Citation Nr: 1308901 Decision Date: 03/15/13 Archive Date: 03/25/13 DOCKET NO. 09-35 339 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an effective date of service connection for hypertension prior to September 26, 2005. 2. Entitlement to an initial evaluation in excess of 10 percent for service-connected hypertension. (The issue of whether the recoupment of separation pay through withholding of disability compensation payments is valid is addressed in a separate Board decision.) REPRESENTATION Appellant represented by: Christopher Taravella, Attorney-At-Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD W.H. Donnelly, Counsel INTRODUCTION The Veteran served on active duty with the United States Navy from July 1989 to March 1998. These matters come before the Board of Veterans' Appeals (Board) on appeal from a February 2006 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which granted service connection for hypertension and assigned a 10 percent evaluation effective from September 26, 2005. The Veteran testified at a December 2012 hearing held before the undersigned Veterans Law Judge via videoconference from the Chicago, Illinois, RO. A transcript of the hearing is associated with the Veteran's electronic file as maintained as part of the Virtual VA system; all electronic files have been reviewed in connection with the appeal. The issues of entitlement to service connection for a mental disorder, muscle cramps, and obesity, each to include as secondary to hypertension, were raised by the Veteran at her December 2012 hearing, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The Board has additionally considered whether a claim of entitlement to a finding of total disability based on individual unemployability (TDIU) has been raised as part of the claim for increased evaluation. A claim for increased evaluation includes a claim for a finding of TDIU, where there is evidence of record regarding unemployability. Rice v. Shinseki, 22 Vet. App. 447 (2009). As here the Veteran has reported that she continues to work, despite allegations of occupational impact of hypertension, no TDIU claim is inferred. FINDINGS OF FACT 1. The Veteran was discharged from service effective March 12, 1998. 2. An initial claim for compensation benefits, to include service connection for hypertension, was received on September 26, 2005. 3. At all times during the period under appeal, hypertension has been manifested by a need for continuous medication and a history of diastolic pressures of 100 or more. 4. At no time during the period under appeal has hypertension been manifested by diastolic pressures predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for an effective date prior to September 26, 2005, for the grant of service connection for hypertension are not met. 38 U.S.C.A. §§ 5107, 5110 (West 2002); 38 C.F.R. §§ 3.102, 3.400 (2012). 2. The criteria for an initial evaluation in excess of 10 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist 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; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a). These appeals arise from the Veteran's disagreement with the initially assigned effective date and evaluation following the grant of service connection for hypertension. Once service connection is granted the claim is substantiated, additional notice is not required, and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). No additional discussion of the duty to notify is therefore required with regard to the effective date assigned for service connection of hypertension. VA also has a duty to assist the Veteran in the development of the claim, which is not abrogated by the granting of service connection. This duty includes assisting the Veteran in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Veteran's service treatment records and VA medical treatment records have been obtained. 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159. At the December 2012 hearing, the Veteran alleged that there were outstanding VA treatment records which would reflect higher diastolic and systolic blood pressures which had not yet been associated with the claims file. She argued that readings from 2008 forward were not of record. At the time of the hearing, the undersigned indicated that should this be correct, a remand was indicated. However, a review of the claims file shows VA treatment records from December 2001 to August 2011, which include periodic blood pressure readings taken in conjunction with the Veteran's regular visits, as well as specific episodes of treatment for hypertension complaints. Moreover, while there may well be additional, updated VA treatment records, there is no evidence or allegation of worsening of the blood pressures. Further remand for updated records would therefore not be an efficient use of judicial resources. The Veteran has not indicated, and the record does not contain evidence, that she is in receipt of disability benefits from the Social Security Administration. 38 C.F.R. § 3.159 (c)(2). VA examinations have been conducted; the examiners have made all findings necessary to the application of the rating criteria. 38 C.F.R. § 3.159(c) (4); Barr v. Nicholson, 21 Vet. App. 303, 307 (2007). The examinations are adequate for adjudication. The Veteran has argued for requesting a specialist opinion regarding hypertension under 38 C.F.R. § 20.901(a); however, the allegations raised relate to the conditions referred above that are claimed as secondary to hypertension. There is no need for an opinion here to apply the Schedular criteria applicable to hypertension. Similarly, there is no need for a vocational rehabilitation evaluation. Such is not necessary for application of 38 C.F.R. § 3.321 to hypertension, as is discussed in greater detail below, and many of the allegations of occupational impact are related to the claimed secondary conditions. There is no indication in the record that any additional evidence, relevant to the issues decided, is available and not part of the claims file. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of the case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 20 Vet. App. 537 (2006); see also Dingess/Hartman, 19 Vet. App. at 486; Shinseki v. Sanders/Simmons, 129 S. Ct. 1696 (2009). Effective Date Applicable regulations provide generally that the effective date for a grant of benefits based on an original claim will generally be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 C.F.R. § 3.400. An effective date prior to the date of receipt of the claim is permissible in some instances where the date of receipt was within one year of separation from service. 38 C.F.R. § 3.400(b)(2). Here, the Veteran separated from service on March 12, 1998, as reflected on her DD Form 214. She did not file a formal claim for disability compensation benefits until September 26, 2005,when a VA Form 21-526, Veterans Application for Compensation and/or Pension, was received. This was almost seven years after separation. Further, the file reflects no communication from the Veteran prior to September 2005 which might be considered an informal claim for benefits. 38 C.F.R. § 3.155. The Veteran does not dispute that the September 2005 submission represents her initial claim for benefits. She so stated at her December 2012 hearing, reporting that prior to that time, she had been unaware she was eligible for VA benefits. September 26, 2005 represents the earliest possible date of receipt of a claim. The Board does not dispute that entitlement to the benefit arose prior to that date. Hypertension was first manifested fairly early in the Veteran's military career. It was present at separation, and, as a chronic disease, was present from 1998 to the receipt of the claim in 2005. However, the applicable law and regulations provide that it is the later of the date of receipt of the claim or the date entitlement arose which is controlling. An effective date prior to September 26, 2005, is not assignable. The preponderance of the evidence is against the claim; there is no doubt to be resolved. Evaluation In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found, however. This practice is known as "staged" ratings." Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Hypertension is evaluated under the provisions of Code 7101, which provides that diastolic pressures of predominantly 100 or more, or; systolic pressures predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more and a requirement for continuous medication for control warrant assignment of a 10 percent evaluation. 38 C.F.R. § 4.104, Code 7101. This is the currently assigned evaluation. Diastolic pressures predominantly 110 or more, or; systolic pressure predominantly 200 or more are rated 20 percent disabling. A 40 percent evaluation is assigned for diastolic pressure predominantly 120 or more, while diastolic pressures which are predominantly 130 or more warrant a 60 percent evaluation. 38 C.F.R. § 4.104, Code 7101. The Veteran's hypertension is service-connected effective from September 26, 2005. The current appeal is concerned solely with the evaluation assigned from that point forward. Although the history of blood pressures prior to service connection was important in determining entitlement to the current 10 percent evaluation, all higher ratings focus on current readings, meaning those since the grant of entitlement. The Board acknowledges the Veteran's reports of extremely high blood pressures in service and prior to September 2005, when not taking regular medication. In service, diastolic readings hovered at or just below 100 until medication was prescribed. VA treatment records demonstrate that after service, without medication, diastolic pressures regularly exceeded 100. Readings in 2001 and 2002, when the Veteran first sought VA treatment, reflect pressures of 240/120, 182/112, 205/108, 206/124, and similar radically elevated readings. However, once medication was started and used regularly, pressures quickly came down, reflecting diastolic pressures in the 80's, and systolic pressures far less than 160 on average. At the October 2005 VA examination, pressures were 140/86, 138/84, and 138/84. A second examination was performed in May 2008; readings at that time were 118/70, 124/80, and 130/80. The examiner commented that good control was shown. While some cardiomegaly was seen on x-ray, the EKG was normal, and no heart condition or other complication of hypertension was demonstrated. VA treatment records since 2005 corroborate the examination findings. Blood pressure was 132/87 in February 2006. She was prescribed medication, and was not seen again for more than a year. In May 2007, the Veteran repeatedly failed to appear for care appointments, and ran out of medications. She stated her mother had died, and she had to deal with that. When she was seen again in June 2007, her pressures were 139/84 (immediately after resuming medication) and 110/78 after two weeks of treatment. August 2007 pressure was 136/80. In January 2008, it was 130/80. In May 2008, the Veteran reported to VA doctors that when she checked her pressure at local supermarkets, it was in the 140's/80's. 133/87 was the reading in September 2008. One March 2009 reading was 131/80, and another was 133/84. In September 2009, it was read as 149/72, and in March 2010 it was 136/85. A June 2010 reading was 136/84; the Veteran reported that when she monitored her blood pressure at home it ran in the 130's/80's range. In August 2010, pressure was 130/85. A range of 140's/80's was reported by the Veteran in January 2011, based on her home monitoring, and in August 2011, blood pressure was 135/87. Over the course of the appeal, the Veteran's blood pressures have been remarkably consistent, both on objective testing by professionals, and according to the Veteran's competent reports of her home monitoring. Diastolic pressures do not appear to have exceeded 90 since the date of claim, and systolic pressures have been below 150. Even assuming that there are instances when blood pressure did reach higher values, such as in early 2007 when the Veteran was off medication for several weeks, the overwhelming majority of readings are well below those required for assignment of a higher schedular evaluation. Hypertension is simply not manifested by diastolic pressures predominantly 110 or more, or systolic pressures predominantly 200 or more. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran's disability level and symptomatology. Id. At 115. If the schedular rating criteria do reasonably describe a veteran's disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran's level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. At 116. If an exceptional disability picture including such factors as marked interference with employment and frequent periods of hospitalization exists, the matter must be referred 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. Here, the Schedular criteria are adequate. They fully contemplate the reported hypertensive symptoms described by the Veteran, specifically rising diastolic and systolic pressures. There are no hypertensive symptoms not considered by the Schedular criteria. Accordingly, no further discussion of entitlement to an extraschedular evaluation under 38 C.F.R. § 3.321 is necessary. Thun v. Peake, 22 Vet. App. 111 at 115 (2008). However, the Board would also note that even if the second step of the Thun test were applied, there is no evidence that an exceptional disability picture is presented. The Veteran has never been hospitalized for hypertension, according to medical records and her own statements. She has also reported to examiners and treating doctors that she has not missed work due to hypertension. Thun v. Peake, 22 Vet. App. 111 at 116 (2008). The Board stresses that, as the Veteran and her attorney were informed at the December 2012 hearing, other manifestations, such as a mental health disorder or muscle cramping, claimed as secondary to hypertension are not considered in assigning the evaluation here. These are not symptoms of hypertension, they are separately claimed and diagnosable disabilities for which secondary service connection is being alleged. Those conditions have been referred to the AOJ for appropriate action, above. The preponderance of the evidence is against the claim; there is no doubt to be resolved. An initial evaluation in excess of 10 percent for hypertension is not warranted. (Continued on next page.) ORDER An effective date of service connection for hypertension prior to September 26, 2005, is denied. An initial evaluation in excess of 10 percent for service-connected hypertension is denied. ______________________________________________ MICHAEL A. PAPPAS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs