Citation Nr: 1007145 Decision Date: 02/26/10 Archive Date: 03/05/10 DOCKET NO. 08-00 784 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUES 1. Entitlement to an increased rating for hypertensive heart disease associated with arterial hypertension, evaluated as 30 percent disabling before September 14, 2006; evaluated as 100 percent disabling from September 14, 2006, to December 31, 2006; evaluated as 30 percent disabling from January 1, 2007, to November 12, 2008; and evaluated as 60 percent disabling since November 13, 2008. 2. Entitlement to an increased rating for arterial hypertension, currently rated as 10 percent disabling. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Jared Haynie, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1968 to November 1970. This appeal comes before the Board of Veterans' Appeals (Board) from a December 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. Before September 14, 2006, and from January 1, 2007, to November 12, 2008, the Veteran's hypertensive heart disease associated with arterial hypertension was characterized by dyspnea, fatigue, angina, and dizziness, and by evidence of cardiac hypertrophy on electrocardiogram, echocardiogram, or X-ray. It was not characterized by more than one episode of acute congestive heart failure; or by dyspnea, fatigue, angina, dizziness, or syncope brought on by a workload of greater than three METs (metabolic equivalents) but not greater than five METs; or by left ventricular dysfunction with an ejection fraction of 30 to 50 percent. There was no heart surgery during that period. 2. Since November 13, 2008, the Veteran's hypertensive heart disease associated with arterial hypertension has been characterized by dyspnea, fatigue, angina, and dizziness, and by left ventricular dysfunction with an ejection fraction of 30 to 50 percent. It has not been characterized by chronic congestive heart failure; or by dyspnea, fatigue, angina, dizziness, or syncope brought on by a workload of three METs or less; or by left ventricular dysfunction with an ejection fraction of less than 30 percent. There has been no heart surgery during the period. 3. The Veteran's arterial hypertension is not characterized by diastolic pressure predominantly 110 or more; or by systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 30 percent for hypertensive heart disease associated with arterial hypertension-for the period before September 14, 2006, and between January 1, 2007, and November 12, 2008- have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7017 (2009). 2. The criteria for a disability rating in excess of 60 percent, for hypertensive heart disease associated with arterial hypertension, since November 13, 2008, have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7017 (2009). 3. The criteria for a disability rating in excess of 10 percent for arterial hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duties to Notify and Assist The Veteran and his representative contend that the Veteran's service-connected arterial hypertension and hypertensive heart disease associated with arterial hypertension are more disabling than currently evaluated. Initially, the Board notes that VA has a duty to notify and assist claimants in substantiating claims for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2009); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2009). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 C.F.R. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 C.F.R. § 3.159(b)(1). This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In addition, the notice requirements 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. Dingess v. Nicholson, 19 Vet. App. 473 (2006). VA has satisfied its duties to notify the Veteran. In an October 2005 letter, VA informed the Veteran of the evidence VA had received to date, the evidence VA was responsible for obtaining, how the Veteran could help VA going forward, and what the evidence must show to support his claims. The Veteran was not informed about how VA determines disability ratings and effective dates; however, there is no indication that the Veteran was prejudiced by this oversight. VA also has a duty to assist a claimant in the development of the claim. This duty includes (1) assisting the claimant in the procurement of service treatment records and other pertinent records and (2) providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (holding that when the Board addresses a question that has not been addressed first by the RO, it must consider whether the claimant was given adequate notice, and if not, whether the claimant was prejudiced thereby). The RO obtained the Veteran's service treatment records, VA treatment records, and pertinent private treatment records. The Veteran was also afforded two VA examinations (in November 2005 and February 2007). The Board finds that VA has fulfilled its duty to assist in every respect. II. Increased Rating Ratings for service-connected disabilities are determined by comparing the veteran's symptoms with criteria listed in VA's Schedule for Rating Disabilities. The rating percentages represent, as far as practically can be determined, the average impairment of the veteran's earning capacity. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 C.F.R. Part 4. When rating a service-connected disability, VA must consider the entire history of the disability. 38 C.F.R. § 4.1; see also Schafrath v. Derwinski, 1 Vet. App. 589, 596 (1991) (rating decisions must be based on a review of the "full recorded history of the condition"). VA assigns the disability rating that most closely reflects the level of social and occupational impairment a veteran is suffering. Where a question arises as to which of two ratings to apply, the higher rating will be assigned if the "disability picture" more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When a reasonable doubt arises as to the degree of a veteran's disability, VA resolves the doubt in the veteran's favor. 38 C.F.R. § 4.3. When assigning a disability rating, VA is obligated to consider whether a veteran is entitled to "staged" ratings (separate ratings assigned for separate time periods). Hart v. Mansfield, 21 Vet. App. 505, 510 (2007) (staged ratings for increased-rating claims). When VA grants a claim for an increased rating, it may assign an effective date up to one year before the date the claimant's application for increase was received, provided it is factually ascertainable that an increase in disability occurred within that timeframe. 38 U.S.C.A. § 5110(b)(2); Hart, 21 Vet. App. 505, 509 (2007). Here, the relevant evidentiary window begins August 18, 2004 (one year before the Veteran filed his claim for increased rating), and continues to the present time. A. Hypertensive Heart Disease Associated with Arterial Hypertension The Veteran contends that his service-connected hypertensive heart disease associated with arterial hypertension is more disabling than currently evaluated. In August 2003, the RO established service connection for hypertensive heart disease associated with arterial hypertension and assigned a 10 percent evaluation. In a January 2004 rating decision, the RO increased the evaluation to 30 percent disabling. In a December 2005 rating decision, the RO continued the 30 percent rating. (The December 2005 determination to continue the 30 percent evaluation is the subject of this appeal.) In a January 2007 rating decision, the RO granted a temporary total disability rating, effective from September 14, 2006, to December 31, 2006, but otherwise continued the 30 percent rating. In a December 2008 rating decision, the RO increased the evaluation to 60 percent disabling, effective November 13, 2008. The RO rated the Veteran's hypertensive heart disease associated with arterial hypertension under Diagnostic Code (DC) 7017, which pertains to coronary bypass surgery. Under that DC, a 30 percent rating is warranted when a workload of greater than five metabolic equivalents (METs) but not greater than seven METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted when there has been more than one episode of acute congestive heart failure in the past year; or when a workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted for three months following hospital admission for surgery. Thereafter, a 100 percent rating is warranted when there is chronic congestive heart failure; or when a workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104, DC 7017. Here, the Veteran contends he is entitled to a rating greater than 30 percent for the period before September 14, 2006; to a rating greater than 30 percent for the period between January 1, 2007, and November 12, 2008; and to a rating greater than 60 percent for the period beginning November 13, 2008. 1. The Period Before September 14, 2006 The Veteran contends he is entitled to a rating greater than 30 percent for the period before September 14, 2006. The Board has reviewed all the evidence from that time period, and the evidence does not support a rating greater than 30 percent. As mentioned above, a greater rating is warranted when there has been more than one episode of acute congestive heart failure in the past year; or when a workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Here, there is no evidence, during the relevant period, of heart surgery or of any episodes of acute congestive heart failure. Nor is there any evidence that a workload of greater than three METs but not greater than five METs resulted in dyspnea, fatigue, angina, dizziness, or syncope. The record does show that the Veteran experienced dyspnea (shortness of breath), fatigue, and angina (chest pain); but the record does not indicate that his symptoms were brought on by a workload of greater than three METs but not greater than five METs (functional impairment at a July 2006 private evaluation was measured at 5.9 METs). Finally, the evidence shows that the Veteran had, during the relevant period, left ventricular dysfunction with an ejection fraction of 55 to 67 percent (tested on several occasions between October 2005 and September 2006). The Veteran specifically argues that his disability should be rated as 100 percent disabling beginning September 1, 2006 (as opposed to September 14, 2006). He underwent heart surgery on September 14, 2006, and was subsequently granted a total evaluation for the period beginning September 14, 2006, and ending December 31, 2006. According to the rating schedule, a total disability rating is warranted for three months following hospital admission for surgery. 38 C.F.R. § 4.104, DC 7017. The Veteran argues that he should have been granted a total disability rating for the entire month of September because even though the operation did not occur until the fourteenth of the month, he was not working during the entire month. The Board has considered the Veteran's argument but is unable to grant a total disability rating for the entire month of September, or for any period before his admission to the hospital for surgery. The regulation is clear in its provision for a total rating "for three months following hospital admission for surgery." 38 C.F.R. § 4.104, DC 7017 (emphasis added). The Veteran was granted a total rating for the three months following hospital admission (namely October, November, and December 2006). Thus, although the Veteran did not work during the entire month of September 2006, an increased rating is not warranted for the portion of the month preceding his hospital admission because there is no evidence in the record to sustain an increased rating based on the schedular criteria. Accordingly, an increased rating is not warranted for the period before September 14, 2006, because none of the schedular criteria for an increased rating has been met. 2. The Period Between January 1, 2007, and November 12, 2008 The Veteran contends he is entitled to a rating greater than 30 percent for the period between January 1, 2007, and November 12, 2008. The Board has reviewed all the evidence from that time period, and the evidence does not support a rating greater than 30 percent. As mentioned above, a greater rating is warranted when there has been more than one episode of acute congestive heart failure in the past year; or when a workload of greater than three METs but not greater than five METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. Here, there is no evidence, during the relevant period, of heart surgery or of any episodes of acute congestive heart failure. Nor is there any evidence that a workload of greater than three METs but not greater than five METs resulted in dyspnea, fatigue, angina, dizziness, or syncope. The record does show that the Veteran experienced dyspnea (shortness of breath), fatigue, dizziness, angina (chest pain), and one episode of syncope (the Veteran reported that he lost consciousness while reeling a garden hose into a reel); but the record does not indicate that his symptoms were brought on by a workload of greater than three METs but not greater than five METs (functional impairment at a February 2007 VA examination was measured at 10.1 METs). Finally, the evidence shows that the Veteran had, during the relevant period, left ventricular dysfunction with an ejection fraction of 57 percent (February 2007); 65 percent (April 2007); estimated as "at least" 50 percent (August 2007); and 52 percent (March 2008). Accordingly, an increased rating is not warranted for the period between January 1, 2007, and November 12, 2008, because none of the schedular criteria for an increased rating has been met. 3. The Period Since November 13, 2008 The Veteran contends he is entitled to a rating greater than 60 percent for the period since November 13, 2008. The Board has reviewed all the evidence from that time period, and the evidence does not support a rating greater than 60 percent. As mentioned above, a greater rating (a total disability rating) is warranted for three months following hospital admission for surgery; and thereafter, when there is chronic congestive heart failure; or when a workload of three METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Here, there is no evidence, during the relevant period, of heart surgery or of chronic congestive heart failure. Nor is there any evidence that a workload of three METs or less resulted in dyspnea, fatigue, angina, dizziness, or syncope. The record does show that the Veteran experiences dyspnea (shortness of breath), fatigue, dizziness, and angina (chest pain); but the record does not indicate that his symptoms are brought on by a workload of three METs or less. Finally, the evidence shows that the Veteran had, during the relevant period, left ventricular dysfunction with an ejection fraction of 46 percent, as per VA tests conducted on November 13, 2008. Accordingly, an increased rating is not warranted for the period from November 13, 2008, to the present because none of the schedular criteria for an increased rating has been met. The Board has also considered whether any alternate Diagnostic Codes could serve as a basis for a higher rating here. In this regard, it is noted that DCs 7000-7007 (pertaining to valvular heart disease, endocarditis, pericarditis, pericardial adhesions, syphilitic heart disease, coronary artery disease, myocardial infraction, and hypertensive heart disease) and DCs 7011, 7015, 7016, and 7020 (pertaining to sustained ventricular arrhythmias, atrioventricular block, heart valve replacement, and cardiomyopathy) all utilize the same rating criteria as DC 7017. Therefore, the application of any of those DCs would not entitle the Veteran to an increased rating for the reasons discussed above. There are no other relevant DCs for consideration. B. Arterial Hypertension The Veteran contends that his service-connected arterial hypertension is more disabling than currently evaluated. In July 1975, the RO established service connection for arterial hypertension and assigned a 20 percent evaluation. In a April 1978 rating decision, the RO decreased the evaluation to 10 percent disabling. A 10 percent evaluation has been in effect since that time. In a December 2005 rating decision, the RO continued the 10 percent rating. The Veteran now appeals that determination. The RO rated the Veteran's arterial hypertension under DC 7101, which pertains to hypertensive vascular disease. Under that DC, a 10 percent rating is warranted when there is diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted when there is diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, DC 7101. After reviewing all the evidence, the Board is unable to grant an increased rating greater than 10 percent for the Veteran's arterial hypertension. The record shows that the Veteran's blood pressure was measured on no fewer than twenty-three different occasions during the period under review. The high systolic pressure reading during that period was a single measurement of 150 (measured in July 2006). The high diastolic pressure reading during that period was a single measurement of 90 (measured in April 2007). Accordingly, the Board is unable to grant an increased rating for arterial hypertension because the evidence does not support an increased rating based on the Veteran's systolic or diastolic pressure. The Board has considered whether the record raises the matter of an extra-schedular rating. In exceptional cases-where the regular schedular ratings are found to be inadequate or impractical-so that justice may be done, VA may apply (subject to approval by either the Under Secretary for Benefits or the Director of Compensation and Pension Service) an "extra-schedular evaluation." 38 C.F.R. § 3.321(b)(1). As is the case with regular schedular ratings, the extra- schedular evaluation must be "commensurate with the average earning capacity impairment due exclusively to the service- connected disability or disabilities." Id. Before an extra-schedular evaluation may be applied, VA must make a threshold finding. Specifically, it must determine that 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." Id. In this case, the regular schedular ratings are not inadequate. First, the Board notes that the regular ratings provide for a higher ratings for the Veteran's service- connected disabilities but that evidence supporting higher ratings has not been submitted. In addition, the Veteran has not shown that his service-connected disabilities have required frequent periods of hospitalization or have produced marked interference with his employment. Although the Veteran's disabilities interfere in some respects with his employment as a postal carrier (he often feels out of breath, fatigued, and dizzy when lifting, walking, or even driving), nonetheless, the evidence shows that the Veteran has been gainfully employed throughout the entire period under review. The Veteran argues that because of his service-connected disabilities, he is a danger to himself and others at work (because he could pass out while driving). However, the Veteran's self-assessment that he represents a danger to himself and others is not corroborated by the evidence of record. The physicians who did opine as to the Veteran's fitness for employment indicated that the Veteran was fit for work. (For example, a June 2007 examiner indicated that the Veteran was able to go to work.) On no occasion did an examiner opine that the Veteran was not fit to go to work because of his service-connected disabilities. No doubt, the Veteran's service-connected disabilities make his work more difficult. But the Board finds that the disability ratings previously assigned are not an unfair or inaccurate assessment of the effect his service-connected disabilities have on his employment. Accordingly, because this case does not present a truly "exceptional or unusual disability picture," referral of the case for consideration as to whether an extra-schedular rating should be assigned is not warranted. The Board has likewise considered whether to assign staged ratings (separate ratings assigned for separate time periods). See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). The Board finds, however, that there is no need to apply staged ratings in this case because the weight of the credible evidence shows that the Veteran's service-connected hypertensive heart disease associated with arterial hypertension has been no greater than 30 percent disabling for the period before September 14, 2006, and for the period between January 1, 2007, and November 12, 2008; and has been no greater than 60 percent disabling since November 13, 2008. Furthermore, the Veteran's service-connected arterial hypertension has been no greater than 10 percent disabling during the entire period under review. In arriving at these conclusions, the Board has applied the reasonable doubt doctrine and has given the Veteran the benefit of the doubt wherever permissible. See 38 C.F.R. § 4.3; see also 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 58 (1990) (if the Board rules against a veteran in a case where there are "two permissible views" of the evidence, the Board must provide an "adequate statement of [its] reasons or bases" in support of its determination that the veteran is not entitled to the benefit of the doubt) (internal quotations omitted). ORDER Entitlement to an increased rating for hypertensive heart disease associated with arterial hypertension-evaluated as 30 percent disabling before September 14, 2006, and from January 1, 2007, to November 12, 2008; and evaluated as 60 percent disabling since November 13, 2008-is denied. Entitlement to an increased rating for arterial hypertension, currently rated as 10 percent disabling, is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs