Citation Nr: 1415860 Decision Date: 04/10/14 Archive Date: 04/24/14 DOCKET NO. 09-37 551 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUE Entitlement to an initial compensable rating for hypertension. REPRESENTATION Appellant represented by: The American Legion ATTORNEY FOR THE BOARD R. Casadei, Associate Counsel INTRODUCTION The Veteran, who is the appellant in this case, served on active duty from January 1969 to January 1973. This matter comes before the Board of Veterans' Appeals (Board) from an April 2008 decision from the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the file on the "Virtual VA" system to ensure a complete assessment of the evidence. FINDING OF FACT For the entire initial rating period under appeal, the Veteran's service-connected hypertension has not been manifested by diastolic pressure of predominantly 100 or systolic pressure of predominantly 160 or more; although the Veteran uses constant medication to treat the hypertension, the Veteran does not have a medical history indicating diastolic blood pressure of predominantly 100 or more. CONCLUSION OF LAW For the entire initial rating period under appeal, the criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107(b) (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.1, 4.3, 4.7, 4.10, 4.14, 4.7, 4.104, Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDING AND CONCLUSION Duties to Notify and Assist As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist veterans in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). VA has a duty to notify a veteran of any information and evidence needed to substantiate and complete a claim. 38 U.S.C.A. §§ 5102, 5103. In order to meet the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b), VCAA notice must (1) inform the veteran about the information and evidence necessary to substantiate the claim; (2) inform the veteran about the information and evidence that VA will seek to provide; and (3) inform the veteran about the information and evidence the veteran is expected to provide. VCAA notice should be provided to a veteran before the initial unfavorable agency of original jurisdiction (AOJ) decision on a claim. See Pelegrini v. Principi, 18 Vet. App. 112 (2004). Because this appeal arises from the Veteran's disagreement with the initial ratings following the grant of service connection for hypertension, no additional notice is required. The Court and the United States Court of Appeals for the Federal Circuit have held that, once service connection is granted the claim is substantiated, additional notice is not required, and any defect in notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). In March 2008, VA provided the Veteran with VA a medical examination to determine the nature and severity of the Veteran's hypertension. As the March 2008 VA medical examination report was written after review of the claims file, an interview with the Veteran, an examination of the Veteran, and contains findings regarding the severity of the Veteran's hypertension, the Board finds that the March 2008 VA medical examination report to be adequate for reading purposes. Under these circumstances, there is no duty to provide an additional medical examination or opinion. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4); see also McLendon v. Nicholson, 20 Vet. App. 79, 83 (2006). In view of the foregoing, the Board finds that VA has fulfilled its duties to notify and assist the Veteran in the claim under consideration. Adjudication of the claim at this juncture, without directing or accomplishing any additional notification and/or development action, poses no risk of prejudice to the Veteran. Bernard v. Brown, 4 Vet. App. 384, 394 (1993). Disability Rating Criteria Disability evaluations are determined by the application of a schedule of ratings that is based on average impairment of earning capacity. 38 U.S.C.A. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2013). The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability ratings are potentially applicable, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21 (2013). It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the veteran. 38 C.F.R. §§ 3.102, 4.3. Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as in this case, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. In such instances, separate ratings can be assigned for separate periods of time based on the facts found, a practice known as "staged" ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). Higher Initial Rating for Hypertension The Veteran essentially contends that his hypertension is manifested by symptomatology more nearly approximating a rating in excess of the current noncompensable (zero percent) rating assigned under 38 C.F.R. § 4.104, Diagnostic Code 7101. For hypertensive vascular disease, with diastolic pressure of predominantly 100 or more, or with systolic pressure predominantly 160 or more, or where continuous medication is shown necessary for the control of hypertension with a history of diastolic blood pressure predominantly 100 or more, a 10 percent rating is assigned. With diastolic pressure predominantly 110 or more, or with systolic pressure predominantly 200 or more, a 20 percent rating is warranted. With diastolic pressure predominantly 120 or more, a 40 percent rating is warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board has reviewed all of the evidence of record, both lay and medical, and finds that the Veteran's hypertension symptomatology does not more nearly approximate that required for a 10 percent rating under Diagnostic Code 7101 for the entire initial rating period under appeal. As noted above, a 10 percent rating is to be assigned for hypertension manifested by diastolic pressure of predominantly 100 or more, or with systolic pressure predominantly 160 or more, or where continuous medication is shown necessary for the control of hypertension with a history of diastolic blood pressure predominantly 100 or more. The record indicates that that the Veteran's hypertension is controlled by medication. In reviewing treatment records for the entire initial rating period on appeal, the Board notes that VA and private medical professionals have recorded several blood pressure readings since the Veteran's discharge from service; however, of those blood pressure readings, none have indicated diastolic pressure of 100 or more, or systolic pressure of 160 or more. The record includes a June 2007 private treatment note from the Florida Otolaryngology Group, the Veteran's blood pressure was recorded as 132/80. In an October 2007 VA treatment note, the blood pressure reading was 119/75. A February 2008 VA treatment record (in Virtual VA) reflects a blood pressure reading of 135/81. In the most recent March 2008 VA examination report, the VA examiner reported blood pressure readings of 132/79, 123/73, and 130/76. Therefore, the Board finds that the Veteran's hypertension symptomology does not more nearly approximate diastolic pressure of 100 or more, or systolic pressure of 160 or more. Moreover, although the Veteran takes continuous medication for the control of hypertension, the weight of the evidence does not demonstrate a history of diastolic blood pressure predominantly 100 or more. Therefore, a compensable rating is not warranted. Because the preponderance of the evidence is against a compensable rating for the service-connected hypertension for the entire initial rating period under appeal, the benefit of the doubt doctrine is not for application. See 38 U.S.C.A. § 5107; 38 C.F.R. §§ 4.3, 4.7. ORDER An initial compensable rating for hypertension is denied. ____________________________________________ K. J. ALIBRANDO Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs