Citation Nr: 1108739 Decision Date: 03/04/11 Archive Date: 03/17/11 DOCKET NO. 06-27 908 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an increased disability evaluation for hypertension, currently rated as 10 percent disabling. ATTORNEY FOR THE BOARD Terrence T. Griffin, Associate Counsel INTRODUCTION The retired in April 1976 after serving on active duty more than 20 years. This matter came before the Board of Veterans' Appeals (Board) on appeal from a July 2005 decision by the Department of Veterans Affairs (VA) San Juan, Puerto Rico, Regional Office (RO). The Board previously remanded this matter is April 2008 and January 2009. FINDING OF FACT There is no evidence that hypertension has resulted in were diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for the assignment of a disability evaluation in excess of 10 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2010). REASONS AND BASES FOR FINDING AND CONCLUSIONS Duties to Assist and Notify VA has a duty to provide a claimant notification of information and evidence necessary to substantiate the claim submitted, the division of responsibilities in obtaining evidence, and assistance in developing evidence, pursuant to the Veterans Claims Assistance Act of 2000 (VCAA). See 38 U.S.C.A. §§ 5103(a); 5103A; 5107; 38 C.F.R. § 3.159. In the present matter, the notice requirement was accomplished in January 2005, May 2008, June 2008 and January 2009 letters, explaining the type of evidence necessary to establish an increased rating, what evidence was to be provided by the Veteran, and what evidence the VA would attempt to obtain on his behalf. The letters explained that the evidence must demonstrate a greater level of disability than previously assessed to establish an increased evaluation. The letter also indicated that these findings could be supported by statements from the Veteran's doctor containing physical and clinical findings, the results of any laboratory tests or x-rays, and the dates of the examinations and tests. Therefore, the Board finds that VA has no outstanding duty to inform the Veteran that any additional information or evidence is needed, and any defect as to the manner and timing of the notice provided is harmless. The Board also finds that all necessary development of evidence has been completed. VA has obtained the Veteran's service, VA and private treatment records, and he has been afforded appropriate VA examinations. Although it is possible that additional relevant private treatment records have not been associated with the claims folder, VA need not make any additional attempt to obtain these records or further delay evaluating the present claim, as the RO supplied the Veteran with, and requested the return of, appropriate private medical records release forms and he declined to comply with this request. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). What is more, the Veteran has declined a hearing related to his present claim and the RO has substantially, if not completely, complied with the Board's April 2008 and January 2009 remand instructions. Consequently, the Board has no notice of any additional relevant evidence not of record, and finds VA made all reasonable efforts to obtain evidence necessary to substantiate the Veteran's claim. Therefore, no further assistance with the development of evidence is required. Increased Rating Claim By way of background, a July 1977 rating action granted the Veteran service connection for hypertension and assigned an initial noncompensable disability evaluation, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. Then, a March 1978 rating action granted an increased 10 percent disability evaluation for the Veteran's hypertension and the RO continued this disability evaluation in August 1982. In December 2004, the Veteran filed an increased disability evaluation claim, which a July 2005 rating decision denied. Disability ratings are intended to compensate impairment in earning capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate Diagnostic Codes identify the various disabilities. Id. It is necessary to rate the disability from the point of view of the Veteran working or seeking work, 38 C.F.R. § 4.2, and to resolve any reasonable doubt regarding the extent of the disability in the Veteran's favor. 38 C.F.R. § 4.3. If there is a question as to which disability rating to apply to the Veteran's disability, the higher rating 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. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Additionally, in determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. All evidence must be evaluated in arriving at a decision regarding a higher rating. 38 C.F.R. §§ 4.2, 4.6. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim, or whether a preponderance of the evidence is against the claim. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The applicable diagnostic criteria for hypertension are detailed in 38 C.F.R. § 4.104, Diagnostic Code 7101. Under this diagnostic code, a 10 percent disability evaluation is assigned where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more, or; is the minimum evaluation available 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 were diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Here, based on the evidence of record, the Board finds that the criteria for a disability evaluation in excess of 10 percent, for the Veteran's service connected hypertension, are not met. The medical evidence of record contains extensive and frequent blood pressure readings, but there is no evidence demonstrating diastolic pressure of predominantly 110 or more, or systolic blood pressure of predominantly 200 or more. At his March 2005 VA examination, although the Veteran reported dyspnea on exertion, on physical examination, the most elevated blood pressure reading was 153/86. Additionally, a December 2007 VA primary care treatment record documented well controlled hypertension and a blood pressure reading of 172/77. A March 2009 VA treatment record arguably suggests the Veteran's blood pressure was uncontrolled, but no blood pressure reading were taken at this time; moreover, an April 2009 VA treatment record specifically indicates better controlled hypertension. Further, a July 2009 VA treatment record indicates the Veteran's blood pressure was 132/71. As reflected by these treatment records, which represent the greatest respectively noted diastolic and systolic pressure finding of record, the Veteran's diastolic pressure has not been predominantly 110 or more, nor has his systolic pressure been predominantly 200 or more. Therefore, a rating in excess of 10 percent for service connected hypertension is not warranted at this time. Without question, the Board has considered the Veteran's account of the symptomatology and elevated blood pressure readings; however, with respect to elevated blood pressure readings, he only contends that diastolic pressure has, at most, predominated at 100. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir.2007); see also Notice of Disagreement, Apr. 2006. In essence, the Veteran's account of his disorder, while consistent with the medical evidence of record, does not support the assignment of a disability in excess of the rating presently assigned. What is more, the Veteran has been provided multiple opportunities to provide the Board with evidence, both lay and medical, as to possibly support the assignment of an increased disability evaluation, but he has declined to provide any such information. See Wood, 1 Vet. App. at 193; Caluza v. Brown, 7 Vet. App. 498, 511 (1995). In sum, the Board finds that a disability evaluation in excess of 10 percent has not been warranted at any time during the pendency of the present appeal, as the Veteran's systolic pressure has been at most 172 and his diastolic pressure has been at most 89. The preponderance of the evidence is against the Veteran's claim; the benefit of the doubt doctrine is not for application. See generally Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, a disability evaluation in excess of 10 percent for hypertension must be denied. Finally, the Board has considered whether the Veteran's claim warrants referral to the Chief Benefits Director of VA's Compensation and Pension Service under 38 C.F.R. § 3.321. In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. Here, the Board finds that the rating criteria contemplate the Veteran's level elevated blood pressure readings, required medication and fatigue. There is evidence that the Veteran's hypertension is productive of fatigue and limited physical activity, which is contemplated by the rating presently assigned and the applicable rating criteria. The rating criteria are therefore are adequate to evaluate the Veteran's disability and referral for consideration of extraschedular rating is not warranted. ORDER An evaluation in excess of 10 percent for hypertension is denied. ____________________________________________ STEVEN D. REISS Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs