Citation Nr: 0813323	
Decision Date: 04/23/08    Archive Date: 05/01/08

DOCKET NO.  06-19 284	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. 
Petersburg, Florida




THE ISSUE

Entitlement to an initial disability rating in excess of 10 
percent for hypertension.






ATTORNEY FOR THE BOARD

David Gratz, Associate Counsel





INTRODUCTION

The veteran served on active duty from July 1983 to December 
2004.

This matter comes to the Board of Veterans' Appeals (Board) 
on appeal from an April 2006 rating decision issued by the 
Department of Veterans Affairs (VA) Regional Office (RO) in 
St. Petersburg, Florida, which granted an evaluation of 10 
percent for the veteran's service-connected hypertension, 
effective January 1, 2005.


FINDING OF FACT

The evidence fails to show that the veteran has systolic 
pressure that is predominantly 200 or more, or diastolic 
pressure that is predominantly 110 or more.


CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 
percent for hypertension have not been met.  38 U.S.C.A. §§ 
1155, 5103, 5103A, 5107 (West 2002 & Supp. 2007); 38 C.F.R. 
§§ 3.159, 3.321(b), 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic 
Code 7101 (2007).


REASONS AND BASES FOR FINDING AND CONCLUSION

Under applicable criteria, VA has certain notice and 
assistance obligations to claimants.  See 38 U.S.C.A. 
§§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 
3.159, 3.326(a).  
 
Notice must be provided to a claimant before the initial 
unfavorable agency of original jurisdiction (AOJ) decision on 
a claim for VA benefits and must:  (1) inform the claimant 
about the information and evidence not of record that is 
necessary to substantiate the claim; (2) inform the claimant 
about the information and evidence that VA will seek to 
provide; (3) inform the claimant about the information and 
evidence the claimant is expected to provide; and (4) request 
or tell the claimant to provide any evidence in the 
claimant's possession that pertains to the claim.  Pelegrini 
v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II).

The VA duty to notify was satisfied by an August 2005 letter 
sent to the appellant that fully addressed all four notice 
elements.  The letter informed the appellant of what evidence 
was required to substantiate the claim and of the appellant's 
and VA's respective duties for obtaining evidence.  The 
appellant was also asked to submit evidence and/or 
information in his possession to the AOJ. 

For an increased-compensation claim, § 5103(a) requires, at a 
minimum, that VA notify the claimant that, to substantiate a 
claim, the medical or lay evidence must show a worsening or 
increase in severity of the disability, and the effect that 
such worsening or increase has on the claimant's employment 
and daily life.  Vazquez-Flores v. Peake, 22 Vet. App. 37 
(2008).   

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 
demonstrating a noticeable worsening or increase in severity 
of the disability and the effect that worsening has on 
employment and daily life, such as a specific measurement or 
test result, VA must provide at least general notice of that 
requirement.  VA 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.  Id. 

Although the veteran was not informed prior to the 
adjudication of the criteria for a higher rating, he was not 
prejudiced thereby because the diagnostic code for 
hypertension, Diagnostic Code 7101, sets disability ratings 
based on diastolic and systolic blood pressure readings, and 
the veteran provided eight blood pressure test results.  
Vazquez-Flores, supra. 

The private medical records cited by the veteran have been 
obtained.  Additionally, the veteran was offered the 
opportunity to testify at a hearing before the Board, but he 
declined.
 
VA has satisfied its duties to notify and assist, and 
additional development efforts would serve no useful purpose.  
See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); 
Sabonis v. Brown, 6 Vet. App. 426, 430 (1994).  In light of 
the denial of the veteran's claim, no disability rating or 
effective date will be assigned, so there can be no 
possibility of any prejudice to the veteran under the holding 
in Dingess v. Nicholson, 19 Vet. App. 473 (2006).  Because 
VA's duties to notify and assist have been met, there is no 
prejudice to the veteran in adjudicating this appeal.

Analysis

Disability ratings are based upon the average impairment of 
earning capacity as determined by a schedule for rating 
disabilities.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2007).  
Diagnostic codes identify the various disabilities. 38 C.F.R. 
Part 4.  The entire medical history is reviewed when making 
disability evaluations. 38 C.F.R. 
§ 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 592 (1995).  
In determining the current level of impairment, the 
disability must be considered in the context of the whole 
recorded history, including service medical records. 38 
C.F.R. § 4.2.  Where there is a question as to which of two 
ratings shall be applied, the higher rating will be assigned 
if the disability picture more nearly approximates the 
criteria required for that rating. 38 C.F.R. § 4.7.

Evaluation of a disability includes consideration of the 
veteran's ability to engage in ordinary activities, including 
employment, and the effect of symptoms on functional 
abilities. 38 C.F.R. § 4.10.

Since the present appeal arises from an initial rating 
decision, which established service connection and assigned 
the initial disability rating, it is not the present level of 
disability which is of primary importance, but rather the 
entire period is to be considered to ensure that 
consideration is given to the possibility of separate ratings 
for separate periods of time based on the facts found.  See 
Fenderson v. West, 12 Vet. App. 119 (1999).

In a May 2005 rating decision, the RO granted service 
connection for hypertension and assigned a noncompensable 
disability rating, effective January 1, 2005.  The RO 
subsequently granted a 10 percent disability rating for the 
service-connected hypertension in an April 2006 rating 
decision, effective January 1, 2005, pursuant to the 
provisions of Diagnostic Code 7101.  

Under Diagnostic Code 7101, a 10 percent rating is warranted 
if hypertension is manifested by diastolic blood pressure 
predominantly 100 or more, or if the systolic pressure is 
predominantly 160 or more.  A 10 percent rating is also 
warranted if the condition requires continuous medication for 
control, and there is a history of diastolic pressure 
predominantly 100 or more.  A 20 percent rating is warranted 
if the diastolic pressure is predominantly 110 or more, or if 
the systolic pressure is predominantly 200 or more.

The veteran has submitted evidence of the following blood 
pressure readings:  160/108 in November 2004; 90/68, 104/70, 
and 110/80 in December 2004; and 140/100, 112/84, 129/84, and 
118/76 in February 2005.  In these readings, the first number 
represents the systolic blood pressure, and the second number 
represents the diastolic blood pressure.  The veteran has 
also submitted a January 2006 diagnosis from his private 
physician stating that he has chronic idiopathic 
hypertension.  The veteran has stated in a May 2005 letter, 
and in two January 2006 letters, that his condition requires 
continuous medication for control, and the veteran has 
identified both the medication and the prescribing doctor.

In this case, there is no evidence of predominant diastolic 
blood pressure of 110 or more or a predominant systolic blood 
pressure of 200 or more.  Indeed, none of the eight blood 
pressure readings submitted by the veteran show a single 
instance of diastolic blood pressure of 110 or more, or of 
systolic blood pressure of 200 or more.  After considering 
all the evidence of record, including the veteran's 
statements, the Board finds that the preponderance of it is 
against the claim.  Because the preponderance of the evidence 
is against the claim, the benefit of the doubt doctrine is 
not for application.  See 38 U.S.C.A. § 5107 (West 2002); 
Gilbert v. Derwnski, 1 Vet. App. 49, 54 (1990).  The claim 
for a schedular rating greater than 10 percent for 
hypertension is therefore denied.  

In reaching this determination, the Board has considered 
whether, under Fenderson, a higher rating might be warranted 
for any period of time during the pendency of this appeal.  
Fenderson, 12 Vet. App. 119.  But there is no evidence that 
the veteran's service-connected hypertension has been 
persistently more severe than the extent of disability 
contemplated under the assigned rating at any time during the 
period of this initial evaluation.  There is no evidence of 
record that the veteran's service-connected hypertension 
causes marked interference with employment, or necessitates 
frequent periods of hospitalization, as to render impractical 
the application of the regular schedular standards.  The 
Board is therefore not required to remand this matter for the 
procedural actions outlined in 38 C.F.R. § 3.321(b)(1) 
(2007).

The Board further notes that the veteran's statement on his 
substantive appeal of May 2006 suggests a possible 
misunderstanding of the effect of his increased entitlement 
for hypertension, from zero to ten percent, on his overall 
compensation.  The veteran noted the increase, and stated 
that "[t]his has not happened as of yet."  Before the 
veteran received his 10 percent disability rating for 
hypertension, he already had a combined disability of 30 
percent, based on 10 percent disability ratings for arthritis 
of the right knee, a lumbar strain, and tinnitus.  The 30 
percent combined disability is not calculated by adding up 
the percentages of each of his disabilities, however.  
Instead, the combined disability percentage is calculated by 
referring to a chart listed at 38 C.F.R. § 4.25.  According 
to the chart, three disabilities of 10 percent add up to a 
disability percentage of 27, which is rounded to the closest 
two-digit number ending in zero-here, 30.  However, when the 
veteran adds his fourth disability of 10 percent, 
hypertension, the chart shows a combined disability 
percentage of 34, which, because it ends in a number less 
than five, is rounded down to the closest two-digit number 
ending in zero-here, 30.  Consequently, although the veteran 
has been granted a 10 percent disability rating for 
hypertension, his overall combined disability remains at 30 
percent.


ORDER

An initial schedular rating greater than 10 percent for 
hypertension is denied.



____________________________________________
A. BRYANT
Veterans Law Judge, Board of Veterans' Appeals


 Department of Veterans Affairs