Citation Nr: 1311853 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 10-28 174 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to a compensable rating for hypertension. REPRESENTATION Appellant represented by: New York State Division of Veterans' Affairs WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD C. Fetty, Counsel INTRODUCTION The Veteran performed active naval service from March 1974 to March 1978 and from November 1979 to December 1994. This appeal to the Board of Veterans' Appeals (Board) is from a January 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) Seattle, Washington that continued a noncompensable rating for hypertension. The rating decision also assigned a noncompensable rating for erectile dysfunction and denied service connection for hyperlipidemia. Although the Veteran submitted a timely notice of disagreement (NOD) with the assignment of a noncompensable rating for loss of use of a creative organ and with the denial of service connection for hyperlipidemia, he later withdrew his appeal of these two issues. Thus, service connection for hyperlipidemia and a higher rating for loss of a creative organ will not be discussed further. Jurisdiction over the case was subsequently transferred to the RO in Buffalo, New York. In a May 2010 rating decision, the RO denied service connection for sleep apnea and diabetes mellitus. The Veteran submitted a timely NOD for both issues, but these are no longer on appeal. The RO has granted service connection for diabetes and the Veteran has withdrawn his appeal for service connection for sleep apnea. In July 2010, the Veteran submitted a VA Form 9, Appeal to the Board of Veterans' Appeals, in which he requested a hearing before a Veterans Law Judge and a hearing before an RO Decision Review Officer. A hearing before an RO Decision Review Officer was scheduled, but the Veteran then opted for an informal conference instead of a formal hearing. The Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge in May 2012. In August 2012, the Board notified the Veteran that there was no transcript of that hearing and offered him another hearing. The Board's letter notified him that if he did not respond within 30 days, the Board would assume that he does not desire another hearing. The Board received no response from the Veteran. The Board will therefore assume that the Veteran does not desire another hearing. In May 2012, the Board received new evidence along with a waiver of the Veteran's right to initial RO consideration. FINDINGS OF FACT 1. The Veteran has a history of diastolic pressure readings predominantly 100 or more and he requires medication for the control of his hypertension.. 2. Throughout the period of the claim, the Veteran's diastolic pressure has been predominantly below 110 and his systolic pressure has been predominantly below 200. CONCLUSION OF LAW The criteria for a 10 percent schedular rating, but not higher, for hypertension are met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. §§ 4.1, 4.10, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDINGS 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 (West 2002 & Supp. 2012), and the pertinent implementing regulation, codified at 38 C.F.R. § 3.159 (2012), 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). The record reflects that the Veteran was provided all required notice in a letter sent in November 2009, prior to the initial adjudication of the claim. The record also reflects that the Veteran's service treatment records and VA outpatient treatment records have been obtained. In addition, the Veteran was provided an appropriate VA medical examination in July 2009. The Veteran has not alleged that his hypertension has increased in severity since that examination. In addition, neither the Veteran nor his representative has alleged that there is any outstanding evidence that could be obtained to substantiate the claim. The Board is also unaware of any such evidence. 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. Accordingly, the Board will address the merits of the claim, Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). 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 active service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1). A 10 percent rating is warranted if hypertension is manifested by diastolic blood pressure predominantly 100 or more, or if the systolic pressure is predominantly 160 or more. A 10 percent rating is also warranted if the condition requires continuous medication for control, and there is a history of diastolic pressure predominantly 100 or more. A 20 percent rating is warranted if the diastolic pressure is predominantly 110 or more, or if the systolic pressure is predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Veteran has required continuous anti-hypertensive medication throughout the period of this claim. A November 2009 VA hypertension compensation examination report reflects that hypertension arose during active service in 1992, that the Veteran was placed on lisinopril, and that medication has been taken throughout the period. The STRs contain an October 1994 retirement physical examination report that states that there had been treatment for elevated blood pressure from 1991 to 1993. A February 1992 clinical report reflects that hypertension had been evaluated in October 1991. The report contains a history of five blood pressure readings taken in late 1991 and early 1992. The five diastolic blood pressures reported were 106, 96, 86, 100, and 104. The current diastolic blood pressure, in February 1992 was 104. Thus, of the six blood pressure readings recorded in late 1991 and early 1992, four were at least 100-mm Hg. Four out of six is a predominance. Accordingly, the Board concludes that the requirements for a 10 percent schedular rating for hypertension have been met. On the November 2009 VA examination, the Veteran's systolic pressure readings were 124 or less and his diastolic pressure readings were 72 or less. None of the evidence pertinent to the period of this claim shows that the Veteran's the diastolic pressure was predominantly 110 or more or that his systolic pressure was predominantly 200 or more. Therefore, the disability does not warrant a rating in excess of 10 percent under the schedular criteria. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher rating. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Extra-schedular Consideration 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). As discussed above, the manifestations of this disability, elevated blood pressure and the requirement for continuous medication, are contemplated by the schedular criteria. Therefore, referral of this claim for extra-schedular consideration is not required. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a 10 percent rating, but not higher, for hypertension is granted, subject to the criteria governing the payment of monetary benefits. ______________________________________________ Shane A. Durkin Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs