Citation Nr: 1308058 Decision Date: 03/11/13 Archive Date: 03/20/13 DOCKET NO. 09-44 974 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an acquired psychiatric disability, other than posttraumatic stress disorder (PTSD). 2. Entitlement to a disability evaluation in excess of 10 percent for service connected status post anterior cruciate ligament reconstruction of the right knee with degenerative joint disease prior to February 15, 2012 and in excess of 20 percent after February 15, 2012. 3. Entitlement to a disability evaluation in excess of 10 percent for service connected degenerative arthritis of the left knee. 4. Entitlement to a compensable evaluation for service connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD E. D. Anderson, Counsel INTRODUCTION The Veteran served on active duty from August 1986 to January 2000. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a December 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida, as well as a September 2012 rating decision of the Appeals Management Center in Washington, D.C.. The Veteran testified before the undersigned Veterans Law Judge at a May 2011 Travel Board hearing, and a transcript of this hearing is of record. In December 2011, the Board remanded the issues of entitlement to an increased disability evaluation for the Veteran's service connected right knee disability, left knee disability, and hypertension to the RO via the Appeals Management Center (AMC) in Washington, D.C. for additional development, to include VA examinations. The action specified in the December 2011 Remand completed, the matter has been properly returned to the Board for appellate consideration. See Stegall v. West, 11 Vet. App. 268 (1998). In the December 2011, the Board also denied the issue of entitlement to service connection for PTSD. In a June 2012 Order, the United States Court of Appeals for Veterans' Claims (Court) granted a Joint Motion for Remand by both parties and remanded the issue for the Board to consider whether the Veteran was entitled to service connection for a psychiatric disability other than PTSD. (The Court did not vacate the Board's decision denying service connection for PTSD.) The issues of entitlement to service connection for an acquired psychiatric disability other than PTSD and entitlement to higher disability ratings for the Veteran's service connected right and left knee disabilities 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's hypertension does not results in diastolic pressures predominantly 100 millimeters of mercury or greater or and systolic pressures predominantly 160 millimeters of mercury or greater and there is no evidence of a history of diastolic pressure of 100 millimeters of mercury or more. CONCLUSION OF LAW The criteria for a compensable evaluation for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has reviewed all of the evidence in the claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Indeed, the Federal Circuit has held that the Board must review the entire record, but does not have to discuss each piece of evidence. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board's analysis below will focus specifically on what the evidence shows, or fails to show, as to these claims. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board must note that in reviewing this case the Board has not only reviewed the Veteran's physical claims file, but the Veteran's file on the "Virtual VA" system to insure a total review of the evidence. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. In Fenderson, the U.S. Court of Veterans Appeals (now the U.S. Court of Appeals for Veterans Claims; hereinafter the Court) held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder. In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126. Hart appears to extend Fenderson to all increased evaluation claims. Service connection for hypertension was established in a June 2000 rating decision in which the RO assigned a non compensable (0 percent) evaluation, effective from January 2000. In February 2007, the Veteran submitted a claim seeking an increased disability rating for his service connected hypertension. His claim was denied in a December 2007 RO decision, and the Veteran has appealed. A 10 percent evaluation is assigned for hypertensive vascular disease with 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. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Id. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Id. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. at Note (1). For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Id. VA outpatient treatment records were reviewed and did not show that the Veteran's diastolic pressure is predominantly 100 or more, or, that his systolic pressure is predominantly 160 or more. At a VA examination in December 2007, the Veteran's blood pressure was 132/84, 128/81, and 137/87. At a February 2012 VA examination, his blood pressure was 133/83, 129/83, and 131/81. It appears from the evidence of record that the Veteran has for many years controlled his hypertension with continuous medication. However, to be afforded a minimum rating under Diagnostic Code 7101, the Veteran's hypertension must require continuous medication for control and have a history of diastolic pressure predominantly 100 or more. The Veteran reported at his February 2012 examination that his blood pressure usually runs around 120s-130s/80s and a review of the Veteran's VA examinations, as well as VA treatment records appears to confirm this. The Board was unable to find any evidence of record that the Veteran has a history of diastolic pressure of 100mm or greater and the Veteran has not suggested that such evidence is available. Furthermore, it does not appear that the Veteran's hypertension has any affect on his occupation or his activities of daily living. In fact, it was noted that the Veteran's hypertension did not impact his ability to work, and that he had not lost any time from school (as a full time student). The Board has also considered whether the Veteran's disability warrants referral for extraschedular consideration. To accord justice in an exceptional case where the scheduler standards are found to be inadequate, the field station is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1) (2012). The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In a recent case, the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App. 111 (2008). The Court stated that the RO or the Board must first determine whether the schedular rating criteria reasonably describe the veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. Id. If the RO or the Board finds that the schedular evaluation does not contemplate the veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board finds that the schedular rating criteria reasonably reflect the Veteran's disability levels and symptomatology. The Veteran's reported difficulties are not so exceptional or unusual a disability picture as to render impractical application of regular schedular standards. While at his May 2011 hearing the Veteran testified that he noticed lightheadedness, headaches, and mood swings if he does not take his hypertension medication, the Board notes that these symptoms apparently only occur when the Veteran fails to take his prescribed medications as instructed. Thus it appears that if the Veteran complies with his physician's advice and takes his medication as prescribed, his hypertension is asymptomatic. Therefore, no referral for extraschedular consideration is required and no further analysis is in order. Thus, as there is no evidence of hypertensive vascular disease with diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more and a requirement continuous medication for control, a disability rating in excess of 0 percent is not warranted for any period on appeal. The evidence in this case is not so evenly balanced so as to allow application of the benefit-of- the-doubt rule. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102 (2012). The Duty to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), the United States Department of Veterans Affairs (VA) has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Dingess v. Nicholson, 19 Vet. App. 473 (2006), the U.S. Court of Appeals for Veterans Claims held that, upon receipt of an application for a service-connection claim, 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating, or is necessary to substantiate, each of the five elements of the claim, including notice of what is required to establish service connection and that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. The Board notes that in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), the United States Court of Appeals for Veterans' Claims (Court) clarified VA's notice obligations in increased rating claims. The Federal Circuit recently reversed the Veterans Court's decision in Vazquez-Flores, finding that VA is not required to tailor § 5103(a) notice to individual Veterans or to notify them that they may present evidence showing the effect that worsening of a service-connected disability has on their employment and daily life for proper claims adjudication. For an increased rating claim, section § 5103(a) now requires that the Secretary notify claimants generally that, to substantiate a claim, they must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability. See Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), rev'd sub. nom. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (holding that notice specific to individual Veterans is no longer required in increased compensation claims). Here, the VCAA duty to notify was satisfied by a letter sent to the Veteran in July 2007. This letter informed the Veteran of what evidence was required to substantiate his claim, as well as of VA and the Veteran's respective duties for obtaining evidence. The Veteran was also informed of how VA assigns disability ratings and effective dates. VA also has a duty to assist the veteran in the development of the claim. This duty includes assisting the veteran in the procurement of service medical records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The RO has obtained the Veteran's service treatment records, as well as VA treatment records. The Veteran was provided an opportunity to set forth his contentions during the May 2011 Travel Board hearing before the undersigned Veterans Law Judge. The appellant was afforded a VA medical examination in December 2007 and February 2012. These examinations are based upon review of the claims folder, and thoroughly discuss the nature and severity of the Veteran's disability as well as the functional impairments resulting therefrom. These examination reports are adequate for rating purposes. See 38 C.F.R. § 4.2. Since this examination, there is no lay or medical evidence suggesting an increased severity of disability. As such, additional examination is not warranted. VAOPGCPREC 11-95 (Apr. 7, 1995). Significantly, neither the appellant nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained. Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER Entitlement to a compensable evaluation for hypertension is denied. REMAND The Veteran is also seeking entitlement to service connection for an acquired psychiatric disability other than PTSD, as well as increased disability evaluations for his service connected right and left knee disabilities. The Veteran's VA treatment records, as well as a December 2007 VA examination note a diagnosis of depression. Unfortunately, neither the VA examiner nor the Veteran's treatment providers has offered an opinion regarding the etiology of this disability. However, at his May 2011 Travel Board hearing, the Veteran testified that the VA doctor who prescribed him medication for his depression led him to believe that his disability was related to his military service and also that he began manifesting symptoms of an acquired psychiatric disability in service, although he did not receive treatment until after separation from service. Accordingly, on remand, the Veteran should be afforded a VA psychiatric examination. The examiner should note any acquired psychiatric disabilities from which the Veteran suffers (if any) and opine whether it is at least as likely as not (fifty percent or greater) that these disabilities had onset in service or were caused or permanently aggravated by the Veteran's active military service. A rationale for the his or her opinion should be provided Additionally, the record reflects that the Veteran was forced to stop performing his previous employment as an electrician because of his service connected left and right knee disabilities. He has been receiving education and vocational rehabilitation benefits from VA to help him train for a new career. These records, particularly any physical or psychological evaluations administered by VA as part of the rehabilitation process, are potentially relevant to the Veteran's claims. In Moore v. Gober, 10 Vet. App.436, 440 (1997), the United States Court of Appeals for Veterans Claims held that where it is a matter of record that a veteran has received benefits under the education and vocational rehabilitation program, the Board is on notice that such records exist and is obligated to obtain and consider them. Accordingly, on remand, the RO should associate all the Veteran's education and vocational rehabilitation records with his claims folder. Finally, it appears that not all of the Veteran's VA outpatient treatment records have been associated with the Veteran's claims folder, including his Virtual VA folder. On remand, the RO should ensure that all VA treatment records from the time of the Veteran's separation from service in June 2000 through the present are associated with the Veteran's claims folder. In particular, the AMC should ensure that records from the VAMC in Tampa and Orlando, Florida are obtained. Accordingly, the case is REMANDED for the following action: 1. Associate all of the Veteran's VA treatment records from January 2000 through the present with the Veteran's claims folder. If additional VA treatment records are not available, a formal finding of such should be placed of record. 2. Associate all of the Veteran's VA education and vocational rehabilitation records, including all physical and psychological evaluations, with the Veteran's claims folder. 3. Once this is done, the RO should schedule the Veteran for a VA psychiatric examination. The examiner should note any functional impairment caused by the Veteran's disability, including a full description of the effects of his disability upon his ordinary activities, if any. The VA examiner is asked to diagnose any acquired psychiatric disabilities from which the Veteran suffers and render an opinion as to whether it is at least as likely as not (fifty percent or greater) that these disabilities had onset in service or were caused or permanently aggravated by the Veteran's active military service. The examiner should provide a rationale for his or her opinion. The Veteran's claim folder and a copy of this REMAND should be furnished to the examiner, who should indicate in the examination report that he or she has reviewed the claims file. All findings should be described in detail and all necessary diagnostic testing performed. 4. When the development requested has been completed, and the RO has ensured compliance with the requested action, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ K. Parakkal Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs