Citation Nr: 1340082 Decision Date: 12/04/13 Archive Date: 12/18/13 DOCKET NO. 10-03 235 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an initial compensable disability evaluation for hypertension. 2. Entitlement to an initial compensable disability evaluation for erectile dysfunction. ATTORNEY FOR THE BOARD D. Johnson, Counsel INTRODUCTION The Veteran served on active duty from October 1965 to October 1968. This case comes before the Board of Veterans' Appeals (Board) on appeal from a July 2008 rating decision of the Regional Office (RO) in Roanoke, Virginia that granted service connection for hypertension and erectile dysfunction and assigned each disability a noncompensable evaluation that was effective April 22, 2008. The Veteran was scheduled to testify at a hearing before a member of the Board in March 2013 at the RO. The Veteran failed to appear for the hearing without explanation. Therefore, the request for a hearing is considered withdrawn. The appeal was remanded for additional development in May 2013. Of note, this appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this appellant's case should take into consideration the existence of this electronic record. On VA examination in June 2013, it was noted that the Veteran experienced a voiding dysfunction that caused urinary frequency. The Veteran may wish to pursue of a claim of entitlement to service connection for urinary frequency due to service-connected disability. The matter is referred to the RO for appropriate action. FINDINGS OF FACT 1. Since the grant of service connection, hypertension has manifested with diastolic pressure predominantly less than 100, systolic pressure predominately less than 160, or a history of diastolic pressure predominantly less than 100 with continuous medication required for control. 2. Since the grant of service connection, erectile dysfunction has manifested with loss of erectile power, but without visible deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.104, DC 7101 (2013). 2. The criteria for an initial compensable rating for erectile dysfunction have not been met. 38 U.S.C.A. § 1155, 5107 (West 2002); 38 C.F.R. §§ 3.321(b)(1), 4.7, 4.115B, DC 7522 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist VA has a duty to notify and assist the Veteran in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2013). In this decision, the claims for higher initial ratings arise from disagreement with the initial disability ratings assigned following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). Additionally, VA has adequately fulfilled its obligation to assist the Veteran in obtaining the evidence necessary to substantiate his claim. See 38 U.S.C.A. § 5103A (West 2002 & Supp. 2013) and 38 C.F.R. § 3.159(c) (2013). All available evidence pertaining to the Veteran's claim has been obtained. Service treatment records and post-service medical records have been associated with the claims file. The Veteran has not indicated there are any additional records that VA should seek to obtain on his behalf. The Veteran also was provided with VA examinations in conjunction with his claim. The Board finds that the VA examination reports are adequate for the purposes of deciding the claim on appeal because the examiners conducted clinical evaluations, reviewed the medical history, and described the disabilities in sufficient detail so that the Board's evaluation is an informed determination. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stefl v. Nicholson, 21 Vet. App. 120, 124-25 (2007); Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008). This appeal was remanded in May 2013 for the RO to review additional evidence that was received from the Veteran after the case was certified to the Board, afford him with new VA examinations, and obtain any additional, outstanding evidence. There has been compliance with the remand directives. Laws and Regulations Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C.A. § 1155 (West 2002); 38 C.F.R. Part 4 (2013). When a question arises as to which of two ratings apply under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2013). In every instance where the schedule does not provide a compensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. The Veteran's entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1 (2013); Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where, as here, the question for consideration is the propriety of the initial evaluation assigned, consideration of the evidence since the effective date of the award of service connection and consideration of the appropriateness of a staged rating are required. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Also, staged ratings are appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). In making all determinations, the Board must fully consider the lay assertions of record. A layperson is competent to report on the onset and continuity of his current symptomatology. See Layno v. Brown, 6 Vet. App. 465, 470 (1994) (a Veteran is competent to report on that of which he or she has personal knowledge). Analysis Hypertension The Veteran's service-connected hypertension has been rated as noncompensable since the grant of service connection. The Veteran asserts that he meets the criteria for a compensable disability rating. Hypertensive vascular disease (hypertension and isolated systolic hypertension) is rated under DC 7101. A 10 percent disability rating is assigned when the diastolic pressure is 100 or more, or systolic pressure predominantly 160 or more; or minimum elevation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating contemplates diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned when the diastolic pressure is predominantly 120 or more. Finally, a 60 percent rating is assigned when the diastolic pressure is predominantly 130 or more. The 60 percent rating is the highest rating assignable under this diagnostic code. 38 C.F.R. § 4.104, DC 7101 (2013). Based on a review of the evidence, the Board finds that the criteria for a compensable rating have not been met. The Board acknowledges that the Veteran has been on medication to control his hypertension. However, there is no evidence showing a history of diastolic blood pressure predominantly 100 or more or of systolic pressure predominantly 160 or more. The blood pressure readings documented in the service treatment records have been reviewed and considered in the evaluation of the Veteran's hypertension disability. The cumulative blood pressure readings in service do not reflect a history of systolic blood pressure predominantly 160 or more or diastolic blood pressure of 100 or more. The VA and private treatment records also confirm that since the grant of service connection the Veteran's blood pressure has manifested with diastolic pressure predominantly less than 100 and systolic pressure predominantly less than 160. At a VA diabetes examination in April 2008, the Veteran's three blood pressure readings were 130/76, 130/78, and 134/78. The examiner noted that he was treated with medication. At a VA-contracted examination in May 2008, the Veteran's blood pressure was recorded as 130/76, 130/78, and 134/78. Treatment for his hypertension included blood pressure medications. VA treatment records show the Veteran's blood pressure was recorded as 153/83 and 130/90 in September 2009, and recorded as 134/80 and 136/80 in October 2009. Private treatment records show the Veteran's blood pressure was monitored as part of his participation in a Diabetes Prevention Program Outcome Study. The Veteran's blood pressure was 138/90 in April 2008, 136/78 and 134/80 in October 2008, and 126/80 and 124/80 in April 2009. In October 2009 R. W., a provider affiliated with the Diabetes Prevention Program Outcome Study, indicated the Veteran's blood pressure readings were 136/80 and 134/80, with a mean blood pressure of 135/80. A private treatment record from Dr. Kator contains a list of blood pressure readings recorded throughout October 2009 and November 2009. In October 2009 blood pressure readings were 126/80, 120/78-80, 128/78-83, 126/81-81, 136/77-72, 143/79-91, 150/78-86, 122/72-83, 126/77-74, 108/71-97, 118/74-78, 120/76-89, 122/81-90, 128/76-84. In November 2009, the blood pressure readings were 126/75-74, 134/81, 163/89-126 and 111/73-113. In April 2010 R.W. indicated the Veteran's blood pressure readings were 140/90 and 130/80. Additional blood pressure readings recording in April 2010 were 132/84 and 132/80, with a mean blood pressure of 132/82. Additional VA treatment records show the Veteran's blood pressure was recorded as 128/70, 130/80 and 146/74 in January 2010, 126/69 in June 2011, 137/77 and 130/75 in February 2013, and 148/81 in May 2013. Records from Dr. Schumann reflect blood pressure readings were recorded from January 2008 to April 2013. The readings were as follows: 135/90 in January 2008, 132/68 in November 2009, 146/82 in May 2010, 142/62 in September 2011, 125/95 in December 2011, 130/80 in January 2012, 120/78 in May 2012, 132/76 in August 2012, 132/78 and 136/87 in January 2013, 138/82 in February 2013, and 128/73 in April 2013. A treatment note from Dr. Schumann dated in November 2009 reveals that the Veteran's blood pressure typically fluctuated. The Veteran's daily blood pressure logs were noted to range from 120-160's/ 70-80's, but the daily blood pressure average was 120/70's. A treatment note dated in May 2010 revealed that the Veteran's blood pressure readings at home averaged 120's-130's/70's-80's. In March 2013 R. W. indicated the Veteran had blood pressure readings of 132/74 and 128/74, with a mean blood pressure readings of 130/74. At a VA examination in June 2013, a VA examiner reported that the Veteran does not have a history of a diastolic blood pressure elevation that was predominantly 100 or more. In addition, the blood pressure readings at the time of the examination were 112/60, 112/60 and 112/60. In light of these findings, the preponderance of the evidence is against the assignment of a compensable disability rating for the Veteran's service-connected hypertension. Although the Veteran requires medication for control of his blood pressure, he does not have a history of diastolic blood pressure readings that are predominantly 100 or more. The blood pressure readings documented since the grant of service connection also do not reflect a history of systolic blood pressure predominantly 160 or more. The Board is mindful of the two blood pressure readings in November 2009 that were 163/89-126 and 111/73-113; however, these blood pressures are not reflective of the predominant diastolic and systolic blood pressures noted during the appeal period. While the Board is certainly sympathetic to the Veteran's claim, the blood pressure readings throughout the appeal period do not warrant a compensable rating, even with consideration of the fact that he requires medicine to control his hypertension. See Jones v. Shinseki, 26 Vet. App. 56, 61-63 (2012) (holding that the Board may deny entitlement to an increased rating on the basis of relief provided by medication when those effects are specifically contemplated by the rating criteria). The preponderance of the evidence is against the claim and it must be denied. Erectile Dysfunction The Veteran's erectile dysfunction has been rated as noncompensable since the grant of service connection. A compensable rating is desired. Erectile dysfunction is rated analogously under DC 7522 for "deformity of the penis with loss of erectile power." 38 C.F.R. § 4.115b, DC 7522. A 20 percent evaluation is the only compensable rating assignable under this diagnostic code. In order to be assigned a 20 percent evaluation, two distinct elements are required: the Veteran must have a penile deformity and there must be evidence of loss of erectile power. Id. In statements submitted in support of his appeal, the Veteran has described in detail the difficulties that he experiences due to his impaired sexual function. While the Board is certainly sympathetic to the Veteran's difficulties, the criteria for a compensable rating have not been met at any point during the appeal period, even with consideration of the fact that the Veteran has loss of erectile power. In reaching this conclusion, the Board notes that the evidence does not indicate, nor does the Veteran contend, that he has any actual visible deformity of the penis. At a VA diabetes examination in April 2008, the Veteran reported that he was impotent. However, on physical examination, examination of the testicles and penis revealed normal findings. At a VA-contracted examination in May 2008, the Veteran stated that he could not achieve and maintain an erection. He noted that treatment had been in the form of oral medication and a testosterone patch. However, on physical examination, his penis and testicles were noted to be normal. Dr. Schumann's private treatment notes reflect treatment for erectile dysfunction, but do not include any findings of penile deformity. VA treatment notes likewise indicate treatment for impotence, but are negative for a penile deformity. At a VA examination in June 2013 an examiner performed a clinical evaluation and noted that there is no abnormality of the penis or testes. The evidence clearly demonstrates that the Veteran has impairment due to loss of erectile power; however, without evidence of deformity of the penis, there is no basis for the assignment of a compensable evaluation for erectile dysfunction. No evidence of any penis removal or penis removal of glans, or testis atrophy or removal, is present either. 38 C.F.R. § 4.115b, Diagnostic Codes 7520-7524 (2013). At this time, the Board notes that the Veteran is in receipt of special monthly compensation under the provisions of 38 C.F.R. § 3.350(a) on account of loss of use of a creative organ. Given the absence of any deformity of the penis, the weight of the evidence is therefore against the claim and a compensable schedular rating for erectile dysfunction is not warranted. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.7, 4.21 (2013). Extraschedular Ratings and TDIU In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The Board finds that neither the first nor second Thun element is satisfied here. Throughout the appeal, the Veteran's service-connected hypertension has been manifested by diastolic pressure predominantly less than 100, systolic pressure predominantly less than 160, or a history of diastolic pressure predominantly less than 100 with continuous medication required for control. His service-connected erectile dysfunction has been manifested by an inability to achieve and maintain an erection without physical deformity of the penis. These manifestations are contemplated in the respective rating criteria. See 38 C.F.R. § 4.101, DC 7101 (providing ratings for hypertensive vascular disease on the basis of diastolic and systolic blood pressure); and 38 C.F.R. § 4.115b, DC 7522 (providing a compensable rating on the basis of penile deformity and loss of erectile power). Moreover, with respect to the erectile dysfunction disability, the Board notes that in every instance where the schedule does not provide a compensable evaluation for a diagnostic code, a noncompensable evaluation will be assigned when the requirements for a compensable evaluation are not met. See 38 C.F.R. § 4.31. In other words, the schedular criteria for erectile dysfunction suggest that in the absence of actual penile deformity and loss of erectile power, a noncompensable rating is to be assigned. Given the ways in which the rating schedule contemplates these two disabilities, the Board concludes that the schedular rating criteria reasonably describe the Veteran's hypertension disability picture, which is manifested by diastolic pressure predominantly less than 100, systolic pressure predominantly less than 160, or a history of diastolic pressure predominantly less than 100 with continuous medication required for control with continuous medication required for control, as well as his erectile dysfunction which is measured by an inability to achieve and maintain an erection but without physical deformity of the penis. In short, there is nothing exceptional or unusual about the Veteran's hypertension and erectile dysfunction disorders because the respective rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet.App. at 115. Even if the Board were to find that step one of Thun had been satisfied, extraschedular referral would still not be warranted because the Board also finds that Thun step two is not satisfied. See Johnson v. Shinseki, 26 Vet.App. 237, 247 (2013) (en banc) (error in Thun step one analysis is harmless were Board makes an adequate finding that Thun step two is not satisfied). With respect to the second Thun element, there is no evidence of frequent hospitalization or marked interference with employment caused by either disability. The rating criteria are therefore adequate to evaluate the Veteran's disability and referral for consideration of an extraschedular rating is not warranted. Finally, the Board has contemplated whether consideration of a total disability rating based on individual unemployability (TDIU) is warranted. A TDIU is an element of all appeals for a higher rating. Rice v. Shinseki, 22 Vet. App. 447 (2009). As there is no evidence of unemployability due to the Veteran's service-connected disabilities of hypertension and erectile dysfunction, the question of entitlement to a TDIU is not raised. ORDER An initial compensable disability evaluation for hypertension is denied. An initial compensable disability evaluation for erectile dysfunction is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs