Citation Nr: 0809666 Decision Date: 03/21/08 Archive Date: 04/03/08 DOCKET NO. 05-20 931 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a disability rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Florida Department of Veterans Affairs ATTORNEY FOR THE BOARD D. Orfanoudis, Counsel INTRODUCTION The veteran served on active duty from April 1984 to April 1992. This matter is before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO), located in Jackson, Mississippi, which denied the above claim. Jurisdiction of this matter was then transferred to that of the RO located in St. Petersburg, Florida. This matter was previously before the Board in August 2007 at which time it was remanded for additional development. It is now returned to the Board for appellate review. FINDING OF FACT The veteran's hypertension is not characterized by diastolic blood pressure of predominantly 110 or more, or systolic blood pressure of predominantly 200 or more. CONCLUSION OF LAW The schedular criteria for the assignment of a disability rating greater than 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2007); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duty to Notify and Assist The Veterans Claims Assistance Act of 2000, 38 U.S.C.A. §§ 5100, 5102-5103A, 5106, 5107, 5126 (West 2002 & Supp. 2007), 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2007), requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of what they must do to substantiate their claims. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). The notice required by the VCAA can be divided into four elements. Specifically, VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that the claimant is to provide; (3) that VA will attempt to obtain; and (4) request that the claimant provide any evidence in his or her possession that pertains to the claim. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). In addition, the notice requirements of the VCAA apply to all five 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). Specifically, the notice must include notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice errors are presumed prejudicial unless VA shows that the error did not affect the essential fairness of the adjudication. To overcome the burden of prejudicial error, VA must show (1) that any defect was cured by actual knowledge on the part of the claimant; (2) that a reasonable person could be expected to understand from the notice what was needed; or, (3) that a benefit could not have been awarded as a matter of law. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). By letters dated in November 2004 and September 2007, the veteran was notified of the evidence not of record that was necessary to substantiate his claim. He was told what information that he needed to provide, and what information and evidence that VA would attempt to obtain. He was, in essence, told to submit all relevant evidence he had in his possession. There is no allegation from the veteran that he has any evidence in his possession that is needed for a full and fair adjudication of this claim. Under these circumstances, the Board finds that the notification requirements of the VCAA have been satisfied. With respect to the Dingess requirements, the claimant was provided with notice of the type of evidence necessary to establish a disability rating or effective date by the letter dated in September 2007. Adequate notice has been provided to the veteran prior to the transfer and certification of the veteran's case to the Board and complied with the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b). Additionally, the appeal was readjudicated by way of the November 2007 Supplemental Statement of the Case. According to Vazquez-Flores v. Peake, -- Vet. App. --, No. 05-0355, 2008 WL 239951 (Jan. 30, 2008), for an increased disability rating, section 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the claimant must provide, or ask VA to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment and daily life. Further, if the Diagnostic Code under which the claimant is rated contains criteria necessary for entitlement to a higher disability rating that would not be satisfied by the claimant demonstrating a noticeable worsening or increase in severity of the disability and the effect of that worsening has on the claimant's employment and daily life (such as a specific measurement or test result), the Secretary must provide at least general notice of that requirement to the claimant. Additionally, the claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant Diagnostic Codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment and daily life. As with proper notice for an initial disability rating and consistent with the statutory and regulatory history, the notice must also provide examples of the types of medical and lay evidence that the claimant may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation - e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. In this case, the claimant was provided pertinent information in notice letters cited above and in the other correspondence from VA. Cumulatively, the veteran was informed of the necessity of providing on his own or by VA, medical or lay evidence demonstrating a worsening or increase in severity of the respective disabilities and the effect that worsening has on the his employment and daily life. The veteran was informed that should an increase in disability be found, a disability rating would be determined by applying the relevant diagnostic codes; and examples of pertinent medical and lay evidence that he could submit relevant to establishing entitlement to increased compensation. Next, the VCAA requires that VA make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The veteran's relevant service, VA, and private medical treatment records have been obtained. The veteran has also been afforded VA examinations. There is no indication of any additional, relevant records that the RO failed to obtain. In sum, the Board finds the duty to assist and duty to notify provisions of the VCAA have been fulfilled and no further action is necessary under the mandate of the VCAA. Higher disability ratings Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes identify the various disabilities. Id. It is necessary to evaluate the disability from the point of view of the veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which evaluation to apply to the veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2007). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2007); Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the veteran's entire history is reviewed when assigning a disability evaluation, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). A recent decision of the United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. Hypertension The veteran's service-connected hypertension is currently rated 10 percent disabling under Diagnostic Code 7101, hypertensive vascular disease (hypertension and isolated systolic hypertension). Under this diagnostic code provision, a 10 percent rating is assigned for hypertension when diastolic pressure is predominately 100 or more; or when systolic pressure is predominantly 160 or more; or when there is a history of diastolic pressure predominantly 100 or more and continuous medication for control is required. A 20 percent rating is assigned when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 40 percent rating is assigned when diastolic pressure is predominantly 120 or more. A maximum 60 percent rating is assigned when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). As indicated above, to receive the next higher rating of 20 percent, the veteran's diastolic pressure, i.e., the bottom number of his blood pressure reading, must be predominantly 110 or more, or his systolic pressure, i.e., the top number of his blood pressure reading, must be predominantly 200 or more. The evidence in this case demonstrates that the veteran's diastolic pressure is predominantly below 110, and his systolic pressure is predominantly below 200, and thus his hypertension is no more than 10 percent disabling. VA outpatient treatment records dated from June 2004 to December 2005 show that the veteran's blood pressure had been read on several occasions. Specifically, in June 2004, the veteran's blood pressure was 106/58. In July 2004, blood pressure was 133/62; in August 2004, it was 114/65; in September 2004 it was 120/84 and 128/68; in October 2004, it was 109/70, 146/88, and 111/72; in March 2005, it was 168/85 and 143/97; in April 2005, it was 130/72 and 138/87; in July 2005, it was 137/88 and 112/78; and in December 2005, it was 154/86. A VA examination report dated in October 2007 shows that the veteran reported having no symptoms associated with hypertension at this time. He indicated that he took medication for his hypertension, but that he could not recall the name. Blood pressure was taken on three occasions utilizing the right arm in a sitting position approximately five minutes apart. Blood pressure was read to be 121/76, 124/85, and 132/79. The impression was essential hypertension. Following a careful review of the evidence, the Board finds that the veteran's hypertension is not shown to be more than 10 percent disabling. The veteran's blood pressure has been read on numerous occasions since the veteran file his claim for an increased disability rating. The medical reports, however, show systolic readings which have been entirely below 200 and diastolic readings which have been entirely below 110. Hence, the Board finds that the currently assigned evaluation of 10 percent is appropriate. The Board has considered the veteran's assertions that his blood pressure is more disabling than reflected by his current disability rating. However, the Board is limited to those factors that are included in the rating criteria provided by regulations for rating that disability. To do otherwise would be error as a matter of law. Massey v. Brown, 7 Vet. App. 204, 208 (1994); Pernorio v. Derwinski, 2 Vet. App. 625, 628 (1992). The pertinent criteria for rating hypertension in this case involves an assessment of the predominant systolic and diastolic pressure readings of record. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Accordingly, the documented blood pressure readings of record were the only medical findings which could be considered in concluding that an increased disability rating for hypertension is not appropriate. The preponderance of the evidence is against the claim for a disability rating greater than 10 percent for the service- connected hypertension. Thus, the benefit-of-the doubt doctrine is inapplicable, and the claim must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). ORDER A disability rating in excess of 10 percent for hypertension is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs