Citation Nr: 1343067	
Decision Date: 12/27/13    Archive Date: 01/07/14

DOCKET NO.  11-18 011	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Hartford, Connecticut


THE ISSUES

1. Entitlement to an initial compensable disability rating for service-connected hypertension.

2. Entitlement to an increased disability rating, in excess of 30 percent, for service-connected anxiety disorder.


REPRESENTATION

Appellant represented by:	Disabled American Veterans


WITNESS AT HEARING ON APPEAL

The Veteran



ATTORNEY FOR THE BOARD

H. Yoo, Counsel


INTRODUCTION

The Veteran served on active duty from June 1966 to June 1968.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Newington, Connecticut, and has subsequently been transferred to the Harford, Connecticut, RO.
 
In June 2012, the Board remanded the Veteran's claim for entitlement to service connection for hypertension, to include secondary to type II diabetes mellitus, to include secondary to anxiety disorder, for further development.  Subsequently, this issue was granted in the July 2012 rating decision.  The Veteran timely submitted a substantive appeal.  As such, this issue is before the Board.

In June 2013, the Veteran testified before a Veterans Law Judge via videoconference hearing.  A transcript of that hearing is associated with the claims file.  

A review of the Virtual VA paperless claims processing system does not reveal any additional documents pertinent to the present appeal.

The issue of entitlement to an increased disability rating, in excess of 30 percent, for service-connected anxiety disorder is addressed in the REMAND portion of the decision below and is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC.  VA will notify the appellant if additional action is required on his part.


FINDING OF FACT

During the period of appeal, the Veteran did not have diastolic pressure predominantly 100 or more, he did not have systolic pressure predominantly 160 or more, and he did not have a history of diastolic pressure predominantly of predominantly 100 or more although he required continuous medication for control.


CONCLUSION OF LAW

The criteria for a compensable disability rating for the Veteran's service-connected hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 3.102, 4.1, 4.2, 4.3, 4.7, and 4.104, Diagnostic Code 7101 (2013). 


REASONS AND BASES FOR FINDING AND CONCLUSION

I. The Veterans Claims Assistance Act of 2000 (VCAA)

VA has a duty to notify and assist claimants 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). 

Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim.  38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); Quartuccio v. Principi, 16 Vet. App. 183 (2002). 

Proper notice from 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 seek to provide; and (3) that the claimant is expected to provide in accordance with 38 C.F.R. § 3.159(b) (1). 

The Veteran's claim arises from his disagreement with the initial evaluation assigned following the grant of service connection.  Courts have held that 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), Goodwin v. Peake, 22 Vet. App. 128, 134 (2008), Dunlap v. Nicholson, 21 Vet. App. 112 (2007).  Therefore, no further notice is required for this claim. 

VA must also make reasonable efforts to assist the Veteran in obtaining evidence necessary to substantiate the claim for the benefit sought unless no reasonable possibility exists that such assistance would aid in substantiating the claim.  This duty includes assisting with the procurement of relevant records, including pertinent treatment records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. 

The Board also concludes VA's duty to assist has been satisfied.  The Veteran's service medical records and VA and private medical records are in the file.  The record indicates the VA has attempted to obtain, to the extent possible, all outstanding medical records identified by the Veteran.  The Veteran has at no time referenced additional outstanding records that he wanted VA to obtain or that he felt were relevant to the claim.

The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on a claim, as defined by law.  The record indicates that the Veteran was afforded a VA examination in July 2012.  The July 2012 VA examination report involved review of the claims file and thorough examination of the Veteran and the opinion was supported by sufficient rationale.  Therefore, the Board finds that the examination is adequate for rating purposes.  See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (affirming that a medical opinion is adequate if it provides sufficient detail so that the Board can perform a fully informed evaluation of the claim).  Given the foregoing, the Board finds that the VA has substantially complied with the duty to obtain the requisite medical information necessary to make a decision on the Veteran's claim decided herein.

Furthermore, in June 2013 the Veteran testified at a Board hearing at the RO over which the undersigned Veterans Law Judge (VLJ) presided.  The provisions of 38 C.F.R. § 3.103(c)(2) impose two distinct duties on VA employees, including Board personnel, in conducting hearings: the duty to explain fully the issues and the duty to suggest the submission of evidence that may have been overlooked.  Bryant v. Shinseki, 23 Vet. App. 488 (2010).  During the Board hearing, the VLJ clarified the issue on appeal and inquired as to the etiology of the Veteran's asserted symptoms.  The Veteran was offered an opportunity to ask the undersigned questions regarding his claim.  The Board, therefore, concludes that it has fulfilled its duty under Bryant.

As there is no indication that any failure on the part of VA to provide additional notice or assistance reasonably affects the outcome of this case, the Board finds that any such failure is harmless.  See Newhouse v. Nicholson, 497 F.3d 1298 (Fed. Cir. 2007).  Importantly, the Board notes that the Veteran is represented in this appeal.  See Overton v. Nicholson, 20 Vet. App. 427, 438 (2006).  The Veteran has submitted arguments and evidence in support of the appeal.  Based on the foregoing, the Board finds that the Veteran has had a meaningful opportunity to participate in the adjudication of his claim such that the essential fairness of the adjudication is not affected.

II. The Merits of the Claim

Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is 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.  If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  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. 

Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function, will be expected in all cases.  38 C.F.R. § 4.21.  Therefore, the Board has considered the potential application of various other provisions of the regulations concerning VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability in reaching its decision.  Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). 

In deciding the Veteran's increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505, 509 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period.  In Fenderson, the Court held that evidence to be considered in the appeal of an initial assignment of a rating disability was not limited to that reflecting the then current severity of the disorder.  In that decision, the Court also discussed the concept of the "staging" of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period.  Id. at 126.  Hart appears to extend Fenderson to all increased evaluation claims.

It is the Board's responsibility to evaluate the entire record on appeal.  See 38 U.S.C.A. § 7104(a).  The Board has thoroughly reviewed all the evidence in the Veteran's claims folder.  Although it has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, all of the evidence submitted by the Veteran or on his behalf.  See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (Board must review entire record, but does not have to discuss each item of evidence).

The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim.  The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein.  See Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the veteran). 

The Board must assess the credibility and weight of all 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 Veteran.  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 all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied.  See Gilbert v. Derwinski, 1 Vet. App. 49 (1990).

The Veteran's hypertension has been evaluated as noncompensably disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101.  Under that Diagnostic Code, hypertensive vascular disease (hypertension and isolated systolic hypertension) with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more warrants a 10 percent evaluation.  Additionally, 10 percent is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  A 20 percent evaluation is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more.  A 40 percent evaluation is assigned when diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted when diastolic pressure is predominantly 130 or more.

Note (1) of Diagnostic Code 7101 provides that 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 that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm.

In June 2013, the Veteran testified that he has been on Lisinopril since 2007.

Private treatment records from the Veteran's private physician, Dr. J. M. Carbone, indicate the Veteran was placed on Lisinopril in August 2006 and his blood pressure reading was 146/84 at that time. 

According to the evidence of record, the Veteran's blood pressure readings were the following prior to August 2006:

Date
Blood Pressure
January 20, 2000
120/80
March 30, 2000
132/90
October 1, 2002
120/80
June 5, 2003
136/86
July 12, 2006
154/88
June 6, 2006
164/94
June 26, 2006
148/80

The Veteran's blood pressure readings were the following from July 2007 to December 2012:

Date
Blood Pressure
July 29, 2007
118/74
July 28, 2008
131/90
November 12, 2008
153/81
February 9, 2009
127/83
May 14, 2009
142/91
August 3, 2009
138/80
September 11, 2009
135/82
September 28, 2009
120/82
September 30, 2009
120/79
November 18, 2009
145/85
May 31, 2010
136/71
May 5, 2010
117/73
May 13, 2010
147/86
June 25, 2010
110/60
September 16, 2010
159/87
September 29, 2010
122/77
December 3, 2010
131/77
December 15, 2010
130/80
March 17, 2011
140/83
March 30, 2011
130/78
April 7, 2011
149/90
August 10, 2011
128/77
August 19, 2011
128/77
September 21, 2011
139/82
October 17, 2011
139/78
May 17, 2012
137/87
May 21, 2012
135/78
June 21, 2012
119/66
June 27, 2012
135/85
September 18, 2012
127/77
September 24, 2012
125/65
November 30, 2012
122/78
December 6, 2012
122/60
December 10, 2012
120/68
December 20, 2012
130/78

The Veteran underwent a VA examination in July 2012 where his diagnosis was confirmed.  It was noted that he is current taking continuous medication for hypertension or isolated systolic hypertension.  Current blood pressure readings were 132/76 on July 2, 2012; 137/87 on May 17, 2012; and 139/78 on October 17, 2011.  The examiner noted that the Veteran's hypertension did not impact his ability to work.  

Based on the evidence of record, the Veteran does not meet the criteria for a compensable rating for his hypertension.  Again, under the applicable Diagnostic Code, there are three ways to qualify for a compensable rating: first, the Veteran's diastolic pressure would have to be predominantly 100 or more; second, his systolic pressure would have to be predominantly 160 or more; and third, if the Veteran shows a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 

With respect to the first, at no time has his diastolic pressure been over 100.  His highest readings came in May 14, 2009, when his diastolic pressures were at 91.  The evidence indicates that his diastolic pressure ranged from 65 to 91 since July 2007 to December 2012. 

With respect to the second criterion, the Board notes that the Veteran's systolic readings were never of 160 or greater.  His highest systolic pressure was 159 on September 16, 2010.  The evidence indicates that his systolic pressure ranged from 110 to 159 since July 2007.  His readings were thus not predominantly 160 or greater, and he therefore does not qualify for a compensable rating under this criterion. 

Lastly, the Veteran does not qualify for a compensable rating under the third criterion, either.  The objective evidence of record reflects that the Veteran does take medication to control his blood pressure.  However, to qualify for a compensable rating, the Veteran must be taking medication and have a history of diastolic pressure of 100 or more.  In the Veteran's case, this has not been demonstrated.  The diastolic pressure prior to the Veteran taking Lisinopril continuously was 94 on June 6, 2006.  As such, he does not qualify for a compensable rating under this criterion.

In sum, the medical evidence does not support the assignment of a rating higher than 0 percent for hypertension.  To the extent that the Veteran asserts entitlement to a higher rating for his hypertension, while we sympathize with the Veteran's complaints, entitlement to an evaluation in excess of 0 has not been demonstrated in the present case.  See Hart v. Mansfield, 21 Vet. App. 505 (2007).  Therefore, entitlement to an increased rating for the impairment associated with hypertension is not warranted. 

The Board also has considered whether consideration of total disability rating based on individual unemployability (TDIU), pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009) is warranted.  However, there is insufficient evidence in the record that the Veteran's service-connected disability have rendered him unemployable either separately or in combination with each other.  The Veteran testified he was employed at Wesleyan University working at the mailroom.  The July 2012 VA examiner did not find the Veteran's hypertension impacted his ability to work.   As such, this does not demonstrate that the Veteran has been rendered unemployable. As the issue of entitlement to a TDIU has not been raised by the evidence of record, it is inapplicable in this case.

Extraschedular Consideration

Pursuant to § 3.321(b)(1), the Under Secretary for Benefits or the Director, Compensation and Pension Service, is authorized to approve an extraschedular evaluation if the case "presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards."  38 C.F.R. § 3.321(b)(1) (2013). 

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).  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 is reasonably raised by the evidence of record.  Barringer v. Peake, 22 Vet. App. 242 (2008). 

If the evidence raises the question of entitlement to an extraschedular rating, the threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate.  Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability.  Thun v. Peake, 22 Vet. App. 111 (2008). 

Under the approach prescribed by VA, if the criteria reasonably describe the claimant's disability level and symptomatology, then the claimant's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is, therefore, adequate, and no referral is required.  In the second step of the inquiry, however, if the schedular evaluation does not contemplate the claimant's level of disability and symptomatology and is found inadequate, the RO or Board must determine whether the claimant's exceptional disability picture exhibits other related factors such as those provided by the regulation as "governing norms."  38 C.F.R. 3.321(b)(1) (related factors include "marked interference with employment" and "frequent periods of hospitalization"). 

The Board finds that there has been no showing by the Veteran his service-connected disorder has resulted in marked interference with employment or necessitated frequent periods of hospitalization beyond that contemplated by the rating schedule.  There is no indication of marked interference with employment due to the disability.  As previously stated, the Veteran is currently employed.  There is also no evidence in the medical records of an exceptional or unusual clinical picture.  In the absence of such factors, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met.  See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995).


ORDER

Entitlement to an initial compensable disability rating for service-connected hypertension is denied.







REMAND

The Board has determined that further development action is required before appellate review can proceed.  Here, a remand is required to ensure that there is a complete record upon which to decide the Veteran's appeal and to afford him every possible consideration.

With respect to the issue on appeal, the Veteran contends that the current disability rating does not accurately reflect his current symptomatology of his anxiety disorder.  During the June 2013 Board hearing, the Veteran stated that his disability has worsened since the last VA mental disorders examination, which took place in March 2011.

VA is generally required to make reasonable efforts to assist a claimant in obtaining evidence necessary to substantiate the claim.  38 U.S.C.A. § 5103A(a) (West 2002). VA's duty to assist includes providing a new  medical examination when a Veteran asserts or provides evidence that a disability has worsened, or in cases where the available evidence is too old for an adequate evaluation of the current condition.   Weggenmann v. Brown, 5 Vet. App. 281, 284 (1993); see also Caffrey v. Brown, 6 Vet. App. 377, 381 (1994) (the Board should have ordered a contemporaneous examination of Veteran because a 23-month old examination was too remote in time to adequately support the decision in an appeal for an increased rating); see also Allday v. Brown, 7 Vet. App. 517, 526 (1995) (where record does not adequately reveal current state of claimant's disability, fulfillment of statutory duty to assist requires a contemporaneous medical examination, particularly if there is no additional medical evidence that adequately addresses the level of impairment of the disability since the previous examination).

Since the Veteran contends that his service-connected anxiety disorder has worsened since the most recent VA examination, the VA is required to afford him a new contemporaneous VA examination to assess the current nature, extent and severity of his disability.  See Palczewski v. Nicholson, 21 Vet. App. 174, 181 (2007).  Thus, the Board must remand the issue in order to afford the Veteran another VA examination.

Accordingly, the case is REMANDED for the following action:

1. The Veteran should be requested to provide the names, addresses and approximate dates of treatment of all medical care providers, VA and non-VA, who have treated him for the disability on appeal.  After the Veteran has signed the appropriate releases, those records should be obtained and associated with the claims folder.  Appropriate efforts must be made to obtain all available VA treatment records.  All attempts to procure records should be documented in the file.  If the AMC/RO cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file.  The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review.

2. Upon completion of the above instruction, the AMC/RO should schedule the Veteran for a new examination with an appropriate specialist.  The claims folder, to include any relevant records contained in Virtual VA, must be made available to the examiner. The examiner must acknowledge his/her review of Virtual VA, and specifically state the range of dates of the records reviewed on Virtual VA.  All indicated studies must be performed, and all findings should be reported in detail.

The examiner is to provide a detailed review of the Veteran's pertinent medical history, current complaints, and the nature and extent of his anxiety disorder.  The examiner must provide an opinion concerning the degree of social and occupational impairment resulting from his anxiety, to include whether anxiety disorder alone renders him unemployable.  If the Veteran remains employed, that too should be noted.

A full rationale must be provided for any opinion offered, with a complete discussion of the evidence of record.  

3. Review the examination report to ensure that it is in complete compliance with the directives of this remand.  If the report is deficient in any manner, the AMC must implement corrective procedures.  Stegall v. West, 11 Vet. App. 268, 271 (1998).

4. After completing the above actions, and any other development as may be indicated by any response received as a consequence of the actions taken in the paragraphs above, the claim must be readjudicated.  If the claim is not granted to the Veteran's satisfaction, a supplemental statement of the case must be provided to the Veteran, an adequate opportunity to respond must be provided, and the appeal must thereafter be returned to the Board for further appellate review.
The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

This claim must be afforded expeditious treatment.  The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner.  See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2013).




______________________________________________
F. JUDGE FLOWERS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs