Citation Nr: 1639991	
Decision Date: 10/04/16    Archive Date: 10/19/16

DOCKET NO.  10-40 512	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Buffalo, New York


THE ISSUE

Entitlement to an increased evaluation for service connected hypertension, currently evaluated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

Amanda Christensen, Associate Counsel


INTRODUCTION

The Veteran had active service from June 1968 to December 1969. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a January 2010 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Buffalo, New York.

In February 2014, the Board remanded the Veteran's claim for additional development.  The claim has since been returned to the Board for further appellate action.  The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141, 146-47 (1999); Stegall v. West, 11 Vet. App. 268, 271 (1998). 


FINDING OF FACT

The Veteran's diastolic pressure is consistently less than 110 and his systolic pressure is consistently less than 200. Continuous use of medication for treatment of hypertension is required.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2015).


REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran's hypertension is rated at 10 percent under Diagnostic Code 7101, which rates hypertensive vascular disease, including hypertension and isolated systolic hypertension.  See 38 C.F.R. § 4.104.  

Diagnostic Code 7101 provides a 10 percent evaluation when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  Id.

A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more.  A 40 percent evaluation requires diastolic pressure of predominantly 120 or more.  Id. 

Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  For purposes of this section, 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.  Id.  Thus, the 10 percent rating for hypertension contemplates diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more.  In order to warrant a higher evaluation, there must be diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  Such findings have not been demonstrated in the present case.

On VA examination in November 2009 the Veteran had blood pressure readings of 142/70, 149/79, and 140/81.  He was noted to be on hydrochlorothiazide, diltiazem, and lisinopril with moderate control of his condition.

On VA examination in April 2014 the Veteran was noted to still be on three hypertension medications with moderate control of his condition.  The examiner noted blood pressure readings of 129/70 in May 2013, 113/65 in December 2013, and 155/74 in April 2014.

The Board has reviewed the Veteran's medical treatment records and identified the following additional blood pressure readings: 135/75 and 134/78 in July 2009; 139/69 and 143/62 in January 2010; 146/76 in April 2010; 131/73 in July 2010; 139/73 in January 2011; 138/68 in February 2011; 136/68 and 120/62 in March 2011; 119/59 in April 2011; 118/64 in November 2011; 146/68 in January 2012; 142/72, 116/64, 133/72 in April 2012; 135/63 and 120/60 in May 2012; 122/70 in December 2012; 129/70 in May 2013; and 125/67 in August 2013 and 113/65 in December 2013.

The Veteran has argued that if it weren't for his medications his blood pressure would meet the criteria for a 20 percent rating, and the fact that he takes three different medications to control his hypertension warrants a rating in excess of 10 percent.

In an August 2015 letter the Veteran's family physician opined that if the Veteran were to stop his current medication regime for hypertension "it is impossible to predict what his blood pressure readings would reach" and "the possibility does exist that he would have systolic readings above 200 and/or diastolic readings above 100mmHg."

The Board acknowledges that the Veteran's medication to treat his hypertension has increased over the years; however, the diagnostic criteria do not provide an increased rating solely because the number or dosage of medications has increased.  The current 10 percent rating contemplates the use of medication to control hypertension.

Further, while the Board acknowledges the Veteran and his physician's opinion that it is plausible that discontinuing medication could result in the Veteran having diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more, the fact is that the Veteran's hypertension can be and is controlled by medication.  "[T]he Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria." Jones v. Shinseki, 26 Vet. App. 56, 62 (2012).  However, the VA has specifically included the effect of medication as a factor to be considered when rating hypertension under Diagnostic Code 7101.  Therefore, the fact that the Veteran's hypertension symptoms could be worse if he discontinued effective medical treatment is irrelevant in assigning an appropriate disability rating for hypertension.  

Based on the forgoing, the Board finds that a preponderance of the evidence is against a rating in excess of 10 percent for hypertension, the benefit of the doubt doctrine is not for application, and the claim must be denied.

Additionally, the Board has also considered whether the claim should be referred for extraschedular consideration pursuant to 38 C.F.R. § 3.321 (b)(1).  In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321 (b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

This case, however, does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary.  An evaluation in excess of that assigned is provided for certain manifestations of the service-connected disability, such as elevated diastolic or systolic pressure readings, but the medical evidence reflects that those manifestations are not present in this case.  Additionally, the diagnostic criteria adequately describe the severity and symptomatology of the Veteran's disorder. As the rating schedule is adequate to evaluate the disability, referral for extraschedular consideration is not appropriate.

Finally, the Board finds that the VA has met its duty to notify and assist the claimant in substantiating his claim.  A notice letter was sent to the Veteran in August 2009, prior to the initial adjudication of the claim on appeal.  The letter informed the Veteran of what information and evidence must be submitted to substantiate the claim, including a description of what information and evidence must be provided by the Veteran and what information and evidence would be obtained by VA.  He was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claim to the RO.  The letter also addressed VA's practices in assigning disability evaluations and effective dates for those evaluations.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  The Board finds that the content of the letter complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).  	

VA also has a duty to assist the Veteran with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  This duty includes the obtaining of "relevant" records in the custody of a federal department or agency under 38 C.F.R. § 3.159(c)(2), as well as records not in federal custody (e.g., private medical records) under 38 C.F.R. § 3.159(c)(1).  VA will also provide a medical examination if such examination is determined to be "necessary" to decide the claim.  38 C.F.R. § 3.159(c)(4).

The Board finds that all necessary development has been accomplished.  The RO has obtained the Veteran's VA treatment records and the Veteran submitted a statement by his private physician.  Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  The Veteran was afforded a VA medical examination in November 2009 and April 2014.  The examiners, medical professionals, listened to the Veteran's assertions and performed the necessary tests.  The Board finds that the examinations are adequate and contain sufficient information to decide the issue on appeal.  Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the claim.  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, 16 Vet. App. 183 (2002).


ORDER

A rating in excess of 10 percent for hypertension is denied.



____________________________________________
H. SEESEL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs