Citation Nr: 1300447	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  10-26 253	)	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 rating for hypertension, currently evaluated as 10 percent disabling.  


REPRESENTATION

Appellant represented by:	New Jersey Department of Military and Veterans' Affairs


ATTORNEY FOR THE BOARD

R. Giannecchini, Counsel




INTRODUCTION

The Veteran had active military service from June 1978 to December 1982.  

This matter comes to the Board of Veterans' Appeals (Board) following an appeal of a July 2008 rating decision of the Department of Veterans Affairs (VA) Regional
Office (RO) in San Juan, Puerto Rico.  

In the July 2008 rating decision, the RO denied the Veteran a compensable rating for his service-connected hypertension.  Thereafter, in an April 2010 rating decision, the RO increased the Veteran's disability rating for hypertension to 10 percent, effective May 21, 2008.  

In his June 2010 VA Form 9 (Appeal to Board of Veterans' Appeals), the Veteran requested a Board hearing before a Veterans Law Judge at the RO.  A letter informed the Veteran that he had been scheduled for a March 2012 hearing.  The Veteran failed to report for the scheduled hearing and has not requested that the hearing be rescheduled.  As such, his hearing request is deemed withdrawn.  See 38 C.F.R. § 20.704(d) (2012).

Additionally, the Veteran granted a power-of-attorney in 1984 in favor of the New Jersey Bureau of Veteran Services (now known as the New Jersey Department of Military and Veterans' Affairs).  At the time, the Veteran was a resident of New Jersey.  The Veteran currently resides in Puerto Rico and has been a resident, based on evidence in his claims folder, since 1992.  In a September 2012 letter to the Veteran from the Board, the Veteran was provided an opportunity to change his power-of-attorney in favor of a VA-recognized service organization located in Puerto Rico.  The Veteran failed to the respond to the Board's letter.  Therefore, as the Veteran has not revoked his power-of-attorney with the New Jersey Department of Military and Veterans' Affairs, that service organization remains his representative for purposes of this appeal.  


FINDING OF FACT

The Veteran's hypertension has not been manifested by readings of diastolic blood pressure of predominantly 110 or more, or systolic blood pressure of predominantly 200 or more.


CONCLUSION OF LAW

The criteria for a rating higher than 10 percent for service-connected hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012).  


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

The Board notes the enactment of the Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), in November 2000.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, and 5107 (West 2002 & Supp. 2012).  To implement the provisions of the law, VA promulgated regulations codified at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  The VCAA and its implementing regulations include, upon the submission of a substantially complete application for benefits, an enhanced duty on the part of VA to notify a claimant of the information and evidence needed to substantiate a claim, as well as the duty to notify the claimant of what evidence will be obtained by whom.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b).  In addition, they define the obligation of VA with respect to its duty to assist a claimant in obtaining evidence.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  (The Veteran's claim for an increased rating was received on May 21, 2008.  The Board notes that 38 C.F.R. § 3.159 was revised, effective May 30, 2008.  See 73 Fed. Reg. 23353-56 (Apr. 30, 2008).  The amendments apply to applications for benefits pending before VA on, or filed after, May 30, 2008.  The amendments, among other things, removed the notice provision requiring VA to request the veteran to provide any evidence in the veteran's possession that pertains to the claim.  See 38 C.F.R. § 3.159(b)(1).)

The Board finds that all notification action needed to make a decision on the claim on appeal has been accomplished.  Through a May 2008 notice letter, the Veteran was notified of the information and evidence needed to substantiate his claim for increase.  He was told that the evidence must show that his service-connected disability had gotten worse.  The letter also provided the Veteran with the general criteria for assigning disability ratings and effective dates.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd, Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007).  

The Board also finds that the May 2008 notice letter satisfies the statutory and regulatory requirement that VA notify a claimant which evidence, if any, will be obtained by the claimant and which evidence, if any, will be obtained by VA.  See Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002) (addressing the duties imposed by 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b)).  In the letter, the Veteran was notified that VA was responsible for obtaining relevant records from any Federal agency and that VA would make reasonable efforts to obtain relevant records not held by a Federal agency, such as from a state, private treatment provider, or an employer.  Additionally, the notice letter asked the Veteran to submit medical evidence, opinions, statements, and treatment records regarding his disability.  Consequently, a remand of the claim on appeal for further notification of how to substantiate the claim is not necessary.

The Board also notes that there is no indication that any additional action is needed to comply with the duty to assist in connection with the claim on appeal.  The Veteran's treatment records from VA Medical Center (VAMC) in San Juan, Puerto Rico have been obtained and associated with the claims folder, as have the Veteran's records associated with his disability claim with the Social Security Administration (SSA).  Significantly, the Veteran has not otherwise alleged that there are any outstanding medical records probative of his claim on appeal that need to be obtained.  The Board also notes that, the Veteran was provided a VA medical examination in June 2008 in connection with his claim, the report of which is also of record.  The examination report contains sufficient evidence by which to evaluate the Veteran's hypertension in the context of the rating criteria and other medical evidence of record.  

The Board is cognizant that it has been 4 1/2 years since the Veteran's June 2008 VA examination.  Although evidence submitted between the date of a VA examination and the Board's review could, in particular instances, conceivably require that a new medical examination be provided, the mere passage of time between those events does not.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182 (2007); 38 U.S.C. § 5103A(d)(2).  In the present case, the Veteran has not submitted any additional evidence demonstrating a worsening of his condition.  The requirement that the Secretary provide a thorough and contemporaneous examination is tied to those situations where the record does not adequately reveal the current state of a claimant's disability.  See Caluza v. Brown, 7 Vet. App. 498, 505.  The Board finds the record before it sufficient to adequately consider the Veteran's claim on appeal.  Therefore, the Board cannot conclude that its duty to assist in this instance requires an additional medical examination.  

Thus, VA has properly assisted the Veteran in obtaining any relevant evidence, and VA's duty to notify and assist the Veteran has been met.

II.  Analysis

Disability evaluations are determined by comparing a veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations 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.  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran.  38 C.F.R. § 4.3.
The veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  The United States Court of Appeals for Veterans Claims (Court) has held that consideration of the appropriateness of a staged rating is required.  See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

The Veteran's service-connected hypertension has been evaluated under Diagnostic Code 7101 for "hypertensive vascular disease (hypertension and isolated systolic hypertension)."  That diagnostic code provides for a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control.  A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  A 40 percent rating is assigned for diastolic pressure predominantly 120 or more.  Lastly, a 60 percent rating is assigned for diastolic pressure predominantly 130 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101.

By way of history, the Veteran's service treatment records reveal diagnoses for hypertension in service.  Upon filing his claim, the Veteran was provided a VA examination in October 1983 in which the report of examination notes systolic readings ranging from 140 to 180 and diastolic readings ranging from 70 to 80.  In a March 1983 rating decision, the RO granted service connection for hypertension and assigned a noncompensable rating.  

Thereafter, a May 2007 VA primary care note reflects the clinician's report that the Veteran was seeking care and treatment for his hypertension, something he reportedly was doing for the first time following his separation from active service in 1982.  A blood pressure reading of 154/97 was recorded at that time.  The clinician prescribed the Veteran blood pressure medication.  A following blood pressure reading in August 2007 was reported as 124/89.  In an October 2007 VA primary care note, the Veteran's blood pressure was reported as 147/107.  The clinician noted that the Veteran had not been taking his blood pressure medication for two to three weeks.  The Veteran's blood pressure reading is again documented in a March 2008 VA clinical pharmacy note, and was recorded at that time as 125/83.  The clinician reported that the Veteran's blood pressure was on "target goal."  

In a report of June 2008 VA examination, the Veteran's vital signs were taken and a blood pressure of 190/130 recorded.  Subsequent blood pressure readings during the examination were reported as 190/131, 172/121, and 182/119.  The examiner's diagnosis was arterial hypertension, uncontrolled.  

Based on the four blood pressure readings recorded during the June 2008 VA examination, the evidence clearly demonstrated, at that time, diastolic pressure of 110 or more, and, other than one slightly off reading, diastolic pressure of 120 or more.  However, the rating criteria under Diagnostic Code 7101 reflect that to warrant an increased rating to 20 percent for hypertension requires diastolic pressure readings predominantly 110 or more, or systolic pressure predominantly 200 or more.  See Webster's II New Riverside University Dictionary 927 (1994) (defining "predominantly" as "most common or conspicuous, prevalent, or preponderant").

The Board notes that documented blood pressure readings subsequent to the June 2008 VA examination reflect only one instance of a diastolic reading of 110, that reported in an October 2008 VA treatment note.  At that time, the Veteran's blood pressure, noted as 158/110, was apparently taken while he was agitated.  The Veteran's blood pressure was subsequently retaken during his medical evaluation and recorded as 138/99.  Otherwise, there are no systolic blood pressure readings of 200 or more.  The highest systolic reading recorded was 158, as noted above, in October 2008.  

In light of the evidence above, the Veteran's blood pressure readings, as documented in the medical evidence of record, do not reflect systolic pressure predominantly 200 or more or diastolic pressure predominantly 110 or more.  The highest systolic reading, recorded as 190, was reported during the Veteran's VA examination in June 2008.  Otherwise, diastolic readings of 110 or above are noted in the June 2008 VA examination and the October 2008 VA treatment note.  Other than those limited instances, which during the October 2008 VA evaluation the Veteran was noted to be agitated, the diastolic readings have predominantly been below 110.  

Therefore, without sufficient evidence that the Veteran's hypertension has resulted in diastolic pressure of predominantly 110 or more, or systolic pressure of predominantly 200 or more, a rating higher than 10 percent for the Veteran's service-connected hypertension is not warranted.  See 38 C.F.R. § 4.104, Diagnostic Code 7101; Hart, 21 Vet. App. at 509-10.  

The above determination is based upon consideration of applicable rating provisions.  It should also be pointed out that there is no showing that the Veteran's hypertension has reflected so exceptional or unusual a disability picture as to warrant the assignment of any higher evaluation on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).  The symptoms of his disability have been accurately reflected by the schedular criteria.  Without sufficient evidence reflecting that the Veteran's disability picture is not contemplated by the rating schedule, referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).

For all the foregoing reasons, the Board finds that the claim for a rating higher than 10 percent for hypertension must be denied.  In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine.  However, as the preponderance of the evidence is against a higher rating, that doctrine is not applicable.  See 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).  




ORDER

An increased rating for hypertension is denied.



_________________________________
MARK F. HALSEY
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs