Citation Nr: 1301670 Decision Date: 01/15/13 Archive Date: 01/23/13 DOCKET NO. 99-08 912A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New York, New York THE ISSUES 1. Entitlement to an initial disability rating in excess of 20 percent for service-connected hypertension, to include whether a separate, compensable rating is warranted for headaches associated therewith. 2. Entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disability. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A.J. Turnipseed, Counsel INTRODUCTION The Veteran served on active duty from July 1979 to December 1979. This matter comes before the Board of Veterans' Appeals (Board) from a March 1994 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) above. By way of procedural background, review of the record reveals that the Veteran was awarded service connection for hypertension in a March 1995 rating decision, for which an initial 10 percent disability rating was assigned, effective March 18, 1993. The Veteran submitted a timely notice of disagreement and substantive appeal as to the issue of entitlement to an increased rating for service-connected hypertension, thereby perfecting an appeal as to that issue. A subsequent rating decision in March 1995 increased his disability rating to 20 percent, effective August 19, 1994. However, in September 1998, the RO proposed to reduce the Veteran's 20 percent disability rating, and such reduction was implemented in a December 1998 rating decision. The Veteran disagreed with the propriety of the reduction and ultimately perfected an appeal as to that issue. The reduction issue came before the Board in August 2005, at which time it was remanded for further development. Thereafter, in September 2008, the RO restored the 20 percent disability rating as a full grant of the benefit sought on appeal as to the restoration issue. Accordingly, the issue of restoration of a 20 percent disability rating for service-connected hypertension is no longer in appellate status. Moreover, as a result of the restoration, the Veteran's service-connected hypertension is evaluated as 20 percent disabling throughout the appeal period. The issue of entitlement to a higher initial disability rating for service-connected hypertension remains on appeal. This issue has been remanded by the Board on several occasions in order to afford the Veteran an adequate VA examination to evaluate the severity of his service-connected hypertension disability. See Board Remands dated April 2009, July 2010, and April 2012. In its April 2012 decision, the Board determined that the issue of entitlement to TDIU had been raised by the record and, thus, is part of the increased rating claim on appeal, as reflected on the first page of this decision. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Likewise, while the Veteran has not perfected an appeal as to the issues of entitlement to compensable disability rating for headaches, the Board notes that evaluating the appropriate rating assignable to the Veteran's service-connected hypertension includes consideration of whether separate ratings are warranted for any disabilities associated therewith. In this case, the evidence suggests that the Veteran experiences headaches in conjunction with and/or as a result of his service-connected hypertension. Accordingly, the Board finds that the filing of a timely substantive appeal is waived with respect to the headache claim, and the Board assumes jurisdiction over that issue, as reflected on the first page of this decision. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009); Gonzalez-Morales v. Principi, 16 Vet. App. 556, 557-58 (2003). In this regard, as discussed in detail below, the Board finds there is sufficient evidence of record upon which to grant a separate rating for migraine headaches associated with service-connected hypertension. However, for reasons discussed below, the Board finds that the instructions provided in the April 2012 Board remand have not been substantially complied with, thereby necessitating another remand. Therefore, the Board will discuss the merits of the issue of entitlement to a separate rating for headaches associated with service-connected hypertension, while entitlement to an increased rating for service-connected hypertension will be discussed in the Remand portion of this decision. Because the issue of entitlement to TDIU is closely tied with the increased rating claim on appeal, the Board finds that the two issues are inextricably intertwined and that adjudication of the TDIU issue must be deferred. See Parker v. Brown, 7 Vet. App. 116 (1994); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (issues are "inextricably intertwined" when a decision on one issue would have a "significant impact" on a Veteran's claim for the second issue). In a VA medical treatment note dated in August 2010, the Veteran indicated that he believed one of the medicines he took for hypertension caused erectile dysfunction. This matter is referred to the RO/AMC for appropriate action. Accordingly, the issues of entitlement to an initial disability rating in excess of 20 percent for service-connected hypertension and entitlement to TDIU are addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The lay and medical evidence of record raises a reasonable doubt as to whether the Veteran experiences headaches as a result of or in conjunction with his service-connected hypertension. The evidence of record does not establish that the headaches are manifested by prostrating attacks or affect his daily activities. CONCLUSION OF LAW Resolving all doubt in favor of the Veteran, the schedular criteria for a separate, noncompensable rating for migraine headaches associated with service-connected hypertension have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). Proper VCAA notice 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). In Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), the United States Court of Appeals for Veterans Claims (Court) held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include: 1) Veteran status; 2) existence of a disability; 3) a connection between the Veteran's service and the disability; 4) degree of disability; and 5) effective date of the disability. In Pelegrini v. Principi, 18 Vet. App. 112 (2004), the Court held that a VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on the claim for VA benefits. In the present case, the unfavorable AOJ decision that is the basis of this appeal was already decided and appealed prior to the enactment of the current section 5103(a) requirements in 2000. The Court acknowledged in Pelegrini that where, as here, the § 5103(a) notice was not mandated at the time of the initial AOJ decision, the AOJ did not err in not providing such notice. Rather, the appellant has the right to a content complying notice and proper subsequent VA process. Pelegrini, 18 Vet. App. at 120. Review of the record reveals that, in May 2002 and September 2005, the RO sent the Veteran a letter advising him of the evidence and information necessary to substantiate an increased rating claim, as well as his and VA's respective responsibilities in obtaining such evidence and information. The Board notes that neither letter informed the Veteran of the information and evidence necessary to establish a disability rating and an effective date in accordance with Dingess/Hartman, supra. However, the Board finds no prejudice to the Veteran in this regard, as the RO will address these matters in effectuating the grant of a separate of entitlement awarded in the decision herein. In this regard, the Board also notes that the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claim, as he has been asked to submit evidence and information in support of his claim and given ample time to respond. As such, the Board finds that the Veteran has been provide all required notice. Relevant to the duty to assist, the Board finds that all relevant evidence has been been obtained and considered, and the Veteran has not identified any additional, outstanding records that he wishes to be considered in his appeal. The Board notes that the Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and it is apparent that the RO reviewed all evidence in the paperless claims file as well. Therefore, the Board will proceed with review of the appellant's claim based upon all relevant evidence. Thus, the Board finds that VA has fully satisfied the duty to assist. In the circumstances of this case, additional efforts to assist or notify the Veteran in accordance with the VCAA would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements of the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (remands which would only result in unnecessarily imposing additional burdens on VA with no benefit flowing to the Veteran are to be avoided). VA has satisfied its duty to inform and assist the Veteran at every stage in this case, at least insofar as any errors committed were not harmful to the essential fairness of the proceeding. Therefore, the Veteran will not be prejudiced as a result of the Board proceeding to the merits of his claims. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Consideration must be given to staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). As noted in the Introduction, the Veteran has filed a claim seeking a rating higher than 20 percent for service-connected hypertension which will be addressed in detail in the Remand portion of this decision. However, review of the record reveals that the Veteran experiences headaches in conjunction with and/or as a result of his service-connected hypertension. Therefore, the Board will consider whether a separate, compensable disability rating is warranted for headaches associated with hypertension. The pertinent evidence of record includes VA examination reports dated August 1998, July 2009, August 2010, March 2011, and July 2012, as well as various VA treatment records. The evidence contains information with respect to the severity of the Veteran's headaches, and there is no indication or allegation that the VA examinations were inadequate. Therefore, the evidence mentioned above are considered the most competent, credible, and probative evidence of record with respect to the severity of the headaches associated with the Veteran's service-connected hypertension disability. The Veteran has consistently reported that he experiences headaches when his blood pressure is elevated. See March 1997 statement from the Veteran and VA examination reports dated August 1998, July 209, August 2010, March 2011, and July 2012. He has asserted that the headaches occur in the front of his head but occasionally occur at the top of his head and in his temples. See statements from the Veteran dated March 1997 and August 2003. He has also asserted that the headaches are worse when he bends down and that his medication provide some relief. See statements from the Veteran dated August and October 2003. In addition to the lay evidence of headaches associated with the Veteran's service-connected hypertension, the medical evidence of record suggests that the Veteran's headaches are related to his service-connected hypertension. Indeed, when asked if the Veteran had distinct periods of identifiable degrees of disability, the physician who conducted the July 2012 VA examination stated that the Veteran reported having headaches during such distinct periods. See July 2012 VA examination report. In sum, the Board finds the lay and medical evidence of record raises a reasonable doubt as to whether the Veteran's headaches are associated with his service-connected hypertension. As such doubt is resolved in favor of the Veteran, the Board finds that a separate rating is warranted for headaches associated with service-connected hypertension. Migraine headaches are evaluated pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8100 (2012), which provides that a noncompensable (zero percent) disability rating is assigned for less frequent attacks than for a 10 percent rating. A 10 percent rating is warranted for characteristic prostrating attacks averaging one in 2 months over the last several months, while a 30 percent disability rating is assigned for migraine headaches with characteristic prostrating attacks occurring on an average of once a month over the last several months. A 50 percent rating is assigned for migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. In determining whether the Veteran experiences the type and frequency of prostrating attacks of migraine headaches necessary for a higher rating under Diagnostic Code 8100, the Board observes that the neither the rating criteria nor the Court has defined "prostrating." Cf. Fenderson v. West, 12 Vet. App. 119 (1999) (in which the Court quotes Diagnostic Code 8100 verbatim but does not specifically address the matter of what is a prostrating attack.) However, by way of reference, the Board notes that "prostration" is defined as "extreme exhaustion or powerlessness." See Dorland's Illustrated Medical Dictionary 1367 (28th ed. 1994). With respect to the severity of the Veteran's headaches, the Board notes that, while the Veteran has reported having headaches when his blood pressure is elevated, he has not reported how often the headaches occur or if the headaches affect his daily activities. In fact, despite the consistent report of headaches with elevated blood pressure, the Veteran has reported that his medication provides some relief. There is no lay or medical evidence showing that his headaches are manifested by characteristic prostrating attacks to any degree, including attacks that average one in two months over the last several months or occur more often. Treatment records dated in February 2011 noted no indication of headaches. An August 2010 report noted headaches, pressure on the back of the eyes, and drowsiness when his pressure was elevated. This evidence does not more nearly approximate the criteria for a compensable, 10 percent rating under DC 8100 which requires a showing of prostrating headaches. No headache reported in the record meets this description. Therefore, the Board finds the Veteran's headaches more nearly approximate the level of disability contemplated by the noncompensable rating provided under DC 8100, i.e., less frequent attacks than those contemplated by the 10 percent schedular rating. Therefore, because the evidence of record does not show the symptomatology required for a compensable evaluation, the Board finds that a noncompensable disability rating is warranted for headaches associated with service-connected hypertension under DC 8100. In making this determination, all reasonable doubt has been resolved in favor of the Veteran. See Gilbert, supra. The Board has considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). An extra-schedular rating is warranted if a case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that it would be impracticable to apply the schedular standards. Analysis under this provision involves a three-step inquiry, and extra-schedular referral is necessary only if analysis under the first two steps reveals that the rating schedule is inadequate to evaluate the claimant's disability picture and that such picture exhibits such related factors as marked interference with employment or frequent periods of hospitalization. Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). In this case, the manifestations of the Veteran's headaches are fully contemplated by the schedular rating criteria, as all of his symptoms are contemplated by the rating criteria discussed above. As such, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and the rating schedule is adequate to evaluate his disability picture. Therefore, it is unnecessary to discuss the second prong, i.e., whether there are related factors such as marked interference with employment or frequent periods of hospitalization. See id. However, the Board notes that there have been no hospitalizations for the Veteran's headaches during the course of the appeal. Further, the percentage ratings are considered adequate to compensate for considerable loss of working time from exacerbations proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. As such, referral for consideration of an extra-schedular rating is not necessary. See Thun, 22 Vet. App. at 115-16. ORDER A separate noncompensable disability rating for headaches associated with service-connected hypertension is granted, subject to the laws and regulations governing monetary awards. REMAND As noted above, the Veteran seeks a disability rating higher than 20 percent for service-connected hypertension. The Veteran's increased rating claim has been remanded by the Board on several occasions in order to afford the Veteran an adequate VA examination to evaluate the severity of his service-connected hypertension disability. See Board Remands dated April 2009, July 2010, and April 2012. Indeed, because regulations require that hypertension be confirmed by readings taken two or more times on at least three different days, the Board requested that the VA examination include blood pressure readings taken on at least three different days. The Board also requested that the examiner discuss whether there is evidence of any distinct periods of identifiable degrees of disability, which included a discussion of whether diastolic pressure was predominately 100, 110, 120, 130, or more, whether systolic pressure was predominately 160, 200, or more, when the periods occurred and the severity of the disability during the periods. See Id. Despite requesting that the Veteran be afforded an adequate VA examination to evaluate his service-connected hypertension disability, review of the record reveals that the Veteran has not, yet, been afforded an adequate examination. Indeed, while the Veteran was afforded VA examinations in April 2006, July 2009, August 2010, December 2011, July 2012, and November 2012, none of the examinations contained blood pressure readings taken two or more times on at least three different days or an adequate discussion of whether there are distinct periods of disability. In this regard, the Board notes that the July 2012 VA examiner noted that there were distinct periods of disability manifested by headaches; however, the examiner did not state when the distinct periods occurred or provide any additional information regarding what symptoms the distinct periods are manifested by. The U.S. Court of Appeals for Veterans Claims has held that compliance by the Board or the RO with remand instructions is neither optional nor discretionary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Therefore, because the Veteran has not been afforded an adequate VA examination to evaluate the severity of his service-connected hypertension disability, the Board finds that the instructions of the April 2012 VA examination were not fully complied with, necessitating another remand. In view of the foregoing, to ensure that VA has met its duty to assist the claimant in developing the facts pertinent to the claim, and to ensure full compliance with due process requirements, the case is REMANDED for the following development: 1. Update the Veterans claims folder with VA dated from April 2011 forward. Ask the Veteran to provide the names of any private physicians he has seen for his service-connected disabilities since November 2011, and associate those records with the claims folder. 2. Schedule the Veteran for a new VA hypertension examination, including two additional appointments on separate days to take the Veteran's blood pressure. The entire claims file must be made available to the VA examiner. Any indicated tests should be accomplished. Advise the examiner that the standard Disability Examination Worksheet for hypertension should not be used. The VA examiner should verify that the Veteran is scheduled for at least two blood pressure readings on three separate days, including the day of the examination, as warranted for an adequate medical opinion. The examiner should note whether there is evidence of any distinct periods of identifiable degrees of disability (i.e. diastolic pressure predominantly 100, 110, 120, 130, or more, or systolic pressure predominantly 160, 200, or more). If the examiner finds there are distinct periods of identifiable degrees of disability, the examiner should expressly identify those periods and discuss the severity of the Veteran's hypertension during those periods. The examiner should determine the effects of the Veteran's service-connected hypertension and hypertensive heart disease on his ability to obtain and maintain employment. The examiner is asked to obtain a complete occupational history from the Veteran, if possible, and to provide an opinion as to whether, following a review of the claims file and physical examination of the Veteran, the Veteran's service-connected disabilities, alone or in combination, render him unable to secure or follow a substantially gainful occupation (more than marginal employment). The examiner should not consider the effects of age or the Veteran's non-service connected disabilities when providing the opinion. A complete rationale must be provided for any opinion expressed. 3. After the above examination is completed, review the report to determine that at least two blood pressure readings were conducted on three different days; that the examiner thoroughly discussed any distinct periods of identifiable degrees of disability; and that the examiner thoroughly discussed the Veteran's employability. If the examination is inadequate in any way, a new examination should be scheduled and then reviewed. 4. Thereafter, the increased rating and the inextricably intertwined TDIU issues on appeal should be readjudicated. If the benefits sought on appeal are not granted to the Veteran's satisfaction, the Veteran and his representative should be provided with a supplemental statement of the case and afforded the appropriate opportunity to respond thereto. The case should then be returned to the Board for further appellate consideration, if otherwise in order. The Board intimates no opinion as to the ultimate outcome of this case. The Veteran need take no action unless otherwise informed, and he has the right to submit additional evidence and argument on the matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012). ______________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs