Citation Nr: 1311991 Decision Date: 04/11/13 Archive Date: 04/19/13 DOCKET NO. 10-25 732 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to an effective date earlier than November 19, 1992, for the grant of service connection for hypertension. 2. Entitlement to an initial rating in excess of 10 percent for hypertension for the period prior to January 5, 2001, and in excess of 20 percent therefrom. WITNESSES AT HEARING ON APPEAL The Veteran and his wife ATTORNEY FOR THE BOARD W.T. Snyder, Counsel INTRODUCTION The Veteran had active service from February 1973 to February 1976. This appeal to the Board of Veterans' Appeals (Board) arose from an appeal of an October 2005 rating decision (Vol. 3 of claims file) of the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama, which reopened the Veteran's claim and granted service connection for hypertension, assigning an initial 20 percent rating, effective January 5, 2001; granted service connection for coronary artery disease (CAD) with an initial 30 percent rating, effective September 26, 2002; granted service connection for status post-subarchnoid hemorrhage with an initial 100 percent rating, from January 5 to May 31, 2001; and, granted a 20 percent rating for residual numbness of the right upper extremity and a 10 percent rating for residual numbness of the right lower extremity, effective June 1, 2001. The Veteran appealed the effective dates assigned for service connection for each of those disabilities. The Board reads the Veteran's December 2005 notice of disagreement (NOD) (Vol. 3) as addressing only the effective dates for the grants of service connection. Nonetheless, since the RO has consistently developed the appeal as including the initial rating for the hypertension, as noted in the September 2007 and June 2010 Statements of the Case (SOC) (Vol. 4 and 5) and subsequent Supplemental SOCs (SSOC), the Board accepts jurisdiction of both issues. In an October 2008 rating decision (Vol. 5), an RO Decision Review Officer (DRO) awarded an earlier effective date of November 19, 1992, for grant of service connection with an initial 10 percent rating, and a 20 percent rating, effective January 5, 2001. By way of a September 2008 VA Form 21-4138, the Veteran indicated that the DRO's then-expected action as noted in the October 2008 rating decision, satisfied his appeal, and he withdrew all of his pending appeals (Vol. 5). By way of a November 2008 Form 21-4138, however, the Veteran disavowed his September 2008 indication of satisfaction, stating that he was not granted the 100 percent rating that he was told that he would receive effective April 16, 1976. The applicable law with respect to withdrawal of an appeal is clear: withdrawal of a perfected appeal is also a withdrawal of the NOD and Substantive Appeal (VA Form 9). 38 C.F.R. § 20.204(c) (2012). Further, the appeal may be reinstated by the filing of another NOD, if the applicable appeal period has not expired (which was the case in October 2005, when the Veteran initially indicated satisfaction with the October 2005 rating decision and then recanted). Id. The appeal period for the October 2005 rating decision had expired. See 38 C.F.R. § 20.302 (2012). In light of this fact, the RO appears to have treated the November 2008 Form 21-4138 as an NOD with the October 2008 rating decision and issued a SOC in June 2010. The Veteran perfected that appeal with a June 2010 VA Form 9. A March 2008 rating decision determined new and material evidence had not been received to reopen a claim of entitlement to service connection for diabetes mellitus, including as secondary to service-connected hypertension, and the Veteran appealed the decision. A SOC was issued in August 2010. There is no indication in the paper or Virtual claims file that the Veteran submitted a VA Form 9 or other document in lieu of a Form 9 to perfect his appeal. 38 C.F.R. §§ 20.200, 20.302 (2012). Hence, that issue is not before the Board and will not be addressed in the decision below. The Veteran appeared at a Board hearing in February 2013 before the undersigned Veterans Law Judge (VLJ) via video conference. A transcript of the hearing testimony is associated with the claims file and has been reviewed. The United States Court of Appeals for Veterans Claims (Court) has held that that provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked. Bryant v. Shinseki, 23 Vet. App. 488 (2010). During the hearing, the issues on appeal were identified, and the undersigned solicited information as to informal claims, treatment, and findings related to the claimed disabilities. The Board thereby fulfilled its duty under Bryant. In the November 2008 Form 21-4138 by which the Veteran disavowed the September 2008 form, he also appeared to indicate his desire for a personal hearing before a DRO. A January 2010 RO letter (Vol. 6) informed the Veteran his requested hearing was scheduled for March 8, 2010. On an RO Form dated on the day the hearing was scheduled, however, the Veteran indicated he had cancelled the hearing in order to obtain a new examination, which was conducted in April 2010. By way of a November 2011 Form 21-4138 (Vol. 9), however, the Veteran attempted to disavow the March 2010 cancellation. He asserted he did not "check" the statement, but he did not deny that his signature was on the form. The Veteran requested a hearing before a named DRO. Review of the March 2010 document convinces the Board that no impropriety occurred, especially in light of the fact an examination was conducted the next month. Thus, the Board finds the November 2008 DRO hearing request was in fact withdrawn. The Board interprets the November 2011 request as related to other claims not currently before the Board, which are addressed later in this Introduction. Further, in an October 2012 VA Form 21-0820, the Veteran opted for the Board hearing in lieu of another DRO hearing. A November 2007 rating decision (Vol. 5) awarded a 100 percent rating for CAD, effective in November 2000, and the Veteran appealed the effective date. A June 2009 rating decision (Vol. 6) denied special monthly compensation (SMC) due to being housebound and requiring the assistance of another, and the Veteran appealed. An October 2010 rating decision (Vol. 7) granted a total disability evaluation on the basis of individual unemployability (TDIU), effective September 26, 2002, and the Veteran appealed the effective date. An October 2012 rating decision (Vol. 10) granted an earlier effective date of November 4, 2000, for service connection for stroke as secondary to hypertension; an earlier effective date of October 15, 2001, for service connection for CAD, with an initial 60 percent rating from that date; an earlier effective date of October 15, 2001, for a TDIU; an earlier effective date of December 29, 2008, for SMC based on the need for aid and attendance of another; and service connection for cerebrovascular accident (stroke) with an initial 100 percent rating, effective from April 28 to October 31, 2011. Effective November 1, 2011, the disability has been rated on the basis of the residuals: 100 percent for the loss of use of the feet; and, 70 percent for incomplete paralysis of the left upper extremity; service connection for vascular dementia and adjustment disorder with mixed anxiety and depressed mood with an initial 100 percent rating, effective November 1, 2011; SMC based on the loss of use of both feet, effective November 1, 2011; entitlement to automobile and adaptive equipment and specially adapted housing was established; an earlier effective date of October 15, 2001, for grant of eligibility to DEA under Chapter 35; service for erectile dysfunction with an initial noncompensable rating, effective August 15, 2012; and grant of SMC for loss of a creative organ, effective August 15, 2012. There is no indication in the paper or Virtual claims file that the Veteran disagreed with any of the awards set forth above. Hence, neither of the issues set forth above is currently before the Board and will not be addressed in the decision below. See 38 C.F.R. § 20.200. The Veteran also has a Virtual VA paperless claims file, which is a highly secured electronic repository that is used to store and review documents involved in the claims process. The Board has reviewed the contents of the paperless file, and there are currently no pertinent records there that are not also in the paper claims file. In July 2008, the Veteran submitted a claim of clear and mistakable error (CUE). Although he was not specific in the July 2008 Form 21-4138, the Board deems it evident from the multi-volume claims file and the life of the appeal currently before the Board that the Veteran believed that the July 1976 rating decision that denied entitlement to service connection for hypertension contained CUE. The RO also clearly read his contention in this manner and addressed the CUE claim in the June 2010 SOC, even though the October 2008 rating decision did not address CUE and a separate rating decision was not otherwise issued. The RO's action in the June 2010 SOC deprived the Veteran of an opportunity to submit a NOD with a rating decision that specifically addressed CUE. See 38 C.F.R. § 19.29 (2012). In light of the above the the issue of whether the July 1976 rating decision that denied entitlement to service connection for hypertension contained CUE has been raised by the record, but has not been properly adjudicated by the Agency of Original Jurisdiction (AOJ) (RO). Therefore, the Board does not have jurisdiction over it, and it is referred to the RO for appropriate action. FINDINGS OF FACT 1. A November 1987 letter denial declined to reopen a claim of service connection for hypertension. The Veteran did not appeal the November 1987 RO decision or provide the items requested within one year. Furthermore, no new and material evidence was received within one year of the November 1987 decision, and thus it became final. 2. The Veteran next requested that his claim of service connection for hypertension be reopened in a communication received by the RO on November 19, 1992. 3. The preponderance of the evidence of record shows that, for the period prior to January 5, 2001, the Veteran's hypertension did not more nearly approximate diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 4. The preponderance of the evidence of record shows that, for the period since January 5, 2001, the Veteran's hypertension has not more nearly approximated diastolic pressure predominantly of 120 or more. CONCLUSIONS OF LAW 1. The November 1987 rating action is final. 38 U.S.C.A. § 7105(c) (West 2002); 38 C.F.R. §§ 3.104(a), 3.158(a) (2012). 2. The criteria for an effective date earlier than November 19, 1992, for the grant of service connection for hypertension have not been met. 38 U.S.C.A. § 5110 (West 2002); 38 C.F.R. §§ 3.151, 3.155, 3.157, 3.158(a), 3.159, 3.400(r). 3. The criteria for an initial rating in excess of 10 percent for hypertension for the period prior to January 5, 2001, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.104 Diagnostic Code (DC) 7101. 4. The requirements for an initial rating in excess of 20 percent for hypertension for the period since January 5, 2001, have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.321(b)(1), 4.1, 4.10, 4.104 DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 (VCAA) As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Consequently, discussion of VA's compliance with VCAA notice requirements would serve no useful purpose. The Board nonetheless notes that an August 2006 RO letter fully informed the Veteran how disability evaluations and effective dates are determined. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate a claim, and as warranted by law, affording VA examinations. See 38 C.F.R. § 3.159(c). The combined efforts of the RO and the Veteran have resulted in all relevant identified records, VA and non-VA, being added to the record, including the records related to the Veteran's award of benefits by the Social Security Administration. The Board notes that, in fact, subsequent requests for records have resulted in the addition of records duplicative of those already in the claims file. Neither the Veteran nor his representative asserts that there are additional records to be obtained. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. See id. The Board has reviewed all the evidence in the claims file. Although there is an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by an appellant or obtained on his behalf be discussed in detail. Rather, the analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Earlier Effective Date Governing Law and Regulations The assignment of effective dates of awards is generally governed by 38 U.S.C.A. § 5110 and 38 C.F.R. § 3.400. Unless specifically provided otherwise, the effective date of an award based on an original claim for service connection "shall be fixed in accordance with the facts found, but shall not be earlier than the date of receipt of application therefor." 38 U.S.C.A. § 5110(a). The implementing regulation clarifies this to mean that the effective date of an evaluation and an award of compensation based on an original claim "will be the date of receipt of the claim or the date entitlement arose, whichever is the later." 38 C.F.R. § 3.400. Where entitlement to service connection is awarded after reopening a claim, the effective date of an award will be no earlier than the date of the claim. 38 U.S.C.A. § 5110(a); see also 38 C.F.R. § 3.400(r). A specific claim in the form prescribed by the Secretary of VA must be filed in order for benefits to be paid to any individual under the laws administered by the VA. 38 U.S.C.A. § 5101(a). A "claim" is defined broadly to include a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); Brannon v. West, 12 Vet. App. 32, 34-5 (1998). Any communication indicating an intent to apply for a benefit under the laws administered by the VA may be considered an informal claim provided it identifies, but not necessarily with specificity, the benefit sought. See 38 C.F.R. § 3.155(a); see also Servello, 3 Vet. App. at 199 (holding that 38 C.F.R. § 3.155(a) does not contain the word "specifically," and that making such precision a prerequisite to acceptance of a communication as an informal claim would contravene the Court of Appeals For Veterans Claims' (Court) precedents and public policies underlying the statutory scheme). To determine when a claim was received, the Board must review all communications in the claims file that may be construed as an application or claim. See Quarles v. Derwinski, 3 Vet. App. 129, 134 (1992). Upon receipt of an informal claim, if a formal claim has not been filed, an application form will be forwarded to the claimant for execution. If received within one year from the date it was sent to the claimant, it will be considered filed as of the date of receipt of the informal claim. An application is defined as a formal or informal communication in writing requesting a determination of entitlement or evidencing a belief in entitlement to a benefit. 38 C.F.R. § 3.1(p); see also Rodriguez v. West, 189 F.3d. 1351 (Fed. Cir. 1999) (an expressed intent to claim benefits must be in writing in order to constitute an informal claim; an oral inquiry does not suffice). With regard to the terms "application" or "claim," the Board notes that once a formal claim for compensation has been allowed or a formal claim for compensation disallowed for the reason that the service-connected disability is not compensable in degree, a report of examination or hospitalization by VA or the uniformed services can be accepted as an informal claim for benefits. The date of outpatient or hospital examination or date of admission to a VA or uniformed services hospital will be accepted as the date of receipt of a claim. These provisions apply only when such reports relate to examination or treatment of a disability for which service connection has been previously established or when a claim specifying the benefit sought is received within one year from the date of such examination, treatment, or hospital examination. 38 C.F.R. § 3.157(b)(1); see also 38 C.F.R. § 3.155(a). Title 38 of the 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. According to the Court, however, 38 C.F.R. § 3.157 only applies to a defined group of claims. See Sears v. Principi, 16 Vet. App. 244, 249 (2002) (section 3.157 applies to a defined group of claims, i.e., as to disability compensation, those claims for which a report of a medical examination or hospitalization is accepted as an informal claim for an increase of a service connected rating where service connection has already been established). VA medical records cannot be accepted as informal claims for disabilities where service connection has not been established. The mere presence of medical evidence does not establish intent on the part of the Veteran to seek service connection for a condition. See Lalonde v. West, 12 Vet. App. 377, 382 (1999) (where appellant had not been granted service connection, mere receipt of medical records could not be construed as informal claim). Thus, any prior VA medical records are not interpreted as an informal claim. Stated differently, merely seeking treatment, does not establish a claim, to include an informal claim, for service connection. As such, the medical records may not be used as claims of service connection. Analysis The Veteran initially sought VA compensation for hypertension in March 1976. An April 1976 VA examination report reflects a normal cardiovascular system. His blood pressure readings were: sitting, 100/60; recumbent, 120/70; and, standing, 130/100. The blood pressure reading sitting after exercise was 120/90; and, two minutes after exercise, 100/80. There was no diagnosis of hypertension; the diagnoses of record related to the Veteran's musculoskeletal system. Service treatment records dated in April 1975 note that the Veteran was involved in a motor vehicle accident along with three other persons, wherein he was thrown through the windshield. He lost consciousness for a period of time and suffered severe deep lacerations about the face and substantial blood loss. His blood pressure was 150/90. The entry notes that, at the beginning of an IV in preparation for suturing, blood pressure had stabilized from 150/60 to 130-140/70. A September 1975 entry notes that the Veteran had apparently tried to set his clothing afire while intoxicated an hour earlier. His injuries were assessed as probable second degree burns. His blood pressure was noted as 145/105. The examiner diagnosed acute intoxication and rule out underlying psychiatric disease. The September 1975 mental health assessment noted a diagnosis of no psychiatric illness but dissociative reaction secondary to alcoholic intoxication. The January 1976 Report Of Medical Examination For Separation notes the Veteran's blood pressure reading was 140/90, and the examiner noted "possible high blood pressure-pending evaluation" in Block 74. The Veteran's heart and vascular system were assessed as normal, and his chest x-ray was read as within normal limits. Service treatment records of January 1976, two weeks after the Veteran's physical examination for separation from active service, note a chest x-ray showed possible borderline cardiomyegaly, but an EKG was within normal limits. Blood pressure readings were 140/90 standing and sitting; and, 140/88 laying down. The next day pressure readings were 140/90 standing; 135/88 sitting; and, 138/80 laying down. The examiner indicated another check was to be performed in eight days, but there is no indication in the service treatment records that it was conducted. In a July 1976 rating decision the RO determined the elevated blood pressure readings during active service occurred during states of drug-induced intoxication and, in light of the findings at the April 1976 VA examination, denied service connection for hypertension. An RO letter also dated in July 1976 informed the Veteran of the decision and of his right to appeal. The Veteran did not appeal the July 1976 rating decision. Further, the claims file does not indicate that any additional information or evidence related to the claim for hypertension was received by the RO within the applicable appeal period for the rating decision. Thus, since there was no appeal or receipt of new and material evidence within one year, the July 1976 rating decision became final and binding. 38 C.F.R. §§ 3.156(b), 20.200, and 20.302. In July 1987, the Veteran applied to reopen his claim. An August 1987 RO letter informed him that medical evidence related to his claimed hypertension was needed and provided VA Forms 21-4142 for him to complete and return so the RO could obtain any indentified medical evidence. The letter instructed him to provide the requested evidence as soon as possible. Otherwise, any benefits payable could not be paid earlier than the date the RO received the requested information, if not received within one year. A November 1987 RO letter informed the Veteran his claim was denied because he did not submit the evidence requested in the August 1987 letter and informed him of what was needed to reopen his claim. The next correspondence from the Veteran was an October 1992 request for a copy of his claims file. The post-November 1987 documentation in the claims file clearly shows that VA received the Veteran's application to reopen his claim on November 19, 1992. A February 1993 rating decision determined that new and material evidence had not been received to reopen the claim, and the Veteran appealed. A statement of the case was issued in September 2003. By way of a December 1993 Form 21-4138, the Veteran informed the RO he wanted his claim to be reconsidered before it went to the Board and that additional evidence would be sent by his deceased physician's widow. A September 2008 handwritten annotation by a DRO correctly notes that the form should have been accepted in lieu of a VA Form 9. Hence, the February 1993 rating decision did not become final, as the Veteran perfected his appeal. See 38 C.F.R. §§ 20.200 and 20.202. The Veteran does not dispute the fact his claim to reopen was received on November 19, 1992, nor does he assert that he submitted any evidence related to the claim between November 1987 and November 1992. Notwithstanding these facts, the Veteran has consistently asserted that the effective date of his award of service connection and his initial ratings should date retroactively to the date of his original claim in July 1976, though the decision of denial on that claim is final. Again, the July 1976 and November 1987 RO letters that informed the Veteran of the July 1976 rating decision and 1987 decision respectively, and specifically informed him of his right to appeal if he believed the respective decision was wrong, but the Veteran did not do so. In the legislation applicable to claims, Congress specifically requires that a rating decision becomes final in the absence of a complete appeal filed within one year of the decision. 38 U.S.C.A. § 7105(b)(1). As noted, the Veteran did not appeal either the 1976 or 1987 denial and no new and material evidence was received within one year of their issuance. In light of the finality of the July 1976 and 1987 decisions, any effective date for the award of service connection for hypertension must follow the date of those determinations. In light of the fact the service treatment records were already of record and previously considered, cf. 38 C.F.R. § 3.156(c), and VA received the Veteran's application to reopen on November 19, 1992, the earliest effective date available is in fact that date. Allowance of an earlier effective date would be contrary to applicable law. 38 U.S.C.A. § 5110(a); 38 C.F.R. § 3.400(r) (2012). Thus, the Board is constrained to find the Veteran's effective date for entitlement to service connection for hypertension was assigned in accordance with applicable law. Id. The Veteran's other assertions as concerns the correctness of the July 1976 rating decision may be addressed in the CUE claim the Board referred to the RO. As noted earlier, that rating decision is final. See 38 C.F.R. § 3.105(a). Increased Initial Rating Applicable Law and Regulation Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA must also interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA must resolve any reasonable doubt regarding the degree of disability in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. VA must also evaluate functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Analysis Under DC 7101, hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, is rated 10 percent disabling; diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more, is rated 20 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Note (1) to DC 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The Veteran's paper claims file currently stands at 10 volumes. The Board has reviewed all of the records in the claims file and finds that the preponderance of the evidence of record shows that his hypertension did not more nearly approximate diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more for the period prior to January 5, 2001. As set forth in the discussion on the Veteran's assigned effective date, he applied to reopen his claim in November 1992. A March 1993 private entry notes the Veteran's blood pressure as 140/92. A November 1992 VA medical certificate reflects elevated blood pressure was noted on a physical examination conducted on the Veteran's job. The Veteran's blood pressure was noted as 152/102. The October 1993 VA examination report reflects the Veteran's blood pressure was 162/105 sitting; 148/94 lying; and, 160/100 standing. The examiner diagnosed hypertension. The medical paper trail is sparse for the period 1993 to 2000. The medical records which are available, however, show the Veteran's hypertension manifested with acute exacerbations when he was noncompliant with his medication, or when he was noncompliant with his diet, which resulted in his nonservice-connected diabetes being assessed as uncontrolled. A private July 2000 entry notes blood pressure of 198/130. Nitroglycerine was administered, and his blood pressure was down to 160/110 after 15 to 20 minutes. Interestingly, although this entry was seven years after the October 1993 VA examination, the Veteran reported that he did not know he had hypertension, and that he did not have a regular family physician. Three days later, his blood pressure was 150/112, and 150/98 by the end of July 2000. At a late-August 2000 check, the Veteran's blood pressure was 218/128. A week earlier it was 170/118, and the examiner noted the Veteran was not adequately monitoring his blood sugars. Near the end of August 2000, the Veteran's blood pressure was 142/90, and three days prior to the end of August 2000, it was 140/84, and his blood sugar was noted as better controlled. Mid-November 2000 the Veteran's blood pressure was 134/88, and this was after the Veteran sustained a stroke. In mid-December 2000, blood pressure was 140/90. A late December 2000 entry notes the Veteran's diastolic pressure was elevated at 114, but four days later, blood pressure was 140/92. The evidence shows, as the above representative entries note, that while the Veteran's blood pressure manifested with acute elevations, overall, through the end of December 2000, his systolic pressure manifested predominantly at less than 200-in fact, closer to 160; and, his diastolic pressure manifested predominantly at less than 110 or more. Thus, the Board finds the Veteran's hypertension more nearly approximated the assigned 10 percent rating for the period prior to January 5, 2001. 38 C.F.R. §§ 4.1, 4.10, 4.104, DC 7101. The October 2005 rating decision assigned a 20 percent rating, effective January 5, 2001. A private entry dated just before mid-January 2001 notes the Veteran's blood pressure was 180/120. The examiner noted the Veteran's blood pressure was much better controlled at his prior visit. In late January 2001, his blood pressure was 142/78; February 2001, 142/84; and March 2001, 164/112. The medical evidence of record shows the consistent up-and-down pattern of the Veteran's hypertension. Blood pressure readings taken between January 2001 and September 2005, however, show the Veteran's systolic pressure did not consistently exceed 200, and his diastolic pressure did not consistently exceed 110. For example, while his blood pressure was once 182/123 in September 2003, in October 2003, it was 141/91. Thus, the Board finds the assigned 20 percent rating, which was effective as of January 5, 2001, compensates the Veteran both for his chronic and episodic elevated blood pressure reading. 38 C.F.R. § 4.104, DC 7101. The Veteran's health started to deteriorate significantly beginning in about 2002 due to his other disabilities, but his hypertension did not meet or approximate the criteria for a 40 percent rating, which is based solely on diastolic pressure. See id. The Board has already noted blood pressure readings through 2005. The May 2006 VA general examination report notes the Veteran's blood pressure was 143/90. An August 2006 VA reading notes it as 120/90. Private records reflect the Veteran underwent a cardiac catherization in September 2006. Prior to that procedure, blood pressure was 208/118. In October 2006, post-procedure, blood pressure was 149/98. A January 2007 VA entry notes 160/95; February 2007, 170/98; March 2007, 134/95; and, April 2007, 127/80. A March 2008 VA entry notes the Veteran's blood pressure as 130/84. During a period of poor control, such as in September 2009 (Vols. 6 and 7), the Veteran's blood pressure was 188/129 and 185/127, and the examiner noted his blood pressure was usually controlled. The April 2010 VA examination report reflects the Veteran was diagnosed with poorly controlled hypertension. Despite the state of the disease at that time, the Veteran's blood pressure at the examination was 185/119, 184/120, and 194/120. Those readings do not meet or approximate the criteria for a 40 percent rating. 38 C.F.R. § 4.104, DC 7101. In April 2011 (Vol. 8), the Veteran sustained a stroke. His blood pressure is noted to have been 195/113. During his post-stroke rehabilitation in May 2011 (Vol. 9), the Veteran's blood pressure was 153/98. The December 2011 examination report for aid and attendance notes the Veteran's blood pressure as 138/96; and, the April 2012 VA peripheral nerves examination report notes the Veteran's blood pressure as 140/82 and 152/92. In light of the above, the Board finds the preponderance of the evidence shows the Veteran's hypertension has not manifested with diastolic pressure predominantly of 120 or more at any time during the initial rating period, to include since January 5, 2001. As discussed, the evidence of records shows acute elevated diastolic readings of 120 or more, such as in September 2010. However, the overall evidence shows that the Veteran's hypertension has consistently produced diastolic pressure of less than 120. Thus, the preponderance of the evidence shows the earliest date on which it is factually ascertainable the Veteran's hypertension manifested as 20 percent disabling is January 5, 2001. Prior to that date, the Veteran's hypertension manifested at the 10 percent rate. 38 C.F.R. §§ 3.400(a), 4.1, 4.10, 4.104, DC 7101. As set forth in the discussion of the legal criteria for rating disabilities, the Veteran is entitled to a staged rating for any period of time during which his hypertension manifested with more severe symptoms. See Fenderson, supra. The Board's review of the evidence of record shows the Veteran has received staged ratings where indicated by the evidence of record. Total Disability Evaluation on the Basis of Individual Unemployability (TDIU) The Board is also aware that the evidence of record may indicate the propriety of a total evaluation on the basis of individual employability, even if a specific formal claim is not of record. The issue of 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). The issue does not arise in the context of an increased rating claim when there is no allegation or evidence of unemployability. Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). In the instant case, the evidence of record shows that the Veteran was still working through 2001. Further, as earlier noted, a November 2007 rating decision (Vol. 5) awarded a 100 percent rating for CAD, effective in November 2000; and, an October 2012 rating decision awarded a TDIU, effective October 15, 2001. See 38 C.F.R. §§ 3.340, 4.16. The Board also notes, as set forth in the Introduction, that the Veteran has been awarded SMC. In light of the awards already in effect, the issue of TDIU is not presently before the Board. Extraschedular considerations The Board has also considered the propriety of referring the Veteran's claim for consideration of a higher rating on an extraschedular basis but finds no factual basis for doing so, as the Board finds the Veteran's hypertension disability picture is not exceptional to the point that the rating schedule is inadequate to address his disability. As discussed throughout the decision on the initial rating of the hypertension, the rating schedule sets forth the various severity of hypertension and the different evaluations for that severity. It was against those criteria that the Veteran's hypertension was evaluated for this initial rating period. Hence, the rating schedule describes and anticipates the Veteran's hypertension, which means that his disability picture is not exceptional. Further, as discussed earlier, the medical records noted the fact that the Veteran's exacerbations were primarily due to exacerbations of either his nonservice-connected diabetes, or his CAD, for which he is separately rated, or his noncompliance with his medication. See Mittleider v. West, 11 Vet. App. 181 (1998). In the absence of an exceptional disability picture, there is no factual basis for referral for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008); 38 C.F.R. § 3.321(b)(1). In reaching this decision the Board considered the doctrine of reasonable doubt. As the preponderance of the evidence is against the Veteran's claims, however, the doctrine is not for application. Schoolman v. West, 12 Vet. App. 307, 311 (1999). (CONTINUED ON NEXT PAGE) ORDER Entitlement to an effective date earlier than November 19, 1992, for grant of entitlement to service connection for hypertension is denied. Entitlement to an initial rating higher than 10 percent for hypertension for the period prior to January 5, 2001, and higher than 20 percent for the period since January 5, 2001, is denied. ____________________________________________ ERIC S. LEBOFF Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs