Citation Nr: 1327390	
Decision Date: 08/27/13    Archive Date: 09/05/13

DOCKET NO.  10-00 813	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Providence, Rhode Island


THE ISSUE

Entitlement to an initial rating in excess of 10 percent for hypertension.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

A-L Evans, Associate Counsel







INTRODUCTION

The Veteran served on active duty from August 1967 to June 1969.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from May 2009 rating decision decided by the Department of Veterans Affairs (VA) Regional Office (RO) in Providence, Rhode Island.  

The Board notes that, in addition to the paper claims file, there is a Virtual VA electronic claims file associated with the Veteran's claim.

The Board observes that additional VA treatment records were associated with the Veteran's Virtual VA claims file after the issuance of the most recent supplemental statement of the case in February 2010, without a waiver of RO consideration.  38 C.F.R. § 20.1304 (2012).  In an August 2013 statement, the Veteran, through his representative, waived RO consideration of these records.  38 C.F.R. § 20.1304 (c).  This waiver is contained in the Veteran's claims file.  As such, the Board may properly consider such newly received evidence.  38 C.F.R. § 19.9.


FINDINGS OF FACT

The evidence does not show that the Veteran's systolic blood pressure is predominantly 200 or more or that his diastolic pressure is predominately 110 or more.


CONCLUSION OF LAW

The criteria for an increased rating for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.40, 4.104 Diagnostic Code (DC) 7101 (2012).


REASONS AND BASES FOR FINDING AND CONCLUSION

I.  VA's Duty to Notify and Assist

The Veterans Claims Assistance Act of 2000 (VCAA) describes VA's 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. 2010); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012).  

VA has met its duty to notify for this claim.  In a May 2009 rating decision, the RO effectuated the Board's May 2009 decision granting service connection.  The Veteran is now appealing the downstream issue of the initial rating that was assigned.  Therefore, additional VCAA notice is not required, and any defect in the notice is not prejudicial.  Hartman v. Nicholson, 483 F.3d 1131 (Fed. Cir. 2007), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  

Next, VA has a duty to assist the Veteran in the development of his claim.  This duty includes assisting him in the procurement of both service treatment records and other pertinent medical records and providing an examination when necessary.  38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159.  In this case, the RO has obtained and associated with the claims file the Veteran's service treatment records and post-service VA and private treatment records.  In October 2009, the Veteran was afforded a VA compensation and pension examination germane to the appeal.  There is no indication the condition has worsened since that time.  

The Board notes that the evidence already of record is adequate to allow resolution of the appeal.  Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist in the development of the 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 based on the average impairment of earning capacity established in the Schedule for Rating Disabilities.  Separate diagnostic codes identify the various disabilities.  38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2012).  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 required for that rating.  Otherwise, the lower rating will be assigned.  See 38 C.F.R. § 4.7.  Generally, the degrees of disability specified are considered adequate to compensate for loss of time from work proportionate to the severity of the disability.  38 C.F.R. § 4.1.  

By way of history, the Board granted the Veteran's appeal for service connection for hypertension, claimed as secondary to PTSD in May 2009.  In a rating decision dated in May 2009, the RO assigned a noncomepensable rating, effective May 10, 2005.  The Veteran appealed the assigned rating.  In a February 2010 rating action, the RO increased the evaluation to 10, effective May 10, 2005. 

The Veteran's hypertension has been rated as 10 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101.  Under that Diagnostic Code, a 10 percent evaluation is assigned when the evidence shows diastolic pressure predominately 100 or more, or systolic pressure predominately 160 or more, or as the minimum evaluation for an individual with a history of diastolic pressure of 100 or more which is controlled by continuous medication; a 20 percent evaluation is assigned where systolic pressure is predominantly 200 or more, or diastolic pressure is predominately 110 or more; a 40 percent evaluation is assigned where diastolic pressure is predominately of 120 or more; and, a 60 percent rating is assigned when the evidence shows diastolic pressure predominately 130 or more.  The 60 percent rating is the highest available under the Diagnostic Code.  

In this case, the Veteran is seeking a higher initial disability rating for his service-connected hypertension disorder.  He asserts that his disability is more severe than reflected by the currently assigned 10 percent evaluation.

As noted above, in order to warrant a 20 percent rating for hypertension, the evidence would have to show that the Veteran's systolic pressure is predominantly 200 or more or that his diastolic pressure is predominately 110 or more.  38 C.F.R. § 4.104, DC 7101.  At no time, during the appeal period, however, has the Veteran's blood pressure readings met these levels.  

The Veteran was afforded a VA examination in October 2009.  The Veteran reported that he first found his blood pressure to be elevated in 1985.  He reported taking blood pressure medication since that time.  Two readings taken of the Veteran's right arm during the examination showed blood pressures readings of 138/70 and 145/76.  The Veteran's reading of his left arm was 140/75.  The examiner diagnosed the Veteran as suffering from controlled hypertension with no organ damage and no effect on his activities of daily living.  

Extensive VA treatment records of the Veteran's blood pressure readings from 1999-2012 have been associated with his claims file.  None show blood pressure levels that meet the criteria for a rating in excess of 10 percent.  

The Board has considered the Veteran's lay assertions, his spouse and friend's statements, and August 2009 correspondence from the Veteran's private physician, Dr. Siedlecki, discussing the Veteran's history of hypertension which she obtained from the Veteran, to the effect that his hypertension is of such severity as to warrant disability ratings higher than what has already been assigned.  However, as explained above, for VA rating purposes the severity of hypertension is measured based on a demonstration of specific readings made upon blood pressure testing; the Veteran does not maintain that he has the ability or equipment to make such findings himself.  See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions).  Essentially, in this case, it is beyond the Veteran's competence to determine the severity of his hypertension, himself.   

As the evidence of record fails to reflect the requisite findings upon which to award an increased rating for the Veteran's service-connected hypertension, the Veteran's appeal of this issue is denied

In exceptional cases an extraschedular rating may be provided.  38 C.F.R. § 3.321.  The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice.  Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009).  

In this case, the applicable rating criteria are adequate to evaluate the Veteran's disability.  The evidence shows that the Veteran suffers from hypertension that requires the use of continuous medication.  This symptom is contemplated under the applicable rating criteria for hypertension.  As the Veteran's symptoms are already provided for in the applicable rating criteria, the first threshold of the Thun framework is not met, ending the Board's inquiry.

The Court has held that entitlement to a TDIU is an element of all appeals for a higher rating.  Rice v. Shinseki, 22 Vet. App. 447 (2009).  Entitlement to a TDIU is raised when a Veteran: (1) submits evidence of a medical disability; (2) makes a claim for the highest rating possible; and (3) submits evidence of unemployability.  In this case, though the Veteran's employment status is not clear, there is no evidence that he is unable to work on account of his hypertension, and he has never stated that he is unemployable because of his service-connected disabilities.  As there is no evidence of unemployability due to the Veteran's disability, the question of entitlement to a TDIU is not raised.

In summary, the Board finds that the evidence does not show that the Veteran's systolic blood pressure is predominantly 200 or more or that his diastolic pressure is predominately 110 or more.  Accordingly, the Board concludes that the criteria for a 20 percent rating for hypertension have not been met. 


ORDER

An increased rating for the Veteran's hypertension is denied.  



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



Department of Veterans Affairs