Citation Nr: 1310697 Decision Date: 04/01/13 Archive Date: 04/11/13 DOCKET NO. 05-38 223 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Nashville, Tennessee THE ISSUE Entitlement to an initial compensable disability evaluation for hypertension. REPRESENTATION Veteran represented by: The American Legion ATTORNEY FOR THE BOARD L. Jeng, Counsel INTRODUCTION The Veteran had active service from August 1969 to July 1971. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2005 rating decision of the Nashville, Tennessee, Regional Office (RO) which, in pertinent part, established service connection for hypertension with a noncompensable disability rating effective October 13, 2003. In December 2008, March 2011, and July 2012, the Board remanded the Veteran's hypertension claim for additional development which has been completed, and the case has been returned to the Board for appellate consideration. The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. The Board has reviewed the documents in both the paper claims file and the electronic claims file in rendering this decision. In an informal hearing presentation dated in May 2012, the Veteran's accredited representative raised a claim for entitlement to service connection for sleep apnea, to include as secondary to posttraumatic stress disorder. As it does not appear that this matter has been adjudicated, it is referred to the RO for the appropriate consideration. FINDINGS OF FACT 1. For the period prior to January 24, 2007, service-connected hypertension has been manifested by systolic pressure readings predominantly above 160. 2. For the period beginning January 24, 2007, service-connected hypertension has been manifested by diastolic pressure readings predominantly below 100, and by systolic pressure readings predominantly below 160. CONCLUSIONS OF LAW 1. For the period prior to January 24, 2007, the criteria for an initial compensable (10 percent) evaluation, but no higher, for service-connected hypertension are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101(2012). 2. For the period beginning January 24, 2007, the criteria for a compensable evaluation for service-connected hypertension are not met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101( 2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Stegall Considerations As noted above, the Board remanded this matter for further development on multiple occasions. In December 2008, the Board specifically instructed the RO to obtain treatment records from all health care providers, including VA medical records, and to readjudicate the claim. Subsequently, VA treatment records were obtained and the claim was readjudicated in a November 2009 Supplemental Statement of the Case. Then in March 2011, the Board remanded the claim again to obtain outstanding private and VA treatment records, provide the Veteran with an examination to determine the nature and severity of his hypertension, and to readjudicate the claim. An April 2011 letter requested that the Veteran provide authorization to obtain any additional private records. As a result of the remand, additional VA records were associated with the claims file, the Veteran was provided an examination in May 2011, and his claim was readjudicated in a March 2012 Supplemental Statement of the Case. Thereafter, in July 2012 the Board remanded the matter once again to obtain private treatment records from Dr. Seay and to readjudicate the claim. Pursuant to the remand, treatment records from Dr. Seay were associated with the claims file and the claim was readjudicated in a January 2013 Supplemental Statement of the Case. Thus, there is substantial compliance with the Board's remand instructions. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). Duties to Notify and Assist In correspondence dated in November 2004, prior to the February 2005 rating decision, and in June 2005 and April 2011, the RO satisfied its duty to notify the Veteran under 38 U.S.C.A. § 5103(a) (West 2002) and 38 C.F.R. § 3.159(b) (2012). Specifically, the RO notified the Veteran of: information and evidence necessary to substantiate the claim; information and evidence that VA would seek to provide; and information and evidence that the Veteran was expected to provide. The November 2004 letter provided the Veteran with the notice required for the initial claim of service connection for hypertension. Service connection was subsequently granted, and the Veteran appealed the initial rating assigned. In cases such as this, where service connection has been granted and an initial disability rating and effective date has been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 490 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The Veteran bears the burden of demonstrating any prejudice from defective (or nonexistent) notice with respect to the downstream elements. Goodwin v. Peake, 22 Vet. App. 128, 137 (2008). That burden has not been met in this case, as neither the Veteran nor his representative has alleged such prejudice. VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A (West 2002) and 38 C.F.R. § 3.159(c) (2012). Service treatment records have been associated with the claims file. All identified and available treatment records have been secured. As the Board will discuss in detail in its analysis below, the Veteran was provided with two VA examinations during the appeal period. The examination reports reflect that the examiners reviewed the Veteran's past medical history, recorded his current complaints, conducted an appropriate evaluation of the Veteran, and provided sufficient findings to evaluate the claim. Additionally, the Veteran has not stated nor is there evidence indicating that there has been a material change in the severity of his hypertension since he was examined in May 2011. See 38 C.F.R. § 3.327(a) (2012). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate VA examination was conducted. See VAOPGCPREC 11-95 (April 7, 1995). The Board concludes that this examination report is adequate for purposes of rendering a decision in the instant appeal. See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Veteran and his representative have not contended otherwise. The Board additionally observes that all appropriate due process concerns have been satisfied. See 38 C.F.R. § 3.103 (2012). The Veteran has declined the opportunity to present testimony before a Veterans Law Judge. Therefore, the duties to notify and assist have been met. Analysis The Veteran seeks an increased disability rating for his service-connected hypertension, which is currently evaluated as noncompensable under 38 C.F.R. § 4.104, Diagnostic Code 7101. He essentially contends that the symptomatology associated with his hypertension is more severe than is contemplated by the currently assigned rating. Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. Each disability must be viewed in relation to its history, with an emphasis on the limitation of activity imposed by the disabling condition. Medical reports must be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7 (2012). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of "staged rating" is required. See Fenderson v. West, 12 Vet. App. 119 (1999). The Board will determine whether staged ratings are warranted. The Veteran's disability has been evaluated under Diagnostic Code 7101 [hypertensive vascular disease (hypertension and isolated systolic hypertension)] , which provides for a 60 percent rating for diastolic pressure predominantly 130 or more and a 40 percent disability rating for diastolic pressure is predominantly 120 or more. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent disability rating is warranted for 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. 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. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The assignment of a particular diagnostic code is "completely dependent on the facts of a particular case." Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual's relevant medical history, the diagnosis and demonstrated symptomatology. Any change in a diagnostic code by a VA adjudicator must be specifically explained. Pernorio v. Derwinski, 2 Vet. App. 625, 629 (1992). The Veteran's hypertension is currently rated under 38 C.F.R. § 4.104, Diagnostic Code 7101 [hypertensive vascular disease (hypertension and isolated systolic hypertension)]. Diagnostic Code 7101 is deemed by the Board to be the most appropriate, primarily because it pertains specifically to the diagnosed disability in the Veteran's case (hypertension). The Board can identify nothing in the evidence to suggest that another diagnostic code or codes would be more appropriate, and the Veteran has not requested that another diagnostic code be used. Accordingly, the Board concludes that Diagnostic Code 7101 is the most appropriate in this case. The Veteran is currently assigned a non-compensable evaluation for his hypertension. The provisions of 38 C.F.R. § 4.31 indicate that in every instance where the minimum schedular evaluation requires residuals and the schedule does not provide for a zero percent evaluation, a zero percent evaluation will be assigned when the required symptomatology is not shown. 38 C.F.R. § 4.31 (2012). A higher evaluation of 10 percent contemplates diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Based on review of the evidence, the Board finds that the Veteran is entitled to a compensable (10 percent disability) evaluation for the period up to January 23, 2007. See Fenderson, supra. The records during this time period showed the following blood pressure readings, in mmHg: 160/90 (December 2003) 150/90 (December 2004) 170/90 (February 2005) 174/88 (June 2005) 158/86 (September 2005) 170/94 (January 2006) 198/98, 178/98 (March 2006) 145/98 (May 2006) 170/94 (June 2006) 156/90 (July 2006) 152/98 (October 2006) 170/90 (November 2006) 178/90 (December 2006) 130/80 (January 8, 2007) 160/86 (January 23, 2007) As these readings demonstrate, systolic pressure was predominantly 160 or more to warrant a higher, 10 percent, evaluation. However, the criteria for a higher evaluation are not met as diastolic pressure was not predominantly 110 or more nor was systolic pressure predominantly 200 or more as shown by the above readings. For the period beginning January 24, 2007, the Board finds that the criteria for a compensable evaluation for hypertension have not been met. The Veteran has not demonstrated diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See supra 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). Out of hundreds of blood pressure readings of record, only approximately 29 readings showed systolic pressure of 160 or diastolic pressure of 100 or more which is not commensurate with predominant readings. In addition, there is no dispute that the Veteran has required continuous medical for control of his hypertension; however, he has not demonstrated diastolic pressure predominantly 100 or more. Therefore, a compensable evaluation for hypertension is not warranted for the period beginning January 24, 2007. See Fenderson, supra. In making this decision, the Board must fully consider the lay assertions of record. In this regard, a layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (noting that a Veteran is competent to report on that of which he or she has personal knowledge). Lay evidence can also be competent and sufficient evidence of a diagnosis or to establish etiology if (1) the layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). When considering whether lay evidence is competent the Board must determine, on a case by case basis, whether the Veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77. Competency of evidence differs, however, from the weight and credibility assigned to evidence. The former is a legal concept determining whether testimony may be heard and considered by the trier of fact, while the latter is a factual determination that addresses the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) (stating that "although interest may affect the credibility of testimony, it does not affect competency to testify"). In determining whether statements submitted by a veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). The Board has not overlooked the Veteran's statements with regard to the severity of his hypertension. The Veteran is competent to report on factual matters of which he had firsthand knowledge; and the Board finds that the Veteran's reports concerning symptomatology have been credible. See Washington v. Nicholson, 19 Vet. App. 362, 368 (2005). The Board notes, with respect to the Rating Schedule, where the criteria set forth therein require medical expertise which the Veteran has not been shown to have, the objective medical findings and opinions provided by the Veteran's VA examination reports and treatment records have been accorded greater probative weight. Furthermore, evaluation of hypertension is based on clinical findings taken by medical measurements. Accordingly, while the Board has considered the Veteran's assertions that he continuously takes medication for his hypertension to be competent, credible and probative, the most probative evidence consists of the actual diastolic/systolic readings of record. The rating criteria for hypertension, while taking into consideration medication taken therefore, contemplate blood pressure readings at a certain level to warrant compensable and higher evaluations. Ordinarily, the VA Schedule for Rating Disabilities will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993); Bagwell v. Brown, 9 Vet. App. 157 (1996) (noting that the question of an extraschedular rating is a component of the veteran's claim for an increased rating). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization that would render impractical the application of the regular schedular standards. See 38 C.F.R. 3.321(b)(1) (2012). The Court of Appeals for Veterans Claims has clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). First, the RO or the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Neither the Veteran nor his representative has identified any factors that may be considered to be exceptional or unusual, and the Board has been similarly unsuccessful. The rating criteria for hypertension contemplate the use of medication and blood pressure readings of a certain level to warrant compensable or higher evaluations. While the Veteran takes medication, his blood pressure readings do not warrant a rating in excess of 10 percent prior to January 24, 2007, nor a compensable rating thereafter. Neither the Veteran nor the evidence indicates that there is interference with employment beyond that contemplated in the schedular criteria. The May 2011 VA examiner specifically indicated that there was no medical issue to interfere with employment. In any case, any occupational impairment resulting from hypertension, as currently demonstrated by the Veteran, is specifically contemplated in the rating currently assigned for that disability. See Moyer v. Derwinski, 2 Vet. App. 289, 293 (1992); see also Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). In short, the evidence does not support the proposition that the Veteran's service-connected hypertension presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2012). Accordingly, referral of this issue to appropriate VA officials for consideration of an extraschedular evaluation is not warranted. Finally, the Board is cognizant of the ruling of the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that his hypertension renders him totally unemployable. Accordingly, the Board concludes that a claim for TDIU has not been raised. In summary, the competent evidence demonstrates that a compensable evaluation is warranted for service-connected hypertension for the period prior to January 24, 2007, and a non-compensable evaluation thereafter. ORDER For the period prior to January 24, 2007, an initial compensable (10 percent) disability evaluation for hypertension is allowed, subject to the regulations governing the award of monetary benefits. For the period beginning January 24, 2007, a compensable disability evaluation for hypertension is denied. ____________________________________________ S.S. TOTH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs