Citation Nr: 1340887 Decision Date: 12/11/13 Archive Date: 12/20/13 DOCKET NO. 03-23 190 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUE 1. Entitlement to a compensable evaluation for infertility. 2. Entitlement to an initial compensable evaluation for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD S. Lipstein INTRODUCTION The Veteran served on active duty from November 1986 to August 1996 and from August 2004 to January 2006. The Veteran reenlisted with the United States Army on January 19, 2007 for a period of four years. This case comes before the Board of Veterans' Appeals (Board) on appeal from a February 2003 rating decision and July 2004 Decision Review Officer (DRO) decision of the Waco, Texas, Department of Veterans Affairs (VA) Regional Office (RO). In the February 2003 rating decision, the RO continued the noncompensable evaluation for infertility. The July 2004 DRO decision granted service connection for hypertension and assigned a noncompensable evaluation, effective May 27, 2003. In September 2007, May 2008, March 2010, and May 2013, the Board remanded the claims for additional development and adjudicative action. The Board has a duty to ensure compliance with its remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). For reasons explained in greater detail below, however, the Board does find substantial compliance with its remand instructions, and determines that the case may move forward without prejudice to the Veteran. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (holding that only substantial compliance with the terms of the Board's remand would be required, not strict compliance). This appeal was processed using the Virtual VA paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record. FINDINGS OF FACT 1. The Veteran's infertility does not cause complete atrophy of both testicles, or any renal dysfunction, voiding dysfunction, abnormal urinary frequency, or obstructed voiding. 2. The Veteran's hypertension has required continuous medication and is not productive of diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, and there is no history of diastolic pressure predominantly 100 or more. CONCLUSIONS OF LAW 1. For the entire period on appeal, the criteria for a compensable evaluation for infertility have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.115(a)(b), Diagnostic Codes (DCs) 7599-7523 (2013). 2. For the entire period on appeal, the criteria for a compensable evaluation for hypertension have not been met. 38 U.S.C.A. §§ 1155 5107 (West 2002); 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veterans Claims Assistance Act of 2000 The Veterans Claims Assistance Act of 2000 (VCAA), codified in part at 38 U.S.C.A. §§ 5103, 5103A, and implemented at 38 C.F.R. § 3.159, amended VA's duties to notify and assist a claimant in developing the information and evidence necessary to substantiate a claim. Under 38 U.S.C.A. § 5103, VA must notify the claimant of any information or evidence not of record that is necessary to substantiate the claim and that information or evidence VA will seek to provide, and what parts VA expects the claimant to provide. 38 C.F.R. § 3.159(b). VA must provide such notice to a claimant prior to an initial unfavorable decision on a claim for VA benefits by the agency of original jurisdiction (AOJ), even if the adjudication occurred prior to the enactment of the VCAA. See Pelegrini v. Principi, 18 Vet. App. 112, 119-120 (2004). VCAA requirements of 38 U.S.C.A.§ 5103(a) and 38 C.F.R. § 3.159(b) apply to all elements of a claim for service connection, so that VA must provide notice that a disability rating and an effective date will be assigned if service connection is awarded. Dingess v. Nicholson, 19 Vet. App. 473 (2006); aff'd sub nom. Hartman v. Nicholson, 483 F.3d 1311 (2007). As to the infertility issue, the notification obligation was accomplished by way of letters from the RO to the Veteran dated in November 2002 and March 2006. The RO has provided adequate notice of how effective dates are assigned and the claim was readjudicated in an August 2013 supplemental statement of the case. To the extent the Veteran did not receive full notice prior to the initial decision, after pertinent notice was provided he was afforded a meaningful opportunity to participate in the adjudication of the claim on appeal. With respect to the notice requirements regarding entitlement to a compensable initial rating for the service-connected hypertension, the United States Court of Appeals of the Federal Circuit (Federal Circuit) has held that once the underlying claim is granted further notice as to downstream questions, such as the effective date, is not required. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007). Accordingly, VA satisfied its duty to notify the Veteran under the VCAA in accordance with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b)(1). The record also reflects that VA has made reasonable efforts to obtain relevant records adequately identified by the Veteran. Specifically, the information and evidence that have been associated with the claims file include the Veteran's VA treatment records and examination reports. The VA examiners were provided with an accurate history, the Veteran's history and complaints were recorded, the examination reports set forth detailed examination findings in a manner that allows for informed appellate review under applicable VA laws and regulations, and the examiners offered the necessary findings. The VA examination reports are sufficient and adequate for rating purposes. In having the Veteran undergo a VA examination in August 2013, and readjudicating the claims, there was compliance with the May 2013 remand directive as there is now sufficient information and evidence to adjudicate the issues. See Stegall v. West, 11 Vet. App. 268 (1998) (where the remand orders of the United States Court of Appeals for Veterans Claims (Court) or Board are not complied with, the Board itself commits error as a matter of law when it fails to ensure compliance, and further remand will be mandated). See also Dyment v. West, 13 Vet. App. 141, 146-47 (1999); D'Aries v. Peake, 22 Vet. App. 97, 105 (2008) (discussing situations when it is alternatively permissible to have "substantial" compliance with a remand directive, even if not "exact" or "total" compliance). Thus, the Board finds that the RO complied with the mandates of its remand. See Stegall, supra, (finding that a remand by the Board confers on the Veteran the right to compliance with its remand orders). All relevant facts have been properly developed, and that all evidence necessary for equitable resolution of the issues on appeal has been obtained. The Veteran and his representative have been accorded ample opportunity to present evidence and argument in support of his appeal. No further assistance with the development of evidence is required. Increased Rating Criteria Disability evaluations are determined by the application of a schedule of ratings which 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. In Fenderson v. West, 12 Vet. App. 119, 126 (1999), the Court noted a distinction between an appeal involving the Veteran's disagreement with the initial rating assigned at the time a disability is service connected and an appeal where entitlement to compensation already has been established and an increase in the disability rating is at issue. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nonetheless, Court precedent establishes that consideration of the appropriateness of "staged rating" is required under both circumstances. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Infertility Criteria & Analysis The Veteran contends that he is entitled to a compensable rating for his service-connected infertility. Here, service connection for infertility was granted in October 1997 and a noncompensable disability rating was assigned, effective August 13, 1996. A January 2002 rating decision continued the noncompensable disability rating for infertility. The Veteran did not file a notice of disagreement with the January 2002 rating decision and no additional evidence pertinent to the issue was physically or constructively associated with the claims folder within one year of the rating decision. See 38 C.F.R. § 3.156(b); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); see also Buie v. Shinseki, 24 Vet. App. 242, 251-52 (2010). Thus, the January 2002 rating decision became final based on the evidence then of record. 38 U.S.C.A. §§ 7104, 7105 (West 2002); 38 C.F.R. § 20.1105 (2013). In October 2002 the Veteran sought an increased rating for his service-connected infertility. In the February 2003 rating action on appeal, the RO continued the noncompensable rating for infertility under DC 7599-7523. The noncompensable rating remains in effect. The provisions of 38 C.F.R. § 4.27 provide that unlisted disabilities requiring rating by analogy will be coded with the first two numbers of the schedule provisions for the most closely related body part and "99." Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the specific basis for the evaluation assigned. The additional code is shown after a hyphen. Under DC 7523, a 20 percent evaluation is warranted when both testicles are completely atrophied, and a 0 percent evaluation is warranted when one testicle is completely atrophied. Under DC 7525 epididymo-orchitis, chronic, is rated as urinary tract infections. 38 C.F.R. § 4.115 sets forth diseases of the genitourinary system, which are rated under DCs 7500-7531 (renal dysfunction, voiding dysfunction, abnormal urinary frequency, obstructed voiding, and urinary tract infections). A review of the record fails to show that the criteria for the assignment of an increased rating have not been met. The evidence shows that neither of the Veteran's testicles is completely atrophied. On VA examination in August 2013, the VA examiner noted that the testicles were one-third or less normal in size. Complete atrophy was not shown. Similarly, the evidence does not show that the Veteran's infertility causes renal dysfunction, voiding dysfunction, abnormal urinary frequency, obstructed voiding, or urinary tract infections. In August 2013, the Veteran denied a history of voiding dysfunction and recurrent symptomatic urinary tract infections. He also denied a history of chronic epididymitis, epididymo-orchitis or prostatitis. The Veteran is competent to provide evidence about observable symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). However, as a layperson, lacking in medical training and expertise, the Veteran cannot provide a competent opinion on matters as complex as whether his testicles are completely atrophied as these are medical determinations that require medical training. His opinion is far outweighed by the detailed opinion provided by the VA medical professional, which shows that the criteria for a compensable rating for his service connected infertility have not been met. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007); 38 U.S.C.A. § 5107(b). With regard to erectile dysfunction, the Veteran receives special monthly compensation for loss of use of creative organ. No additional consideration in this regard is warranted. At no time during the pendency of his claim has the Veteran's disability met or nearly approximated the respective criteria for a compensable rating, and staged ratings are not for application. See Hart, 21 Vet. App. at 505. In sum, the criteria for a compensable rating for infertility have not been met and the evidence is not in equipoise. The claim is denied. Hypertension A July 2004 rating action granted service connection for hypertension and assigned a noncompensable disability rating effective May 27, 2003. The Veteran appealed this rating. Hypertension is rated under the criteria of 38 C.F.R. § 4.104, DC 7101. 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. 38 C.F.R. § 4.104, Diagnostic Code 7101. 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. A review of the record fails to demonstrate that the assignment of a compensable rating is warranted. Indeed, the Veteran's hypertension has been controlled with continuous medication, but there is no history of diastolic pressure predominantly 100 or more, or evidence of diastolic pressure predominantly 100 or more. There is also no evidence of systolic pressure predominantly 160 or more. VA treatment reports dated from 2001 through 2004 do not show such. Moreover, in August 2013, the Veteran did not have a history of a diastolic blood pressure predominantly 100 or more. His blood pressure readings were 130/84, 128/89, and 126/82. The Veteran has stated that his hypertension would be compensable if he stopped taking his medication. However, DC 7101 takes into account the requirement of continuous medication and additionally requires a history of diastolic pressure of predominantly 100 or more in order to warrant a compensable disability rating. Of note, the examiner added that cardiac stress test (2008), echocardiogram and chest x-ray results (2013) were all normal. Accordingly, the criteria for a compensable rating have not been met. The lay evidence offered by the Veteran does not assert blood pressure readings higher than those noted above, and the Veteran has not asserted disabling symptoms associated with hypertension (dizziness, renal disease, etc.). At no time during the pendency of his claim has the Veteran's disability met or nearly approximated the respective criteria for a compensable rating, and staged ratings are not for application. See Hart, 21 Vet. App. at 505. The evidence is not in equipoise either. Accordingly, the claim is denied. Extraschedular Consideration In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2013). 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 the rating criteria contemplate the Veteran's infertility and hypertension, as the Veteran's infertility is manifested by abnormally soft and small testicles, and the hypertension is manifested by requiring hypertensive medication without diastolic pressure predominantly 100 or more. These manifestations are specifically incorporated in the schedular criteria. The rating criteria are therefore adequate to evaluate the Veteran's disabilities on appeal, and referral for consideration of extraschedular rating is not warranted. In 2013, the VA examiner noted that the Veteran's hypertension or isolated systolic hypertension did not impact his ability to work. There is no evidence of his infertility impacting his ability to work either. No consideration of Rice v. Shinseki, 22 Vet. App. 447 (2009) is needed. ORDER Entitlement to a compensable evaluation for infertility is denied. Entitlement to an initial compensable evaluation for hypertension is denied. ____________________________________________ C. CRAWFORD Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs