Citation Nr: 1505015	
Decision Date: 02/03/15    Archive Date: 02/09/15

DOCKET NO.  12-32 720	)	DATE
	)
	)

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


THE ISSUES

1.  Entitlement to an initial evaluation in excess of 10 percent for hypertension.

2.  Entitlement to service connection for coronary artery disease, including unstable angina, to include as due to herbicide exposure.

3.  Entitlement to service connection for hairy cell leukemia, to include as due to herbicide exposure.

4.  Entitlement to service connection for pancytopenia, to include as due to herbicide exposure.


REPRESENTATION

Appellant represented by:	Ryan Farrell, Agent



ATTORNEY FOR THE BOARD

Scott Shoreman, Counsel


INTRODUCTION

The Veteran had active service in the Army from February 1969 to January 1972 and in the Navy from June 1974 to July 1992.

This matter comes before the Board of Veterans' Appeals (Board) from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in St. Louis, Missouri.

The issues of service connection for coronary artery disease, including unstable angina, hairy cell leukemia, and pancytopenia, to include as due to herbicide exposure, are addressed in the REMAND portion of the decision below and are REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The preponderance of the evidence shows that for the entire appeal period, the Veteran's diastolic pressure has been predominantly less than 110 and his systolic pressure has been predominantly less than 200.


CONCLUSION OF LAW

The criteria for an initial rating in excess of 10 percent for hypertension have not been met.  38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2014).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Duties to Notify and Assist

Proper notice from VA must inform the claimant of any information and 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004).  In addition, the notice requirements of the VCAA apply to all five elements of a service-connection claim, including: (1) Veteran status; (2) existence of a disability; (3) a connection between the Veteran's service and the disability; (4) degree of disability; and (5) effective date of the disability.  See Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  Further, this notice must include information that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded.  Id. at 486. 

The claim arises from disagreement with the initial disability rating that was 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); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). 

Next, VA has a duty to assist a Veteran in the development of the claim.  This duty includes assisting him in the procurement of service treatment records and other pertinent records, and providing an examination when necessary.  See 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2014).  The Board finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the appellant.  See Bernard v. Brown, 4 Vet. App. 384 (1993).  The claims file contains service treatment records, VA treatment records, post-service treatment records provided at a military facility, and private treatment records.  The Veteran had a VA examination in January 2012.  Findings from the examination report are adequate for the purposes of deciding the claims on appeal.  See Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007).  

Therefore, the Board concludes that all reasonable efforts were made by VA to obtain evidence necessary to substantiate the Veteran's claim, and no further assistance to develop evidence is required.

II.  Higher Evaluation

Disability evaluations are determined by the application of a schedule of ratings that is based on the average impairment of earning capacity. Separate diagnostic codes (DCs) identify the various disabilities.  38 U.S.C.A. § 1155 (West 2014); 38 C.F.R., Part 4 (2014).  Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating.  Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.  The Veteran's entire history is reviewed when making disability evaluations.  See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3.

Service connection is in effect for hypertension, rated 10 percent disabling effective August 24, 2011.  The Veteran contends that throughout the appeal period his hypertension symptoms have been more severe than the assigned rating and that he is entitled to a higher initial rating.

Pursuant to DC 7101, a 20 percent rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  A 40 percent rating is warranted for diastolic pressure predominantly 120 or more, and the maximum schedular rating of 60 percent is warranted for diastolic pressure predominantly 130 or more.  38 C.F.R. §4.104, DC 7101 (2014).

Blood pressure readings beginning in August 2011, including from the January 2012 VA examination, show diastolic pressure between 76 and 78 and systolic pressure between 128 and 135.  The record shows that the Veteran's blood pressure has been controlled by medication throughout the appeal period.  At no time has the diastolic pressure been predominantly 110 or more or the systolic pressure predominantly 200 or more.  The Board therefore finds that the Veteran's hypertension most nearly approximates the criteria for a 10 percent rating.  38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3, 4.104, DC 7101.

In exceptional cases, an extraschedular rating may be provided.  38 C.F.R. § 3.321.  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 severity of the Veteran's hypertension, which is his only service-connected disability.  Specifically, the need for continuous medication for blood pressure control has been considered by the rating criteria.  The rating criteria are therefore adequate, and referral for consideration of an extraschedular rating is not warranted.

In light of the holding in Fenderson, the Board has considered whether the Veteran is entitled to "staged" ratings for his service-connected hypertension, as the Court indicated can be done in this type of case.  Based upon the record, we find that at no time during the claims period has the disability on appeal been more disabling than as currently rated under the present decision of the Board. 

In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim of entitlement to a total rating based upon individual unemployability (TDIU) is part of an increased rating claim when such claim is expressly raised by the Veteran or reasonably raised by the record.  The Court further held that when evidence of unemployability is submitted at the same time that the Veteran is appealing the initial rating assigned for a disability, the claim for a TDIU will be considered part and parcel of the claim for benefits for the underlying disability.  Id.  In this case, however, the record does not reflect the Veteran is unemployable due to his service-connected hypertension.  The January 2012 VA examiner felt that the hypertension did not impact the Veteran's ability to work.  There is no cogent evidence of unemployability, and thus consideration of a TDIU is not warranted.

Because the evidence preponderates against the claim for an initial evaluation in excess of 10 percent for hypertension, the benefit-of-the-doubt doctrine is inapplicable, and the claim must be denied.  38 U.S.C.A. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990).


ORDER

An initial evaluation in excess of 10 percent for hypertension is denied.


REMAND

The Veteran contends that he has coronary artery disease, hairy cell leukemia, and pancytopenia that is related to service, to include as due to herbicide exposure while he was in Thailand.

Consistent with his contentions, the record confirms that the Veteran served in Thailand.  VA has determined that special consideration of herbicide exposure on a factual basis should be extended to veterans who served in Thailand.  VA Adjudication Procedure Manual, M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, Paragraph 10.q.  The Veteran's military occupational specialty (MOS) while in Thailand from September 1969 to August 1970 was wheeled vehicle repairmen.  From June 1970 to August 1970, he was assigned to a military police company.  Since he was assigned to a military police company, the M21-1MR requires that exposure to herbicides be conceded if the Veteran states that his duty placed him at or near the base perimeter.  Since the Veteran has not stated that his duty placed him at or near the base perimeter, the M21-MR requires that a copy of the Compensation Service's "Memorandum for the Record" shown in M21-1MR, Part IV, Subpart ii, 2.C.10.r, be placed in the record.  The Veteran must then be asked for the approximate dates, location, and nature of the alleged exposure.  If the Veteran furnishes this information within 30 days, exposure to herbicides can be found on a direct basis or facts-found basis if supported by the record.  If such exposure cannot be found, a request should be sent to the Joint Services Records Research Center (JSRRC) to verify exposure if there is sufficient information to permit such a search.  If there is not sufficient information to permit a search by the JRSSC due to a lack of specificity or because the Veteran does not respond, the case should be referred to the JSRRC coordinator to make a formal finding that sufficient information to verify herbicide exposure does not exist.    

In September 2011 the Veteran was sent a letter in which he was asked to provide evidence that that he was exposed to Agent Orange (herbicides) with an explanation of when, where and how he was exposed.  The Veteran did not respond.  A January 2012 statement from the JSRRC coordinator states that there was there was no indication in the Veteran's file that he performed duties on or near the perimeter of a base and that he had not provided specific details of the circumstances of exposure.  There was not sufficient information to submit a request for additional research to the JSRRC.

The Board notes that the United States Court of Appeals for Veterans Claims has consistently held that the evidentiary development procedures provided in the 
Veterans Benefits Administration's Adjudication Procedure Manual are binding.  See Patton v. West, 12 Vet. App. 272, 282 (1999) (holding that the Board failed to comply with the duty to assist requirement when it failed to remand the case for compliance with the evidentiary development called for by the M21-1).  The claims file does not contain a copy of the Compensation Service's "Memorandum for the Record" shown in M21-1MR, Part IV, Subpart ii, 2.C.10.r.  Therefore, the claim must be remanded for the memorandum to be placed in the record.

VA treatment records to May 2008 have been associated with the claims file.  Therefore, the RO should obtain any relevant VA treatment records dated from May 2008 to the present that may exist before the remaining issues are decided on the merits.  Bell v. Derwinski, 2 Vet. App. 611 (1992).  In addition, the Veteran receives treatment from the Naval Branch Health Clinic in Groton, Connecticut.  Treatment records to October 2011 from the Naval Branch Health Clinic have been associated with the claims file.  The duty to assist requires that updated records be obtained before the claim can be decided on the merits.  See 38 C.F.R. § 3.159(c)(1).

Accordingly, the case is REMANDED for the following action:

1.  Obtain VA treatment records dated since May 2008.

2.  Obtain treatment records from the Naval Branch Health Clinic in Groton, Connecticut from October 2011 to the present.

3.  Notify the Veteran that he may submit lay statements from himself and from other individuals who have first-hand knowledge, and/or were contemporaneously informed of any in-service and/or post-service coronary artery disease, including instable angina, hairy cell leukemia and pancytopenia symptomatology.  The Veteran should be provided an appropriate amount of time to submit this lay evidence.

4.  Request that the Veteran provide the approximate dates, location and nature of exposure to herbicides, including any duties at or near the perimeter of bases in Thailand.

5.  Request that the Veteran provide sufficient information, and, if necessary, authorization, to obtain any medical and hospitalization records, medical statements, and any other medical evidence not already of record relating to his claims.  There must be at least two attempts made to obtain any private treatment records for which the appellant submits the proper authorization.

6.  Comply with the evidentiary development noted in M21-1MR, Part IV, Subpart ii, Chapter 2, Section C, para. 10.q, including placing a copy of the Compensation Service's "Memorandum for the Record" shown in M21-1MR, Part IV, Subpart ii, 2.C.10.r in the claims file.  

If the Veteran submits any additional statements and they are not sufficient on their own to make a finding of exposure to herbicides, request verification with the JSRRC or refer the case to the JSRRC coordinator to make a formal finding that sufficient information to corroborate exposure to herbicides does not exist.

7.  Then readjudicate the appeal.  If the benefits sought on appeal are not granted in full, the Veteran and his representative should be issued a supplemental statement of the case and provided an opportunity to respond.

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 2014).

______________________________________________
STEVEN D. REISS
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs