Citation Nr: 1303828 Decision Date: 02/04/13 Archive Date: 02/08/13 DOCKET NO. 07-16 648 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Wilmington, Delaware THE ISSUE Entitlement to an initial compensable evaluation for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D.J. Drucker, Counsel INTRODUCTION The Veteran had active military service from February 2001 to February 2005 that included foreign service in Kosovo and Iraq. This matter initially came to the Board of Veterans' Appeals (Board) on appeal from a March 2005 rating decision of the Department of Veterans Affairs (VA) in Nashville, Tennessee, that granted service connection for essential hypertension and assigned an initial noncompensable disability rating, effective from February 7, 2005, and denied service connection for seasonal allergies. The Veteran perfected an appeal as to the assigned disability rating for hypertension and denial of his service connection claim. Jurisdiction of the Veteran's case is currently with the VA RO in Wilmington, Delaware. In a July 2010 decision, the Board granted the Veteran's claim for allergic rhinitis. At that time, the Board remanded his claim for an initial compensable evaluation for essential hypertension to the RO for further development. FINDING OF FACT Resolving all doubt in the Veteran's favor, hypertension requires the regular use of prescribed medications with a history of substantial increased blood pressure readings; it has not been manifested by objective evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more. CONCLUSION OF LAW Resolving all reasonable doubt in the Veteran's favor, the schedular criteria for an initial 10 percent rating, but no higher, for hypertension, have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act (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 and 3.326(a) (2012). In light of the fully favorable disposition herein, further discussion of the VCAA is unnecessary here. II. Factual Background and Legal Analysis Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the appellant or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). Rather, the analysis below will focus specifically on what the evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122, 129 (2000) (noting that the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant). The present appeal involves the Veteran's claim that the severity of his service-connected hypertension disability warrants an initial compensable disability rating. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). See also 38 C.F.R. §§ 4.1, 4.2. As such, the Board has considered all of the evidence of record. However, the most probative evidence of the degree of impairment consists of records generated in proximity to and since the claim on appeal. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted that where, as here, the question for consideration is propriety of the initial evaluation assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of a "staged rating" is required. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board observes that the words "slight," "moderate," and "severe," are not defined in the Rating Schedule. Rather than applying a mechanical formula, the Board must evaluate all of the evidence to the end that its decisions are "equitable and just." 38 C.F.R. § 4.6 (2012). It should also be noted that use of descriptive terminology such as "mild" by medical examiners, although an element of evidence to be considered by the Board, is not dispositive of an issue. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 U.S.C.A. § 7104(a) (2012); 38 C.F.R. §§ 4.2, 4.6. Regulations require that where there is a question as to which of two evaluations is to 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. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in 38 C.F.R. § 3.321 an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). Competent medical evidence means evidence provided by a person who is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. Competent medical evidence may also mean statements conveying sound medical principles found in medical treatises. It also includes statements contained in authoritative writings, such as medical and scientific articles and research reports or analyses. 38 C.F.R. § 3.159(a)(1). Competent lay evidence means any evidence not requiring that the proponent have specialized education, training, or experience. Lay evidence is competent if it is provided by a person who has knowledge of the facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a)(2). The Veteran's statements describing the symptoms of his service-connected disability are deemed competent evidence. However, these statements must be considered with the clinical evidence of record and in conjunction with the pertinent rating criteria. As noted, in the March 2005 rating decision, the RO granted service connection for essential hypertension that was assigned an initial non-compensable disability rating under Diagnostic Code 7101. 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, the rating schedule provides for a 10 percent evaluation for diastolic pressure predominantly 100 or more, or; systolic pressure of 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. Id. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. Id. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. Id. VA medical records and examination reports, dated from January 2005 to March 2010, are of record. A January 2005 VA general medical examination report reflects blood pressure readings of 170/82 (lying down), 134/78 (sitting), and 157/89 (standing). Diagnoses included a history of elevated blood pressure and essential hypertension. February and March 2005 VA outpatient records show blood pressure readings of 156/86 and that the Veteran had hypertension that was diagnosed but not treated. In May 2005, his blood pressure readings were 138/93 and 144/81. When seen in the VA outpatient clinic in June 2005, the Veteran's blood pressure reading was 147/85. The clinical impression was hypertension-diet controlled. A September 2005 VA examination report reflects that the Veteran's blood pressure readings were 142/90, 144/92, and 142/92. The Veteran currently attended school and had no current employment (problem) or disabilities from the hypertension. According to an October 18, 2005 VA record, the examiner noted that the Veteran's blood pressure was 140/84 and was always acceptable. The Veteran did not have any restriction while working out. However, in November 2005 and during 2006, the VA medical records reveal that the Veteran had uncontrolled hypertension. On November 8, 11, and 21, 2005, his blood pressure readings were 155/91, 158/91, and 146/94, respectively. When seen in the VA outpatient clinic on November 21, 2005, the Veteran complained that his blood pressure was constantly elevated. HCTZ was prescribed for his daily use. On January 9, 2006, the Veteran's blood pressure reading was 149/83 and new medication was prescribed for his hypertension. A January 19, 2006 pulmonary consultation record includes a blood pressure reading of 140/88. When seen on January 26, 2006, the Veteran's blood pressure was 128/88 and the assessment included hypertension that was well controlled on Dyazide. An April 20, 2006, VA medical record reflects blood pressure readings of 132/82, 135/76, and 135/77. The Veteran took Dyazide daily to control it. The Veteran failed to report for a VA examination (for respiratory diseases) scheduled in April 2006. A May 31, 2006, VA clinical record indicates that the Veteran's hypertension was uncontrolled. It reflects that on April 20, 2006, his blood pressure readings were 135/76 and 134/91. On May 31st, his prescribed medications were reviewed and HCTZ 25/Triamterene was indicated as being used to control his blood pressure. When seen in the VA outpatient clinic on December 15, 2006, the Veteran's blood pressures readings were 138/83 and 140/100. Uncontrolled hypertension was diagnosed and Felodipine (Plendil) was added to his prescribed daily medications for blood pressure control. In his May 2007 substantive appeal, the Veteran indicated that he took two medications for his hypertension and that his blood pressure was still high. More recent VA medical records, dated in May 2008 and June 2009, show that the Veteran's recorded blood pressure was 126/80 and 126/88, respectively. It was noted that he worked as a budget analyst for the Environmental Protection Agency (EPA). His prescribed medications included Maxzide and Amlodipine for hypertension. In June 2009, he was advised to continue taking his prescribed hypertension medications. In a February 2011 letter, the Veteran was advised that VA would schedule him for a VA examination in connection with his claim. He was scheduled for examinations on February 18th and 28th 2011 but failed to report for both examinations and did not request that either be rescheduled. In October and December 2011 letters, the RO advised the Veteran of his failure to report for the examinations and requested that he verify his current address or the VA medical facility at which he was currently treated, but he did not respond. The Veteran was scheduled for another examination in January 2012 but cancelled it, according to information received from the VA medical facility. Regulations provide that when entitlement or continued entitlement to a benefit cannot be established or confirmed without a current VA examination or re-examination, and a claimant, without good cause (i.e., the illness or hospitalization of the claimant and death of an immediate family member), fails to report for such examination or re-examination, action shall be taken in accordance with paragraphs (b) or (c) of 38 C.F.R. § 3.655, as appropriate. 38 C.F.R. § 3.655(a) (2012). When the missed examination is scheduled in conjunction with a claim for increase, as is the case here, the claim shall be denied. 38 C.F.R. § 3.655(b) (2012). In this matter, the Veteran failed to report for three VA examinations scheduled to take place in February 2011 and January 2012 and he did not submit any reasons for his failure to report for the scheduled examinations However, the Board cannot ignore the available VA medical records showing that the Veteran is now using prescribed medications for hypertension, and as there is an established history of a significant increase in blood pressure readings, the criteria for an initial 10 percent evaluation for hypertension are nearly approximated. See 38 C.F.R. § 4.7. The Board does note, however, the total absence of any findings of diastolic pressure of 110 or more, or systolic pressure of 200 or more, let alone predominantly. Accordingly, the criteria for an even higher initial evaluation have not been met. As such, an initial 10 percent rating, but no more, is warranted for the Veteran's service-connected hypertension. However, a higher rating is not warranted, as there is no objective evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more. Again, an initial 10 percent rating, but no higher, is warranted for the Veteran's service-connected hypertension since February 7, 2005. The benefit of the doubt has been resolved in the Veteran's favor to this limited extent. The Board has also considered whether the Veteran's hypertension disability presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extra-schedular rating is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). 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. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability levels and symptomatology, and provide for a greater evaluation for additional or more severe symptoms; thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluations are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted. See Rice v. Shinseki, 22 Vet. App. 447 2009). Here, the Veteran has told VA clinicians that he is employed as a budget analyst for the EPA. It has not been suggested that his hypertension disability precludes his employment. Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time. Finally, in view of the holding in Fenderson, and, based upon the record, the Board finds that at no time since the Veteran filed his original claim for service connection has the disability on appeal been more disabling than as currently rated under the present decision of the Board. ORDER An initial 10 percent rating, but no higher, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs