Citation Nr: 1339829 Decision Date: 12/03/13 Archive Date: 12/18/13 DOCKET NO. 07-20 290 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to service connection for hypertension. 2. Entitlement to an initial disability rating higher than 30 percent for asthma. REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD K. J. Kunz, Counsel INTRODUCTION The Veteran served on active duty from September 2004 to November 2004. This appeal comes before the Board of Veterans' Appeals (Board) from an October 2005 rating decision by the St. Petersburg, Florida Regional Office (RO) of the United States Department of Veterans Affairs (VA). In that decision, the RO granted service connection for asthma and assigned a 30 percent disability rating. The RO denied service connection for hypertension. In March 2009, the Veteran had a Travel Board hearing before the undersigned Veterans Law Judge (VLJ). A transcript of that hearing is associated with the Veteran's claims file. In June 2010, and again in July 2013, the Board remanded the case for the development of additional evidence. The Board is satisfied that there was been substantial compliance with the remand directives. The Board will proceed with review of the issues that the Board remanded. See Stegall v West, 11 Vet. App. 268 (1998). The Veteran's claims file is in electronic form. The Board has reviewed both his file in the Veterans Benefits Management System (VBMS) and his file in the Virtual VA system, to ensure a total review of the evidence. Any future consideration of this Veteran's case should take into consideration the existence of this electronic record. The Veteran submitted in August 2007 a claim for service connection for the psychiatric disorder post-traumatic stress disorder (PTSD). The RO denied that claim in a December 2007 rating decision. In a November 2013 statement, the Veteran, through his representative, asserted that he has major depression that is secondary to pain and incapacity due to his service-connected musculoskeletal disabilities. The claim for service connection for a psychiatric disorder that the Veteran raised in November 2013 is different from his 2007 claim for service connection for PTSD. The issue of entitlement to service connection for psychiatric disability including depression has been raised by the record, but has not been adjudicated by the Agency of Original Jurisdiction (AOJ). Therefore, the Board does not have jurisdiction over it, and it is referred to the AOJ for appropriate action. FINDINGS OF FACT 1. Treatment for hypertension began during service and continued after service. 2. The Veteran's asthma has not been manifested by PFT results of FEV-1 less than 56 percent predicted or FEV-1/FVC less than 56 percent, has not produced exacerbations that required at least monthly visits to a physician, and has not required at least three courses a year of oral or parenteral corticosteroids. CONCLUSIONS OF LAW 1. Hypertension was incurred in service. 38 U.S.C.A. §§ 1110, 5107 (West 2002); 38 C.F.R. § 3.303 (2013). 2. The Veteran's asthma has not met the criteria for a disability rating higher than 30 percent. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.7, 4.10, 4.97, Diagnostic Code 6602 (2013). (CONTINUED ON NEXT PAGE) REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), Pub. L. No. 106-475, 114 Stat. 2096 (Nov. 9, 2000) (codified at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, and 5126 (West 2002 & Supp. 2012)) redefined VA's duty to assist a claimant in the development of a claim for VA benefits. VA regulations for the implementation of the VCAA were codified as amended at 38 C.F.R. §§ 3.102, 3.156(a), 3.159, and 3.326(a) (2013). The notice requirements of the VCAA require VA to notify the Veteran of what information or evidence is necessary to substantiate the claim; what subset of the necessary information or evidence, if any, the claimant is to provide; and what subset of the necessary information or evidence, if any, VA will attempt to obtain. 38 C.F.R. § 3.159(b). The United States Court of Appeals for Veterans Claims (Court) has stated that the requirements apply to all five elements of a service connection claim: veteran status, existence of a disability, a connection between the veteran's service and the disability, degree of disability, and effective date of the disability. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). VCAA notice must be provided to a claimant before the initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (in this case, the RO). Id.; see also Pelegrini v. Principi, 18 Vet. App. 112 (2004). Insufficiency in the timing or content of VCAA notice is harmless, however, if the errors are not prejudicial to the claimant. Conway v. Principi, 353 F.3d 1369, 1374 (Fed. Cir. 2004) (VCAA notice errors are reviewed under a prejudicial error rule). Also, in Bryant v. Shinseki, 23 Vet. App. 488, 493-94 (2010), the Court held that 38 C.F.R. § 3.103(c)(2) requires that that the VLJ who conducts a Board hearing fulfill duties to (1) fully explain the issues and (2) suggest the submission of evidence that may have been overlooked. The RO provided the Veteran with VCAA notice in letters issued in November 2004, August 2006, October 2006, November 2006, March 2007, and April 2008. In those letters the RO addressed the information and evidence necessary to substantiate claims for service connection. The RO informed the Veteran how VA assigns disability ratings and effective dates. The letters also addressed who was to provided the evidence. In the March 2009 Travel Board hearing, the undersigned VLJ fully explained the issues and suggested the submission of evidence that may have been overlooked. The Veteran has not asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2) or identified any prejudice in the conduct of the Board hearing. The Board therefore finds that, consistent with Bryant, the VLJ who conducted the hearing complied with the duties set forth in 38 C.F.R. § 3.103(c)(2), and that any error provided in notice during the Veteran's hearing constitutes harmless error. The Veteran's claims file (including information in VBMS and Virtual VA) contains service treatment records, records of post-service treatment and examinations, statements from the Veteran, and a transcript of the March 2009 Board hearing. The Veteran has had VA medical examinations that adequately address his claims. In the June 2010 remand, the Board instructed the AMC or RO to schedule another VA examination to address the history and manifestations of the Veteran's asthma and hypertension. In January 2012, the Veteran had VA examinations that addressed those areas. In the July 2013 remand, the Board instructed the AMC or RO to readjudicate the issue of the rating for asthma. The RO readjudicated the issue in an October 2013 supplemental statement of the case. The Board instructed the AMC or RO to obtain additional opinion, addressing the likely etiology of the Veteran's hypertension, from the VA clinician who examined the Veteran in January 2012. Such addendum opinion was not obtained. However, as the Board finds that the assembled record supports service connection for hypertension, it is not necessary to remand the case again to request the opinion again. The Board is satisfied that the compliance with the remand directives has been sufficient to protect the Veteran's interests, such that the Board may proceed with review on the merits of the issues that the Board is deciding at this time. See Stegall v. West, 11 Vet. App. 268 (1998). With respect to the claims that the Board is deciding at this time, the Veteran was notified and aware of the evidence needed to substantiate the claims, as well as the avenues through which he might obtain such evidence, and the allocation of responsibilities between the Veteran and VA in obtaining such evidence. The Veteran has actively participated in the claims process by providing evidence and argument. Thus, he was provided with a meaningful opportunity to participate in the claims process, and he has done so. Any error in the sequence of events or content of the notice is not shown to have affected the essential fairness of the adjudication nor to have caused injury to the Veteran's interests. See Pelegrini, 18 Vet. App. at 121. Therefore, any such error is harmless, and does not prohibit consideration of those claims on the merits. See Conway, 353 F.3d at 1374, Dingess, 19 Vet. App. 473; see also ATD Corp. v. Lydall, Inc., 159 F.3d 534, 549 (Fed. Cir. 1998). Hypertension The Veteran contends that he has hypertension that began during service and continued after service. Service connection may be established for a disability resulting from disease or injury incurred in or aggravated by service. 38 U.S.C.A. § 1110; 38 C.F.R. § 3.303. The Court has explained that, in general, service connection requires (1) evidence of a current disability; (2) medical evidence, or in certain circumstances lay evidence, of in-service incurrence or aggravation of a disease or injury; and (3) evidence of a nexus between the claimed in-service disease or injury and the current disability. See Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). A veteran will be considered to have been in sound condition when examined and accepted for service, except as to disorders noted on entrance into service, or when clear and unmistakable evidence demonstrates that the disability existed prior to service and was not aggravated by service. Only such conditions as are recorded in examination reports are to be considered as noted. 38 U.S.C.A. § 1111 (West 2002); 38 C.F.R. § 3.304(b) (2013). The Board must assess the credibility and weight of all the 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 claimant. See Masors v. Derwinski, 2 Vet. App. 181 (1992); Wilson v. Derwinski, 2 Vet. App. 614, 618 (1992); Hatlestad v. Derwinski, 1 Vet. App. 164 (1991); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 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 there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a claim, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107. To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. Before the Veteran entered active service, he completed medical history reports in April 2004 and June 2004. On each report he checked no for any history of high blood pressure. On a June 2004 examination for entrance into service, the Veteran's blood pressure was 132/83. The examiner checked normal for the Veteran's heart and vascular system. Notes of treatment during service reflect blood pressure readings of 147/66 on October 15, 154/81 on October 19, and 154/83 on October 27. Treatment notes from October 27 reflect that the Veteran was prescribed the antihypertensive medication Norvasc. The Veteran's blood pressure was measured as 165/79 and 144/74 on October 28, 148/74 and 157/69 on October 29, 145/77 and 142/79 on October 30, and 159/84 on October 31. On VA medical examination in July 2005, the Veteran reported that he was diagnosed with hypertension in October 2004, during his service. He stated that he continued on Norvasc to treat his hypertension. In the July 2005 examination his blood pressure readings were 138/90, 136/92, and 138/94. The examiner's diagnosis was hypertension without complications. Subsequent medical records show continuing treatment for hypertension. The Veteran was not noted to have hypertension when he was examined and accepted for service. The record does not contain clear and unmistakable evidence demonstrating that hypertension found during service existed prior to service and was not aggravated by service. The Board therefore presumes that the Veteran did not have hypertension when he entered service. During the Veteran's service clinicians found that he had elevated blood pressure. Clinicians prescribed antihypertensive medication. Post-service medical records show ongoing treatment for hypertension. The medical evidence shows that elevated blood pressure and hypertension treatment during service continued after service. The record thus supports incurrence of hypertension in service, and thus a grant of service connection for hypertension. Asthma The Veteran has appealed the initial 30 percent disability rating the RO assigned for his service-connected asthma. VA assigns disability ratings by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. Part 4, including §§ 4.1, 4.2, 4.10. If two ratings are potentially applicable, the higher rating 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. In determining the current level of impairment, the disability must be considered in the context of the whole recorded history, including service medical records. 38 C.F.R. § 4.2. The Court has held that, at the time of the assignment of an initial rating for a disability following an initial award of service connection for that disability, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). As the Veteran appealed the initial rating that the RO assigned for asthma, the Board will consider whether a higher rating is warranted for any period since the effective date of service connection. The rating schedule provides the following criteria for evaluating bronchial asthma: FEV-1 less than 40-percent predicted, or; FEV-1/FVC less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications ................................................ 100 percent FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids ............................................................... 60 percent FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication ......... 30 percent FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy ...................................................... 10 percent 38 C.F.R. § 4.97, Diagnostic Code 6602. During the Veteran's service, clinicians treated his asthma with inhalational medication, including daily nebulizer treatment. On pulmonary function testing (PFT) in October 2004, FEV-1 was not less than 56 percent predicted and FEV-1/FVC was not less than 56 percent. After service, on VA examination in July 2005, the Veteran reported having asthma attacks about twice a month. He stated that he used Theophylline twice a day, Advair once a day, and Albuterol through a nebulizer one to two times per month. Records of VA treatment of the Veteran from 2006 forward show ongoing treatment for asthma. In December 2008, a clinician diagnosed bronchitis, and prescribed a five day course of prednisone. More recently, clinicians have prescribed the inhalational corticosteroid Mometasone. In the March 2009 Travel Board hearing, the Veteran reported that treatment for his asthma included two different corticosteroids, and also Theophylline twice a day. On VA examination in January 2012, it was noted that the Veteran had asthma diagnosed in 2004. He had not had any asthma attacks or exacerbations in the year preceding the January 2012 examination. The examiner found that the Veteran's asthma did not require the use of oral or parenteral corticosteroid medications. The Veteran's asthma required treatment with daily inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. On PFT, FEV-1 was not less than 56 predicted, and FEV-1/FVC was not less than 56 percent. The examiner stated that the Veteran's asthma did not affect his ability to work. Medical records from 2004 forward show that the effects of and treatment for the Veteran's asthma have not met any of the criteria for a rating higher than 30 percent. PFT results have not been in a range that warrants a rating higher than 30 percent. The Veteran has not had exacerbations that required at least monthly visits to a physician. Treatment has not included at least three courses a year of oral or parenteral corticosteroids. The Board therefore denies a rating higher than the existing 30 percent rating. When there is an exceptional disability picture, such that the rating schedule criteria do not reasonably describe a claimant's disability level and symptomatology, an RO may refer a case to the VA Under Secretary for Benefits or to the Director of the VA Compensation and Pension Service for consideration of an extraschedular rating. See 38 C.F.R. § 3.321(b)(1) (2012); see also Thun v. Peake, 22 Vet. App. 111, 115 (2008). Extraschedular ratings are limited to cases in which it is impractical to apply the regular standards of the rating schedule because there is an exceptional or unusual disability picture, with such related factors as frequent hospitalizations or marked interference with employment. 38 C.F.R. § 3.321(b)(1). The Veteran's asthma has not required frequent hospitalizations, and has not markedly interfered with his capacity for employment. The 30 percent rating under the regular rating schedule is adequate to address the effects of the Veteran's asthma. The rating criteria provide for a higher rating for more severe symptoms and effects. It is not necessary to refer the rating of his asthma for consideration of extraschedular ratings. The Court has indicated that in claims for increased ratings the Board must consider whether the record raises the issue of unemployability. See Rice v. Shinseki, 22 Vet. App. 447 (2009). In this case, the Veteran has a combined schedular rating of 100 percent. Therefore, it is not necessary to address whether the record raises the issue of a total (100 percent) rating based on unemployability. ORDER Entitlement to service connection for hypertension is granted. Entitlement to a disability rating higher than 30 percent for asthma is denied. ______________________________________________ MICHELLE L. KANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs