Citation Nr: 1300507	
Decision Date: 01/07/13    Archive Date: 01/11/13

DOCKET NO.  08-02 522	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUE

Entitlement to an initial compensable disability rating for hypertension.  


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Tenner, Counsel


INTRODUCTION

The Veteran served on active duty from March 1988 to July 1988, from February 1989 to December 2002, and from April 2005 to June 2006.  

This case comes before the Board of Veterans' Appeals (Board) on appeal from a March 2007 decision rendered by the St. Petersburg, Florida Regional Office (RO) of the Department of Veterans Affairs (VA).  

In October 2011, the Board remanded this matter for development.  


FINDINGS OF FACT

1.  From 2005 to 2011, the Veteran's service-connected hypertension required continuous medication for control but was not characterized by a history of diastolic pressure of predominantly 100 or more.  

2.  The Veteran stopped taking anti-hypertensive medication in 2011.   


CONCLUSION OF LAW

The criteria for an initial compensable disability rating for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.104, Part 4, including Diagnostic Code 7101 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326 (2012).

When VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claims.  38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b) (2012); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claims; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  Pelegrini v. Principi, 18 Vet. App. 112 (2004)

Here, an October 2006 letter from the RO satisfied the notice criteria.  In that letter, the RO advised the Veteran of the basic criteria for service connection and explained VA's duties to assist him in obtaining evidence relevant to the claim.  
 
Moreover, where, as here, service connection has been granted and the initial rating has been assigned, the claim of entitlement to service connection has been more than substantiated, as it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required, since 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 with the rating of the disability does not trigger additional notice requirements.  38 U.S.C.A. § 5103(a) (West 2002); Dunlap v. Nicholson, 21 Vet. App. 112 (2007); Goodwin v. Peake, 22 Vet. App. 128 (2008).  

The Board also concludes VA's duty to assist has been satisfied.  The Veteran has identified VA outpatient treatment records and they have been obtained.  The Veteran has not referenced outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.  

The duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the Veteran.  Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not show the current state of the Veteran's disability, a VA examination must be conducted.  Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).  The Veteran underwent VA examinations in November 2006 and December 2011.  A VA examination addendum opinion was provided in February 2012.  

Concerning those examinations, when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate.  Barr v. Nicholson, 21 Vet. App. 303 (2007).  Here, the examination reports show that the examiners reviewed the Veteran's medical history, recorded his current complaints, and rendered appropriate diagnoses and opinions consistent with the remainder of the evidence of record.  The Board notes that the December 2011 VA examination did not include current blood pressure readings.  However, the examiner reviewed the most recent blood pressure reading obtained during VA treatment.  Thus, the failure to obtain blood pressure reading at the examination does not require remand where it is apparent that the examiner otherwise made sufficient findings to describe the current nature and severity of the service-connected disability.  

Finally, there is substantial compliance with the terms of the Board's October 2011 remand directive, which requested that VA record be obtained and the Veteran be examined.  Stegall v. West, 11 Vet. App. 268 (1998).  

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any error is harmless.  Mayfield v. Nicholson, 499 F.3d 1317 (Fed. Cir. 2007).

The Veteran asserts that a higher initial rating is warranted for hypertension.  He contends that because he encountered symptoms of hypertension in service while in a combat zone he should be entitled to at least a 10 percent rating.

Disability ratings 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 (West 2002); 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 ratings 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 (2012).  After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when assigning disability ratings.  38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  Where, as here, the question for consideration is the propriety of the initial rating, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required.  Fenderson v. West, 12 Vet. App. 119 (1999).  The effective date of the award of service connection is June 11, 2006.  

The Veteran's hypertension is rated 0 percent under the criteria for rating hypertensive vascular disease.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  Diagnostic Code 7101 provides a 10 percent rating for evidence showing diastolic pressure predominately 100 or more, or; systolic pressure predominately 160 or more; or as a minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent disability rating is provided for evidence of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  A 40 percent disability rating is provided for evidence of diastolic pressure predominantly 120 or more.  A 60 percent disability rating is provided for evidence of diastolic pressure predominantly 130 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).  

The evidence consists of the Veteran's service medical records, VA outpatient treatment records, and the results of VA examinations.  The evidence shows that the Veteran was diagnosed with hypertension in 2005 and was on medication to control hypertension from 2006 to 2011.  Numerous blood pressure readings are of record.  Since being diagnosed with hypertension and placed on medication, his diastolic pressure has never been 100 or more.  Moreover, his systolic pressure has never been 150 or more.  

Since the effective date of service connection, examples of blood pressure readings are as follows, 131/69 in August 2006, 146/83 in September 2006, 110/80 during the VA examination in November 2006, 120/62 in October 2007, 125/62 in September 2008, 116/67 in December 2009, and 137/72 in August 2011.  While blood pressure readings were not conducted during the examination in December 2011, the examiner, in the February 2012 addendum reviewed the current blood pressure readings and characterized the disability as mild and that it no longer required continuous medication for control.  

The evidence does not show a disability manifested by diastolic pressure predominately 100 or more, or; systolic pressure predominately 160 or more.  The Board acknowledges that the Veteran was taking blood pressure medication from 2006 to 2011.  Therefore, the Board has reviewed the record for evidence as to whether he had a history of diastolic pressure predominantly 100 prior to requiring continuous medication for control.  The evidence, however, does not show a history of diastolic pressure of 100.  On examination in March 2002, blood pressure was 128/78 and when examined in April 2005, his blood pressure was 134/70.  

Therefore, the Board finds that at no time since the effective date for the grant of service connection has hypertension met the criteria for a 10 percent or higher rating.  In making this determination, the Board has considered the Veteran's contention that a compensable rating is warranted because he had hypertension while serving in a combat zone.  However, disability ratings are not based on the circumstances of service but rather are based on the criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 C.F.R. Part 4 (2012).

Finally, the Board must consider whether this case warrants referral for extraschedular consideration.  With regard to extraschedular consideration, the threshold determination is whether the disability picture presented in the record is adequately contemplated by the rating schedule.  Extraschedular consideration involves a three step analysis.  First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology.  If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required.  There is no need to go to the second and third steps, and the analysis stops.  Thun v. Peake, 22 Vet. App. 111 (2008).

The schedular criteria reasonably describe the Veteran's disability level and symptomatology of the Veteran's hypertension.  For the majority of the period on appeal, the Veteran's hypertension required medication for its control.  At present, no medication is required and it has been characterized as mild.  Diagnostic Code 7101 contemplates the Veteran's symptoms.  Therefore, a schedular evaluation is adequate and no referral is required.  The evidence also does not show marked interference with employment or frequent hospitalizaiton due to hypertension.

Accordingly, the Board finds that referral for consideration for an extraschedular rating of hypertension is not warranted.  38 C.F.R. § 3.321(b) (2012); Thun v. Peake, 22 Vet. App. 111 (2008).


ORDER

Entitlement to an initial compensable disability rating for hypertension is denied.  



____________________________________________
HARVEY P. ROBERTS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs