Citation Nr: 1432425 Decision Date: 07/21/14 Archive Date: 07/29/14 DOCKET NO. 10-33 178 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased disability rating for hypertension in excess of 10 percent from July 31, 2009, to April 10, 2012, and in excess of 0 percent for the period from April 11, 2012, forward. 2. Entitlement to an increased disability rating for coronary artery disease (CAD) with cardiomegaly status post pacemaker implantation with healed scar, left upper anterior chest, currently rated as 30 percent disabling. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Michael Sanford, Associate Counsel INTRODUCTION The Veteran served on active military duty from April 1974 to April 1988. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Roanoke, Virginia. In November 2012, the Veteran testified before the Board in support of his claim on appeal. A transcript of that proceeding is associated with the Veteran's claims file. The Veteran has submitted evidence pertinent to the claims on appeal subsequent to the certification of the appeal to the Board; however, the Veteran has waived his right to have that evidence initially considered by the agency of original jurisdiction (AOJ). See November 2012 Waiver of AOJ Initial Jurisdiction. Thus, it is properly before the Board to consider in the first instance. FINDINGS OF FACT 1. For the period from July 31, 2009, to April 10, 2012, the Veteran's diastolic pressure has not been not predominantly 110 or more, and his systolic pressure has not been predominantly 200 or more. 2. For the period since April 11, 2012, the Veteran's diastolic pressure has not been not predominantly 100 or more, and his systolic pressure has not been predominantly 160 or more. Continuous use of medication for treatment of hypertension is required, and the relief provided by medication is specifically contemplated by the applicable schedular rating criteria. 3. Throughout the appeal period, the Veteran's CAD with cardiomegaly status post pacemaker implantation with healed scar, left upper anterior chest, is manifested by cardiac hypertrophy; a workload of 5 metabolic equivalents (METs) or less does not result in dyspnea, fatigue, angina dizziness, or syncope, and neither congestive heart failure nor left ventricular dysfunction with an ejection fraction of 50 percent or less have been shown; a resultant scar is not painful or unstable and the total area of that scar is not greater than 39 square centimeters. CONCLUSIONS OF LAW 1. For the period from July 31, 2009, to April 10, 2012, the criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2013). 2. For the period since April 11, 2012, the criteria for a compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2013). 3. The criteria for a disability rating in excess of 30 percent for CAD with cardiomegaly status post pacemaker implantation with healed scar, left upper anterior chest, have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2002); 38 C.F.R. §§ 4.118, Diagnostic Codes 7801-7805, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7099-7005 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 as amended (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2013). Under the VCAA, 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. Pelegrini v. Principi, 18 Vet. App. 112, 120-21 (2004); see 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b). In a pre-adjudication letter dated in August 2009, RO notified the Veteran of the evidence needed to substantiate his claim for an increased rating for loss of right elbow motion. This letter also satisfied the second and third elements of the duty to notify by delineating the evidence VA would assist him in obtaining and the evidence it was expected that he would provide. Quartuccio v. Principi, 16 Vet. App. 183, 186-87 (2002); Charles v. Principi, 16 Vet. App. 370 (2002). He was notified of the disability rating and effective date elements of his claim. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). The Court held in Vazquez-Flores v. Peake that 38 U.S.C.A § 5103(a) requires, at a minimum, that the Secretary notify the Veteran that, to substantiate an increased rating claim, the Veteran must provide, or ask the Secretary to obtain, medical or lay evidence demonstrating a worsening or increase in severity of the disability and the effect that worsening has on the claimant's employment. Vazquez-Flores v. Peake, 22 Vet. App. 37 (2008), vacated sub nom, Vazquez-Flores v. Shinseki, 580 F.3d 1270 (Fed. Cir. 2009). Additionally, a claimant must be notified that, should an increase in disability be found, a disability rating will be determined by applying relevant diagnostic codes, which typically provide for a range in severity of a particular disability from noncompensable to as much as 100 percent (depending on the disability involved), based on the nature of the symptoms of the condition for which disability compensation is being sought, their severity and duration, and their impact upon employment. Id. Furthermore, the Court directed that the notice must also provide examples of the types of medical and lay evidence that the Veteran may submit (or ask the Secretary to obtain) that are relevant to establishing entitlement to increased compensation -- e.g., competent lay statements describing symptoms, medical and hospitalization records, medical statements, employer statements, job application rejections, and any other evidence showing an increase in the disability or exceptional circumstances relating to the disability. Id. The August 2009 letter told the Veteran that evidence of worsening could substantiate the increased rating claim. He was notified in the August 2009 letter that medical or lay evidence could be submitted to substantiate his increased rating claim and was provided with specific examples. The letters stated that the Veteran could submit letters from individuals who could describe the manner in which his disability had worsened. The August 2009 letter also explained that disability ratings are determined by applying VA's rating schedule under which the RO would assign a rating from 0 to 100 percent, and that it would consider evidence of the nature of the symptoms of the condition, their severity and duration, and their impact upon employment. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate his claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159(c), (d). This "duty to assist" contemplates that VA will help a claimant obtain records relevant to his claim, whether or not the records are in Federal custody, and that VA will provide a medical examination or obtain an opinion when necessary to make a decision on the claim. 38 C.F.R. § 3.159(c)(4). VA obtained the Veteran's service treatment records, pertinent service personnel records, and all of the identified relevant post-service VA treatment records and private medical records. In addition, he was afforded a VA examination to assess the severity of his service-connected disabilities on appeal. The findings from those examinations are sufficient to apply the relevant rating criteria. Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. If two disability ratings 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. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Francisco v. Brown, 7 Vet. App. 55 (1994). Staged ratings, however, are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. The relevant focus for adjudicating an increased rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). A. Hypertension The Veteran asserts that his service-connected hypertension warrants an increased rating. The RO staged the Veteran's disability rating for hypertension, assigning a 10 percent rating for the period from July 31, 2009, to April 10, 2012, and 0 percent rating for the period from April 11, 2012, forward. See July 2012 Rating Decision. Hypertension is rated under the rating schedule for the cardiovascular system, section 4.104, diagnostic code (DC) 7101. For a compensable, 10 percent rating, the evidence must show diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more which requires continuous medication to control. 38 C.F.R. § 4.104, DC 7101. A 20 percent rating requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Id. Any higher rating requires higher diastolic or systolic pressure readings. See id. For the period from July 31, 2009, to April 10, 2012, a rating in excess of 10 percent is not warranted as the Veteran's diastolic pressure was not predominantly 110 or more, nor was systolic pressure predominantly 200 or more. Indeed, a review of all blood pressure readings from this period does not reveal any diastolic reading above 110 or any systolic reading above 200. At August 2009 VA examination (QTC), blood pressure readings were recorded as 164/98, 162/96, and 164/98. A September 2009 treatment record from Dr. D.R. shows blood pressure recorded as 138/87. A June 2010 treatment record from Dr. D.R. shows blood pressure recorded as 135/80. A June 2010 treatment record from Dr. D.R. shows blood pressure recorded as 121/74. A June 2010 private cardiology record shows blood pressure was recorded as 131/80. A December 2010 VA treatment record shows the Veteran's blood pressure was measured as 139/81. Indeed, the Veteran makes no assertion that his diastolic pressure has ever exceeded 110 or that his diastolic pressure has ever exceeded 200, as required for a 20 percent rating. See November 2012 Board Hearing Transcript; March 2011 RO Hearing Transcript. As such, there is simply no evidence of record to warrant a rating in excess of 10 percent for the Veteran's hypertension during the period from July 31, 2009, to April 10, 2012. For the period since April 11, 2012, a compensable rating for the Veteran's hypertension is not warranted. The evidence of record does not indicate that the Veteran's diastolic pressure is predominantly 100 or more or that the Veteran's systolic pressure is predominantly 160 or more. See 38 C.F.R. § 4.104, DC 7101. While the Veteran requires the use of medication to treat his hypertension, the evidence of record does not reveal a history of diastolic pressure predominantly 100 or more. See id. The Veteran was afforded a VA examination April 2012. There, his blood pressure readings were 134/88, 134/86, and 134/86. There are no other blood pressure readings of record during this period. At his Board hearing, the Veteran made two arguments. First, he asserted that during a recent hospital visit, his diastolic blood pressure was measured at or above 100 every time. See Hearing Transcript at pg. 7. Second, he asserts that his diastolic blood pressure was consistently above 100 prior to starting a medicine regimen to control his blood pressure. See id at pg. 11. Even assuming arguendo that the Veteran is correct in that he had one hospitalization where his diastolic blood pressure was measured above 100 several times, a single incidence is not sufficient to grant a compensable rating. Instead, the evidence must show diastolic blood pressure measured "predominantly" 100 or more or the evidence of record must reveal a history of diastolic pressure "predominantly" 100 or more. Throughout the appeal period, and even before the appeal period, the evidence of record does not show that the Veteran's diastolic blood pressure has been predominantly measured at 100 or more. As discussed above, there are no recorded measurements during the appeal period showing the Veteran's diastolic blood pressure measured at 100 or above. Further, a January 2005 VA examination showed readings of 132/80, 130/80, and 132/82. An October 2003 VA examination showed readings of 148/86, 140/86, and 142/86. Aside from the Veteran's assertion of a recent hospitalization showing diastolic blood pressure readings above 100, there is simply no evidence that the Veteran's diastolic blood pressure is predominantly measured at 100 or greater. The regulation clearly uses the word "predominantly" not "sporadically." With respect to the Veteran's argument that the medication used to treat his hypertension has caused lower blood pressure readings, that argument is not availing. Although "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria," Jones v. Shinseki, 26 Vet. App. 56, 62 (2012), given that VA has included the effect of medication as a factor to be considered when rating hypertension, the reasoning of Jones indicates that the Board may reject the Veteran's specific theory of entitlement to a higher rating in this case. Id. at 62 (reasoning that had VA wanted to include the effect of medication as a factor to be considered when rating a particular disability, it would have done so, as it had done in other diagnostic codes (citing 38 C.F.R. § 4.71a, DC 5025 (10 percent rating for fibromyalgia requires symptoms "[t]hat require continuous medication for control"); 38 C.F.R. § 4.97, DC 6602 (rating criteria for bronchial asthma)). There is simply no evidence that the Veteran's systolic blood pressure has been predominantly measured at 160 or greater or that his diastolic blood pressure has been predominantly measured at 100 or greater during this period. Further, while the Veteran does take medication to control his hypertension, the evidence does not show a history of diastolic pressure predominantly 100. As such, a compensable rating is not warranted for the period since April 11, 2012. For the entire appeal period, all potentially applicable diagnostic codes have been considered in making this determination for the Veteran's hypertension. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Additionally for the entire appeal period, the Board has also considered whether the hypertension claim should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). This case, however, does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Rather, the manifestations of the Veteran's hypertension are fully contemplated by the schedular rating criteria. Briefly, the rating schedule addresses current blood pressure readings as well as an established history. Therefore, the rating criteria reasonably describe the Veteran's disability level and symptoms, and the rating schedule is adequate to evaluate his disability picture. The Board acknowledges the Veteran's argument at his Board hearing that his hypertension prevented him from renewing his commercial driver's license while he was employed at a concrete company. See Hearing Transcript at pg. 10. In filing an earlier claim, however, the Veteran noted that he ceased working for the concrete company in January 2005, many years prior to the current appeal period. See March 2005 TDIU Claim. Additionally, the Veteran testified that he is currently employed by VA. See Hearing Transcript at pg. 11. The Veteran has made no assertion that his hypertension has impacted his current occupation or any occupation which he has held during the appeal period. Given that there is no evidence that the Veteran's hypertension has rendered application of the rating schedule impractical during the appeal period, referral for extraschedular consideration is not appropriate here. In conclusion, the preponderance of the evidence is against an increased rating for hypertension. See 38 C.F.R. §§ 3.303(a), 4.104, 4.118. As such, the benefit of the doubt doctrine is inapplicable and the Veteran's claim must be denied. 38 C.F.R. §§ 3.102, 4.3. B. Heart Condition The Veteran asserts that his CAD with cardiomegaly status post pacemaker implantation with healed scar, left upper anterior chest, currently rated as 30 percent disabling, warrants an increased rating. The Veteran's service-connected heart condition is rated pursuant to Diagnostic Code 7099-7005. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and 99. 38 C.F.R. § 4.27 (2013). The hyphenated diagnostic code in this case indicates that an unlisted organic disease of the cardiovascular system, under Diagnostic Code 7099, was the service-connected disorder, while the residual condition (to which the Veteran's service-connected heart disability is rated by analogy) is coronary artery disease, which is evaluated under DC 7005. 38 C.F.R. § 4.104. Under DC 7005, a 30 percent evaluation is warranted for CAD with a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. A 60 percent evaluation is warranted for more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of 30 to 50 percent. The maximum schedular rating of 100 percent is warranted for chronic congestive heart failure; or when a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope; or for left ventricular dysfunction with an ejection fraction of less than 30 percent. One MET is defined as the energy cost of standing quietly at rest and represents an oxygen uptake of 3.5 milliliters per kilogram of body weight per minute. When the level of METs at which dyspnea, fatigue, angina, dizziness, or syncope develops is required for evaluation, and a laboratory determination cannot be done for medical reasons, an estimation by a medical examiner of the level of activity (expressed in METs and supported by specific examples, such as slow stair climbing or shoveling snow) that results in dyspnea, fatigue, angina, dizziness, or syncope may be used. 38 C.F.R. § 4.104, Note (2). The Veteran was afforded a VA examination (QTC) in April 2012. There, the examiner stated that the Veteran does not have congestive heart failure. The examiner noted that the Veteran does have cardiac hypertrophy. Left ventricular ejection fraction was measured at 53 percent. METs testing was performed. The examiner noted that the Veteran denied experiencing the symptoms of dyspnea, fatigue, angina, dizziness or syncope with any level of physical activity. METs testing revealed that a workload of greater than 7 to 10 METs results in none of the above symptoms. The Veteran has also undergone private treatment with respect to his service-connected disability. A June 2010 treatment note from Dr. R. notes the Veteran's has an estimated left ventricular ejection fraction of 67 percent. No congestive heart failure was noted and no METs testing was performed then. Another June 2010 treatment record from Dr. R. noted that the Veteran's calculated ventricular ejection fraction was 59 percent. Considering the evidence of record, there is no basis for an increased disability rating for the Veteran's service-connected disability. In order to find that a 60 percent or 100 percent rating is appropriate under DC 7005, there must be some congestive heart failure, left ventricular dysfunction with an ejection fraction of 50 percent or less, or a workload of 5 METs or less resulting in either dyspnea, fatigue, angina, dizziness, or syncope. See 38 C.F.R. § 4.104, DC 7005. There is no evidence of any congestive heart failure. Moreover, the Veteran's left ventricular fraction has constantly been measured as greater than 50 percent. Finally, upon VA examination, METs testing showed that the Veteran did not experience any of the applicable symptoms with a workload of 5 or less METs. The Board has also considered the pacemaker scar in the evaluation of the service-connected heart disability. The April 2012 VA examiner, however, explained that the Veteran's right shoulder scar was not painful or unstable and the total area of that scare was not greater than 39 square centimeters (6 square inches). As such, a separate, compensable rating for the residual scar is not appropriate. See 38 C.F.R. § 4.118, Diagnostic Codes 7801-7805. Additionally for the entire appeal period, the Board has also considered whether the CAD claim should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1). This case, however, does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary. See Thun, 22 Vet. App. at 115-16. Rather, the manifestations of the Veteran's service-connected disability are fully contemplated by the schedular rating criteria. The Veteran's service-connected disability results in cardiac hypertrophy. Moreover, upon VA examination, no occupational impairment was noted as a result of his service-connected disability. See April 2012 VA Examination Report. Given that there is no evidence that the Veteran's CAD has rendered application of the rating schedule impractical during the appeal period, referral for extraschedular consideration is not appropriate here. In conclusion, the preponderance of the evidence is against an increased rating for CAD with cardiomegaly status post pacemaker implantation with healed scar, left upper anterior chest. See 38 C.F.R. §§ 3.303(a), 4.104, 4.118. As such, the benefit of the doubt doctrine is inapplicable and the Veteran's claim must be denied. 38 C.F.R. §§ 3.102, 4.3. (CONTINUED ON NEXT PAGE) ORDER Entitlement to an increased disability rating for hypertension in excess of 10 percent from July 31, 2009, to April 10, 2011, and in excess of 0 percent for the period from April 11, 2011, forward is denied. Entitlement to an increased disability rating for coronary artery disease (CAD) with cardiomegaly status post pacemaker implantation with healed scar, left upper anterior chest is denied. ______________________________________________ James L. March Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs