Citation Nr: 1315781 Decision Date: 05/14/13 Archive Date: 05/15/13 DOCKET NO. 12-34 596 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Diego, California THE ISSUE Entitlement to rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. N. Moats, Counsel INTRODUCTION The Veteran had active duty service from June 1944 to April 1945. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision issued by the San Diego, California Regional Office (RO) of the Department of Veterans Affairs (VA). Additional evidence was submitted by the Veteran after the issuance of the statement of the case in October 2011. However, this evidence is duplicative of evidence already of record and thus, waiver of RO consideration is not necessary. 38 C.F.R. § 20.1304(c). A review of the Veteran's Virtual VA electronic paperless claims processing system does not include any additional evidence pertinent to the appeal. Rather, the evidence is primarily duplicative of documents in the claims folder. The issue of entitlement to service connection for diabetes mellitus, type II, and its associated complications, to include disorders of the eye, has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDING OF FACT The Veteran's service-connected hypertension has been productive of systolic pressure that has been predominantly less than 200, and, historically and through the present time, diastolic pressure that has been predominantly less than 110. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.7, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2012). Proper notice from VA must inform the claimant of any information and medical or lay 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In addition, the notice requirements of the VCAA apply to all elements of a service-connection claim, including: (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. at 486. VCAA notice must be provided prior to an initial unfavorable 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). Where complete notice is not timely accomplished, such error may be cured by issuance of a fully compliant notice, followed by readjudication of the claim. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); see also Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant VCAA notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). In a claim for increase, the VCAA requires only generic notice as to the type of evidence needed to substantiate the claim, namely, evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on employment, as well as general notice regarding how disability ratings and effective dates are assigned. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Here, the Veteran was sent a letter in March 2010 that fully addressed all notice elements and was sent prior to the initial RO decision in this matter. The letter provided information as to what evidence was required to substantiate the claim and of the division of responsibilities between VA and a claimant in developing an appeal. Moreover, the letter informed the Veteran of what type of information and evidence was needed to establish a disability rating and effective date. Accordingly, no further development is required with respect to the duty to notify. Next, VA has a duty to assist the Veteran in the development of the claim. This duty includes assisting him in the procurement of service treatment records and pertinent treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant. See Bernard v. Brown, 4 Vet. App. 384 (1993). The claims file contains the Veteran's private treatment records. Moreover, the Veteran's statements in support of the claim are of record. The Board has carefully reviewed such statements and concludes that no available outstanding evidence has been identified. The Board has also perused the medical records for references to additional treatment reports not of record, but has found nothing to suggest that there is any outstanding evidence with respect to the Veteran's claim. The RO also attempted to substantiate the Veteran's increased rating claim for hypertension by scheduling him for a examination. The Veteran was scheduled for a March 2010 VA examination and provided with a notice letter earlier that month. However, a notation in the record shows that the Veteran cancelled the examination because he was going to be out of town until the beginning of June. A follow up report of contact dated in July 2010 documented that the Veteran indicated no desire to reschedule the examination. Nevertheless, in February 2011, the Veteran was scheduled for another VA examination. Notice of the second examination dated in January 2011 is documented in the file; however, the Veteran failed to report for this examination, as well, and has failed to provide good cause for his failure to report. See 38 C.F.R. § 3.655. Applicable law provides that when a claimant, without good cause, fails to report for an examination or reexamination, the claim shall be rated based on the evidence of record, or even denied . See 38 C.F.R. § 3.655(b). Examples of "good cause" for failure to report for a VA examination include illness or hospitalization of the claimant and death of an immediate family member. See 38 C.F.R. § 3.655(a). In the instant case, the consequence of the Veteran's failure to report for his February 2011 examination, which was scheduled in conjunction with his claim for increase, is that is his claim will be rated on the other evidence of record without the benefit of a VA examination. See 38 C.F.R. § 3.655(b). The Board highlights that the duty to assist is not a one-way street; a claimant cannot stand idle when the duty to assist is invoked by failing to provide important information or otherwise failing to cooperate. Wood v. Derwinski, 1 Vet. App. 190 (1991) (aff'd on reconsideration, 1 Vet. App. 460 (1991); Olson v. Principi, 3 Vet. App. 480, 483 (1992). For the above reasons, no further notice or assistance to the appellant is required to fulfill VA's duty to assist the appellant in the development of the claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). Analysis The present appeal involves the Veteran's claim that the severity of his hypertension warrants a higher disability rating. Disability evaluations are determined by the application of the Schedule For Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The Veteran's service-connected hypertension has been rated as 10 percent disabling under the provisions of Diagnostic Code 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension). 38 C.F.R. § 4.104. According to Diagnostic Code 7101, a 60 percent rating is warranted if the diastolic pressure is predominantly 130 or more, a 40 percent rating is assigned if the diastolic pressure is predominantly 120 or more, a 20 percent rating is warranted when the diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more, and a 10 percent rating is assigned if the diastolic pressure is predominantly 100 or more or systolic pressure is 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. The Veteran filed his current claim for an increased rating in February 2010. In support of his claim, the Veteran submitted a December 2009 private opinion from C.W., M.D., Ph.D. Dr. W indicated that the Veteran had to continue his current medications for hypertension and diabetes. Without treatment, he was likely to suffer stroke, heart attack and diabetic related complications. In a follow up opinion dated in February 2010, Dr. W indicated that the Veteran had been on four anithypertensive medications since November 2009. His blood pressure readings were 140/84, 140/70 and 154/60. The examiner had no plausible explanation for attributing the Veteran's diabetes mellitus to his hypertension. Private treatment records from Dr. Wang from November 2009 to June 2010 showed the following blood pressure readings: 140/84, 140/70,154/60, 140/68 and 126/70. These records also document continuous treatment for the Veteran's hypertension with medications. In statements of record, the Veteran has asserted that he believes a higher rating is warranted because he is required to take four medications to control his hypertension. As observed above, the Veteran was scheduled for VA fee-based examinations in March 2010 and February 2011, which he cancelled and failed to report to, respectively. Again, the consequence of this failure is that his claim for an increased rating must be rated on the remaining evidence of record without the benefit of a VA examination. After reviewing the evidence of record, the Board finds that a rating in excess of 10 percent is not warranted. In this regard, throughout the course of the appeal, the Veteran's hypertension has not more nearly approximated diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, as contemplated by the next higher rating of 20 percent under Diagnostic Code 7101. 38 C.F.R. § 4.104, Diagnostic Code 7101. Upon review of the entirety of the Veteran's blood pressure readings, the diastolic pressure has consistently been below 110. In fact, at no point during the appeal has the Veteran's diastolic pressure been above 110. Moreover, systolic pressure has been below 200 on all readings. Accordingly, the criteria for a 20 percent rating under Code 7101 are not met. The Board has carefully reviewed and considered the Veteran's statements regarding the severity of his hypertension. The Board acknowledges that the Veteran, in advancing this appeal, believes that the disability on appeal has been more severe than the assigned disability rating reflects. Moreover, the Veteran is competent to report observable symptoms. Layno v. Brown, 6 Vet. App. 465 (1994). In this case, however, the private treatment records offering detailed specific specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal; the medical evidence also largely contemplates the Veteran's descriptions of symptoms. The lay statements have been considered together with the probative medical evidence clinically evaluating the severity of the pertinent disability symptoms. The Veteran has also asserted that he should be afforded a higher rating due to the increase in medications. Nevertheless, while the rating criteria takes into account the need for continuous medication, it does not provide for a higher rating based on the number of medications or an increase in medications. The Board has considered whether staged ratings under Hart, supra, are appropriate for the Veteran's service-connected hypertension; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. Additionally, the Board has contemplated whether the case should be referred for extra-schedular consideration. In general, the schedular disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The application of such schedular criteria was discussed in great detail above. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. 38 C.F.R. § 3.321(b)(1)). An extra-schedular disability rating is warranted 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 that application of the regular schedular standards would be impracticable. Id. The Court has held that the Board is precluded by regulation from assigning an extraschedular rating under 38 C.F.R. § 3.321(b)(1) in the first instance; however, the Board is not precluded from raising this question, and in fact is obligated to liberally read all documents and oral testimony of record and identify all potential theories of entitlement to a benefit under the law and regulations. Floyd v. Brown, 9 Vet. App. 88 (1996). The Court further held that the Board must address referral under 38 C.F.R. §3.321(b)(1) only where circumstances are presented which the Director of VA's Compensation and Pension Service might consider exceptional or unusual. Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). In Thun v. Peake, 22 Vet. App. 111 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe the Veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the Veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. The Board has carefully compared the level of severity and symptomatology of the Veteran's service-connected hypertension with the established criteria found in the rating schedule. The Board finds that the Veteran's hypertension symptomatology is fully addressed by the rating criteria under which such disability is rated. In this regard, the Veteran's 10 percent rating contemplates his elevated blood pressure readings and the necessity for continuous medication. There are no additional symptoms of his hypertension that are not addressed by the rating schedule. Although the Veteran has reported complications with respect to his diabetes, including the need for eye surgery, these complications are not associated with his service-connected hypertension and this issue has been referred back to the RO for appropriate action. In fact, the Veteran's private physician in February 2010 found no plausible explanation to attribute the Veteran's diabetes mellitus to his hypertension. Therefore, the Board finds that the rating criteria reasonably describe the Veteran's disability level and symptomatology of his service-connected disability. As such, the Board finds that the rating schedule is adequate to evaluate the Veteran's disability picture. Therefore, the Board need not proceed to consider the second factor, viz., whether there are attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization. Consequently, the Board concludes that referral of this case for consideration of an extra-schedular rating is not warranted. Id.; Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). The Court has held that a request for a total disability rating based on individual unemployability (TDIU), whether expressly raised by a Veteran or reasonably raised by the record, is not a separate claim for benefits, but rather involves an attempt to obtain an appropriate rating for a disability or disabilities, either as part of the initial adjudication of a claim or, if the disability upon which entitlement to TDIU is based has already been found to be service-connected, as part of a claim for increased compensation. Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009). However, in the instant case, the Veteran has not asserted, nor has the evidence shown, that his service-connected hypertension rendered him unemployable. Accordingly, there is no need for further analysis with respect to this matter. In conclusion, the Board finds that the preponderance of the evidence is against the Veteran's claim for a rating in excess of 10 percent for the appeal period. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER A rating in excess of 10 percent for hypertension is denied. ____________________________________________ MARJORIE A. AUER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs