Citation Nr: 1318209 Decision Date: 06/05/13 Archive Date: 06/11/13 DOCKET NO. 09-37 583 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUES 1. Entitlement to a compensable rating for hypertension. 2. Entitlement to service connection for sleep apnea, claimed as secondary to posttraumatic stress disorder (PTSD). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Anderson, Associate Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1967 to June 1991. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Winston-Salem, North Carolina Department of Veterans Affairs (VA) Regional Office (RO) that denied assigning a compensable rating for the Veteran's service-connected hypertension and denied service connection for sleep apnea, secondary to PTSD. FINDINGS OF FACT 1. For the period of the appeal, the Veteran's service-connected hypertension currently is shown to have been manifested by a history of diastolic pressure predominantly 100 or more, and requires continuous medication for control. 2. A claim of service connection for PTSD was denied by rating decision in July 2008; a timely notice of disagreement was not received, nor was new and material evidence received within one year. 3. The Veteran's sleep apnea was not manifested in, and is not shown to be directly related to, a disease, injury, or event in service, or to have been caused or aggravated by a service-connected disability. CONCLUSIONS OF LAW 1. A compensable rating of 10 percent, but no higher, for the service-connected hypertension is warranted. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.104, including Diagnostic Code (Code) 7101 (2012). 2. Service connection for sleep apnea, to include as secondary to a service-connected disorder, is not warranted. 38 U.S.C.A. §§ 1110, 1131 (West 2002 & Supp 2012); 38 C.F.R. §§ 3.303, 3.310 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 (VCAA) The VCAA, in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The VCAA applies to the instant claim. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative of any information, and any 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 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). VCAA notice requirements apply to all five elements of a service connection claim: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 484-86 (2006), aff'd, 483 F.3d 1311 (Fed. Cir. 2007). VCAA notice should be provided to a claimant before the initial unfavorable agency of original jurisdiction decision on a claim. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The Veteran was advised of VA's duties to notify and assist in the development of his claim prior to its initial adjudication. June and August 2007 letters explained the evidence necessary to substantiate his claims (including on a secondary service connection basis), the evidence VA was responsible for providing, and the evidence he was responsible for providing. It also informed him of disability rating and effective date criteria. He has had ample opportunity to respond/supplement the record and has not alleged that notice in this case was less than adequate. The Veteran's service treatment records (STRs) and pertinent post-service treatment records have been secured. The Veteran was afforded VA respiratory and hypertension examinations in June 2008. The Board finds the reports of those examinations to be adequate for rating purposes, as they reflects familiarity with the factual records and provide diagnoses with respect to the disabilities at issue. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (VA must provide an examination that is adequate for rating purposes). The Veteran has not identified any pertinent evidence that remains outstanding. The Board finds that the record as it currently stands includes adequate competent evidence for the Board to decide this matter, and that no further development of the evidentiary record is necessary. See generally 38 C.F.R. § 3.159(c)(4). VA's duty to assist is met. Legal Criteria, Factual Background, and Analysis Initially, the Board notes that it has reviewed all the evidence in the Veteran's claims file and in Virtual VA (VA's electronic data storage system), with an emphasis on the evidence relevant to this appeal. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Hence, the Board will summarize the relevant evidence as appropriate, and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). I. Increased Rating - Hypertension. In general, disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2008). The Veteran's claim for an increased rating was received on May 25, 2007, as shown by the date stamped on the front of his request for benefits. The relevant temporal focus is therefore from one year prior to that date, or May 25, 2006, to the present. Id. at 509. By history, the Veteran was granted service connection for hypertension and assigned a noncompensable rating, by rating decision dated in August 2004, with an effective date of January 15, 1999. The noncompensable rating has remained in continuous effect since. When the Veteran filed his current claim for a rating increase for his service-connected hypertension, he claimed that he had had high blood pressure while he was still in service and that he was taking medication to regulate his condition. The Veteran's hypertensive vascular disease is rated under the criteria contained within 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). This regulation provides for the assignment of a 10 percent evaluation for diastolic pressure predominantly 100 mm/Hg or more, or; systolic pressure predominantly 160 or more, or; a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Assignment of a 20 percent evaluation requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. For a 40 percent evaluation, diastolic pressure must be predominantly 120 or more. A 60 percent evaluation requires diastolic pressure predominantly 130 or more. The note under this code explains that the term hypertension is defined as diastolic blood pressure that is predominantly 90 or greater, and isolated systolic hypertension is defined as systolic blood pressure that is predominantly 160 or greater with a diastolic blood pressure of less than 90. VA afforded the Veteran an examination with regard to his hypertension in January 2006. The examiner indicated that the claims file was reviewed and stated that the Veteran was diagnosed with hypertension in the 1980's which was under treatment with Cordarone. His systolic and diastolic pressure was noted as 145/90. A review of the Veteran's VA treatment records pertaining to his hypertension for the period from May 2006 to the present, includes notes addressing his hypertensive vascular disease and routine checks of his vital signs including his blood pressure. The treatment records show that he has used medication to treat and control his hypertension. The Veteran's STRs show that he was diagnosed with hypertension in May 1985 and that he had a history of diastolic pressure over 100 while in service. Specifically, the instances in which the Veteran's diastolic pressure was over 100 was noted as follows: 160/110 on January 11, 1985; 162/110, 148/100 and 160/112 on January 14, 1985; 142/102 and 142/104 on January 15, 1985; 148/106 and 146/104 on January 17, 1985; and 156/104 in July 1990. In addition, on June 2008 VA examination, the examiner noted that the Veteran had been diagnosed with hypertension in service and had been started on medication at that time. The examination report also noted his blood pressure as 158/104, 158/100, and 148/100. The evidence of record shows that the Veteran has a history of diastolic pressure predominantly 100 or more, and he has continuously been prescribed medication to treat and control his hypertension. Accordingly, his hypertension more nearly approximates 10 percent rating. A rating in excess of 10 percent is not warranted as the evidence of record does not show, and the Veteran does not contend, that his hypertension is manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. The VA treatment records do not show that he has had systolic readings of 160 or higher or diastolic readings of 100 or higher on a predominant basis during the period on appeal. Accordingly, the Board finds that a rating of 10 percent, but no higher, is warranted for the Veteran's hypertension for the entire period of time on appeal. The Veteran's hypertension symptoms and manifestations have been consistent throughout the appeal period, so staged ratings are not warranted. The Board has also considered whether referral of this matter for extraschedular consideration is warranted. There is no objective evidence (or specific allegation) of symptoms and/or impairment due to the Veteran's hypertension not encompassed by the criteria under Diagnostic Code 7101. He has stated that his blood pressure is "borderline or above the normal level." See May 2007 written statement. The Veteran does not report any limitations as a result of his hypertension that are not already encompassed by the schedular criteria. Therefore, those criteria are adequate, and referral for extraschedular consideration is not warranted. 38 C.F.R. § 3.321(b); Thun v. Peake, 22 Vet. App. 111 (2008). Finally, the record notes that the Veteran is employed and still working. There is nothing in the record to suggest, nor is it alleged, that his hypertension renders him unemployable. Therefore, the matter of entitlement to a total disability rating based on individual unemployability is not raised in the context of this claim. II. Service Connection - Sleep Apnea. Service connection may be granted for disability due to disease or injury incurred in or aggravated by active military service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. Service connection may also be granted for any disease initially diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). To substantiate a claim of service connection, there must be medical evidence of a current disability; medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and medical evidence of a nexus between the claimed in-service disease or injury and the present disease or injury. See Hickson v. West, 12 Vet. App. 247 (1999). The determination as to whether these requirements are met is based on an analysis of all the evidence of record and the evaluation of its credibility and probative value. Baldwin v. West, 13 Vet. App. 1 (1999); 38 C.F.R. § 3.303(a). Service connection may be established on a secondary basis for a disability that is proximately due to, or the result of, or aggravated by a service-connected disease or injury. Establishing service connection on a secondary basis requires: (1) competent evidence of a current disability (for which secondary service connection is sought); (2) evidence of a service-connected disability; and (3) competent evidence that the current disability was either caused or (aggravated) by the service connected disability. The Veteran's STRs (including his April 1990 service separation physical examination report and report of medical history) are silent for any complaints, findings, treatment, or diagnosis related to sleep apnea. He was first found to have sleep apnea in August 2004, more than 14 years after his discharge from service. The Board notes that the Veteran does not argue, and the evidence does not show that his sleep apnea is directly related to his service. It is not in dispute that the Veteran has a diagnosis of sleep apnea. The Veteran's medical records from Dr. A. M. Constrini diagnosed him with obstructive sleep apnea in August 2004. He was prescribed a CPAP machine and reported treatment through 2007. In addition, the June 2008 VA examination report indicated that the Veteran maintained a diagnosis of sleep apnea. However, what the Veteran must show to establish service connection for the sleep apnea is that it is related to disease or injury in service (was incurred or aggravated therein). There is no medical evidence or opinion, which claims or otherwise establishes that his sleep apnea is in any way related to his military service. Consequently, service connection for sleep apnea on the basis that such disability became manifest in service, on a direct basis, and persisted, is not warranted. The Veteran's theory of entitlement in this matter is strictly one of secondary service connection; he alleges that his sleep apnea is secondary to PTSD. See May 2007 Claim, October 2009 substantive appeal, September 2011 Statement in lieu of 646, and April 2013 informal brief. Regarding the three requirements that must be met to substantiate a claim of secondary service connection, as to the second requirement, the Veteran has not established service connection for PTSD. The Veteran's only other service-connected disabilities are scars. A July 2008 rating decision specifically denied service connection for PTSD. In his February 2009 notice of disagreement, the Veteran expressly enumerated the issues for appeal from the July 2008 rating decision; PTSD was not identified. Consequently, since a timely notice of disagreement was not received, nor was new and material evidence received within one year, the July 2008 rating decision denying service connection for a PTSD is final. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. §§ 3.104, 3.156(b), 20.302, 20.1103 (2012). The Veteran is not entitled to service connection based on his sleep apnea being secondary to PTSD, as he is not entitled to service connection for PTSD. Therefore, the Veteran's secondary service connection claim for sleep apnea must be denied as a matter of law. See Sabonis v. Brown, 6 Vet. App. 426, 430 (1994) (where the law and not the evidence is dispositive, the Board should deny the claim on the ground of lack of legal merit). The Board concludes that the preponderance of the evidence is against the claim for service connection for sleep apnea on a direct basis, and is precluded as a matter of law on a secondary basis. Hence, the benefit of the doubt rule (38 U.S.C.A. § 5107(b)) does not apply. The appeal in this matter must be denied. ORDER A compensable rating of 10 percent, but not higher, for the service-connected hypertension is warranted. As to this issue, the appeal is granted. Entitlement to service connection for sleep apnea, secondary to PTSD, is not warranted. As to this issue, the appeal is denied. ____________________________________________ M. C. GRAHAM Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs