Citation Nr: 1338827	
Decision Date: 11/25/13    Archive Date: 12/06/13

DOCKET NO.  08-31 861	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Lincoln, Nebraska



THE ISSUE

Entitlement to an initial, extra-schedular rating for hypertension.



REPRESENTATION

Appellant represented by:	Vietnam Veterans of America



ATTORNEY FOR THE BOARD

J. Hager, Counsel



INTRODUCTION

The Veteran served on active duty from October 1968 to December 1988.

This case initially came before the Board of Veterans' Appeals (Board) from a rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Lincoln, Nebraska, which granted entitlement to service connection for hypertension and assigned a noncompensable rating, effective the December 7, 2007 date of claim.  The Veteran timely appealed the initial rating assigned and the RO increased the rating to 10 percent, also effective December 7, 2007.  The Veteran continued to seek a higher rating.

In May 2010, the Board denied the claim. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court).  In an October 2011 memorandum decision, the Court vacated the Board's May 2010 decision and remanded the matter back to the Board for further proceedings consistent with the memorandum decision. In March 2012 and again in September 2012, the claim was remanded to the RO for further development.

In April 2013, the Board bifurcated the claim to reflect separate consideration of entitlement to a higher rating on a schedular and an extra-schedular basis.  Tyrues v. Shinseki 23 Vet. App. 166, 178-79 (2009) (en banc), aff'd, 631 F.3d 1380 (Fed. Cir. 2011), vacated on other grounds, 132 S. Ct. 75 (2012) (VA is free to dismember a claim and adjudicate it in separate pieces); Locklear v. Shinseki, 24 Vet. App. 311, 315 (2011) (bifurcation of a claim generally is within VA's discretion).  The Board denied the claim for a higher initial rating on a schedular basis and remanded the claim for an extraschedular rating to the RO, via the Appeals Management Center (AMC) for additional development.  For the reasons stated below, the RO/AMC complied with the Board's remand instructions.  Stegall v. West, 11 Vet. App. 268, 271 (1998). 



FINDING OF FACT

The Veteran's hypertension disability picture includes symptoms not contemplated by the schedular rating criteria, and these symptoms cause marked interference with employment that equates to a schedular rating indicating moderate impairment.


CONCLUSION OF LAW

The criteria for an initial, extra-schedular rating of 30 percent, but no higher, for hypertension, have been met.  38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2002 & Supp. 2012); 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7199-7101 (2013).


REASONS AND BASES FOR FINDING AND CONCLUSION

VCAA

The Veterans Clams Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159. As noted above, this claim arises from the Veteran's disagreement with the rating assigned in connection with the grant of service connection for hypertension.  The courts have held, and VA's General Counsel has agreed, that where an underlying claim for service connection has been granted and there is disagreement as to "downstream" questions, the claim has been substantiated and there is no need to provide additional VCAA notice or prejudice from absent VCAA notice.  Hartman v. Nicholson, 483 F.3d 1311, 1314-15 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112, 116-17 (2007); VAOPGCPREC 8-2003 (2003).  

The Court has elaborated that filing a notice of disagreement begins the appellate process, and any remaining concerns regarding evidence necessary to establish a more favorable decision with respect to downstream elements (such as a disability rating, whether schedular or extra-schedular) are appropriately addressed under the notice provisions of 38 U.S.C.A. §§ 5104 and 7105 (West 2002).  Goodwin v. Peake, 22 Vet. App. 128, 137 (2008).  Consequently, further discussion of the VCAA's notification requirements with regard to this claim is unnecessary.  The Board notes that, in any event, its prior decisions in this case have discussed the criteria for establishing entitlement to an extra-schedular rating, and the Veteran and his representative have actual knowledge of these criteria.  George-Harvey v. Nicholson, 21 Vet. App. 334, 339 (2007).

The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d).  This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4).

In this case, VA obtained the Veteran's service treatment records (STRs) and all of the identified post-service private and VA treatment records.  The Veteran was also afforded multiple VA examinations, including the recent November 2012 VA examination that specifically discussed the symptoms caused by the Veteran's hypertension that are not listed in the schedular criteria and their effect on his employment and daily life.  The examination is therefore adequate to rate the Veteran's hypertension on an extra-schedular basis.

For the reasons set forth above, the Board finds that VA has complied with the VCAA's notification and assistance requirements.  The claim for an initial, extra-schedular rating for hypertension is thus ready to be considered on the merits.

Analysis

Although VA's Rating Schedule is designed to take account of the impairment caused by a wide range of disabilities, in exceptional cases where the schedular rating is found to be inadequate, VA's Under Secretary for Benefits or Director of Compensation is authorized to approve an extra-schedular rating commensurate with average earning capacity impairment.  38 C.F.R. § 3.321(b)(1).  Such a rating is warranted where the case presents such an exceptional or unusual disability picture with related factors such as marked interference with employment that renders impractical the application of the regular schedular standards.  Id.  This is such a case.

As indicated by the Board in the April 2013 remand, the schedular criteria do not adequately contemplate or reasonably describe the Veteran's disability picture and there is evidence of significant interference with employment.  The February 2008 VA examiner wrote that the Veteran had symptoms of headaches, orthostatic hypotension with vertigo, nocturia, and fatigue and that the Veteran would experience "significant" effects on his occupation because of a lack of stamina.  Moreover, in November 2012, a VA physician concluded that, based on the level of severity of the Veteran's hypertension, which appeared to be "somewhat severe," it was "at least as likely as not that his headaches, hypotension with vertigo, and lack of stamina are due to the hypertension."  He explained his reasoning, essentially that the severity of the Veteran's hypertension and the fact that many of these symptoms had been associated with hypertension made it likely that disregarding all other medical co-morbidities and also consideration the side effects of medication, all of the symptoms except nocturia were likely related to hypertension.  The physician also found there would be "moderate interference" with employment, as the symptoms would "not render him unemployable completely, but would certainly interfere with any/many types of physical or strenuous activity/employment."  As the physician explained the reasons for his conclusion based on an accurate characterization of the evidence of record, his opinion is entitled to substantial probative weight.  See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning).

Based on the VA physician's opinion that the hypertension caused symptoms that are not specifically contemplated by the applicable rating criteria and that they would interfere with many types of employment, the Board found that remand to the RO, via the AMC, for referral to the Under Secretary for Benefits or the Director of Compensation Service to determine whether an extra-schedular rating was warranted.  See Barringer v. Peake, 22 Vet. App. 242, 244 (2008) (noting that the Board may not assign an extra-schedular rating in the first instance).  See also Thun v. Peake, 22 Vet. App. 111 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009) (explaining three step process to determine whether referral for consideration of extra-schedular rating is warranted).  After reviewing the evidence, the AMC in May 2013 concluded that the totality of the evidence did not support the contention that the Veteran's hypertension was so exceptional or unusual so as to render the use of the regular rating schedule standards impractical.  In August 2013, the Director of Compensation concurred.  For the following reason, the Board disagrees.

The only symptoms in the criteria for rating hypertension are high blood pressure readings.  The above evidence, in particular the VA physician's November 2012 opinion, reflects that the Veteran has symptoms of hypertension that are not contemplated by the criteria, including headaches, orthostatic hypotension with vertigo, nocturia, and fatigue.  Moreover, this same evidence indicates that these symptoms would interfere with many types of physical or strenuous activity and employment, which the physician characterized as moderate interference.  This is precisely the circumstance in which an extra-schedular rating is envisioned by the criteria.  The Veteran is receiving a noncompensable schedular rating because medication controls his hypertension, but there are other symptoms, including those due to the medication, which interfere with employment.  While the degrees of disability specified in the rating criteria are considered adequate to compensate for considerable loss of working time in proportion to the severity of the grades of disability, 38 C.F.R. § 4.1, here the Veteran is receiving a noncompensable rating.  The degree of interference with his employment as described by the physician in November 2012 and consistent with the other evidence can therefore only be characterized as "marked."  As the symptoms not listed in the criteria cause marked interference with employment, an extra-schedular rating is warranted and the only remaining issue is the appropriate percentage.

There is little guidance for the Board in assigning the extra-schedular percentage.  DC 7101 contains rating of 10, 20, 40, and 60 percent.  The VA physician described the interference with employment as moderate and, although the Board is not bound by this characterization, the Board finds that it is consistent with the above evidence.  As a rating for moderate impairment would normally be in the middle of the rating percentages listed for a given disability, the Board finds that a 30 percent rating, precisely between the two middle ratings in the schedular criteria, are appropriate in the circumstances of this case.  An extra-schedular rating of 30 percent is therefore warranted for the Veteran's hypertension.


ORDER

An initial, extra-schedular rating for hypertension of 30 percent, but no higher, is granted, subject to controlling regulations governing the payment of monetary awards.


____________________________________________
MICHAEL D. LYON 
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs