Citation Nr: 1310752	
Decision Date: 04/02/13    Archive Date: 04/11/13

DOCKET NO.  09-12 275	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to an initial compensable evaluation for hypertension.  


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

G. A. Wasik, Counsel


INTRODUCTION

The Veteran had active duty service from September 1967 to September 1970.  

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, the Commonwealth of Puerto Rico.  Jurisdiction over the case was subsequently returned to the Atlanta RO in Decatur, Georgia.


FINDING OF FACT

Throughout the initial rating period, the appellant's hypertension has been manifested by diastolic pressure consistently below 100 and systolic pressure consistently below 160; the appellant has no history of diastolic pressure predominantly 100 or more.  


CONCLUSION OF LAW

The criteria for an initial compensable rating for hypertension have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

Duties to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA), codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159, provide that VA will assist a claimant in obtaining evidence necessary to substantiate a claim but is not required to provide assistance to a claimant if there is no reasonable possibility that such assistance would aid in substantiating the claim. 

They also require VA to notify the claimant and the claimant's representative, if any, of any information, and any medical or lay evidence, not previously provided to the Secretary that is necessary to substantiate the claim.  As part of the notice, VA is to specifically inform the claimant and the claimant's representative, if any, of which portion, if any, of the evidence is to be provided by the claimant and which part, if any, VA will attempt to obtain on behalf of the claimant.  

The Board also notes the United States Court of Appeals for Veterans Claims (Court) has held that the plain language of 38 U.S.C.A. § 5103(a) (West 2002), requires that notice to a claimant pursuant to the VCAA be provided 'at the time' that or 'immediately after' VA receives a complete or substantially complete application for VA-administered benefits.  Pelegrini v. Principi, 18 Vet. App. 112, 119 (2004).  The timing requirement enunciated in Pelegrini applies equally to the initial-disability-rating and effective-date elements of a service-connection claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

Although the Veteran was not provided complete notice with respect to his initial rating claim until May 2011, after the initial adjudication of the claim, the Board has determined that there is no prejudice to him in proceeding with the issuance of a final decision.  See Bernard v. Brown, 4 Vet. App. 384, 394 (1993).  In this regard, the Board notes that following the provision of the required notice and the completion of all indicated development of the record, the originating agency readjudicated the Veteran's claim.  There is no indication in the record or reason to believe that the ultimate decision of the originating agency on the merits of the claim would have been different had complete VCAA notice been provided at an earlier time.  See Overton v. Nicholson, 20 Vet. App. 427, 437 (2006) (A timing error may be cured by a new VCAA notification followed by a readjudication of the claim). 

The record reflects that all VA and private post-service medical evidence identified by the Veteran was obtained.  Neither the Veteran nor his representative has identified any outstanding evidence that could be obtained to substantiate the claim; the Board is also unaware of any such evidence.  In April 2011, the Veteran reported he had no additional evidence or argument to submit in support of the claim.  The Veteran has been afforded appropriate VA examinations, most recently in September 2012.  The Veteran has not asserted, and the evidence of record does not show, that his condition has increased significantly in severity since that examination.  Therefore, the Board is satisfied that VA has complied with its duty to assist the Veteran in the development of the facts pertinent to this claim.

Legal Criteria

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4.  Separate diagnostic codes identify the various disabilities.  

A 10 percent rating is assigned for hypertension when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or as a 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.

In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met.  38 C.F.R. § 4.31.

Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary.  The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary.  When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2012); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990).  

To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54.


Factual Background and Analysis

The Veteran contends that a compensable rating is warranted for his hypertension because medication is required for his hypertension.  

In accordance with 38 C.F.R. §§ 4.1, 4.2 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disability.  The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes.  Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to this disability.  

Applying the criteria set forth above to the facts in this case, the Board finds that the preponderance of the evidence is against the Veteran's claim.

The available record shows that all blood pressure testing conducted since July 1998 has demonstrated that the Veteran's systolic pressure is consistently below 160 and his diastolic pressure is consistently below 100.  While the medical evidence demonstrates that the Veteran was prescribed medication for control of elevated blood pressure, the preponderance of the evidence also shows that the Veteran has no history of diastolic pressure predominately 100 or more.  The evidence of record demonstrates that as late as July 2003, the Veteran was not taking medication for his hypertension.  Sometime between July 2003 and March 2004, he was prescribed medication to treat the disability.  The medical evidence dated from July 1998 to July 2003 is consistent in demonstrating that the Veteran did not meet the required blood pressure readings to warrant a compensable evaluation and certainly does not demonstrates that the Veteran had a history of diastolic pressure predominately 100 or more.  

Associated with the claims file are lay statements from employees of a company the Veteran tried to obtain employment from in 1983.  The affiants attest to the fact that the Veteran was denied employment at that time due to high blood pressure.  One of the statements even indicates that the author remembered the bottom reading of the Veteran's blood pressure (diastolic pressure) was "well over 100."  Significantly, other than the statements, there is no evidence to document such severe symptomatology.  As set out above, the medical evidence associated with the claims file dated from July 1998 forward all document diastolic pressures below 100.  Many of these blood pressure recordings were performed prior to the time the Veteran was put on medication.  The Board places greater probative weight on the blood pressure readings conducted by health care professionals which are documented in the claims file over the lay statements.  It is not apparent to the Board why the Veteran's blood pressure would be so substantially increased around 1983 and then subsequently be reduced to significantly less symptomatology approximately five years later without the use of medication.  Not only may the Veteran's and the other affiant's memories have dimmed with time, but self interest may play a role in the more recent statements of the Veteran.  See Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) [interest may affect the credibility of testimony]; cf. Pond v. West, 12 Vet. App. 341, 346 (1999).

Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a compensable rating under the schedular criteria.  See Fenderson v. West, 12 Vet. App. 119 (1999).

The Board has considered whether this claim should be referred to the Director of the Compensation and Pension Service for extra-schedular consideration.  In determining whether a case should be referred for extra-schedular consideration, the Board must compare the level of severity and the symptomatology of the claimant's disability with the established criteria provided in the rating schedule for disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the disability picture is contemplated by the rating schedule, the assigned evaluation is therefore adequate, and no referral for extra-schedular consideration is required.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).

In this case, the actual manifestations of the disability are considered noncompensably disabling under the schedular criteria.  Therefore, the Board has determined that referral of the case for extra-schedular consideration is not in order.


ORDER

Entitlement to a compensable initial rating for hypertension is denied.  



____________________________________________
Shane A. Durkin
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs