Citation Nr: 1319487 Decision Date: 06/17/13 Archive Date: 06/27/13 DOCKET NO. 07-02 602 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Columbia, South Carolina THE ISSUES 1. Entitlement to an evaluation in excess of 10 percent for the service-connected hypertension. 2. Entitlement to a total disability evaluation based on individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD K. L. Wallin, Counsel INTRODUCTION The Veteran served on active duty from February 1975 to December 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. In October 2010, the Board remanded the matters for further development and adjudication. Unfortunately, the claim for TDIU is still not ready for appellate review and is addressed in the REMAND portion of the decision below and are REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT Throughout the appellate period, the Veteran's hypertension has required continuous medication for control; it has not been shown to be productive of systolic pressure predominantly 200 or more or diastolic pressure predominantly 110 or more. CONCLUSION OF LAW The criteria for the assignment of an evaluation in excess of 10 percent for the service-connected hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107, 7104 (West 2002); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.107 including Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Notice and Assistance Upon receipt of a complete or substantially complete application for benefits and prior to an initial unfavorable decision on a claim by an agency of original jurisdiction, VA is required to notify the appellant of the information and evidence not of record that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159; Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). The notice should also address the rating criteria or effective date provisions that are pertinent to the appellant's claim. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In January 2006, the Veteran filed a claim for TDIU. The RO provided the Veteran pre-adjudication notice, with regard to the claim for TDIU, by letter dated in February 2006. In March 2006, the Veteran received notice of the disability-rating and effective-date elements of a claim in accordance with the United States Court of Appeals for Veteran's Claims' (Court) decision in Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). This notice included detailed information about the assignment of disability ratings and the criteria used by VA to determine the appropriate rating to include the nature, symptoms, severity, and duration of symptoms. The Board would note that the Veteran did not file a separate request for increase of his service-connected hypertension; a review of the disability rating assigned for hypertension, as well as the ratings for hidradenitis suppurativa and donor site scars, was undertaken by the RO in April 2006 as part of his claim for TDIU. The Veteran put the claim for increase for hypertension at issue when he filed a notice of disagreement in August 2006. The claim was readjudicated in a November 2006 statement of the case. The Veteran has not alleged any prejudice resulting from any lack of notice regarding his claim for an increased rating for hypertension. Prejudicial error occurs in the context of VCAA notice only when such error affects "the essential fairness of an adjudication" or "has the natural effect of producing prejudice." Mayfield v. Nicholson, 19 Vet. App. 103 (2005). Appellants must generally identify "with considerable specificity": (1) how the VCAA notice was defective; (2) what evidence the appellant would have provided or requested that VA obtain had VA fulfilled its notice obligations; and (3) how the lack of notice and evidence affected the essential fairness of the adjudication. Id; see also Shinseki v. Sanders, 129 S.Ct. 1696 (2009) (holding that a party alleging defective VCAA notice has the burden of showing how the defective notice was harmful). The record contains no statements or argument from the Veteran or his representative that the provided VCAA notice was defective or how it affected the essential fairness of the adjudication of the claim. VA also has a duty to assist the Veteran in the development of the claim. VA has obtained service treatment records, assisted the Veteran in obtaining evidence, provided the Veteran VA examinations, and afforded the Veteran the opportunity to give testimony before the Board, which he declined. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claims at this time. II. Analysis The Board has reviewed all the evidence in the Veteran's paper claims file and Virtual VA record, which does not contain any additional pertinent evidence or information. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board's analysis will focus specifically on what evidence is needed to substantiate each claim and what the evidence in the claims file shows, or fails to show, with respect to each claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-30 (2000). Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. When considering functional impairment caused by a service-connected disorder, evaluations should be based on an assessment of the lack of usefulness, and adjudicators should consider the effects of the disabilities upon the person's ordinary activity. 38 C.F.R. § 4.10. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of a veteran's disability. Schafrath, 1 Vet. App. at 594. In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). The Board also acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation at any stage since the effective date of service connection. See Fenderson v. West, 12 Vet. App 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Ratings shall be based as far as practicable, upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular evaluations are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extra-schedular evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities. The governing norm in these exceptional cases is: A finding that 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). Historically, service connection was awarded in a May 2001 rating decision for hypertension. An initial 10 percent evaluation was assigned effective in August 2000. The Veteran disagreed with the April 2006 rating decision, which continued the 10 percent disabling rating for the service-connected hypertension. The Veteran's hypertension has been rated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under this code section, a 10 percent rating is assigned for 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. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Id. Having carefully considered the Veteran' claim in light of the evidence of record, as well as the applicable law and regulation, the Board finds that the currently assigned 10 percent for hypertension is appropriate and no higher rating is warranted at this time, to include "staged" ratings. 38 C.F.R. § 4.7; See Hart, supra. The pertinent evidence is a follows. Upon VA examination in February 2006, the Veteran was taking Toprol and aspirin daily for his hypertension. He had no known heart disease. He complained of occasional left-sided substernal chest pressure, particularly in the morning when he woke up and some shortness of breath when he lay down. He denied any palpitations. His blood pressure was 160/100. On recheck it was 160/100 and 162/100. His pulse was 106 and respirations were 16. There were no appreciable murmurs, rubs, gallops, or bruits. The examiner felt that hypertension was not well-controlled and that the Veteran should talk to his primary care physician regarding better treatment options. VA outpatient treatment records contain blood pressure readings as follows: 177/105 in February 2005; 186/105 in December 2005; 140/100, 163/88, 167/88 and 146/99 in February 2006; 173/110 and 178/118 in September 2006; 149/105, 138/102, and 164/110 in October 2006; 168/101, 127/86 and 91/58 in May 2007; 153/100 in April 2008; 151/100, 137/96, and 144/74 in May 2008; 144/80 in April 2009; and 134/75 in August 2009. VA treatment records dated in 2010 show blood pressure readings as follows: 137/91, 133/94, 140/91, 141/95, 147/90, 112/81, and 132/101 in September 2010; 143/77, 145/91, 147/93, 149/89, 142/88, 142/89, and 171/97 in October 2010; and 121/84 and 130/79 in November 2010. Upon VA examination in December 2010, the Veteran denied any symptoms associated with his hypertension, to include headaches, blurry vision or dizziness. He was taking Amlodipine 5 milligrams and Lisinopril 40 milligrams daily. He denied any side effects from his medications. He indicated his hypertension did not affect his work (when he was working) and he denied any affect on his activities of daily living. Blood pressure readings were as follows: 145/98, 149/102, and 152/107. There were no bruits. His heart had a regular rate and rhythm. There were no murmurs, rubs or gallops or signs of left ventricular hypertrophy or right ventricular heave. There was no S3 or S4 heard. The examiner found hypertension to be well-controlled based on the record. The examiner indicated that blood pressure was slightly elevated on examination but going over his blood pressure readings, it was fairly controlled with some fluctuation in diastolic blood pressure. Hypertension did not preclude gainful employment. Based on this evidence, a rating in excess of 10 percent for the service-connected hypertension, to include "staged" ratings, is not warranted as the evidence does not show systolic pressure predominantly 200 or more. While diastolic pressure was 110 and 118 in September 2006 and 110 in October 2006, it was not predominantly 110 or more as the majority of the diastolic readings between 2005 and 2010 ranged between 74 and 105, with one isolated reading of 58 in 2007. 38 C.F.R. § 4.104; Hart, supra. The disability picture is more consistent with an individual who requires continuous medication for control. Should the Veteran's disability picture change in the future, he may be assigned a higher rating. See 38 C.F.R. § 4.1. The Board has considered whether extraschedular consideration is warranted. The symptoms and resulting impairment demonstrated with regard to the Veteran's hypertension falls within the schedular criteria. The rating criteria for hypertension contemplates a higher rating, but as explained above, there has been no objective evidence of the necessary criteria to warrant such a rating. The use of medication taken for control of hypertension and functional impairment have been taken into account and are considered in applying the relevant criteria in the rating schedule. The effects of the Veteran's disability have been fully considered and are contemplated in the rating schedule; hence, referral for an extraschedular rating is unnecessary at this time. 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 and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). TDIU is an element of all appeals involving increased rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). Entitlement to TDIU is raised 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. Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001). The Veteran has raised assertions of unemployability during the appeal period. However, consideration of TDIU is deferred pending resolution of the development order in the Remand section of the instant decision. ORDER Entitlement to an evaluation in excess of 10 percent for the service-connected hypertension is denied. REMAND Further development is necessary prior to a merits analysis of the Veteran's claim for TDIU. The Veteran contends that he is unemployable due to his service-connected disabilities, notably the hidradenitis suppurativa. In various statements the Veteran alleges that the following symptoms/manifestations render him unemployable: drainage from his legs, backside and neck that will not heal; pain and numbness in his legs and feet; difficulty walking, standing, and sitting due to pain; bleeding through his clothes; and staining furniture if bleeding while sitting. TDIU may be assigned, where the schedular rating is less than total, when the disabled person is unable to secure or follow a substantially gainful occupation as a result of service connected disability. 38 C.F.R. §§ 3.340 , 3.341, 4.16. The regulations further provide that if there is only one such disability, it must be rated at 60 percent or more; and if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). The Veteran is currently rated as follows: 60 percent disabled for the hidradenitis suppurativa; 10 percent disabled for hypertension (confirmed in the instant decision); and 10 percent disabled for donor site scars of the thighs. His combined evaluation for compensation is 70 percent. While the Board is cognizant that the Veteran meets the objective criteria set forth in 38 C.F.R. § 4.16(a), the opinions of record suggest that his service-connected disabilities do not render him unemployable. However, the Board finds that the most recent VA examination in December 2010 and subsequent addendum opinion in February 2012 are not adequate as they fail to address whether the Veteran's claimed symptoms/manifestations (delineated above) are associated with the service-connected disabilities as opposed to any nonservice-connected disabilities. The Board is precluded from differentiating between the symptomatology attributable to a nonservice-connected disability and a service- connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App.181, 182 (1988) (per curiam), citing Mitchem v. Brown, 9 Vet. App. 136, 140 (1996). Hence, a new opinion must be rendered. The record compiled for appellate review of this matter to this point also appears incomplete. In an April 2012 statement, the Veteran indicated that he had three surgeries within the last year for his hidradenitis suppurativa. The last surgical report of record is dated in October 2010. Such missing records must be sought upon Remand. 38 C.F.R. § 3.159(c)(2). Additionally, any ongoing VA medical treatment records (dated after November 2010 from the Columbia VA Medical Center (VAMC)) pertinent to the issue must also be obtained upon Remand. Id. The RO should ensure that all due process requirements are met. The RO should also give the Veteran another opportunity to present information and/or evidence pertinent to the claim on appeal. 38 U.S.C.A. § 5103A (b) (West 2002). Accordingly, the case is REMANDED for the following action: 1. Take all indicated action in order to obtain copies of any VA surgical and/or clinical records not on file from the Columbia VAMC dated from October 2010 to the present. (Note: with regard to surgical records, the Veteran indicated in April 2012 that he had three surgeries for his service-connected hidradenitis suppurativa within the last year). All records and/or responses received should be associated with the claims file. 2. After completion of the foregoing, the RO should arrange for the Veteran to be examined to assess the cumulative effect that his service connected disabilities would be expected to have on employability. The Veteran's entire claims file (i.e. the paper claims file and any medical records contained in Virtual VA, CAPRI, and AMIE) must be reviewed by the examiner. If the examiner does not have access to Virtual VA, any relevant treatment records in Virtual VA that are not available on CAPRI or AMIE must be printed and associated with the paper claims file so they can be available to the examiner for review. Based on review of the record and examination of the Veteran, the examiner should provide opinions responding to the following: (a) Please address the Veteran's contentions that the following symptoms/manifestations from his hidradenitis suppurativa render him unemployable: drainage from his legs, backside and neck that will not heal; pain and numbness in his legs and feet; difficulty walking, standing, and sitting due to pain; bleeding through his clothes; and staining furniture if bleeding while sitting. The examiner must specifically indicate whether these complaints/symptoms are related to the service-connected hidradenitis suppurativa as claimed or any nonservice-connected disabilities. (b) Please discuss the functional limitations associated with, and expected effect on employment resulting from the Veteran's service connected disabilities alone (not including the effects of any non-service connected disabilities). (c) Please identify any/all types of employment that would be precluded by the limitations due to the Veteran's service-connected disabilities and also any types of employment that would remain feasible despite the service-connected disabilities. Specifically, indicate whether bleeding and seepage through clothes caused by the service-connected hidradenitis suppurativa, would render him unable to deal with the public or appear in a workplace setting, i.e. appearance and/or health hazard. A detailed rationale should be furnished for all opinions. Note: if the examiner concludes that there is insufficient information to provide an etiology opinion without resorting to mere speculation, the examiner should state whether the inability to provide a definitive opinion was due to a need for further information (please identify) or because the limits of medical knowledge had been exhausted regarding the etiology of the claimed conditions. See Jones v. Shinseki, 23 Vet. App. 382 (2010). 3. In the interest of avoiding further remand, the RO should ensure that the requested actions have been accomplished (to the extent possible) in compliance with this REMAND. 4. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the issue in light of all evidence of record, to include any pertinent evidence contained within Virtual VA. If any benefit sought on appeal remains denied, the RO must furnish to the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. The Veteran has the right to submit additional evidence and argument on the matter or 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 that are 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). ____________________________________________ MILO H. HAWLEY Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs