Citation Nr: 1321413 Decision Date: 07/03/13 Archive Date: 07/12/13 DOCKET NO. 11-22 555 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Buffalo, New York THE ISSUE Entitlement to an evaluation in excess of 10 percent for hypertension REPRESENTATION Appellant represented by: Paralyzed Veterans of America, Inc. WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD S. Grabia, Counsel INTRODUCTION The Veteran had active service from July 1956 to October 1959. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a December 2010 rating decision of the Buffalo, New York, regional office (RO) of the Department of Veterans Affairs (VA). In May 2013, the appellant testified at a videoconference hearing before the Board. During the hearing the Veteran raised the issues of service connection for anxiety, an enlarged heart, and atherosclerosis as secondary to hypertension. As these matters are not before the Board, they are referred to the RO for appropriate action. A copy of the transcript is associated with the claims file. The Board has reviewed the Veteran's electronic record (Virtual VA) prior to rendering a decision in this case. It does not contain any evidence not already in the claims folder or considered by the RO. Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002). FINDINGS OF FACT The Veteran's hypertension is controlled by medication, and there is no evidence of diastolic readings predominantly 110 or higher or systolic readings of predominantly200 or higher during the period on appeal. CONCLUSION OF LAW The criteria for an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002); 38 C.F.R. §§ 4.7, 4.10, 4.21, 4.104, Code 7101 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSION VCAA The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations imposes 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). Proper VCAA notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. 38 U.S.C.A. § 5103(a) (West 2002); C.F.R. § 3.159(b) (1) (2012). Pelegrini v. Principi, 18 Vet. App. 112 (2004). In Pelegrini, the United States Court of Appeals for Veterans Claims (Court) held that VCAA notice, as required by 38 U.S.C.A. § 5103(a), must be provided to a claimant before the initial unfavorable adjudication by the RO. The Court has also held that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a service connection claim. Those five elements include (1) veteran status; (2) existence of a disability; (3) a connection between the veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held that upon receipt of an application for a service-connection claim, 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) require VA to review the information and the evidence presented with the claim and to provide the claimant with notice of what information and evidence not previously provided, if any, will assist in substantiating or is necessary to substantiate the elements of the claim as reasonably contemplated by the application. Additionally, this notice must inform a claimant that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. Id. In this case, the Veteran was provided with a letter in April 2010 that contained all of the notification required by 38 C.F.R. § 3.159, as defined by Dingess and Pelegrini. This letter was provided to the Veteran prior to the initial adjudication of his claim. The Board concludes that the duty to notify has been met. The Board further concludes that the duty to assist has also been met. The Veteran's service treatment records have been obtained. Private medical records and VA treatment records have been obtained. He was afforded appropriate VA examination, and relevant opinions have been obtained from the examiners after a review of the claims folder. There is no indication that there is any relevant evidence outstanding in this claim, and the Board will proceed with consideration of the Veteran's appeal. Criteria and Analysis The Veteran contends that the evaluation currently assigned for his service-connected hypertension is inadequate to reflect the level of impairment that results from this disability. He notes that his blood pressure (BP) readings would be significantly higher if he did not take his hypertension medication. The evaluation of service-connected disabilities is based on the average impairment of earning capacity they produce, as determined by considering current symptomatology in the light of appropriate rating criteria. 38 U.S.C.A. § 1155. Consideration is given to the potential application of the various provisions of 38 C.F.R. Parts 3 and 4, whether they are raised by the veteran, as required by Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In addition, the entire history of the veteran's disability is also considered. Consideration must be given to the ability of the veteran to function under the ordinary conditions of daily life. 38 C.F.R. § 4.10. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. 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. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). The Board acknowledges that a claimant may experience multiple degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Under the rating criteria, hypertensive vascular disease with diastolic pressure of predominantly 130 or more is evaluated as 60 percent disabling. Diastolic pressure of predominantly 120 or more is evaluated as 40 percent disabling. Diastolic pressure of predominantly 110 or more; or systolic of predominately 200 or more is evaluated as 20 percent disabling. Diastolic pressure of predominantly 100 or more, or systolic pressure predominately 160 or more is evaluated as 10 percent disabling. This is also the minimum evaluation for an individual with a history of diastolic pressure predominately 100 or more that requires continuous medication for control. This regulation further states that 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 that the diastolic pressure is predominately 90 millimeters or greater, and isolated systolic hypertension means that the systolic blood pressure is predominately 160 millimeters or greater with a diastolic blood pressure of less than 90 millimeters. Hypertension that is due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it rather than a separate evaluation. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Board finds that the preponderance of the evidence is against the Veteran's claim for an increased evaluation for his hypertension. The medical evidence contains numerous blood pressure readings, but they do not demonstrate diastolic pressures of predominately 110 or more or systolic pressures of 200 or more. A July 2010 VA hypertension examination states that the Veteran had hypertension since approximately 1972. This had remained under good control until the previous year when his medication was no longer effective. He was switched to nifedipine and the hypertension was again under control. The Veteran had no symptoms associated with his hypertension. The diagnosis was essential hypertension. The examiner, however, failed to take any BP readings. A June 2011 VA hypertension examination states that the Veteran had hypertension which remained under good control with nifedipine and HCTZ. The hypertension was stable. There was no history of hospitalization, hypertensive renal failure, stroke, nose bleed, myocardial infarction, hypertensive heart disease, heart rhythm disturbance, congestive heart failure, angina, syncope, fatigue, dyspnea, etc. His pulse was 71 beats per minute (BPM). Respiration was 16. Three BP readings revealed BPs of 83/48;100/61; and, 97/64. The diagnosis was essential hypertension with no effects on usual occupation or activities of daily living. VA treatment records contain extensive lists of daily blood pressure readings. These do not reveal diastolic readings which are predominantly in excess of 110 or a systolic reading in excess of 200. A September 2011 treatment record notes that the Veteran checked his BP very frequently, and would continue to monitor his BP at home for a few days and call the clinician. The clinician noted the Veteran's hypertension appeared to be well controlled, and that his BP was low on his readings. The Veteran was noted to be asymptomatic. A November 2011 treatment record notes that the Veteran called to report blood pressure normal (120/80s) at rest. His systolic pressures fall into the 80s during exercise of walking up stairs (symptomatic with light headedness). No chest pain was reported. The Veteran was to undergo a stress test and echocardiogram. A December 2011 treatment record notes that the Veteran continued to check his BP at home very frequently. He reported 114/69, 111/73, 106/69, 105/66, 114/86, 137/84. He had echo and stress testing done last week which were normal except lacking the expected increase in blood pressure. At his May 2013 Board hearing, the Veteran presented an extensive list of blood pressure readings he had taken at his home. Although the precise dates and times are not clear, numerous blood pressure readings were recorded. The Veteran's representative presented argument in June 2013 pointing to nine of those blood pressure readings-three of which included systolic readings of 200 or more and eight of which included diastolic readings of 110 or more. The Board finds that these nine blood pressure readings (even assuming the Veteran is competent to take his own blood pressure) of the hundreds that were recorded, do not support that the blood pressure readings were predominantly 110 or more (systolic pressure) or 200 or more (diastolic pressure). In the absence of diastolic pressures predominantly 110 or more or a systolic pressure of 200 or more, the criteria for a 20 percent rating have not been met, and continuation of the 10 percent rating is warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). The Board has considered whether the schedular evaluation for hypertension is inadequate, but has determined it is not. The Veteran does not display any symptoms attributable to his hypertension that are not already contemplated in the rating criteria, and the evidence indicates this disability is well controlled by medication. Accordingly, referral for consideration of an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b)(1). ORDER Entitlement to an initial evaluation in excess of 10 percent for hypertension is denied. ____________________________________________ JAMES L. MARCH Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs