Citation Nr: 1319262	
Decision Date: 06/13/13    Archive Date: 06/21/13

DOCKET NO.  12-20 800A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs (VA) Regional Office (RO) 
in Lincoln, Nebraska


THE ISSUE

Entitlement to a rating in excess of 10 percent for hypertension.


REPRESENTATION

Appellant represented by:	Calvin Hansen, Attorney


ATTORNEY FOR THE BOARD

G. Jackson, Counsel


INTRODUCTION

The Veteran had active service from August 1951 to August 1955.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision issued by the RO. In that decision, the RO denied entitlement to a rating in excess of 10 percent for the service-connected hypertension.

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim. A review of the documents in the electronic file reveals that they are either duplicative of the evidence in the paper claims file or are irrelevant to the issues on appeal. 

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

For the relevant period of this appeal, the Veteran's blood pressure readings of record are 128/76, 132/78, 124/78 and 136/68. His hypertension is not shown to be productive of diastolic pressure readings that are predominantly 110 or more, or systolic pressure predominantly 200 or more.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for hypertension are not met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.3, 4.7, 4.104 Diagnostic Code (DC) 7101 (2012).







REASONS AND BASES FOR FINDING AND CONCLUSION

Veterans Claims Assistance Act of 2000

The Veterans Claims Assistance Act of 2000 (VCAA), codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2011) redefined VA's duty to assist a claimant in the development of a claim. VA regulations for the implementation of VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2012).

The notice requirements of VCAA require VA to notify the claimant of any evidence that is necessary to substantiate the claim, as well as the evidence VA will attempt to obtain and which evidence he is responsible for providing. 38 C.F.R. § 3.159(b) (2012). In rating cases, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned.  Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The VCAA notice should be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO).  Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, the VCAA notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant.  See Pelegrini, 18 Vet. App. at 121.

In this case, in a March 2012 letter issued prior to the decision on appeal, the Veteran was provided notice regarding what information and evidence is needed to substantiate his claim, as well as what information and evidence must be submitted by the Veteran and what information and evidence will be obtained by VA. The letter also advised the Veteran of how disability evaluation and effective dates were assigned, and the type of evidence which impacted those determinations. The letter did not contain an explanation of the general rating criteria relevant to hypertension.  

The August 2012 Statement of the Case (SOC) set forth applicable criteria for ratings for hypertension and readjudicated the claim. Hence, the Veteran is not shown to be prejudiced by the timing of the latter notice. See Mayfield v. Nicholson, 20 Vet. App. 537, 543 (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 in an SOC or SSOC, is sufficient to cure a timing defect).

The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file (including the Virtual VA electronic claims) include a private treatment record and VA examination report.    

The VCAA provisions have been considered and complied with. The Veteran was notified and aware of the evidence needed to substantiate his claims, the avenues through which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. The Veteran was an active participant in the claims process by providing evidence and argument and presenting for VA examinations. Thus, he was provided with a meaningful opportunity to participate in the claims process and has done so. Any error in the sequence of events or content of the notices is not shown to have any effect on the case or to cause injury to the Veteran. Therefore, any such error is harmless and does not prohibit consideration of this matter on the merits.  See Dingess, supra; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998).

Laws and Regulations

Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity.  38 U.S.C.A. § 1155; 38 C.F.R. Part 4. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995).  

Where entitlement to compensation already has been established and 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). The Court has held that "staged" ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007).  

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.  See 38 C.F.R. § 4.7. 

The rating for the Veteran's hypertension has been assigned pursuant to diagnostic code (DC) 7101. See 38 C.F.R. § 4.104. A 10 percent rating is warranted for hypertension manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for hypertension manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for hypertension manifested by diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for hypertension manifested by diastolic pressure predominantly 130 or more.

Analysis

In this case, the Board concludes that the manifestations of the Veteran's hypertension do not warrant assignment of a rating in excess of 10 percent.

The April 2012 report of VA examination reflects that the Veteran's blood pressure readings were 128/76, 132/78 and 124/78. The examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation of predominantly 100 or more.

A June 2012 private treatment record reflects that the Veteran's blood pressure reading was 136/68.  

In order to warrant a 20 percent rating there must be evidence of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Based on the above, the Board does not find that the criteria have been met for a 20 percent rating for hypertension. In this regard, the Board notes that the evidence establishes that the Veteran's hypertension has not been manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Rather, the evidence shows that the Veteran's blood pressure readings of record are 128/76, 132/78, 124/78 and 136/68.

The Board has also considered the Veteran's assertions as to the severity of his manifestations; however, the Board finds the objective medical evidence to be more probative than his lay assertions in determining that his hypertension does not meet the criteria for a rating in excess of 10 percent. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Here the more credible and probative evidence established that he did not have hypertension manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.

Finally, the Board is aware that the Veteran has attacked the adequacy of the April 2012 VA examination, but the Board finds that the examination was adequate. In this case, the examiner sufficiently documented the manifestations of the Veteran's hypertension. The Veteran has not provided explanation of how the examination was performed in an insufficient manner other than to state that it was inadequate. Thus the Board finds that the examination was fully adequate for the Board to make an informed decision. 

The above determinations are based on application of pertinent provisions of VA's rating schedule. Additionally, the Board finds that at no point has the hypertension been shown to be so exceptional or unusual as to warrant the assignment of any higher ratings on an extra-schedular basis.  See 38 C.F.R. § 3.321.

Consideration of referral for an extraschedular rating requires a three-step inquiry. See Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The first question is whether the schedular rating adequately contemplates the Veteran's disability picture. Thun, 22 Vet. App. at 115. 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. If the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, then the second inquiry is whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as governing norms. If the Veteran's disability picture meets the second inquiry, then the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether an extraschedular rating is warranted. 

The discussion above reflects that the manifestations and effects of the Veteran's hypertension are fully contemplated by the applicable rating criteria. The Board's analysis above reflects that the manifestations, effects, and overall disability picture from the Veteran's hypertension is contemplated by the 10 percent rating, which take account of both the individual manifestations and the overall impairment caused by the hypertension. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required. In any event, the above evidence reflects that the effects of the hypertension on the Veteran's employment did not constitute marked interference with employment, i.e., beyond that contemplated by the assigned 10 percent rating. See 38 C.F.R. § 4.1 ("Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability"). Moreover, there is no evidence of frequent hospitalization, or indication that the Veteran's symptoms have otherwise rendered impractical the application of the regular schedular standards. Therefore, referral for consideration of an extraschedular rating for hypertension is not warranted. 38 C.F.R. § 3.321(b)(1).  






ORDER

Entitlement to a rating in excess of 10 percent for hypertension is denied.



____________________________________________
CHERYL L. MASON
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs