Citation Nr: 1031383 Decision Date: 08/20/10 Archive Date: 08/24/10 DOCKET NO. 07- 32 409 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a rating higher than 10 percent for essential hypertension. 2. Entitlement to an effective date earlier than November 23, 2004, for an increased rating of 10 percent for hypertension. 3. Entitlement to a compensable evaluation for a chronic left ankle sprain. 4. Entitlement to a compensable evaluation for a chronic right ankle sprain. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD T. Azizi-Barcelo, Counsel INTRODUCTION The Veteran served on active duty from January 1983 to January 1986. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2005 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) that granted a 10 percent rating for hypertension, effective November 23, 2004. The Veteran appealed for an earlier effective date and a higher rating. The decision also denied compensable disability ratings for chronic right and left ankle sprains. In April 2010, the Veteran appeared at a hearing before the undersigned Veterans Law Judge. The transcript of the hearing is in the record. At the hearing, the Veteran submitted additional evidence in support of his claims and waived the right to have the evidence initially considered by the RO. 38 C.F.R. § 20.1304(c) (2009). The issues of service connection for gout and degenerative changes of the right and left ankles, to include as secondary to the service-connected chronic right and left ankle sprains, have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issues of compensable disability ratings for chronic right and left ankle sprains are REMANDED to the RO via the Appeals Management Center in Washington, D.C. FINDINGS OF FACT 1. Hypertension has not been shown to be productive of diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. 2. The criteria for a 10 percent rating for hypertension were not factually ascertainable prior to the receipt of the claim on November 23, 2004. 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 2009); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2009). 2. The criteria for an effective date earlier than November 23, 2004, for the assignment of a 10 percent rating for hypertension, are not met. 38 U.S.C.A. §§ 5101, 5110 (West 2009); 38 C.F.R. §§ 3.400(o)(2) 4.104, Diagnostic Code 7101 (2009). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duty to Notify and Assist Upon receipt of a complete or substantially complete application, VA must provide notice to the claimant that: (1) informs the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) informs the claimant about the information and evidence that VA will seek to provide; and (3) informs the claimant about the information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5103, 5103A, 5107; 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Veteran's claim for an earlier effective date arises from his disagreement with the effective date assigned following the grant of an increased rating of 10 percent for hypertension. Once a claim is granted it is substantiated and additional notice is not required. Thus, any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Here VA satisfied the duty to notify by means of correspondence dated in December 2004, and June 2008; a rating decision in September 2005; and a statement of the case in August 2007. Those documents discussed specific evidence, particular legal requirements applicable to the claims herein decided, evidence considered, pertinent laws and regulations, and reasons for the decision. VA made all efforts to notify and to assist the Veteran with evidence obtained, the evidence needed, and the responsibilities of the parties in obtaining the evidence. The Board finds that any defect of timing or content of the notice to the appellant is harmless because of the thorough and informative notices provided throughout the adjudication and because the appellant had a meaningful opportunity to participate effectively in the processing of the claims with an adjudication of the claims by the RO subsequent to the claimant's receipt of compliant notice. There has been no prejudice to the Veteran, and any defect in the timing or content of the notices has not affected the fairness of the adjudication. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006) (specifically declining to address harmless error doctrine); Dingess v. Nicholson, 19 Vet. App. 473 (2006). Thus, VA has satisfied its duty to notify the Veteran and had satisfied that duty prior to the final adjudication in the October 2008 supplemental statement of the case. A statement of the case or supplemental statement of the case can constitute a readjudication decision that complies with all applicable due process and notification requirements if adequate notice is provided prior to that adjudication. Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007). The provision of adequate notice prior to a readjudication, including in a statement of the case or supplemental statement of the case, cures any timing defect associated with inadequate notice or the lack of notice prior to the initial adjudication. Prickett v. Nicholson, 20 Vet. App. 370 (2006). In addition, all relevant, identified, and available evidence has been obtained, and VA has notified the Veteran of any evidence that could not be obtained. The appellant has not referred to any additional, unobtained, relevant, available evidence. The Veteran was afforded a VA examination. Thus, the Board finds that VA has satisfied both the notice and duty to assist provisions of the law. Furthermore, the Board finds that if there is any deficiency in the notice to the Veteran or the timing of the notice it is harmless error because the appellant had a meaningful opportunity to participate effectively in the processing of the claims. Overton v. Nicholson, 20 Vet. App. 427 (2006) (Board erred in relying on various post-decisional documents for concluding adequate notice was provided, but the Veteran was afforded a meaningful opportunity to participate effectively in the adjudication of his claim, and therefore the error was harmless). Earlier Effective Date The Veteran contends that he is entitled to an effective date earlier than November 23, 2004, for an increased rating of 10 percent for hypertension because he met the criteria for a compensable rating prior to that date. The effective date of the award of an increase in compensation is either the date of claim or the date entitlement arose, whichever is later. 38 U.S.C.A. § 5110(a) (West 2002); 38 C.F.R. § 3.400(o)(1) (2009). An exception to the rule allows for the earliest date as of which it was factually ascertainable that an increase in disability had occurred if the claim was received within one year from such date; otherwise, the effective date is the date of receipt of the claim. 38 U.S.C.A. § 5110(b)(2) (West 2002); 38 C.F.R. § 3.400(o)(2) (2009). Any communication or action, indicating an intent to apply for one or more benefits under the laws administered by the Department of Veterans Affairs, from a claimant may be considered an informal claim. Such informal claim must identify the benefit sought. 38 C.F.R. § 3.155 (2009) Once a formal claim for compensation has been allowed, the date of VA outpatient examination or treatment will be accepted as the date of receipt of an informal claim for increase. 38 C.F.R. § 3.157(b)(1) (2009). A review of all the evidence of record is required to determine when an increase in disability was ascertainable. Hazan v. Gober, 10 Vet. App. 511 (1997) (Within the meaning of 38 U.S.C.A. § 5110(b), while evidence previously considered alone cannot lead to a grant of an earlier effective date, the evidence is nevertheless part of the entire evidence of record in determining when the rating increase was ascertainable). If a decision by the RO is not appealed, the rating decision becomes final and the rating decision is not subject to revision on the same factual basis except by duly constituted appellate authorities or on the basis of clear and unmistakable error. 38 C.F.R. §§ 3.104(a), 3.105 (2009). If a claimant wishes to reasonably raise clear and unmistakable error, there must be some degree of specificity as to what the alleged error is and, unless it is the kind of error that, if true, would be clear and unmistakable error on its face, persuasive reasons must be given as to why the result would have been manifestly different but for the alleged error. Fugo v. Brown, 6 Vet. App. 40 (1993). A May 1986 rating decision granted service connection for hypertension and assigned a 0 percent rating, effective in January 1986. The Veteran was notified of the rating decision and of his appellate rights, but he did not appeal the 0 percent rating or the effective date. Therefore, the rating decision became final based on the evidence of record. 38 U.S.C.A. § 7105(c) (West 2002). Absent a specific allegation of clear and unmistakable error, the rating decision by the RO became final and is not subject to further review at this time based on the evidence then of record. Rudd v. Nicholson, 20 Vet. App. 296 (2006) (only a request for revision based on CUE could result in the assignment of an effective date earlier than the date of a final decision). The Veteran's current claim for increase was filed at the RO on November 23, 2004. The record is devoid of any communication from or action on the part of the Veteran or his representative, which could constitute a claim or indicate an intent to apply for an increased rating, in the period between the final RO rating decision of May 1986 and the receipt of his claim for increase on November 23, 2004. 38 U.S.C.A. § 5101 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157 (2009). The effective date of any increase may precede the date of the receipt of the claim if it was factually ascertainable that an increase in disability had occurred during the preceding year. Therefore, the Board must review the evidence of record to determine whether it is factually ascertainable that an increase in disability had occurred within the one-year period prior to November 23, 2004. Prior to November 23, 2004, the Veteran's hypertension was rated as noncompensably disabling under Diagnostic Code 7101. The criteria for a compensable rating of 10 percent, are diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 38 C.F.R. § 4.104 (2009). The Board has reviewed that Veteran's medical records dated prior to November 23, 2004, and finds that they do not show diastolic pressures of predominantly 100 or more within one year prior to receipt of that claim to demonstrate that he met the criteria for a 10 percent rating. Furthermore, the evidence does not show a history of diastolic blood pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more prior to November 23, 2004, as a whole. While private medical records received in January 2005, show treatment for hypertension with medication prior to November 23, 2004, the evidence does not show a history of diastolic pressures of predominantly 100 or more. There is a reading of 140/100 which appears to have been made in 2001. However, the remainder of the readings appear to be below 160 systolic and 100 diastolic. In any event, the readings are not predominantly 160 or more systolic or 100 or more diastolic prior to November 23, 2004. Therefore, the Board finds that the evidence does not show that it is at least as likely as not that the Veteran met the criteria for a 10 percent rating prior to November 23, 2004. Thus, the Board finds that the preponderance of the evidence is against the claim and the claim must be denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran contends that he is entitled to a rating higher than 10 percent for hypertension because without medication, his blood pressure readings would qualify him for higher disability rating. A disability rating is determined by the application of VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4 (2009). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify various disabilities. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2009). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hypertension is currently rated 10 percent under Diagnostic Code 7101. Diagnostic Code 7101 provides for a 10 percent rating where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more which requires continuous medication for control. The criteria for the next higher rating, 20 percent, are diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104 (2009). A May 1986 rating decision granted service connection for hypertension and assigned a 0 percent rating. The Veteran submitted the current claim for a compensable rating for hypertension in November 23, 2004. Private treatment records have recorded the following blood pressure readings; 136/90 in October 2003, 118/86 in March 2004, 120/78 in April 2004, and 140/100 in September 2004. It was also noted that the Veteran was taking hypertension medication. On VA examination in July 2005, the Veteran complained of headaches and dizziness on an intermittent basis. The Veteran reported that a home blood pressure reading kit produced elevated blood pressure systolic readings between 120 and 140 and elevated diastolic readings between 90 and 100. The Veteran took medication for hypertension. The Veteran denied a history of congestive heart failure, cardiac problems or chest pain. On examination, the Veteran's blood pressure readings were 145/100, 150/105, and 135/90. His pulse was 90 and regular. Cardiac examination revealed regular rate and rhythm without murmurs, gallops, or rubs. He was diagnosed with hypertension. The examiner noted that the Veteran's blood pressure reading did not seem to be well controlled. The examiner observed that the Veteran seemed to have no long term complications of hypertensive disease. At the April 2010 hearing, the Veteran reported that his blood pressure would occasionally spike up with diastolic blood pressure readings of over 100. The evidence, consisting of private treatment records and the July 2005 VA examination report, shows that the diastolic pressure readings are all below 110, and the systolic blood pressure readings are all below 200 throughout the pendency of this appeal since the effective date of service connection. As the diastolic pressure readings are predominantly below 110 and the systolic pressure readings are predominantly below 200, the criteria for the next higher rating have not been met. Therefore, the Board finds that the preponderance of the evidence is against a rating higher than 10 percent for hypertension at any time during the appeal period, and the claim is denied. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Although the Board is precluded by regulation from assigning an extraschedular rating in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for consideration of an extraschedular rating. The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular ratings for that service-connected disabilities are inadequate. This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria. 38 C.F.R. § 3.321(b)(1) (2009). If the criteria reasonably describe the Veteran's disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular evaluation is adequate and referral for an extraschedular rating is not required. Thun v. Peake, 22 Vet. App. 111 (2008). Here, the rating criteria for the Veteran's hypertension reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptoms, which have not been shown. There evidence does not show that hypertension causes unusual factors such as marked interference with employment or frequent hospitalization. Therefore, the Board finds that the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is adequate. Consequently, referral for extraschedular consideration is not warranted under 38 C.F.R. § 3.321(b)(1). ORDER An effective date earlier than November 23, 2004, for the assignment of a 10 percent rating for hypertension, is denied. An initial rating in excess of 10 percent for hypertension is denied. REMAND The Veteran contends that he is entitled to separate 30 percent disability ratings for his service-connected right and left ankle chronic sprains. On VA examination in July 2005, the Veteran exhibited limited range of motion of the right and left ankle. The examiner opined that the degenerative arthritis of the right ankle, and chondromalacia of the left ankle, were due to the nonservice- connected gout. A December 2005 CT scan of the left lower extremity revealed gout arthritis and osteoarthritis. Based on a review of a March 2004 MRI of the right lower extremity, podiatric assessment, and other private treatment records, the Veteran's private treating physician opined that complaints pertaining to the right and left ankle were severe in nature and were due to the service-connected chronic ankle sprains. The physician indicated that the level of limited motion exhibited by the Veteran approached the equivalent diagnosis of right and left ankle ankylosis. The examiner further opined that arthritic changes present in the left and right foot were consistent with the in-service injuries. The Board finds that the record raises claims of service connection for degenerative changes of the right and left ankles as secondary to the service-connected chronic right and left ankle sprains. Those claims have not been addressed by the Agency of Original Jurisdiction. The claims for service connection are inextricably intertwined with the Veteran's pending claims for separate compensable ratings for chronic left and right ankle sprains, because degenerative changes of the right and left ankles may be rated in conjunction with the service-connected right and left chronic ankle sprains. The appropriate remedy where a pending claim is inextricably intertwined with a claim currently on appeal is to defer adjudication of the claim on appeal pending the adjudication of the inextricably intertwined claim. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, the case is REMANDED for the following action: 1. Adjudicate the claims for service connection for degenerative changes of the right and left ankles as secondary to the service-connected chronic right and left ankle sprains. If any action is adverse to the Veteran, inform him of his appeal rights. If action is favorable to the Veteran, assign a rating and effective date. 2. Then, readjudicate the claims for separate compensable ratings for chronic right and left ankle sprains. If the decision remains adverse to the appellant, issue a supplemental statement of the case and allow the appropriate time for response. Then, return the case should to the Board. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board or the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2009). ______________________________________________ Harvey P. Roberts Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs