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