Citation Nr: 1030740 Decision Date: 08/16/10 Archive Date: 08/24/10 DOCKET NO. 06-31 695A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Pittsburgh, Pennsylvania THE ISSUE Entitlement to an initial compensable rating for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD Kristy L. Zadora, Associate Counsel INTRODUCTION The Veteran had active duty service from October 1981 to December 1988. This matter is before the Board of Veterans' Appeals (Board) on appeal from an October 2005 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania which granted the Veteran's claim for service connection for hypertension, among other claims. An initial noncompensable rating was assigned, effective April 22, 2005. The Veteran has been rated incompetent. The Veteran testified before the undersigned at an August 2007 hearing at the RO (Travel Board). A transcript of the hearing has been associated with the claims file. The Board remanded the instant matter in October 2007, September 2008 and December 2009. In March 2010, the Appeals Management Center (AMC) granted service connection for cardiomegaly and congestive heart failure, an initial rating of 60 percent was assigned. FINDING OF FACT The Veteran has not had diastolic blood pressure readings predominantly 100 or more; systolic readings predominantly 150 or more; or a history of systolic readings of 100 or more and hypertension with continuous use of medication for control. CONCLUSION OF LAW The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code (DC) 7101 (2009). REASONS AND BASES FOR FINDING AND CONCLUSION VCAA 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 and 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. §§ 5104 and 7105. Hartman, supra. Where a claim has been substantiated after the enactment of the VCAA, a veteran bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of prejudice in this case with regard to the instant claim. The provisions of 38 C.F.R. § 3.103(c)(2) imposes two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010) (per curiam). In an August 2007 hearing, the undersigned inquired as to whether the Veteran was currently receiving treatment at VA. The Veteran was given the opportunity to ask question of the undersigned and to present additional argument in support of her claim. The Board therefore concludes that it has fulfilled its duty under Bryant. The Board remanded the instant matter in October 2007 to allow the Veteran's VA treatment records to be obtained and a VA hypertension examination to be conducted. VA treatment records dated through February 2009 are located in the claims file and a VA hypertension examination was conducted in December 2007. This matter was remanded by the Board in September 2008 to allow the Veteran's Social Security Administration (SSA) records to be obtained; these records are located in the claims file. Finally, the Board again remanded the instant matter in December 2009 to allow a VA cardiology examination to be conducted to determine the current manifestations of the Veteran's hypertension. Such an examination was conducted in January 2010 and service connection for cardiomegaly and congestive heart failure was granted in a March 2010 rating decision. There has, thus been substantial compliance with the terms of the previous remands. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Initial Rating Criteria 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 a veteran disagrees with the initial rating, the entire evidentiary record from the time of a 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). Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether or not they are raised by the Veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is 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. A 10 percent rating for hypertension is warranted when diastolic pressure is predominantly 100 or more or when systolic pressure is predominantly 160 or more, or 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 diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. A 40 percent rating requires diastolic pressure of predominantly 120 or more. 38 C.F.R. § 4.104, DC 7101. Effective October 6, 2006, the VA regulation relating to DC 7101 was amended to include note 3 which states that hypertension is to be evaluated separately from hypertensive heart disease and other types. There were no substantive changes in the regulation. 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). Factual Background and Analysis The Veteran contends that the severity of her hypertension warrants a compensable rating. VA treatment notes show that the Veteran's blood pressure was 124/94 in a January 1997, 147/94 in June 1997, 143/95 in November 1997, 160/90 in April 1998 150/90 in June 1999, 170/80 in August 2000, 148/90 in November 2000, 140/85 in January 2001, 154/80 in May 2001, 128/80 in August 2001 and 140/92 in March 2002. A June 2002 VA treatment note indicates that the Veteran had been prescribed atenolol, lisinopril and hydrochlorothiazide (HCTZ) for hypertension, after her blood pressure was noted to be 150/100. VA treatment notes indicated that the Veteran's blood pressure was 171/103 in August 2003, 168/82 in October 2003, 152/90 in February 2004, 148/76 in March 2004, 138/84 in March 2004, 154/88 and 140/82 in May 2004, 138/82 in June 2004, 170/90 in July 2004, 190/103 in July 2004, 122/72 in December 2004, 130/82 in March 2005, 100/60 in April 2005, 155/50 in October 2005, 155/58 in October 2005, 140/84 in October 2005, 99/60 in October 2005, 88/58 in November 2005, 92/55 and 92/50 in November 2005, 107/71 in December 2005, 130/80 in January 2006 and 92/59 in February 2006. At a February 2006 VA hypertension examination the Veteran reported taking hypertension medication. Her blood pressure was noted to be 112/70, 120/70 and 118/70. Her current hypertensive medications included HCTZ, atenolol and valsartan. VA treatment notes indicated that the Veteran's blood pressure was 130/82 in April 2006, 130/80 in April 2006, 138/88 in October 2006, 138/80 in October 2006, 141-91 in November 2006, 157/100 in December 2006, 132/80 in December 2006, 126/92 in February 2007 and 122/82 in February 2007. A February 2007 VA hypertension examination noted the Veteran's blood pressure to be 155/84, 150/97 and 148/88. A diagnosis of controlled benign essential hypertension was made following this examination and a review of the Veteran's claims file. VA treatment notes indicated that the Veteran's blood pressure was 131/81 in March 2007, 130/80 in March 2007, 131/81 in March 2007, 153/102 in March 2007, 168/113 and 156/104 in March 2007, 115/72 in March 2007, 150/80 in May 2007, 140/90 in June 2007, 148/90 in August 2007, 125/90 in August 2007, 131/85 and 142/100 in August 2007, 135/98 and 151/108 in August 2007, 125/77 in August 2007, 126/80 in August 2007, 135/98 in August 2007, 145/99 in August 2007 and 124/88 and 130/87 in August 2007. In an August 2007 hearing, the Veteran testified that she currently took medication to treat her hypertension. VA treatment notes indicated that the Veteran's blood pressure was 140/84 in September 2007, 140/90 in September 2007, 136/91 in September 2007, 116/80 in September 2007, 83/57 in October 2007, 92/60 in October 2007, 152/91 in November 2007 and 146/90 in February 2009. A June 2009 VA medication list for the Veteran included HCTZ. At the January 2010 VA examination, the Veteran's blood pressure was 110/78, 111/78 and 112/78. Since the effective date of service connection, the Veteran has had occasional diastolic blood pressure readings of 100 or more, but the vast majority of readings have been below that level. There have been no systolic readings at or above 160 since the effective date of service connection. While the continuous use of medication has been reported for the control of hypertension, there is no history systolic readings that were predominantly 100 or more. The record shows that the Veteran has had a consistent history of occasional readings above 100, but that the majority of readings have been below that level. . Applying all reasonable doubt in favor of the Veteran, a rating of 10 percent for hypertension is therefore warranted. 38 C.F.R. § 4.104, DC 7101. A higher rating is not warranted as her diastolic pressure was not predominately 110 or more nor was here systolic pressure predominately 200 or more. The Veteran's representative has argued that she is entitled to a higher rating based upon her various cardiac symptoms, including her current ejection fraction. The Board notes that she currently is in receipt of a separate 60 percent rating for these cardiac manifestations. Consideration of these symptoms in rating her hypertension is therefore not warranted. See Esteban v. Brown, 6 Vet. App. 259 (1994) (the evaluation of the same disability under various diagnostic codes constitutes prohibited pyramiding). Extraschedular Consideration 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, 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 is manifested by elevated blood pressure and the use of hypertensive medications. There have been no other reported symptoms, and the Veteran denied other symptoms at the January 2010 VA examination. Hence, the disability is contemplated by the rating schedule and referral for consideration of an extraschedular rating is not warranted. Total Rating for Compensation Purposes 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 her education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 The Veteran is currently unemployed and last worked as a clerk in the 1990s. A February 1998 SSA decision granted the Veteran benefits on the basis of organic mental disorders. The January 2009 VA psychological examiner suggested that the Veteran was unemployable. The January 2010 VA cardiac examiner determined that the Veteran would be unable to work in an industrial setting due to her cardiomegaly and congestive heart failure, but that she would be able to engage in sedentary employment. Aside from heart disease and hypertension, service connection is currently in effect for pes planus of each foot, for which separate 10 percent ratings have been awarded. There has been no allegation or evidence that pes planus plays any role in the Veteran's unemployment. The Veteran or her representative has not alleged that the heart disease and hypertension cause her to be unemployed. The only medical opinion is that the Veteran would be capable of sedentary employment, and the record shows that she has occupational experience qualifying her for such employment. The record therefore does not establish that the Veteran is unemployable due to her service-connected disabilities. ORDER Entitlement to an initial compensable rating for hypertension is denied. ____________________________________________ Mark D. Hindin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs