100 on July 13th; 130/110 on July 14th; 120/100 on July 15th; and 150/110 on July 16th. No medical verification of the handwritten report was indicated. The physician also submitted an October 1999 statement noting that the veteran had uncontrolled hypertension. Despite the aforementioned evidence, the Board does not find that the veteran's diastolic pressure has been predominately 110 or more, or systolic pressure has been predominately 200 or more. The July 1999 notation is the only medical documentation present showing a diastolic pressure of 112. Although the handwritten report notes diastolic pressure of 110, there is no indication that the report was medically verified, and, in any event, the July 1999 diastolic readings when viewed with evidence overall still fails to show that the veteran's diastolic pressure has been predominately 110 or more. In December 2000, U.S.R. stated that he had treated the veteran for the last year and a half for hypertension, hyperlipidemia, obesity, and hypothyroidism. The physician did not report any blood pressure readings however. Instead, he merely stated that the veteran's main problem has been that his hypertension has been difficult to control and that he has had wide fluctuations in his blood pressure. His readings were variable and labile. The physician reported that the veteran took Cozaar, Procardia, and Cardura. Although additional medical reports dated from 1997 to 2000 show treatment for hypertension, not one of the reports shows a diastolic pressure of 110 or more or a systolic pressure of 200 or more. Clinical entries dated in 1997 show assessments of hypertension and hypertension, good control, with reported blood pressures of 138/100, 138/92, and 132/82. A February 1998 clinical entry shows that the veteran denied having chest pain, or shortness of breath, and stated that he walked two miles a day. The reported blood pressure readings were 136/92 and 138/92. Additionally, examination of the heart revealed regular rate and rhythm; the lungs were well controlled; and the extremities were without edema. The assessments included hypertension well controlled. In November 1998, the veteran's blood pressure reading was 140/90 and the assessment was hypertension, poorly controlled. In December 1998, his blood pressure was 148/98. In April 1999, the veteran's blood pressure readings were 144/90, 140/90 and 152/98. The veteran denied any chest pain, headache, pedal edema, shortness of breath, or other symptoms. It was reported that he took Procardia and Cardura without any problems. Objective evaluation was unremarkable. The assessments included hypertension. A clinical entry dated later in April 1999 shows that the veteran's blood pressure reading was 140/90. In July 1999, the veteran reported diastolic pressures had been over 100. A blood pressure reading of 158/104 was noted. The assessment was hypertension, poorly controlled. A notation dated in September 1999 shows blood pressure readings of 148/100 and 146/100. The private medical reports also show that in October 1999, the veteran's blood pressure was 146/96, and in June 2000, the veteran's blood pressure readings were 140/100 and 144/100. At that time, the veteran denied any headache, chest pain, shortness of breath, or pedal edema. The assessment was hypertension, uncontrolled. A clinical entry dated in December 2000 shows that the veteran had very labile blood pressure readings. It was reported that the veteran had pressures anywhere from 170-180 systolic and up to 100 diastolic. At that time, a recheck of his blood pressure was 170/100. The assessments included very labile hypertension, rule out renal artery stenosis, and hyperlipidemia. A December 2000 renogram report revealing normal findings is also of record. In May 2001, a VA examination was conducted. On the examination report, the examiners' noted that the veteran's medical record had been reviewed and detailed his history for hypertension, hypercholesterolemia, and premature ventricular complexes. On physical examination, a blood pressure reading of the left arm was 162/102 and 154/100 of the right arm. Head and neck examination revealed no jugular venous distention and no carotid bruits. The veteran's lungs were clear to auscultation, bilaterally, and cardiac examination revealed regular rate and rhythm without murmurs. There was a questionable S4 on examination. The extremities showed no peripheral edema and the posterior tibial pulses were 2+ bilaterally. The assessment was history of hypertension, hypercholesterolemia, and premature ventricular complexes. After examination, the examiners' reported that the veteran had never had a documented blood pressure of greater than 200/110. It was also reported that the veteran's hypertension was not well controlled. The examiners' added that the veteran had not had any cardiac manifestations from his hypertension. He had a normal surface echocardiogram without evidence of left ventricular hypertrophy. The veteran's gated single photon emission computed tomography revealed normal ejection fraction and no evidence of inducible ischemia. For premature ventricular complexes, the examiners' noted that there had only been a total of two premature ventricular contractions recorded on past electrocardiograms, and the electrocardiogram accomplished at that time revealed no evidence of premature ventricular complexes. It was noted that the veteran reported that he was quite active, and that he denied any shortness of breath or chest pain with exertion. The veteran reportedly took daily walks without difficulty and had no limitation of his activity from cardiac symptomatology. Given the absence of clinical evidence demonstrating that the veteran has ever had a diastolic pressure of 110 or more, with or without definite symptoms, or a systolic pressure of 200 or more, the Board finds that the criteria for a current rating in excess of 10 percent have not been met. 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101 (effective prior to and subsequent to January 12, 1998). In accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has also considered 38 C.F.R. § 4.104, Diagnostic Codes 7005-7020 (2001). However, no consideration in this regard is warranted. The record is devoid of any objective cardiac manifestations resulting from hypertension. As demonstrated above, by history and currently, physical examination of the veteran's heart has been and remains normal. On examination in May 2001, the examiners' reported that the veteran did not have any cardiac manifestations from his hypertension. In this case, the Board acknowledges that at his July 1999 RO hearing the veteran testified that he has had hypertension since 1972, and that his subjective symptoms include dizziness and light-headedness. The veteran also testified that the diastolic pressure was 210 and that he was on medication. Additionally, at the hearing held in November 1999, the veteran added that although he did not have a heart problem, angina, or any thyroid problems, he had an elevated blood pressure reading of 150/101. He had been prescribed Procardia XL 90 and Synthroid. Nonetheless, as previously discussed, the veteran's diastolic pressure readings since service connection has been in effect fail to meet the criteria for a compensable rating prior to February 22, 1995, or a rating in excess of 10 percent thereafter. Therefore, the veteran's testimony, alone, is insufficient to substantiate his claims. The Board is also cognizant of the representative's assertion, maintaining that the veteran's claim should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for extra-schedular consideration. See October 2001 Informal Hearing Presentation. It is noted that the pertinent provisions of 38 C.F.R. § 3.321 (2001) have been considered. However, in this case, there is no evidence of an exceptional disability picture. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). The record does not reflect evidence of frequent hospitalization or marked interference with employment that is exceptional so as to preclude the use of the regular rating criteria. The record merely shows that the veteran has hypertension, which at times is uncontrolled, and that he receives treatment. Further, as discussed above, the evidence shows that any occupational impairment resulting from the service-connected disease is contemplated by the percentage rating assigned for that period. Therefore, an increased evaluation on an extra-schedular basis is not warranted. See Floyd v. Brown, 9 Vet. App. 88 (1996). The claims are denied. ORDER Entitlement to a compensable initial rating for hypertension with premature ventricular contractions and hyperlipidemia prior to February 22, 1995, is denied. Entitlement to an initial current rating in excess of 10 percent, at any time since February 22, 1995, for hypertension with premature ventricular contractions and hyperlipidemia is denied. U. R. POWELL Member, Board of Veterans' Appeals