Citation Nr: 1326562 Decision Date: 08/21/13 Archive Date: 08/29/13 DOCKET NO. 09-18 772A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Seattle, Washington THE ISSUE Entitlement to an increased (compensable) rating for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD E. Pomeranz, Counsel INTRODUCTION The Veteran had active service from June 1980 to July 2000. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a July 2008 rating action by the Department of Veterans Affairs (VA) Regional Office (RO) located in Seattle, Washington. FINDING OF FACT The Veteran's hypertension has required continuous medication but there is no history of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. CONCLUSION OF LAW The criteria for an increased (compensable) rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2002 & Supp. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2012). REASONS AND BASES FOR FINDING AND CONCLUSION I. Veterans Claims Assistance Act of 2000 (VCAA) The VCAA enhanced VA's duty to notify a claimant as to the information and evidence necessary to substantiate 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 VCAA also redefined the obligations of VA with respect to the duty to assist the veteran with the claim. Id. In the instant case, the Board finds that VA fulfilled its duties to the Veteran under the VCAA. Duty to Notify VA has a duty to notify the veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must: (1) inform the claimant about the information and evidence 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 the claimant is expected to provide. Beverly v. Nicholson, 19 Vet. App. 394, 403 (2005) (outlining VCAA notice requirements). Additionally, on March 3, 2006, the United States Court of Appeals for Veterans' Claims (Court) issued a decision in Dingess v. Nicholson, 19 Vet. App. 473, 484, 486 (2006), which 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. The Board concludes that VA letters dated in May 2008 and October 2008 that were sent to the Veteran adequately apprised him of the information and evidence needed to substantiate the claim. The RO thus complied with VCAA's notification requirements. There is no issue as to providing an appropriate application form or completeness of the application. Written notice provided in May 2008 and October 2008 fulfills the provisions of 38 U.S.C.A. § 5103(a). That is, the Veteran received notice of the evidence needed to substantiate his claim, the avenues by which he might obtain such evidence, and the allocation of responsibilities between himself and VA in obtaining such evidence. See Beverly, 19 Vet. App. at 394, 403; see also Mayfield v. Nicholson, 19 Vet. App. 103, 109-12 (2005) (Mayfield I) rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). In addition, the aforementioned letters also informed the Veteran about how VA determines effective dates and disability ratings, as required by Dingess. The Board also recognizes that, according to Pelegrini v. Principi, 18 Vet. App. 112, 119-20 (2004), proper VCAA notice must "precede an initial unfavorable [agency of original jurisdiction (AOJ)] decision on a service-connection claim." Written notice was provided in May 2008, prior to the appealed from rating decision, along with the subsequent notice provided in October 2008, after the decision that is the subject of this appeal. With respect to any timing deficiency, the Board notes that the case was subsequently readjudicated in April 2011 and March 2013 supplemental statements of the case (SSOCs) and, as such, the Veteran has not been prejudiced thereby. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993) (where the Board addresses a question that has not been addressed by the agency of original jurisdiction, the Board must consider whether the Veteran has been prejudiced thereby). During the pendency of this appeal, the Court issued a decision in Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), which pertains to a greater degree of specificity with respect to notice of the criteria necessary for an increased rating. However, this decision was recently vacated by the United States Court of Appeals for the Federal Circuit (Federal Circuit). See Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009). The Board finds that the May 2008 and October 2008 letters substantially satisfy the current notification requirements for the claim on appeal. As the Veteran has not indicated any prejudice caused by a content error and no such error is apparent, the Board finds no basis for finding prejudice against the Veteran's appeal of the issue adjudicated in this decision. Shinseki v. Sanders, 129, S. Ct. 1696 (2009) regarding the rule of prejudicial error. The Veteran has been provided the opportunity to respond to VA correspondence and over the course of the appeal has had multiple opportunities to submit and identify evidence. Furthermore, he has been provided a meaningful opportunity to participate effectively in the processing of his claim by VA. Duty to Assist VA also has a duty to assist the veteran in obtaining evidence necessary to substantiate the claim. 38 U.S.C.A. § 5103A(a) ("The Secretary shall make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the . . . claim"). This duty includes assisting the veteran in obtaining records and providing medical examinations or obtaining medical opinions when such are necessary to make a decision on the claim. 38 U.S.C.A. § 5103A(b), (c), (d) (setting forth Secretary's various duties to claimant). VA informed the Veteran of its duty to assist in obtaining records and supportive evidence, obtained the Veteran's VA treatment records, and the Veteran received VA (QTC) examinations in June 2008, November 2009, and February 2013, which were thorough in nature and adequate for the purposes of deciding this claim. The aforementioned VA examinations revealed findings that are adequate for rating the Veteran's hypertension. Thus, the Board finds that the medical evidence of record is sufficient to resolve this appeal; VA has no further duty to provide an examination or medical opinion. 38 C.F.R. §§ 3.326, 3.327. Based on the foregoing, it is the Board's determination that the VA fulfilled its VCAA duties to notify and to assist the Veteran, and thus, no additional assistance or notification was required. The Veteran has suffered no prejudice that would warrant a remand, and his procedural rights have not been abridged. See Bernard, supra. II. Factual Background In a February 2001 rating action, the RO granted service connection for hypertension. The RO assigned a nonompensable disability rating under Diagnostic Code 7101, effective from August 1, 2000, for the Veteran's service-connected hypertension. In April 2008, the Veteran requested that his hypertension be reevaluated for a higher rating. He submitted private medical records, dated in August 2007, in support of his claim. The records show that in August 2007, the Veteran was treated in the emergency room for neck and shoulder pain with headaches. According to the Veteran, he had taken his blood pressure at home and he was concerned that it was too high. Upon physical examination, the Veteran's blood pressure was 160/105, 144/108, and 135/96. The diagnosis was hypertension which was non-emergent and non-urgent. In June 2008, the Veteran underwent a VA examination which was conducted by QTC Services. He stated that he took medication daily to treat his hypertension and that the response had been good. There were no side effects. According to the Veteran, he had the following functional impairment: dizziness. The Veteran had a history of working as a machinist. Upon physical examination, three blood pressure readings were taken and they were the following: 149/93, 154/90, and 153/91. The Veteran's blood pressure was elevated. Examination of the Veteran's heart did not reveal any evidence of congestive heart failure, cardiomegaly or cor pulmonale. There were no murmurs or gallops, and no heaves or thrills. The electrocardiogram (EKG) showed normal sinus rhythm. The diagnosis was hypertension. The examiner noted that there was no finding of hypertensive heart disease. The effect of the Veteran's hypertension on his usual occupation and on his daily activities was none. VA Medical Center (VAMC) outpatient treatment records show that in October 2009, the Veteran underwent a physical examination. He stated that he took medication daily in order to treat his hypertension. Upon physical examination, the Veteran's blood pressure was 112/70. The diagnosis was hypertension. In November 2009, the Veteran underwent a VA examination which was conducted by QTC Services. He stated that due to his hypertension, he experienced headaches and dizziness. The Veteran indicated that he took medication daily for his hypertension and that the response was good. There were no side effects. According to the Veteran, he did not experience any overall functional impairment from his hypertension. Upon physical examination, three blood pressure readings were taken and they were the following: 130/90, 132/88, and 134/92. The Veteran was in no acute distress. The EKG showed sinus tachycardia; otherwise, normal. The diagnosis was hypertension. The examiner stated that the Veteran had high blood pressure and was on medication. According to the examiner, there was no finding of hypertensive heart disease. The examiner noted that the Veteran was retired. The effects of the Veteran's hypertension on his daily activity was "normal." VAMC outpatient treatment records dated through December 2012 show intermittent treatment for the Veteran's hypertension. The following blood pressure readings were recorded: 140/76 in March 2011, 119/80 in May 2011; 112/67 in June 2011, 110/70 in February 2012, and 136/71 in December 2012. In February 2013, the Veteran underwent a VA examination which was conducted by QTC Services. He stated that he took daily medication to treat his hypertension. Upon physical examination, three blood pressure readings were taken and they were the following: 140/78, 142/80, and 142/80. An EKG was reported to be normal. The diagnosis was hypertension. The examiner sated that the Veteran's hypertension did not impact his ability to work. III. Analysis Disability ratings are determined by applying criteria set forth in VA's Schedule for Rating Disabilities. Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations should be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. For claims for increased rating which do not rise out of an initial grant of service connection, the Board must consider the application of "staged" ratings for different periods from the filing of the claim forward, if the evidence suggests that such a rating would be appropriate. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In every instance where the schedule does not provide a zero percent rating for a diagnostic code, a zero percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31 (2012). The RO has assigned a noncompensable disability rating under Diagnostic Code 7101 pertaining to hypertensive vascular disease. This Diagnostic Code does not provide for a zero percent (noncompensable) rating, therefore the initial evaluation was assigned in accordance with 38 C.F.R. § 4.31. Under Diagnostic Code 7101, a 10 percent rating is applicable if diastolic pressure is predominantly 100 or more, or systolic pressure is predominantly 160 or more, or there is a history of diastolic pressure of predominantly 100 or more and continuous medication is required to control blood pressure. A 20 percent evaluation is warranted if diastolic pressure is predominantly 110 or more or systolic pressure is predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. After review of the evidence, the Board finds that the Veteran's hypertension does not more nearly approximate the criteria for a compensable evaluation at anytime during the claims period. The record confirms that the Veteran takes medication for control of his hypertension. However, there is no history of diastolic pressure predominantly 100 or more. Private treatment records show that in August 2007, the Veteran's blood pressure was taken three times and his diastolic pressure was over 100 two out of three times. Nevertheless, the remainder of the evidence of record reflects that the Veteran's diastolic pressure has been consistently under 100. In the July 2008 VA (QTC) examination, his diastolic pressure was 93, 90, and 91. In the November 2009 VA (QTC) examination, his diastolic pressure was 90, 88, and 92. Moreover, in the February 2013 VA (QTC) examination, his diastolic pressure was 78 and 80. Likewise, the VA treatment records show diastolic readings under 100 in October 2009, March 2011, May 2011, June 2011, and December 2012. Thus, the Board cannot conclude that the isolated instances in August 2007 of increased diastolic blood pressure establish that the Veteran's readings are predominantly 100 or more, especially in light of the remaining records demonstrating consistent diastolic pressure lower than 100. The Board also finds that the Veteran's systolic pressure has not more nearly approximated predominantly 160 or more. Private treatment records show that in August 2007, the Veteran's blood pressure was taken three times and on one of the readings, his systolic pressure was 160. Nevertheless, the remainder of the evidence of record reflects that the Veteran's systolic pressure has been consistently under 160. In the July 2008 VA (QTC) examination, his systolic pressure was 149, 154, and 153. In the November 2009 VA (QTC) examination, his systolic pressure was 130, 132, and 134. Moreover, in the February 2013 VA (QTC) examination, his systolic pressure was 140 and 142. Likewise, the VA treatment records show systolic readings under 160 in October 2009, March 2011, May 2011, June 2011, and December 2012. Therefore, the Board cannot conclude that the isolated instance in August 2007 of increased systolic blood pressure establishes that the Veteran's readings are predominantly 160 or more, especially in light of the remaining records demonstrating consistent systolic pressure lower than 160. The Veteran has maintained that without medication his blood pressure readings would be much higher and would clearly contemplate a compensable rating. However, Diagnostic Code 7101 rates hypertension based on the blood pressure readings with consideration of the use of medication. Therefore, the Board finds that the Veteran's hypertension does not more nearly contemplate the criteria associated with a compensable rating. The Board has considered whether there is any other schedular basis for granting a higher rating, but has found none. In light of the foregoing, the Board finds that the Veteran is not entitled to an increased (compensable) rating for hypertension, at any point in the appeal period. In reaching this decision, the Board considered the doctrine of reasonable doubt. However, since the preponderance of the evidence is against the claim, the benefit of the doubt doctrine does not apply and the claim must be denied. 38 U.S.C.A. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364, 1365 (Fed. Cir. 2001) (holding that "the benefit of the doubt rule is inapplicable when the preponderance of the evidence is found to be against the claimant"); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). IV. Extraschedular Considerations The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where ratings based on the statutory schedules are found to be inadequate, consideration of an "extra-schedular" evaluation commensurate with the average earning capacity impairment due exclusively to the service-connected disability or disabilities will be made. 38 C.F.R. § 3.321(b)(1). The Court has held that the determination of whether a claimant is entitled to an extraschedular rating under § 3.321(b) is a three-step inquiry, the responsibility for which may be shared among the RO, the Board, and the Under Secretary for Benefits or the Director, Compensation and Pension Service. Thun v. Peake, 22 Vet. App. 111 (2008). 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. This means that initially 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, the assigned schedular evaluation is adequate, and no referral is required. If the criteria do not reasonably describe the claimant's disability level and symptomatology, a determination must be made whether the claimant'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) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). See Id. However, in this case, the medical evidence fails to show anything unique or unusual about the Veteran's service-connected hypertension that would render the schedular criteria inadequate. The manifestations of the Veteran's hypertension are contemplated by the schedular criteria. The rating criteria considers high blood pressure and the use of continuous medication. As such, it would not be found that this disability met the "governing norms" of an extraschedular rating. Accordingly, referral for consideration of an extraschedular rating is not warranted. ORDER Entitlement to an increased (compensable) rating for hypertension is denied. ____________________________________________ P. M. DILORENZO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs