Citation Nr: 1307390 Decision Date: 03/05/13 Archive Date: 03/11/13 DOCKET NO. 10-14 477 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Salt Lake City, Utah THE ISSUES 1. Entitlement to an initial rating in excess of 30 percent for tension headaches. 2. Entitlement to an initial rating in excess of 10 percent for a left foot calcaneal spur. 3. Entitlement to an initial compensable rating for hypertension. 4. Entitlement to an initial compensable rating for nephrotic syndrome. 5. Entitlement to an initial compensable rating for erectile dysfunction. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L. Kirscher Strauss, Counsel INTRODUCTION This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. The Veteran served on active military duty from August 1988 to August 2008. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah, which awarded service connection for the disabilities on appeal and assigned an initial noncompensable rating for each disability, effective September 1, 2008. The Veteran perfected a timely appeal with respect to the issues of initial compensable ratings for hypertension and nephrotic syndrome. The appeal also comes from a January 2010 rating decision. In April 2009, the Veteran applied for a total disability rating based on individual unemployability (TDIU) due to service connected disabilities. The RO inferred increased rating claims for his service-connected disabilities other than hypertension and nephrotic syndrome, which were already on appeal. The January 2010 rating decision continued the noncompensable ratings assigned for tension headaches, a left foot calcaneal spur, and erectile dysfunction. The Veteran filed a notice of disagreement with the continued noncompensable ratings for tension headaches, a left foot calcaneal spur, and erectile dysfunction in September 2010 and filed a substantive appeal in April 2011 after the RO issued a statement of the case. In a May 2012 rating decision, the RO increased the assigned rating for tension headaches to 30 percent and increased the assigned rating for a left foot calcaneal spur to 10 percent, both effective from September 1, 2008. The Court has held that a rating decision issued subsequent to a notice of disagreement that grants less than the maximum available rating does not "abrogate the pending appeal." AB v. Brown, 6 Vet. App. 35, 38 (1993). Consequently, the issues of entitlement to increased ratings for tension headaches and a left foot calcaneal spur remain in appellate status. In addition, because the RO adjudicated the inferred claims for tension headaches, a left foot calcaneal spur, and erectile dysfunction and granted higher ratings for two of those issues effective from September 1, 2008, which is the day after the Veteran's separation from military service, the Board has also characterized the claims for higher ratings for tension headaches, a left foot calcaneal spur, and erectile dysfunction, as claims for initial higher ratings. See 38 C.F.R. § 3.156(b). In August 2012, the Veteran testified at a hearing at the RO before the undersigned Veterans Law Judge. A transcript of this hearing is of record. During the August 2012 hearing, the Veteran submitted additional evidence for consideration in connection with the claims on appeal and waived RO jurisdiction for this evidence; his waiver is documented in the hearing transcript and included in the record. The Board accepts this evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1304 (2012). FINDINGS OF FACT 1. Tension headaches are manifested by very frequent prostrating attacks that are not prolonged and not productive of severe economic inadaptability. 2. A left foot calcaneal spur is manifested by x-ray evidence of small posterior and plantar calcaneal spurs. 3. Hypertension is manifested by a history of diastolic pressure predominantly less than 100, current diastolic pressure predominantly less than 100, systolic pressure predominantly less than 160, and continuous medication required for control. 4. Nephrotic syndrome is manifested by albumin constant but without hyaline and granular casts or red blood cells except for on a single occasion in May 2011; no objective evidence of edema; and noncompensable hypertension under diagnostic code 7101. 5. Erectile dysfunction is manifested by loss of erectile power without deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for tension headaches have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 (2012). 2. The criteria for an initial rating in excess of 10 percent for a left foot calcaneal spur have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.71a, Diagnostic Code 5299-5284 (2012). 3. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). 4. The criteria for an initial compensable rating for nephrotic syndrome have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.115a, 4.115b, Diagnostic Code 7599-7502 (2012). 5. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.7, 4.31, 4.115b, Diagnostic Code 7599-7522 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) includes enhanced duties to notify and assist claimants for VA benefits. VA regulations implementing the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012). The notice requirements of the VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b) (2012). The requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, insufficiency in the timing or content of VCAA notice is harmless if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). In this case, in a June 2008 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claims for service connection, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. In a December 2009 letter regarding an April 2009 claim for a total disability rating due to individual unemployability (TDIU) due to service connected disabilities, the RO also notified the Veteran of the information and evidence needed to substantiate a claim for a higher disability rating. The June 2008 and December 2009 letters advised him of how disability evaluations and effective dates are assigned, and the type of evidence that impacts those determinations. However, this appeal arises from the initial award of service connection. In Dingess, the Court held that in cases in which service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess, 19 Vet. App. at 490-91; see also 38 C.F.R. § 3.159(b)(3)(i) (2012). Thus, because the notice that was provided before service connection was granted was sufficient, VA's duty to notify in this case has been satisfied. See generally Turk v. Peake, 21 Vet. App. 565 (2008) (holding that where a party appeals from an original assignment of a disability rating, the claim is classified as an original claim, rather than as one for an increased rating); see also Shipwash v. Brown, 8 Vet. App. 218, 225 (1995); see also Fenderson v. West, 12 Vet. App. 119 (1999) (establishing that initial appeals of a disability rating for a service-connected disability fall under the category of "original claims"). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran including service treatment and personnel records, post-service private treatment records, records from the Social Security Administration (SSA), lay statements and hearing testimony, and fee-basis VA examination reports and medical opinions. In summary, VA has considered and complied with the VCAA provisions discussed above. The Veteran was notified and aware of the evidence needed to substantiate the claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran was an active participant in the claims process by submitting evidence and argument. Therefore, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication or to cause injury to the Veteran. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits. See Conway, 353 F.3d at 1374; Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). II. General Laws and Regulations for Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; assigning the higher rating where there is a question as to which of two evaluations apply and where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27 (2012). Additionally, when an unlisted disease, injury, or residual condition is encountered, requiring rating by analogy, the diagnostic code number is "built up" with the first two digits being selected from that part of the schedule most closely identifying the part, and the last two digits being "99" for an unlisted condition. Id. For example, in the case of the Veteran's tension headaches, Diagnostic Code 8199 is used to identify unlisted neurological conditions, and the Veteran's tension headaches are rated analogously to migraine headaches, found in Diagnostic Code 8100. In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Board notes that these issues involve the Veteran's dissatisfaction with the initial ratings assigned for his tension headaches, left foot calcaneal spur, hypertension, nephrotic syndrome, and erectile dysfunction disabilities following the grant of service connection, and staged ratings are to be considered. A. Tension Headaches The Veteran's tension headaches are rated as 30 percent disabling pursuant to 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. 8100 Migraine: Rating With very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability 50 With characteristic prostrating attacks occurring on an average once a month over last several months 30 With characteristic prostrating attacks averaging one in 2 months over last several months 10 With less frequent attacks 0 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100 (2012). During an August 2008 fee-basis VA examination, the Veteran reported having headaches associated with blurry vision averaging four times per week, each lasting two hours. He stated that if he takes Tylenol, he is able to work and was not limited during flare-ups. He denied any functional impairment as a result of his headaches. The diagnosis was tension headaches. Private treatment records from B. A., M.D., dated from October 2008 through December 2009 indicate that the Veteran was found to have sinusitis by CT scan in October 2008. Prednisone and antibiotics were prescribed. In November 2008, the Veteran reported that he had taken prednisone two or three years earlier for his kidney disorder, but developed headaches. However, he stated that he tolerated the recent prednisone for sinusitis. These private treatment records otherwise did not reflect complaints of tension headaches. During a January 2010 VA neurology examination, the Veteran reported having headaches almost every day that were relieved with Tylenol after 20 minutes. He also stated that most attacks were prostrating and lasted minutes. He indicated that he was not treated with continuous medications. An October 2010 private treatment record from B. A., M.D., indicates that the Veteran reported getting tension headaches recently and taking Tylenol. In July 2011, he stated that he was still getting tension headaches on and off. In May 2011, the Veteran presented to Methodist Hospital with a chief complaint of severe headache and chest pain. He was admitted for four days. The impression of a CT (computed tomography) of the brain was no evidence of acute abnormality within the brain or extra axial space; mild sinus disease. During a neurology consultation, the Veteran described a history of headaches his whole life, occurring around once or twice a month, but two months ago, the headaches became more frequent and severe. He denied experiencing nausea, vomiting, phonophobia, or photophobia. He reported feeling some lightheadedness and like a nail was being hammered into his head. He stated that these symptoms improved with Tylenol 1000 mg once or twice a day, but he had been taking the medication more frequently and recently from one time per week in the beginning of the two-month period to three times a week now. He added that he only started taking his blood pressure readings around a week ago, and systolic readings were elevated into the 150s. On examination, his blood pressure was recorded as 174/115. The assessment included tension-type headaches, worsening in frequency and intensity, previously controlled with Tylenol, but not as well controlled currently. The examining neurologist commented that there was a possibility that medication overuse was contributing to the tension-type headaches. Intravenous Stadol and Ativan were prescribed. During a nephrology consultation, the Veteran reported that about two months prior to admission, he started having more headaches, which became severe. He stated that he had been under stress at work as a manager of a human resources department, but he had also been under stress at work even for a long time in the past. The assessment included tension-type headache, which could also contribute to his hypertension, although hypertension itself could be contributing to his headache. The May 2011 discharge summary indicated that after being placed on butalbital, acetaminophen, and Ativan, the headache markedly improved and resolved. The Veteran reported that he was feeling much better, and his headache had stopped. The discharge diagnosis was tension headache. During a September 2011 fee-basis VA examination, the Veteran reported experiencing headaches on average one time per day, each lasting for two hours. He described the headaches as tension behind his eyes, feeling like nails were being hammered into his head, and associated with blurred vision and feeling lightheaded. He reported that when the headaches occur, he must stay in bed and is unable to do anything. He stated that treatment consisted of Tylenol and a prescription medication, which he could not recall. He added that he could not drive or work when he experiences the headaches. During the August 2012 hearing, the Veteran's representative explained on the Veteran's behalf that he had experienced daily headaches during the last two months for which he was taking Tylenol. The representative also related that the Veteran went to the emergency room in May 2011 for elevated blood pressure, but had a headache at the same time. The representative stated that the Veteran had continued to experience headaches off and on since he was in the emergency room. The Veteran testified that he was currently working full-time and had learned to work through the headaches or take a break. After reviewing the medical and lay evidence of record, the Board finds that the Veteran's tension headaches are manifested by very frequent prostrating attacks that are not prolonged and not productive of severe economic inadaptability. These findings are consistent with the 30 percent rating currently assigned. The Board notes that with the exception of the May 2011 inpatient private treatment records in which he complained of a severe headache that had been increasing over the past two months, private treatment records in which the Veteran sought treatment for tension headaches reflect the level of disability contemplated by the assigned 30 percent rating, but no higher. Here, the Veteran described in May 2011 having one or two headaches per month for his whole life and in July 2011 again reported having headaches "on and off." In comparison, the disability picture the Veteran described during fee-basis VA examinations is not found in his regular private treatment records. Therefore, a higher, 50 percent, rating is not warranted because although the Veteran has reported during fee-basis VA examinations that he has experienced headaches between four times per week or daily, his reports to his private treating physicians do not reflect such frequency. Similarly, his headaches do not appear to be completely prostrating. For example, in August 2008, he told the VA examiner that he was able to work during the headaches if he took Tylenol. During the January 2010 examination, he stated that he had prostrating attacks that lasted minutes, specifying that the headaches were relieved by Tylenol after 20 minutes. During private treatment, he mentioned having headaches "on and off," but did not identify experiencing headaches of a prostrating nature. During his May 2011 inpatient hospitalization, he presented with a severe headache that resolved before his discharge four days later. He also stated that he had experienced one or two headaches per month his whole life; however, did not report a history of prostrating or completely prostrating attacks. Finally, while the Veteran did report on examination in September 2011 that he experienced daily, completely prostrating attacks each lasting two hours that prevented him from doing anything, his August 2012 testimony that he was working full time and had learned to work through his headaches tends to contradict his report to a VA examiner that his daily attacks were completely prostrating. Moreover, the Board finds that the Veteran's subjective reports regarding his headaches do not reflect prolonged attacks. He has reported that his headaches have generally lasted no longer than two hours. In addition, in May 2011 he was working as a manager of a human resources department, and in August 2012 he testified that he was working full time. These facts do not support a conclusion that the Veteran's headaches are productive of severe economic inadaptability. The Board emphasized that the criteria for a higher, 50 percent, rating require very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. Accordingly, the Board finds the statements the Veteran made to treatment providers during the course of seeking treatment are more credible than the statements he made to the fee-basis VA examiners as to the nature, frequency, and severity of his tension headaches. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (Board can consider bias in lay evidence and conflicting statements of the veteran in weighing credibility); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (VA cannot ignore a veteran's testimony simply because the veteran is an interested party; personal interest may, however, affect the credibility of the evidence). Thus, greater probative weight has been afforded to the treatment reports than to reports of fee-basis VA examinations. In conclusion, the Board finds that the most credible and probative evidence reflects that the Veteran's tension headache disability more nearly approximates, and is adequately compensated by, the 30 percent evaluation currently assigned. See 38 C.F.R. § 4.124a, Diagnostic Code 8199-8100. B. Left Foot Calcaneal Spur The Veteran is assigned a 10 percent rating for his left foot calcaneal spur pursuant to 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5284. 5284 Foot injuries, other: Severe 30 Moderately severe 20 Moderate 10 Note: With actual loss of use of the foot, rate 40 percent. 38 C.F.R. § 4.71a, Diagnostic Codes 5299-5284 (2012). During an August 2008 fee-basis VA examination, the Veteran did not report any problems with his feet. Examination of the feet did not reveal any signs of abnormal weight bearing or breakdown, callosities, or any unusual shoe wear pattern. The Veteran did not require any assistive device for ambulation. Multiple x-ray studies associated with the August 2008 examination report did not pertain to a left foot disability. A diagnosis regarding a left foot problem was not rendered. Private treatment records from multiple sources dated from September 2008 through July 2012 did not reflect complaints or findings related to left foot problems. During a January 2010 VA examination, the Veteran complained of difficulty with balance and weakness and having a sense of his left foot slapping when he walks. He reported left foot and ankle weakness after walking 200 to 300 yards. He did not have complaints regarding a heel spur. On examination of the left foot, there was no tenderness to palpation. The Achilles was 80 degrees valgus and reduced without discomfort. X-ray examination of the left foot revealed no fracture, soft tissues within normal limits, dorsal midfoot osteophytes, Achilles tendon enthesopathy, no suspicious sclerotic or osseous lesions, and no acute abnormality. During a September 2011 fee-basis VA examination, the Veteran reported being diagnosed with a left foot calcaneal spur, which was not due to injury. He denied requiring any assistive device for ambulation or any type of support with his shoes. He also described in detail pain and other symptoms in the back of his heel, which is not service-connected. On musculoskeletal examination, the Veteran walked with a normal gait. Examination of the left foot revealed no tenderness, painful motion, weakness, edema, heat, redness, instability, atrophy, or disturbed circulation. Palpation of the plantar surface of the left foot revealed no tenderness. Alignment of the left Achilles tendon was normal on weight bearing. The examiner indicated that the following were not present: pes planus, pes cavus, hammer toes, Morton's metatarsalgia, hallux valgus, or hallux rigidus. Left foot x-ray results revealed a small osseous bunion on the distal left first medial metatarsal; and small posterior and plantar calcaneal spurs. The left foot x-ray was reported as otherwise normal with no acute fractures or any significant arthritic changes. The examiner reported that the Veteran had limitations with standing and walking; he was able to stand for 15 to 30 minutes. The examiner did not specify whether the limitations were associated with the left foot calcaneal spur or the pain and other symptoms in the back of the Veteran's left heel. The examiner also described detailed examination findings of both ankles. Left ankle range of motion testing showed decreased range of motion with additional limitation following repetitive use. The examiner explained that the Veteran seemed to demonstrate extremely poor effort on [left] ankle range of motion testing and explained the basis for that conclusion. The Board notes that the Veteran is not service-connected for a left ankle disability, but only a left foot calcaneal spur. During the August 2012 hearing, the Veteran's representative explained on the Veteran's behalf that the Veteran's calcaneal spur was not sensitive on the day of the [September] 2011 VA examination; however, if the Veteran had been examined two days earlier or three days later, he would have had pain when the examiner touched his foot. The Board has carefully considered the medical and lay evidence of record, but finds that an initial rating in excess of 10 percent is not warranted for the Veteran's left foot calcaneal spur. His left foot calcaneal spur has been manifested by x-ray evidence of small posterior and plantar calcaneal spurs. The Board finds that the next higher, 20 percent, rating is not warranted for the left foot calcaneal spur because the medical and lay evidence does not reflect moderately severe objective findings or subjective symptoms. The Board considered the assertion raised by the Veteran's representative during the hearing that the Veteran does have moderately severe symptoms, but his foot just was not sensitive on the day of the VA examination. However, the Board concludes that this assertion is unsupported by the medical evidence of record because nearly four years of private treatment records from multiple private clinicians did not reflect complaints or findings regarding the left foot calcaneal spur. Moreover, no other diagnostic code provides a basis for assignment of a higher rating for his service-connected left foot disability. Disabilities of the foot are rated under 38 C.F.R. § 4.71a, Diagnostic Codes 5276 through 5284. However, several of these diagnostic codes are simply not applicable to the Veteran's service-connected left foot calcaneal spur because, in most cases, his current rating equals or exceeds the maximum rating allowed under a particular rating code, or because particular symptoms of his calcaneal spur disability are not shown by the medical evidence to meet the criteria for a higher rating. It is neither contended nor shown, for example, that the Veteran's service-connected left foot disability involves flatfoot (pes planus) (Diagnostic Code 5276), or that he has acquired clawfoot (Diagnostic Code 5278), or that he has malunion or nonunion of the tarsal or metatarsal bones (Diagnostic Code 5283). See Butts v. Brown, 5 Vet. App. 532, 539 (1993) (holding that the Board's choice of diagnostic code should be upheld so long as it is supported by explanation and evidence). Therefore, the Board finds that the record presents no basis for assignment of a higher rating for the Veteran's left foot calcaneal spur disability based on any applicable Diagnostic Code. Accordingly, a rating in excess of 10 percent for a left foot calcaneal spur is not warranted. C. Hypertension The Veteran's hypertension is rated as noncompensable pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. 7101 Hypertensive vascular disease (hypertension and isolated systolic hypertension): Rating Diastolic pressure predominantly 130 or more 60 Diastolic pressure predominantly 120 or more 40 Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more 20 Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 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 10 Note 1: Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note 2: Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note 3: Evaluate hypertension separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, Code 7101 (2012). A review of the Veteran's service treatment records reveals a history of diastolic pressure predominantly in the 80s and 70s with an occasional outlier in the 60s or 90s. During an August 2008 fee-basis VA examination, blood pressure was recorded as 120/80, 120/78, and 118/76. The examiner indicated that the Veteran's blood pressure, for which he was taking medications, was not elevated. Private treatment records dated in April and July 2009 recorded the Veteran's blood pressure as 111/79 and 129/82, respectively. A September 2009 Disability Determination and Transmittal from the Social Security Administration (SSA) indicated that the Veteran was disabled for SSA purposes based on the primary diagnosis of post-herpetic neuralgia with right hemidiaphragm paralysis and the secondary diagnosis of essential hypertension. Private treatment records from M. Y., M.D., dated in January and March 2009 recorded blood pressure as 122/96. A February 2009 cardiology stress test report indicated that resting blood pressure was 118/72 and 140/82 at peak stress; blood pressure response was reported as normal. Other private treatment notes dated from February to May 2009 associated with the SSA records recorded blood pressure as 108/75, 110 or 120/70, and 120/80. Private treatment records from B. A., M.D., dated from September 2008 through July 2011 reflect regular blood pressure monitoring. In September 2008, the Veteran reported home systolic pressure readings in the 120s. In October 2009, he stated that his home blood pressure was okay, not high or low. During a November 2009 renal follow-up visit with B. A., M.D., the Veteran reported that he had been checking his blood pressure twice a day at home and it was as high as 144/80. In December 2009, he reported that the blood pressure goes low, in the 90s, so he was taking Metoprolol only once a day. Private treatment records dated from October 2008 through May 2011 from the Methodist Hospital were associated with the claims file in August 2012. In December 2008, the Veteran presented for treatment with a chief complaint of possible shingles. He was observed to be in distress secondary to pain, and his blood pressure was elevated, recorded as 150/108. During a January 2009 follow-up visit, he reported some improvement in pain, but indicated that he continued to have ongoing burning pain. His blood pressure was recorded as 129/100. Subsequent treatment records from Methodist Hospital dated prior to May 2011 documented diastolic blood pressure consistently below 100 and systolic pressure consistently below 160. On VA examination in January 2010, the Veteran's blood pressure was recorded as 100/60. During February 2010 treatment with Dr. B. A., the Veteran stated that his home blood pressure had been as high as 120/80 and as low as 97/68. He stated that he did not know why his blood pressure was low, but he could not tell that his strength was any different. In April and August 2010, he reported that his home blood pressure was okay or normal. During a May 2010 VA hypertension examination, the Veteran reported that his hypertension had been stable since onset in 1995 and that current treatment consisted of medications. His blood pressure was recorded as 100/70, 98/72, and 100/72. In May 2011, the Veteran was admitted for four days to Methodist Hospital with a chief complaint of severe headache and chest pain. Recorded blood pressure readings on the day of admission were elevated: 182/113, 176/111, 176/113. By the evening of the second day of his admission until his discharge, diastolic pressure was consistently below 100, and systolic pressure was consistently below 160. During the admission, he was provided with a nephrology consultation by B. A., M.D., due to his kidney and related problems with history of focal glomerulosclerosis and nephrotic syndrome. He stated that his blood pressure had recently become elevated in the range of 180/100, and he went to the clinic at his workplace and was told to go the emergency room, where his blood pressure was 182/113. He reported being under stress at work, but that he had also been under stress at work even for a long time in the past. He also reported that for a year he had not been compliant using his CPAP for his obstructive sleep apnea, and his wife, a nurse, reported that he sometimes stopped breathing momentarily. However, he reported taking his medications as prescribed and not eating more salt than usual. He did not know why his blood pressure was suddenly high. Dr. B. A. remarked that he sees the Veteran in his clinic and his blood pressure was usually well controlled or low, such as in February 2010, at which time he reported that he had been using a CPAP at night since 2003. On examination, his blood pressure was recorded as 104/84. The assessment included hypertension with recent acceleration of unclear cause; obstructive sleep apnea with noncompliance using his CPAP mask; being under stress at work, which could contribute to uncontrolled hypertension; and tension-type headache, which could also contribute to hypertension, although hypertension itself could be contributing to his headache. Dr. B. A. indicated that the chest pain was probably not of cardiac origin; the assessment was rule out gallbladder pathology. The discharge summary indicated that the Veteran had been stabilized and improved. Blood pressure was recorded as 132/74 during a July 2011 VA genitourinary examination. During a July 2011 visit with Dr. B. A., the Veteran stated that his home blood pressure was usually around 130/80 and 130/85 at the most. During a July 2012 follow-up visit with J. O., M.D., blood pressure was recorded as 110/75. Dr. J. O. remarked that the Veteran's hypertension was controlled. During the August 2012 hearing, the Veteran's representative stated that the Veteran's daily diastolic pressure had been over 100 over the last year. He also reported on the Veteran's behalf that during a May 2011 emergency room visit for high blood pressure the Veteran was placed on Clonidine. He stated that the Veteran's diastolic pressure had consistently been 110 or more without the Clonidine. The Veteran testified that he was currently working full-time and learned to work through high blood pressure spikes at work by taking a break and trying not to stress himself a lot. Having carefully reviewed the evidence of record, the Board finds that the Veteran's blood pressure has been manifested by a history of diastolic pressure predominantly less than 100, current diastolic pressure predominantly less than 100, and systolic pressure predominantly less than 160. The Board acknowledges that the Veteran's diastolic pressure exceeded 100 in December 2008 when he sought treatment for suspected shingles, and on admission to the hospital in May 2011 his diastolic pressure exceeded 110 and his systolic pressure exceeded 160. However, the medical evidence clearly reflects that the Veteran's diastolic pressure has predominantly been less than 100, and systolic pressure has predominantly been less than 160. These findings are consistent with the currently assigned noncompensable rating for hypertension, and a compensable rating is not warranted. The Board has considered the assertions by the Veteran pertaining to the severity of his hypertension. He is competent to attest to the blood pressure readings he obtained at home, as reported to his private treatment providers. However, the Board observes that the Veteran's reported home blood pressure readings do not meet the criteria for a compensable rating, and the Board concludes that the medical findings on examination are of greater probative value than the Veteran's allegations regarding the severity of his hypertension because objectively measuring blood pressure requires the use of a sphygmomanometer or blood pressure meter. Finally, the Board also considered the August 2012 assertion by the Veteran's representative that the Veteran's diastolic pressure had consistently been 110 or more without the Clonidine prior to May 2011; however, the Board finds that this statement is contradicted by medical evidence of record. D. Nephrotic Syndrome The Veteran's nephrotic syndrome is rated as noncompensable pursuant to 38 C.F.R. § 4.115b, Code 7599-7502 for chronic nephritis. Chronic nephritis is rated as renal dysfunction under 38 C.F.R. § 4.115a. Requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN more than 80mg%; or, creatinine more than 8mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular 100 Persistent edema and albuminuria with BUN 40 to 80mg%; or, creatinine 4 to 8mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion 80 Constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101 60 Albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 30 Albumin and casts with history of acute nephritis; or, hypertension non-compensable under diagnostic code 7101 0 38 C.F.R. § 4.115a (2012). During an August 2008 fee-basis VA examination prior to separation from service, the Veteran reported his nephritis syndrome, diagnosed in 1995, did not require dialysis and he did not experience functional impairment due to this disability. He reported weakness, fatigue, and limitation of exertion in relation to a urinary system problem. He denied weight loss. He stated that he was followed monthly by a nephrologist and had 3-4 grams of protein in a 24-hour collection. On examination, he appeared well developed, well nourished, and in no acute distress; there was no edema. Blood pressure was reported as normal and recorded as 120/80, 120/78, and 118/76. Urinalysis revealed the presence of elevated protein, which was noted to be insignificant. Urinalysis was absent of red blood cells, hyaline casts, and granular casts. Private treatment records from B. A., M.D., dated from September 2008 through July 2011 reflected blood pressure readings that equate to noncompensable hypertension for VA purposes. In October 2010, the Veteran reported that his right foot started swelling one week earlier, but the swelling had somewhat subsided. He reported pain in his right foot at the first metatarsophalangeal joint. In a private treatment record dated in December 2008, the Veteran's chief complaint was possible shingles. He was observed to be in distress secondary to pain and had elevated blood pressure, reading 150/108. During a follow-up visit a few days later, he indicated that his pain had slightly improved but was ongoing. He also reported tachycardia. His blood pressure was recorded as 129/100. During follow-up visits in January 2009, his blood pressure was recorded as 113/86 and 111/79. During private treatment with F. T., M.D., for cardiac complaints between January and February 2009, blood pressure was recorded as 124/78, 108/75, and 115/78. On each of three examinations, there was no edema. During a November 2009 renal follow-up visit with B. A., M.D., the Veteran did not report having any edema, and none was observed on examination. The report indicated that an October 2009 renal ultrasound/Doppler was okay. Physical examination of the extremities was reported as normal with no edema. The report contained post-service monthly or bimonthly urinalysis data from October 2008 through November 2009. Albumin was present in the urine; however, neither hyaline and granular casts nor red blood cells were documented. The highest BUN level was reported as 21 in October 2008, and the highest creatinine level was reported as 1.54 in September 2009. On VA examination in January 2010, blood pressure was recorded as 100/60 and weight change was reported as none. Urinalysis was negative for hyaline or granular casts or red blood cells. The Veteran was afforded a VA nephritic syndrome examination in May 2010. He reported intermittent swelling of his ankles bilaterally with the last episode in December 2009 and reported no weight change. Blood pressure was recorded as 100/70, 98/72, and 100/72; and the Veteran appeared in no acute distress on examination. The examiner indicated that there was no clinical sign of nephritic syndrome noted on examination. He noted that labs in January 2010 showed protein in urine and creatinine was 1.4 with normal creatinine ranging from 0.6 - 1.3. His BUN, albumin, protein in blood was reported as within normal limits. An April 2011 urinalysis report order by J. S., M.D., identified albumin and hyaline casts. Granular casts or red blood cells were not identified. In May 2011, the Veteran was admitted to Methodist Hospital for four days with a presenting complaint of severe headache and chest pain. An inpatient urinalysis report revealed protein, granular casts 2, and hyaline casts 2 to 5, and red blood cells less than 1. By the evening of the second day of admission until his discharge, diastolic pressure was consistently below 100, and systolic pressure was consistently below 160. The Veteran was provided with a nephrology consultation by B. A., M.D., due to his kidney and related problems with history of focal glomerulosclerosis and nephrotic syndrome. He reported being under stress at work, but that he had also been under stress at work even for a long time in the past. He also reported that for a year he had not been compliant using his CPAP for his obstructive sleep apnea, and his wife, a nurse, reported that he sometimes stopped breathing momentarily. On physical examination, there was no edema of the extremities. Dr. B. A. reviewed the May 2011 urinalysis report notable for 3+protein, granular casts 2, hyaline casts 2 to 5, and red blood cells less than 1. The assessment included focal segmental glomerular sclerosis with chronic kidney disease stage 3; the plan was to quantitate his proteinuria. Dr. B. A., who had regularly followed the Veteran for his nephrotic syndrome, also indicated that the Veteran had a history of right great toe pain with hyperuricemia (gout) in September 2010. Throughout the four-day admission, examination findings indicated there was no edema present. During a July 2011 VA genitourinary examination, blood pressure was recorded as 132/74, and a weight gain of less than 10 percent of the Veteran's baseline was reported. There was no peripheral edema on physical examination. During private treatment with J. O., M.D., in February 2012, the Veteran denied any complaints and indicated that his blood pressure was controlled. His blood pressure was recorded as 110/65, and edema was not present on examination. During an April 2012 follow-up visit, the Veteran denied any leg edema, but reported occasional blood pressure spikes in the 180s with average systolic pressure in the 130s. Dr. J. O. indicated that the Veteran's hypertension was controlled on the current regimen, but he likely needed phlebotomy due to hemoglobin 17.1 and causing blood pressure spikes. He also commented that albumin was normal and there was no edema on examination. A July 2012 urinalysis report ordered by J. O., M.D., indicated that protein was present in the urine; however, neither hyaline casts nor red blood cells were seen. In a follow-up visit with Dr. J. O. in July 2012, The Veteran reported feeling okay. He was observed to be in no acute distress, and edema was not present on examination. Blood pressure was recorded as 110/75, which Dr. J. O. noted was controlled. Dr. J. O. also indicated that the Veteran had stable kidney function and was asymptomatic. In August 2012, the Veteran testified that he believed a compensable rating was warranted for his nephritis condition because it was the main reason he was discharged from the military. The Board has carefully considered the medical and lay evidence of record, but finds that an initial compensable rating for nephrotic syndrome is not warranted. Although the Veteran's nephrotic syndrome has been manifested by constant albumin, it has not been manifested by albumin constant with hyaline and granular casts or red blood cells. Rather, granular and hyaline casts and red blood cells were detected on a single occasion in May 2011; however, they were not detected in prior or subsequent urinalysis studies of record. An April 2011 private treatment record documented albumin and hyaline casts, but granular casts or red blood cells were not present. Diagnostic Code 7502 requires albumin constant or recurrent with hyaline and granular casts or red blood cells. These criteria have not been met. Similarly, while the Veteran reported swelling in his right foot with pain in his first metatarsophalangeal joint in October 2010, Dr. B. A. attributed those symptoms to hyperuricemia or gout. Also, although the Veteran reported intermittent bilateral ankle swelling on VA examination in May 2010, there was no clinical sign of nephritic syndrome on examination. Therefore, objective medical evidence of record does not document transient or slight edema. Finally, the Board has concluded based on the evidence of record that the Veteran's hypertension is not at least 10 percent disabling under Diagnostic Code 7101. According, the Board finds that a compensable rating for nephrotic syndrome is not warranted and the claim must be denied. E. Erectile Dysfunction The Veteran's erectile dysfunction is rated as noncompensable pursuant to 38 C.F.R. § 4.115b, Diagnostic Code 7599-7522. A compensable, 20 percent, rating is warranted where the penis has a deformity with loss of erectile power. 38 C.F.R. § 4.115b, Diagnostic Code 7522 (2012). Diagnostic code 7522 uses the conjunctive "with." That is, both deformity and loss of erectile power must be present to meet the criteria for a 20 percent rating under this diagnostic code. Either symptom, by itself, does not approximate the disability picture that would warrant a 20 percent rating. The regulations provide that where the criteria for a compensable rating are not met, a noncompensable rating must be assigned. 38 C.F.R. § 4.31. During an August 2008 fee-basis VA examination, the Veteran reported experiencing erectile dysfunction. Genital examination findings were reported as within normal limits. During a January 2010 VA genitourinary examination, the Veteran described a history of erectile dysfunction associated with taking some medications. Genitourinary examination was reported as normal. During a July 2011 VA genitourinary examination, the Veteran again described a history of erectile dysfunction. No deformity was reported on examination. Private treatment records associated with the claims file do not identify any penile deformity. During the August 2012 hearing, the Veteran's representative acknowledged on behalf of the Veteran that he did not meet both criteria for a compensable rating for erectile dysfunction because the Veteran had loss of erectile power, but not penile deformity. In this case, a preponderance of medical and lay evidence shows that the service-connected erectile dysfunction does not meet the applicable criteria for a compensable rating. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not applicable and the appeal must be denied. 38 U.S.C.A. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990); Ortiz v. Principi, 274 F. 3d 1361 (Fed. Cir. 2001). F. Extraschedular Consideration and Conclusion As a final matter, the Board has also considered whether the Veteran's tension headaches, left foot calcaneal spur, hypertension, nephrotic syndrome, and erectile dysfunction disabilities present 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 extraschedular rating is warranted for any of the disabilities on appeal. See 38 C.F.R. § 3.321(b)(1) (2012); 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 disability level and symptomatology for each disability on appeal, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. Thus, his disability picture regarding his tension headaches, left foot calcaneal spur, hypertension, nephrotic syndrome, and erectile dysfunction disabilities is contemplated by the rating schedule, and the assigned schedular ratings are, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted for any of the disabilities on appeal. For all the foregoing reasons, the Board finds that the most probative and credible evidence does not support the assignment of higher initial ratings for tension headaches, a left foot calcaneal spur, hypertension, nephrotic syndrome, or erectile dysfunction disabilities at any point during the course of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). Therefore, entitlement to an increased rating for any of the disabilities on appeal is not warranted, and the claims must be denied. In reaching the conclusions above, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims for higher initial ratings, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). ORDER An initial rating in excess of 30 percent for tension headaches is denied. An initial rating in excess of 10 percent for a left foot calcaneal spur is denied. An initial compensable rating for hypertension is denied. An initial compensable rating for nephrotic syndrome is denied. An initial compensable rating for erectile dysfunction is denied. ____________________________________________ J. A. MARKEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs