Citation Nr: 1339583 Decision Date: 12/02/13 Archive Date: 12/18/13 DOCKET NO. 13-27 896 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Winston-Salem, North Carolina THE ISSUE Entitlement to an initial compensable rating for hypertension from November 24, 2009 to February 9, 2012. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD A. Dean, Associate Counsel INTRODUCTION The Veteran had active military service from October 1978 to October 1982. This appeal to the Board of Veterans' Appeals (Board/BVA) is from a January 2013 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which granted service connection for hypertension, and assigned a noncompensable rating from November 24, 2009 to February 9, 2012, a 10 percent rating from February 9, 2012 to September 24, 2012, and a 20 percent rating since. Only the noncompensable rating from November 24, 2009 to February 9, 2012 is on appeal. In his September 2013 substantive appeal (VA Form 9), the Veteran requested a hearing at the RO before a Veterans Law Judge of the Board (Travel Board hearing); however, in October 2013 he requested that his hearing request be withdrawn and his case decided. The Board, therefore, deems his hearing request withdrawn. 38 C.F.R. §§ 20.704(e) (2012). This appeal was advanced on the docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a)(2) (West 2002). FINDINGS OF FACT Prior to February 9, 2012, the Veteran's hypertension was not predominantly manifested by diastolic pressure of 100 or more or systolic pressure of 160 or more. CONCLUSION OF LAW Prior to February 9, 2012, the criteria were not met for a compensable rating for hypertension. 38 U.S.C.A. § 1155, 5103, 5103A, 5107 (West 2002 and Supp. 2012); 38 C.F.R. § 3.321, 4.1, 4.2, 4.7, 4.104, Diagnostic Code (DC) 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Standard of Review In deciding this claim, the Board has reviewed all of the evidence in the claims file, both the physical claims file and electronic ("Virtual VA") claims file, and has an obligation to provide an adequate statement of reasons or bases supporting this decision. See 38 U.S.C.A. § 7104(d)(1) (West 2002); Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). While the Board must review the entire record, it need not discuss each and every piece of evidence, certainly not in exhaustive detail. See id. The analysis below therefore focuses only on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board addresses its reasons for rejecting evidence favorable to the claimant). The Board must assess the credibility and weight of all relevant evidence, so both the medical and lay evidence, to determine its probative value, accounting for evidence that it finds to be persuasive or unpersuasive and providing reasons for rejecting any evidence favorable to the claimant. Caluza v. Brown, 7 Vet. App. 498, 506 (1995). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence. See 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102. When the evidence is in relative equipoise, the claimant prevails. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The preponderance of the evidence must weigh against a claim for benefits to be denied. See Alemany v. Brown, 9 Vet. App. 518 (1996). II. The Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (2000), sets forth VA's duties to notify and assist a claimant in substantiating a claim for VA benefits. The VCAA was codified as amended at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, and the implementing regulations were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). Under the VCAA, when VA receives a complete or substantially complete application for benefits, it is required to notify the claimant and his representative of any information and medical or lay evidence not of record that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In order to satisfy its duty to notify the claimant under the VCAA, the United States Court of Appeals for Veterans Claims (Court/CAVC) 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 obtain; and (3) that the claimant is expected to provide. Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002). Ideally, VCAA notice should be provided prior to an initial decision on a claim by the RO as the Agency of Original Jurisdiction (AOJ). Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). However, if notice was not provided prior to initially adjudicating a claim, or if provided and it was inadequate or incomplete, the issuance of a fully compliant VCAA notification followed by readjudication of the claim, including in a statement of the case (SOC) or supplemental SOC (SSOC), is sufficient to "cure" the timing defect in the provision of the notice because the intended purpose of the notice is still preserved, not frustrated, since the Veteran is still given meaningful opportunity to participate effectively in the adjudication of his claim. See Mayfield v. Nicholson, 499 F.3d 1317, 1323 (Fed. Cir. 2007); Prickett v. Nicholson, 20 Vet. App. 370 (2006). In claims for increased ratings for disabilities that already have been determined service connected in years past, the Court has held that in order to satisfy the first notice element in an increased-rating claim, VA must notify the claimant that he needs to provide or request VA to obtain medical or lay evidence demonstrating a worsening or increase in severity of the disability at issue. Vazquez-Flores v. Shinseki, 24 Vet. App. 94, 97-103 (2010) (Vasquez-Flores III); Vazquez-Flores v. Peake, 22 Vet. App. 37, 43 (2008) (Vasquez-Flores I), overruled in part sub. nom. Vasquez-Florez/Wilson v. Shinseki, 580 F.3d 1270, 1280-81 (Fed. Cir. 2009) (Vasquez-Flores II). Further, the claimant must be notified that a disability rating will be determined by applying relevant Disability Codes (DCs), which typically provide for a range in severity of a particular disability from 0 percent, i.e., noncompensable, to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Id. Finally, the notice must provide examples of the types of medical and lay evidence that the claimant may submit (or ask VA to obtain) that are relevant to establishing entitlement to increased compensation. Id. Except when VCAA notice as to how to substantiate a claim is not provided at all, it is the claimant's burden to show that he was prejudiced by any deficiency in the notice provided. See Vazquez-Flores, 24 Vet. App. at 106-107. And VA is not required to apprise him of alternative DCs or daily-life evidence, only instead provide what amounts to "generic" notice. In this case, the Veteran filed his claim for service connection for hypertension in September 2009. His appeal concerns whether he is entitled to a higher rating for the hypertension that since has been service connected. In cases, as here, where the increased-rating claim arose in another context, namely the Veteran trying to establish his underlying entitlement to service connection, and the claim since has been granted and he has appealed this "downstream" issue concerning the initial rating assigned for the disability, the underlying claim has been more than substantiated, it has been proven, thereby rendering § 5103(a) notice no longer required because the initial intended purpose of the notice has been served. See Goodwin v. Peake, 22 Vet. App. 128 (2008). Thereafter, once a notice of disagreement (NOD) has been filed contesting the "downstream" issue of the initial rating assigned for the disability, the notice requirements of 38 U.S.C. §§ 5104 and 7105 regarding with a rating decision and SOC control as to the further communications with the appellant, including as to this downstream element of the claim. Id.; see also Dunlap v. Nicholson, 21 Vet. App. 112 (2007) and VAOPGCPREC 8-2003 (Dec. 22, 2003). And the Veteran received this required SOC in August 2013, discussing this downstream claim for a higher initial rating, citing the applicable statutes and regulations, and providing reasons and bases for initially assigning a noncompensable rating for the dates in question. VA's duty to assist under the VCAA includes helping the claimant obtain relevant records, including service treatment records (STRs) and other pertinent records, such as concerning evaluation he has received since service from VA and privately, as well as providing an examination or obtaining a medical opinion when necessary to make a decision on the claim. See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c). To this end, the Veteran's STRs and post-service treatment records have been obtained and associated with the claims file for consideration. He has not identified any outstanding records that he wants VA to obtain or that he believes are relevant to his claim in terms of showing his entitlement to a greater level of compensation. Therefore, the duty to assist him in obtaining pertinent records has been satisfied. See 38 C.F.R. § 3.159(c). The duty to assist also, as mentioned, includes providing a medical examination or obtaining a medical opinion when necessary to make a decision on a claim. See 38 U.S.C.A. § 5103A(d)(2); 38 C.F.R. §§ 3.159(c)(4), 3.326(a), 3.327 (2013); McLendon v. Nicholson, 20 Vet. App. 79 (2006); Green v. Derwinski, 1 Vet. App. 121 (1991). In addition, where the evidence of record does not reflect the current state of the claimant's disability and such is relevant to the claim, a new VA examination must be conducted. See 38 C.F.R. §3.327(a); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). However, unless the claimant challenges the adequacy of the examination or opinion, the Board may assume the examination report and opinion are adequate and need not affirmatively establish the adequacy of the examination report or the competence of the examiner. Sickels v. Shinseki, 643 F.3d 1362, 1365-66 (Fed. Cir. 2011) (holding that although the Board is required to consider issues independently raised by the evidence of record, the Board is still "entitled to assume" the competency of a VA examiner and the adequacy of a VA opinion without "demonstrating why the medical examiners' reports were competent and sufficiently informed"); see also Rizzo v. Shinseki, 580 F.3d 1288, 1290-91 (Fed. Cir. 2009) (holding that the Board is entitled to assume the competency of a VA examiner unless the competence is challenged). Id. Indeed, even when the claimant challenges a VA examination or opinion, the Board may assume the competency of the VA medical examiner, including nurse practitioners, as long as, under 38 C.F.R. § 3.159(a)(1), he or she is qualified through education, training, or experience to offer medical diagnoses, statements, or opinions. See Cox v. Nicholson, 20 Vet. App. 563 (2007). Here, a VA examination was performed in September 2009. The examination is adequate for rating purposes, as the examiners reviewed the claims file for the history of this disability, examined the Veteran personally, and described his disability in sufficient detail to enable the Board to make a fully informed decision regarding its severity in relation to the applicable rating criteria. D'Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination is adequate when it is based on consideration of the claimant's medical history and describes the disability in sufficient detail so that the Board's evaluation of the disability will be a fully informed one). There are no apparent inconsistencies or ambiguities in the examination reports, and the claimant has not specifically challenged its adequacy or thoroughness, or the competence of the examiners. See Sickels, 643 F.3d at 1365-66; Rizzo, 580 F.3d at 1290-91. Accordingly, VA's duty to assist with respect to obtaining a VA examination has been met. 38 C.F.R. § 3.159(c)(4); Barr, 21 Vet. App. at 312. In sum, VA's duty to notify and assist under the VCAA has been satisfied. The Veteran has had ample opportunity to participate effectively in the development of this claim. See Arneson v. Shinseki, 24 Vet. App. 379, 389 (2011) (citing Overton v. Nicholson, 20 Vet. App. 427, 435 (2006) (finding that any error depriving a claimant of "a meaningful opportunity to participate effectively in the processing of his or her claim . . . must be considered prejudicial")). Any defect in the notice or assistance provided will not affect the outcome of this claim or compromise the "essential fairness of the adjudication," and no such defect has been shown. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). To the contrary, he has received all essential notice and assistance, has had a meaningful opportunity to participate effectively in the development of his claim, and is not prejudiced by any technical notice deficiency along the way. See Conway v. Principi, 353 F.3d 1369 (Fed. Cir. 2004). Thus, any error in the notice or assistance provided was harmless, again, meaning nonprejudicial. See Shinseki v. Sanders, 556 U.S. 396, 407, 410 (2009) (holding that the "rule of prejudicial error" requires a case-by-case determination as to whether the error in question was harmless, and that it is the burden of the claimant to show the error was harmless by at least providing an explanation as to how the error caused harm); see also 38 U.S.C.A. § 7261(b)(2) and 38 C.F.R. § 20.1102. Accordingly, the Board may proceed with appellate review of this claim. III. Legal Criteria Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the Veteran's favor. 38 C.F.R. § 4.3. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. Where, as here, entitlement to compensation already has been established, and an increase in the disability ratings is at issue, the present level of disability is the primary concern. Although a rating specialist is directed to review the recorded history of a disability to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994); 38 C.F.R. § 4.2. In determining the present level of disability; however, "staged" ratings are appropriate for increased-rating claims when the factual findings show distinct time periods where the service-connected disabilities have exhibited symptoms that would warrant different ratings. The relevant temporal focus for adjudicating increased-rating claim is on the evidence concerning the state of the disability from one year before the claim for higher rating was filed until VA makes a final decision on the claim. See generally Hart v. Mansfield, 21 Vet. App. 505 (2007); 38 U.S.C.A. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). Here, the RO already has assigned a "staged" rating for the Veteran's hypertension, since he has been assigned three different ratings for three distinct time periods. His disability is rated under 38 C.F.R. § 4.104, DC 7101, which specifically concerns hypertension. Under this code, a 10 percent rating is warranted for hypertensive vascular disease when 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 110 or more. A 20 percent rating is warranted for diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure of predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure of predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. Id. 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. 38 C.F.R. § 4.31. IV. Analysis In accordance with 38 C.F.R. §§ 4.1, 4.2, 4.41, 4.42 (2012) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of this service-connected disability. The Board has found nothing in the historical record that would lead to the conclusion that the current evidence of record is inadequate for rating purposes. The Veteran contends that a compensable rating is warranted for his service-connected hypertension from November 24, 2009 to February 9, 2012. The evidence of record during this time period at issue includes the report of a September 2009 VA examination, provided in connection with the Veteran's initial claim for service connection. During that examination, the Veteran's blood pressure was checked three times on three different days. Blood pressure readings on day one were 154/100, 162/100, and 158/98. Day two readings were 142/94, 136/98, and 142/96. On day 3, blood pressure readings were 136/88, 134/92, and 134/90. VA treatment records from that time period reflect blood pressure readings of 136/96 in March 2010, 134/84 in April 2010, 143/97 in August 2011, and 146/95 in February 2012. Private records dated from that period also reflect a blood pressure reading of 140/92 in December 2010. Based on this evidence, the Board finds that a compensable rating for November 24, 2009 to February 9, 2012 is not warranted. While the Veteran had one occasion where his systolic blood pressure was above 160 and two occasions where his diastolic blood pressure was 100 or more, during the time period in question, his systolic blood pressure was not predominantly 160 or more and his diastolic pressure was not predominantly 100 or more. So when weighed collectively with the multiple findings showing systolic pressure below 160 and diastolic pressure below 100, the overall weight of the evidence clearly shows his condition is not approximated by the 10-percent rating under DC 7101 for the time period in question. The Board acknowledges the Veteran's statements that his physician neglected to treat his hypertension with medication. However, the rating criteria for hypertension contemplates both situations where a Veteran takes medication and where he does not take medication. Here, the Veteran simply does not meet the criteria for a higher rating for November 24, 2009 to February 9, 2012. Accordingly, the preponderance of the evidence is against the claim and entitlement to an initial compensable rating for hypertension from November 24, 2009 to February 9, 2012 is not warranted. 38 U.S.C.A. § 5107(b) (West 2002); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). V. Extraschedular Consideration In evaluating the Veteran's claim for a higher rating, the Board also has considered whether he is entitled to a greater level of compensation on an extraschedular basis. Ordinarily, the VA Rating Schedule will apply unless there are exceptional or unusual factors that would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). The question of an extraschedular rating is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). And although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). As part of the evaluation for an extraschedular rating, the Board has considered the provisions of Mittleider v. West, 11 Vet. App. 181, 182 (1998), which holds that the benefit of the doubt applies to determinations of whether a symptom should be attributed to a service-connected condition. The Board has attributed all potentially service-connected symptoms to the Veteran's service-connected condition, his hypertension, in considering whether he is entitled to an extraschedular rating. According to the regulation, an extraschedular disability rating is warranted based 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). See also Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a Veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. Here, though, 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 evaluation for the service-connected disability is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hypertension with the established criteria found in the Rating Schedule for this disability shows that the rating criteria reasonably describe his disability level and symptomatology. The evidence reflects systolic and diastolic blood pressure readings corresponding to the criteria found in the Rating Schedule under DC 7101. There is no indication his condition causes or results in any symptoms falling so far outside the Rating Schedule as to render it inadequate. See Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995); and VAOPGCPREC 6-96 (August 16, 1996). ORDER A compensable rating for hypertension prior to February 9, 2012 is denied. ____________________________________________ KEITH W. ALLEN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs