Citation Nr: 1336150 Decision Date: 11/06/13 Archive Date: 11/13/13 DOCKET NO. 07-20 455 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Jackson, Mississippi THE ISSUE Entitlement to an initial compensable disability rating for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD M. Moore, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1996 to August 1996 and November 2004 to January 2006 with service in Iraq from January 2005 to December 2005. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2006 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Jackson, Mississippi, which granted service connection for high blood pressure, assigning a noncompensable evaluation effective January 28, 2006. In a September 2012 decision, the Board denied entitlement to an initial compensable evaluation for hypertension. The Veteran appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In April 2013, the Court issued an order granting an April 2013 joint motion for remand (JMR). The appeal was returned to the Board for action consistent with the April 2013 JMR and Court Order. In September 2012, the Veteran filed a claim for service connection for heart palpitations, an anxiety disorder, and irritable bowel syndrome/stomach. He is currently service connected for posttraumatic stress disorder (PTSD). Thus, the issues of entitlement to service connection for heart palpitations and a gastrointestinal disorder and an increased rating for PTSD 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. FINDING OF FACT For the entire period on appeal, the Veteran's service-connected hypertension is manifested by diastolic pressure predominantly less than 110, systolic pressure predominantly less than 200, and continuous medication for control. CONCLUSION OF LAW The criteria for the assignment of an initial disability rating of 10 percent, but no higher, for service-connected hypertension have been met. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims file. While the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the evidence submitted by the Veteran or on his behalf. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the Veteran. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). I. Veterans Claims Assistance Act of 2000 (VCAA) With respect to the Veteran's claim decided herein, 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 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 3.326 (2013). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and 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) (West 2002); 38 C.F.R. § 3.159(b) (2013); Quartuccio v. Principi, 16 Vet. App. 183 (2002). In Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II), the Court held that VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. Prior to initial adjudication of the Veteran's claim, a letter dated in June 2006 fully satisfied the duty to notify provisions. See 38 U.S.C.A. § 5103(a) (West 2002); 38 C.F.R. § 3.159(b)(1) (2013); Quartuccio at 187. Additionally, the June 2006 letter informed the Veteran of how VA determines the appropriate disability rating or effective date to be assigned when a claim is granted, consistent with the holding in Dingess/Hartman v. Nicholson. See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Board also concludes VA's duty to assist has been satisfied. The Veteran's service treatment records, VA examination reports, and VA treatment records are in the file. Private treatment records have been obtained to the extent possible. The Veteran has at no time referenced other available records that he wanted VA to obtain or that he felt were relevant to this claim. With respect to claims for increased ratings, the duty to assist includes, when appropriate, the duty to conduct a thorough and contemporaneous examination of the veteran. See Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the veteran's disability, a VA examination must be conducted. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991); 38 C.F.R. § 3.327(a) (2013). The RO provided the Veteran with a VA examination for his service-connected hypertension most recently in September 2011. The examination involved a review of the Veteran's claims file and a thorough examination, including appropriate diagnostic testing. Therefore, the Board finds that the examination is adequate for determining the disability rating for the disability on appeal. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim). The Board notes that the April 2013 indicated that the September 2011 VA examiner's conclusion that the Veteran had a history of diastolic pressure of predominantly 100 or more should be clarified. In this case, the Board has decided to accept the examiner's conclusion. As such, remand for clarification of this conclusion is not necessary. Additionally, there is no evidence indicating that there has been a material change in the severity of the Veteran's service-connected hypertension since he was last examined. See 38 C.F.R. § 3.327(a) (2013). The duty to assist does not require that a claim be remanded solely because of the passage of time since an otherwise adequate examination was conducted. See VAOPGCPREC 11-95. Notably, the most recent VA treatment records referencing the Veteran's blood pressure, dated in February and August 2012 indicate that the Veteran's blood pressure was stable and good when taken at home. As such, the Board finds that a new VA examination is not required for hypertension. 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). II. Merits of the Claim Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. § 4.1 (2013). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2013). Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3 (2013). In every instance 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. See 38 C.F.R. § 4.31 (2013). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2013). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate him for times since filing his claim when his disability may have been more severe than at other times during the course of his appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2013). The critical element in permitting the assignment of several ratings under various diagnostic codes 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). The Veteran has been assigned a 0 percent initial rating under Diagnostic Code 7101 for his service-connected hypertension. Diagnostic Code 7101 provides the rating criteria for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under that diagnostic code, a 10 percent evaluation is assigned 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 constant medication for control. A 20 percent evaluation is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is assigned for diastolic pressure predominantly 120 or more. Finally, a 60 percent evaluation is assigned for diastolic pressure predominantly 130 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2013). 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 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. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2013). Hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it, rather than by a separate evaluation. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (2) (2013). Hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (3) (2013). The Veteran was first examined in conjunction with his current claim in July 2006. At that time, he reported a history of hypertension treated with Lopressor since his return from Iraq in December 2005. He also reported a March 2006 hospitalization for blood pressure of 180/100. Following his hospitalization, he was started on Diovan/HCT which had more or less normalized his blood pressure. At the time of the examination, he was taking Lisinopril/HCT, had no known history of coronary artery disease, stroke, or kidney or eye problems, and denied blurry vision and chest pain. The examiner recorded blood pressure readings of 110/80, 112/80, and 110/70 and diagnosed the Veteran with essential hypertension under very good control with medication and no complications. The Veteran was more recently examined in September 2011. At that time, he reported a history of hypertension since December 2005. The examiner noted that the Veteran took continuous medication (Lisinopril) for his hypertension and had a history of diastolic blood pressure elevation to predominantly 100 or more. The examiner further noted that the Veteran had been hospitalized on several occasions while living in Mississippi for uncontrolled diastolic hypertension. He did not indicate the source of this information. He recorded a blood pressure reading of 130/78 and concluded that the Veteran's hypertension did not impact his ability to work. The medical evidence also includes VA treatment records that note many blood pressure readings and discuss the Veteran's hypertension diagnosis and treatment. The highest blood pressure readings of record were 164/102 and 160/90 in March 2006 and 175/82 and 172/82 in February 2007. The March 2006 reading of 164/102 is the only diastolic reading over 100. None of the VA treatment records shows a systolic reading of 200 or more or a diastolic reading of 110 or more. The VA treatment records indicate that the Veteran may have stopped his hypertension medications in January 2011 and began taking them again regularly in July 2011. The Veteran has also submitted lay statements from himself and his wife indicating that he had a history of diastolic pressure predominantly 100 or more and continuous medication and his blood pressure was high enough to cause a stroke upon his return from Iraq. See Veteran statement, January 2007; wife statement, June 2008. With resolution of reasonable doubt in the favor of the Veteran, the Board finds that his hypertension warranted a 10 percent initial evaluation for the entire period on appeal. He reported requiring medication to control his hypertension at each VA examination and a history of diastolic pressure predominantly 100 or more. His history of diastolic pressure predominantly 100 or more was also noted by the September 2011 VA examiner. Although the medical evidence does not include his pre-medication blood pressure readings to determine whether they show a history of diastolic pressure predominantly 100 or more, the Board finds it reasonable to conclude from the Veteran's long history of medication that he may have experienced a history of such elevated diastolic pressure. Accordingly, the Board finds that the Veteran's hypertension more closely approximates the criteria for a 10 percent evaluation for the entire period on appeal. Although an increased initial rating of 10 percent is warranted, the evidence of record does not reflect blood pressure values that would meet the criteria for a rating in excess of 10 percent for any period of time during the pendency of the claim. While the evidence of record demonstrates that the Veteran requires continuous medication for control of his hypertension, there is no evidence that his hypertension results in diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Notably, none of the blood pressure readings in the claims file meet this criteria. As such, a higher rating of 20 percent is not warranted at any time during the appeals period. Additionally, there is no indication that the Veteran's hypertension warrants an increased rating under any other diagnostic code. He is specifically service-connected for hypertension and there is no evidence of hypertensive heart disease or other heart disease. As such, an increased rating cannot be assigned for hypertension under any other diagnostic code relating to the cardiovascular system. See 38 C.F.R. § 4.104, Diagnostic Codes 7000-7020, 7110-7123 (2013). There is also no indication in the medical evidence of record that the Veteran's hypertension warranted other than the currently assigned 10 percent disability rating throughout the appeal period. The Board notes that the Veteran may have stopped taking his blood pressure medication for a brief period in 2011. However, given that these dates are not confirmed and that the Veteran appears to have quickly restarted his hypertension medications, the Board finds that an evaluation of 10 percent is appropriate for the entire period on appeal. As such, assignment of staged ratings is not warranted. See Fenderson, supra. For all the foregoing reasons, the Board finds that a 10 percent rating, but no higher, is appropriate for the entire period on appeal. In reaching this conclusion, the Board has applied the benefit-of-the-doubt doctrine. See 38 U.S.C.A. § 5107(b) (West 2002); 38 C.F.R. §§ 3.102, 4.3 (2013); Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). 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 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) (2013); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the veteran's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the Veteran's hypertension outside the usual rating criteria. The rating criteria specifically contemplate his high blood pressure readings, as well as his use of medication to control his blood pressure. Therefore, this disability picture is adequately contemplated by the rating schedule. As the Veteran's disability picture is contemplated by the rating schedule, the threshold issue under Thun is not met and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected hypertension presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2013). Thus, referral of this issue to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. (CONTINUED ON NEXT PAGE) ORDER Entitlement to a disability rating of 10 percent, but no higher, for hypertension is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ JONATHAN B. KRAMER Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs