Citation Nr: 1305723 Decision Date: 02/19/13 Archive Date: 02/27/13 DOCKET NO. 10-28 263 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial disability rating in excess of 10 percent for right hip tendonitis. 3. Entitlement to a total disability evaluation based on individual unemployability do to service-connected disability. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from December 1974 through February 1978, September 1999 through October 1999, May 2006 through October 2006, and February 2008 through December 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decisions issued in January 2010 and October 2010 by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. In the January 2010 rating decision, the RO granted service connection for right hip tendonitis effective December 2, 2008, and assigned a 10 percent initial disability rating. A timely Notice of Disagreement (NOD) challenging the initial disability rating was received in May 2010. After a Statement of the Case (SOC) was issued in June 2010, the Veteran perfected his appeal later that month via VA Form 9 substantive appeal. In the October 2010 rating decision, the RO denied the Veteran's claim for service connection for hypertension. A timely NOD as to that issue was received from the Veteran in October 2010. After an SOC addressing that issue was mailed to the Veteran in March 2012, the Veteran perfected his appeal in a March 2012 VA Form 9 substantive appeal. The Veteran testified during a November 2012 hearing that was held before the undersigned Veterans Law Judge (VLJ). A transcript of those proceedings is associated with the claims file. During the hearing, the Veteran provided additional evidence that was accompanied by a waiver of review by the agency of original jurisdiction which was executed in accordance with 38 CFR 20.1304(c). This evidence has been associated with the claims file for consideration in connection with this appeal. At the Veteran's request, the evidentiary record was held in abeyance for an additional 60 days from the date of the November 2012 hearing to permit the Veteran an opportunity to provide additional records pertaining to ongoing private and VA treatment received for the Veteran's right hip disability and claimed hypertension. No additional evidence was received during that time. As will be discussed in greater detail below, the Board finds that the Veteran has raised the issue of entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU). Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is therefore part of a claim for an increased disability rating). The issues of entitlement to an initial disability rating in excess of 10 percent for right hip tendonitis and entitlement to a 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 Veteran had hypertension, marked by diastolic pressure exceeding 100 mmHG, as early as July 2009, less than one year after the Veteran's separation from active duty service. CONCLUSION OF LAW The criteria for service connection for hypertension have been met. 38 U.S.C.A. §§ 1131, 1153, 5103, 5103A, 5107 (West 2002 & Supp. 2011); 38 C.F.R. §§ 3.159, 3.303, 3.307, 3.309 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist The Board has considered whether VA has fulfilled its notification and assistance requirements under 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 and 38 C.F.R. § 3.159. Nevertheless, given the favorable action taken below as to the issue adjudicated herein, no further notification or assistance in developing the facts pertinent to this limited matter is required at this time. Indeed, any such action would result only in delay. II. Service Connection Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship, i.e., a nexus, between the claimed in-service disease or injury and the current disability. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.303(a). If certain diseases, such as cardiovascular-renal disease including hypertension, become manifest to a degree of 10 percent within one year of separation from active service, then it is presumed to have been incurred during active service, even though there is no evidence of such disease during service. This presumption is rebuttable by affirmative evidence to the contrary. 38 U.S.C.A. §§ 1101, 1112, 1113; 38 C.F.R. §§ 3.307, 3.309. Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements is through a demonstration of continuity of symptomatology. See Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). A claimant can establish continuity of symptomatology with competent evidence showing: (1) that a condition was "noted" during service; (2) post-service continuity of the same symptomatology; and (3) a nexus between a current disability and the post-service symptomatology. Savage v. Gober, 10 Vet. App. 488, 495-96 (1997); 38 C.F.R. § 3.303(b). Service connection may also be granted for a disease first diagnosed after discharge when all of the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Evidence that relates the current disorder to service must be medical unless it relates to a disorder that may be competently demonstrated by lay observation. Savage, 10 Vet. App. at 495-97. For the showing of chronic disease in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or a diagnosis including the word "chronic." 38 C.F.R. § 3.303(b). In determining whether service connection is warranted for a disability, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b). In support of his claim for service connection for hypertension, the Veteran testified during his November 2012 Board hearing that his blood pressure was high during medical examinations performed in April and May of 2009, less than a year after he was separated from active duty service. He recalled that the first time high blood pressure had been mentioned to him was during in-service treatment in 2008, after his return from Afghanistan. At the outset of its analysis, the Board observes that under Note (1) of 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Note (1) defines "hypertension", for VA purposes, as diastolic blood pressure that is predominantly 90 millimeters or greater. "Isolated systolic hypertension" is defined, for VA purposes, as systolic blood pressure that is predominantly 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. In a blood pressure reading, "systolic blood pressure" is represented as the top value, whereas "diastolic blood pressure" is expressed as the bottom value (for example, in a blood pressure reading of 120/80, the value of 120 represents the systolic blood pressure, while the value of 80 reflects the diastolic blood pressure). Overall, multiple blood pressure readings that are documented in the service treatment records do not indicate that the Veteran had hypertension during service. In that regard, those records reflect an abnormal blood pressure reading of 132/91 on one occasion, during a September 2006 Post-Deployment Medical Assessment. The remaining blood pressure readings shown in the service treatment records do not indicate either hypertension or isolated systolic hypertension, as defined by DC 7101. Although there is no indication of hypertension during the Veteran's active duty service, blood pressure readings taken less than a year after the Veteran's separation from service in December 2008 are indicative of compensable hypertension. In that regard, a July 2009 VA examination report reflects that blood pressure readings taken on the date of the examination were 145/98, 148/105, 137/97, 152/100, 141/110, and 133/98. According to the report, repeat blood pressure readings performed four days later, on July 27, 2009, were 165/101, 158/108, and 135/97. Subsequent VA treatment records dated through February 2012 indicate that the Veteran has continued to have high blood pressure. In that regard, blood pressure readings taken in March 2010, June 2010, and August 2010 were 154/100, 149/93, and 152/94 respectively. Overall, the post-service evidence shows that the Veteran's diastolic blood pressure exceeded 100 mmHg as early as July 2009, only seven months after the Veteran was separated for service. Pursuant to DC 7101, hypertension manifested by diastolic pressure exceeding 100 mmHG warrants a compensable disability rating. As the unrebutted evidence shows that the Veteran's hypertension was manifested to a compensable degree within one year from his separation from service, the Board presumes that the Veteran's hypertension was incurred during his active duty service. Accordingly, the Veteran's claim for service connection for hypertension is granted. ORDER Entitlement to service connection for hypertension is granted. REMAND The Board finds that further development is necessary prior to final adjudication of the issue remaining on appeal. The Veteran was afforded a VA examination in July 2009 to explore the nature and severity of his right hip tendonitis. At that time, the Veteran reported ongoing weakness, stiffness, giving way, and pain in the right hip. He also reported radiating numbness and tingling in his right leg and foot. The Veteran also related flare-ups of pain that occurred as frequently as four times per month and lasted for periods of up to three days. He described pain during such flare-ups as being an eight out of 10 in intensity with decreased range of motion of the hip. An examination performed at that time did not reveal any evidence of edema, instability, abnormal movement, effusion, weakness, redness, heat, deformity, malalignment, drainage, or subluxation of the right hip. Range of motion testing revealed right hip motion that included flexion to 125 degrees, extension to 30 degrees, adduction to 25 degrees, abduction to 45 degrees, external rotation to 60 degrees, and internal rotation to 40 degrees. Repetitive motion of the right hip was productive of pain, did not result in any further loss of motion. Neurological examination of the lower extremities indicated full motor and sensory function and full reflexes in the knee and ankle. Overall, peripheral nerve involvement was not seen during the examination. X-rays of the right hip indicated normal findings. The examiner diagnosed right hip tendonitis that was productive of pain, tenderness on palpation, guarding of movement, weakness, stiffness, and giving way. However, no opinion was given as to the extent of any functional or occupational impairment resulting from the Veteran's right hip disability. During his November 2012 Board hearing, the Veteran testified that he had retired from his post-service occupation as a mail carrier for the United States Postal Service in February 2009. Although it is unclear from the Veteran's testimony as to whether his retirement was prompted by his right hip disability, he did testify that his disability caused difficulties with various functions required by his work such as standing, walking, lifting, bending, twisting at the waist, and stooping. The Veteran also testified that he had taken medical leave under the Family Medical Leave Act prior to his retirement due to his right hip problems. He also reported that his right hip disability caused problems with various activities around his home, such as yard work, laundry, ironing, lifting and carrying his granddaughters, and playing basketball or baseball with his grandson. The extent of the symptoms and the occupational and functional impairment to which the Veteran testified during his hearing suggest that the Veteran's right hip disability has increased in severity since the July 2009 VA examination. Moreover, the Veteran's testimony that his right hip disability impaired his occupational functioning, that he retired from his occupation in February 2009, and that he was required to take medical leave prior to his retirement, appear to raise a claim for TDIU. Rice v. Shinseki, 22 Vet. App. 447 (2009) (holding that a claim for a TDIU, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is therefore part of a claim for an increased disability rating). In view of the foregoing, the Veteran should be arranged to undergo a new VA examination of his right hip disability to determine its current severity; impact on occupational functioning and activities of daily living; and whether the right hip disability, either individually or acting in conjunction with the Veteran's other service-connected disabilities, have rendered the Veteran unable to secure and follow a substantially gainful occupation. 38 C.F.R. § 3.159(c)(4). The Board also notes that the Veteran testified that he has been receiving ongoing private treatment from Dr. C. at "Humana" and ongoing VA treatment at Audie Murphy VA Hospital. Prior to arranging the examination described above, in order to insure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should be asked to identify any other private or VA treatment providers who have rendered treatment for his right hip since February 2012. VA must then also make efforts to obtain the treatment records from Dr. C., Audie Murphy VA Hospital, and any other treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim of entitlement to an initial disability rating in excess of 10 percent for right hip tendonitis. This letter must also inform the Veteran about the information and evidence that is necessary to substantiate his claims and provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a VA examination for his service-connected right hip tendonitis. The Veteran should be advised that it remains his responsibility to report for the scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release and be asked to identify the name(s) and current address(es) for Dr. C of "Humana" and any other private and/or VA treatment providers who have provided treatment for his right hip disability since February 2012. 2. Make efforts to obtain the private treatment records of Dr. C., Audie Murphy VA Hospital, and any other private or VA facilities identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the Veteran should then be afforded a VA examination, to determine all manifestations and residuals of the Veteran's service-connected right hip tendonitis, and the severity of any such manifestations and residuals. The claims folder must be made available to the examiner, and, the examiner must review the entire claims file in conjunction with the examination. All appropriate tests and studies, to include right hip range of motion testing and neurological testing, should be performed. Upon review of the record and examination of the Veteran, the examiner should set forth all manifestations and residuals of the Veteran's service-connected right hip tendonitis and discuss the impact of such symptoms on the Veteran's activities and occupational functioning. The examiner should also discuss any neurological manifestations and residuals that are at least as likely as not (a 50 percent or greater likelihood) related to the Veteran's right hip tendonitis. If found and determined to be related to the Veteran's right hip tendonitis, the examiner should delineate the nerve group involved, determine whether paralysis of the identified nerve group is complete or incomplete, and if paralysis is incomplete provide an opinion as to whether the severity of such neurological manifestation is mild, moderate, moderately severe (this category is available only for involvement of the sciatic nerve group), or severe. The examiner should also provide an opinion as to whether the Veteran's service-connected right hip tendonitis, alone or in conjunction with his other service-connected disabilities, renders him unable to obtain or retain gainful employment. Any and all opinions must be accompanied by a complete rationale. If the examiner is unable to reach an opinion without resort to speculation, he or she should explain the reasons for this inability and comment on whether any further tests, evidence or information would be useful in rendering an opinion. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the date and time of the examination sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issue of the Veteran's entitlement to an initial disability rating in excess of 10 percent for right hip tendonitis should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or 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). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs