Citation Nr: 1108697	
Decision Date: 03/04/11    Archive Date: 03/17/11

DOCKET NO.  09-21 635	)	DATE
	)
	)
On appeal from the
Department of Veterans Affairs Regional Office in Cheyenne, Wyoming


THE ISSUES

1.  Entitlement to an initial compensable rating for a deviated septum.

2.  Entitlement to an initial compensable rating for left foot plantar fasciitis.

3.  Entitlement to an initial rating higher than 10 percent for residuals of a right wrist fracture with degenerative arthritis.

4.  Entitlement to an initial compensable rating for hypertension.


REPRESENTATION

Veteran represented by:	The American Legion

WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Cheryl E. Handy, Associate Counsel


INTRODUCTION

The Veteran, who is the appellant, served on active duty from February 1987 to March 2007, including service in Southwest Asia, for which he earned a Bronze Star Medal. 

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in November 2007 of the Department of Veterans Affairs (VA) Regional Office (RO) in Cheyenne, Wyoming.

In September 2010, the Veteran's representative limited the appeal to the claims listed on the first page of this decision.

In January 2011, the Veteran appeared at a hearing before the undersigned Veterans Law Judge.  A transcript of that hearing is in the Veteran's file.

The claim for increased for the right wrist disability is REMANDED to the RO via the Appeals Management Center in Washington, DC.


FINDINGS OF FACT

1.  In January 2011 at a hearing before the Board and on the record, the Veteran withdrew from the appeal the claim for an initial compensable rating for a deviated septum.  

2.  In January 2011 at a hearing before the Board and on the record, the Veteran withdrew from the appeal the claim for an initial compensable rating for left foot plantar fasciitis.

3.  Hypertension is currently managed with medications and readings of diastolic pressures over 100 were shown in service at the time medication was first prescribed, but diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more is not shown.


CONCLUSIONS OF LAW

1.  The appeal of the claim for an initial compensable rating for a deviated septum is withdrawn.  38 U.S.C.A. §7105(d)(5) (West 2002 & Supp. 2010); 38 C.F.R. § 20.204 (2010).

2.  The appeal of the claim for an initial compensable rating for left foot plantar fasciitis is withdrawn.  38 U.S.C.A. §7105(d)(5) (West 2002 & Supp. 2010); 38 C.F.R. § 20.204 (2010).

3.  The criteria for an initial rating of 10 percent for hypertension have been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2010).


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim.  









Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of the following: (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide.

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004).

In the claim for increase, the RO provided pre-adjudication, content-complying VCAA notice by letter, dated in June 2007, on the underlying claim of service connection for hypertension. Where, as here, service connection has been granted, the service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Furthermore, once a claim for service connection has been substantiated, the filing of a notice of disagreement to the RO's rating of the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. 38 C.F.R. § 3.159(b)(3).  Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an higher initial rating, following the initial grant of service connection. Dingess, 19 Vet. App. 473; Dunlap v. Nicholson, 21 Vet. App. 112, 116-117 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).




Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim.  The RO has obtained the service treatment records and VA records.  The Veteran afforded VA examinations.

The VA examinations are adequate, as the reports are predicated on a review of medical records and the examiners addressed the rating criteria that are relevant to rating the disability.  Accordingly, the Board finds that VA's duty to assist with respect to obtaining VA examinations has been met. 38 C.F.R. § 3.159(c)(4). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist.


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Claims Withdrawn

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  Withdrawal of a substantive appeal may be made by the Veteran on the record at a hearing before the Board.   38 C.F.R. § 20.204.

In January 2011 at a hearing before the undersigned Veterans Law Judge and on the record, the Veteran withdrew from his appeal the claims for initial compensable ratings for a deviated septum and for left foot plantar fasciitis.

As there remains no allegation of error of fact or law for appellate consideration with respect to these claims, the Board does not have appellate jurisdiction to review them.  38 U.S.C.A. § 7105.

Rating Policy 

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  38 C.F.R. Part 4.  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.  38 U.S.C.A. § 1155.

Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating.  Otherwise the lower rating will be assigned.  38 C.F.R. § 4.7.

The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007).

Hypertension is rated under Diagnostic Code 7101.  Under Diagnostic Code 7101, the criteria for a 10 percent rating 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.  The criteria for a 20 percent rating are diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more.

Facts and Analysis

The service treatment records show that hypertension was diagnosed in service.  In June 1999, the Veteran's blood pressure was 139/100 and medication was prescribed.   In July 1999, the blood pressure readings were 142/102 and 138/104 and blood pressure medication was increased.  Thereafter the Veteran's blood pressure was controlled with medication.

On VA examination in August 2007, the Veteran was still on blood pressure medication.  On physical examination, the blood pressure readings were 142/94, 138/94, and 136/90.

On VA examination in May 2010, the Veteran stated that his blood pressure was more difficult to regulate as he was taking three different medications.  On physical examination, the blood pressures were 139/90, 149/88, and 128/86.

Based on the evidence, the Board finds that an initial rating of 10 percent for hypertension is warranted.  The rating criteria specify that where there is a need for continual medication and a history of diastolic blood pressure readings predominantly 100 or more, a 10 percent rating is warranted.  While the Veteran's service treatment records do not show predominant diastolic readings of 100 or more, there is evidence that, at the time when prescription medication treatment began, the Veteran's diastolic readings were 100 or more.  And the Veteran has bene on blood pressure medication ever since.   

With a history of diastolic pressure predominantly 100 or more requiring continuous medication for control, the criteria for a 10 percent rating have been met.  In the absence of evidence of diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more, the criteria for 20 percent rating have not been met. 

Extraschedular Consideration 

Although the Board is precluded by regulation from assigning extraschedular ratings under 38 C.F.R. § 3.321(b)(1) 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.





The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for a service-connected disability is inadequate.  There must be a comparison between the level of severity and symptomatology of the service-connected disability with the established criteria.

If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is, therefore, adequate, and no referral is required.  Thun v. Peake, 22 Vet. App. 111 (2008).

Here, the rating criteria reasonably describe the disability level and symptomatology based on the blood pressure readings and need for continual medication, and provide for higher ratings for more severe symptoms.  As the disability picture is contemplated by the Rating Schedule, the assigned schedular rating is therefore, adequate.  Consequently, referral for extraschedular consideration is not required under 38 C.F.R. § 3.321(b)(1).


ORDER

The appeal of the claim for an initial compensable rating for a deviated septum is dismissed.

The appeal of the claim for an initial compensable rating for left foot plantar fasciitis is dismissed

An initial rating of 10 percent for hypertension is granted, subject to the laws and regulations governing the award of monetary benefits.






REMAND

The Veteran is also seeking an initial rating higher than 10 percent for residuals of a right wrist fracture with degenerative arthritis.  The Veteran has been afforded two VA examinations with regard to the right wrist disability which specifically addressed the pertinent aspects of the rating criteria under Diagnostic Code 5215, limitation of motion of the wrist.  However, based on the physical findings on the May 2010 examination and the Veteran's testimony in January 2011, a reexamination is necessary to verify the current severity of the disability under 38 C.F.R. § 3.327.

Accordingly, the claim is REMANDED for the following action.

1.  Afford the Veteran a VA examination to determine the current level of right wrist impairment.

The VA examiner is asked to describe:

a).  The range of the motion of the wrist in dorsiflexion and palmar flexion; 

b).  The range of motion in supination and pronation; and, 

c).  Any limitation of motion of the fingers.  

The VA examiner is also asked to describe any neurological deficit and the effect the disability has on the Veteran's employment. 




The Veteran's file should be made available to the examiner. 

2.  On completion of the development, adjudicate the claim.  If the decision remains adverse to the Veteran, then provide him and his representative a supplemental statement of the case and return the case to the Board.

The Veteran has the right to submit additional evidence and argument on the matter 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 of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2010).



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs