Citation Nr: 1300710	
Decision Date: 01/08/13    Archive Date: 01/16/13

DOCKET NO.  06-37 629	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUE

Entitlement to an initial compensable rating for hypertension. 


REPRESENTATION

Appellant represented by:	Veterans of the Vietnam War, Inc.


WITNESSES AT HEARING ON APPEAL

Appellant and his wife


ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel


INTRODUCTION

The Veteran served on active duty from December 1973 to December 1995. 

These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Hartford, Connecticut.  


FINDING OF FACT

The Veteran's hypertension has not manifested with diastolic pressure predominantly 100 more, or systolic pressure predominantly 160 or more, during the initial rating period.


CONCLUSION OF LAW

The criteria for a compensable rating for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7101 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Assist and Notify

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).

The Veteran's increased rating claim arises from his disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, and additional notice is not required and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is needed under VCAA.

As to VA's duty to assist, the RO associated the Veteran's VA treatment records with the claims file.  The Veteran has additionally submitted private treatment records.  

The Board notes that the Veteran's most recent examination was in May 2009.  The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted.  VAOPGCPREC 11-95.  Here, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's hypertension since that examination.  

The Board finds that VA has secured all available and identified pertinent in-service and post-service evidence.  While the Board's May 2011 remand directed the RO to obtain and associate with the record additional VA and non-VA treatment records, only additional VA treatment records were obtained.  The Veteran did not provide VA with any information or authorization to request additional records.  Therefore, the Board finds that there was substantial compliance with the Board remand directions and VA adjudication of the current claim may go ahead without these records.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008)). 

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this claim.  Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002).




II.  Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  However, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. 

The February 2006 rating decision granted service connection for the hypertension with an initial noncompensable rating, effective in February 2005, the date of the Veteran's claim.  

Under the applicable rating criteria, a 10 percent disability rating is warranted for diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or, minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  38 C.F.R. § 4.104, DC 7101.  A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  Id. 

The Veteran is taking anti-hypertension medication.  

He submitted treatment records from the U.S. Coast Guard Hospital in New London, Connecticut from April 2003 to April 2005.  The highest systolic reading was 128, and the highest diastolic reading was 84.  

The Veteran's blood pressure reading was 124/90 times three on January 2006 VA examination.  The Veteran's hypertension was noted to have been well controlled on current medications.  The Veteran's blood pressure reading was 140/72 times three on May 2009 VA examination.  

At his DRO hearing in February 2007, he testified that his current blood pressure is usually about 130/85-90.

VA treatment records dated in February 2011 noted blood pressure readings of 130/81 and 129/83.  

The evidence shows that while the Veteran requires continuous medication to control his hypertension, it has not manifested either currently or historically, by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more.  Thus, the Board finds the Veteran's hypertension has more nearly approximated the assigned noncompensable rating for the entire initial rating period.  38 C.F.R. §§ 4.1, 4.7, 4.31, 4.104, DC 7101.  The benefit sought on appeal is denied. 

Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116. 

The schedular evaluation in this case is adequate.  Ratings in excess of that assigned are provided for certain manifestations of the service-connected disorder but the medical evidence reflects that those manifestations are not present in this case.  The examiners who conducted the January 2006 and May 2009 VA examinations noted that the Veteran's hypertension did not result in any functional limitation.  The Veteran has not required hospitalization due to the service-connected disability, and marked interference of employment has not been shown.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 


ORDER

Entitlement to an initial compensable rating for hypertension is denied.




____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs