Citation Nr: 1314302 Decision Date: 05/01/13 Archive Date: 05/15/13 DOCKET NO. 10-04 104 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to an initial compensable disability rating for hypertension. 2. Entitlement to an initial disability rating in excess of 50 percent for major depressive disorder. 3. Entitlement to service connection for a back disability, claimed as a pinched nerve, to include neurologic symptoms of the lower extremities claimed as right foot neuropathy. 4. Entitlement to service connection for a right ankle disability. 5. Entitlement to service connection for left foot plantar fasciitis. REPRESENTATION Appellant represented by: Kenneth LaVan, Attorney at Law WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD D. Havelka, Counsel INTRODUCTION The Veteran's active military service extended from December 1978 to January 1986. This matter originally comes before the Board of Veterans' Appeals (Board) on appeal from multiple rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. A December 2007 rating decision granted service connection for a psychiatric disability, and assigned a 10 percent rating, effective January 2007. Subsequently, a November 2009 rating decision assigned an increased rating of 50 percent for this disability effective from the date of service connection in January 2007. A September 2010 rating decision granted service connection for hypertension and assigned a noncompensable (0%) disability rating. That rating decision also denied service connection for a pinched nerve in the back and a right foot condition which had been claimed as neuropathy as a symptom of the claimed back disability. Finally, a March 2012 rating decision denied service connection for a right ankle disability and left foot plantar fasciitis. The Veteran's claim for service connection for a neuropathy of the right foot was asserted to be a result of neurologic impairment resulting from a back disability. Accordingly, the Board has recharacterized those claims into a single issue to more accurately reflect the nature of the claim. The Veteran also claims service connection for a right ankle disability which she asserts is the result of a documented right ankle injury during service. This is a distinct claim, which is addressed as the issue of service connection for a right ankle disability. In August 2012, the Veteran testified at a video conference hearing at the RO before the undersigned Acting Veterans Law Judge sitting in Washington, DC. A transcript of this testimony is associated with the claims file. All issues, with the exception of the issue of entitlement to a compensable rating for hypertension, are addressed in the REMAND portion of the decision below and are REMANDED to the RO. FINDING OF FACT The Veteran's hypertension requires continuous medication to control; diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more are not shown. CONCLUSION OF LAW The criteria for a 10 percent rating, but no more, for hypertension, have been met. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.6, 4.7, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify & Assist Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. at 490-91 (2006). In such cases, where the appellant then files an notice of disagreement (NOD) with the initial rating and/or the effective date assigned, he has initiated the appellate process and different, and in many respects, more detailed notice obligations arise, the requirements of which are set forth in sections 7105(d) and 5103A of the statute. Id., see also Goodwin v. Peake, 22 Vet. App. 128, 137 (2008); 38 U.S.C.A. §§ 5103(A), 7105(d). Accordingly, once service connection was granted and a disability rating and effective date was assigned for the Veteran's hypertension, section 5103(a) notice was no longer required. VA has obtained service treatment records; private medical records; VA treatment records; VA examination reports; assisted the appellant in obtaining evidence; and afforded her the opportunity to present testimony, statements and evidence. All known and available records relevant to the issue on appeal have been obtained and associated with the appellant's claims file and he has not contended otherwise. The Board finds that the VA examinations obtained in this case are adequate. The examiner performed physical examinations, considered the Veteran's statements, and provided the medical information necessary to address the rating criteria in this case. See generally Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). Accordingly, the Board finds that VA's duty to assist with respect to obtaining a VA examination or opinion with respect to the issues on appeal has been met. 38 C.F.R. § 3.159(c) (4). The Board concludes the Veteran was provided the opportunity to meaningfully participate in the adjudication of her claim and did in fact participate. Washington v. Nicholson, 21 Vet. App. 191 (2007). Hence, there is no error or issue that precludes the Board from addressing the merits of this appeal. II. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the disability. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). This appeal is from the initial disability ratings assigned upon the award of service connection. The entire body of evidence is for consideration. Consistent with the facts found, separate ratings can be assigned for separate periods of time, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); see also, Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran claims her service-connected hypertension warrants a compensable rating. Hypertension is rated under DC 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating contemplates diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; 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. A 20 percent rating contemplates diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. Finally, a 60 percent rating contemplates diastolic pressure predominantly 130 or more. Id. The regulation further indicates that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note 1. An April 2007 VA pharmacy note reveals that the Veteran's active medication list included medication prescribed to treat blood pressure. A December 2008 VA treatment record confirms the diagnosis of hypertension. In May 2010 a VA Compensation and Pension examination of the Veteran was conducted. Current blood pressure readings on examination were: 127/85; 116/79; and 119/84. The examiner reviewed the Veteran VA vital signs records dating back to 2008, which revealed three instances of elevated blood pressure. Specifically blood pressure was 170/103 in May 2009; 142/101 in September 2009; and, 160/100 in April 2010. The Board has reviewed all the evidence of record. The VA treatment records reveal that the Veteran requires, and is prescribed, continuous medication to control her hypertension. Records showing blood pressure readings do indicate some readings of diastolic blood pressure being 100. Resolving all doubt in the favor of the Veteran, the evidence of record reveals that she meets the criteria of the assignment of a 10 percent rating by having a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. Accordingly a 10 percent rating for hypertension is warranted. However, the preponderance of the evidence is against the claim for a rating in excess of 10 percent. Simply put, the medical evidence of record does not reveal that, from the effective date of service connection to the present, the Veteran has ever had diastolic blood pressure predominantly 110 or more or systolic blood pressure predominantly 200 or more. Besides the lack of documented medical evidence of blood pressure readings warranting the assignment of a disability rating in excess of 10 percent, neither the Veteran's testimony at the hearing nor any assertions made by her counsel have indicated that any such blood pressure readings have ever been noted. Consideration has been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service. An extra-schedular evaluation is warranted where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability. Thun v. Peake, 22 Vet. App. 111, 115 (2008). If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization. Id. at 115-116. When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required. Id. at 116. The schedular criteria are adequate, as the Veteran's blood pressure readings fall into the criteria described under the 10 percent rating. Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. Last, a claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009), has been considered. Again, the medical evidence of record confirms that the Veteran's service-connected hypertension does not result in unemployability. Accordingly, consideration of TDIU pursuant to Rice is not warranted. Accordingly, the preponderance of the evidence is against the claim for the assignment of a rating in excess of 10 percent for hypertension. There is no doubt to be resolved. ORDER A 10 percent rating, but no more, is granted for hypertension, subject to the law and regulations governing the payment of monetary awards. REMAND A March 2012 rating decision denied service connection for a right ankle disability and left foot plantar fasciitis. In April 2012, the Veteran filed a timely notice of disagreement with respect to this denial of service connection . Where a notice of disagreement has been filed with regard to an issue, and a statement of the case has not been issued, the appropriate Board action is to remand the issue for the issuance of a statement of the case. See Manlincon v. West, 12 Vet. App. 238 (1999). On remand, therefore, the Veteran must be provided a statement of the case that addresses the issues of entitlement to service connection for a right ankle disability and left foot plantar fasciitis. The Veteran must be notified of the time limit within which a substantive appeal must be filed in order to perfect an appeal on the issues to secure appellate review by this Board. Subsequent to the August 2012 hearing, the Veteran's attorney submitted additional evidence in September 2012. This evidence consisted primarily of private and VA medical records and was submitted on a CD ROM, not in written form. Printed copies of these records are not contained in the claims file. The CD contained in the record is damaged and the Board is unable to access the records contained therein. The Veteran should be requested to submit additional copies of the records contained on this CD. The Veteran asserts that she injured her back in a motorcycle accident during service. She claims that she currently has degenerative disc disease, along with neuropathy of the lower extremities as a result of this claimed injury. Service treatment records and service personnel records do not reveal any such accident or back injury during service. However September 2010 neurologic testing does reveal the presence of sensory peripheral neuropathy. In light of this evidence, and the Veteran's assertions, a VA examination appears warranted. The Veteran's only psychiatric Compensation and Pension examination was conducted in November 2007. Subsequent VA mental health treatment records reveal Global Assessment of Functioning (GAF) scores varying between a low of 42 and a high of 70. The evidence of record generally shows that the Veteran maintains employment, but a recent, January 2013 record indicates possible upcoming treatment in a residential treatment program. Accordingly, another Compensation and Pension examination is necessary with respect to the issue involving rating the Veteran's service-connected psychiatric disability. Accordingly, the case is REMANDED for the following action: 1. Issue a Statement of the Case and notification of the Veteran's appellate rights on the issues of entitlement to service connection for a right ankle disability and left foot plantar fasciitis. 38 C.F.R. § 19.26 (2012). 2. Inform the Veteran's attorney that the CD ROM submitted in September 2012 is damaged and request that the evidence contained therein be resubmitted. 3. The Veteran should be afforded a VA examination by a physician with sufficient expertise to determine the nature and etiology of any current back disability. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. Any indicated studies should be performed. If a separate examination is required related to the Veteran's complaints of lower extremity neuropathy, then such examination should be ordered. The examiner should identify any back disorders that have been present during the pendency of the claim. With respect to each such disorder, the examiner should state an opinion as to whether it is at least as likely as not (50 percent or better probability) that any current back disability, including lower extremity neuropathy, originated during service or is otherwise etiologically related to service, including the motorcycle accident reported by the Veteran. The rationale for each opinion expressed must also be provided. 4. The Veteran should be accorded a VA psychiatric examination to determine the nature and extent of the service-connected psychiatric disability. The report of examination should include a detailed account of all manifestations of psychiatric pathology found to be present. All necessary special studies or tests including psychological testing are to be accomplished. The examiner should assign a numerical code under the Global Assessment of Functioning Scale (GAF). It is imperative that the examiner include a definition of the numerical code assigned. The claims files and any pertinent evidence in Virtual VA that is not contained in the claims files must be made available to and reviewed by the examiner. The rationale for each opinion expressed must also be provided. 5. Undertake any other development deemed necessary. 6. Then, readjudicate the Veteran's claims. If the benefit sought on appeal is not granted to the Veteran's satisfaction, issue an appropriate Supplemental Statement of the Case and afford the Veteran and her attorney the requisite opportunity to respond. The case should then be returned to the Board, if in order, for further appellate action. The appellant has the right to submit additional evidence and argument on the 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 remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims 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). ______________________________________________ Alexandra P. Simpson Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs