Citation Nr: 1315174 Decision Date: 05/08/13 Archive Date: 05/15/13 DOCKET NO. 08-02 513 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to a compensable evaluation for hypertension for the period beginning May 8, 2007. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD F. Yankey, Counsel INTRODUCTION The Veteran served on active duty from October 1971 to September 1999. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The Board notes that the issue of entitlement to a compensable evaluation for hypertension and cholesterolemia has been recharacterized as entitlement to a compensable rating for hypertension. The term "disability," as used for VA purposes, refers to a condition resulting in an impairment of earning capacity. See Allen v. Brown, 7 Vet. App. 439, 448 (1995). This distinction between diagnosis and disability is well established in VA law. Cf. 61 Fed. Reg. 20,440, 20,445 (May 7, 1996) (The diagnosis of elevated cholesterol is actually a laboratory result and is not, in and of itself, a disability.). As previously noted in the October 2011 remand, the issue of entitlement to service connection for a heart disorder other than hypertension, to include as secondary to service-connected hypertension, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). The record does not reflect that the AOJ has addressed this issue yet. Accordingly, the claim is again referred back to the RO for appropriate action. As noted above, the Board remanded the case in October 2011 for further development by the originating agency. The case has been returned to the Board for further appellate action. FINDING OF FACT For the period beginning May 8, 2007, the Veteran's diastolic blood pressure readings have not been predominantly 100 or more and his systolic readings have not been predominantly 160 or more; nor is there is a history of diastolic pressure predominantly 100 or more and continuous medication is required for control. CONCLUSION OF LAW The criteria for a compensable evaluation for hypertension for the period beginning May 8, 2007, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The claim arises from disagreement with the initial rating following the grant of service connection. The courts have held that once service connection is granted the claim is substantiated, additional VCAA notice is not required; and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The United States Court of Appeals for Veterans Claims (Court) has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as an effective date) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105. Goodwin v. Peake, 22 Vet. App. 128 (2008). Where a claim has been substantiated after the enactment of the VCAA, the appellant bears the burden of demonstrating any prejudice from defective VCAA notice with respect to the downstream elements. Id. There has been no allegation or evidence of prejudice. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.1599(c)(4). The RO assisted the Veteran in substantiating his claim by obtaining records of treatment reported by the Veteran, including service treatment records and VA and private treatment records. The Board remanded to afford the Veteran a new examination. The Veteran was afforded new VA examinations in December 2011 and April 2012. Although the December 2011 examination was inadequate, in that the Veteran was not given blood pressure readings on three separate days, the Board finds that the April 2012 examination was adequate to allow proper adjudication of the issue on appeal. The examiner conducted a complete examination, recorded all findings considered relevant under the applicable diagnostic code, and considered the full history of the disability. The remand instructions were thereby complied with. Stegall v. West, 11 Vet. App. 268 (1998). Furthermore, there is no evidence or contention that there has been a change in the disability since the last examination in April 2012. The Board finds that VA has complied with the VCAA's notification and assistance requirements and the appeal is ready to be considered on the merits. Legal Criteria Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2012). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1 (2012). Each disability must be considered from the point of view of the Veteran working or seeking work. 38 C.F.R. § 4.2 (2012). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2012). In both initial rating claims and normal increased rating claims, the Board must discuss whether any "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under laws administered by the Secretary. The Secretary shall consider all information and lay and medical evidence of record in a case before the Secretary with respect to benefits under laws administered by the Secretary. 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 (West 2002); see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Analysis The Board has thoroughly reviewed all the evidence in the Veteran's claims file. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The Rating Schedule provides that a 10 percent evaluation is warranted if diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or if there is a history of diastolic pressure predominantly 100 or more and continuous medication is required for control. A 20 percent evaluation is warranted if diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. Diastolic pressure of 120 or more is rated at 40 percent disabling, and a maximum 60 percent disability rating is warranted for diastolic pressure of 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). In every instance where the schedule does not provide a noncompensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. During the pendency of this appeal, a change was made to the criteria used to evaluate disabilities evaluating hypertension. See 71 Fed. Reg. 52,457-52,460 (Sept. 6, 2006). This change added a Note (3) to the criteria at DC 7101 that directed that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. The evidence shows that the Veteran has been diagnosed with hypertensive heart disease and atherosclerotic heart disease. Accordingly, the amendment to the regulations must be considered in this case. See 38 C.F.R. § 4.104, DC 7101 (2012). However, as noted above, the issue of entitlement to service connection for a heart disorder other than hypertension, to include as secondary to service-connected hypertension has been referred to the AOJ for adjudication, and further consideration of the issue at this time is not required. The medical evidence of record does not show that the Veteran has had diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more to warrant a compensable rating under Diagnostic Code 7101. Indeed the record contains no reports of diastolic readings of 100 or more or systolic readings of 160 or more. On VA examination in December 2011, the Veteran reported that he required continuous medication (Lisinopril) to control his hypertension. His blood pressure readings were 150/81, 138/72, and 142/80. He was diagnosed with hypertension and atherosclerotic heart disease. On VA examination in April 2012, the Veteran reported that his blood pressure was well controlled, but claimed that it was running high at that time because he had back pain. He had blood pressure readings on three different days of 146/73, 142/75, and 140/80. He was diagnosed with hypertension. Moreover, outpatient treatment records from the VA Medical Center in Orlando, Florida, and the Community Based Outpatient Clinics in Clermont, Florida and Kissimmee, Florida, show that the Veteran's blood pressure readings have consistently been well below what would be needed to warrant a compensable rating under Diagnostic Code 7101 for the period beginning May 8, 2007. Accordingly, the Board finds that the evidence does not show that the Veteran has had blood pressure readings showing diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more and continuous medication is required for control. As such, a compensable rating for the period beginning May 8, 2007 for the Veteran's hypertension is not warranted. In reaching the above conclusion, the Board has also not overlooked the Veteran's statements in support of his claim. The Veteran is competent to report the symptoms of his hypertension. His complaints are credible. The Veteran's complaints have been considered in the above noted evidence; however, evaluations for VA purposes have not shown the severity required for a higher schedular rating, as discussed above. To the extent that the Veteran argues or suggests that the clinical data supports an increased disability rating or that the rating criteria should not be employed, he is not competent to make such an assertion. See Espiritu v. Derwinski, 2 Vet. App. at 494. VA must only consider the factors as enumerated in the rating criteria discussed above, which in part involves the examination of clinical data gathered by competent medical professionals. See Massey v. Brown, 7 Vet. App. at 208. Furthermore, the Board finds the objective medical findings and opinions provided by VA examiners should be accorded the greater probative weight. See Guerrieri v. Brown, 4 Vet. App. 467, 473 (1993) ("the probative value of medical opinion evidence is based on the medical expert's personal examination of the patient, the physician's knowledge and skill in analyzing the data, and the medical conclusion the physician reaches . . . . As is true with any piece of evidence, the credibility and weight to be attached to these opinions [are] within the province of the [Board as] adjudicators . . ."). Accordingly, the Board concludes that the preponderance of the evidence is against the claim for an increased evaluation, and the benefit of the doubt rule does not apply. See 38 U.S.C.A. § 5107 (West 2002). Extra-schedular consideration Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards." 38 C.F.R. § 3.321(b)(1) (2012). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). If the evidence raises the question of entitlement to an extraschedular rating, 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. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). In this case, the Veteran's disability is manifested by symptoms that are contemplated by the rating criteria. Accordingly, further consideration of an extraschedular rating for hypertension is not warranted. Total Rating for Compensation Based on Individual Unemployability (TDIU) The Court has held that TDIU is an element of all claims for an increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2010). TDIU is granted where a Veteran's service connected disabilities are rated less than total, but they prevent him from obtaining or maintaining all gainful employment for which his education and occupational experience would otherwise qualify him. 38 C.F.R. § 4.16 (2012). 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, the requirement in 38 C.F.R. § 3.155(a) (2012) that an informal claim "identify the benefit sought" has been satisfied and VA must consider whether the Veteran is entitled to a total rating for compensation purposes based on individual unemployability (TDIU). Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). In this case there is no evidence that a service connected disability has caused unemployability, and there has been no allegation or evidence of unemployability during the appeal period. Both the December 2011 and April 2012 examination reports indicate that the Veteran's hypertension did not impact his ability to work, and there have been no reports that he is not working due to the effects of his service connected disability. Further consideration of entitlement to TDIU is, therefore, not required. ORDER Entitlement to a compensable evaluation for hypertension for the period beginning May 8, 2007, is denied. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs