Citation Nr: 1306662	
Decision Date: 02/27/13    Archive Date: 03/01/13

DOCKET NO.  09-32 324	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska


THE ISSUE

Entitlement to an initial rating higher than 10 percent for hypertension.  


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

M. Taylor, Counsel









INTRODUCTION

The Veteran, who is the appellant, served on active duty from December 2006 to March 2008.  

This matter is before the Board of Veterans' Appeals (Board) on appeal of a rating decision in July 2008 of a Department of Veterans Affairs (VA) Regional Office (RO). 


FINDING OF FACT

Hypertension is manifested by no more than diastolic pressure predominantly 100 or more; or; systolic pressure predominantly 160 or more.  


CONCLUSION OF LAW

The criteria for an initial rating higher than 10 percent for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.10, 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). 


The Veterans Claims Assistance Act of 2000 (VCAA)

The VCAA, codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented in part at 38 C.F.R. § 3.159, amended VA's duties to notify and to assist a claimant in developing information and evidence necessary to substantiate a claim. 






Duty to Notify

Under 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), when VA receives a complete or substantially complete application for benefits, it will notify the claimant of (1) any information and medical or lay evidence that is necessary to substantiate the claim, (2) what portion of the information and evidence VA will obtain, and (3) what portion of the information and evidence the claimant is to provide. 

Also, the VCAA notice requirements apply to all five elements of a service connection claim. The five elements are: (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.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

The VCAA notice must be provided to a claimant before the initial unfavorable adjudication by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The RO provided pre-adjudication VCAA notice regarding the underlying claim of service connection. Where, as here, service connection has been granted and the initial rating has been assigned, the claim of service connection has been more than substantiated, the claim has been proven, thereby rendering 38 U.S.C.A. §5103(a)  notice no longer required because the purpose that the notice was intended to serve has been fulfilled. Once the claim of service connection has been substantiated, the filing of a notice of disagreement with the RO's decision, rating the disability does not trigger additional 38 U.S.C.A. § 5103(a) notice. 

Therefore, further VCAA notice under 38 U.S.C.A. § 5103(a) and § 3.159(b)(1) is no longer applicable in the claim for an initial higher rating.  Goodwin v. Peake, 22 Vet. App. 128, 136 (2008). 




Duty to Assist

Under 38 U.S.C.A. § 5103A, VA must make reasonable efforts to assist the claimant in obtaining evidence necessary to substantiate a claim. The RO has obtained service treatment records and VA records. .

The Veteran was afforded VA examinations in 2008 and in 2012. As the reports of the VA examinations are based on the Veteran's medical history and described the disability in sufficient detail so that the Board's decision is a fully informed one, the examinations are adequate.  Stefl v. Nicholson, 21 Vet. App. 120, 123 (2007). 

As there is no indication of the existence of additional evidence to substantiate the claim, the Board concludes that no further assistance to the Veteran in developing the facts pertinent to the claim is required to comply with the duty to assist. 


REASONS AND BASES FOR FINDING AND CONCLUSION

Rating Principles

A disability rating is determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule).  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 their residual conditions in civil occupations.  38 U.S.C.A. § 1155. 

Where there is a question as to which of two evaluations shall be applied, 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.  



The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," whether it is an initial rating case or not.  Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). 

Hypertension

The Veteran seeks a higher rating for hypertension, which is currently rated 10 percent under 38 C.F.R. § 4.104, Diagnostic Code 7101.  

Under Diagnostic Code 7101, the criteria for a 10 percent rating are diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  The criteria for the next higher rating, 20 percent, are diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.


Evidence 

In February 2008, the blood pressure readings were 169/101, 158/90, and 154/91.  In May 2009, the blood pressure readings were 128/98, 116/98, and 124/92.  A 24- hour Holter monitor in October 2008 was benign.  A chest X-ray in August 2008 showed no acute disease.  An electrocardiogram in September 2008 showed normal sinus rhythm.  

VA records show that the Veteran stopped taking hypertension medication, because his blood pressure was lower with regular exercise.  The Veteran denied any current symptoms of hypertension and denied any impact of hypertension on his daily or occupational activities.  It was reported that hypertension had no impact on the Veteran's employability for either sedentary or physical work.  



In July 2009 VA records show that the blood pressure reading was 137/86.  In November 2009, the blood pressure reading was 128/83.  In January 2010, the blood pressure reading was 124/83. In April 2010, the blood pressure readings were 128/82 and 128/88.  In July 2010, the blood pressure reading was 128/89.  In September 2010, the blood pressure reading was 140/88.  In November 2010, the blood pressure reading was 123/86.  In March 2011, the blood pressure reading was 124/84.  In April 2011, the blood pressure reading was 126/82.  In May 2011, the blood pressure reading was 142/94.  

On VA examination in November 2012, the Veteran stated that when he took his medication his blood pressure stayed within range and he did not have any problems associated with hypertension.  There was no history of a diastolic pressure predominantly 100 or more.  The blood pressure readings were 145/90, 143/87, and 140/85.  There were no other pertinent physical findings, complications, conditions, signs or symptoms associated with hypertension.  The VA examiner stated that the Veteran's hypertension did not impact the Veteran's ability to work.  

Analysis 

The Veteran is competent to report his symptoms.  However, in reaching a determination, the Board has accorded more probative value to the objective findings in the VA records during the pendency of the appeal of a four year period. The blood pressure readings are consistent and predominantly less than 110 diastolic and less than 200 systolic, which does not more nearly approximates or equate to the criteria for the next higher rating. 

To the extent that interference with employment has been asserted, the VA records are also consistent in describing the Veteran's hypertension as having no impact on employment.  





For these reasons, the preponderance of the evidence is against the claim and a higher rating is not warranted.  

Extraschedular Consideration

Although the Board is precluded by regulation from assigning an extraschedular ratings under 38 C.F.R. § 3.321(b)(1) in the first instance, the Board is not precluded from considering whether the case should be referred to the Director of VA's Compensation and Pension Service for such ratings.

The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular rating for the service-connected disability is inadequate.  This is accomplished by comparing the level of severity and symptomatology of the service-connected disability with the established criteria.


If the criteria reasonably describe the disability level and symptomatology, then the disability picture is contemplated by the Rating Schedule, and the assigned schedular rating is therefore adequate and referral for an extraschedular rating is not required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008) aff'd Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).

The Board finds that the rating criteria reasonably describe the Veteran's symptomatology. In other words, the Veteran does not have symptomatology not already encompassed in the Rating Schedule and the assigned schedular rating is adequate.  Therefore, referral for extraschedular consideration under 38 C.F.R. § 3.321(b)(1) is not warranted.






Total Disability Rating for Compensation based on Individual Unemployability

During the appeal period, the Veteran was working as of June 2012 although he had requested light duty, because of his health problems.  And the record does not reasonably raise a claim for total disability rating for compensation based on individual unemployability.  See Rice v. Shinseki, 22 Vet. App. 447 (2009) (in a claim for increase, where the Veteran expressly raises a claim for a total disability rating on the basis of individual unemployability or the claim is reasonably raised by the record, the claim is not a separate claim, but a part of a claim for increase).

ORDER 

An initial rating higher than 10 percent for hypertension is denied.  



______________________________________________
George E. Guido Jr.
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs