Citation Nr: 0126836 Decision Date: 11/28/01 Archive Date: 12/03/01 DOCKET NO. 00-22 758 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUE Entitlement to an increased rating for hypertension, currently rated as 20 percent disabling. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Martin, Counsel INTRODUCTION The veteran had active service from August 1983 to June 1986. This matter came before the Board of Veterans' Appeals (Board) on appeal from a decision of April 2000 by the Department of Veterans Affairs (VA), Milwaukee, Wisconsin, Regional Office (RO). In the decision, the RO confirmed a previously assigned 20 percent rating for the veteran's service-connected hypertension. The case is under the jurisdiction of the Reno, Nevada, RO. A video-conference hearing was held before the undersigned Member of the Board in August 2001. FINDINGS OF FACT 1. All evidence needed for review of the issue on appeal has been obtained. 2. The veteran's hypertension is not manifested by diastolic pressure which is predominately 120 or more. CONCLUSION OF LAW The criteria for a disability rating higher than 20 percent for hypertension are not met. 38 U.S.C.A. § 1155 (West 1991); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2001). REASONS AND BASES FOR FINDINGS AND CONCLUSION During the pendency of this appeal, on November 9, 2000, the President signed into law the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), 38 U.S.C.A. §§ 5100 et seq. (West Supp. 2001). The Act is applicable to all claims filed on or after the date of enactment, November 9, 2000, or filed before the date of enactment and not yet final as of that date. 38 U.S.C.A. § 5107 note (Effective and Applicability Provisions) (West Supp. 2001); see Karnas v. Derwinski, 1 Vet. App. 308 (1991). The new law eliminates the concept of a well-grounded claim, and redefines the obligations of the VA with respect to the duty to assist claimants in the development of their claims. First, the VA has a duty to notify the appellant and his representative, if represented, of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102 and 5103 (West Supp. 2001). Second, the VA has a duty to assist the appellant in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A (West Supp. 2001). The VA has promulgated revised regulations to implement these changes in the law. See 66 Fed. Reg. 45,620 (Aug. 29, 2001) (to be codified as amended at 38 C.F.R §§ 3.102, 3.156(a), 3.159 and 3.326(a)). The intended effect of the new regulations is to establish clear guidelines consistent with the intent of Congress regarding the timing and the scope of assistance VA will provide to a claimant who files a substantially complete application for VA benefits, or who attempts to reopen a previously denied claim. In this case, even though the RO did not have the benefit of the explicit provisions of the new regulations, the VA's duties have been fulfilled. The Board finds that the veteran was provided adequate notice as to the evidence needed to substantiate his claim. The Board concludes the discussions in the rating decisions, the statement of the case (SOC), supplemental statement of the case (SSOC) and letters sent to the veteran informed him of the information and evidence needed to substantiate his claim and complied with the VA's notification requirements. The RO also supplied the veteran with the applicable regulations in the SOC. The basic elements for establishing entitlement to a higher rating have remained unchanged despite the recent change in the law with respect to duty to assist and notification requirements. Therefore, the Board finds that the VA has no outstanding duty to inform the appellant that any additional information or evidence is needed. The Board also finds that all relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issue on appeal has been obtained. The veteran has had a hearing. The claims file contains the veteran's service medical records and most of his post-service VA treatment records. Although there are apparently additional VA medical treatment records from a VA facility in San Jose, California, which have not been obtained, the Board finds that the many VA records which are already in the claims file provide all the information needed to adequately assess the severity of the veteran's hypertension. The veteran testified that he last went to that facility in 1999, and the record contains a report of VA examination in 1999 and numerous records of treatment in other VA facilities from 1998 to 2001. The evidence of record is sufficient to decide this claim. The veteran was afforded a disability evaluation examination to assess the severity of the disorder. With regard to the adequacy of the examination, the Board notes that the report of examination reflects that the examiner recorded the past medical history, noted the veteran's current complaints, conducted a physical examination, and offered appropriate assessments and diagnoses. Although the examiner noted that at the time of the examination the claims file was not available for review, the Board finds that the examiner had knowledge of the veteran's history which was sufficient to allow him to offer an accurate assessment of the severity of the disability. In this regard, the Board notes that the VA General Counsel, in a precedent opinion, indicated that 38 C.F.R. § 4.1 does not require a medical records review in all circumstances where a rating examination is conducted, nor must the medical history of disability be obtained from the examiner's review of prior medical records as opposed to the oral report of the person examined or summaries provided by the rating board requesting the examination. The VA General Counsel has concluded that an examiner's review of a veteran's prior medical records may not be necessary in all cases, depending upon the scope of examination and the nature of the findings and conclusions. VAOPGCPREC 20-95. The Board notes that the VA examination report includes a history obtained from the veteran, and the examiner reviewed the veteran's treatment records at a VA outpatient center. The VA examination report clearly reflects that the examiner had a complete and accurate understanding of the veteran's history. Therefore, the fact that the examiner did not have access to the veteran's claims file was inconsequential. For the foregoing reasons, the Board concludes that all reasonable efforts were made by the VA to obtain evidence necessary to substantiate the veteran's claim. The Board finds that the examination report coupled with the other evidence of record provides sufficient information to adequately evaluate the veteran's service-connected disability. Therefore, no further assistance to the veteran with the development of evidence is required. In the circumstances of this case, a remand to have the RO apply the new Act would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on the VA with no benefit flowing to the veteran are to be avoided). The VA has satisfied its obligation to notify and assist the veteran in this case. Further development and further expenditure of the VA's resources is not warranted. Taking these factors into consideration, there is no prejudice to the veteran in proceeding to consider the claim on the merits. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). The Board has considered the full history of the veteran's service-connected hypertension. The veteran's service medical records show that he was seen on several occasions for treatment of high blood pressure, and was placed on medication to control it. For example, a service medical record dated in February 1986 shows that the veteran had previously been seen in October for hypertension with mild elevation of blood pressure reading with diastolics of approximately 100. He had been placed on a medication, but was not compliant. On examination, the blood pressure reading in his right arm was 150/92, and the reading in his left arm was 150/100. The impression was essential hypertension. The plan was to have the veteran take a medication and have frequent blood pressure readings. Compliance was emphasized. Upon separation from service, the veteran filed a claim for disability compensation for high blood pressure. In a rating decision of July 1986, the RO granted service connection for hypertension, and assigned a noncompensable rating. In December 1992, the veteran requested an increased rating. He was afforded a VA fee basis medical examination in April 1993. The report shows that he said that he had taken blood pressure medications during service, but when he was discharged he was told that it was only borderline and that it was not necessary to take medicine any more. He said that he had been to his local doctors and had always been told that it was borderline, and therefore had been on no medication. Blood pressure readings taken before the VA exam were 170/122 sitting, 150/100 standing, and 170/106 supine. After the exam, the readings were 170/120, 154/98, and 172/102. The impression was hypertension. Subsequently, in a rating decision of November 1993, the RO increased the rating from noncompensable to 10 percent. In February 1996, the veteran again requested increased compensation. The report of a VA examination conducted in March 1996 reflects that the veteran reported that he was taking a single extended release tablet of Procardia per day. On examination, his blood pressure readings were 172/118 sitting; 168/110 standing, and 164/110 supine. The impression was history of long standing hypertension presently under treatment with antihypertensive medications. Subsequently, in a rating decision of April 1996, the RO increased the rating from 10 percent to 20 percent. The RO issued a confirmed rating in August 1997. In October 1999, the veteran requested an increased rating for his service-connected hypertension. The RO denied that request, and the veteran perfected this appeal. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity in civil occupations. See 38 U.S.C.A. § 1155. Separate Diagnostic Codes identify the various disabilities. The Board notes that the applicable diagnostic code was revised effective January 12, 1998. See 62 Fed. Reg. 65, 207-224 (December 11, 1997). Because the veteran filed his claim after that date, only the current version of the diagnostic code is for consideration. Under 38 C.F.R. § 4.104, Diagnostic Code 7101 a 20 percent rating is warranted if the diastolic pressure is predominantly 110 or more; or the systolic pressure is predominantly 200 or more. A 40 percent rating is warranted if the diastolic pressure is predominantly 120 or more. A 60 percent rating is warranted if the diastolic pressure is predominantly 130 or more. The medical evidence which pertains to the current severity of the veteran's hypertension includes numerous VA medical treatment records. A record dated in November 1998 shows that while being treated for tinea pedis, his blood pressure was 144/100. It was noted that he had been given a prescription for Aldomet the previous May, but had not taken the medication since the prescription was written. He reportedly was willing to begin now. Compliance with blood pressure medication was discussed with the veteran and his family. A VA record dated in December 1998 shows that the veteran returned to the clinic for a follow-up for his severe hypertension, depression and alcohol use. He reported that his blood pressure at home had been running quite high and he was having symptoms of flushing in the face, fatigue, and pounding pulse. He said that he was now willing to take an antihypertensive. On examination, his blood pressure was 174/122. The assessment included severe hypertension. The plan included prescribing Aldomet. The veteran was afforded a VA hypertension examination in November 1999. The claims file was not reviewed, but the examiner was able to review medical records from the Las Vegas Veterans Affairs Ambulatory Care Center. Regarding his medical history, the veteran stated that around 1983 or 1984 while he was in the army he was being treated for acne and was incidentally diagnosed with high blood pressure. He tried taking different blood pressure medications, and had quit blood pressure medications on his own. He said bluntly that he had simply taken it from time to time. Sometimes he had taken it regularly and sometimes he had not. He said that he had taken several different blood pressure medications because of problems with side effects. He last took Minoxidil, but he had not taken that for three months. On physical examination, the blood pressure readings were 162/118 on the right, and 160/116 on the left. A short time later the pressure in the right arm was 160/120. The diagnoses were (1) hypertension with discontinuation of blood pressure medicines; and (2) incomplete right bundle branch block per EKG. A VA treatment record dated in January 2000 shows that the veteran reported that he needed blood pressure medication and that he had a headache. On examination, his blood pressure was 194/114. The assessment was alteration in blood pressure related to uncontrolled. Another VA blood pressure reading of the same date was 169/117. A VA record dated in February 2000 shows that the blood pressure reading was 180/100. After clonidine the patient was allowed to sit for 20 minutes and blood pressure was reduced to 170/98. A VA treatment record dated in July 2000 shows that while being seen for complaints of back pain, the veteran's blood pressure reading was 176/110. Another reading taken the same date was 160/114. Another VA record of the same date shows that the veteran reported that his normal home blood pressure was 120-130/90 on two medications. A VA record dated later in July 2000 reflects that the veteran's blood pressure reading was 160/99. A VA record dated in August 2000 shows that the blood pressure reading was 132/96. A VA record dated later in August reflects a reading of 138/89. A record dated in September 2000 shows a reading of 154/94. That record also shows that the veteran reported that at home his reading had been only 120/76. VA records dated later in September 2000 reflect readings of 130/88 and 140/94. A VA record dated in October 2000 shows a reading of 150/84. A record dated later in October 2000 reflects a reading of 142/80. Another record dated in October 2000 reflects readings of 140/100 and 126/80. In January 2001, the veteran's blood pressure reading was 134/90. In April 2001, the reading was 128/96. Another reading taken in April 2001 was 133/81. Finally, the veteran testified in support of his claim for an increased rating during a video-conference hearing held before the undersigned Member of the Board in August 2001. The veteran stated that his blood pressure readings were always right at or just below 120. He felt that his blood pressure readings would be even higher if not for the blood pressure medications and pain medications which he takes. He also said that he felt that he was light-headed, and that he was not sure if it was due to the medications he was taking or because the blood pressure was not under control. After considering all the evidence, the Board finds that the veteran's hypertension has not been manifested by diastolic pressure predominately 120 or more as contemplated for a rating in excess of 20 percent. The medical evidence shows that the readings have most frequently been below 120 with only rare readings at 120 or more. The Board finds that the objective medical records more accurately reflect the severity of the hypertension than the veteran's subjective testimony. Accordingly, the Board concludes that the criteria for a disability rating higher than 20 percent for hypertension are not met. The Board notes that in exceptional cases where evaluations provided by the rating schedule are found to be inadequate, an extraschedular evaluation may be assigned which is commensurate with the veteran's average earning capacity impairment due to the service-connected disorder. 38 C.F.R. § 3.321(b). However, the Board believes that the regular schedular standards applied in the current case adequately describe and provide for the veteran's symptoms and disability level. The record does not reflect a disability picture that is so exceptional or unusual that the normal provisions of the rating schedule would not adequately compensate the veteran for his service-connected disability. The Board does not find that the veteran's case is outside the norm so as to warrant consideration of the assignment of an extraschedular rating. It is noted that the evidence does not show hospitalization due to hypertension nor has there been any showing of marked interference with employment due specifically to hypertension. Therefore, referral of this matter for consideration under the provisions of 38 C.F.R. § 3.321 is not warranted. See Shipwash v. Brown, 8 Vet. App. 218, 227 (1995), and Floyd v. Brown, 9 Vet. App. 94-96 (1996). ORDER An increased rating for hypertension, currently rated as 20 percent disabling, is denied. HOLLY E. MOEHLMANN Member, Board of Veterans' Appeals