Citation Nr: 1300600 Decision Date: 01/08/13 Archive Date: 01/16/13 DOCKET NO. 10-03 122 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUE Entitlement to an initial compensable evaluation for hypertension. REPRESENTATION Appellant represented by: Virginia Department of Veterans Services ATTORNEY FOR THE BOARD C.A. Skow, Counsel INTRODUCTION The Veteran served on active duty from August 1982 to August 2006. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2009 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which assigned an initial noncompensable evaluation for hypertension. In January 2010, the Veteran indicated a desire to appear at a hearing before a member of the Board. He thereafter, in December 2012, withdrew his hearing request. In August 2012, the RO received additional evidence from the Veteran without a waiver of consideration by the agency of original jurisdiction (AOJ). This evidence was received at the Board in October 2012. The Board finds that this evidence is not pertinent to the claim before Board as it relates to evaluations and treatment of sleep apnea. While it includes a couple blood pressure readings, and notes history of hypertension treated with medication, the medical evidence in regards to hypertension is cumulative and redundant of medical findings considered by the AOJ on the prior adjudication. Therefore, referral of this evidence to the AOJ for consideration is not warranted. 38 C.F.R. § 20.1304 (2012) Also, although the Veteran perfected an appeal of the claim for service connection for sleep apnea, the Board notes that the RO granted this claim prior to certification of the appeal to the Board, and the Veteran has not expressed disagreement with either the assigned disability rating or effective date. As such, there is no controversy before the Board in regard to the claim for sleep apnea. Lastly, in addition to the paper claims files, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either substantively duplicative of the evidence in the paper claims file or are irrelevant to the issue on appeal. FINDING OF FACT Throughout the appeal period, the Veteran required medication for control of his hypertension, diastolic pressure readings were predominantly less than 100, and systolic pressure readings were predominantly less than 160; however, the record also reflects a past history of diastolic pressure predominantly 100 or more. CONCLUSION OF LAW The criteria for an initial 10 percent evaluation for hypertension are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As a preliminary matter, the Board notes that the Veteran has been provided all required notice, to include notice pertaining to the disability-rating and effective-date elements of the claim. In addition, the evidence currently of record is sufficient to substantiate entitlement to the benefit sought. Therefore, no further development is required under 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2012) or 38 C.F.R. § 3.159 (2012). Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Hypertension warrants a 10 percent rating where diastolic pressure is predominately 100 or more; systolic pressure predominately 160 or more, or if there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control. A 20 percent disability evaluation for hypertension requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.101, Diagnostic Code 7101. Analysis Having carefully considered all the evidence of record, the Board finds that the evidence supports the assignment of a 10 percent evaluation for hypertension, and no more. A review of the record shows that the Veteran has been continuously treated with antihypertensive medication, Lisinopril, since he was initially diagnosed with hypertension 20 years ago. The schedule provides that a minimum compensable evaluation of 10 percent is warranted where there is a history of diastolic pressure predominately 100 or more and the individual requires continuous medication for control. Although the record shows that the Veteran's diastolic pressure has remained predominately less than 100 throughout the period of this appeal, service treatment records reflect a past history of diastolic pressure predominately 100 or more. However, an evaluation in excess of 10 percent is not warranted because diastolic pressure readings are predominantly less than 100 and systolic pressure readings are predominantly less than 160 during the appeal period. Report of VA examination dated in August 2008 reflects three blood pressure readings as: 120/70; 116/68; and 122/72. These findings do not more nearly reflect the criteria for an evaluation in excess of 10 percent, which requires that diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. While the Veteran is competent to report that his disability is worse than presently evaluated, whether a disability meets the schedular criteria for the assignment of a higher evaluation is a factual determination by the Board based on the Veteran's complaints coupled with the medical evidence. Here, although the Veteran may believe that he meets the criteria for the next higher disability rating, the medical findings do not meet the schedular requirements for a higher evaluation, as explained and discussed above. The Board has concluded that the medical evidence, prepared by skilled professionals, is more probative of the degree of disability. Furthermore, there is no basis for a staged rating. Neither the lay nor the medical evidence reflects that the disability met the criteria for rating in excess of 10 percent at any time during the appeal period. As such, the Board finds that a uniform disability rating is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Accordingly, the claim for an initial 10 percent evaluation, and no more, for hypertension is granted. Lastly, the Board has also considered whether the case should be referred to the Director of the VA Compensation and Pension Service for extra-schedular consideration under 38 C.F.R. § 3.321(a). In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). In this case, the record reflects that the manifestations of the disability are specifically contemplated by the schedular criteria. Accordingly, the Board has concluded that referral of this case for extra-schedular consideration is not in order. Thun v. Peake, 22 Vet. App. 111, 115 (2008). ORDER A 10 percent initial evaluation, and no more, for hypertension is granted. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs