Citation Nr: 0938742 Decision Date: 10/13/09 Archive Date: 10/22/09 DOCKET NO. 06-28 136A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for hypertension. 2. Entitlement to an initial disability rating in excess of 10 percent for residuals of a stroke for the period from April 10, 1998 to July 14, 2006. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Kristy L. Zadora, Associate Counsel INTRODUCTION The Veteran had active duty service from November 1955 to November 1957. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating determination of the Columbia, South Carolina Department of Veterans Affairs (VA) Regional Office (RO) which assigned an initial disability evaluation of 10 percent for both the Veteran's hypertension and residuals of a stroke. A March 2005 Board decision had granted service connection for each of those disabilities. A November 2006 rating decision increased the Veteran's disability evaluation to 100 percent for his residuals of a stroke. This rating was effective as of July 14, 2006. The Veteran was found to be incompetent in a July 2007 rating decision. FINDINGS OF FACT 1. The Veteran's diastolic blood pressure has not been predominantly 110 or more and his systolic blood pressure has not been predominately 200 or more throughout the course of this appeal. 2. The residuals of a stroke were manifested by mild left- sided facial paralysis and mild vascular dementia prior to February 23, 2006; there is no objective evidence of motor loss, loss of innervation of facial muscles, dysphagia, depressed or anxious mood, panic attacks, or sleep impairment. 3. Beginning February 23, 2006, the residuals of a stroke were manifested by dementia and symptoms resulting in total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. § 4.104, DC 7101 (2009). 2. The criteria for a disability rating in excess of 10 percent for residuals of a stroke were not met prior to February 23, 2006. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.104, DCs 8007, 8205, 9305 (2009). 3. The criteria for a 100 percent disability rating for residuals of a stroke beginning on February 23, 2006 have been met. 38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. § 4.104, DCs 8007, 8205, 9326 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.326(a) (2009). The instant claims arise from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F. 3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. The Veteran has not alleged such prejudice in this case. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim(s). 38 U.S.C.A. §5103A; 38 C.F.R. §3.159 (c), (d). This duty to assist contemplates that VA will help a claimant obtain records relevant to his claim(s), whether or not the records are in Federal custody, and that VA will provide a medical examination and/or opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA has met the duty to assist the Veteran in the development of his claim. The Veteran's service treatment records, portions of his service personnel records, VA treatment records, and some private treatment records have been obtained. He has been afforded several VA examinations and sufficient medical opinions have been obtained. As neither the Veteran nor his representative has indicated that there is any outstanding pertinent evidence to be obtained, the Board may proceed with the consideration of the Veteran's claims. Increased Rating Claims Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In instances in which the Veteran disagrees with the initial rating, the entire evidentiary record from the time of the Veteran's claim for service connection to the present is of importance in determining the proper evaluation of disability, and staged ratings are to be considered in order to reflect the changing level of severity of a disability during this period. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are, however, 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. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Hypertension for VA purposes means that the diastolic blood pressure is predominantly 90 or more or systolic blood pressure is predominantly 160 or more. Hypertension must be confirmed by readings taken two or more times on three different days. 38 C.F.R. § 4.104, DC 7101, Note (1). A 10 percent evaluation is applicable for hypertensive vascular disease if diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure of predominantly 100 or more and continuous medication is required for control blood pressure. A 20 percent evaluation is warranted if diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more while a 40 percent evaluation is warranted if diastolic pressure is predominantly 120 or more. 38 C.F.R. § 4.104, DC 7101. The Veteran's residuals of a stroke have been rated under the diagnostic code for an embolism of the brain vessels. This code provides a 100 percent rating for the vascular conditions for six months, and then a minimum rating of 10 percent thereafter for any residuals. 38 C.F.R. § 4.124a, DC 8007. Neurological conditions, except as otherwise provided, will be rated in accordance with a schedule of ratings set out at 38 C.F.R. § 4.124a, which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consideration is supposed to be given to especially psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rate by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Residuals of the Veteran's stroke implicate the diagnostic code for paralysis of the fifth cranial (trigeminal) nerve due to his left-sided facial paralysis. 38 C.F.R. § 4.124a, DC 8205. A 10 percent rating is warranted where the paralysis is "incomplete, moderate," a 30 percent rating is warranted where the paralysis is "incomplete, severe," and a 50 percent rating is warranted where the paralysis is severe. A note following the diagnostic code provides that these ratings are dependent upon the relative degree of sensory manifestation or motor loss. In addition, the Veteran's stroke also implicates the diagnostic code for vascular dementia. Vascular dementia is rated under the VA's General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9305. A 10 percent rating is warranted where the disorder is manifested by occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or; symptoms controlled by continuous medication. A 30 percent rating is warranted where the disorder is manifested by occupational and social impairment with an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as depressed mood; anxiety; suspiciousness; panic attacks (weekly or less often); chronic sleep impairment; and mild memory loss (such as forgetting names, directions, and recent events). Id. The list of symptoms under the rating criteria are meant to be examples of symptoms that would warrant the evaluation, but are not meant to be exhaustive, and the Board need not find all or even some of the symptoms to award a specific evaluation. Mauerhan v. Principi, 16 Vet App 436, 442-3 (2002). On the other hand, if the evidence shows that the veteran suffers symptoms or effects that cause occupational or social impairment equivalent to what would be caused by the symptoms listed in the diagnostic code, the appropriate equivalent rating will be assigned. Mauerhan, at 443. The Court of Appeals for the Federal Circuit has embraced the Mauerhan Court's interpretation of the criteria for rating psychiatric disabilities. Sellers v. Principi, 372 F.3d 1318, 1326 (Fed. Cir. 2004). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107(b). Hypertension In his January 1998 initial VA evaluation the Veteran's blood pressure was noted to be 186/100 and he was prescribed an ACE inhibitor. It was noted to be 153/94 in a July 1998 VA treatment note, 148/90 in a December 1999 VA treatment note, 160/94 in a January 2001 VA treatment note and 142/88 in a May 2001 VA treatment note. A September 2003 VA treatment note indicates that the Veteran's blood pressure was 170/99 and that he was prescribed Metoprolol to treat this condition. The Veteran's blood pressure was noted to be 199/104 in a June 2005 VA treatment note, 184/102 in an August 2005 VA treatment note, 182/101 in a December 2005 VA treatment note, 168/104 in a February 2006 VA treatment note, and 197/101 in a March 2006 VA treatment note. His blood pressure was noted be 191/105 at the beginning of an April 2006 appointment and 160/99 at the end of this appointment, with the examiner confirming that the Veteran had taken Metoprolol that morning. A May 2006 private hospitalization note indicated that his blood pressure was 165/95. A September 2006 VA hypertension examination noted that the Veteran was currently prescribed Metoprolol, Lisinopril and Hydrochlorothiazide (HCTZ). His blood pressure was noted to be 168/80, 168/80 and 170/80. An October 2006 VA telephone contact note shows that the Veteran's wife reported that his blood pressure was 210/99 and 206/176. The Veteran's VA home health nurse reported that she had recorded blood pressure readings of 140/96, 170/100, 160/100 and 150/100 in December 2006. He had run out of Lisinopril and the nurse was requesting a refill of this medication. In order for the Veteran to be afforded a disability evaluation in excess of 10 percent, his systolic blood pressure must be predominantly 200 or more or his diastolic blood pressure must be predominately 110 or more. There is only one instance during this appeal period in which his diastolic blood pressure exceeded 110 and one instance during which his systolic blood pressure exceeded 200. It cannot therefore be said that the Veteran's blood pressure predominately exceeds those requirements. As the Veteran's diastolic blood pressure has not been predominantly 110 or more, nor has his systolic blood pressure been predominantly 200 or more, the weight of the evidence is against a schedular rating in excess of 10 percent at any time during the claims period. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.7. Stroke Residuals The Veteran's representatives argued in its December 2007 and September 2009 Informal Hearing Presentations that the evidentiary record supports the assignment of a total disability evaluation prior to July 14, 2006 for residuals of a stroke. The Veteran suffered a cerebrovascular accident (CVA) in June 1996. He was admitted in August 1996 following complaints of slurring speech, difficulty expressing himself, and balance difficulties. A definite speech disorder and left facial paralysis were noted. An August 1996 magnetic resonance imaging (MRI) scan revealed new infarcts in the right parietal lobe and a CVA was diagnosed. Outpatient physical therapy was recommended. Left hemiparesis was noted in an August 2001 VA treatment note. A September 2001 head computed tomography (CT) scan noted an impression of an old, right-sided CVA without evidence of acute disease. A May 2003 VA treatment note indicates that the Veteran spoke slowly and quietly, that he experienced some left-sided weakness after his CVA, but that he was able to walk and to function "fairly well." The Veteran had no complaints of left sided weakness in March 2004, during VA treatment. His treating physician noted that he had recovered from this weakness. An April 2004 VA examination reflected the Veteran's reports of reduced short-term memory, impotence and easy fatigability. He reported that he walked once a week for exercise, generally walking for two miles. He was noted to walk slowly but without a limp or stumbling, and that he spoke slowly and deliberately but intelligibly. Physical examination noted "quite adequate and normal" grip strength bilaterally. He was noted to be appropriately oriented to person, time and place. An abnormal enhancing lesion in the right cerebellum most compatible with a subacute infarction was noted in a February 2006 VA MRI. A February 2006 VA head CT scan was negative for acute intracranial abnormalities and noted a remote watershed infarct in the right MCA distribution that was unchanged with ex vacuo dilatation. Mild dementia due to a prior CVA was noted in a February 2006 VA treatment note. A February 2006 neurology consultation reflected the Veteran's reports of increasing weakness and dizziness for the past four to six weeks. This weakness was described as generalized, especially in both of his legs, and was exacerbated on standing. Dizziness occurred when going from a sitting to a standing position. He did not describe any focal weakness. A couple of falls, including one on the day of the examination, were reported. Numbness, parthesias, visual changes and dysphagia (difficulty swallowing) were denied. Physical examination revealed mild difficulty with rapid alternating movements and with the finger-nose-finger test on the left side. His gait was noted to be mildly unsteady and he favored his left side. The examiner noted that the recent CT scan did not show any new lesions and that this examination was essentially benign. In addition, the examiner noted that the Veteran's recent dizziness could be associated with his recent prescription of Metoprolol and that a new stroke was unlikely. Complaints of memory difficulties were noted in a March 2006 VA mental health treatment note. Depressed mood, anhedonia, mania or psychosis were denied. Mental status examination noted little movement of the left side of the body and an abnormal accent that the Veteran's wife reported developed after his CVA The assessments and diagnoses were vascular dementia, right MCA stroke, hypertension, diabetes and gout. His functioning was noted to have been relatively stable for the past ten years; but with new complaints of dizziness and falls in the context of uncontrolled dementia. The physician noted that no medication intervention was indicated and that the Veteran's medication compliance was questionable. A cane for stability was requested. His Global Assessment of Function was 30. A May 2006 private admission summary shows that the Veteran's eye movements were conjugate and full range, that his facial expressions were symmetric, that he had mild left hemiparesis with pronator drift and a decrease in finger and foot tapping. A tendency to fall to the left while standing up or during ambulation was also noted. The physician noted that the Veteran was recovering from a left cerebellar stroke with ataxic hemiparesis, and that it was not clear whether his left-sided weakness stemmed from the current or previous CVAs. A June 2006 private discharge summary indicates that the Veteran had suffered a left brain stem and cerebellar infarct prior to admission on May 27, 2006. He was noted to be suffering from balance and safety difficulties at discharge and that he had reached a significant number of his rehabilitation goals, particular in his activities of daily living, despite these difficulties. The Veteran was granted a 100 percent disability evaluation for residuals of his stroke in a November 2006 rating decision. The basis of this determination was a stroke the Veteran reportedly had suffered on July 14, 2006. This date was based on reports at the December 2006 VA examination. The record indicates that he was hospitalized for this stroke on May 27, 2006. The record also shows, however, that symptoms associated with the strokes appear to have been increasing when the Veteran was seen for VA treatment on February 23, 2006. The severity of the increase was not fully described at that time; however, the March 2006, VA treatment record shows that he was assigned a GAF of 30 largely due to symptoms that were associated with the stroke, including dementia (on VA treatment in February 2006, the Veteran was noted to have dementia as the result of prior CVAs). A GAF of 30 indicates behavior that is considerably influenced by delusions or hallucinations or serious impairment in communication or judgment or an inability to function in almost all areas. Dementia due to neurologic or medical conditions that results in total occupational and social impairment warrants a 100 percent rating. 38 C.F.R. § 4.130, Diagnostic Code 9326. Prior to February 23, 2006 stroke, the evidentiary record suggests that the Veteran's stroke residuals manifested as mild left-sided facial paralysis and mild vascular dementia. Depressed mood, anhedonia or mania were denied. The March 2006 VA psychiatrist noted that his condition had been stable for approximately ten years A disability evaluation in excess of 10 percent for facial paralysis is not warranted under DC 8205. There is no medical evidence demonstrating objective motor loss, loss of innervation of facial muscles, or otherwise suggesting severe incomplete paralysis of his cranial nerve. His speech was repeatedly noted to be slow but intelligible. Accordingly, the Board finds that the Veteran's disability picture does not meet the criteria required for a 30 percent evaluation for paralysis of the left fifth cranial nerve. 38 C.F.R. § 4.124a, DC 8205. A disability evaluation in excess of 30 percent for vascular dementia is not warranted under DC 9305. Prior to February 23, 2006 there were essentially no findings of psychiatric impairment or impairment from dementia. As late as February 2006, the disability was described during treatment as mild. Hence the criteria for an evaluation in excess of 10 percent were not met. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 4.124a, DC 9305. There are no periods between April 10, 1998 and February 23, 2006 when this disability has approximated the criteria for an evaluation in excess of 10 percent. Staged ratings are therefore not warranted and the weight of the evidence is against the grant of a higher schedular rating. Extraschedular Ratings Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2008). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service- connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, supra. Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, supra. When the rating schedule is inadequate to evaluate a claimant's disability picture and that picture has related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for completion of the third step--a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. Id. The Veteran's hypertension manifested as elevated blood pressure that required continuous medication to treat the condition. His stroke residuals manifested as mild left- sided facial paralysis and mild vascular dementia prior to May 27, 2006. The rating criteria contemplate these impairments. Hence, referral for consideration of an extraschedular rating is not warranted. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all appeals of an initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2008). The question of entitlement to TDIU is moot for the period since February 23, 2006, when a 100 percent rating went into effect. For the period from 1998 when service connection became effective, until February 22, 2006, the stroke residuals were reported to have essentially resolved and the Veteran had only mild hypertension. There were no contentions or reports that the service connected disabilities rendered him unemployable during this period. Accordingly, further consideration of entitlement to TDIU is not warranted. The Board has resolved all reasonable doubt in favor of the Veteran in reaching this determination. 38 U.S.C.A. § 5107(b). ORDER Entitlement to an initial rating in excess of 10 percent for hypertension is denied. Entitlement to an initial rating in excess of 10 percent for residuals of a stroke during the period from April 10, 1998 to February 22, 2006 is denied. Entitlement to an initial rating or 100 percent for residuals of a stroke beginning on February 23, 2006, is granted. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs