Citation Nr: 1304245	
Decision Date: 02/06/13    Archive Date: 02/19/13

DOCKET NO.  08-10 102	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Denver, Colorado


THE ISSUE

Entitlement to a disability rating in excess of 10 percent for service-connected hypertension.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

A.G. Alderman, Counsel


INTRODUCTION

The Veteran served on active duty from August 1952 to August 1972.

This case comes before the Board of Veterans' Appeals (Board) on appeal from a June 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Denver, Colorado.

The Veteran appeared and provided testimony before the undersigned Veterans Law Judge (VLJ) in August 2010.  A transcript of the hearing has been associated with the claims file.  The Board remanded this matter in October 2010 and February 2012 for further development, which has been substantially completed.

Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012).  38 U.S.C.A. § 7107(a)(2) (West 2002).


FINDING OF FACT

The hypertension results in diastolic pressure consistently below 110 and systolic pressure consistently below 200.


CONCLUSION OF LAW

The criteria for a rating greater than 10 percent for hypertension have not been met.  38 U.S.C.A. §§ 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7701 (2012).





REASONS AND BASES FOR FINDING AND CONCLUSION

Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim.  See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

For an increased-compensation claim, section 5103(a) requires, at a minimum, that the Secretary (1) notify the claimant that to substantiate a claim, the claimant must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment; (2) provide examples of the types of medical and lay evidence that may be obtained or requested; (3) and further notify the claimant that "should an increase in disability be found, a disability rating will be determined by applying relevant [DC's]," and that the range of disability applied may be between 0% and 100% "based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment."  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated on other grounds sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009).  

The RO provided the appellant pre-adjudication notice by letter dated in March 2007.  

VA also has a duty to assist with the development of facts pertinent to the appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c).  The Board finds that the duty to assist has been satisfied.  The RO has obtained VA and private treatment records and afforded the Veteran the opportunity to present testimony before the Board.  Per the Board's February 2012 remand, VA attempted to obtain updated treatment records from Dr. A.D., the Veteran's private provider, but the Veteran failed to return an authorization and consent form for VA to obtain the records and neglected to send in the records himself.  See Hayes v. Brown, 5 Vet. App. 60, 68 (1993) (VA's duty to assist is not a one-way street; if a veteran wishes help, he/she cannot passively wait for it in those circumstances where his/her own actions are essential in obtaining the putative evidence).  The Veteran was afforded VA medical examinations in March 2007 and December 2010 that addressed his hypertension.  38 C.F.R. § 3.159(c) (4).  The Board finds that the VA examination reports are adequate.  The Board acknowledges that the 2007 VA examiner did not review the claims file. However, the examiner did elicit a medical history from the Veteran, which was consistent with that contained in the claims folder; hence, consideration of the current disability status was made in view of the Veteran's medical history. As this is a claim of increase rather than of service connection, and as the Veteran provided a medical history which was an adequate substitute for a review of the medical record, the Board finds that the examination was adequate for rating purposes. Finally, the Board is satisfied that there has been substantial compliance with the remand directives issued in the previous Board decisions. See Dyment v. West, 13 Vet. App. 141, 146-47 (1999), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

VA has substantially complied with the notice and assistance requirements and the appellant is not prejudiced by a decision on the claim at this time.

Increased Ratings

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4.  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 the residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1.  In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings."  See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).  Reasonable doubt as to the degree of disability will be resolved in the Veteran's favor.  38 C.F.R. § 4.3.

Hypertension is rated at 10 percent under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101.  Under DC 7101, a 20 percent is provided for hypertension manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 

The competent and credible lay and medical evidence shows that the Veteran's diastolic blood pressure is consistently less than 110 and systolic pressure is consistently less than 200.  Specifically, private treatment records show blood pressure was 140/90 in March 2005, 130/68 in June 2005, and 120/76 in October 2005.  The October record indicates that his blood pressures had been running in the 130s systolic and 70s diastolic with rare 140s.

The March 2007 VA examination report shows that the Veteran reported racing of his heart associated with dizziness lasting 10 to 20 seconds.  He had 12 episodes in the prior three months.  His private medical provider told him that the episodes could have been caused by his hypertension medications.  Blood pressure readings were 120/76 while standing, 120/70 while sitting, and 118/70 while lying down.  The diagnosis was hypertension, well controlled with no congestive heart failure or renal failure.

Blood pressure measured 146/82 in March 2010 and 149/80 in July 2010.  The December 2010 VA examination shows that the Veteran was taking Verapamil, hydrochlorothiazide, and potassium and magnesium supplements for hypertension.  His blood pressure was between 150/70 and 164/70 during each of the three tests.  Blood pressure measured 120/78 in April 2011.  

During his hearing before the Board, the Veteran said he used to take his blood pressure and that within the prior three years, his diastolic number had not been above 110.  Over the years, his medication dosage has been increased.

There is no evidence of record that would warrant a rating in excess of 10 percent for hypertension at any time during the period pertinent to this appeal.  38 U.S.C.A. 5110 (West 2002); see also Hart, 21 Vet. App. at 509.  None of the lay evidence, to include the Veteran's testimony, or medical evidence indicates that his diastolic pressure has been 110 or more or that his systolic pressure has been 200 or more.  There is no doubt of material fact to be resolved in the Veteran's favor.  38 U.S.C.A. § 5107(b).  As such, the claim must be denied.

Generally, evaluating a disability using either the corresponding or analogous diagnostic codes contained in the Rating Schedule is sufficient.  See 38 C.F.R. §§ 4.20, 4.27 (2011).  However, because the ratings are averages, it follows that an assigned rating may not completely account for each individual veteran's circumstance, but nevertheless would still be adequate to address the average impairment in earning capacity caused by disability.  In exceptional cases where the rating is inadequate, it may be appropriate to assign an extraschedular rating.  38 C.F.R. § 3.321(b) (2011). 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, a task performed either by the RO or the Board.  Id.; see Thun v. Peake, 22 Vet. App. 111, 115 (2008), aff'd, 572 F.3d 1366 (2009).  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability.  Thun, 22 Vet. App. at 115.  If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. 

The Board finds the Veteran's disability picture is not so unusual or exceptional in nature as to render the already assigned rating inadequate.  His service-connected hypertension was evaluated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101, the criteria of which is found by the Board to specifically contemplate the level of impairment caused by this disability.  Id.  The schedular criteria consider the need for medication and allow higher schedular ratings for hypertension but the Veteran does not meet, or more nearly approximate, such criteria.  Simply, the Veteran's hypertension results in diastolic pressure consistently below 110 and systolic pressure consistently below 200.  Consequently, the Board concludes that a schedular evaluation is adequate and that referral of the Veteran's case for extraschedular consideration is not required.  See 38 C.F.R. § 4.71a, Diagnostic Code 5237; see also VAOGCPREC 6-96; 61 Fed. Reg. 66749 (1996).

The Board is aware of the decision of the United States Court of Appeals for Veterans Claims (Court) in Rice v. Shinseki, 22 Vet. App. 447 (2009).  In this decision, the Court found that a claim for a total disability rating based upon individual unemployability (TDIU) was not a free-standing claim in the instance of a rating claim where a request for TDIU, either overtly stated or implied by a fair reading of the claim or of the evidence of record, was indicated.  Here, however, the Veteran has not explicitly requested a TDIU rating and a TDIU claim is not implied by the evidence of record.  The Veteran is retired and has not indicated that his service-connected hypertension would prevent him from obtaining and maintaining substantially gainful employment.  Accordingly, the Board finds that there is no corresponding TDIU claim raised by the record.


ORDER

Entitlement to a rating greater than 10 percent for hypertension is denied.



____________________________________________
N. SNYDER
Acting Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs