Citation Nr: 1324904 Decision Date: 08/06/13 Archive Date: 08/13/13 DOCKET NO. 10-37 427 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Huntington, West Virginia THE ISSUES 1. Entitlement to an initial rating in excess of 10 percent for hypertension. 2. Entitlement to a rating in excess of 30 percent for generalized anxiety disorder and depression. REPRESENTATION Appellant represented by: John C. Blair, Attorney ATTORNEY FOR THE BOARD M. H. Stubbs, Counsel INTRODUCTION The Veteran served on active duty from March 1965 to September 1968. This matter comes before the Board of Veterans' Appeals (Board) on appeal from December 2008 and July 2010 rating decisions by the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia which continued a 30 percent rating for generalized anxiety disorder and depression, and assigned an initial 10 percent rating for hypertension, respectively. Procedurally, the Veteran initiated an appeal of all issues addressed in the December 2008 rating decision. The December 2008 rating decision additionally granted service connection for hypertension with a noncompensable rating, denied entitlement to service connection for a stomach disorder, and found that new and material evidence was not submitted to reopen a claim for posttraumatic stress disorder (PTSD). He was notified of the decision on December 16, 2008. He submitted a timely notice of disagreement with all of the issues on December 15, 2009. A decision of the RO becomes final and is not subject to revision on the same factual basis unless a notice of disagreement is filed within one year of the notice of the decision. 38 U.S.C.A. § 7105; 38 C.F.R. §§ 20.302, 20.1103. A statement of the case (SOC) was mailed to the Veteran on October 18, 2010 (excluding the anxiety disorder claim on appeal which was addressed separately). Under 38 C.F.R. § 20.302(b) a substantive appeal must be filed within 60 days from the date that the agency of original jurisdiction mails the statement of the case to the appellant or within the remainder of the one year period from the date of the mailing of the notification of the determination being appealed, whichever period ends later. The Veteran did not submit a substantive appeal of the issues of entitlement to service connection for a stomach disorder, or to reopen a claim of entitlement to service connection for PTSD until July 16, 2012. As this substantive appeal was untimely, the Board does not have jurisdiction to review the appeals. In April 2013, the Veteran and his attorney were informed that he may not have filed a timely appeal for his claims for a stomach disorder, PTSD and hypertension. They were given the opportunity to respond and explain why they thought a substantive appeal was timely filed or to provide evidence of such. They did not respond to the April 2013 notification. The notification erred in including his hypertension claim. Subsequent to the December 2008 rating decision additional VA treatment records were provided, and the RO readjudicated the claim in a July 2010 rating decision. He was notified of the rating decision in a July 23, 2010 mailing. On April 11, 2011, the Veteran submitted a timely notice of disagreement. The RO mailed a SOC on May 16, 2012. The Veteran's attorney faxed his substantive appeal on July 16, 2012. In computing the time limit, the first day of the specified period will be excluded and the last day included. 38 C.F.R. § 20.305(b). Where the time limit expires on a Saturday, Sunday, or legal holiday, the next succeeding workday will be included in the computation. Id. Thus, 61 calendar days passed between when the SOC was mailed and the faxed substantive appeal; however, July 15, 2012 was a Sunday. Therefore his hypertension appeal was timely and is properly before the Board. The issues of reopening claims of entitlement to service connection for PTSD and a stomach disorder have been raised by the record, but have not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over them, and they are referred to the AOJ for appropriate action. The issue of entitlement to a rating in excess of 30 percent for generalized anxiety disorder and depression is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. FINDING OF FACT The Veteran's hypertension is manifested by multiple systolic blood pressure readings of 160 or over and diastolic blood pressure readings of 100 or more and the use of continuous medication for control, but not by systolic pressure predominantly 200 or more or diastolic pressure predominantly 110 or more. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist With respect to the Veteran's claims, VA has met all statutory and regulatory notice and duty to assist provisions. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326. Under the Veterans Claims Assistance Act of 2000 (VCAA), when VA receives a complete or substantially complete application for benefits, it is required to notify the Veteran and his or her representative, if any, of any information and medical or lay evidence that is necessary to substantiate the claim. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the United States Court of Appeals for Veterans Claims (Court) held that VA must inform the Veteran of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; (3) that the Veteran is expected to provide; and (4) request that the Veteran provide any evidence in his or her possession that pertains to the claim. The requirement of requesting that the Veteran provide any evidence in his or her possession that pertains to the claim was eliminated by the Secretary during the course of this appeal. See 73 Fed. Reg. 23353 (final rule eliminating fourth element notice as required under Pelegrini II, effective May 30, 2008). Thus, any error related to this element is harmless. A VCAA letter dated in September 2008 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio, at 187. The letter informed him of the types of evidence and information necessary to support his claims, and asked him to send any information or evidence to VA. The letter also explained to the Veteran how disability ratings and effective dates are determined. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VA has done everything reasonably possible to assist the Veteran with respect to his claim for benefits in accordance with 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159(c). Service treatment records and post-service VA and private treatment records have been associated with the claims file or Virtual VA. All identified and available treatment records have been secured. The Board finds that VA has fulfilled its duty to assist in obtaining such records. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). In this case, the Veteran was provided VA examinations in October 2008 and September 2010 to determine the nature and severity of the Veteran's hypertension. The examination reports reflect that the examiners interviewed and examined the Veteran, reviewed his claims file and past medical history, documented his current medical conditions, and rendered appropriate diagnoses consistent with the remainder of the evidence of record. Furthermore, these examination reports along with the remainder of the evidence of record contain sufficient information to rate the Veteran's disability under the appropriate diagnostic criteria. The Board therefore concludes that the VA examination reports are adequate for evaluation purposes. See 38 C.F.R. § 4.2; see also Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) [holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate]. As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). Laws and Regulations Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. Schafrath, 1 Vet. App. at 589. 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. Francisco v. Brown, 7 Vet. App. 55, 57-58. In Fenderson v. West, 12 Vet. App. 119 (1999), however, it was held that the rule from Francisco does not apply where the appellant has expressed dissatisfaction with the assignment of an initial rating following an initial award of service connection for that disability, as is the case with the appellant's hypertension claim. Rather, at the time of an initial rating, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as 'staged' ratings. Id. at 126. If there is a question as to which evaluation to apply to the Veteran's disability, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. 38 C.F.R. § 4.14. The critical element in permitting the assignment of several ratings under various DCs is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Diagnostic Code (DC) 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). Hypertensive vascular disease with 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, is rated 10 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Note (1) to DC 7101 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 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104 , DC 7101, Factual Background and Analysis The Veteran's hypertension currently is rated as 10 percent disabling under DC 7101. The Veteran claims that the current rating does not accurately reflect the true nature and degree of his disability. VA treatment records from 1998 included blood pressure readings of 142/100, 152, 103, and 169/102. From 1998 to 2012, his highest blood pressure reading was in January 2011, and was 186/112. His other diastolic pressure readings ranged from 82 to 104, and averaged in the upper 90s and low 100s. His BP reading in December 2010 was 137/82, and his reading in November 2011 was 124/86. His systolic pressure readings did not exceed 186. He was on continuous blood pressure medication throughout the appeals period, and his medication was increased in June 2009. Following his July 2008 claim, the Veteran was afforded a VA hypertension examination in October 2008. The Veteran reported that he had high blood pressure in service, and he was turned down for a job in 1972 due to his high blood pressure. The examiner noted his April 1969 blood pressure reading was 135/95. The examiner also noted some of the Veteran's higher blood pressure readings, including a September 1996 reading of 178/120 "on Maxide for 10 days." At the time of the examination, the Veteran was on three prescription blood pressure medications. His three consecutive blood pressure readings were 167/96, 163/94 and 157/90. He was assessed with essential hypertension, and the examiner noted that he could perform light to moderate physical and sedentary employment. In September 2010, the Veteran was afforded an additional VA hypertension examination. The examiner noted that throughout the last decade his blood pressure was poorly controlled, "with systolic values often in the 140-150s and diastolic values in the 90-120s." His hypertension continued to be treated with daily prescription medication. His three consecutive blood pressure readings were 181/102, 173/106 and 173/109. Virtual VA contains VA treatment records through December 2012. The Veteran's most recent blood pressure readings available in the record are 150/90 (November 2012), 136/84 (April 2012) and 134/84 (February 2012). After a careful review of the record and for the reasons and bases expressed immediately below, the Board finds that the Veteran's hypertension does not warrant an evaluation greater than the currently assigned 10 percent rating. See 38 C.F.R. § 4.7. In reaching that decision, the Board has considered the requirement of 38 C.F.R. § 4.3 to resolve any reasonable doubt regarding the level of the Veteran's disability in his favor. In this case, however, a higher rating under DC 7101 is not warranted because the evidence does not indicate that the Veteran has diastolic pressure predominantly greater than 110 or systolic pressure greater than 200. As noted above, the Veteran's systolic pressure has not been recorded as higher than 186. While the Veteran has had diastolic pressure over 110 twice, the overwhelming majority of his diastolic readings have frequently been in the low 100s. Thus, the Board finds that the presence of two readings in excess of diagnostic readings over 110 does not meet the criteria of "predominantly greater than 110" as contemplated by a higher evaluation. As such, the Veteran's hypertension is appropriately rated as 10 percent disabling because his diastolic pressure is predominantly 100 or more and he requires continuous medication. For this reason, further staged ratings are not applicable. See Hart, 21 Vet. App. at 505. Moreover, no other DC is appropriately applied. The Board has considered alternative DCs relating to cardiovascular conditions, but finds that they are inapplicable in this case. See 38 C.F.R. § 4.104, DCs 7000-7123. In summary, for the reasons and bases set forth above, the Board concludes that a rating greater than 10 percent is not warranted for the Veteran's hypertension for any period of this appeal. The preponderance of the evidence is against the claim and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b), Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See 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 Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran'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. 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 hypertension is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hypertension with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. Specifically, the Veteran's 10 percent rating for hypertension under DC 7101 fully contemplates his elevated systolic and diastolic blood pressure. The Veteran's diastolic pressure is at the upper end of his 10 percent rating criteria, but the criteria allows for a higher ratings for worsening diastolic and systolic pressures. Thus, the Veteran's current schedular rating under DCs 7101 is adequate to fully compensate him for his disability on appeal. Regarding employability, the Veteran has stated during examinations that he was forced to retire due to a spinal injury. The September 2010 VA examiner indicated the Veteran's hypertension did not have an effect on his employability. In short, the rating criteria reasonably describe the Veteran's disability level and symptomatology. The Board, therefore, has determined that referral of this case for extraschedular consideration pursuant to 38 C.F.R. 3.321(b)(1) is not warranted. ORDER Entitlement to an initial rating in excess of 10 percent for hypertension is denied. REMAND On December 24, 2010, the Veteran's attorney faxed additional psychiatric evidence to the RO regarding the Veteran's claim for service connection for PTSD. The fax coversheet indicates that 22 pages were sent to the RO. A March 2, 2010 private psychologist evaluation is incomplete. The first page of the evaluation and the last page of the evaluation (page 7) are in the claims file. The remaining missing five pages of the evaluation are not in the claims file or Virtual VA. While the psychological evaluation was performed to support the Veteran's claim for service connection for PTSD, the information may include evidence which would be pertinent to the Veteran's increased rating claim for anxiety and depression. On remand, the RO should request that the Veteran furnish copies of the missing pages of the evaluation. Accordingly, the case is REMANDED for the following action: 1. Contact the Veteran and his attorney and request that they resubmit copies of the March 2, 2010 psychological assessment from Psychological Associates of Logan, Inc. as five pages of the assessment are missing from the report contained in the claims file. 2. After completion of the above and any additional development deemed necessary, the issue on appeal should be reviewed, to include the completed March 2010 report (if resubmitted). All applicable laws and regulations should be considered. If any benefit sought remains denied, the Veteran and his attorney should be furnished a supplemental statement of the case and be afforded the opportunity to respond. Thereafter, the case should be returned to the Board for appellate review The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. 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). ______________________________________________ DAVID L. WIGHT Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs