Citation Nr: 1021293 Decision Date: 06/09/10 Archive Date: 06/21/10 DOCKET NO. 07-12 274 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable rating for hypertension prior to September 26, 2006, and an initial rating in excess of 10 percent thereafter. 2. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Jaeger, Counsel INTRODUCTION The Veteran had active military service from September 1990 to September 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. Jurisdiction of the claims file was subsequently transferred to the RO in St. Petersburg, Florida. The Board observes that, during the course of appeal, staged ratings have been assigned for the Veteran's hypertension. See Fenderson v. West, 12 Vet. App. 119 (1999). Specifically, the Veteran has been assigned a noncompensable rating for his hypertension, effective September 5, 2000, and a 10 percent rating, effective September 26, 2006. As the claimant will generally be presumed to be seeking the maximum benefit allowed by law and regulation, it follows that such a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35, 38 (1993). Therefore, the Board has characterized the issue as shown on the first page of this decision. The Board notes that the issue of entitlement to a TDIU was not certified for appeal. Additionally, the Board is cognizant that the RO denied entitlement to a TDIU in a December 2009 rating decision and, to date, the Veteran has not entered a notice of disagreement as to such denial. However, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). As the evidence suggests that the Veteran is unemployed due to symptoms of his service-connected hypertension, the issue of entitlement to a TDIU has been raised. Therefore, as the Board has jurisdiction over such issue as part and parcel of the Veteran's initial rating claim, it has been listed on the first page of this decision. However, the Board finds that further development of the Veteran's TDIU claim is necessary. Therefore, the issue of entitlement to a TDIU is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, D.C. FINDING OF FACT For the entire appeal period, the Veteran's hypertension is manifested by diastolic pressure predominantly 100 or more, but less than 110; systolic pressure predominantly 160 or more, but less than 200; and requires continuous medication for control. CONCLUSION OF LAW For the entire appeal period, the criteria for an initial rating of 10 percent, but no higher, for hypertension have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2009); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. The Board observes that the Veteran has appealed with respect to the propriety of the initially assigned ratings for his hypertension from the original grant of service connection. VA's General Counsel has held that no VCAA notice is required for such downstream issues. VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). In addition, the Board notes that the Court held that "the statutory scheme contemplates that once a decision awarding service connection, a disability rating, and an effective date has been made, § 5103(a) notice has served its purpose, and its application is no longer required because the claim has already been substantiated." Dingess v. Nicholson, 19 Vet. App. 473, 490 (2006). In this case, the Veteran's claim for service connection for hypertension was granted and an initial rating was assigned in the September 2006 rating decision on appeal. Therefore, as the Veteran has appealed with respect to the initially assigned rating, no additional 38 U.S.C.A. § 5103(a) notice is required because the purpose that the notice is intended to serve has been fulfilled. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Relevant to the duty to assist, the Veteran's post-service VA and private treatment records have been obtained and considered. He has not identified any additional, outstanding records necessary to decide his pending appeal. In this regard, the Board observes that the AOJ attempted to obtain records relevant to the Veteran's claim for Social Security Administration (SSA) disability benefits; however, in January 2010, SSA indicated that they had no medical records on file or were unable to locate the medical records. In a March 2010 letter, the Veteran was advised of VA's inability to obtain his SSA records and was given an opportunity to provide VA with a copy of such records. No response from the Veteran was received. The Board further notes that documentation in the claims file reflects that the Veteran was denied SSA disability benefits. Therefore, the Board finds that VA has met its duty to assist in this regard. Additionally, the Veteran was provided with VA examinations in November 2006 and December 2009 in order to adjudicate his initial rating claim. Neither the Veteran nor his representative have argued that such examinations are inadequate for rating purposes. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of 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 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 VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claim. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. All benefit of the doubt will be resolved in the Veteran's favor. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a Veteran's service-connected disabilities. 38 C.F.R. § 4.14. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's hypertension has been assigned an initial noncompensable evaluation prior to September 26, 2006, and an initial 10 percent evaluation thereafter pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran contends that he is entitled to higher initial ratings for his service-connected hypertension as such is not adequately controlled by his numerous medications. Diagnostic Code 7101 provides that hypertensive vascular disease (hypertension and isolated systolic hypertension) with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more warrants a 10 percent evaluation. Additionally, 10 percent is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent evaluation is assigned when diastolic pressure is predominantly 120 or more and a 60 percent evaluation is warranted when diastolic pressure is predominantly 130 or more. As relevant, Note (1) of Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 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. Records from Dr. Baum reveal that in June 2005, the Veteran was seen for high blood pressure, which was being treated with medication. Specifically, it was noted that the Veteran had been on Novasc since 1999. However, he had a high blood pressure reading of 167/107 and, as such, was started on HCTZ. His blood pressure thereafter decreased. Records from Dr. Anukwuem reflect that in November 2005 and September 2006, the Veteran had a diagnosis of uncontrolled hypertension. In November 2005, it was noted that the Veteran was on Norvasc and HCTZ. In January 2006, his blood pressure was 153/101 and, in September 2006, his blood pressure was 151/100. Also in September 2006, the Veteran was advised to discontinue HCTZ and start on Diovan HCT. He was also to continue on Norvasc. A September 2006 letter from Dr. Anukwuem reflects that he was currently treating the Veteran for hypertension with two medications, Norvasc and Diovan HCT. A November 2006 VA examination reflects that the Veteran was diagnosed with hypertension in 1999 and was currently on two medications to control his blood pressure, Norvasc and Diovan HCT. Blood pressure readings taken twice revealed 152/92 both times. The examiner diagnosed essential hypertension and noted that such was being currently controlled with medications, but was still not adequately controlled. VA treatment records reflect blood pressure readings of 128/90, 140/80, and 135/99 in April 2007. Additionally, it was noted that the Veteran's hypertension medication was changed when he came to the VA Medical Center. He was placed on Metoprolol, but it was noted that he could not tolerate it. As such, the Veteran was observed to be currently taking Diltiazam and HCTZ, and the dosage of HCTZ was increased. In May 2007, his blood pressure was noted to be 137/90 and, in July 2007, it was 145/91. Records dated in January 2008 reveal that the Veteran's hypertension was being treated with Diltiazem and his current blood pressure reading was 144/104. In April 2008, it was 162/107. The Veteran's blood pressure was noted to be 149/100 and 158/104 during December 2008. In May 2009, his blood pressure was 130/90 and Lisinopril was added to his hypertension medications. In June 2009, the Veteran's blood pressure was recorded as 126/87. His blood pressure readings in the months of August 2009, October 2009, November 2009, and December 2009 were 134/92 (left) and 138/99 (right), 140/95, 132/85, and 123/82, respectively. At a December 2009 VA examination, the Veteran reported that he was on medication for his hypertension, but such was poorly controlled. It was noted that he was currently on Diltiazem and Lisinopril. The Veteran's blood pressure readings were 140/96, 143/96, and 142/93. As indicated previously, the Veteran is currently in receipt of an initial noncompensable evaluation for his hypertension prior to September 26, 2006, and an initial 10 percent evaluation thereafter. However, the Board finds that an initial 10 percent rating, but no higher, is warranted for the entire appeal period. In this regard, Diagnostic Code 7101 provides for a 10 percent rating where an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. Records from Dr. Baum dated in June 2005 reveal that the Veteran had been on Novasc for his hypertension since 1999. Moreover, at such time, the Veteran had a blood pressure reading of 167/10 and, in January 2006, he had a blood pressure reading of 153/101. Therefore, as the Veteran's hypertension has a history of diastolic pressure predominantly 100 or more and has required continuous medication for control since the date of service connection, the Board finds that he is entitled to an inital 10 percent rating for the entire appeal period. However, the Veteran is not entitled to an initial rating in excess of 10 percent as the evidence fails to demonstrate diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. In fact, there have been no instances during the appeal period where such readings have been recorded. Rather, the Veteran's hypertension is manifested by diastolic pressure predominantly 100 or more, but less than 110; systolic pressure predominantly160 or more, but less than 200; and requires continuous medication for control. The Board is also cognizant of the fact that the Veteran's hypertension is poorly controlled despite the use of medication; however, the record reflects that his blood pressure readings have never revealed diastolic pressure of 110 or more, or; systolic pressure of 200 or more. Moreover, the Veteran's need for continuous medication for control is already contemplated in his current disability rating of 10 percent. Therefore, the Board finds that the manifestations of the Veteran's hypertension more nearly approximate the criteria contemplated by a 10 percent evaluation under Diagnostic Code 7101. The Board has considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service- connected hypertension; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. An extra-schedular disability rating is warranted if the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that application of the regular schedular standards would be impracticable. 38 C.F.R. § 3.321(b)(1). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court explained how the provisions of 38 C.F.R. § 3.321 are applied. Specifically, the Court stated that the determination of whether a claimant is entitled to an extra- schedular rating under § 3.321 is a three-step inquiry. First, it must be determined whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. In this regard, the Court indicated that there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as "marked interference with employment" and "frequent periods of hospitalization." Third, when an analysis of the first two steps reveals that the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extra-schedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hypertension with the established criteria found in the rating schedule. The Board finds that the Veteran's hypertension symptomatology is fully addressed by the rating criteria under which such disability is rated. There are no additional symptoms of his hypertension that are not addressed by the rating schedule. Therefore, the Board finds that the rating criteria reasonably describes the Veteran's disability level and symptomatology for his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Moreover, to the extent that the Veteran's hypertension may interfere with his employability, such interference is addressed by the schedular rating criteria. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Additionally, there are no attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). Although the evidence of record does not support a total schedular disability rating, as noted above, a claim for a TDIU has been raised by the record. See Rice, 22 Vet. App. 453-54. As the TDIU aspect of the Veteran's claim is being for remanded for further development, it is unnecessary to discuss this issue further at this time. In sum, the Board finds that an initial rating of 10 percent is warranted for the Veteran's hypertension for the entire appeal period. The Board, however, finds that the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 10 percent for his hypertension during such time period. In denying an initial rating in excess of 10 percent, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER For the entire appeal period, an initial rating of 10 percent, but no higher, for hypertension is granted, subject to statutory and regulatory provisions governing the payment of monetary benefits. REMAND As noted in the Introduction, when evidence of unemployability is submitted during the course of an appeal from an assigned disability rating, a claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Rice, 22 Vet. App. at 453-54. Here, the evidence suggests that the Veteran is unemployed due to symptoms of his service-connected hypertension. In this regard, at his November 2006 VA examination, it was noted that the Veteran had not been employed for the prior five months and he indicated that he had lost his job doing logistics on a ship because of his elevated blood pressure. Additionally, in an October 2009 statement, the Veteran stated that he had been unable to secure lasting employment since he was discharged from the Navy. Specifically, he indicated that his ongoing sicknesses made it physically impossible for him to work as required. Also, at his December 2009 VA examination, it was noted that the Veteran had not been employed for the prior four years due to psychiatric and medical problems. Accordingly, the issue of entitlement to a TDIU has been raised by the evidence of record in this case. While the Board has jurisdiction over such issue as part and parcel of the Veteran's rating claim, further development is necessary for a fair adjudication of the TDIU aspect of such claim. Upon remand, the AOJ should conduct all appropriate development, to include obtaining any pertinent outstanding post-service treatment records and affording the Veteran a VA examination so as to determine the effect his service- connected disabilities, including but not limited to his hypertension, have on his employability. After all appropriate development has been completed, the Veteran's TDIU claim should be adjudicated based on all evidence of record. Accordingly, the case is REMANDED for the following action: 1. Request that the Veteran identify any outstanding VA or private treatment records pertaining to his service- connected disabilities. After securing any necessary authorization from him, obtain copies of any records the Veteran identifies, to include any outstanding VA treatment records from the Jacksonville VA Outpatient Clinic and Gainesville VA Medical Center dated from January 2010 to the present. All requests and all responses, including negative responses, must be documented in the claims file. All records received should be associated with the claims file. If any records cannot be obtained after reasonable efforts have been expended, the Veteran should be notified and allowed an opportunity to provide such records, in accordance with 38 C.F.R. § 3.159(c)&(e). 2. Schedule the Veteran for an examination with an appropriate medical professional to obtain an opinion regarding the effect(s) of his service- connected disabilities, including but not limited to his hypertension, on his employability. The entire claims file and a copy of this remand should be made available to the examiner for review, and such review should be noted in the examination report. All necessary tests and studies should be conducted. The examiner should be requested to render an opinion as to whether the Veteran is unable to secure or follow a substantially gainful occupation as a result of his service- connected disabilities, taking into consideration his level of education, special training, and previous work experience, but not his age or any impairment caused by nonservice- connected disabilities. Any opinion offered must be accompanied by a complete rationale, which should reflect consideration of both the lay and medical evidence of record. 3. After completing the above, and any other development as may be indicated by any response received as a consequence of the actions taken in the preceding paragraphs, the Veteran's TDIU claim should be readjudicated based on the entirety of the evidence. If the claim remains denied, the Veteran and his representative should be issued a supplemental statement of the case. An appropriate period of time should be allowed for response. Thereafter, the case should be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the outcome of this case. The Veteran need take no action until so informed. The purpose of this REMAND is to ensure compliance with due process considerations. The purpose of the examination requested in this remand is to obtain information or evidence (or both) which may be dispositive of the appeal. Therefore, the Veteran is hereby placed on notice that pursuant to 38 C.F.R. § 3.655 (2009) failure to cooperate by attending the requested VA examination may result in an adverse determination. See Connolly v. Derwinski, 1 Vet. App. 566, 569 (1991). The Veteran has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ____________________________________________ C. TRUEBA Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs