Citation Nr: 1018902 Decision Date: 05/21/10 Archive Date: 06/04/10 DOCKET NO. 05-07 132 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability evaluation for hypertension, evaluated as noncompensable prior to August 20, 2008 and 10 percent disabling thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Hallie E. Brokowsky, Counsel INTRODUCTION The Veteran had active service from July 1960 to July 1963 and from August 1972 to October 1995. This matter comes before the Board of Veterans' Appeals (BVA or Board) from an October 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, wherein the RO denied the Veteran's claim for an increased disability evaluation for hypertension. The RO has since increased the rating for hypertension to 10 percent, effective August 10, 2008. The Veteran has continued his appeal for a higher rating for hypertension. See AB v. Brown, 6 Vet. App. 35 (1993). The Veteran, in his VA Form 9, Appeal to Board of Veterans' Appeals, indicated that he desired a hearing before the Board in order to present testimony on the issue on appeal. However, the Veteran failed to appear for his scheduled hearing in September 2009, and no request to reschedule that hearing has been received. 38 C.F.R. § 20.704(d). Accordingly, adjudication of the Veteran's appeal will proceed at this time. This case was previously before the Board in December 2009, wherein it was remanded for additional development and due process considerations. The case was returned to the Board for appellate consideration. FINDING OF FACT Throughout the rating period on appeal, the Veteran's hypertension required continuous medication for control, but it is not productive of diastolic pressure that is predominantly 110 or more, nor is it productive of systolic pressure that is predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for a disability evaluation of 10 percent, but no higher, have been met for hypertension, for the rating period prior to August 20, 2008. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.14, 4.104, Diagnostic Code 7101 (2009). 2. The criteria for a disability evaluation in excess of 10 percent for hypertension, for the rating period from August 20, 2008, have not been met. 38 U.S.C.A. § 1155, 5103A, 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1- 4.14, 4.104, Diagnostic Code 7101 (2009). REASONS AND BASES FOR FINDING AND CONCLUSIONS Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's duty to notify and assist claimants in substantiating a claim 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). Notice Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (West 2002 & Supp. 2009); 38 C.F.R. § 3.159(b) (2009); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper VCAA notice 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 in accordance with 38 C.F.R. § 3.159(b)(1). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004); see also Mayfield v. Nicholson, 19 Vet. App. 103 (2005); rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). On March 3, 2006, the United States Court of Appeals for Veterans Claims (Court) issued its decision in the consolidated appeal of Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court in Dingess/Hartman holds that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a "service connection" claim. As previously defined by the courts, those five elements include: (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. Upon receipt of an application for "service connection," therefore, the Department of Veterans Affairs (VA) is required to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. This includes notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. VA issued a VCAA notice letter dated in August 2007, from the agency of original jurisdiction (AOJ) to the appellant. The letter explained the evidence necessary to substantiate the Veteran's claim for an increased disability evaluation, as well as the legal criteria for entitlement to such benefits. The letter also informed him of his and VA's respective duties for obtaining evidence. It also explained how a disability rating is determined for a service-connected disorder and the basis for determining an effective date upon the grant of any benefit sought, in compliance with Dingess/Hartman. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the United States Court of Appeals for Veterans Claims held, in part, that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was decided after the issuance of an initial, appropriate VCAA notice. The appellant has been provided with every opportunity to submit evidence and argument in support of his claim and to respond to VA notice. Further, the Board finds that the purpose behind the notice requirement has been satisfied because the appellant has been afforded a meaningful opportunity to participate effectively in the processing of his claim. Duty to Assist With regard to the duty to assist, the claims file contains the Veteran's service treatment records and reports of VA and private post-service treatment and examination. Additionally, the claims file contains the Veteran's own statements in support of his claim. The Board has carefully reviewed such statements and concludes that he has not identified further evidence not already of record. The Board has also reviewed the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Based on the foregoing, the Board finds that all relevant facts have been properly and sufficiently developed in this appeal and no further development is required to comply with the duty to assist the Veteran in developing the facts pertinent to his claim. Essentially, all available evidence that could substantiate the claim has been obtained. There is no indication in the file that there are additional relevant records that have not yet been obtained. Legal Criteria Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where, as here, the veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board notes 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. Hart v. Mansfield, 21 Vet App. 505 (2007). Analysis Service connection for hypertension was granted in an April 2006 rating decision, and an initial noncompensable rating was assigned from February 2003. The Veteran filed a claim for increased rating in August 2007. An October 2008 rating decision increased the rating to 10 percent from August 20, 2008. Thus, the Veteran's hypertension is currently rated as noncompensable prior to August 20, 2008 and 10 percent disabling thereafter, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. According to Diagnostic Code 7101, a 10 percent disability evaluation is warranted where diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or the individual has a history of diastolic pressure of 100 or more and requires continuous medication for control. See 38 C.F.R. § 4.104, Diagnostic Code 7101. For the next higher 20 percent disability evaluation, diastolic pressure must be predominantly 110 or more or systolic pressure must be 200 or more. Id. Upon reviewing the rating criteria in relation to the evidence regarding the Veteran's hypertension, the Board finds that the Veteran's disability picture is most consistent with the currently assigned 10 percent disability evaluation for the entire rating period on appeal. The objective evidence of record does not show that the Veteran has diastolic pressure that is predominantly 110 or more, nor is the Veteran's systolic pressure predominantly 200 or more; however, the Veteran's hypertension has required medication for control for the entire rating period on appeal. The Veteran's systolic blood pressure readings at the most recent August 2008 VA examination were 165, 170 and 176, with medication, and the systolic blood pressure reading at the Veteran's December 2006 visit to the VA was 107; other treatment notes readings of no worse than 143 systolic (see, i.e, April 2005 VA treatment notes). These readings cannot be said to be "predominantly" 200 or more for systolic pressure. In addition, the Veteran's diastolic blood pressure at the August 2008 VA examination was 73, 80, and 85, and his diastolic blood pressure was 73 at the aforementioned April 2005 VA visit. These readings also cannot be characterized as "predominantly" 110 or more for diastolic pressure. Therefore, the Veteran's symptomatology most closely fits within the criteria for the currently assigned 10 percent disability evaluation for the entire rating period on appeal. In reaching this decision, the Board also considered other applicable Diagnostic Codes, including Diagnostic Code 7007. With regard to the criteria for hypertensive heart disease, there is no evidence that the Veteran's hypertension results in dyspnea, fatigue, angina, dizziness, or syncope. Additionally, there is no evidence of cardiac hypertrophy or dilatation. As such, the Board does not believe that an evaluation in excess of 10 percent under Diagnostic Code 7007 is warranted. In concluding that the Veteran is not entitled to a disability evaluation in excess of 10 percent for hypertension, the Board has also considered whether the Veteran is entitled to an increased disability evaluation on an extra-schedular basis. However, the Board concludes that the record does not present such "an exceptional or unusual disability picture as to render impractical the application of the regular rating schedule standards." 38 C.F.R. § 3.321(b)(1). In this regard, the Board finds that there has been no showing by the Veteran that his hypertension, standing alone, resulted in marked interference with employment or necessitated frequent periods of hospitalization so as to render impractical the application of normal rating schedule standards. Accordingly, the Board finds that this case does not warrant referral to the Director of Compensation and Pension Service for extra- schedular consideration. See Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). ORDER A 10 percent disability rating is granted for hypertension, for the rating period prior to August 20 2008, subject to the laws and regulations governing the payment of VA compensation. A disability rating in excess of 10 percent for hypertension is denied. ____________________________________________ M.G. MAZZUCCHELLI Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs