Citation Nr: 1507960 Decision Date: 02/24/15 Archive Date: 02/26/15 DOCKET NO. 12-34 731 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Waco, Texas THE ISSUES 1. Entitlement to an increased rating for a psychiatric disability, to include generalized anxiety disorder, higher than 30 percent prior to February 28, 2013, and higher than 50 percent thereafter. 2. Entitlement to an increased rating higher than 10 percent for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD A. Lech, Associate Counsel INTRODUCTION The Veteran had active service from September 2000 to January 2001 and from March 2003 to June 2004. This case comes before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. The Veteran testified before the undersigned in January 2015. A transcript of that hearing has been associated with the claims file. At the hearing, the Veteran submitted additional evidence and a waiver indicating that she wished to waive its review by the agency of original jurisdiction (AOJ). 38 C.F.R. §§ 19.37, 20.1304 (2015). The Board has thereby considered the said evidence in its decision. In a July 2014 statement in support of her claim, as well as in her hearing testimony, the Veteran appears to have raised a claim for entitlement to service connection heart palpitations, also claimed as premature ventricular contractions (PVCs), to include as secondary to her service-connected hypertension and/or service-connected psychiatric disability, to include generalized anxiety. Normally, the Board would refer such a claim for development and adjudication to the RO. That, however, is not necessary in this case, as the RO appears to have already taken some action on the issue -in December 2014, the RO issued a deferred rating decision on the issue of the Veteran's claim for heart palpitations/PVCs, pending the outcome of the current appeal. As such, the issue will remain in the jurisdiction of the RO, and will be developed and adjudicated there. FINDINGS OF FACT 1. On January 15, 2015, at the Board hearing, prior to the promulgation of a decision in the appeal, the Veteran expressed her desire to withdraw her appeal on the issue of entitlement to an increased rating for a psychiatric disability, to include generalized anxiety disorder, higher than 30 percent prior to February 28, 2013, and higher than 50 percent thereafter. 2. The Veteran's service-connected hypertension is manifested by diastolic pressure predominantly less than 110, systolic pressure predominantly less than 200, and continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for withdrawal of an appeal on the issue of entitlement to an increased rating for a psychiatric disability, to include generalized anxiety disorder, higher than 30 percent prior to February 28, 2013, and higher than 50 percent thereafter, have been met. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. § 20.204 (2014). 2. The criteria for a disability rating in excess of 10 percent for service-connected hypertension have not been met. 38 U.S.C.A. §§ 1155, 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.104, Diagnostic Code 7101 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Withdrawn Appeal The issue of entitlement to an increased rating for a psychiatric disability, to include generalized anxiety disorder, was first denied in a January 2012 rating. The Veteran perfected her appeal with regard to that issue in December 2012. In April 2013, and after the matter had been certified for appeal to the Board, the RO issued a rating decision increasing the Veteran's evaluation to 50 percent, effective from February 28, 2013. At the January 2015 Board hearing, the Veteran, in the presence of her representative, stated that she was satisfied with the assigned evaluations, and that she wished to withdraw the issue of entitlement to an increased rating for a psychiatric disability, to include generalized anxiety disorder. The withdrawal was effective immediately upon receipt by VA. 38 C.F.R. § 20.204(b)(3) (2014). The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C.A. § 7105 (West 2014). An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204 (2014). The Veteran has withdrawn the appeal on the issue of entitlement to an increased rating for a psychiatric disability, to include generalized anxiety disorder. Thus, as there remain no allegations of errors of fact or law for appellate consideration, the Board does not have jurisdiction to review the appeal as to this issue, and it is dismissed. II. VA's Duty to Notify and Assist VA has a duty to notify and a duty to assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. §§ 3.159, 3.326(a) (2014). Proper notice from VA must inform the claimant and his representative, if any, prior to the initial unfavorable decision on a claim by the agency of original jurisdiction (AOJ) of any information and any medical or lay 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. 38 U.S.C.A. § 5103(a) (West 2014); 38 C.F.R. § 3.159(b) (2014); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). These notice requirements apply to all five elements of a service-connection claim (Veteran status, existence of a disability, a connection between the Veteran's service and the disability, degree of disability, and effective date of the disability). Dingess v. Nicholson, 19 Vet. App. 473 (2006). Information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded must be included. Id. Neither the Veteran nor his representative has alleged prejudice with respect to notice, as is required. See Shinseki v. Sanders, 129 S. Ct. 1696 (2009). None is found by the Board. Indeed, VA's duty to notify has been more than satisfied. The Veteran was notified via letter dated in January 2011 of the criteria for establishing an increased rating, the evidence required in this regard, and her and VA's respective duties for obtaining evidence. She also was notified of how VA determines disability ratings and effective dates. This letter accordingly addressed all notice elements and predated the initial adjudication by the AOJ/RO in January 2012. Nothing more was required. VA has also informed the claimant of its duty to assist in obtaining records and supportive evidence. The Veteran's VA medical and examination records pertinent to treatment of high blood pressure/hypertension issues have been obtained and associated with his claims file. No outstanding evidence has been identified that has not otherwise been obtained. The Veteran was also afforded VA examinations in March 2011 and February 2013. The Board finds the examinations to be thorough and adequate upon which to base a decision with regard to the Veteran's claim. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008) (the probative value of a medical opinion comes from when it is the factually accurate, fully articulated, and sound reasoning for the conclusion, not the mere fact that the claims file was reviewed). The VA examiners personally interviewed and examined the Veteran, including eliciting a history from her, and provided the information necessary to evaluate her disability under the applicable rating criteria. The examinations included a review of the claims file. Accordingly, the Board finds that VA's duty to assist, with respect to obtaining a VA examination with respect to the issue on appeal, has been met. 38 C.F.R. § 3.159(c)(4) (2014). 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 claim, the Board finds that any such failure is harmless. Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). III. Merits of the Claim Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. See 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2014). Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7 (2014). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. See 38 C.F.R. § 4.3 (2014). In every instance 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. See 38 C.F.R. § 4.31 (2014). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2014). Where the Veteran timely appealed the rating initially assigned for the service-connected disability within one year of the notice of the establishment of service connection for it, VA must consider whether the Veteran is entitled to "staged" ratings to compensate her for times since the filing of her claim when her disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119 (1999). Where service connection has already been established, and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, in such cases, when the factual findings show distinct time periods during which a claimant exhibited symptoms of the disability at issue and such symptoms warrant different evaluations, staged evaluations may also be assigned. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The evaluation of the same disability under various diagnoses, known as pyramiding, is generally to be avoided. See 38 C.F.R. § 4.14 (2014). The critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the disabilities is duplicative or overlapping with the symptomatology of the other disability. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). The Veteran has been assigned a 10 percent rating under Diagnostic Code 7101 for her service-connected hypertension. Diagnostic Code 7101 provides the rating criteria for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under that Diagnostic Code, a 10 percent evaluation is assigned for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires constant medication for control. A 20 percent evaluation is assigned for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is assigned for diastolic pressure predominantly 120 or more. Finally, a 60 percent evaluation is assigned for diastolic pressure predominantly 130 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2014). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means 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. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1) (2014). Hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it, rather than by a separate evaluation. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (2) (2014). This is not, however, applicable in this case, as the Veteran does not have a diagnosis of, or claims, aortic insufficiency or hyperthyroidism. Hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. See 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (3) (2014). As noted above, the Veteran's claim for heart palpitations/PVCs/heart disease is in the process of development and adjudication by the RO, and it will be rated under the appropriate Diagnostic Code. As referenced above, the Veteran was afforded a VA examination for her hypertension in March 2011. She reported that she took atenolol, which did not "help much." The examiner recorded blood pressures of 130/95 (lying down), 140/95 (sitting), and 140/100 (standing). The examiner related that the Veteran was able to walk about a mile in 30 minutes without limitations, and that apparently she did not show up for the scheduled diagnostics exam. The examiner noted that the Veteran's heart rhythm was abnormal, and that she had occasional premature ventricular contractions. The examiner diagnosed the Veteran with hypertensive heart disease and PVCs secondary to essential arterial hypertension. A private treatment record from August 3, 2011, showed one blood pressure reading of 146/96. An undated record showed a blood pressure reading of 163/119. VA treatment records from July 2011 to March 2013 showed that the Veteran's diastolic readings were predominantly 90 and the systolic readings were predominately 130. See Supplemental Statement of the Case, April 3, 2013, pg. 5. The Veteran was afforded another VA hypertension examination in February 2013. The examiner noted that the Veteran has recently undergone cardiological testing for complaints of palpitations, but that the results were normal from a cardiac standpoint. The Veteran reported to the examiner that she continued to take atenolol for her hypertension. The examiner related that the Veteran did not have a history of diastolic blood pressure elevation to predominately 100 or more. The examiner reported that the Veteran's blood pressure readings were 139/87 (on 1/14/2013), 128/74 (on 9/21/2012); and 131/85 (on 7/20/2012). The examiner also noted that the Veteran's hypertension did not impact her ability to work. The Veteran's post-March 2013 VA treatment records show the following blood pressure readings; 155/96 (10/07/2013), 144/97 (10/31/2013), 137/95 (10/31/2013), 126/80 (12/05/2013), 137/75 (06/02/2014), 180/115 (06/09/2014 - the Veteran was admitted to the hospital and treated for a urinary tract infection), 158/95 (06/09/2014), 142/84 (07/28/2014), 147/81 and 139/82 (09/02/2014), 134/80 (09/16/2014), and 123/73 (09/26/2014). At the January 2015 hearing, the Veteran submitted a page of a diary in which she recorded blood pressure readings, which she took at home. They were: 138/87 (1/9/2015), 142/88 (1/10/2015), 156/93 (1/11/2015), 133/76 (1/12/2015), 126/81 (1/13/2015), 128/89 (1/14/2015), and 132/81 (1/15/2015). She also reported that her "stress test" blood pressure was 163/119. The medical evidence of record does not establish that the Veteran's service-connected hypertension warrants a disability rating in excess of 10 percent. The treatment records include dozens of blood pressure readings and only two of the readings showed a diastolic blood pressure of 110 or higher. Significantly, one of those readings was taken in conjunction with a June 2014 hospitalization for a urinary tract infection. None of the systolic blood pressure readings of record rise to the level of 200 or higher. Indeed, the Veteran's own hearing testimony indicates that her average blood pressure readings do not meet the criteria for an increased rating of 20 percent, as she reported her average systolic reading to be 136 and her average diastolic reading to be 84. There is simply no evidence to show that the Veteran's diastolic blood pressure is predominantly 110 or higher or that her systolic blood pressure is predominantly 200 or higher. As such, a disability rating in excess of the current 10 percent for hypertension cannot be granted. There is also no indication in the medical evidence of record that the Veteran's hypertension warranted other than the currently-assigned 10 percent disability rating throughout the appeal period. As such, assignment of staged ratings is not warranted. See Hart, supra. In reaching the above-stated conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim of entitlement to an increased rating for hypertension, that doctrine is not applicable. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2014); see also Ortiz, supra. Extraschedular Consideration The Board has also considered the potential application of other various provisions, including 38 C.F.R. § 3.321(b)(1), for exceptional cases where schedular evaluations are found to be inadequate. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Ordinarily, the VA Schedule will apply unless there are exceptional or unusual factors which would render application of the schedule impractical. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993). According to the regulation, an extraschedular disability rating is warranted upon a finding that the case presents such an exceptional or unusual disability picture, with such related factors as marked interference with employment or frequent periods of hospitalization, that would render impractical the application of the regular schedular standards. See 38 C.F.R. § 3.321(b)(1) (2014); Fanning v. Brown, 4 Vet. App. 225, 229 (1993). In Thun v. Peake, 22 Vet. App. 111, 115-16 (2008), the Court set forth a three-step inquiry for determining whether a Veteran is entitled to an extraschedular rating. First, as a threshold issue, the Board must determine whether the Veteran's disability picture is contemplated by the rating schedule. If so, the rating schedule is adequate and an extraschedular referral is not necessary. If, however, the Veteran's disability level and symptomatology are not contemplated by the rating schedule, the Board must turn to the second step of the inquiry, that is whether the Veteran's exceptional disability picture exhibits other related factors, such as those provided by the regulation as "governing norms." These include marked interference with employment and frequent periods of hospitalization. Third, if the first and second steps are met, then the case must be referred to the VA Undersecretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, a Veteran's disability picture requires the assignment of an extraschedular rating. The evidence of record does not reflect that the Veteran's disability picture is so exceptional as to not be contemplated by the rating schedule. There is no unusual clinical picture presented, nor is there any other factor which takes the Veteran's disabilities outside the usual rating criteria. The rating criteria for hypertension specifically contemplate her high blood pressure readings, as well as her use of medication to control her blood pressure. Therefore, this disability picture is adequately contemplated by the rating schedule. As such, the threshold issue under Thun is not met for the disability on appeal, and any further consideration of governing norms or referral to the appropriate VA officials for extraschedular consideration is not necessary. In short, the evidence does not support the proposition that the Veteran's service-connected hypertension presents such an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards and to warrant the assignment of an extraschedular rating under 38 C.F.R. § 3.321(b)(1) (2014). Referral of the issues to the appropriate VA officials for consideration of an extraschedular evaluation is not warranted. The Board notes that under Johnson v. McDonald, 2013-7104, 2014 WL 3562218 (Fed. Cir. Aug. 6, 2014), a Veteran may be awarded an extraschedular rating based upon the combined effect of multiple conditions in an exceptional circumstance where the evaluation of the individual conditions fails to capture all the service-connected disabilities experienced. However, in this case, after applying the benefit of the doubt under of Mittleider v. West, 11 Vet. App. 181 (1998), there are no additional service-connected disabilities that have not been attributed to a specific service-connected condition. Accordingly, this is not an exceptional circumstance in which extraschedular consideration may be required to compensate the Veteran for a disability that can be attributed only to the combined effect of multiple conditions. ORDER The claim for entitlement to an increased rating for a psychiatric disability, to include generalized anxiety disorder, higher than 30 percent prior to February 28, 2013, and higher than 50 percent thereafter, is dismissed. Entitlement to an increased rating higher than 10 percent for hypertension is denied. ____________________________________________ MICHAEL A. HERMAN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs