Citation Nr: 1604762 Decision Date: 02/09/16 Archive Date: 02/18/16 DOCKET NO. 09-06 789A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Montgomery, Alabama THE ISSUES 1. Entitlement to service connection for glaucoma. 2. Entitlement to a compensable rating for postoperative residuals of a recurrent left inguinal hernia prior to March 11, 2015, and in excess of 10 percent on and after March 11, 2015. 3. Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling. 4. Entitlement to a total disability rating for compensation based on individual unemployability, due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: The American Legion WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Brian J. Milmoe, Counsel INTRODUCTION The Veteran served on active duty from June 1970 to October 1984. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions entered in July 2007 and July 2008 by the Department of Veterans Affairs (VA) Regional Office (RO) in Montgomery, Alabama. By additional rating action in April 2015, the rating for postoperative residuals of a left inguinal hernia was increased from 0 percent to 10 percent, effective from March 2015. In his substantive appeals, the Veteran requested a Board hearing, either sitting at the RO, or by means of videoconference technology. Such request was modified in writing by the Veteran in October 2009, at which time he requested an RO hearing, which was afforded him in April 2012, a transcript of which is of record. He withdrew his request for a Board hearing of any kind in a written statement received by VA in November 2011, but reinstated that request through his written statement of October 2013. That request was withdrawn in writing by the Veteran in correspondence received by VA in December 2014. No other request for a hearing remains pending. It is noted by the Board that the RO denied TDIU entitlement by its rating decision of January 2015 and that action was followed by the Veteran's submission in August 2015 of a statement that is reasonably found to be a notice of disagreement with the January 2015 denial. No statement of the case is thereafter shown to have been provided to the Veteran, nor is it indicated that he withdrew his notice of disagreement. Further action is thus required for issuance of a statement of the case and this is addressed in the REMAND below. In addition, the issues of the Veteran's entitlement to service connection for glaucoma and his entitlement to an increased rating for a recurrent left inguinal hernia are herein REMANDED to the Agency of Original Jurisdiction (AOJ) and the AOJ will advise the Veteran of the need for any further actions on his part. FINDINGS OF FACT 1. The Veteran's service-connected hypertension is shown to be manifested by occasional elevations of systolic and diastolic blood pressures, but his diastolic pressure is not demonstrated to be predominantly 110 or more, nor is his systolic pressure shown to be predominantly 200 or more. 2. The schedular criteria for evaluation of the Veteran's hypertension encompass all manifestations and symptoms associated with that disorder. CONCLUSION OF LAW The criteria for the assignment of a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's electronic claims folder. Although the Board 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) (the Board must review the entire record, but does not have to discuss each piece 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(s). 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). Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). See also Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Dingess v. Nicholson, 19 Vet. App. 473 (2006). The notification obligation in this case was accomplished by way of the RO's correspondence, dated in March 2008, to the Veteran at his address of record and this was followed by the claim's initial adjudication in July 2008, in accord with Pelegrini. In light of the foregoing, and in the absence of any allegation of prejudice by the Veteran, the Board cannot conclude that any defect in the timing or substance of the notice provided has affected the essential fairness of the adjudication, with resulting prejudice to the Veteran. VA also has a duty to assist the Veteran in the development of the claim. The record includes the Veteran's service treatment records, in addition to a various medical examination and treatment reports compiled by multiple medical professionals during postservice years. There are also of record many documents prepared by and/or utilized by the Social Security Administration in its adjudication of the Veteran's disablement under separate criteria, as well as many written statements of the Veteran relating to the instant claim. Moreover, the Veteran has not made the RO or Board aware of any additional evidence that needs to be obtained in order to decide fairly the claim herein addressed on its merits. See Shinseki v. Sanders, 129 S.Ct.1696 (2009) (reversing prior case law imposing a presumption of prejudice on any notice deficiency, and clarifying that the burden of showing that an error is harmful, or prejudicial, normally falls upon the party attacking the agency's determination). The record indicates that the Veteran was afforded multiple VA examinations relating to his claim for increase for hypertension, findings from which are detailed and comprehensive in scope and are such as to permit the Board to evaluate the issue on appeal both fairly and fully. Those findings are consistent with those identified by non-VA health care professionals. Inasmuch as the Veteran does not allege that any of the prior evaluations were inadequate or that further examination is needed, it is concluded that there exists no further need for additional development, including any further examination, for review of the Veteran's hypertension. 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); Wells v. Principi, 326 F.3d 1381, 1384 (Fed. Cir. 2003). In view of the foregoing, the Board finds that VA has satisfied its duties to notify and assist under the governing law and regulation. Analysis Disability ratings are intended to compensate impairment in earnings capacity due to a service-connected disorder. 38 U.S.C.A. § 1155. Separate diagnostic codes (DCs) identify the various disabilities. Id. Evaluation of a service-connected disorder requires a review of the Veteran's entire medical history regarding that disorder. 38 C.F.R. §§ 4.1, 4.2. The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2015). Both the use of manifestations not resulting from service-connected injury in establishing the service-connected evaluation, and the evaluation of the same manifestation under different diagnoses are to be avoided. Id.; Esteban v. Brown, 6 Vet. App. 259 (1994). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation is at issue, separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be "staged." Fenderson v. West, 12 Vet. App. 119, 126 (2001). In Hart v. Mansfield, 21 Vet. App. 505 (2007), it was held that staged ratings were appropriate for an increased rating claim when the factual findings showed distinct time periods where the service-connected disability exhibited symptoms which would warrant different ratings. Here, service connection for hypertension was established by RO action in January 2003, at which time a 10 percent rating was assigned under DC 7101. In February 2008, the Veteran submitted a claim for an increased rating, noting that he had recently been hospitalized for a cardiac event and that during his hospitalization his medications for control of his hypertension were increased. Under DC 7101, an evaluation of 10 percent is assigned if diastolic pressure is predominantly 100 or more; or systolic pressure is predominantly 160 or more; or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. A higher evaluation of 20 percent is not warranted unless diastolic pressure is predominantly 110 or more; or systolic pressure is predominantly 200 or more. The record as developed shows only a few, isolated blood pressure readings meeting the criteria for assignment of the next higher evaluation. But one of seven such readings was shown during a period of VA outpatient medical treatment in August 2007, and while two readings of systolic blood pressure of more than 200 were demonstrated in March 2008, the Veteran's own self-compiled log of average blood pressure reading for March 2008 was that of 165/82. Various other entries by VA and non-VA sources compiled throughout 2008 denote blood pressure readings for the most part below the 200 level for systolic blood pressure and below 110 for diastolic blood pressure. None were likewise identified on VA examinations in May 2007, November 2008, January 2010, March 2011, March 2012, October 2013, or March 2015 relating to the heart and/or hypertension. At his RO hearing in April 2012, the Veteran reported that he was then taking three separate medications in an effort to control his blood pressure. He further noted that he was being seen by a physician every six months for monitoring of his blood pressure. The Veteran alleges an increase in severity of his service-connected hypertension and while there is no question that the Veteran is competent to state what comes to him through his senses, including what he personally observes and what others have told him, see Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005), the record as a whole fails to substantiate his allegation. In sum, the evidence on file fails to identify diastolic pressure that is predominantly 110 or more or systolic pressure that is predominantly 200 or more, and, on that basis, the Veteran's claim for a schedular evaluation in excess of 10 percent for hypertension throughout the appeal period must be denied. Hart, supra. The Board also has considered whether the Veteran is entitled to a greater level of compensation on an extraschedular basis. 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). For the reasons discussed below, the Board finds that the Veteran's symptoms do not warrant a greater level of compensation for hypertension on an extraschedular basis. According to the regulation, an extraschedular disability rating is warranted based 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). An exceptional case is said to include such factors as marked interference with employment or frequent periods of hospitalization as to render impracticable the application of the regular schedular standards. See Fanning v. Brown, 4 Vet. App. 225, 229 (1993). Under Thun v. Peake, 22 Vet App 111 (2008), there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. First, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. Second, if the schedular evaluation does not contemplate the Veteran's level of disability and symptomatology and is found inadequate, the Board must determine whether the Veteran's disability picture exhibits other related factors such as those provided by the regulation as "governing norms." Third, if the rating schedule is inadequate to evaluate a veteran's disability picture and that picture has attendant thereto related factors such as marked interference with employment or frequent periods of hospitalization, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the Veteran's disability picture requires the assignment of an extraschedular rating. With respect to the first prong of Thun, the evidence in this case does not show such an exceptional disability picture that the applicable schedular evaluation for the service-connected hypertension is inadequate. A comparison between the level of severity and symptomatology of the Veteran's hypertension with the established criteria shows that the rating criteria reasonably describe his disability level and symptomatology in terms of indicated systolic and diastolic blood pressure readings. He in effect bases his claim on the fact that a greater amount of medication is needed to control his blood pressure, but the pertinent criteria contemplate testing of blood pressure subsequent to use of anti-hypertensive medication, and in this instance, there is no showing that predominant readings warrant assignment of a 20 percent rating. No other pertinent symptoms or manifestations are set forth. Thus, use of multiple anti-hypertensive medications or at greater dosage levels does not place the Veteran's hypertension outside of the type of disability picture contemplated by the schedular criteria. The Veteran's current schedular rating both contemplates his reported symptoms and is adequate to fully compensate him for his hypertension. As such, no basis for the assignment of an extraschedular evaluation is found. ORDER An increased rating for hypertension, currently evaluated as 10 percent disabling, is denied. REMAND By this appeal the Veteran also seeks service connection for glaucoma and indicates that his glaucoma is related to inservice eye difficulties. Service treatment records disclose the Veteran's complaints of eye difficulties, including blurred vision, but there is also a showing of high astigmatism that was increasing and adversely affecting his visual acuity. Medical data developed postservice identify astigmatism, presbyopia, cataract(s), dry eye syndrome, and myopia. In addition, the Veteran has indicated that one or more medical professionals have advised him that he has glaucoma and in fact the record includes a clinical assessment by a private medical professional of chronic, primary open angle glaucoma in early 2003. Subsequently compiled VA outpatient treatment records disclose, beginning in 2006 and continuing thereafter, that the Veteran's glaucoma was suspected and that glaucoma was among the Veteran's active health problems. In light of the foregoing, and inasmuch as the Veteran has not been afforded a VA eye examination to date, remand to obtain a VA examination and a medical opinion as to the nexus of any existing eye disorder to service is advisable. The Veteran also seeks an increased rating for his postoperative residuals of a left inguinal hernia, which the RO has rated on the basis of residual scarring. The Veteran alleges that his residuals encompass more than painful scarring, to include internal pain and weakness, which to date have not been adequately addressed by means of a VA medical examination. Notice is taken that a VA examination in May 2007 identified but a single, well-healed incisional scar from a prior left inguinal hernia repair, with a notation that the hernia had not recurred. However, a recurrent left inguinal hernia was thereafter noted, for which a laparoscopic surgical repair was undertaken in June 2007. Testimony of the Veteran at his RO hearing in February 2012 was to the effect that he was not actually examined by the VA examiner who performed the VA examination in 2007. Further VA examination in March 2015 was limited to an evaluation of hernia scars, and while a total of three scars were identified, only two were found to be painful, although not unstable, but without identification of which scars were in fact painful. Notice, too, is taken that the rating criteria for scars were modified in October 2008, but as the underlying claim was filed in July 2007, the rating criteria in effect prior to October 2008 are also for initial consideration by the AOJ on remand, and the conduct of a further examination of the Veteran's hernia and related scarring is deemed necessary. Also, as indicated in the Introduction above, the Veteran has timely filed a notice of disagreement with respect to the RO's denial in January 2015 of TDIU entitlement and remand to permit the AOJ to provide the Veteran with a statement of the case is required per Manlincon, supra. Accordingly, this portion of the appeal is REMANDED for the following actions: 1. Obtain all VA records of treatment not already on file for inclusion in the Veteran's claims folder. 2. Afford the Veteran a VA eye examination in order to ascertain what current eye disorders are in existence, to include glaucoma, and whether any such disorder, if other than congenital or developmental in origin, bears a nexus to military service or any event thereof. The electronic claims folder in its entirety must be made available to and reviewed by the examiner for use in the study of this case. That examination should include a detailed review of the Veteran's medical history and current complaints, as well as a comprehensive physical examination, and any and all indicated diagnostic testing deemed necessary by the examiner. All pertinent diagnoses should be outlined and the examiner should indicate whether each diagnosed entity is of a congenital, developmental, or acquired nature. As to any acquired disorder noted, the VA examiner should be asked to offer an opinion, with complete rationale, as to whether it is at least as likely as not that any such disorder originated in service or is otherwise attributable to service or any event thereof? Specific reference to the nature and origin of the high, increasing astigmatism identified in service and its ultimate effects, if any, should be made. 3. Afford the Veteran VA surgical and skin examinations in order to assess the nature and severity of the postoperative residuals of a recurrent left inguinal hernia. Those examinations should include a detailed review of the Veteran's medical history and current complaints, as well as comprehensive physical examinations and any and all indicated diagnostic testing deemed necessary by the examiner. 4. Furnish the Veteran a statement of the case as to his timely filed notice of disagreement involving the RO's denial of TDIU entitlement in January 2015, followed by notice to him of the action taken, his appellate rights, and the process by which he may wish to perfect any desired appeal. 5. Lastly, readjudicate each of the appellate issues and as to the claim for increase for residuals of a left inguinal hernia, consider and apply the rating criteria for scars in effect prior to October 2008, as well as subsequent thereto. If any benefit sought on appeal is not granted, provide the Veteran with a supplemental statement of the case and afford him a reasonable period in which to respond, prior to returning the case to the Board for further review. No action by the appellant is needed until he receives further notice. The appellant has the right to submit additional evidence and argument on the 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). ______________________________________________ MICHAEL MARTIN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs