Citation Nr: 1222945 Decision Date: 07/02/12 Archive Date: 07/13/12 DOCKET NO. 08-37 101 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia THE ISSUE Entitlement to a rating in excess of 10 percent for service-connected hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Katie K. Molter, Associate Counsel INTRODUCTION The Veteran served on active duty from March 1983 to September 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2007 rating decision from the RO which granted entitlement to service connection for hypertension and assigned an initial noncompensable rating. A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal. During the pendency of the appeal, the RO issued a January 2012 rating decision which granted the Veteran a 10 percent disability rating for his service-connected hypertension, effective October 1, 2006. However, this award is not a complete grant of the benefits sought and the issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35 (1993). FINDING OF FACT Since the grant of service connection, the evidence shows that the Veteran's hypertension has been manifested by a history of diastolic blood pressure of predominantly 100 or more and the requirement of continuous medication for control. However, it has not been manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101 (2011). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2011). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, 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 notice from VA 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. VA's notice requirements apply to all five elements of a service- connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, VA's notice requirements may, nonetheless, be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Id. A July 2007 pre-rating notice letter described the evidence necessary to substantiate a claim for service connection, and met all of the requirements noted above; including informing the Veteran that it was ultimately his responsibility to see to it that any records pertinent to his claim are received by VA. This notification would also apply to the "downstream" issue of entitlement to a higher initial rating. The Unites States Court of Appeals for Veterans Claims (Court) has 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. Dunlap v. Nicholson, 21 Vet. App. 112, 119 (2007); Dingess, 19 Vet. App. at 491. The July 2007 pre-rating letter provided notice as to how disability ratings and effective dates are assigned, and the type of evidence that impacts these types of determinations, consistent with Dingess v. Nicholson, 19 Vet. App. 473. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. The record also reflects that VA has made reasonable efforts to obtain or to assist in obtaining all relevant records pertinent to the matter decided herein on appeal. Pertinent medical evidence associated with the claims file consists of the Veteran's service treatment records, post-service treatment records, and the report of an August 2007 VA-fee based examination. Also of record and considered in connection with the appeal are various written statements provided by the Veteran and his representative. Thus, the Board finds that all necessary notification and development action on this claim has been accomplished. II. Legal Criteria Ratings for service-connected disabilities are determined by comparing the symptoms the Veteran is presently experiencing with criteria set forth in VA's Schedule for Rating Disabilities which is based, as far as practically can be determined, on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2011). Separate diagnostic codes identify the various disabilities. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2011). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2011). Also, when making determinations as to the appropriate rating to be assigned, VA must take into account the Veteran's entire medical history and circumstances. 38 C.F.R. § 4.1 (2011); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Board will also 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). Hypertensive vascular disease warrants a 10 percent rating when diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or when an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. A 20 percent rating requires diastolic pressure of predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating requires diastolic pressure of predominantly 120 or more. A 60 percent rating requires diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2011). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means that the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1 (2011). III. Analysis By way of history, the Veteran was granted service connection for hypertension in a November 2007 rating decision and assigned an initial noncompensable rating effective October 1, 2006. During the pendency of the appeal the Veteran was granted a 10 percent rating for his service-connected hypertension, effective October 1, 2006. The Veteran has alleged that his hypertension disability warrants a higher rating than is currently assigned. Specifically, the Veteran has contended that he meets the criteria for a 20 percent rating. In support of his argument, the Veteran points to the fact that he had blood pressure readings of 160/110, 188/115 and 180/120 (as recounted in the January 2012 Supplemental Statement of the Case) while serving on active duty. The record evidence consists of the service treatment records, VA treatment records, the report of an August 2007 VA-fee based examination, a statement from the Veteran's VA nurse practitioners, and the Veteran's written statements. This evidence shows that the Veteran continuously has been on medication for blood pressure control, however during the appeal period the records do not show that historically or currently diastolic pressure was predominantly 110 or more or systolic pressure was 200 or more. A November 2008 letter from VA Woodbridge Family Health Center indicates that the Veteran has been treated at the facility beginning in January 2007 to November 2008. The following blood pressures were recorded: 154/92, 132/92, 138/90, 122/70, 127/86, 153/103, 143/90, 129/88, 134/89, and 121/79. The nurse practitioner indicated that the Veteran's hypertension has been generally well controlled by medication since January 2007. A January 2007 VA outpatient record shows that the Veteran's blood pressure was recorded as 177/104. It was noted that the Veteran had three separate elevated blood pressures in the last 6 months and all at concerning levels. The Veteran was prescribed a daily medication. An August 2007 VA outpatient record shows that the Veteran's blood pressure was recorded as 127/86. A September 2007 VA outpatient record shows that the Veteran's blood pressure was recorded as 131/93 and he was assessed with essential hypertension benign. The record indicated that the Veteran would continue on daily oral medication to control his hypertension. A February 2008 VA outpatient record shows that the Veteran's blood pressure was recorded as 122/75. A May 2008 VA outpatient treatment record shows that the Veteran's blood pressure was recorded as 134/89. A November 2008 VA outpatient treatment record shows that the Veteran's blood pressure was recorded as 121/79. An August 2007 VA-fee based examination shows that the Veteran reported being diagnosed with systemic hypertension. The condition as existed for 7 years. The current symptoms are that his blood pressure is really high 188/121. Currently he is taking daily medication for this condition. The Veteran's blood pressure was measured three times: 152/90, 150/92, and 150/90. It was noted that the Veteran's hypertension was controlled by medication. The Board has reviewed all of the medical evidence of record and given that the evidence of record contains no showing that the Veteran's diastolic pressure has been predominantly 110 or more, or that he has had systolic pressure of 200 or more, since the grant of service connection, the Board finds it reasonable to conclude that the Veteran's hypertension is most appropriately rated at 10 percent disabling since the grant of service connection. See Fenderson, 12 Vet. App. at 126. Finally, the Veteran has not alleged or submitted any evidence showing that his hypertension has markedly interfered with his employment status beyond that interference contemplated by the assigned evaluation, and there is also no indication that this disorder has necessitated frequent, or indeed any, periods of hospitalization during the pendency of this appeal. As such, the Board is not required to remand this matter to the RO for the procedural actions outlined in 38 C.F.R. § 3.321(b)(1), which concern the assignment of extra-schedular evaluations in "exceptional" cases. See Thun v. Peake, 22 Vet. App. 111 (2008). ORDER Entitlement to a rating in excess of 10 percent for service-connected hypertension is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs