Citation Nr: 1334572 Decision Date: 10/30/13 Archive Date: 11/06/13 DOCKET NO. 10-08 254 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Sioux Falls, South Dakota THE ISSUE Entitlement to a initial increased (compensable) rating for the service-connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD L.B. Cryan, Counsel INTRODUCTION The Veteran served on active duty from June 1987 to January 2008. This case is before the Board of Veterans' Appeals (Board) on appeal from a June 2008 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Sioux Falls, South Dakota. In that decision, the RO, in pertinent part, granted service connection for hypertension, migraine headaches, and Raynaud's syndrome; and assigned initial noncompensable ratings for each, effective from February 1, 2008. In the Veteran's initial July 2008 notice of disagreement (NOD), the Veteran specifically disagreed with the initial noncompensable ratings assigned following the grants of service connection for migraine headaches and Raynaud's syndrome. In March 2009, the RO issued a Statement of the Case (SOC) addressing the issues of entitlement to initial compensable ratings for service-connected migraine headaches and Raynaud's syndrome. The Veteran's VA Form 9, substantive appeal to the Board was received in April 2009, and it reflects that the Veteran requested a Board hearing with regard to these two issues. In an April 2009 rating decision, the RO increased the initial noncompensable rating for the service-connected migraines to 30 percent, effective from February 1, 2008. In an April 2009 statement, the Veteran's representative indicated that the increase to 30 percent for the migraine headaches satisfied the Veteran's appeal for increased benefits and the appeal with regard to the issues of entitlement to higher ratings for the service-connected migraine headaches and Reynaud's syndrome; and, there was a request to withdrawn those issues from appellate status. As such, the issues of entitlement to higher ratings for the service-connected migraine headaches and Raynaud's syndrome are not before the Board or in appellate status at this time. In a statement received at the RO in April 2009, the Veteran indicated that she wanted to have her high blood pressure "re-evaluated." The Veteran reported that her blood pressure medication had increased, and she included a release to obtain her health care records from Ellsworth Air Force Base. As set forth in 38 C.F.R. § 3.156(b), when new and material evidence is received prior to the expiration of the appeal period, it will be considered as having been filed in connection with the claim which was pending at the beginning of the appeal period. However, if a veteran merely states that he wishes to reopen his claim before the appeal period ends, but does not submit new and material evidence with that request, then his statement will be accepted as a new claim and not as new and material evidence relating to the original claim. See Voracek v. Nicholson, 421 F.3d 1299 (Fed. Cir. 2005). Here, the Veteran provided new and material evidence in the form of a statement reporting that her hypertension medication had increased, and by indicating that there were outstanding treatment records in support of her claim. Because new and material evidence was received within one year from the June 2008 rating decision which granted service connection and assigned an initial noncompensable rating; and, because the RO later adjudicated a claim for an increased rating that was received in April 2009, such a submission kept the June 2008 rating decision from becoming final. See Young v. Shinseki, 22 Vet. App. 461, 469 (2009). Therefore, the issue on appeal is recharacterized as entitlement to an initial compensable rating for the service-connected hypertension. 38 C.F.R. § 3.156(b). In March 2010, the Veteran testified at a video conference hearing from Fort Meade before a Decision Review Officer (DRO) at the RO. A transcript of her testimony is associated with the claims file. FINDINGS OF FACT 1. Prior to August 13, 2008, the competent evidence of record shows that the Veteran's blood pressure was not predominantly manifested by systolic pressure of 160 or more; or, by a diastolic pressure of 100 or more. 2. Since August 13, 2008, the Veteran's hypertension has not been adequately controlled with or without medication and therefore results in an overall disability picture that more nearly approximates that of systolic pressure predominantly 160 or higher. 3. At no time since service has the Veteran's hypertension been manifested by a systolic pressure of 200 or more; or, a diastolic pressure of over 110. CONCLUSIONS OF LAW 1. The criteria for the assignment of a compensable rating prior to August 13, 2008 for the service-connected hypertension are not met. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). 2. Resolving all doubt in the Veteran's favor, the criteria for the assignment of a 10 percent rating, but not higher, for the service-connected hypertension have been more nearly approximated since August 13, 2008. 38 U.S.C.A. §§ 1155 , 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Notice and Assistance Upon receipt of a complete or substantially complete application, VA must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. § 5103(a). The notice requirements apply to all five elements of a service connection claim: 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 v. Nicholson, 19 Vet. App. 473 (2006). The notice must be provided to a claimant before the initial unfavorable adjudication by the RO. Pelegrini v. Principi, 18 Vet. App.112 (2004). The notice requirements may be satisfied if any errors in the timing or content of such notice are not prejudicial to the claimant. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, 444 F.3d 1328 (Fed. Cir. 2006). The RO provided the appellant pre-adjudication notice by letter dated in February 2008. The notification substantially complied with the requirements of Quartuccio v. Principi, 16 Vet. App. 183 (2002), identifying the evidence necessary to substantiate a claim and the relative duties of VA and the claimant to obtain evidence; and, with Dingess v. Nicholson, 19 Vet. App. 473 (2006) by notifying the Veteran regarding the assignment of initial disability ratings and effective dates for all grants of service connection. With regard to the increased rating claim, here, the Veteran is challenging the initial rating assigned following the grant of service connection. In cases where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service-connection claim has been more than substantiated, it has been proven, thereby rendering section 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Thus, because the notice that was provided before service connection was granted was legally sufficient, VA's duty to notify in this case has been satisfied. See Dingess v. Nicholson, 19 Vet. App. 473 (2006). That notwithstanding, the RO provided the Veteran with a subsequent duty-to-assist letter in January 2009 that specifically provided notice of how to substantiate a claim for an increased rating. The letter advised the Veteran to submit any evidence showing that the service-connected disability has increased in severity, including, but not limited to any private treatment records. The letter indicated that VA would obtain all outstanding VA treatment records once the Veteran indicated at what VA facility(ies) she was treated. The Veteran has received all essential notice, has had a meaningful opportunity to participate in the development of her claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). VA has obtained service treatment records, assisted the Veteran in obtaining evidence, afforded the Veteran physical examinations, obtained medical opinions as to the etiology and severity of the hypertension, and afforded the Veteran the opportunity to give testimony before the Board. All known and available records relevant to the issues on appeal have been obtained and associated with the Veteran's claims file; and the Veteran has not contended otherwise. VA has substantially complied with the notice and assistance requirements and the Veteran is not prejudiced by a decision on the claim at this time. In addition to the paper claims file, there is a Virtual VA (VVA) electronic claims file associated with the Veteran's claim. The documents in the VVA file have been reviewed, and all relevant records are either duplicative of the evidence in the paper claims file or are separately identified and summarized below. II. Increased Ratings The Veteran seeks an initial compensable disability rating for her service-connected hypertension. Disability evaluations are determined by the application of a schedule of ratings which is based on the average impairment of earning capacity resulting from a disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. When 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. 38 C.F.R. § 4.7. Where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 C.F.R. §§ 3.102, 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. See 38 C.F.R. §§ 4.1, 4.2, 4.41 (2013). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. See 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where a Veteran appeals the initial rating assigned for a disability, evidence contemporaneous with the claim and with the initial rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an original rating on appeal was erroneous. . . ." See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id. In all increased rating cases, it is appropriate to consider whether separate ratings should be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO assigned the Veteran's hypertension a noncompensable initial evaluation pursuant to Diagnostic Code 7101, used in rating hypertensive vascular disease. 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a rating of 10 percent is warranted for hypertensive vascular disease where the diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or when continuous medication is shown necessary for the control of hypertension and there is a history of diastolic blood pressure of predominantly 100 or more. A 20 percent evaluation requires diastolic pressure of predominantly 110 or more; or systolic pressure of predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. A 60 percent evaluation requires diastolic pressure of predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken 2 or more times on at least 3 different days. The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104 . The evidence of record shows that the Veteran's hypertension has been difficult to control since August 2008. The record shows that the Veteran was initially prescribed Nifedipine for control of her hypertension. A March 2008 VA examination report indicates that the highest blood pressure at that time was 148/86. The report shows that the result over 5 days was 1414/802. When this fraction is divided by 5, the average over the 5 day period is 141/80. In May 2008, the Veteran's blood pressure reading had rising to 157/91. A review of the VA and private medical records indicates that the Veteran's initial prescription to treat the hypertension (Nifedipine) was discontinued in August 2008. An August 13, 2008 private treatment record shows that the Veteran had blood pressure readings of 168/100 and 161/86. Because she felt nauseous on the Nifedipine, the examiner discontinued the Nifedipine and started the Veteran on Lisinopril, 10 mg. At first, the medication appeared to be effective in lowering the Veteran's blood pressure. For example, a September 2008 private treatment record shows that the Veteran's blood pressure had been reduced to 140/86, which was improved from 168/100, but still not at goal of 130/80. As such, the doctor increased the Veteran's Lisinopril dose from 10 mg. to 20 mg. VA and private treatment records from November 2008 show readings of 147/82 and 140/78. Another private record indicates that the Veteran's blood pressure was initially elevated, and then subsequently reduced to 131/79. The Veteran reported that the initial rating had a systolic pressure of over 160. Private and VA records in January 2009, June 2009 and August 2009 show that the Veteran's blood pressure appeared stable on the 20 mg. of Lisinopril. The highest rating during that time period was 130/71. However, in November 2009, the Veteran's, medication was ineffective in controlling her blood pressure and the Lisinopril was further increased to 40 mg. Her blood pressure on examination was 151/82. Significantly, the VA outpatient report reveals that the Veteran did not drink or smoke, and she exercised regularly. In a November 2009 statement, the Veteran reported that an earlier/initial undocumented reading included a systolic pressure of 161. This is confirmed on a VA outpatient report printed on February 11, 2010. The February 2010 Statement of the Case (SOC) lists the Veteran's blood pressure readings up to that point, and reflects that prior to August 2008, the highest recorded blood pressure reading was 157/90 which was recorded in May 2008. At her March 2010 hearing before a DRO, the Veteran testified that she went off her medication to show that her systolic blood pressure readings are not controlled without medication. A March 2010 private record shows that the Veteran had three blood pressure readings on three consecutive days with a systolic pressure over 160. She testified that she had only come off of her blood pressure medication a couple days prior to those readings. See Hearing Transcript, P. 3. Thus, the blood pressure is consistently over 160 when she is not on medication. In summary, the Veteran has numerous blood pressure readings where the systolic pressure is under 160; however, she has at least 5 readings since August 13, 2008 showing a systolic pressure of 160 or higher. The record also shows that the Veteran's medication has been increased twice during the period since August 13, 2008 because her blood pressure remained uncontrolled on the lower dose of medication. Overall, the pattern of blood pressure readings shows that prior to August 13, 2008, there were no readings with a diastolic pressure of 100 or higher, and there was no systolic pressure of 160 or higher. The Veteran was prescribed Nifedipine. Nonetheless, the Veteran's blood pressure remained elevated during this time period, as reflected by the average blood pressure reading in March 2008 of 141/80, and the 157/91 blood pressure reading in May 2008. Despite the ineffectiveness of the Nifedipine used to control the blood pressure, the diastolic pressure was never shown to be 100 or more, and the systolic pressure was never shown to be 160 or more. As such, the criteria for a compensable rating for the service-connected blood pressure prior to August 13, 2008 are not met. Since August 13, 2008, the Veteran's blood pressure has been difficult to control as reflected by her consistent medication increases and several readings showing a systolic pressure of 160 or over. Although many of the readings taken during this time period show a systolic pressure of less than 160, and one reading was as low as 110/72 (See January 2009 private treatment record), the overall disability picture shows that the Veteran's pressure has been initially lower with a medication change, but then it slowly increases to the point where the systolic pressure is in the 150 to 168 range. At that point, a higher dose of medication is introduced. This has been a continuous pattern since August 13, 2008. Further, the Veteran stopped her medication in March 2010 to show that without medication, her systolic reading was consistently 164 or higher, as noted on the March 2010 private record. As noted in the regulations, when 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. 38 C.F.R. § 4.7. Here, the overall disability picture represents uncontrolled hypertension with a systolic reading more nearly approximating that of 160 or higher. Even with medication, the Veteran's blood pressure readings, in most cases, continue to be elevated. Further, the record reflects that the systolic pressure is consistently elevated even though the Veteran takes steps to improve her health with exercise, and she does not smoke or drink. It is a well-established medical principle that smoking and drinking alcohol are factors that can increase blood pressure. See http://www.nhlbi.nih.gov/hbp/prevent/prevent.htm Here, when all the evidence is assembled, as noted above, the evidence of record prior to August 13, 2008 shows that the Veteran's blood pressure was never manifested by a diastolic reading of 100 or more, or a systolic reading of 160 or more. Thus, the criteria are not met for the assignment of a compensable rating prior to August 13, 2008. However, the evidence of record since August 13, 2008 raises a reasonable doubt regarding the degree of disability. For example, many of the readings since that time show a systolic pressure under 160, but nearly all of the systolic readings are in the elevated range (140 or higher), several are 160 or higher and her medication dosage is consistently increasing with time. Thus, the evidence of record clearly establishes that her hypertension is not controlled without medication, and only partially controlled with medication. In these cases, the Board must resolve all doubt in the Veteran's favor and assign the higher rating. The Veteran has clearly shown that her systolic blood pressure exceeds 160 almost immediately after she stops taking her medication. The regulations indicated that it is the responsibility of the rating specialist to interpret reports of examination in the 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 present. See 38 C.F.R. § 4.2. Accordingly, the elements of the present disability since August 13, 2008 consist of the need to keep increasing medication in an attempt to reduce the systolic pressure from continuing to show a systolic pressure of 160 or higher. In light of the foregoing, the criteria more nearly approximate that of a systolic pressure of 160 or higher, and in resolving all doubt in the Veteran's favor, the criteria for the assignment of a 10 percent rating are more nearly approximated for the period beginning on August 13, 2008. The Veteran's service-connected hypertension has never been manifested by diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more, even without medication. Hence, a rating in excess of 10 percent is not warranted at any time during the period covered by this claim. In conclusion, for the reasons stated above, the criteria are not met for a compensable rating prior to August 13, 2008 for the service-connected hypertension; however, since August 13, 2008, the criteria for a 10 percent rating have been more nearly approximated, and all doubt has been resolved in the Veteran's favor. At no time are the criteria for the assignment of a rating in excess of 10 percent for the service-connected hypertension warranted. Fenderson, 12 Vet. App. at 126. Finally, there is no evidence that the manifestations of the Veteran's service-connected hypertension disability are unusual or exceptional to demonstrate that the rating schedule is inadequate for determining the proper level of disability. Furthermore, as there is no indication in the record as to why the Veteran's case is not appropriately rated under the schedular criteria, extraschedular consideration is not warranted in this case, particularly where, as here, the signs and symptoms of the Veteran's service-connected hypertension disability are specifically addressed by the relevant criteria discussed above. See Thun v. Peake, 22 Vet. App 111, 115-16 (2008). The criteria for rating hypertension are based on blood pressure readings and control of blood pressure. Thus, the high blood pressure symptoms and objective manifestations are addressed by the rating criteria under which such disabilities are rated. The rating criteria reasonably describe the Veteran's disability level and symptomatology for her service-connected disability. The Veteran's hypertension has been shown to require medication for its control since August 2008, and even then, it is not under good control. Nonetheless, the evidence does not show diastolic pressure of predominantly 110 or more, or systolic pressure of predominantly 200 or more. As discussed above, there is a higher rating available under the diagnostic code addressed in this decision, but the Veteran's hypertension is not productive of the manifestations that would warrant the higher rating. Thus, consideration of whether the Veteran's disability picture exhibits other related factors such as those provided by the regulations as "governing norms" is not required and referral for an extraschedular rating is unnecessary. Thun v. Peake, 22 Vet. App. 111 (2008). ORDER An initial compensable disability rating for the service-connected hypertension is denied prior to August 13, 2008 A 10 percent disability rating for the service-connected hypertension, but no higher, is granted from August 13, 2008. ____________________________________________ BETHANY L. BUCK Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs