Citation Nr: 1444051 Decision Date: 10/03/14 Archive Date: 10/10/14 DOCKET NO. 10-31 069 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Evaluation of hypertension, rated as noncompensable. 2. Evaluation of allergic rhinitis, rated as noncompensable. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD G. E. Wilkerson, Counsel INTRODUCTION The Veteran served on active duty from January 1984 to July 2009. This case comes before the Board of Veterans' Appeals (Board) from an August 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, as part of the Benefits Delivery at Discharge (BDD) program. In a July 2011 rating decision, the RO assigned increased ratings for asthma, pes cavus, and left toe hallux valgus. In a subsequent July 2011 statement, the Veteran indicated that this decision satisfied his appeal with respect to these issues. Accordingly, they are no longer before the Board. In this case, the Veteran was scheduled for a Board hearing in November 2011. However, as acknowledged by his representative in a September 2014 informal hearing presentation, he later cancelled the hearing. In written statements, the Veteran has reported that his hypertension has resulted in an enlarged left ventricle and an irregular heartbeat. As these matters are not currently before the Board, they are referred to the RO for development. This appeal was processed using the Virtual VA and VBMS paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record FINDINGS OF FACT 1. The Veteran has a history of diastolic blood pressure over 100 and is required to take medication to control his hypertension. 2. The Veteran's allergic rhinitis is manifested by nasal congestion, watery eyes, and sneezing, but not by polyps or greater than 50-percent obstruction in both nasal passages or total obstruction in one nasal passage. CONCLUSIONS OF LAW 1. The criteria for a 10 percent rating for hypertension have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2002); 38 C.F.R. § 3.159, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2013). 2. The criteria for an initial, compensable rating for allergic rhinitis have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (2002); 38 C.F.R. § 3.159, 3.321, 4.97, Diagnostic Code 6522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. The Veterans Claims Assistance Act The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100 , 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist the Veteran in the development of a claim. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, VA 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; (3) that the claimant is expected to provide; and (4) must request that the claimant provide any evidence in his possession that pertains to the claim. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has also 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The claim on appeal arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection for this disability. The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice. Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003). The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002). Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Consequently, further discussion of the VCAA's notification requirements with regard to the claim on appeal is unnecessary. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). In this case, VA obtained the Veteran's service treatment records and all of the identified post-service treatment records The Veteran was also provided with VA examinations in April 2009 and January 2011. As these examinations were based on review of the Veteran's symptoms and complaints and discuss his disabilities in relation to the pertinent rating criteria, they are adequate for adjudication purposes. For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements. The claims on appeal are thus ready to be considered on the merits. II. Analysis Disability evaluations are determined by application of the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App 119 (1999). In this case, the disabilities have not significantly changed and uniform evaluations are warranted. A. Hypertension Historically, the RO granted service connection for hypertension in an August 2009 rating decision, and assigned a noncompensable rating, effective August 1, 2009. The Veteran's hypertension is rated as noncompensable under 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease). Diagnostic Code 7101 provides for a 60 percent rating for diastolic pressure predominantly 130 or more and a 40 percent disability rating for diastolic pressure predominantly 120 or more. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Service treatment records reflect that the Veteran was taking medication for treatment of his hypertension. A March 2008 report notes blood pressure was 130/88. An April 2008 treatment report indicates that the Veteran was doing well on medication. He indicated that his blood pressure had been in the 130-140s over 80-90s range on testing at home. Blood pressure was 130/72 in January 2009. On VA examination in April 2009, the Veteran reported that he was diagnosed with hypertension in approximately November 2007 and treated with medications like Hydrochlorothiazide and Lisinopril. He denied any chest pain, angina, breathing problems or congestive heart failure signs or symptoms. Blood pressure was 126/75, 126/75, and 126/77. The examiner indicated that the Veteran's high blood pressure was stable on medication. Treatment records from the Evans Army Community Hospital dated in July 2009 indicate that the Veteran's blood pressure was 130/81. In September 2009, his blood pressure was 124/77. An October 2009 treatment report notes that the Veteran continued to take medication for blood pressure. His blood pressure was 135/77 at that time. On VA examination in January 2011, the Veteran reported onset of elevated blood pressure in service in 2007, after which he as placed on medication. He was still taking medication. He reported that he experienced dyspnea on moderate exertion, but there were no other related complications. On examination, blood pressure was 129/93, 125/90, and 125/90. There was no evidence of congestive heart failure, pulmonary hypertension, or other cardiac findings. The examiner diagnosed hypertension, with no hypertensive heart disease present. The examiner further indicated that the disability caused no effects on work or usual daily activities. He reported that he was employed on a full-time basis at an Air Force Base as a senior logistics manager with no time lost during the past 12 months due to disability. In this case, service and post-service treatment records, as well as VA examination reports, indicate that the Veteran is prescribed medication to control his hypertension. The Board acknowledges that the majority of recent service and post-service treatment records do not reflect diastolic pressure of greater than 100. However review of service treatment records shows that in the past, prior to being placed on medication, the Veteran had some instances when his diastolic blood pressure was 100 or more. For example, an August 2001 treatment report reflects blood pressure of 158/114. A November 2007 report notes blood pressure of 152/98 and 157/103, at which time he was diagnosed with essential hypertension. Giving the benefit of the doubt to the Veteran, the criteria for a 10 percent rating for hypertension are met based on a history of diastolic blood pressure of 100 or more and the need for continuous medication. However, there is no documentation that diastolic blood pressure was ever predominantly 110 or more or that systolic blood pressure was ever predominantly 200 or more during the period pertinent to this appeal. Review of the Veteran's treatment records and examination reports document blood pressure readings that were consistently well below these thresholds. The Veteran did not specifically allege that his blood pressure exceeded these thresholds, and to the extent that he makes such a claim it is contradicted by the objective evidence of lower blood pressure readings shown at his VA examinations and in his VA treatment records. Accordingly, the Board finds that an initial 10 percent rating, but no higher, for hypertension is warranted. B. Allergic Rhinitis The Veteran asserts that a higher initial rating is warranted for his service-connected allergic rhinitis. Such disability is currently assigned a noncompensable evaluation under 38 C.F.R. § 4.97, Diagnostic Code 6522, which pertains to allergic or vasomotor rhinitis. Under this code, rhinitis without polyps, but with greater than 50-percent obstruction of the nasal passage on both sides or complete obstruction on one side warrants a 10 percent rating. Rhinitis with polyps warrants a 30 percent rating. The Veteran's service treatment records include a January 2009 report noting treatment for allergic rhinitis with Allegra, Singulair, and Flonase. On VA examination in April 2009, the Veteran reported that he had been treated for allergic rhinitis and sinusitis conservatively, using over-the counter medications including Flonase and sometimes Zyrtec or Allegra depending on the doctor. He also had received allergy shots. He indicated that he was doing very much better with no evidence of any acute epistaxis or any kind of antibiotics being used. He reported that his allergic rhinitis/sinusitis could be seasonal or non-seasonal. The examiner noted that a previous CT scan of the sinuses in 2007 was normal. Objectively, there was rhinitis, left more than right, with a mild deviated nasal septum of the left side noted. There was no sinus pain at that time. The examiner diagnosed allergic rhinitis, stable on medication. A September 2009 post-service treatment report reflects the Veteran's complaint of difficulty breathing due to his allergies and asthma. On VA examination in January 2011, the Veteran reported the onset of allergic symptoms in 1984 in service, when he began experiencing headache, shortness of breath, and sneezing. He reported that the condition had been stable on medication, including Allegra, Flonase, daily eye drops, and an Epipen for emergency treatment for anaphylaxis. Current symptoms included an itchy nose, watery eyes, and sneezing. Objectively, there were no signs of nasal obstruction, nasal polyps, or septal deviation. There was no permanent hypertrophy or turbinates from bacterial rhinitis. X-rays of the sinuses revealed no definite fracture or lytic lesion, some mucosal thickening in both maxillary sinuses. The examiner noted that the septum was relatively midline. He indicated that a CT scan of the sinuses was recommended as the ethmoid and sphenoid sinuses were not well visualized. The examiner diagnosed allergic rhinitis. He noted that the disability caused no significant effects on occupation or usual daily activities. Post service treatment records document medication management for allergic rhinitis. In a July 2011 statement, the Veteran reported that his allergic rhinitis required medication to allow for comfortable breathing. Based on the aforementioned clinical evidence of record, the Board finds that because the evidence demonstrates that he does not have polyps and or/a greater than 50 percent obstruction of his nasal passage on both sides or complete obstruction on one side. There is no basis upon which to assign the minimum 10 percent rating for his allergic rhinitis at any time during the appeal period. The Board has considered the Veteran's reported symptoms. However, here, we find the medical evidence, prepared by skilled professionals, disclosing no significant nasal obstruction on either side and no polyps to be far more probative than the Veteran's generic assertions. Furthermore, even accepting all of the Veteran's assertions regarding her rhinitis to be true, he still has not established the criteria for a compensable rating for allergic rhinitis. Accordingly, the preponderance of the evidence is against the claim. Moreover, the Board notes that, to the extent that the Veteran has reported difficulty breathing or shortness of breath related to his allergic rhinitis, such symptoms are contemplated in the rating assigned for his service-connected asthma. See 38 C.F.R. § 4.14 (precluding the assignment of separate ratings for the same manifestations of a disability under different diagnoses). The Board has considered the applicability of other diagnostic codes; however, the Veteran's allergic rhinitis is not shown to involve any other factor that would warrant evaluation under any other provision of the rating schedule. Finally, the Board notes that the Veteran has previously been denied service connection for sinusitis and this matter is not currently before the Board. C. Both Claims As to consideration of referral for an extraschedular rating, such consideration requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. The discussion above reflects that the symptomatology associated with the Veteran's disabilities is fully contemplated by the applicable rating criteria. The symptomatology reported by the Veteran and shown on examination is contemplated by the rating criteria used to assign disability evaluations, and there is no characteristic or manifestations shown that is outside the purview of the applicable rating criteria or is so exceptional as to render the criteria in applicable. All potentially relevant rating codes have been considered and evaluated. Consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is therefore not required. The assigned ratings consider the impact on the Veteran's employment. In any event, the Veteran did not claim, and the evidence does not reflect, that there has been marked interference with employment, frequent hospitalization, or that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for any of the disabilities on appeal is not warranted. 38 C.F.R. § 3.321(b)(1). For the foregoing reasons, the Board concludes that there is no basis for staged ratings of the disabilities on appeal, as the Veteran's symptoms have been primarily the same throughout the appeal period. In this regard, the Board finds that a 10 percent rating, but no higher, for hypertension is warranted. In addition, the Board concludes that a compensable rating is not warranted for allergic rhinitis. In reaching this decision, the Board has considered the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). ORDER An initial 10 percent rating for hypertension is granted, subject to the controlling regulations applicable to the payment of monetary benefits. Entitlement to an initial, compensable rating for allergic rhinitis is denied. ____________________________________________ H. N. SCHWARTZ Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs