Citation Nr: 1311933 Decision Date: 04/10/13 Archive Date: 04/19/13 DOCKET NO. 07-40 095 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUES 1. Entitlement to a rating in excess of 10 percent for essential hypertension. 2. Entitlement to an initial compensable rating for hypertensive retinopathy. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD N. Holtz, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1971 to May 1976. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania, which continued the previously assigned noncompensable disability rating for service-connected essential hypertension and granted service connection for hypertensive retinopathy associated with service-connected essential hypertension and assigned a noncompensable evaluation. These matters were previously before the Board in October 2011, at which time they were remanded for further development. All required development has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board has considered records available in the Virtual VA system in the adjudication of these claims. FINDINGS OF FACT 1. The Veteran's hypertension has not resulted in diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. 2. The Veteran's corrected distance visual acuity is 20/40 or better bilaterally, and he has not experienced incapacitating episodes, a decrease in his fields of vision, scarring, or other disabling pathology as a result of his hypertensive retinopathy. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2012). 2. The criteria for a compensable initial rating for hypertensive retinopathy have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7 (2012); 38 C.F.R. §§ 4.75, 4.76, 4.76a, 4.84a, Diagnostic Code 6073 (2008). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), 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 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). The Veteran's claim for an initial compensable rating for hypertensive retinopathy arises from an appeal of the initial evaluation following the grant of service connection. Courts have held that once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Dunlap v. Nicholson, 21 Vet. App. 112, 117 (2007). Therefore, no further notice is needed under VCAA for this issue. For the claim for an increased rating for hypertension, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009). Here, the Veteran was sent a letter in January 2007, as well as subsequent notices, that fully addressed all notice elements and was issued prior to the initial RO decision in this matter; VA's duty to notify has been satisfied. Id.; see 38 3.159(b). The Board also finds VA has complied with its duty to assist, see 38 U.S.C.A. § 5103A, 38 C.F.R. § 3.159, that all necessary development has been accomplished, and appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's service treatment records, as well as post-service reports of VA treatment, as well as reports from multiple examinations for hypertension and eye disorders. Specifically, the Board observes that the examinations ordered in the October 2011 remand have been provided the Veteran, and the resulting reports are associated with the claims file. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board observes that the Veteran requested a hearing before a member of the Board, but subsequently withdrew that request. 38 C.F.R. § 20.704. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. Disability Ratings Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Where service connection has been granted and the assignment of an initial evaluation is disputed, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Generally, 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). In claims for increased ratings, however, as with initial rating claims, VA must consider that a claimant may experience multiple distinct degrees of disability, resulting in different levels of compensation, from the time the increased rating claim is filed to the time a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a claim, the Board must determine the value of all evidence submitted, including lay and medical evidence. Buchanan v. Nicholson, 451 F.3d 1331, 1335 (2006). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a "competent" source. The Board must then determine if the evidence is credible, or worthy of belief. Barr v. Nicholson, 21 Vet. App. 303, 308 (2007) (observing that once evidence is determined to be competent, the Board must determine whether such evidence is also credible). After determining the competency and credibility of evidence, the Board must then weigh its probative value. In this function, the Board may properly consider internal inconsistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498, 511-12 (1995). Lay evidence is competent if it is provided by a person who has knowledge of facts or circumstances and conveys matters that can be observed and described by a lay person. 38 C.F.R. § 3.159(a). Thus, a layperson is competent to report on the onset and continuity of his symptomatology. Layno v. Brown, 6 Vet. App. 465, 470 (1994) (holding 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 if (1) the medical issue is within the competence of a layperson, (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. See Kahana v. Shinseki, 24 Vet. App. 428, 433 (2011). For instance, a lay person may speak to etiology in those limited circumstances where a nexus is obvious merely through observation, such as a fall leading to a broken leg. Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Hypertension Following the Veteran's December 2006 increased rating claim, the RO issued a February 2007 rating decision that assigned an increased, 10 percent rating for his service connected hypertension, based on evidence that his hypertension required medication for control; the increased rating was effective August 3, 2006. Hypertension is rated under Diagnostic Code 7101 based on diastolic and/or systolic blood pressure. As the Veteran presently has a 10 percent rating throughout the period, in order to warrant a higher, 20 percent rating, the evidence must show diastolic pressure predominantly 100 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. For the period on appeal, there is no evidence that the Veteran has ever had a diastolic reading greater of 110 or more. His highest single diastolic reading was 102 mm, which occurred in August 2008. Likewise, there is no evidence of systolic pressure predominantly 200 or more; the highest systolic pressure on record was 166mm, which occurred in May 2008. The Board notes that a June 2008 VA examiner found that while the Veteran had been diagnosed with hypertension previously, he did not have a current diagnosis of hypertension, and had no symptoms related to his blood pressure. At his most recent VA hypertension examination, which occurred in November 2011, the examiner noted a diagnosis of hypertension. At that time, his blood pressure readings were 140/70, 122/70, and 120/70, and he was taking medication to control his hypertension. In March 2007, the Veteran asserted that his hypertension isn't always under control, and that at times it feels like his head and eyes are "going to explode." The Veteran is not competent to identify high blood pressure based on his impression of pressure in his head and eyeballs. Jandreau, 492 F.3d at 1376-77. Hypertension is rated based on objective, medical evidence concerning blood pressure. Further, the Board notes that the Veteran's blood pressure readings have been generally consistent with each other throughout the appeal. While he asserts that he experiences periods of higher blood pressure, numerous blood pressure readings since 2006 contradict his reports. Without evidence of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 200 or more, a rating in excess of 10 percent for hypertension is not warranted. Id. Hypertensive Retinopathy In a February 2007 rating decision, the RO granted service connection for hypertensive retinopathy, and assigned a noncompensable rating based on visual acuity. See 38 C.F.R. § 4.84a, Diagnostic Code 6079. While the Veteran's appeal was pending, the rating schedule for evaluating disabilities of the eyes was revised and amended. See 73 Fed. Reg. 66543-54 (November. 10, 2008). The effective date of the revisions was December 10, 2008, and the revised criteria apply to all applications for benefits received by VA on or after that date. Because the Veteran's claim was received prior to December 10, 2008, the revised criteria are not for application in his case. The Board notes that the amendment allows for a Veteran to request a review of an eye disability under the revised criteria whether or the disability has increased since the last review. Id. However, no such request has been made in this case. Accordingly, the Veteran's claim will only be considered under the old regulations, and all references to sections of the Code of Federal Regulations included in this section, including diagnostic codes, relate to the 2008 version of the Code unless otherwise specified. The severity of visual acuity loss is determined by applying the criteria set forth in the Ratings for Central Visual Acuity Impairment. Under these criteria, impairment of central visual acuity is evaluated from noncompensable to 100 percent based on the degree of the resulting impairment of visual acuity. See 38 C.F.R. § 4.84a, DCs 6061-6079. A disability rating for visual impairment is based on the best distant vision obtainable after the best correction by glasses. See 38 C.F.R. § 4.75. The percentage evaluation is found in Table V by intersecting the horizontal row appropriate for the Snellen index for one eye and the vertical column appropriate to the Snellen index of the other eye. See 38 C.F.R. § 4.83a. A compensable rating requires, at minimum, corrected distant vision of 20/40 in one eye, and 20/50 in the other eye. 38 C.F.R. § 4.84a, Diagnostic Codes 6079. The evidence demonstrates that the Veteran does not meet the criteria for a compensable rating based on visual acuity. Vision testing results from July 2006 and June 2008 demonstrated 20/20 corrected distance vision bilaterally. A VA examination report from November 2011 provided that the Veteran's corrected distance vision was "20/40 or better" bilaterally, but did not provide specific readings. As such, the Veteran does not meet the criteria for a compensable rating for hypertensive retinopathy based on visual acuity. Id. The Veteran's current diagnosis, per the November 2011 VA examination, is hypertensive retinopathy with mild tortuosity of the retinal vasculature. He had no hemorrhages, exudates, occlusions, or cotton wool spots. There is no evidence that at any time during the period on appeal that the Veteran's diabetic retinopathy caused active pathology, including loss of visual field, pain, rest-requirements, or episodic incapacity. 38 C.F.R. §§ 4.76, 4.76a, 4.84a, Diagnostic Codes 6000-6010, 6080. As for loss of field of vision, the evidence of record shows that confrontational visual fields were full in both eyes and, thus, there is no basis to assign a compensable rating based on impairment of field vision under Diagnostic Code 6080. The November 2011 examination report demonstrated no scars of the retina. 38 C.F.R. § 4.84a, Diagnostic Code 6011. To the extent that the Veteran asserted in March 2007 that he has eye damage as a result of his hypertension, the Veteran is competent to relate to VA the fact that he has been diagnosed with an eye condition. Kahana, 24 Vet. App. at 433. It is apparent, considering the diagnosis of hypertensive retinopathy with mild tortuosity of the renal vasculature, that the Veteran is correct that he has been diagnosed with an eye condition. That fact, however, does not suggest that a higher rating is warranted. In reaching the conclusions above the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claims, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2002); Gilbert, 1 Vet. App. at 55-57. Extraschedular The Board has also considered whether the Veteran's hypertensive retinopathy and hypertension disabilities present an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of extra-schedular ratings is warranted. See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). In this case there are no exceptional or unusual factors with regard to the Veteran's disabilities on appeal. The threshold factor for extra-schedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluation for that service-connected disability is inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) (holding that the "rating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for consideration of greater disability and symptoms than currently shown by the evidence. There is no suggestion that the Veteran has required periods of hospitalization or has incurred significant interference with employment due to these disabilities. Thus, his disability picture is contemplated by the rating schedule, and the assigned schedular evaluation is, therefore, adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extra-schedular consideration is not warranted. Total Rating for Compensation Purposes Based on Individual Unemployability (TDIU) The Court has held that entitlement to a TDIU is an element of all appeals for a higher initial rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to a TDIU is raised where a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); see Jackson v. Shinseki, 587 F.3d 1106, 1109-10 (2009) (holding that an inferred claim for a TDIU is raised as part of an increased rating claim only when the Roberson requirements are met). The evidence specifically provides that the Veteran's hypertension and hypertensive retinopathy do not impact his ability to work. In a March 2012 psychiatric examination, he reported being disabled since the 1980s, but indicated that his disability derived from pain, spine problems, and from being overweight. His psychiatric examiner found that he did not have a present psychiatric disability (although he is service connected for schizophrenia, with a protected 10 percent rating), and his most recent optometry and cardiovascular examinations revealed that neither his service-connected hypertensive retinopathy nor hypertension interfered with his ability to work. Therefore, the Board finds that a claim for TDIU has not been raised under Roberson and Rice. ORDER Entitlement to a rating in excess of 10 percent for essential hypertension is denied. Entitlement to an initial compensable rating for hypertensive retinopathy is denied. ____________________________________________ MICHAEL D. LYON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs