Citation Nr: 0811937 Decision Date: 04/10/08 Archive Date: 04/23/08 DOCKET NO. 04-03 939 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to a compensable rating for hypertension. 2. Entitlement to an award of a total rating due to service- connected disability based on individual unemployability (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The veteran ATTORNEY FOR THE BOARD R. Giannecchini, Counsel INTRODUCTION The veteran had active military service from June 1976 to July 1993. These matters come to the Board of Veterans' Appeals (Board) on appeal of a December 2001 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Nashville, Tennessee. In March 2004, the veteran and his representative met with a Decision Review Officer during an informal conference. In July 2005, the veteran testified during a hearing before the undersigned Veterans Law Judge at the VARO. In November 2005, the Board remanded the veteran's claims for additional development to the Agency of Original Jurisdiction (AOJ). The Appeals Management Center (AMC) in Washington, D.C. acted on the remand. In an October 2006 rating decision, the AMC granted service connection and assigned a 10 percent rating for tardy ulnar nerve palsy of the right elbow (claimed by the veteran as a broken right elbow). Following further development of the record, the AMC continued the denial of the veteran's claim for a compensable rating for hypertension and his claim for a TDIU and returned these matters to the Board. (The decision below addresses the veteran's claim for a compensable rating for hypertension. The remaining issue on appeal will be discussed in the remand that follows this decision.) Finally, the Board notes that in a December 2005 statement, the veteran contended that his being overweight (obesity) was related to his period of military service. The Board construes the veteran's contention as a claim of service connection for obesity. As this issue has not been adjudicated by the AOJ, it is not before the Board. Hence, the claim for service connection for obesity is referred to the AOJ for appropriate action. FINDING OF FACT The veteran's service-connected hypertension has required use of medication for control; however, he has not had diastolic blood pressures predominantly 100 or more, or systolic blood pressures predominantly 160 or more. CONCLUSION OF LAW The criteria for a compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2007). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist At the outset, the Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2007). To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2007). The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). In a case involving a rating increase, as is the case here, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify a claimant that, to substantiate a claim, the claimant must either provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in the severity of the disability and the effect that the worsening has on the claimant's employment and daily life. Vasquez- Flores v. Peake, 22 Vet. App. 37 (2008). Additionally, if the particular diagnostic code under which the claimant is currently rated authorizes higher disability ratings based on specific criteria beyond the noticeable effect of the worsening of the disability and its effect upon the claimant's employment and daily life, VA must provide, at least, general notice of the information and evidence necessary to establish these more specific criteria. Id. Here, the Board finds that all notification and development action needed to render a decision on the claim for a compensable rating for hypertension on appeal has been accomplished. In particular, September 2003 and November 2005 notice letters satisfy the statutory and regulatory requirement that VA notify a claimant what evidence, if any, will be obtained by the claimant and which evidence, if any, will be retrieved by VA. See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)). In those letters, the agency of original jurisdiction (AOJ) also notified the veteran that VA was required to make reasonable efforts to obtain medical records, employment records, or records from other Federal agencies. It requested that the veteran identify any medical providers from whom he wanted the AOJ to obtain and consider evidence. The AOJ also invited the veteran to submit evidence in support of his claim. Thereafter, the veteran was afforded the opportunity to respond. Hence, the Board finds that the veteran has been afforded ample opportunity to submit information and/or evidence needed to substantiate his claim. The Board also notes that the above notice letters informed the veteran that he needed to submit evidence showing that his service-connected hypertension had increased in severity. While neither letter specifically notified the veteran that he should submit evidence to show the effect of the worsening of his hypertension on his employment and daily life, Vasquez-Flores, supra., the letters included notice on what the veteran needed to submit to substantiate his claim for a TDIU. In particular, the veteran was informed that the evidence to substantiate his claim for a TDIU needed to show that his service-connected disability or disabilities prevented him from performing the mental and/or physical tasks required to get or keep substantially gainful employment. The Board finds implicit in the RO's request for evidence with respect to the claim for a TDIU, a request that the veteran submit evidence regarding his hypertension and its effect on employability. Additionally, when asked in his application (VA Form 21-8940) for a TDIU about which disabilities affected his employability, the veteran only reported that his service-connected back disability prevented him from securing or following any substantially gainful employment. He did not otherwise report that his hypertension affected his employment nor was such a finding made in the Social Security Administration (SSA) decision in which the veteran was awarded SSA disability benefits. The Board also notes that during his July 2005 hearing with the undersigned Veterans Law Judge, the veteran's representative contended that the veteran's hypertension had worsened. He also argued that the veteran's hypertension, in combination with a service-connected back disability and service-connected foot disability, as well as the veteran's obesity, combined to render him unemployable. Otherwise, neither the veteran nor his representative offered further testimony or argument on any relationship between the veteran's hypertension and employability. In comparison, the veteran and his representative did comment at length with respect to his service-connected orthopedic disabilities and their effect on employability. The Board also notes that in the above-noted December 2001 rating decision, the RO notified the veteran why it had denied his claim for a compensable rating for hypertension. In doing so, the RO provided the veteran with the relevant rating criteria for hypertension. In his February 2002 notice of disagreement, the veteran stated, in part, I did receive an examination on September 27, 2001. At that time, my blood pressure was taken approximately eight times. I was instructed to lie down and relax. Only the last reading was recorded. Additionally you state that I am not on blood pressure medication. I have received my 14th refill of [Diltiazem], 240 MG, from VAMC Murfreesboro. A January 2004 statement of the case (SOC) again provided the veteran with the relevant rating criteria for hypertension. A January 2004 VA Form 9 (Appeal to Board of Veterans' Appeals) submitted by the veteran, notes the veteran's report of an increase in his blood pressure medication. (The use of blood pressure medication is one of the criteria to be considered in rating the veteran's hypertension.) Here, the Board finds that the veteran had actual knowledge concerning evidence needed to demonstrate a worsening of his hypertension on his employment and daily life, and through written arguments and testimony, as well as other evidence of record, has submitted such evidence. Likewise, through his written argument the veteran has demonstrated actual knowledge of the rating criteria for hypertension. Therefore, the Board finds that the veteran has been properly notified of the (1) the evidence that is needed to substantiate his claim, (2) the evidence, if any, to be obtained by VA, and (3) the evidence, if any, to be provided by the claimant; and (4) and for the veteran to provide any evidence in his possession that pertains to the claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004); Vazquez- Flores, supra. While the complete notice required by the VCAA was not provided prior to the RO initially adjudicating the veteran's claim for a compensable rating for hypertension, "the appellant [was] provided the content-complying notice to which he [was] entitled." Pelegrini, 18 Vet. App. at 122. Nothing about the evidence or any response to the AOJ's notification suggests that the case must be re-adjudicated ab initio to satisfy the requirements of the VCAA. Therefore, the Board does not find that the essential fairness of the adjudication has been affected. See Sanders v. Nicholson, 487 F.3d 881 (Fed. Cir. 2007). The Board also points out that there is no indication whatsoever that any additional action is needed to comply with the duty to assist in connection with the claim for a compensable rating for hypertension on appeal. Identified VA and private medical records have been associated with the claims file, as have the records associated with the veteran's award of disability benefits from the Social Security Administration (SSA). In addition, the veteran has been provided during the appeal period a VA examination to assess the severity of his hypertension. Furthermore, neither the veteran nor his representative has alleged that there are any outstanding medical records probative of the veteran's claim for a compensable rating for hypertension that need to be obtained. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. II. Analysis Disability evaluations are determined by comparing a veteran's present symptoms with 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. 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 reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has also held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. If VA's adjudication of an increased rating claim is lengthy, a claimant may experience multiple distinct degrees of disability that would result in different levels of compensation from the time the increased rating claim was filed until a final decision on that claim is made. Thus, VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The veteran's hypertension has been evaluated as noncompensably (0 percent) disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension). The applicable diagnostic code provides for a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. A 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2007). During the pendency of the appeal, the diagnostic code associated with hypertension was amended. See 71 Fed. Reg. 52,457-60 (Sept. 6, 2006) (as codified). Effective October 6, 2006, a note was added after the rating criteria of Diagnostic Code 7101 concerning separate evaluations of hypertension and other heart diseases. However, this change is applicable only for claims filed on or after the effective date of the final rule-October 6, 2006. With regard to the present appeal, the veteran's claim for a compensable rating for hypertension was filed in September 2000. The medical evidence in this case includes a number of recorded blood pressure readings during the time period the veteran's claim has been pending. While it is necessary for the veteran to maintain continuous medication to control his hypertension, the veteran's blood pressure readings of record do not support a higher rating for his service-connected hypertension. In particular, the medical evidence of record dated in 1999 does not reflect the veteran's systolic pressure at 160 or above or his diastolic pressure at 100 or above. Otherwise, the medical evidence documents that only on two occasions in the year 2000 (June 2000-166 (systolic)/88 (diastolic) and October 2000-160/90) did the veteran's systolic pressure reach 160 or above and at no time did his diastolic pressure reach 100. Likewise, only once in the year 2001 (January 2001-166/94) and twice in the year 2002 (February 2002-162/86 and June 2002-162/86) was the veteran's systolic pressure recorded above 160. At no time during those years was the veteran's diastolic pressure recorded at 100 or above. In addition, on only four occasions in the year 2003 (February 2003-164/83, August 2003-173/77, and November 2003-177/80 and 166/79) was the veteran's systolic pressure recorded at 160 or above and at no time was his diastolic pressure recorded at 100 or above. Furthermore, on only two occasions in the year 2004 (June 2004-162/86 and 169/88) and on one occasion in the year 2005 (April 2005-167/103) was the veteran's systolic pressure recorded at 160 or above or diastolic pressure at 100 or above. Therefore, following a review of the medical evidence during the entire time period the increased rating claim has been pending, the Board simply does not find that the veteran's diastolic pressure has been predominantly 100 or more or his systolic pressure has been predominantly 160 or more. As noted above, there must be a predominant showing of those levels in order to warrant a higher rating, and in the veteran's case, the predominantly shown readings were below these levels. The Board also finds that the alternative criteria for a 10 percent rating are also not met. Even though the veteran's hypertension has required continuous medication for control, as noted above, a history of diastolic pressure predominantly 100 or more has not been shown by the evidence. The Board also notes that at no time has the veteran demonstrated the necessary criteria for a rating higher than 10 percent. Consequently, a compensable rating for hypertension is not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101; Hart, supra. The above determination is based upon application of the pertinent provisions of VA's rating schedule. The Board finds that the record does not reflect that the veteran's hypertension is so exceptional or unusual as to warrant the assignment of a compensable rating on an extra-schedular basis. See 38 C.F.R. § 3.321(b)(1) (2007). Here, the Board simply does not find evidence of marked interference with employment or frequent periods of hospitalization, or evidence that the veteran's hypertension renders impractical the application of the regular schedular standards. Therefore, the criteria for invoking the procedural actions outlined in 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 157, 158-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER Entitlement to a compensable rating for hypertension is denied. REMAND As noted above, in November 2005, the Board remanded the veteran's claim for a TDIU for a medical opinion as to whether the veteran's service-connected disabilities combine to preclude gainful employment. In this respect, the veteran is service connected for mechanical low back pain with degenerative joint disease, rated as 40 percent disabling; for right heel bone spur with Achilles tendonitis, rated as 10 percent disabling; for left heel bone spur with Achilles tendonitis, rated as 10 percent disabling; for tardy ulnar nerve palsy of the right elbow, rated as 10 percent disabling; for nondisplaced left olecranon evulsion fracture, rated as noncompensable (0 percent); for hypertension, rated as noncompensable; and for hemorrhoids, rated as noncompensable. The veteran's combined disability rating is 60 percent. In its remand, the Board noted that there was conflicting medical evidence as to whether the veteran's service- connected disabilities rendered him unemployable. In particular, a report of September 2001 VA general medical examination notes that the veteran was not disabled from all types of employment that might be available to him. A later report of an April 2004 VA foot examination reflects the examiner's opinion that the veteran's chronic foot pain could prevent him from having gainful employment. The veteran was also found disabled for the purpose of SSA benefits. As such, the Board requested that in addition to the requested medical examination and opinion concerning the veteran's then-pending claim for service connection for a right elbow disability, that a medical opinion with regard to the veteran's employability also be obtained. A review of the report of February 2006 (VA fee-based) examination reflects clinical findings and opinion regarding the veteran's right elbow disability; however, the medical report does not contain an opinion regarding the veteran's employability. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (if the Board proceeds with final disposition of an appeal, and the remand orders have not been complied with, the Board itself errs in failing to ensure compliance). Nonetheless, the AMC adjudicated and denied the veteran's claim for a TDIU. In light of the fact that the requested medical opinion was not obtained, the veteran should be scheduled for a VA examination at an appropriate VA medical facility. See 38 U.S.C.A. § 5103A (West 2002). The examiner should offer an opinion as to whether the veteran's service-connected disabilities preclude substantially gainful employment that is consistent with the veteran's education and occupational experience. Id.; Friscia v. Brown, 7 Vet. App. 294 (1995). The Board emphasizes to the veteran that failure to report to the scheduled examination, without good cause, may result in a denial of his claim. See 38 C.F.R. § 3.655(b) (2007). The action identified herein is consistent with pertinent duties to notify and assist imposed by the Veterans Claims Assistance Act of 2000 (VCAA). However, identification of the specific action requested on remand does not relieve the AOJ of the responsibility to ensure full compliance with the VCAA and its implementing regulations. Hence, in addition to the action requested above, the AOJ should also undertake any other development and/or notification action deemed warranted by the VCAA prior to adjudicating the remaining claim on appeal. Accordingly, this matter is REMANDED for the following action: 1. The veteran should be scheduled for a VA orthopedic examination. The entire claims file, to include a complete copy of this remand must be made available to the examiner designated to examine the veteran. A report of the examination should include discussion of the veteran's documented medical history and assertions. The examiner should be requested to evaluate the severity of the veteran's service-connected disabilities-- identified as mechanical low back pain with degenerative joint disease, bilateral heel bone spurs with Achilles tendonitis, tardy ulnar nerve palsy of the right elbow, nondisplaced left olecranon evulsion fracture, hypertension, and hemorrhoids. In addition, the examiner should elicit from the veteran and record for evaluation purposes a full work and educational history. Thereafter, the examiner should offer an opinion as to whether it is at least as likely as not (i.e., there is at least a 50 percent probability) that the veteran's service-connected disabilities combine to preclude substantially gainful employment that is consistent with the veteran's education and occupational experience. All examination results should be set forth along with the complete rationale for the opinion provided. 2. After undertaking any other development deemed appropriate, the AOJ should readjudicate the claim for a TDIU. If the benefit sought is not granted, the veteran and his representative should be furnished with a supplemental statement of the case and afforded an opportunity to respond. Thereafter, the case should be returned to the Board for further appellate review, if in order. By this remand, the Board intimates no opinion as to any final outcome warranted. No action is required of the veteran until he is notified by the AOJ. The veteran 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 case must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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 Supp. 2007). ________________________________ MARK F. HALSEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs