Citation Nr: 1309313	
Decision Date: 03/19/13    Archive Date: 04/01/13

DOCKET NO.  10-13 417	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUES

1.  Entitlement to an effective date earlier than March 9, 2009, for the assignment of a 10 percent rating for hypertension. 

2.  Entitlement to an effective date earlier than April 13, 2009, for the assignment of a 40 percent rating for diabetes mellitus type I (DM).

3.  Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling. 


REPRESENTATION

Appellant represented by:	Oklahoma Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and his father


ATTORNEY FOR THE BOARD

J. Connolly, Counsel


INTRODUCTION

The Veteran served on active duty from January 2004 to September 2005.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).  In July 2011, the Veteran was afforded a hearing before a Veterans Law Judge via video conference from the RO.  

In October 2011, the Board remanded this case.  The Veteran was recently notified in November 2012 that the Veterans Law Judge who held the Board hearing in July 2011 is no longer employed by the Board.  The Veteran was offered another hearing, but did not request one.

The issue of an increased rating for hypertension is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.


FINDINGS OF FACT

1.  An August 2006 rating decision granted service connection for DM and assigned a 20 percent rating effective September 24, 2005, and also granted service connection for hypertension and assigned a noncompensable rating effective September 24, 2005; the Veteran did not appeal these ratings.


2.  On March 9, 2009, a formal claim for an increased rating for hypertension was received.  

3.  On April 13, 2009, a formal claim for an increased rating for DM was received.  

4.  In an August 2009 rating decision, the RO granted an increased rating for DM of 20 percent effective April 13, 2009, and also granted an increased rating of 10 percent for hypertension effective March 9, 2009.

5.  In April 2012, additional service records were received, but they do not include evidence reflecting that a 10 percent rating was warranted for hypertension or that a 40 percent rating was warranted for DM.  

6.  With regard to hypertension, an April 2008 record may be considered an informal claim for an increased rating; further this record and subsequent records constitute evidence of treatment showing an increase in severity within the year preceding March 9, 2009; thus, it is factually ascertainable that the Veteran's hypertension disability was 10 percent disabling during that one year period preceding the March 9, 2009 claim.

7.  There was no formal or informal claim for an increased rating for DM prior to the April 13, 2009 claim.  

8.  With regard to DM, there is no evidence of treatment showing an increase in severity within the year preceding  April 13, 2009; thus, it is not factually ascertainable that the Veteran's DM disability was 40 percent disabling or more during that time.



CONCLUSIONS OF LAW

1.  The criteria for an effective date of March 9, 2008, but no earlier, for the grant of a 10 percent rating for hypertension have been met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2012).

2.  The criteria for an effective date prior to April 13, 2009, for the grant of a 40 percent rating for DM have not been met.  38 U.S.C.A. § 5110 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.400 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Veterans Claims Assistance Act of 2000 (VCAA)

VA has met all statutory and regulatory notice and duty to assist provisions.  See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the Veteran and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim, including apprising him or her of the information and evidence he or she is responsible for providing versus the information and evidence VA will obtain for him or her.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002).  These notice requirements apply to all five elements of a service-connection claim:  (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006), aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007).  So this notice must include information that a "downstream" disability rating and an effective date for the award of benefits will be assigned if service connection is granted.  Id., at 486.

Ideally, this notice should be provided prior to an initial unfavorable decision on a claim by the RO.  Pelegrini v. Principi, 18 Vet. App. 112 (2004) (Pelegrini II).  If, however, for whatever reason it was not, or the notice provided was inadequate, this timing error can be effectively "cured" by providing any necessary notice and then readjudicating the claim - including in a statement of the case (SOC) or supplemental SOC (SSOC), such that the intended purpose of the notice is not frustrated and the Veteran is given an opportunity to participate effectively in the adjudication of the claim.  See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007) (Mayfield IV); Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006).

The U.S. Supreme Court has made clear that VCAA notice errors are not presumptively prejudicial, rather, must be determined on a case-by-case basis, and that, as the pleading party attacking the agency's decision, the Veteran, not VA, bears this burden of proof of establishing there is a VCAA notice error and, moreover, above and beyond this, that the error is unduly prejudicial, meaning outcome determinative of the claim.  See Shinseki v. Sanders, 129 S. Ct. 1696 (2009).

In this case, the claim for an earlier effective date is a "downstream" issue in that it arose from a grant of a higher rating for DM and hypertension via the August 2009 rating decision.  The prior VCAA letters dated in April and May 2009 addressed the increased rating issues and also explained how VA determines an effective date.  Thus, the Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of the claim, and is not prejudiced by any technical notice deficiency along the way.  See Conway v. Principi, 353 F.3d 1369 (Fed. Cir., 2004).  The VCAA letters, especially in combination, indicated the type of evidence and information needed to substantiate the claims and apprised the Veteran of the Veteran's and VA's respective responsibilities in obtaining this supporting evidence.  The letters notified the Veteran that a "downstream" disability rating and an effective date for the award of benefits would be assigned if the claims were granted, in compliance with Dingess.

VA also fulfilled its duty to obtain all relevant evidence with respect to the issue on appeal.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  The Veteran's pertinent medical records have been obtained, to the extent available.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  

The Board remanded this case in October 2011 for VA to procure copies of all records of treatment of the Veteran for DM and hypertension, to include from September 2005 to March 2007, at the Vandenberg Air Force base and at any facility affiliated with the Lompoc Healthcare District, to include a community center and/or the Lompoc Valley Medical Center.  These records were obtained.  There is no indication in the record that any additional evidence, relevant to the issue decided herein, is available and not part of the claims file.  The records satisfy 38 C.F.R. § 3.326.

Furthermore, in obtaining this additional medical comment, the Board is satisfied there was compliance with this remand directive.  See Stegall v. West, 11 Vet. App. 268 (1998) (indicating the Veteran is entitled, as a matter of law, to compliance with a remand directive and that the Board, itself, commits error in failing to ensure this compliance).  See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); and D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is acceptable to have "substantial", though not "exact", compliance with a remand directive).

Thus, in summary, the Board finds that "it is difficult to discern what additional guidance VA could have provided to the Veteran regarding what further evidence he should submit to substantiate his claim."  Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004); see also Livesay v. Principi, 15 Vet. App. 165, 178 (2001) (en banc) (observing that "the VCAA is a reason to remand many, many claims, but it is not an excuse to remand all claims."); Reyes v. Brown, 7 Vet. App. 113, 116 (1994); Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (both observing circumstances as to when a remand would not result in any significant benefit to the Veteran).



Earlier Effective Dates

An August 2006 rating decision granted service connection for DM and assigned a 20 percent rating effective September 24, 2005 (the day after service separation) and additionally granted service connection for hypertension and assigned a noncompensable rating also effective September 24, 2005.  The Veteran did not appeal these ratings and no further correspondence was received from him until March 9, 2009, when a claim for an increased rating for hypertension was received.  Shortly thereafter, on April 13, 2009, a formal claim for an increased rating for DM was received.  In an August 2009 rating decision, the RO granted an increased rating of 10 percent for hypertension effective March 9, 2009, the date of the claim for an increase for that disability, and also granted an increased rating for DM of 20 percent effective April 13, 2009, the date of the claim for an increase for that disability.  

Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101.  Diagnostic Code 7101 hypertensive vascular disease (hypertension and isolated systolic hypertension), is assigned a 10 percent rating for diastolic blood pressure predominantly 100 or more, or systolic blood pressure predominantly 160 or more.  A 20 percent rating is warranted for diastolic pressure of predominantly 110 or more, or; systolic pressure that is predominantly 200 or more.  A 40 percent rating is assigned for diastolic pressure that is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more.  A note to the rating criteria provides that a 10 percent rating is the minimum evaluation for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control.  Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  Further addenda to the rating criteria provide that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease.

DM is rated pursuant to 38 C.F.R. § 4.119, Diagnostic Code 7913.  A 10 percent evaluation is warranted for DM which can be managed by diet only.  A 20 percent evaluation is warranted for DM requiring insulin and restricted diet, or; oral hypoglycemic agent and restricted diet.  A 40 percent evaluation is warranted for DM requiring insulin, restricted diet, and regulation of activities.  A 60 percent evaluation is warranted for DM requiring insulin, restricted diet, and regulation of activities with episodes of ketoacidosis or hypoglycemic reactions requiring one or two hospitalizations per year or twice a month visits to a diabetic care provider, plus complications that would not be compensable if evaluated separately.  DM requiring more than one daily injection of insulin, restricted diet, and regulation of activities (avoidance of strenuous occupational and recreational activities) with episodes of ketoacidosis or hypoglycemic reactions requiring at least three hospitalizations per year or weekly visits to a diabetic care provider, plus either progressive loss of weight and strength or complications that would be compensable if separately evaluated, warrants a 100 percent evaluation.  38 C.F.R. § 4.119, Diagnostic Code 7913.  Compensable complications of DM are to be rated separately unless they are part of the criteria used to support a 100 percent evaluation; noncompensable complications are considered part of the diabetic process under Diagnostic Code 7913.  38 C.F.R. § 4.119, Diagnostic Code 7913 and Note 1.

In this case, on remand, the Board obtained service department records from Vandenberg Air Force Base.  Thus, the proper ratings as of the date of service connection must be considered first, prior to consideration of the law and regulations specifically governing effective dates for increased rating claims.  See generally 38 C.F.R. § 3.156(c).  

These newly associated service department records show that the Veteran was seen in February 2005 for newly diagnosed DM and hypertension.  The Veteran was placed on both insulin and oral medication for his DM.  However, it was specifically noted that he was not placed on medication for his hypertension nor was there any indication of diastolic blood pressure predominantly 100 or more, or systolic blood pressure predominantly 160 or more.  Further, with regard to DM, there was no discussion of any regulation of activities due to the DM in these records or on the Veteran's hospitalization discharge report contained therein.  

Although the Veteran and his father testified that the Veteran was placed on hypertension medication on the day that he was diagnosed with DM, this is not what is reflected in these records since they specifically noted that he was not placed on hypertension medication.  In addition, although they also testified that the Veteran was verbally told to regulate his activities, this is also not substantiated in the record.  Rather, the record very clearly shows that the Veteran was counseled regarding his medications for DM, which were also evaluated.  Since the records document such details of the Veteran's DM treatment course, the Board finds that the statements that he was also told to regulate his activities at the same time as this treatment are not credible.  

Thus, this additional service department evidence does not show that the criteria for a 40 percent rating for DM, or higher, were met due to the absence of the requirement of regulation of activities.  Moreover, with regard to hypertension, there was little discussion of the Veteran's specific blood pressure readings and no suggestion that he had diastolic blood pressure predominantly 100 or more, or systolic blood pressure predominantly 160 or more.  It was noted on an undated day in February 2005 during the Vandenberg treatment that the Veteran had readings of 141/92, 137/66, and 150/86, as well as a February 10, 2005 notation that the Veteran's blood pressure readings had been "good" that morning.  Thus, these readings do not meet the criteria for a 10 percent rating even if the Veteran had been placed on medication, as he and his father contend.

Accordingly, while new service records have been associated in conjunction with the claim for earlier effective dates for increased ratings for DM (40 percent) and hypertension (10 percent), the records do not include credible evidence substantiating that the higher ratings were warranted when the Veteran separated from service.  Rather, the clinical evidence which is more probative than the lay evidence, shows that the Veteran did not meet the criteria for increased ratings for hypertension or DM.

Turning to the law and regulations pertaining specifically to earlier effective dates for increased ratings, VA law and regulation provide that unless otherwise provided, the effective date of an award of increased evaluation shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of the application therefor.  38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(o)(1).  The claim must be considered pursuant to the criteria under 38 U.S.C.A. § 5110(b)(2) and 38 C.F.R. § 3.400(o)(2).  "The effective date of an award of increased compensation shall be the earliest date as of which it is ascertainable that an increase in disability had occurred, if application is received within one year from such date."  38 U.S.C.A. § 5110(b)(2).  The implementing regulation summarizes the criteria for an effective date of an award of increased compensation as the "[e]arliest date as of which it is factually ascertainable that an increase in disability had occurred if claim is received within 1 year from such date otherwise, date of receipt of claim."  38 C.F.R. § 3.400(o)(2).  Thus, if a claim is received after the increase in disability is demonstrated, but the increase occurred within the prior one year period then the effective date will be assigned as of the date of the ascertainable increase. 

In addition, the Court of Appeals for Veterans Claims (Court) has indicated that it is axiomatic that the fact that must be found in order for entitlement to an increase in disability compensation to arise, in other words, that the service-connected disability must have increased in severity to a degree warranting an increase in compensation.  See Hazan v. Gober, 10 Vet. App. 511, 519 (1992) (noting that, under section 5110(b)(2) which provides that the effective date of an award of increased compensation shall be the earliest date of which it is ascertainable that an increase in disability had occurred, "the only cognizable 'increase' for this purpose is one to the next disability level" provided by law for the particular disability).  Thus, determining whether an effective date assigned for an increased rating is correct or proper under the law requires (1) a determination of the date of the receipt of the claim for the increased rating as well as (2) a review of all the evidence of record to determine when an increase in disability was "ascertainable."  Id. at 521.

Also, with regard to the terms "application" or "claim", the Board notes that once a formal claim for compensation has been allowed, receipt of a VA hospitalization report, a record of VA treatment or hospitalization will be accepted as an informal claim for increased benefits, and the date of such record will be accepted as the date of receipt of a claim.  38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a).  38 C.F.R. § 3.155(c) provides that when a claim has been filed which meets the requirements of 38 C.F.R. § 3.151 or 38 C.F.R. § 3.152, an informal request for increase or reopening will be accepted as a claim.  38 C.F.R. § 3.157 provides that once a formal claim for compensation has been allowed, the date of outpatient or hospital examination will be accepted as a claim when such reports relate to examination or treatment for which service connection has previously been established or when a claim specifying the benefit sought is received within one year.

As noted, the claim for an increased rating for hypertension was received on March 9, 2009, and the claim for an increased rating for DM was received on April 13, 2009.  There is evidence of treatment dated within the respective one year windows of each claim.  VA records dated in April 2008 show that the Veteran was taking blood pressure medication and the Board accepts the Veteran's contentions that he had been on that medication for years, since newly received 2005 records of Lampoc Valley Medical Center also reflect use of this medication in October 2005.  Moreover, the Board accepts that the medication was used within the one year window prior to March 9, 2009 to control diastolic blood pressure predominantly 100 or more, consistent with the grant of the higher 10 percent rating.  The Board therefore finds that a 10 percent rating was warranted one year prior to the March 9, 2009 claim.  

With regard to DM, the VA records dated in the one year prior to his April 2009 claim did not reveal that he had been told to regulate his activities or was unable to perform activities due to his DM, a criterion for a 40 percent rating or higher.  Although there is lay evidence from the Veteran and his father that he had been told to regulate his activities, there statements are not dated in the one year prior to the date of claim, but rather after the increased rating had been assigned.  Otherwise, there was no informal claim for an increased rating for DM prior to the noted April 2009 claim.  

In sum, with regard to hypertension, the Veteran's claim was received on March 9, 2009.  The RO assigned the effective date as of the date of receipt of that claim.  An effective date before that time is warranted.  A review of the record reveals evidence of treatment showing an increase in severity at the beginning of the one year period.  That VA evidence may be considered an informal claim.  Likewise, this evidence is within the year preceding March 9, 2009 formal claim, showing that it was factually ascertainable that the Veteran's hypertension was 10 percent disabling.  Thus, an earlier effective date of one year prior to the date of the March 9, 2009 formal claim is warranted: March 9, 2008 being the date.

With regard to DM, in sum, the Veteran's claim was received on April 13, 2009.  The RO assigned the effective date as of that claim.  An effective date before that time is not warranted as there was no formal or informal claim for an increased rating prior to that time nor is there any evidence of treatment showing an increase in severity in the DM prior to that time in the one year window period.  Thus, within the year preceding the April 13, 2009 date, it is not factually ascertainable that the Veteran's DM was 40 percent disabling or more.  

The preponderance of the evidence is against the claim of an effective date earlier than April 13, 2009 for a 40 percent rating for DM and there is no doubt to be resolved.  38 U.S.C.A. § 5107(b).  However, the evidence supports an earlier effective date of March 9, 2008 for a 10 percent rating for hypertension.  


ORDER

Entitlement to an effective date earlier than April 13, 2009, for the assignment of a 40 percent rating for DM is denied.

Entitlement to an effective date of March 9, 2008, and no earlier, for the assignment of a 10 percent rating for hypertension is granted,  subject to the law and regulations governing the payment of monetary benefits.



REMAND

Unfortunately, a remand is required in this case.  Although the Board sincerely regrets the additional delay, it is necessary to ensure that there is a complete record upon which to decide the Veteran's claim so that the Veteran is afforded every possible consideration.

The  Veteran's hypertension was last evaluated by VA in May 2009.  Since that time, the Veteran reported that his hypertension currently is uncontrolled, indicating a higher degree of disability than presently reflected by a 10 percent rating.  

As the Veteran has asserted that his service-connected disability has worsened since his last examination, he should be afforded a new examination in compliance with VA's duty to assist.  See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994); VAOPGCPREC 11-95 (1995); see also Olsen v. Principi, 3 Vet. App. 480, 482 (1992), citing Proscelle v. Derwinski, 2 Vet. App. 629, 632 (1992); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (where the Court determined the Board should have ordered a contemporaneous examination of the Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see, too, Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where the record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination); see, as well, VAOPGCPREC 11-95 (April 7, 1995); Green v. Derwinski, 1 Vet. App. 121 (1991).

Since the claim is being remanded, the updated records from the Muskogee VA Medical Center and the Tulsa VA outpatient clinic should be obtained.


Accordingly, the case is REMANDED for the following action:

1.  Obtain and associate with the claims file copies of all clinical records, which are not already in the claims file, of the Veteran's treatment at the Muskogee VA Medical Center and the Tulsa VA outpatient clinic.

2.  Schedule the Veteran for a VA examination to determine the nature and extent of his service-connected hypertension.  Any indicated tests should be accomplished.  The examiner should review the record prior to examination.  

The examiner should determine the Veteran's diastolic pressure as well as his systolic pressure and indicate what number for each has been predominant for the Veteran.

Any opinions expressed by the examiner must be accompanied by a complete rationale.

3.  The AMC should then readjudicate the claim on appeal in light of all of the evidence of record.  If the issue remains denied, the Veteran should be provided with a supplemental statement of the case as to the issue on appeal, and afforded a reasonable period of time within which to respond thereto.

The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West 2002 & Supp. 2012).



______________________________________________
K. PARAKKAL
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs