Citation Nr: 1320498	
Decision Date: 06/25/13    Archive Date: 07/05/13

DOCKET NO.  10-13 417	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Muskogee, Oklahoma


THE ISSUE

Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling. 


REPRESENTATION

Veteran represented by:	Oklahoma Department of Veterans Affairs


WITNESSES AT HEARING ON APPEAL

Veteran and his father


ATTORNEY FOR THE BOARD

Adrian Jackson, Counsel


INTRODUCTION

The Veteran served on active duty from January 2004 to September 2005.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an August 2009 rating decision by the above Department of Veterans Affairs (VA) Regional Office (RO).  In July 2011, the Veteran was afforded a hearing before a Veterans Law Judge via video conference from the RO. 

In October 2011, the Board remanded this case.  The Veteran was notified in November 2012 that the Veterans Law Judge who held the Board hearing in July 2011 is no longer employed by the Board.  The Veteran was offered another hearing, but did not request one.

In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the Veteran's Law Judge (VLJ) who chairs a hearing fulfill two duties to comply with the above the regulation.  These duties consist of (1) the duty to fully explain the issue and (2) the duty to suggest the submission of evidence that may have been overlooked.  The Veteran's representative asked questions pertinent to the requirements of a higher rating, and the case was remanded to obtain evidence that might substantiate the claim.  Thus, any error in this regard is nonprejudicial.  Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) nor has identified any prejudice in the conduct of the Board hearing.  As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. 

This case was before the Board in October 2011, at which time the Board denied an earlier effective date (EED) for the assignment of a 40 percent rating for diabetes mellitus but granted an EED for the assignment of a 10 percent evaluation for hypertension.  The Board also remanded the issue of an increased rating for hypertension.  This issue has been returned for review by the Board.


FINDING OF FACT

During the appeal period, the diastolic pressure readings are predominantly 100 or less with the use of continuous medication for control; he does not have diastolic pressure of predominantly 110 or more or systolic pressure predominantly 200 or more. 


CONCLUSION OF LAW

The criteria are not met for a rating higher than 10 percent for hypertension.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including § 4.104, Diagnostic Code 7101 (2012). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act 

The VCAA, codified, in part, at 38 U.S.C.A. § 5103, was signed into law on November 9, 2000.  Implementing regulations were created, codified at 38 C.F.R. § 3.159.

A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must: (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence that the claimant is expected to provide.  38 C.F.R. § 3.159(b).

The Court held in Pelegrini v. Principi, 18 Vet. App. 112 (2004) that to the extent possible the VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before an initial unfavorable decision on a claim for VA benefits.  Pelegrini, 18 Vet. App. at 119-20; see also Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006).

The Veteran was provided letters dated in April and May 2009 that indicated the types of information and evidence necessary to substantiate the claim, and the division of responsibility between the Veteran and VA for obtaining that evidence, including the information needed to obtain lay evidence and both private and VA medical treatment records.  The letters also provides notice pertaining to the downstream disability rating and effective date elements of his claim.  Dingess v. Nicholson, 19 Vet. App. 473 (2006).

All relevant evidence necessary for an equitable resolution of the issue on appeal has been identified and obtained, to the extent possible.  The evidence of record includes service treatment records (STRs), private treatment records, VA outpatient treatment reports, adequate VA examinations and opinions, as well as statements from the Veteran and his representative. 

In this regard, pursuant to the Board's October 2011 remand directive, the AMC obtained outstanding VA treatment records and included them in Virtual VA.  Moreover, an attempt was made to schedule him for a VA examination by trying to contact him at an address in Gilbert, Arizona.  However, he failed to report for his VA examination that was scheduled for April 2013 at the Phoenix VA Medical Center (VAMC), and he did not offer any explanation for his absence or request to reschedule his examination.

Because the AMC attempted to contact him, unfortunately to no avail, the Board is likewise proceeding with the adjudication of his claim based on the evidence already on file and will not summarily deny the claim.  38 C.F.R. § 3.655.  See Saylock v. Derwinski, 3 Vet. App. 294, 395 (1992); Hyson v. Brown, 5 Vet. App. 262, 265 (1993); Kyhn v. Shinseki, 23 Vet. App. 335, 339 (2010).  He was provided VA compensation examination for medical opinion concerning the severity of his hypertensive disorder in May and August 2009.  The record also contains VA treatment records that date between 2009 and 2012, which contain numerous blood pressure readings.  Accordingly, the Board finds that VA's duty to assist with respect to the issue on appeal has been met.  38 C.F.R. § 3.159(c) (4).  Likewise, the Board finds that there was compliance with its October 2011 remand directives.  See Stegall v. West, 11 Vet. App. 268, 271 (1998); see also D'Aries v. Peake, 22 Vet. App. 97, 105 (2008).

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 exhaustive detail.  Rather, the Board's analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim.

II. Whether a Higher Rating Than 10 Percent is Warranted for Hypertension

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service.  The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  

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 for that rating.  38 C.F.R. § 4.7.

In considering the severity of a disability, it is essential to trace the medical history of the veteran.  38 C.F.R. §§ 4.1, 4.2, 4.41.  Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present.  38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings.  Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  The Board notes that staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Hart v. Mansfield, 21 Vet. App. 505 (2007).

Service connection for hypertension was granted in an August 2006 decision and a noncompensable rating was assigned under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101.  The rating was increased to 10 percent via an August 2009 rating action.  Even though the RO increased the schedular rating for the Veteran's disability during the appeal, the issue of entitlement to a higher rating remained on appeal, as the Veteran has not indicated his desire to withdraw that issue.  See AB v. Brown, 6 Vet. App. 35 (1993).   

Diagnostic Code 7101 provides a 10 percent rating where diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or where an individual has a history of diastolic pressure that is predominantly 100 or more requiring continuous medication for control.  A higher 20 percent rating requires diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  Diastolic pressure of 120 or more is rated even higher, as 40-percent disabling, and a maximum 60 percent rating is warranted for diastolic pressure of 130 or more.  38 C.F.R. § 4.104, Diagnostic Code 7101. 

In March 2009, the RO received the Veteran's claim.  Since 2008, so one year prior, the medical evidence indicates his diastolic pressure has been predominantly less than 90.  From 2009 to 2012, his readings have averaged in the 80's.  At VA examination in May 2009, there were 3 recorded blood pressure readings of 150/90, 148/88, and 145/85.  Another set of blood pressure readings were taken at VA examination in August 2009.  These readings were 148/87, 140/82, and 138/84.  Only on one occasion, he has had a diastolic reading above 100.  In September 2009, a blood pressure reading of 171/102 was recorded in the VA emergency room.  In providing his history, the Veteran reported that after a night of drinking, he was involved in altercation.  The next day the readings were stable at 140/88.  Since then it appears that his hypertension has been under control with the medication that has been prescribed. 

The same is true for the systolic pressure; there is no reading of 200 or above for the entire appeal period.  Therefore, it cannot be said that he has systolic readings predominantly above 200, which is needed for a higher rating. 

So, overall, this evidence does not indicate diastolic blood pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more.  As such, a higher rating for the Veteran's hypertension is not warranted under the provisions of 38 C.F.R. § 4.104, Diagnostic Code 7101. 

The above determination is based upon application of the pertinent provisions of VA's rating schedule.  Furthermore, the Board finds that the record does not reflect that the Veteran's service-connected hypertension is so exceptional or unusual as to warrant the assignment of a higher rating on an extra-schedular basis.  See 38 C.F.R. § 3.321(b)(1).  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.  See Thun v. Peake, 22 Vet. App. 111 (2008).

In this regard, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  If the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate, and no extraschedular referral is required.  Id., see also VAOGCPREC 6-96 (Aug. 16, 1996).  Otherwise, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, VA must determine whether the claimant's exceptional disability picture exhibits other related factors, such as those provided by the extraschedular regulation (38 C.F.R. § 3.321(b)(1)) as "governing norms" (which include marked interference with employment and frequent periods of hospitalization).

In this case, the Board finds that the rating criteria found in 38 C.F.R. § 4.104, Diagnostic code 7101, reasonably describe the Veteran's disability level and symptomatology.  Consequently, his disability level is contemplated by the rating schedule and the assigned schedular evaluation is therefore adequate.  For these reasons no extraschedular referral is required.  38 C.F.R. § 3.321(b)(1); Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218 (1995).  


ORDER

An increased rating in excess of 10 percent for hypertension is denied.  



____________________________________________
K. Parakkal
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs