Citation Nr: 1302319 Decision Date: 01/22/13 Archive Date: 01/31/13 DOCKET NO. 10-29 581 ) DATE ) ) On appeal from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida THE ISSUE Entitlement to a compensable rating for hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD Matthew Blackwelder, Counsel INTRODUCTION The Veteran had active military service from January 1983 to December 1987 and from December 1990 to May 1991. This appeal comes to the Board of Veterans' Appeals (Board) from a March 2009 rating decision. The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but also her file on the "Virtual VA" system to insure a total review of the evidence. FINDINGS OF FACT 1. The Veteran's service-connected hypertension is not, and has not been, manifested by either diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more. 2. The Veteran uses medication to control her hypertension, but she does not have a medical history of diastolic blood pressure that has been predominantly 100 or more. CONCLUSION OF LAW Criteria for a compensable rating for hypertension have not been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.104, Diagnostic Code (DC) 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected. Where entitlement to compensation already has been established and 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). However, where, as here, the question for consideration is propriety of the initial evaluations assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson, 12 Vet. App. at 126. In July 2008, the Veteran filed for service connection for hypertension. Service connection was granted and the Veteran has appealed the noncompensable rating which was assigned for her hypertension under 38 C.F.R. § 4.104, DC 7101. Under this Diagnostic Code, a 10 percent rating is assigned when diastolic pressure is predominantly 100 or more; when systolic pressure is predominantly 160 or more; or when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication to control her hypertension. A 20 percent rating is assigned when diastolic pressure is predominantly 110 or more; or when systolic pressure is predominantly 200 or more. The Board has reviewed service treatment records, private treatment records and VA treatment records in an effort to obtain a complete picture of the Veteran's blood pressure readings from her time in service to the present. The following chart records the blood pressure readings the Board noted in its review of the claims file. The blood pressure readings in which the diastolic pressure is 100 or more or the systolic pressure is 160 or more have been bolded: Date BLOOD PRESSURE Date BLOOD PRESSURE Date BLOOD PRESSURE June 1982 118/88 May 1983 140/84 June 1983 130/90, 150/100 Nov.1983 120/76 July 1984 130/60 Jan1985 130/80, 124/82 Feb. 1985 130/80 April 1985 110/68 May 1985 112/64, 110/64 Sept. 1985 130/94, 128/82 Nov. 1985 130/86, 122/78 Dec. 1985 136/74 Jan. 1986 122/80 Oct 1986 122/74, 126/70 Feb. 1987 150/90 Mar. 1987 126/84 June 1987 136/90 July 1987 126/86, 100/64, 124/82, 146/80, 124/82 October 1987 118/86, 122/80, 120/72, 118/88, 142/84, 165/90, 180/80, 185/85, 185/80, 155/80, 130/80 (treadmill testing) July 1988 124/82, 124/86, 122/88 January 1989 122/90 June 1989 150/100 July 1989 140/90 Aug 1989 136/90 October 1989: 148/98, 148/90, 150/98, 130/80,145/110, 150/88, 138/90, 140/100, 120/80, 140/80, 140/80, 143/93, 139/92, 136/91, 136/80, 150/100, 146/96, 146/92, 150/100, 139/91, 143/93, 139/92; this included a 5 day blood pressure test. Mar. 1990 124/78 Aug. 1990 128/86 January 1991 122/80 April 1991 140/90, 110/64 May 1991 132/78 June 1991 130/78, 124/82 August 1991 125/90 September 1991 120/76, 110/80 July 1992 150/100 September 1992 134.8/83.6 (average) June 1993 132/88 July 1993 128/80 November 1993 170/90 December 1993 144/92 January 1994 140/90, 126/82, 138/92 April 1994 140/100 May 1994 147/96, 159/86 October 1994 145/87, 132/84 Feb. 2000 142/96 May 2000 146/96 July 2000 152/82 Oct. 2000 138/82 Feb 2001 132/76 March 2001 118/78 April 2001 122/66 July 2001 130/84 September 2001 176/70 (sub-optimal control noted) Dec 2001 130/90, 140/80 Jan 2002 140/84 Feb 2002 170/90 Mar 2002 128/80 April 2002 150/90 July 2002 144/92 Aug 2002 172/100 Dec 2002 150/90 January 2003 170/90 Mar 2003 150/60, 150/80 June 2003 162/86 August 2003 160/80 November 2003 144/74 April 2004 142/80 May 2004 130/75, 150/80, 140/80 August 2004 140/76 November 2004 182/88 (off medication) March 2005 135/81 May 2005 136/69 June 2005 130/80 August 2005 110/70 Oct 2005 170/88 Dec 2005 190/96 January 2006 150/84 February 2006 179/82 (in hospital) March 2006 140/80, 120/70 April 2006 139/84 July 2006 149/90 December 2006 131/86 January 2007 153/80 May 2007 167/82 June 2007 159/76 July 2007 148/79 Aug. 2007 164/83 Sept. 2007 152/81 Oct. 2007 120/74, 161/75 Nov. 2007 143/73 Feb. 2008 146/81 March 2008 136/79 September 2008 130/70 December 2008 127/80 January 2009 131/72, 159/89, 137/82 February 2009 131/82 March 2009 140/76, 132/79 May 2009 126/72 August 2009 137/75 September 2009 137/75, 139/73 October 2009 133/82 Mar 2010 146/87, 148/77 The Board acknowledges that the Veteran's blood pressure has been elevated both during service and during the course of her appeal, and for this reason she has been diagnosed with hypertension. However, as noted, a compensable rating for hypertension generally requires that either diastolic pressure be predominantly 100 or more, or systolic pressure be predominantly 160 or more. VA regulations do not define the term "predominantly." Notably, in promulgating the current version of DC 7101, VA noted that blood pressure readings were variable and expressed a concern that an adjudicative decision could be based on "readings taken on a single, perhaps unrepresentative, day." 62 Fed. Reg. 65201, 65215 (Dec. 11, 1997). This speaks to a recognition that blood pressure readings vary from examination to examination so that each reading must be read in the context of the entire record. This policy fits with the term "predominant," which is synonymous with the term preponderate and is defined as "[h]aving greatest ascendancy, importance, influence, authority or force." WEBSTER'S II NEW COLLEGE DICTIONARY, p. 870 (1995). With this in mind, it is clear, as the Veteran's representative has acknowledged, that her diastolic pressure has not been predominantly 100 or more. Out of more than 150 blood pressure readings, the Veteran's diastolic pressure was over 100 only approximately nine times. Such findings therefore do not show predominance. The Board notes that four of those times were in October 1989 when the Veteran was placed on a five day blood pressure test. However, even then, more than twenty readings were taken in October 1989, but only four times was the Veteran's diastolic pressure 100 or more. Thus, even on that small sample the Veteran's diastolic pressure was not predominantly 100 or more. It is not disputed that the Veteran's hypertension is controlled by medication. However, medication alone does not merit a compensable rating. The readings have also failed to show that the Veteran's systolic pressure was predominantly 160 or more during the course of her appeal. As shown, out of more than 150 blood pressure readings, the Veteran's systolic pressure was predominantly 160 or more only nine times, and three of those occurred during a treadmill test. The Board endeavored to record as many blood pressure readings as it found in its review of the claims file, and given the volume of paper reviewed, it is possible that several blood pressure readings may have been missed. However, even if several readings, all of which showed readings of either diastolic pressure 100 or more or systolic pressure of 160 or more, were missed, the evidence would still fail to merit a compensable rating, since the vast majority of blood pressure readings do not show a compensable level of blood pressure. In December 2012, the Veteran' representative argued that the Veteran met the criteria for a compensable rating for hypertension. The representative stated that the evidence of record showed a systolic pressure was predominantly 160. However, as noted above, such a contention is simply not shown by the blood pressure readings that are of record. The representative also argued that the Veteran's doctor did not wait years for the Veteran to suffer through high blood pressure while attempting to control it using diet and exercise, but rather took swift action and placed the Veteran on medication. As such, the representative asserted that a compensable rating should be awarded based on a finding that the Veteran had a history of diastolic pressure predominantly 100 that now requires continuous medication for control. The Board has already recognized the Veteran's need for medication to control her hypertension. However, as shown above, the evidence of record simply does not establish diastolic pressure that has historically been 100 or more. As noted, reviewing blood pressure readings since as early as 1982, there has not even been a single month in which the Veteran's diastolic pressure was predominantly 100 or more. As noted, she did have four diastolic readings of 100 or more in October 1989, but that was out of approximately 20 readings. Accordingly, the Board finds the representative's argument to be without merit. As such, the criteria for a compensable rating for hypertension have not been met and the Veteran's claim is denied. Extraschedular Consideration The Board has also considered whether referral for consideration of an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. This means that initially there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. § 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See id. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's hypertension is specifically contemplated by the schedular rating criteria (38 C.F.R. § 4.104, Diagnostic Code 7101), and no referral for extraschedular consideration is therefore required. The schedular rating criteria specifically provides for disability ratings based on the level of blood pressure. Moreover, the schedular rating criteria specifically contemplate a situation such as the Veteran's in which medication is required to control hypertension. The Veteran has also failed to describe any side effects from her hypertension or from the medication used to treat it that have not been contemplated by the schedular rating criteria. As such, the schedular criteria contemplate the Veteran's level of disability and hypertension symptomatology, and the Board need not determine whether there is an exceptional disability picture that exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1). Accordingly, referral for consideration of an extraschedular rating is not warranted. The Board has also considered whether an inferred claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009) has been raised. It is unclear whether the Veteran is currently employed (although she was as of a VA examination in September 2009). However, at a VA examination in March 2009 it was specifically noted that the Veteran's hypertension did not affect her occupation. Thus, the Board finds that Rice is inapplicable since there is no evidence or argument that the Veteran is unemployable as a result of her service connected hypertension. II. Duties to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). In this case, the Veteran's claim for service connection for hypertension was granted. She then appealed the downstream issue of the rating that had been assigned. Under these circumstances, since the original claim was granted, there are no further notice requirements under the aforementioned law. As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained service treatment records and VA and private outpatient treatment records. The Veteran was also scheduled to testify at a hearing before the Board, but she failed to report to the scheduled hearing, and subsequently she requested that her appeal be forwarded to the Board. As such, the Veteran's hearing request is deemed to have been withdrawn. The Veteran was also provided with a VA examination, and there has been no allegation that the examination is in anyway inadequate. As described, VA has satisfied its duties to notify and assist, and additional development efforts would serve no useful purpose. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991); Sabonis v. Brown, 6 Vet. App. 426, 430 (1994). Because VA's duties to notify and assist have been met, there is no prejudice to the Veteran in adjudicating this appeal. ORDER A compensable rating for hypertension is denied. ____________________________________________ MARK W. GREENSTREET Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs