Citation Nr: 1313618	
Decision Date: 04/24/13    Archive Date: 05/03/13

DOCKET NO.  10-41 465	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Phoenix, Arizona


THE ISSUES

1.  Entitlement to a compensable disability rating for service-connected erectile dysfunction.

2.  Entitlement to an increased disability rating for service-connected bilateral hearing loss, currently evaluated as 10 percent disabling.

3.  Entitlement to a compensable disability rating for service-connected hypertension.

4.  Entitlement to an increased disability rating for service-connected diabetes mellitus, type II, currently evaluated as 20 percent disabling.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

Veteran


ATTORNEY FOR THE BOARD

K. K. Buckley, Counsel


INTRODUCTION

The Veteran served on active duty from July 1962 to July 1982.  He is the recipient of the Combat Infantry Badge.  Service in the Republic of Vietnam is indicated by the record.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions dated May 2008 and December 2008 of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona.

In March 2011, the Veteran presented sworn testimony during a personal hearing in Phoenix, Arizona, which was chaired by the undersigned Veterans Law Judge.  A transcript of the hearing has been associated with the Veteran's VA claims file.

The issue of entitlement to an increased disability rating for service-connected diabetes mellitus is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  The Veteran will be notified if further action on his part is required.

While appellate action was pending, the VA treatment records dated February 2011 to March 2013 were added to the Veteran's Virtual VA claims file.  Pursuant to 38 C.F.R. § 20.1304(c), a claimant must submit a written waiver of evidence submitted directly to the Board, or otherwise the new evidence along with the claims file must be referred back to the RO for consideration.  However, section 20.1304(c) requires that such evidence must be 'pertinent' to the claim.

In this case, the Board finds that the newly added treatment records are redundant of evidence already of record and are therefore not "pertinent" with respect to the Veteran's hypertension claim.  As will be explained below, the Board has found that the Veteran meets the criteria for a 10 percent disability rating for hypertension based upon the regular use of prescribed medications with a history of substantial increased blood pressure readings.  On that key point, the newly added VA treatment records shed no new light.  Specifically, these records confirm elevated blood pressure readings which do not exceed the criteria for the assignment of a 10 percent evaluation.  The records also demonstrate that the Veteran continues to rely upon continuous medication to manage his hypertension symptoms, a fact which is conceded below.  Thus, the Board has determined that the evidence does not require referral to the RO, nor does it require a waiver signed by the Veteran.


FINDINGS OF FACT

1.  In March 2011, prior to the promulgation of a final decision in the appeal, the Veteran, through his representative, informed the Board that he was withdrawing from appeal his claims of entitlement to increased disability ratings for service-connected erectile dysfunction and bilateral hearing loss.

2.  Resolving all doubt in the Veteran's favor, his service-connected hypertension requires the regular use of prescribed medications with a history of substantial increased blood pressure readings; it has not been manifested by objective evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more.





CONCLUSIONS OF LAW

1.  The criteria for the withdrawal of the substantive appeal by the Veteran, as to the claim of entitlement to a compensable disability rating for service-connected erectile dysfunction, are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

2.  The criteria for the withdrawal of the substantive appeal by the Veteran, as to the claim of entitlement to an increased disability rating for service-connected bilateral hearing loss, are met.  38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2002); 38 C.F.R. §§ 20.202, 20.204 (2012).

3.  Resolving all doubt in the Veteran's favor, the criteria for a 10 percent disability rating, but no higher, for service-connected hypertension have been met.  38 U.S.C.A. § 1155 (West 2002 & West Supp. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

I. Erectile dysfunction and bilateral hearing loss claims

In July 2008, the RO received the Veteran's claims of entitlement to increased disability ratings for service-connected erectile dysfunction and bilateral hearing loss.  The claims were denied in a December 2008 rating decision.  The Veteran perfected an appeal as to the RO's determination.  In a rating decision dated August 2010, the RO increased the evaluation assigned to the service-connected bilateral hearing loss to 10 percent, effective May 20, 2010.

A substantive appeal may be withdrawn in writing at any time before the Board promulgates a decision.  See 38 C.F.R. § 20.202 (2012).  Withdrawal may be made by the appellant or by his authorized representative.  38 C.F.R. § 20.204 (2012).  Here, in a written statement received in March 2011, the Veteran, through his representative, expressed his intent to withdraw from appeal the claims of entitlement to increased disability ratings for service-connected erectile dysfunction and bilateral hearing loss.  Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed.  As the Veteran has withdrawn from appeal his claims of entitlement to increased disability ratings for service-connected erectile dysfunction and bilateral hearing loss, there remain no allegations of errors of fact or law for appellate consideration as to these issues.  Accordingly, the Board does not have jurisdiction to review these claims, and they must be dismissed.

II. Hypertension claim

      A.  The Veterans Claims Assistance Act of 2000 (VCAA)

Upon receipt of a substantially complete application for benefits, VA must notify the claimant of what information or evidence is needed in order to substantiate the claim and it must assist the claimant by making reasonable efforts to get the evidence needed.  38 U.S.C.A. §§ 5103(a), 5103A; 38 C.F.R. § 3.159(b); see Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002).  Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide.  38 C.F.R. § 3.159(b)(1), as amended, 73 Fed. Reg. 23,353 (April 30, 2008).  This notice must be provided prior to an initial decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).

With respect to the service-connected hypertension, the Veteran filed his claim seeking an increased rating in July 2008.  A letter dated September 2008 satisfied the duty to notify provisions concerning this increased rating claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187.  The Veteran was informed of the types of evidence that could substantiate his claim, such as medical records or lay statements regarding personal observations.  He was asked to provide information as to where he had been treated for his service-connected disability and was informed that VA was responsible for obtaining any federal records, VA records, and any medical examinations, if necessary.
Additionally, the September 2008 letter provided the Veteran with the Diagnostic Codes used to rate his service-connected disabilities.  He was also notified of his opportunity to provide medical and lay evidence relevant to establishing entitlement to increased compensation.  Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated and remanded sub nom.  Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009) (which also stipulates that the notice required by section 5103(a) need not be specific to the particular veteran's circumstances; that is, VA need not notify a veteran of the specific diagnostic codes that may be considered or notify of any need for evidence demonstrating the effect that the worsening of the disability has on the particular veteran's daily life).

Accordingly, the Board finds that the procedural requirements of the law pertaining to VA's duty to notify the Veteran have been satisfied.  No further due process development of notification of this claim is required.

Regarding VA's duty to assist, the RO obtained the Veteran's service treatment records (STRs), as well as VA and private treatment records in furtherance of his claim.  The Veteran was also afforded VA examinations in May 2010 and September 2008 as to his pending claim.  The examination reports reflect that the VA examiner documented the Veteran's medical conditions, and provided reports that appear to be consistent with the remainder of the evidence of record.  See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion).  The Board therefore concludes that the May 2010 and September 2008 VA examination reports are adequate for evaluation purposes.  See 38 C.F.R. § 4.2 (2012); see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate).

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome here, the Board finds that any such failure is harmless.  Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).  

	B.  Analysis

Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7 (2012).  After consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran.  38 C.F.R. § 4.3 (2012).

The Veteran's entire history is reviewed when making disability evaluations.  See generally 38 C.F.R. § 4.1 (2012); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  In general, when 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, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).  Here, the Veteran was assigned a noncompensable disability rating for the service-connected hypertension throughout the appeal period.  As will be explained below, the Board is granting a 10 percent evaluation for the Veteran's hypertension and finds that his related symptoms have been consistent throughout the appeal period.

The Veteran's hypertension has been assigned a noncompensable evaluation under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101.  Under that DC, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control.  A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more.  A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more.  38 C.F.R. § 4.104.

After reviewing all the evidence of record under the rating criteria and resolving reasonable doubt in the Veteran's favor, the Board finds that the Veteran's hypertension warrants a 10 percent disability rating.

VA outpatient records show that the Veteran is prescribed Lisinopril and Triamterene to manage his elevated blood pressure.  Notably, in September 2005, an elevated blood pressure reading of 160/91 was documented and the Veteran was switched to Lisinopril from Benazepril.  Subsequent VA clinical records, dated to February 2011, reflect that the Veteran regularly took prescribed medications to treat his hypertension.

According to a September 2008 VA examination report, the Veteran continued to rely on medication to control his hypertension.  On examination, the Veteran's blood pressure was 130/100 based on three readings.  The examiner noted that the Veteran did not suffer from hypertensive heart disease.  He additionally indicated that the Veteran's service-connected hypertension had no significant effects on his occupation or daily living.

VA treatment records dated in December 2007 revealed elevated blood pressure readings at 163/100 and 140/90.  The treating practitioner noted that the Veteran's "hypertension [is] elevated today, didn't take medications yet."  VA outpatient records, dated in October 2008, documented blood pressure readings of 142/78 and 138/70.  It was further noted that "[t]he patient's blood pressure is usually adequately controlled.  No medication changes are indicated at this time."

According to a May 2010 VA examination report, the Veteran's blood pressure readings were 120/80, 120/70, and 120/70.  The examiner also noted that the Veteran took 40 mg. of Lisinopril daily, 100 mg. of Atenolol daily; and 50/HCTZ Triamterene 25 mg. daily.  The examiner indicated that the Veteran did not suffer from medical complications associated with hypertension such as coronary artery disease, hypertensive heart disease, congestive heart failure, peripheral arterial disease, hypertensive nephropathy, or hypertensive retinopathy.

As the Veteran is now using prescribed medication for hypertension, and as there is an established history of a significant increase in blood pressure readings, the criteria for a 10 percent evaluation for hypertension are nearly approximated.  See 38 C.F.R. § 4.7.  The Board does note, however, the total absence of any findings of diastolic pressure of 110 or more, or systolic pressure of 200 or more, let alone predominantly; the criteria for an even higher evaluation are therefore not met.  As such, a 10 percent rating but no more, is warranted for the Veteran's service-connected hypertension.  However, a higher rating is not warranted, as there is no objective evidence of predominant diastolic blood pressure of 110 or more or a predominant systolic blood pressure of 200 or more.

Accordingly, a 10 percent rating, but no higher, is warranted for the Veteran's service-connected hypertension.  The benefit of the doubt has been resolved in the Veteran's favor to this limited extent.

The Board has also considered whether the Veteran's hypertension presents 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 an extra-schedular rating is warranted.  See 38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996).  The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating 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 a greater evaluation for additional or more severe symptoms; 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 extraschedular consideration is not warranted.
In addition, the Board notes that if the claimant or the record reasonably raises the question of whether the Veteran is unemployable due to the disability for which an increased rating is sought, then part and parcel to that claim for a higher rating is whether a total rating based on individual unemployability (TDIU) as a result of that disability is warranted.  See Rice v. Shinseki, 22 Vet. App. 447 (2009).  Here, neither the Veteran, nor his representative has suggested that his hypertension precludes his employment.  Additionally, there is no indication in the record that the Veteran's service-connected hypertension has negatively impacted his employability.  Thus, any further consideration of the Veteran's claim under Rice is not warranted at this time.


ORDER

The claim of entitlement to a compensable disability rating for service-connected erectile dysfunction is dismissed.

The claim of entitlement to an increased disability rating for service-connected bilateral hearing loss is dismissed.

Entitlement to a 10 percent disability rating, but no higher, for hypertension is granted, subject to law and regulation governing the payment of monetary benefits.


REMAND

For reasons expressed immediately below, the Board finds that the Veteran's remaining claim on appeal--entitlement to an increased disability rating for service-connected diabetes mellitus, type II,--must be remanded for further development.

The Veteran was most recently afforded a VA examination in May 2010 as to his service-connected diabetes mellitus.  He and his representative have suggested that his service-connected disability has worsened in severity since the most recent VA examination.  See, e.g., the March 2011 Board hearing transcript.  Specifically, the Veteran testified that, in addition to being insulin dependent, he has been instructed by his treating physician to avoid strenuous activity.  Id. at pgs. 3-4, 8-9, & 11-12.  Accordingly, the Board notes that the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of a veteran.  See Green v. Derwinski, 1 Vet. App. 121 (1991).  In addition, where the evidence of record does not reflect the current state of a veteran's disability, a VA examination must be conducted.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2012).  Therefore, an updated examination must be scheduled in order to address the Veteran's claimed diabetes mellitus symptomatology.

In addition, the Veteran testified that he received emergency treatment by paramedics two weeks prior to the hearing as a result of an episode of diabetic shock.  See the March 2011 Board hearing transcript, pg. 4.  The Veteran indicated that he was treated at his home and was not transported by ambulance.  Id.  However, the Board finds that the Veteran should be requested to provide documentation of this medical treatment, to the extent possible, as such evidence is potentially relevant to the matter on appeal.

Further, review of the record (including the Veteran's VA claims file as well as his Virtual VA file) reflects ongoing medical treatment.  Thus, on remand, any previously unobtained ongoing relevant medical records should be procured and associated with his claims file.  38 U.S.C.A. § 5103A(c) (West 2002).

Accordingly, the case is REMANDED for the following action:

1. VBA should contact the Veteran through his representative and request that he identify any outstanding medical examination and treatment records pertaining to the issue currently on appeal, in particular any treatment records pertaining to the 2011 diabetic shock episode discussed above.  VBA should also take appropriate steps to secure VA treatment records from the VA medical center in Tucson, Arizona, dating from March 2013.  All such available documents should be associated with the claims file.

2. Schedule the Veteran for an appropriate VA examination to ascertain the severity his service-connected diabetes mellitus, type II.  It is imperative that the claims file be made available to the examiner for review in connection with the examination.  Any medically indicated special tests should be accomplished, if medically feasible.  All clinical findings should be clearly reported.  The appropriate examiner should indicate what symptoms are attributable to the service-connected diabetes mellitus, type II.  The examiner should specifically indicate whether the Veteran's diabetes mellitus requires insulin, oral hypoglycemic agent, restricted diet, and/or regulation of activities.  If the Veteran has hypoglycemic reactions of ketoacidosis episodes, the examiner should indicate how long they last and what kind of care is necessary.

The examiner should also provide an opinion concerning 
the impact of the Veteran's diabetes mellitus 
symptomatology on his ability to work.  The examiner 
should provide supporting rationale for this opinion.

3. Thereafter, readjudicate the claim on appeal.  If the benefit sought remains denied, the Veteran and his representative should be provided a supplemental statement of the case and given an opportunity to respond before the case is returned to the Board.

No action is required of the veteran until he is notified by the RO; however, the Veteran is advised that failure to report for any scheduled examination may result in the denial of his claim.  38 C.F.R. § 3.655 (2012).  The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board or by the Court for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).



______________________________________________
THOMAS J. DANNAHER
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs