Citation Nr: 1324862	
Decision Date: 08/05/13    Archive Date: 08/13/13

DOCKET NO.  07-27 784	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Atlanta, Georgia


THE ISSUE

Entitlement to initial compensable rating for the service-connected hypertension. 


REPRESENTATION

Appellant represented by:	Georgia Department of Veterans Services


WITNESS AT HEARING ON APPEAL

Appellant


ATTORNEY FOR THE BOARD

L. J. Vecchiollo, Counsel


INTRODUCTION

The Veteran served on active duty from December 1996 to March 2005.

This matter comes before the Board of Veterans' Appeals (Board) on appeal of an April 2005 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Winston-Salem, North Carolina.  Custody of the file was subsequently transferred to the Atlanta RO in Decatur, Georgia.

The Veteran testified before the undersigned Veterans Law Judge (VLJ) in a hearing in September 2011.  A transcript of her testimony is of record.  The Board remanded the hypertension issue in February 2012 and January 2013 for further development and consideration. 


FINDING OF FACT

The Veteran's hypertension has not manifested with diastolic pressure predominantly 100 more, or systolic pressure predominantly 160 or more, during the initial rating period, nor has she shown a history of diastolic pressure of 100 or more.


CONCLUSION OF LAW

The criteria for a compensable rating for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7101 (2012).



REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duties to Assist and Notify

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 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 Veteran's increased rating claim arises from her disagreement with the initial evaluation following the grant of service connection.  Once service connection is granted the claim is substantiated, and additional notice is not required under this law.  Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

As to VA's duty to assist, the RO associated the Veteran's VA treatment records with the claims file, as well as her service treatment records.   

The Board finds that VA has secured all available and identified pertinent in-service and post-service evidence.  The Board's February 2102 remand directed the agency of original jurisdiction (AOJ) to obtain and associate with the record additional VA treatment records, which were associated with the Veteran's Veteran's electronic Virtual VA folder.  In addition, the remands also directed the AOJ to obtain a VA examination.  A compensation examination adequate for rating purposes was obtained in April 2013.  Therefore, the Board finds that there was substantial compliance with the Board remand directions and VA adjudication of the current claim may proceed.  See 38 U.S.C.A. § 5103A(b); Stegall v. West, 11 Vet. App. 268 (1998); D'Aries v. Peake, 22 Vet. App. 97 (2008)). 

The Veteran has been afforded a hearing before a VLJ in which she presented oral argument in support of her claim.  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) (2010) requires that the 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 issues and (2) the duty to suggest the submission of evidence that may have been overlooked.   

Here, during the hearing, the VLJ asked specific questions directed at identifying whether the Veteran had symptoms meeting the schedular criteria for a higher rating.  The VLJ did not specifically seek to identify any pertinent evidence not currently associated with the claims.  This was not necessary, however, because the Veteran volunteered her treatment history and her symptoms since service.  Accordingly, the Veteran is not shown to be prejudiced on this basis.  

Finally, neither the Veteran nor her representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), nor has she identified any prejudice in the conduct of the Board hearing.  By contrast, the hearing focused on the elements necessary to substantiate the claim, and the Veteran, through her testimony, demonstrated that she had actual knowledge of the elements necessary to substantiate his claim.  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). 

Hence, no further notice or assistance is required to fulfill VA's duty to assist in the development of this 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.  Increased Rating

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1.  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).

In general, the degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability.  However, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. 

The April 2005 rating decision granted service connection for the hypertension with an initial noncompensable rating, effective from separation from service in March 2005.  

Under the applicable rating criteria, 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.  38 C.F.R. § 4.104, DC 7101.  A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  Id. 

The Veteran's service treatment records (STRs) note that she initially complained of low blood pressure, and the last such entry was made in a report of medical history in May 2004.  However, on November 5, 2004, blood pressure readings of 153/93 and 152/110 were recorded.  On a November 29, 2004 treatment note her blood pressure was 106/52, although she was evidently placed on mediations.  

The Veteran's blood pressure reading was noted to be in the range of 130/84 on her comprehensive fee basis examination on January 12, 2005.  The examiner noted that she has had no symptoms related to her high blood pressure.  However, she did state that she has had some discomfort and a "weird feeling" in her chest.  A January 19, 2005, separation examination recorded a blood pressure of 128/75.  On the history section, the Veteran noted that she had improvement in her blood pressure readings and dizziness symptoms with the start of anti-hypertension medication, hydrochlorothiazide (HCTZ) in November 2004.  

Post service VA treatment records contain numerous blood pressure readings from 2006 to 2012.  However, none of these readings indicate a diastolic pressure of 100 more, or systolic pressure of 160 or more.  She has continuously been prescribed HCTZ.

Similarly, VA examination in April 2013 noted her blood pressure measurements were 126/88, 122/77, and 103/66 from November 2012 to April 2013.  

The evidence shows that while the Veteran requires continuous medication to control her hypertension, it has not manifested either currently or historically, by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more.  In fact, the record shows she has had only one diastolic pressure reading over 100, 110 in service in November 2004; and no such readings since separation from service.  Thus, the Board finds the Veteran's hypertension has more nearly approximated the assigned noncompensable rating for the entire initial rating period.  38 C.F.R. §§ 4.1, 4.7, 4.31, 4.104, DC 7101.  

Consideration has also been given regarding whether the schedular evaluation is inadequate, requiring that the RO refer a claim to the Chief Benefits Director or the Director, Compensation and Pension Service, for consideration of an extra-schedular evaluation where a service-connected disability presents an exceptional or unusual disability picture with marked interference with employment or frequent periods of hospitalization that render impractical the application of the regular schedular standards.  38 C.F.R. § 3.321(b)(1).  An exceptional or unusual disability picture occurs where the diagnostic criteria do not reasonably describe or contemplate the severity and symptomatology of a veteran's service-connected disability.  Thun v. Peake, 22 Vet. App. 111, 115 (2008).  If there is an exceptional or unusual disability picture, then the Board must consider whether the disability picture exhibits other factors such as marked interference with employment and frequent periods of hospitalization.  Thun, 22 Vet. App. at 115-116.  When those two elements are met, the appeal must be referred for consideration of the assignment of an extraschedular rating, otherwise, the schedular evaluation is adequate, and referral is not required.  Thun, 22 Vet. App. at 116. 

The schedular evaluation in this case is adequate.  Ratings in excess of that assigned are provided for certain manifestations of the service-connected disorder but the medical evidence reflects that those manifestations are not present in this case.  The examiner who conducted the February 2012 VA examination noted that the Veteran's hypertension has not compromised her work.  The April 2013 VA examiner stated that the Veteran's hypertension does not impact her ability to work.  The Veteran has not required hospitalization due to the service-connected disability, and marked interference of employment has not been shown.  Therefore, the Veteran's disability picture is contemplated by the rating schedule and no extraschedular referral is required. 

At no time during the pendency of this claim, has the disability been more or less disabling than as currently rated.  The preponderance of the evidence is against the claim; there is no doubt to be resolved; and an increased rating is not warranted. 


ORDER

Entitlement to an initial compensable rating for hypertension is denied.




____________________________________________
MICHAEL E. KILCOYNE 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs