Citation Nr: 1414054 Decision Date: 04/01/14 Archive Date: 04/11/14 DOCKET NO. 12-25 538 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas THE ISSUE Entitlement to an initial compensable rating for the service-connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD M. Turner, Counsel INTRODUCTION The Veteran served on active duty from January 1977 to January 1981 and from March 1982 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on an appeal from a rating decision issued by the Regional Office (RO) in Houston, Texas. The Veteran testified at a hearing before the undersigned Veterans Law Judge in March 2013. FINDINGS OF FACT 1. The Veteran currently is shown to use medication to control his blood pressure. 2. It is at least as likely as not that the Veteran has a history of diastolic blood pressure of 100 or more. CONCLUSION OF LAW The criteria for the assignment of an initial 10 percent rating for the service-connected hypertension were met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.40, 4.45, 4.104 including Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants with substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 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). The notice requirements of VCAA apply to all elements of a service-connection claim, including: (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. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Here, the duty to notify was satisfied by an April 2011 letter that explained the respective duties of VA and the claimant with respect to obtaining evidence, the criteria for service connection, and how VA assigns ratings and effective dates for service connected disabilities. The Veteran's claim for a higher initial rating for the service-connected hypertension is a downstream issue from his service connection claim. The RO granted service connection for hypertension and assigned a noncompensable rating. The Veteran then filed a notice of disagreement arguing that he should have received a higher rating. In these types of circumstances, VA is not required to issue a new VCAA letter. See VAOPGCPREC 8-2003. In this precedential opinion, the General Counsel held that, although VA is required to issue a Statement of the Case (SOC) if the downstream issue is not resolved, 38 U.S.C.A.§ 5103(a) does not require separate notice of the information and evidence necessary to substantiate the newly raised issue. Id. In this case, the Veteran was sent an SOC that addressed the appropriate rating for his hypertension in August 2012. Additionally, at the March 2013 hearing, the Veterans Law Judge identified the issue and took testimony on circumstances relevant to the claim. The Veteran indicated his knowledge of the rating criteria by citing the provision applicable to receive the next higher rating. The Board finds that all necessary development has been accomplished and that appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The evidence of record includes: service treatment records, VA treatment records, Tricare records, and a transcript of the Veteran's testimony at the March 2013 hearing. Electronic records were reviewed. The Board notes that the Veteran reported being diagnosed with hypertension by a private health care provider, but those records are not in the claims file. VA notified the Veteran in June 2011 that it was unable to obtain the records. The Veteran acknowledged VA's correspondence but stated that he would not obtain the records. The Veteran was afforded a VA hypertension examination that adequately documented his blood pressure and the symptoms of his hypertension. The Board thus finds that no further notice or assistance to the appellant is required to fulfill VA's duty to assist in the development of these claims. 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). Initial Rating The Veteran asserts that he should receive a compensable rating for hypertension because he is taking medication to control his elevated blood pressure. He contends that his diastolic blood pressure would be over 100 if he was not taking medication. Disability ratings are determined by applying criteria that are set forth in the VA's Schedule for Rating Disabilities (38 C.F.R. Part 4). Ratings are based on average impairments of earning capacity resulting from particular diseases and injuries and the residuals thereof in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities are described utilizing diagnostic codes set forth in 38 C.F.R. Part 4. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. In cases, such as this one, in which a claim for a higher evaluation arises out of the initial grant of service connection for the disability at issue, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the claim and appellate process. See generally Fenderson v. West, 12 Vet. App. 119 (1999). A 10 percent rating for hypertension is assigned where the Veteran has diastolic pressure that is predominantly 100 or more; or systolic pressure that is predominantly 160 or more; or where the Veteran has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure that is predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned where diastolic pressure is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. In every instance where the rating schedule does not provide a no percent evaluation for a diagnostic code, a no percent evaluation shall be assigned when the criteria for a compensable rating are not met. 38 C.F.R. § 4.31. In this case, the service treatment records show elevated blood pressures, but do not show diastolic blood pressure that is predominantly 100 or more or systolic pressure that is predominantly 160 or more. Tricare treatment records also show elevated blood pressure, with diastolic pressures predominantly in the 80s and 90s and systolic pressures below 160. VA treatment records show that the Veteran is prescribed medication for hypertension and his blood pressure is currently under control. There is no showing of diastolic blood pressure that is predominantly 100 or more or systolic pressure that is predominantly 160 or more. At his VA examination in December 2011 three readings of the Veteran's blood pressures readings were: 142/81, 136/84, and 118/77. His hypertension was not assessed to affect his ability to work. The Veteran reported that he had to take medication to control his blood pressure. The VA examiner stated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The Veteran did not have any other physical findings, complications, signs, or symptoms related to hypertension other than a side effect of dry mouth from his medication. At his hearing, the Veteran testified that he was taking medication for hypertension. Currently he was taking one medication, but was also on another medication in the past. He believed that his diastolic blood pressure was 100 or more when he was started on hypertension medication. He was diagnosed at a private facility in October 2010 when he sought treatment for abdominal pains. Significantly, the VA treatment records showed that a blood pressure reading of 164/105 was recorded when the Veteran was seen in the emergency room for abdominal pains in April 2010. However, his blood pressure was not predominantly this high and subsequent readings on the same day were lower. The Veteran stopped taking his medication in early February 2012. When he stopped taking his medication, he reported that his systolic blood pressure rose to over 160 and his diastolic blood pressure rose to 100 or more. The Board notes that the Veteran has not cooperated with obtaining the private treatment records that would show his blood pressure at the time he was diagnosed with hypertension; nor do the available medical records show systolic blood pressure of 160 or more or diastolic blood pressure of 100 or more. However, the Veteran is competent to report that his health care provider told him that his diastolic blood pressure was 100 or more at the time he was diagnosed. Since he reports having diastolic pressure that rose to 100 or higher when he stopped taking his medication, it is shown as likely as not that it would been 100 or higher at the time that the medication was prescribed, satisfying the criteria for a 10 percent rating. In coming to this conclusion, the Board has resolved all reasonable doubt in the Veteran's favor. However, there is no evidence to support the assignment of a rating higher than 10 percent. Medical records do not show diastolic pressures of 110 or more or diastolic blood pressures predominantly 200 or more. The Board acknowledges that the Veteran reported that his blood pressure rose to levels higher than this when he stopped taking his medication. While ordinarily the effects of medication are not considered when assigning a disability rating, see Jones v. Shinseki, 26 Vet. App. 56 (2012), in this case diagnostic code 7101 specifically contemplates the use of medication to control blood pressure levels and provides for a 10 percent rating when there is a history of diastolic pressure above 100 and medication is used successfully for control. Thus, on this record, the criteria for the assignment of a higher rating are not met. The Board finds that the Veteran's symptoms do not present such an exceptional disability picture as to render the schedular rating inadequate. 38 C.F.R. § 3.321(b). See also Thun v. Peake, 22 Vet. App. 111, 115 (2008) (the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the schedular evaluation is inadequate). The Veteran's primary symptom is the need to take medication to control his blood pressure. This is specifically contemplated by the assigned 10 percent rating. The Veteran has not identified any unusual symptoms or functional effects of his hypertension. Rather, the Veteran argued that he should receive a 10 percent rating because he has to take medication and he did not identify any other symptoms aside from a side effect of dry mouth from medication. ORDER An increased, initial rating of 10 percent for the service-connected hypertension is granted, subject to the regulations controlling disbursement of VA monetary benefits. ____________________________________________ STEPHEN WILKINS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs