Citation Nr: 1320245 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-17 791 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to service connection for a groin condition, claimed as epididymitis or an inguinal hernia. 2. Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL The Appellant ATTORNEY FOR THE BOARD Shamil Patel, Counsel INTRODUCTION The Veteran served on active duty from August 1999 to January 2008. He appealed to the Board of Veterans' Appeals (Board/BVA) from a September 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia, which granted service connection for hypertension and assigned an initial 0 percent (i.e., noncompensable) rating retroactively effective from January 15, 2008, the day following his discharge from service. He wants a higher initial rating for this disability. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999) (when a Veteran appeals an initial rating, VA must consider whether to "stage" the rating - meaning assign different ratings at different times since the effective date of the award to compensate him for occasions when the disability has been more severe than at others). He also appealed the RO's denial of his claim of entitlement to service connection for epididymitis. As support for these claims, he testified at a hearing in January 2013 at the Board's offices in Washington, DC, before the undersigned Veterans Law Judge (Central Office (CO) hearing). The Chairman of the Board had designated the judge to preside over that hearing pursuant to 38 U.S.C.A. § 7107(c), (e)(2) (2012), and he accordingly also is rendering the determination in this appeal. A transcript of the hearing testimony is in the claims file. After that hearing, the Board held the record open an additional 30 days to allow the Veteran time to obtain and submit supporting evidence, which he later did. He also waived his right to have the RO initially consider this additional evidence, preferring instead that the Board do so in the first instance. 38 C.F.R. § 20.1304(c) (any pertinent evidence accepted directly at the Board must be referred to the agency of original jurisdiction (AOJ) - which, here, is the RO - for initial review unless this procedural right is waived by the appellant). He initially filed a claim for service connection for epididymitis, but he also has submitted evidence and testified regarding an inguinal hernia. Therefore, his claim has been recharacterized to encompass or include all potential diagnoses. See Clemons v. Shinseki, 23 Vet. App. 1 (2009) (the scope of a disability claim includes any disability that reasonably may be encompassed by the claimant's description of the claim, reported symptoms, and the other information of record). This claim of entitlement to service connection for a groin condition, now inclusive not just of epididymitis but also inguinal hernia, requires further development before being decided on appeal. So the Board is remanding this claim to the RO via the Appeals Management Center (AMC) in Washington, DC, whereas the Board is going ahead and deciding the claim for an initial compensable rating for the hypertension. FINDINGS OF FACT 1. Prior to June 13, 2012, the Veteran's hypertension was never manifested by diastolic pressure of 100 or more; systolic pressure of 160 or more was demonstrated once in service. 2. Since June 13, 2012, however, his hypertension has been predominantly manifested by diastolic pressure of at least 100 and has included a single finding of systolic pressure of 160. CONCLUSIONS OF LAW 1. Prior to June 13, 2012, the criteria were not met for a compensable rating for the hypertension. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code 7101 (2012). 2. But since June 13, 2012, the criteria have been met for a higher 10 percent rating for the hypertension, though no greater rating. Id. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Veterans Claims Assistance Act of 2000 A. Duty to Notify Under the Veterans Claims Assistance Act (VCAA), when VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate the claim, including apprising him of the information and evidence VA will obtain versus the information and evidence he is expected to provide. 38 C.F.R. § 3.159 (2012). And when the claim is for service connection, this notice also must indicate that a "downstream" disability rating and an effective date for the award of benefits will be assigned if there is a favorable disposition of the underlying claim of entitlement to service connection. In other words, the notice must address all elements of the claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006); 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107; 38 C.F.R. §§ 3.159, 3.326; see also Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). In this case, the Veteran is challenging the initial evaluation assigned following the granting of service connection. In Dingess, the U. S. Court of Appeals for Veterans Claims (Court/CAVC) held that in cases where service connection has been granted and an initial disability rating and effective date assigned, the service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Id., at 490-91. According to the holding in Goodwin v. Peake, 22 Vet. App. 128 (2008), and this line of cases, instead of issuing an additional VCAA notice letter in this situation concerning the "downstream" disability rating and effective date elements of the claim, the provisions of 38 U.S.C.A. § 7105(d) require VA to issue a statement of the case (SOC) if the disagreement is not resolved, and this occurred in this particular instance. See also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003, 69 Fed. Reg. 25180 (May 5, 2004). The RO provided the Veteran this required SOC in March 2009, citing the applicable statutes and regulations governing the rating for his hypertension and containing discussion of the reasons and bases for not assigning a higher (i.e., compensable) initial rating for this now service-connected disability. He therefore has received all required notice concerning this claim. Moreover, according to the U. S. Court of Appeals for the Federal Circuit (Federal Circuit Court), in a case involving a claim for an increased rating, the notice described in 38 U.S.C.A. § 5103(a) need not be Veteran specific or advise him that, to substantiate his claim, he must submit medical or lay evidence showing the effect any worsening in his disability has on his employment and daily life. See Vazquez-Flores v. Shinseki, 580 F.3d 1270, 1277 (2009), overruling Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008). Rather, VA need only provide generic notice advising him of the evidentiary and legal criteria for establishing his entitlement to greater compensation. Id. And he was provided this level of notice in a January 2009 letter. B. Duty to Assist VA also is required to assist the Veteran in obtaining potentially relevant evidence, including by providing him a medical examination when a medical opinion is needed to assist in deciding the claim. To this end, his service treatment records (STRs), private treatment records, lay statements, and hearing transcript have been obtained and associated with his claims file for consideration. He also was afforded a VA compensation examination, and the examination addressed both the etiology of his hypertension (seeing as though his claim had originated in that context, as for service connection) and the severity of this disability (which, as mentioned, is now the more relevant concern since his appeal is for a higher rating for this now service-connected disability). 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The VA examination obtained in this case is as it contains a description of the history of this disability, documents and considers the relevant medical facts and principles, and records the relevant findings needed to address the applicable rating criteria. Hence, VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4). The Veteran also as mentioned testified at a Board hearing in January 2013. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the Court held that 38 C.F.R. 3.103(c)(2) requires that the Decision Review Officer (DRO) or Veterans Law Judge (VLJ) chairing a hearing fulfill two duties to comply with this VA regulation. These duties consist of (1) fully explaining the issues and (2) suggesting the submission of evidence that may have been overlooked and that potentially may be advantageous to the claimant's position. Outright preadjudication of the claim is not required, however. Here, during the hearing, the presiding VLJ elicited testimony to support the Veteran's claim and sought to identify any pertinent evidence not then currently of record that might tend to substantiate the claim. Indeed, this precisely was the reason for holding the record open for an additional 30 days following the hearing, to allow the Veteran time to obtain and submit supporting evidence of the type that had been indicated during the hearing as needed to assist in substantiating his claim. Moreover, he has not asserted that VA failed to comply with § 3.103(c)(2) or identified any prejudice in the conducting of his hearing. To the contrary, the hearing focused on the elements necessary to substantiate the claim and he, through his testimony, demonstrated his actual knowledge of the elements necessary to substantiate his claim for benefits. See Dalton v. Nicholson, 21 Vet. App. 23, 30-31 (2007) (actual knowledge is established by statements or actions by the claimant or the claimant's representative demonstrating an awareness of what is necessary to substantiate a claim). As such, the Board finds that, consistent with Bryant, the presiding VLJ complied with the duties set forth in 38 C.F.R. 3.103(c)(2) such that the Board may proceed to adjudicating this claim based on the existing record. VA has provided the Veteran opportunity to submit evidence and argument in support of his claim. He has not made the Board aware of any additional evidence (including other than the evidence he mentioned during his hearing) needing to be obtained prior to appellate review, so no further action must be undertaken to comply with the provisions of 38 U.S.C.A. § 5103(a), § 5103A, or 38 C.F.R. § 3.159. Increased Rating A. Applicable Law Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2012). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2012). All reasonable doubt material to the determination is resolved in the Veteran's favor. 38 C.F.R. § 4.3 (2012). Where entitlement to compensation already has been established and increase in disability rating is at issue, present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Therefore, although the Board has reviewed all of the evidence of record, the more critical evidence is that generated during the appeal period. VA must assess the level of disability from the date of initial application for service connection and determine whether the level of disability warrants the assignment of different disability ratings at different times over the life of the claim, a practice known as a "staged" rating. See again Fenderson v. West, 12 Vet. App 119, 125-26 (1999). See, too, Hart v. Mansfield, 21 Vet. App. 505 (2008) (holding this practice also is applicable to claims that do not involve initial ratings, rather, established ratings). Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, irrespective of whether the Veteran raised them, as well as the entire history of his disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Generally, the Board has been directed to consider only those factors contained wholly in the rating criteria. See Massey v. Brown, 7 Vet. App. 204, 208 (1994); but see Mauerhan v. Principi, 16 Vet. App. 436 (2002) (finding it appropriate to consider factors outside the specific rating criteria in determining level of occupational and social impairment). The Veteran has a 0 percent rating under 38 C.F.R. § 4.104, Diagnostic Code 7101, which specifically concerns hypertension. Under this code, a 10 percent rating is warranted for hypertensive vascular disease when the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent rating is warranted for diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure of predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure of predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. Id. In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. B. Evidence and Analysis The Veteran's STRs show he began treating his condition with medication while on active duty. However, despite numerous blood pressure readings taken during his service, there are no recorded measurements demonstrating diastolic pressure of 100 or greater. In addition, the only systolic reading of 160 or greater was in October 2005, when blood pressure was 161/90. He had a VA compensation examination in August 2008. He denied any symptoms and stated that he treated his condition with Lisinopril. Examination revealed blood pressure readings of 138/80, 140/80, and 140/80. During his January 2013 hearing, he testified that he continued to treat his condition with medication. He stated that he had not had his blood pressure checked by a physician between 2008 and 2012, but that he monitored his condition at home, so himself. He reported that systolic pressure was typically in the 150s and diastolic pressure typically in the 90s. He also experienced symptoms of headaches and some dizziness. Private records dated in June 2012 reflect blood pressure of 160/92. In December 2012 it was 142/100. In January 2013, it was 136/90. In February 2013 it was 148/100. Based on this evidence, the Board finds that a "staged" rating is warranted for the Veteran's service-connected hypertension because his blood pressure readings at times have been sufficiently elevated to support assigning a 10 percent rating, whereas at other times they have not been and, instead, only warrant the 0 percent rating he received initially. Prior to June 13, 2012, a compensable rating is not warranted. Although he regularly treated his condition with medication, the evidence simply does not reflect a history of diastolic blood pressure of predominantly 100 or more. Indeed, during this period, diastolic pressure of 100 was never demonstrated, and only a single (so isolated, rather than predominant) finding of systolic pressure of 160 or greater was shown. Indeed, he himself testified during his hearing that between 2008 and 2012, when he self-monitored his blood pressure, his systolic pressure admittedly was in the 150s and his diastolic pressure in the 90s. So when weighed collectively with the multiple findings showing systolic pressure below 160 and diastolic pressure below 100, the overall weight of the evidence clearly shows his condition is not approximated by the 10 percent rating under Diagnostic Code 7101 - that is, at least prior to June 13, 2012. But as of June 13, 2012, a higher 10 percent rating is appropriate, though no greater rating. Records from that date onwards show systolic pressure of 160, and two of the four readings from this succeeding period show diastolic pressure of 100. These findings therefore are consistent with the criteria for a higher 10 percent rating under Diagnostic Code 7101. However, an even higher 20 percent rating is not warranted as the Veteran's condition clearly has not been manifested, certainly not predominantly, by systolic pressure of 200 or diastolic pressure of 110. C. Extraschedular Consideration In evaluating the Veteran's claim for a higher rating, the Board also has considered whether he is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extra-schedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extra-schedular rating in the first instance, it must specifically adjudicate whether to refer a case for extra-schedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition, his hypertension, in considering whether he is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based upon 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 that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Here, though, with respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the available schedular evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hypertension with the established criteria found in the Rating Schedule for this disability shows that the rating criteria reasonably describe his disability level and symptomatology. The evidence reflects systolic and diastolic blood pressure readings corresponding to the criteria found in the Rating Schedule under Diagnostic Code 7101. There is no indication his condition causes or results in any symptoms falling so far outside the Rating Schedule as to render it inadequate. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER A compensable rating for the hypertension prior to June 13, 2012, is denied. But a higher 10 percent rating, though no greater rating, is granted as of June 13, 2012, subject to the statutes and regulations governing the payment of VA compensation and other benefits. REMAND As for the Veteran's remaining claim of entitlement to service connection for a groin condition, inclusive of epididymitis and an inguinal hernia, additional development is necessary. During his January 2013 hearing before the Board he testified that he had first noticed this problem in 2003 or thereabouts, while in service, following a lifting injury. He added that he was later told in 2004 that it was a "groin issue." He said his treatment included a prescription for medication. His STRs confirm he complained of groin pain in September 2004. He was diagnosed with epididymitis and treated with antibiotics, scrotal elevation, and heat compresses. A subsequent ultrasound noted a cystic inflammatory mass on the epididymides. His condition was noted to have been 70 to 80 percent improved with treatment. However, additional records in 2005 noted ongoing complaints of chronic scrotal pain. He had a VA compensation examination concerning this claim in August 2008. The examiner did not render a diagnosis because there was no pathology present. However, the Veteran more recently submitted private treatment records from December 2012 showing a diagnosis of an inguinal hernia. In light of this evidence, additional medical comment is needed to determine whether his current inguinal hernia is etiologically related to the epididymitis diagnosed in service. McLendon v. Nicholson, 20 Vet. App. 79 (2006). This additional commentary should include an opinion as to whether the Veteran had an inguinal hernia in service that was misdiagnosed as epididymitis. See 38 C.F.R. § 4.13, regarding the effect of change of diagnosis. Accordingly, this claim is REMANDED for the following additional development and consideration: 1. Forward the claims file, including a complete copy of this remand, to an appropriate VA examiner for a supplemental opinion regarding the likelihood (very likely, as likely as not, or unlikely) that the Veteran's currently diagnosed inguinal hernia is etiologically related to his military service or incepted during his service. In formulating this opinion, the examiner must address whether the Veteran's current inguinal hernia is the result of or related to the epididymitis he had in service that was diagnosed in 2004. So, to this end, the examiner must address whether the Veteran in actuality had an inguinal hernia in service that was misdiagnosed as epididymitis. The prior VA compensation examiner who evaluated the Veteran in August 2008 did not comment on this determinative issue of etiology apparently because that examiner did not detect any then current disability. But the Veteran since has submitted private treatment records confirming he has an inguinal hernia, so he has at least established he has current disability. The question therefore becomes whether this current disability is related or attributable to his military service or originated during his service. See Watson v. Brown, 4 Vet. App. 309, 314 (1993) ("A determination of service connection requires a finding of the existence of a current disability and a determination of a relationship between that disability and an injury or a disease incurred in service."). The examiner, then, must discuss the underlying medical rationale of the opinion, not instead merely state the opinion, so if necessary cite to specific evidence in the file supporting conclusions and explain the basis of them. If the requested opinions cannot be provided without resorting to mere speculation, the examiner should so state, but more importantly explain why an opinion cannot be provided without resorting to speculation. So merely saying he/she cannot comment will not suffice. In the event it is determined that another examination is needed, then an examination must be scheduled, and all necessary diagnostic testing and evaluation should be performed. The examiner must then provide the requested opinions as instructed above. 2. Ensure the opinion is responsive to this determinative issue of etiology. If not, take corrective action. 38 C.F.R. § 4.2. 3. Then readjudicate this remaining claim for service connection for a groin condition in light of this and all other additional evidence. If this claim is not granted to the Veteran's satisfaction, send him and his representative a supplemental SOC (SSOC) and give them time to submit additional evidence and/or argument in response before returning the file to the Board for further appellate consideration of this remaining claim. The Veteran has the right to submit additional evidence and argument concerning this claim the Board is remanding. 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). ______________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs