Citation Nr: 1336959 Decision Date: 11/14/13 Archive Date: 11/26/13 DOCKET NO. 10-38 934 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Chicago, Illinois THE ISSUES 1. Entitlement to an initial disability rating in excess of 10 percent for hypertension. 2. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Veteran represented by: Veterans of Foreign Wars of the United States ATTORNEY FOR THE BOARD Michael J. Adams, Associate Counsel INTRODUCTION The Veteran had active military service from July 1965 to February 1969. These matters come before the Board of Veterans' Appeals (Board) from a January 2009 rating decision of the Department of Veterans Affairs (VA), Regional Office (RO) in Chicago, Illinois. The January 2009 rating decision granted service connection for hypertension, and assigned a noncompensable initial rating effective from May 21, 2007. In a May 2009 rating decision by the RO in Cleveland, Ohio, the Veteran was awarded a 10 percent disability rating for his service-connected hypertension effective from May 21, 2007. A Veteran is generally presumed to be seeking the maximum benefit allowed by law and regulation, and a claim remains in controversy where less than the maximum available benefit is awarded. AB v. Brown, 6 Vet. App. 35 (1993). The assignment of a 10 percent evaluation for hypertension does not constitute the maximum available benefit. Therefore, the claim for an increased evaluation for hypertension remains before the Board. In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability. Id. As will be discussed in greater detail below, during the pendency of the Veteran's claim for an increased initial evaluation, the matter of unemployability due to service-connected disabilities has been raised by the record. (See a February 2012 VA Form 8940.) Accordingly, the issues listed above have been amended to include the issue of whether a TDIU rating is warranted. The issue of entitlement to a TDIU 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 During the entire period on appeal the Veteran's hypertension has required continuous medication without a history of diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSION OF LAW During the period on appeal, the criteria for an initial disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION I. VCAA Duty to Notify and Assist Under applicable criteria, VA has certain notice and assistance obligations to claimants. See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.159, 3.326(a). Notice must be provided to a claimant before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim for VA benefits and must: (1) inform the claimant about the information and evidence not of record that is 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004) (Pelegrini II). With respect to service connection claims, a section 5103(a) notice should also advise a claimant of the criteria for establishing a disability rating and effective date of award. Dingess/Hartman v. Nicholson, 19 Vet. App. 473, 486 (2006). Once service connection has been granted, the context in which the claim initially arose, the claim has been substantiated; therefore, additional VCAA notice under § 5103(a) is not required because the initial intended purpose of the notice has been fulfilled, so any defect in the notice is not prejudicial. Goodwin v. Peake, 22 Vet. App. 128 (2008); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Rather, thereafter, once a notice of disagreement (NOD) has been filed, for example contesting a downstream issue such as the initial rating assigned for the disability, only the notice requirements for a rating decision and SOC described in 38 U.S.C. §§ 5104 and 7105 control as to the further communications with the Veteran, including as to what evidence is necessary to establish a more favorable decision with respect to downstream elements of the claim. 38 C.F.R. § 3.159(b)(3). The RO has provided the Veteran the required SOC discussing the reasons and bases for not assigning a higher initial rating and citing the applicable statutes and regulations. Therefore, the Board finds the Veteran has been informed of what is necessary to achieve higher ratings for the service-connected disability at issue. See Bernard v. Brown, 4 Vet. App. 384 (1993); Sutton, 9 Vet. App. 553 (1996). As to VA's duty to assist, the Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). In this case, the RO obtained the service treatment records, the report associated with the VA examination, along with VA treatment records, and lay evidence. The Veteran has not asserted receiving any private treatment for his hypertension. The Veteran was also scheduled for a hearing before the Board in September 2011. However, in a written correspondence received in September 2011 he cancelled his request for a hearing. The Veteran was provided with a VA examination in December 2008 (the report of which has been associated with the claims file). The Board finds that this examination is thorough and adequate upon which to base a decision with regard to the Veteran's claim. The VA examiner reviewed the claims file and medical history, and provided the information necessary to evaluate his disability under the applicable rating criteria. Moreover, neither the Veteran nor his representative have objected to the adequacy of the examination and have not asserted that the Veteran's condition has gotten worse since the examination. For the reasons expressed above, the Board finds that no further notice or assistance to the Veteran is required to fulfill VA's duty to assist him in the development of his claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd 281 F.3d 1384 (Fed. Cir. 2002). II. Increased Rating Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C.A. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the appellant working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court held that in initial rating claims evaluation of the medical evidence since the grant of service connection and consideration of the appropriateness of separate ratings for distinct periods of time is required (known as "staged ratings"). See Fenderson, 12 Vet. App. at 126. Service connection for hypertension was granted in the January 2009 rating decision on appeal with a 10 percent initial rating granted thereafter in the May 2009 rating decision. The Veteran contends that an initial evaluation exceeding 10 percent is warranted. 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. A 40 percent evaluation is warranted if diastolic pressure is predominantly 120 or more. And a 60 percent evaluation is warranted if diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The evidence reflects that the Veteran's hypertension has been controlled with continuous medication throughout the rating period. However, the evidence does not reflect that during the rating period, the Veteran's systolic pressure was predominantly 200 or more or that his diastolic pressure was predominantly 110 or more. Specifically, VA treatment records for the rating period on appeal are negative for any systolic pressure readings that met or exceeded 200 or any diastolic pressure readings that met or exceeded 110. Records of VA treatment document findings of diastolic pressure ranging from 49 to 80 with systolic pressure ranging from 93 to 148. The Veteran did have a blood pressure reading of 164/86 in July 2008, however, the VA treatment report indicates that the Veteran had not taken his blood pressure medication prior to the reading. The Veteran's VA physicians have consistently characterized his hypertension as benign. These findings are clearly below the level contemplated by a 20 percent evaluation under Diagnostic Code 7101. The results of the VA examination performed in December 2008 also do not support the award of a compensable rating. In December 2008, the Veteran's blood pressure was measured as 104/65. Furthermore, the Veteran's reported self-monitored blood pressure levels do not exceed the level contemplated by the rating criteria. In March and April 2009, VA treatment records reflect that the Veteran's self-reported diastolic pressure ranged from 63 to 106 with systolic pressure ranging from 134 to 189. In sum, the Veteran's hypertension has required the use of continuous medication, but has not manifested a history of diastolic pressure predominantly 110 or more or with systolic pressure predominantly 200 or more. The record for the rating period on appeal is negative for any readings that exceed these levels and as such the Board cannot conclude that the evidence most nearly approximates diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more, at any point during the rating period. The Veteran's treating physicians have consistently characterized his hypertension as benign, and his diastolic and systolic pressure readings most nearly approximate the currently assigned evaluation. The Board has also considered whether an extraschedular rating is warranted, noting that if an exceptional case arises where the rating schedule is 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. 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 evaluations for the service-connected disability are inadequate. A comparison between the level of severity and symptomatology of the Veteran's disability with the established criteria shows that the rating criteria reasonably describe the Veteran's disability level and symptomatology. His hypertension is characterized as benign and demonstrates elevated diastolic and systolic blood pressure readings. These symptoms are contemplated in the rating criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities and referral for consideration of extraschedular rating is not warranted. In sum, the evidence does not support a finding that, during the rating period, the Veteran's hypertension manifested to a degree as contemplated by the rating criteria for a 20 percent rating. The record is negative for evidence that the Veteran's systolic pressure reached or exceeded 200 or that his diastolic pressure reached or exceeded 110 at any point during the rating period. The rating criteria adequately depict the Veteran's symptoms. As such, a 20 percent disability rating for hypertension is not warranted. ORDER Entitlement to an initial disability rating in excess of 10 percent for hypertension is denied. REMAND As noted in the Introduction, during the pendency of the Veteran's claim for an increased initial evaluation, he asserted that his service-connected disabilities render him unemployable. (See the February 2012 VA Form 8940.) If granted, the effective date of this "traditional TDIU" claim may be assigned from February 3, 2011, one year before he filed his "traditional" TDIU claim. 38 C.F.R. § 3.400(o)(1), (2). On the contrary, a Rice-type TDIU claim, when raised by the record, is before the Board as a component of his claim for an increased initial evaluation. Rice, supra. Since the Rice-type TDIU claim is considered a component of the Veteran's claim for an increased initial evaluation, if granted, the effective date of the TDIU award may be assigned from May 21, 2007, the effective date assigned for the grant of service-connected hypertension. In light of the above, the TDIU claim before the Board is the Rice-type TDIU which is a component of his claim for an increased initial evaluation and was perfected to the Board in September 2010. The Veteran's Rice-type TDIU claim has not been adjudicated in the first instance by the RO. Godfrey v. Brown, 7 Vet. App. 398 (1995); Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Accordingly, the Board must remand the Veteran's TDIU claim for adjudication by the RO in the first instance, to include consideration of whether such is warranted at any time during the pendency of the Veteran's claim for an increased initial evaluation filed in May 2007. While the record indicates that the Veteran received some form of notice of the criteria necessary to substantiate a claim following his submission of the February 2012 VA Form 8940, a copy of this notice is not of record and it is not clear if the notice he received was specific to his TDIU claim. As such, the Veteran should be provided with adequate notice of the criteria necessary to substantiate a claim for TDIU. Also, in developing and adjudicating the Veteran's TDIU claim, the VA must complete any additional development which flows from the information provided by the Veteran or obtained by the RO/AMC, to include referring the Veteran's TDIU claim to the Undersecretary for Benefits or the Director of the Compensation and Pension Service for appropriate action as per 38 C.F.R. § 4.16(b). Accordingly, the case is REMANDED for the following action: 1. The RO/AMC must provide the Veteran with a letter satisfying the duty to notify provisions with respect to the claim of entitlement to TDIU. 2. Attempt to obtain any VA clinical records since May 2011 involving treatment relating to the Veteran's service-connected disabilities. If the RO/AMC is unable to obtain any identified records, then it must notify the Veteran in writing and provide him an opportunity to respond. 3. After the above is accomplished, and regardless of whether the RO/AMC determines that the Veteran is, or is not, substantially and gainfully employed, schedule the Veteran for a VA examination. The claims folder must be made available to the examiner and reviewed in conjunction with the examination. All necessary tests should be conducted and the examiner is requested to review all pertinent records associated with the claims file. Thereafter, the examiner should determine and report the nature and severity of the service-connected disabilities at issue, to include all manifestations thereof, and degree of functional impairment resulting therefrom, to include the impact of the Veteran's service-connected disabilities on his ability to work and social functioning. The examiner is asked to obtain a complete occupational history from the Veteran, if possible, and to provide an opinion as to whether it is at least as likely as not (50 percent or more probability) that the Veteran's service- connected disabilities, considered in combination (without consideration of his non-service-connected disabilities and without regard to his age), render him unable to secure or follow a substantially gainful occupation consistent with his educational and occupational experience. A complete rationale for the opinions expressed must be provided, to include reference to specific clinical findings or documents in the claims file. 4. After undertaking any other development deemed appropriate, the RO should adjudicate the Veteran's TDIU claim, with consideration of the rating period on appeal from May 2007. The RO must consider, if appropriate, whether referral of the Veteran's claim to the Director of Compensation and Pension for extraschedular consideration under 38 C.F.R. § 4.16(b) (2013) is warranted. If the benefit sought on appeal is not granted, the RO should issue a supplemental statement of the case and provide the Veteran and his representative with an appropriate opportunity to respond. The case should then be returned to the Board for further appellate consideration as warranted. The Veteran has the right to submit additional evidence and argument on the matter 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). ______________________________________________ U.R. POWELL Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs