Citation Nr: 1620496 Decision Date: 05/19/16 Archive Date: 05/27/16 DOCKET NO. 10-44 216 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an initial compensable rating for hypertension. WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD C. Banister, Associate Counsel INTRODUCTION The Veteran served on active duty from August 1989 to August 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2012. A transcript of that hearing is of record. This matter was previously before the Board in April 2014, at which time it was remanded for further development. The requested development was completed, and the case has been returned to the Board for further appellate action. FINDING OF FACT Since the effective date of service connection, the Veteran's hypertension has been manifested by a history of diastolic pressure of 100 or more requiring continuous medication for control. CONCLUSION OF LAW The criteria for an initial rating of 10 percent, but not higher, for hypertension have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION Duty to Notify and Assist Under the Veterans Claims Assistance Act of 2000 (VCAA) VA has a duty to notify and assist a claimant in the development of a claim. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2015). The notice requirements of the VCAA require VA to notify a claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, the VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2015). The Veteran's increased rating claim arose from his disagreement with the initial evaluation assigned following the grant of service connection. Once service connection is granted, the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Concerning the duty to assist, the record reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran, including service treatment records, post-service treatment records, and VA examination reports. The Board also notes that action requested in the prior remand has been undertaken. In October 2015, the agency of original jurisdiction requested signed authorizations for any private treatment providers who recently treated the Veteran for hypertension; however, no authorizations were received. The Veteran received a VA examination in January 2016. Accordingly, the Board finds that there has been substantial compliance with the prior remand instructions and no further action is necessary. See D'Aries v. Peake, 22 Vet. App. 97 (2008) (holding that only substantial, and not strict, compliance with the terms of a Board remand is required pursuant to Stegall v. West, 11 Vet. App. 268 (1998)). The Veteran was also afforded a hearing before the Board. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the officer who chairs a hearing to explain the issues and suggest the submission of evidence that may have been overlooked. Here, the Veterans Law Judge identified the issue to the Veteran, who testified as to his symptomatology and treatment history. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has he identified any prejudice in the conduct of the hearing. The hearing focused on the elements necessary to substantiate the claim on appeal, and the Veteran provided testimony relevant to those elements. As such, the Board finds that no further action pursuant to Bryant is necessary, and the Veteran is not prejudiced by a decision at this time. After a careful review of the file, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2015). Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability; resolving any reasonable doubt regarding the degree of disability in favor of the claimant; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity. See 38 C.F.R. §§ 4.2, 4.3, 4.7, 4.10 (2015); see also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119, 127 (1999). The Board has reviewed all the evidence in the record. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the appellant or obtained on his behalf be discussed in detail. Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000); Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In an August 2007 rating decision, service connection was granted for hypertension, and a noncompensable disability rating was assigned, effective September 1, 2009. Thereafter, the Veteran appealed the initial rating assigned to his service-connected hypertension. The Veteran's hypertension has been evaluated under the criteria set forth in Diagnostic Code 7101. Pursuant to Diagnostic Code 7101, a 10 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. A 20 percent rating is warranted for diastolic pressure of predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. A review of the Veteran's service treatment records reveals blood pressure readings of 146/100, 150/105, and 154/104 in August 2008; 154/101 in September 2008; 147/101 in October 2008; and 154/104 in January 2009. Thereafter, service treatment records show a diagnosis of hypertension and an active prescription for Telmisartan (Micardis) beginning February 2009. A March 2009 pre-discharge VA examination report indicates that the Veteran was diagnosed with hypertension in 2008 and prescribed Atenolol daily. Blood pressure readings were recorded as 159/88, 147/91, and 153/89. The examiner indicated that the Veteran's essential hypertension was stable on medication. There was no effect on the Veteran's usual occupation. Post-service treatment records dated through November 2010 continue to list hypertension as a chronic problem and show active prescriptions of Telmisartan. The record shows blood pressure readings of 123/78 and 134/80 in September 2009 and 136/85 in December 2009. During a December 2010 VA examination, the Veteran reported receiving a diagnosis of hypertension in May 2008 and being placed on anti-hypertensive medication around August 2009. Blood pressure readings were recorded as 130/82, 130/82, and 130/80. The diagnosis was hypertension, which was stable on medication. It was noted that the Veteran's hypertension did not affect is usual daily activities. During a May 2012 hearing before the Board, the Veteran testified that he continued take 80 milligrams of Micardis daily to treat his hypertension and was required to monitor his diet and exercise. A January 2016 VA examination report indicates that the Veteran received a diagnosis of essential hypertension in 2008, for which he was prescribed Atenolol. The examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more, and his treatment plan included continuous medication for hypertension, including Hydrochlorothiazide and Losartan. Blood pressure readings were recorded as 137/88, 134/90, 133/88. The Average blood pressure reading was 134/88. The diagnosis was essential hypertension, which was stable on medication. The examiner indicated that the Veteran's hypertension did not impact his ability to work. Although the January 2016 VA examiner indicated that the Veteran did not have a history of diastolic blood pressure predominantly 100 or more, a review of the Veteran's service treatment records from October 2008 through January 2009 reveals blood pressure readings of 146/100, 150/105, 154/104, 154/101, 147/101, and 154/104. Thus, the medical evidence of record shows a history of diastolic pressure of 100 or more. Furthermore, beginning February 2009, the Veteran's hypertension required continuous medication for treatment. Accordingly, the Board finds that the criteria for an initial 10 percent disability rating have been more nearly approximated. See 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101. The medical evidence of record does not support an evaluation in excess of 10 percent. The findings noted above clearly do not reflect diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. As such, the 10 percent rating assigned herein since the effective date of service connection adequately addresses the level of impairment resulting from the Veteran's service-connected hypertension. The Board has considered whether the Veteran's hypertension presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extraschedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the established schedular criteria are inadequate to describe the severity and symptoms of the claimant's disability. See Thun v. Peake, 22 Vet. App. 111, 118 (2008). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology and provide for additional or more severe symptoms than currently shown by the evidence. In this case, the evidence shows that the Veteran's hypertension is well controlled on medication, and his daily use of medication is contemplated by the rating criteria. As such, the assigned schedular rating is adequate, and referral for extraschedular consideration is not warranted. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. However, the Veteran has not asserted, and the record does not reflect, that he is rendered unemployable due to his hypertension. Indeed, the March 2009 and January 2016 VA examiners indicated that the Veteran's hypertension did not affect his ability to work. Moreover, the December 2010 VA examiner indicated that the Veteran's hypertension had no impact on his usual daily activities. As such, the Board finds that a claim of entitlement to TDIU has not been raised and no further action pursuant to Rice is necessary. In reaching this decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against assigning the Veteran's hypertension a rating in excess of 10 percent, the doctrine is not for application. See Gilbert, 1 Vet. App. at 56. ORDER An initial rating of 10 percent for hypertension is granted, subject to the laws and regulations governing the payment of monetary benefits. ____________________________________________ K. A. BANFIELD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs