Citation Nr: 1319506	
Decision Date: 06/17/13    Archive Date: 06/27/13

DOCKET NO.  09-41 084	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Manchester, New Hampshire


THE ISSUE

Entitlement to a disability evaluation in excess of 10 percent for service-connected hypertension.


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

Robert J. Burriesci, Counsel

INTRODUCTION

The Veteran had active service from November 1988 to November 1992. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Manchester, New Hampshire. 

In August 2011, the Veteran provided testimony at a hearing before the undersigned Veterans Law Judge.  A transcript of the hearing is of record.

In July 2011, the Veteran was contact by the RO and informed that his attorney was serving on active duty overseas and no longer representing him regarding the aforementioned claim. The Veteran indicated that he was aware of the situation and would be representing himself from this point forward.

The Board previously remanded this matter in November 2011 and September 2012.  


FINDING OF FACT

The Veteran's service-connected hypertension is manifested by diastolic blood pressure readings that are below 110 and systolic blood pressure readings that are below 200.


CONCLUSION OF LAW

The criteria for an increased disability rating in excess of 10 percent for service-connected hypertension have not been met.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).

REASONS AND BASES FOR FINDING AND CONCLUSION

I.  Duties to Notify and Assist

VA has duties to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a).  See also 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); Dingess v. Nicholson, 19 Vet. App. 473 (2006).  In an increased rating claim, VA must notify the Veteran to submit evidence showing (1) a worsening or increase in severity of the disability and (2) the effect that worsening has on the claimant's employment.  Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010).  The duty to notify was satisfied in an August 2008 letter to the Veteran. 

The duty to assist has also been met.  The RO has obtained VA treatment records.  The Veteran was provided an opportunity to set forth his contentions during the hearing before the undersigned Veterans Law Judge.  In November 2011 the Board remanded the claim for additional VA treatment records to be obtained and associated with the claims file and for the Veteran to be afforded a VA medical examination.  The Veteran was afforded a VA medical examination in December 2011.  In September 2012, the Board remanded the claim for additional attempts to be made to obtain and associate additional VA treatment records with the claims file.  Additional VA treatment records were obtained and associated with the claims file.

There has been substantial compliance with the Board's remand.  See Dyment v. West, 13 Vet. App. 141 (1999) (noting that a remand is not required under Stegall v. West, 11 Vet. App. 268 (1998) where the Board's remand instructions were substantially complied with), aff'd, Dyment v. Principi, 287 F.3d 1377 (2002).

The appellant has not identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, 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).

II.  Higher Evaluation

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.  Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history.  38 C.F.R. § 4.1.  Other applicable, general policy considerations are: interpreting 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; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning a higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disabilities upon the person's ordinary activity, 38 C.F.R. § 4.10.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1991).

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern.  See Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  Staged ratings are appropriate in any increased-rating claim in which distinct time periods with different ratable symptoms can be identified.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

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(b); 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran seeks entitlement to an evaluation in excess of 10 percent disabling for hypertension.  He contends that his hypertension is more severe than contemplated by the current 10 percent evaluation due to increases in his medication.  The Veteran's service-connected hypertension disability is rated under Diagnostic Code 7101.  

Under Diagnostic Code 7101, a 60 percent rating is warranted for diastolic pressure predominantly 130 or more; a 40 percent disability rating is warranted for diastolic pressure predominantly 120 or more; a 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more; and a 10 percent disability rating is warranted 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.  See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012).

The criteria are disjunctive.  See Johnson  v. Brown, 7 Vet. App. 95 (1994) [only one disjunctive "or" requirement must be met in order for an increased rating to be assigned]; Cf. Melson v. Derwinski, 1 Vet. App. 334 (1991) [use of the conjunctive "and" in a statutory provision meant that all of the conditions listed in the provision must be met].

The Veteran's treatment records reveal that the Veteran has had the following blood pressure readings:

February 2008 - 153/88
August 2008 - 161/97
October 2008 - 130/80
April 2009 - 130/76
November 2009 - 165/96 and 124/72
March 2010 - 148/102, 140/90 sitting on the left and 145/100 standing on the right
June 2010 - 150/86 and 130/70
January 2011 - 168/107 and 150/80
February 2011 - 154/92
March 2011 - 157/98, 147/90, and 145/85 
March 2012 - 130/72
July 2012 - 130/72, 140/90, 138/74, and 143/82
January 2013 - 176/93, 169/107, and 172/85

In December 2011 the Veteran was afforded a VA Compensation and Pension (C&P) examination.  The Veteran was noted to be diagnosed with hypertension.  The Veteran reported that in recent years it has been more difficult to control his blood pressure and that he has required an increase in medication.  The Veteran's metoprolol dose had been increased to 50 mg daily several years prior to the examination and amlodipine 5 mg qd was added in March 2011 because of persistent elevations of 157/98, 147/90, and 145/85 when he was seen for follow up in March 2011.  He contends that the need for increasing the amount of medication should warrant a higher rating.  The examiner noted that there was no evidence of renal disease.  The Veteran underwent nuclear stress testing in 2008 that revealed no evidence of ischemia and normal ventricular function with an estimated LVEF of 59 percent.  The Veteran's treatment plan included taking continuous medication for hypertension.  He was noted to be prescribed hydrochlorothiazide 25 mg, metoprolol SA 50 mg qd, and amlopdipine 5 mg qd.  The Veteran was noted to not have a history of diastolic blood pressure elevation to predominantly 100 or more.  At the examination the Veteran's blood pressure was 160/90, 158/92, and 160/92.  The Veteran had no pertinent physical findings, complications, conditions, signs or symptoms related to the condition.  The examiner noted that the Veteran's hypertension did not impact his ability to work.  The Veteran was noted to have diastolic readings predominantly over 100 at the time of the initial evaluation in 1993 when he was not on medication.  Subsequent to restarting medical treatment he had not had a diastolic blood pressure elevation to predominantly 100 or more.  

The Board finds that the Veteran's service-connected hypertension does not warrant an evaluation in excess of 10 percent disabling at any point during the period on appeal.  The evidence does not reveal that the Veteran has had a diastolic pressure of 110 or more or a systolic pressure of 200 or more.  Therefore, as the preponderance of the evidence is against a finding that the Veteran had diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more, entitlement to an evaluation in excess of 10 percent disabling for hypertension is denied.

The discussion above reflects that the rating criteria reasonably describes and contemplates the severity and symptomatology of the Veteran's service-connected disability.  As discussed above, there is a higher rating available under the diagnostic code addressed in this decision, but the Veteran's hypertension is not productive of the manifestations that would warrant the higher rating.  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 and referral for an extraschedular rating is unnecessary.  Thun v. Peake, 22 Vet. App. 111 (2008).

Finally, the Court in Rice v. Shinseki, 22 Vet. App. 447 (2009) held that every claim for a higher rating includes a claim for a total disability based on individual unemployability (TDIU) where the Veteran claims that his service-connected disabilities prevents him from working.  In this case, the records reveal that as of July 2012 the Veteran was employed and there is no indication that the Veteran is currently unemployed.  In addition, there is no indication that the Veteran is unemployable due to his hypertension disability; thus, a claim for TDIU has not been raised.


ORDER

Entitlement to a disability evaluation in excess of 10 percent for service-connected hypertension is denied.



____________________________________________
M. E. LARKIN
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs