Citation Nr: 1523340 Decision Date: 06/02/15 Archive Date: 06/16/15 DOCKET NO. 11-13 362 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for hypertension. 2. Entitlement to an initial disability rating in excess of 10 percent for patellar tendonitis of the right knee with degenerative arthritis. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD Tahirih S. Samadani, Counsel INTRODUCTION The Veteran had active service from June 1964 to June 1967. This matter comes before the Board of Veterans' Appeals (Board) from an August 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran's claims file is a "paperless" claims file. All records in the Veteran's case are maintained in Virtual VA and Veterans Benefits Management System (VBMS). This case was previously before the Board in November 2014. It is now before the Board for further appellant action. The issue of service connection for kidney disease as secondary to service-connected hypertension has been raised in an October 2011 VA treatment record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2014). The Board notes that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a claim for a TDIU due to service-connected disability is part and parcel of an increased rating claim for that disability when raised by the record. The Veteran filed a TDIU claim in January 2010 specifically claiming that he could not work due to his heart disability. In an April 2010 decision, the RO granted a 100 percent evaluation for the heart disability effective March 2009 and found the claim for TDIU to be moot. The Veteran's initial claim for service-connected for hypertension which precipitated his higher initial rating claim was filed in January 2008 prior to when the Veteran was assigned a 100 percent evaluation. Despite this, the Veteran has at no time alleged that he cannot obtain gainful employment due to his service-connected hypertension. The Board concludes that the Veteran has not raised the issue of TDIU and the issue of TDIU is not before the Board at this time. The issue of entitlement to an initial disability rating in excess of 10 percent for patellar tendonitis of the right knee with degenerative arthritis is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT Throughout the rating period, the Veteran's hypertension has required medication for control; and has been manifested by diastolic blood pressure of predominantly between 70 and 90, and by systolic pressure predominantly in the 170s. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for hypertension are not met or nearly approximated. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.7, 4.104, Diagnostic Code 7101 (2014). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Assist and Notify VA has a duty to notify and assist claimants in substantiating a claim for VA benefits pursuant to 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b). In April 2008, the agency of original jurisdiction (AOJ) sent a letter to the Veteran providing the notice required for the initial claim of service connection for hypertension. Service connection was subsequently granted, and the Veteran appealed the 10 percent evaluation assigned from January 31, 2008 for hypertension. In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). Regardless, in a letter dated in April 2008, the AOJ notified the Veteran of the process by which disability ratings and effective dates are determined. The Veteran was given the opportunity to submit additional information. The claim subsequently was readjudicated most recently in the January 2015 supplemental statement of the case. See Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification letter followed by readjudication of the claim, such as an SOC or SSOC, is sufficient to cure a timing defect). The Veteran has been adequately notified of the information and evidence necessary to substantiate his claim for a higher rating. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records have been associated with the claims file. All identified and available post-service treatment records have been secured. In a December 2014 phone contact memorandum, the Veteran reported that he had not received any private treatment concerning hypertension and had received all of his treatment since February 2008 from VA facilities. The Veteran has been medically evaluated in conjunction with his claim. The duty to assist has been fulfilled. In November 2014, this case was before the Board and remanded for a VA examination and updated VA treatment records. Both of these remand stipulations have been substantially complied with as to the issue of hypertension and no further development is needed. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). II. Entitlement to an initial disability rating in excess of 10 percent for hypertension. Service connection has been established for hypertension. The Veteran's hypertension is rated as 10 percent disabling under Diagnostic Code 7101. Disability evaluations are determined by comparing a Veteran's present symptomatology with criteria set forth in 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. 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2014). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 4.3 (2014). In cases in which a claim for a higher initial evaluation stems from an initial grant of service connection for the disability at issue, as here, multiple ("staged") ratings may be assigned for different periods of time during the pendency of the appeal. See generally Fenderson v. West, 12 Vet. App. 119 (1999). Pursuant to Diagnostic Code 7101, a 10 percent rating is assigned for essential hypertension when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or; as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure that is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) following Diagnostic Code 7101 provides that the term "hypertension" means the diastolic blood pressure is predominantly 90 millimeters or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. Note (2) provides that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it, rather than by a separate evaluation. Note (3) provides that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7101, Notes. Historically, the Veteran had been hypertensive for many years. The Veteran continues to take medications for blood pressure control. In July 2008, the Veteran was afforded a VA examination. Blood pressure readings during the examination were: 160/114, 142/100 and 140/100. He was diagnosed with benign essential hypertension. In a March 2008 VA treatment record, the Veteran's blood pressure was 160/80 In a March 2009 VA treatment record, the Veteran blood pressure was 137/77. In April 2009, the Veteran's blood pressure was 107/67. In March 2009, the physician noted low blood pressure was 106/59 and high blood pressure was 170/99. In a June 2009 VA treatment record, the Veteran's blood pressure was 150/82. In May 2009, blood pressure was 122/67. In June 2009, the Veteran was afforded a VA examination for hypertension. Blood pressure was 136/82 and 118/64. In March 2010, the Veteran was afforded another VA examination. The Veteran reported that he exercised regularly. Blood pressure readings at the examination were 180/100, 176/98 and 176/96. In October 2011, the Veteran's blood pressure was 174/70 and 161/70. The VA physician opined that his hypertension was under good control. Hydrochlorothiazide was recently stopped, and the Veteran thought he needed to go back on it. In September 2012, the Veteran called VA complaining of feeling dizzy and lightheaded when he stood up and thought this blood pressure could be the cause. He reported that he had lost 10 to 12 pounds. He was instructed to decrease the Losartan dosage and the bumetanide dosage for his blood pressure. In a February 2014 VA treatment record, the Veteran's blood pressure was 130/78. In an October 2014 VA treatment record, the Veteran's hypertension was stable. The Veteran received a VA examination in December 2014 for his hypertension. The examiner noted that the Veteran has had a diagnosis of hypertension since 1967. He reported that he took continuous medication for his hypertension which included losartan and carvedilol. He did not have a history of diastolic blood pressure elevation to predominantly 100 or more. His current blood pressure readings were 150/84, 172/90 and 176/82. The examiner opined that his hypertension did not impact his ability to work. In an April 2009 statement, the Veteran explained that he recently underwent a three vessel bypass open heart surgery. He believed that the increase in his medical complications was from prolonged hypertensive vascular disease. He requested an increase in his service connection hypertension. Since that time, the RO determined that the Veteran's heart disability was secondary to his hypertension and service connection was granted for arteriosclerotic coronary artery disease status post myocardial infarction. A 100 percent evaluation was assigned for his heart disability. In this case, the Veteran takes continuous medication for his hypertension. The evidence does not show, however, that he has predominantly had systolic readings of more than 200 or diastolic readings of more than 110. Systolic readings as described above range from 106 to 180, with the readings predominantly in the 170s. Diastolic readings range from 59 to 114, with the readings predominantly between 70 and 90. Notably, the 114 reading is the sole one over 110. The next closest is 100. As such, the criteria for a higher rating for the Veteran's hypertension have not been met. Finally, an extraschedular evaluation is for consideration where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. Floyd v. Brown, 9 Vet. App. 88, 94 (1996). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of the Veteran's service-connected disability. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating. Otherwise, the schedular evaluation is adequate, and referral is not required. 38 C.F.R. § 3.321(b)(1); Thun, 22 Vet. App. at 116. The Board finds that the schedular evaluation assigned for the Veteran's service-connected hypertension is adequate in this case. Examiners have found that the Veteran's hypertension does not impact his ability to work. Nor does the evidence reveal frequent periods of hospitalization due to hypertension. Specifically, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's service-connected disability. Therefore, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). For the foregoing reasons, the Board finds that, throughout the rating period, the preponderance of the evidence is against an initial disability rating in excess of 10 percent for hypertension. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an initial evaluation in excess of 10 percent hypertension is denied. REMAND In December 2014, the Board remanded the issue of a higher initial evaluation for a right knee disability for a VA examination in order to determine his current severity. Such examination was conducted in December 2014; however, the Board finds this examination to be inadequate. The December 2014 examiner noted that flexion was from 0 to 110 degrees and extension was from 110 to 0 degrees. The examiner specifically noted that pain was noted on examination and caused functional loss, but is uncertain at what degree pain was found or how much functional loss the Veteran experienced. Also, the examiner determine that pain, weakness, fatigability or incoordination significantly limited the Veteran's functional ability but did not attempt to provide at what degree functional ability was limited. DeLuca v. Brown, 8 Vet. App. 202 (1995) and Mitchell v. Shinseki, 25 Vet. App. 32 (2011). Therefore, on remand, the Veteran should be afforded an updated examination, specifically addressing these factors. Stegall v. West, 11 Vet. App. 268, 270-71 (1998). Accordingly, the case is REMANDED for the following action: 1. Obtain VA treatment records since November 2014 and associated them with the claims file. 2. Schedule the Veteran for a VA examination to determine the severity of his service-connected right knee disability. Any and all studies, tests and evaluations deemed necessary by the examiner should be performed. The claims file should be made available to the examiner. The examiner should also elicit a complete history from the Veteran, the pertinent details of which should be included in the examination report. The most updated version of the Compensation and Pension Examination Report should be used. The examiner's report should fully set forth all current complaints and pertinent clinical findings, and should describe in detail the presence or absence and the extent of any functional loss due to the Veteran's service-connected right knee disability. In particular, the examiner should indicate the degree during range of motion testing that motion (both flexion and extension) is limited by pain. Consideration should be given to any loss due to reduced or excessive excursion, or due to decreased strength, speed, or endurance, as well as any functional loss due to absence of necessary structures, deformity, adhesion, or defective innervation. In particular, the examiner should comment on any functional loss due to weakened movement, excess fatigability, incoordination, or pain on use. The examiner should also state whether any pain claimed by the Veteran is supported by adequate pathology, e.g., muscle spasm, and is evidenced by his visible behavior, e.g., facial expression or wincing, on pressure or manipulation. The examiner's inquiry in this regard should not be limited to muscles or nerves, but should include all structures pertinent to movement of the joint. 3. Upon completion of the examination ordered above, review the examination report to ensure that it addresses the questions presented. Any inadequacies should be addressed prior to recertification to the Board. 4. Then, readjudicate the claims on appeal, with application of all appropriate laws, regulations, and case law, and consideration of any additional information obtained as a result of this remand. If the decision remains adverse to the Veteran, he and his representative should be furnished a supplemental statement of the case and afforded an appropriate period of time within which to respond thereto. The appellant 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 of Veterans' Appeals 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 2014). ______________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs