Citation Nr: 1320250 Decision Date: 06/24/13 Archive Date: 07/02/13 DOCKET NO. 09-46 459 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE Entitlement to an increased disability rating in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from July 1980 to January 1989 and from July 1999 to July 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a March 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas, which granted an increased 10 percent disability rating for hypertension, effective August 10, 2007. FINDING OF FACT For the entire increased rating period, the Veteran's hypertension is manifested by diastolic pressure predominantly 110 or more, but not predominantly 120 or more. CONCLUSION OF LAW The criteria for an increased disability rating of 20 percent, but no higher, for hypertension have been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). The notice requirements of VCAA require VA to notify the claimant of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. The Board notes that a "fourth element" of the notice requirement requesting the claimant to provide any evidence in the claimant's possession that pertains to the claim was removed from the language of 38 C.F.R. § 3.159(b)(1). See 73 Fed. Reg. 23,353-356 (April 30, 2008). After having carefully reviewed the record on appeal, the Board has concluded that the notice requirements of VCAA have been satisfied with respect to the increased rating issue decided herein. The RO sent the Veteran a letter in November 2007 that informed him of the requirements needed to establish an increased rating for hypertension. The notice letter advised the Veteran that VA used a published schedule for rating disabilities that determined the rating assigned and that evidence considered in determining the disability rating included the nature and symptoms of the condition, the severity and duration of the symptoms, and the impact of the condition and symptoms on employment. In accordance with the requirements of VCAA, the VA letter informed the Veteran what evidence and information he was responsible for obtaining and the evidence that was considered VA's responsibility to obtain. The Board is satisfied VA has made reasonable efforts to obtain relevant records and evidence. Specifically, the information and evidence that has been associated with the claims file includes service treatment records, post-service VA treatment records, the statements by the Veteran and his representative. In addition, the Veteran has been afforded an adequate examination on the issue of increased rating for service-connected hypertension. VA provided the Veteran with a hypertension examination in December 2007. In May 2009, the Veteran was also afforded a general VA examination, in part for other disabilities not currently on appeal, in which blood pressure readings were acquired. During these examinations, the Veteran's history was taken and a complete examination was conducted that included specific clinical measures such as blood pressure readings. For these reasons, the Board finds that the Veteran has been afforded an adequate examination on the issue of increased rating for service-connected hypertension. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). During the course of the appeal, the Veteran stated that he was receiving care at the Care Now facility in Crowley, Texas, but did not provide a complete address. An August 2010 Report of General Information shows that the RO made numerous efforts to locate the specific Care Now facility described by the Veteran. For example, the RO requested treatment records from one Care Now facility on May 2010, but received no response. A second request was made thereafter and the Veteran was notified of such efforts. He was advised that he did not give an address for that facility and he was asked to submit a new authorization and consent form for that facility so that records could be obtained. See VA notification letter to Veteran dated August 2010. Further, telephone calls were made by the RO to two different Care Now facilities in order to confirm addresses; one facility confirmed they were not Care Now, and the second failed to confirm or deny. The duty to assist is not a one-way street. When requested, the Veteran is obligated to provide information needed by VA to substantiate his claim. Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In this case, the Veteran did not provide the complete address of Care Now facility as requested by the RO in order to obtain his purported treatment records. In this regard, neither the Veteran nor his representative have 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 Veteran is required to fulfill VA's duty to assist the Veteran 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). Increased Rating for Hypertension The Veteran's hypertension is rated as 10 percent disabling under Diagnostic Code 7101, hypertensive vascular disease. See 38 C.F.R. § 4.104. He has been in receipt of a 10 percent rating since August 10, 2007. See March 2008 rating decision. In an increased rating claim received by the RO in October 2007, the Veteran's representative stated that the Veteran's service-connected hypertension was more severe than was contemplated by the currently assigned 10 percent rating. For the reasons set forth below, the Board finds that an increased 20 percent disability rating is warranted for the entire increased rating period on appeal. Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension with diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. A 10 percent rating also is the minimum evaluation for 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 with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for hypertension with diastolic pressure predominantly 120 or more. The maximum 60 percent rating is assigned for hypertension with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104. There are three Notes to 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Note (2) requires the evaluation of hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3) states that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. The evidence of record supports a higher 20 percent rating for hypertension under Diagnostic Code 7101. Specifically, the evidence of record demonstrates that the Veteran has a history of previous diastolic pressure predominantly 110 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board finds that the earliest treatment record reflecting diastolic pressure predominantly 110 or more is dated August 10, 2007 (showing two separate readings of 164/110 and 170/110). During the December 2007 VA hypertension examination, blood pressure readings were 160/120, 160/120, and 158/116. In a March 2008 VA treatment note, the Veteran's blood pressure reading was 176/108. In a VA treatment note dated April 2008, blood pressure was noted as 176/111. In the May 2009 VA general medical examination, blood pressure readings were 140/90, 142/80, and 137/82. In the most recent VA treatment note of record, dated September 2009, blood pressure was noted as 163/99. The Board recognizes that, throughout the entire increased rating period on appeal, blood pressure readings demonstrate diastolic pressure either exactly at 110, or above or below 110. The Board finds that the Veteran's diastolic readings have either met or surpassed 110 on several occasions. On two occasions, in the August 2007 VA treatment note and in the December 2007 VA examination, the Veteran's blood pressure was taken at different times on the same day, and each time, diastolic pressure readings were at or above 110. See Diagnostic Code 7101, Note (1). On another occasion, the Veteran had a diastolic pressure reading 111 in the April 2008 VA treatment note. Upon review of the evidence above, the Board finds that the diastolic pressure readings listed above are sufficient to place the claim in equipoise. Therefore, resolving reasonable doubt in the Veteran's favor, the Board finds that an increased rating for hypertension of 20 percent is warranted for the entire increased rating period on appeal. 38 C.F.R. § 4.3. That notwithstanding, the Board further finds that there is no basis for a rating in excess of 20 percent for hypertension. See Diagnostic Code 7101. In this regard, there is neither medical evidence nor lay assertions of blood pressure readings with diastolic pressure predominantly 120 or more. The Board has reviewed and considered the two blood pressure readings in the December 2007 VA hypertension examination showing diastolic readings of 120; however, the Board finds that two readings, on the same day, do not reflect that the Veteran's diastolic pressure is predominantly at or over 120. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). Rather, for the entire rating period on appeal, the majority of the Veteran's diastolic pressure readings have ranged from 80 to 120, with readings of 120 occurring on the same day. For these reasons, the Board finds that a higher rating in excess of 20 percent for hypertension is not warranted for the entire increased rating period on appeal. Accordingly, the Board finds that the evidence supports an increased disability rating of 20 percent, but no higher, for hypertension. Extraschedular Consideration The Board has considered whether referral for an extraschedular evaluation is warranted for the Veteran's hypertension. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the Rating Schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). Under the approach prescribed by VA, if the criteria reasonably describe a veteran's disability level and symptomatology, then the veteran's disability picture is contemplated by the Rating Schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required. In the second step of the inquiry, however, if the schedular evaluation does not contemplate a veteran's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." 38 C.F.R. 3.321(b)(1) (stating that related factors include "marked interference with employment" and "frequent periods of hospitalization"). When the Rating Schedule is inadequate to evaluate a veteran's disability picture, and that picture has 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 for completion of the third step-a determination of whether, to accord justice, the claimant's disability picture requires the assignment of an extraschedular rating. 38 C.F.R. 3.321(b)(1). Turning to the first step of the extraschedular analysis, the Veteran's hypertension is manifested by diastolic pressure readings predominantly 110 or more, but not predominantly 120 or more. The rating criteria specifically contemplate such symptomatology. The schedular rating criteria specifically provides ratings for hypertensive vascular disease, including hypertension. See 38 C.F.R. § 4.3, Diagnostic Code 7101. In this case, comparing the Veteran's hypertension level and the symptomatology listed in the Rating Schedule, the degree of disability throughout the entire period under consideration is contemplated by the Rating Schedule and the assigned rating is, therefore, adequate. In the absence of exceptional factors associated with the Veteran's left ankle disability, the Board finds that the criteria for referral for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell, 9 Vet. App. at 337; Shipwash, 8 Vet. App. at 227. ORDER For the entire rating period, an increased rating of 20 percent, but no higher, for hypertension is granted. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs