Citation Nr: 1202040 Decision Date: 01/19/12 Archive Date: 01/30/12 DOCKET NO. 06-12 241 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania THE ISSUE Entitlement to a disability rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESSES AT HEARING ON APPEAL Appellant and spouse ATTORNEY FOR THE BOARD D. Schechner, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from August 1981 to March 1986, October 2001 to March 2003, April 2003 to July 2005, and had additional periods of active service. This matter is before the Board of Veterans' Appeals (Board) on appeal from a September 2005 rating decision of the Philadelphia, Pennsylvania VA Regional Office which, in pertinent part, awarded service connection for hypertension rated 10 percent, effective July 18, 2005. In February 2011, a Travel Board hearing was held before the undersigned; a transcript of the hearing is associated with the claims file. In March 2011, the Board remanded the matter for additional development. FINDING OF FACT At no time is the Veteran's hypertension shown to have been manifested by diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more. CONCLUSION OF LAW A rating in excess of 10 percent is not warranted for the Veteran's hypertension. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code (Code) 7101 (2011). REASONS AND BASES FOR FINDING AND CONCLUSION Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); 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. 38 C.F.R. § 3.159(b)(1). VCAA notice requirements apply to all five elements of a service connection claim: 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/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). As the rating decision on appeal granted service connection and assigned a disability rating and effective date for the award, statutory notice had served its purpose, and its application was no longer required. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). A February 2006 statement of the case (SOC) provided notice on the "downstream" issue of entitlement to an increased rating; while an April 2011 supplemental SOC (SSOC) readjudicated the matter after the appellant and his representative responded and further development was completed. 38 U.S.C.A. § 7105; see Mayfield v. Nicholson, 20 Vet. App. 537, 542 (2006). July 2007 and July 2008 letters also provided him with additional disability rating and effective date criteria. The Veteran has had ample opportunity to respond/supplement the record. He has not alleged that notice in this case was less than adequate. See Goodwin v. Peake, 22 Vet. App. 128, 137 (2008) (holding that "where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream issues"). The Veteran's pertinent treatment records have been secured. The RO arranged for VA examinations in June 2005, August 2007, and February 2010, which will be discussed in greater detail below, though the Board finds these examinations to be adequate as they involved both a review of the Veteran's history and a physical examination that included all necessary findings. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). He has not identified any pertinent evidence that remains outstanding. VA's duty to assist is also met. Legal Criteria, Factual Background, and Analysis Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Hypertension is rated under Code 7101. A 10 percent evaluation is to be assigned if diastolic pressures are predominantly 100 or more, or; systolic pressures are predominantly 160 or more, or; as a minimum evaluation with a history of diastolic pressures predominantly 100 or more and continuous medication required for control. A 20 percent rating requires diastolic pressures predominantly 110 or more, or; systolic pressures predominantly 200 or more. The next higher (40 percent) rating requires diastolic pressures predominantly 120 or more. 38 C.F.R. § 4.104. (Notes following include that hypertensive heart disease is to be separately rated from hypertension.) When the rating to be assigned involves the initial rating following a grant of service connection, separate ratings may be assigned for separate periods of time, based on the facts found. This is known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for such rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of disability will be resolved in the veteran's favor. 38 C.F.R. § 4.3. On June 2005 VA examination (prior to separation from active duty service), it was noted that the Veteran's hypertension was first diagnosed in August 2004 after a blood pressure reading of 140/110; initially, Catapres was prescribed, later he was placed on regular medication for high blood pressure including Toprol-XL. On physical examination, blood pressures were 130/86, 134/86, and 130/84. The diagnoses included hypertension, controlled on medication. On March 2006 VA emergency treatment, the initial blood pressure reading was 168/94; a subsequent blood pressure reading was 142/101. On discharge that same day, blood pressure reading was 138/88. On later March 2006 VA treatment, a blood pressure reading was 150/94. On re-check (customary if the initial reading is equal to or greater than 140/90), the blood pressure reading was 148/92. On January 2007 VA treatment, a blood pressure reading was 146/88. On re-check, the blood pressure reading was 136/88. On August 2007 VA treatment, a blood pressure reading was 148/88. On re-check, the blood pressure reading was 144/81. On later August 2007 VA treatment, blood pressure was 133/83. On August 2007 VA examination, the Veteran's medications for hypertension were noted to include hydrochlorothiazide, Prazosin, and Diltiazem. The examiner noted that, since the initial 2004 diagnosis, the Veteran had been on different medications for blood pressure and it was generally well-controlled. He denied any history of angina, cardiac disease, or stroke. Blood pressure readings were 130/88, 133/83, and 130/86. The diagnoses included hypertension, fairly controlled on medications. On October 2007 private treatment, blood pressure was normal at 116/79. In a series of blood pressure readings throughout that day, systolic pressures ranged from 118 to 130, and diastolic pressures ranged from 69 to 84. On December 2007 VA treatment, the Veteran's blood pressure was 154/92; on re-check, it was 140/80. On February 2009 VA treatment, blood pressure was 127/89. On February 2010 VA examination, it was noted that the Veteran had been taking medications for hypertension since its diagnosis, and that the hypertension was stable and asymptomatic. He reported chronic fatigue, which the examiner attributed as likely due to PTSD and/or obstructive sleep apnea. Medications for blood pressure included Diltiazem, and HCTZ/Lisinopril, with no side effects. Related to hypertension, there was no history of hospitalization or surgery, hypertensive renal disease, stroke, nosebleed, or headache. The Veteran's cardiac history was negative for any history of myocardial infarction, rheumatic fever, heart rhythm disturbance, valvular heart disease including prosthetic valve, congestive heart failure, other heart disease, angina, dizziness, syncope, fatigue, or dyspnea. There was no history of other hypertensive related diseases. On physical examination, there was no evidence of congestive heart failure or pulmonary hypertension. Blood pressure readings were 130/88, 126/82, and 127/86. The Veteran reported that he was employed full time. On December 2010 VA emergency treatment for "atypical chest pain", a blood pressure reading was 147/101. The assessment was elevated blood pressure, later "normotensive" after taking his medications 3 hours earlier. Blood pressure readings taken later that same morning were 135/82 then 127/87. He was cleared to return to work. There was no diagnosis of a heart disease. At the February 2011 Travel Board hearing, the Veteran testified that in November [record actually shows December] 2010 he sought emergency treatment at the Martinsburg VAMC for chest pain. He stated that his blood pressure "varied" and was the highest it had ever been. He testified that checkups at Martinsburg VAMC found that his blood pressure "goes up and down", though he had not changed medication, and that he had once been admitted into the ER because of chest pain. He testified that he had cardiac checkups at the Martinsburg VAMC approximately every three months, in addition to seeking additional immediate treatment whenever he experienced chest pain. He testified that his blood pressure had not reduced his activity, and that he tried to stay conscientious and take care of himself. In March 2011, the Board remanded the matter to obtain outstanding VA treatment records and, if the records showed worsening of the Veteran's hypertension, to afford him a new VA examination. VA treatment records procured pursuant to the Board's remand include: a May 2010 record showing a blood pressure of 139/89; a September 2010 record showing a blood pressure of 149/88 and a re-check reading of 119/88; and a duplicate of a December 2010 record (that was previously in the file) showing a blood pressure of 147/101. The Veteran's blood pressure readings recorded throughout during the evaluation period consistently provide evidence against his claim, as they uniformly show diastolic and systolic pressures that do not meet the schedular criteria for the next higher, 20 percent, rating. The record does not show that at any time during the evaluation period (since the grant of service connection) the Veteran's diastolic blood pressures were predominantly 110 or more, or that his systolic pressures were predominantly 200 or more; there was not a single diastolic pressure of 110 or more, nor a single systolic pressure of 200 or more. Furthermore, the Board notes that the record does not show complications (such as hypertensive heart disease) that would warrant the assignment of a separate compensable rating. See, e.g., February 2010 VA examination report. The Board notes the Veteran's representative's December 2011 contention that, because the evidence indicates blood pressure readings higher than those shown on February 2010 VA examination, the Veteran should be afforded a new VA examination. However, the highest blood pressure recorded since the February 2010 examination is a reading of 147/101 in December 2010, and does not suggest that diastolic pressures might be predominanatly 110 or more or that systolic pressure might be predominantly 200 or more. The Board observes in that regard that a single occasion of readings (on examination, e.g.) would be unlikely to show blood pressures are predominantly 110 or more diastolic or 200 or more systolic when treatment records do not show any readings approximating such degree of elevation. The Board therefore finds no reason to seek a new examination. The Board has also considered whether this matter should be referred to the Chief Benefits Director or the Director, Compensation and Pension Service for consideration of an extraschedular evaluation under 38 C.F.R. § 3.321. In Thun v. Peake, 22 Vet. App. 111 (2008), the U.S. Court of Appeals for Veterans Claims (Court) clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either 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 do 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. Here, the symptoms of, and impairment resulting from, the Veteran's hypertension are fully encompassed by the criteria for the 10 percent schedular rating assigned. The record does not reflect (or suggest) any symptoms/impairment of hypertension not encompassed by the schedular criteria. Therefore, the schedular criteria are not inadequate, and referral for extraschedular consideration is not warranted. Finally, it was noted on February 2010 VA examination that the Veteran was employed full-time; he has not alleged that his hypertension renders him unemployable. The matter of a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is not raised by the record. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). ORDER A rating in excess of 10 percent for hypertension is denied. ____________________________________________ George R. Senyk Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs