Citation Nr: 1608854 Decision Date: 03/04/16 Archive Date: 03/09/16 DOCKET NO. 09-50 865 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUES 1. Entitlement to an increased disability evaluation for hypertension, currently rated as 10 percent disabling. 2. Entitlement to an initial compensable disability evaluation for an abdominal aortic aneurysm. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD T. S. Kelly, Counsel INTRODUCTION The Veteran, who is the appellant, had active service from March 1954 to June 1975. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2006 rating determination of the Department of Veterans Affairs (VA) Regional Office. (RO) located in Houston, Texas. The Veteran was scheduled for a Travel Board hearing in July 2014 but requested that the hearing be cancelled and that the appeal continue with regard to the issues listed on the title page. In October 2014, the Board remanded this matter for further development, to include a VA examination. The requested development has been completed and complies with the directives of the Board remand. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2015). 38 U.S.C.A. § 7107(a)(2) (West 2014). In a February 2015 rating determination, the RO denied entitlement to special monthly compensation based upon aid and attendance. In March 2015, the Veteran's representative forwarded additional evidence/information and requested that his matter be reconsidered. It does not appear that the RO has reconsidered the Veteran's claim. The Board does not have jurisdiction over this claim and it is referred to the AOJ for appropriate action. 38 C.F.R. § 19.9(b) (2015). FINDINGS OF FACT 1. The Veteran's hypertension has been shown to be manifested by diastolic pressure predominantly below 110; systolic pressure predominantly below 200; and the need for continuous medication for control. 2. Throughout the claim period, the Veteran's aortic aneurysm measured less than 5 centimeters in diameter, was asymptomatic, did not preclude exertion, and did not require surgical intervention. CONCLUSIONS OF LAW 1. The criteria for an evaluation in excess of 10 percent for the Veteran's hypertension have not been met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.159, 3.321(b)(1), 4.104, Diagnostic Code 7101 (2015). 2. The criteria for an initial compensable disability rating for an aortic aneurysm 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 7110 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duty to Assist and Notify The Veterans Claims Assistance Act of 2000 (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 2014); 38 C.F.R §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Proper VCAA notice 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; (3) and that the claimant is expected to provide. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b)(1). For claims pending before VA on or after May 30, 2008, 38 C.F.R. § 3.159 has been amended to eliminate the requirement that VA request that a claimant submit any evidence in his or her possession that might substantiate the claim. 73 Fed. Reg. 23,353 (Apr. 30, 2008). The Court has also held that that the VCAA notice requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) apply to all five elements of a claim. Those five elements include: 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. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006). As it relates to the claim for an increased evaluation for hypertension, the RO provided the Veteran with notice that informed him of the evidence needed to substantiate his claims in March 2006 and August 2009 letters. The letters told him what evidence he was responsible for obtaining, what evidence VA would undertake to obtain and that he could submit relevant evidence in his possession. The letters also provided the Veteran with notice as to the disability rating and effective date elements of the claims. As it relates to the issue of a higher initial evaluation for an abdominal aortic aneurysm, the courts have held that once service connection is granted the claim is substantiated, additional VCAA 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). The Board also finds that there has been substantial compliance with the assistance provisions set forth in the law and regulations. The record in this case includes service treatment records, VA treatment records, private treatment records, VA examination reports, and lay evidence. The Board finds that the record as it stands includes adequate competent evidence to allow the Board to decide the case and no further action is necessary. See generally 38 C.F.R. § 3.159(c). No additional pertinent evidence has been identified by the claimant. The Veteran has been afforded VA examinations relating to the claimed disabilities. 38 U.S.C.A. § 5103A(d); 38 C.F.R. § 3.159(c)(4). When VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). The Board finds that the VA examinations of record are adequate for rating purposes, because they were performed by a medical professional, were based on a thorough examination of the Veteran, and reported findings pertinent to the rating criteria. Nieves-Rodriguez v. Peake, 22 Vet. App 295 (2008); see Barr v. Nicholson, 21 Vet. App. 303 (2007) (holding that VA must provide an examination that is adequate for rating purposes). Thus, the Board finds that further examinations are not necessary regarding the above issues. The Veteran has been afforded a meaningful opportunity to participate effectively in the processing of the claims, including by submission of statements and arguments through his representative. For these reasons, it is not prejudicial to the appellant for the Board to proceed to finally decide the appeal. Based upon the foregoing, the duties to notify and assist the Veteran have been met, and no further action is necessary to assist the Veteran in substantiating these claims. Evaluations 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 degree of disabilities 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. 38 U.S.C.A. § 1155 (West 2014); 38 C.F.R. § 4.1 (2015). 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. 38 C.F.R. § 4.7 (2015). A veteran's entire history is reviewed when making a disability determination. 38 C.F.R. § 4.1 (2015). When a veteran timely appeals an initial rating for a service-connected disability within one year of the rating decision, VA must consider whether the veteran is entitled to "staged" ratings to compensate him for periods of time since the filing of his claim when his disability may have been more severe than others. Fenderson v. West, 12 Vet. App. 119 (1999). Staged ratings are, however, 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). 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. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the veteran. Equal weight is not accorded to each piece of evidence contained in the record, and every item of evidence does not have the same probative value. When all the evidence is assembled, the Board is responsible for determining whether the evidence supports the claim, or is in relative equipoise, with the Veteran prevailing in either event; or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Hypertension The Veteran maintains that the symptomatology associated with his hypertension warrants an increased evaluation. With regard to hypertension, the rating schedule provides a 10 percent evaluation when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. A 40 percent evaluation requires diastolic pressure of predominantly 120 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. On VA examination in July 2006, the examiner indicated that the Veteran had been suffering from hypertension since 1968. The symptoms were dizziness and chest pain. The Veteran was noted to have been prescribed Atenolol and the response had been good. There were no side effects. Physical examination revealed blood pressure readings of 141/76, 136/78, and 167/81. The Veteran's blood pressure was noted to be controlled by medication. A diagnosis of hypertension was rendered. At the time of a September 2008 VA examination, the Veteran was found to have blood pressure readings of 130/78, 130/78, and 130/78. The examiner rendered a diagnosis of hypertension, stable, with normal blood pressure, under control with medication. The Veteran was afforded an additional VA examination in January 2011. The Veteran reported having been diagnosed with hypertension in 1968. He described symptoms of chest pain, shortness of breath, dizziness when trying to stand up, cramping in his legs, intense headaches and blurred vision. He was noted to be on medication for his blood pressure. Blood pressure readings were 123/66, 117/75, and 124/72. The Veteran was being treated with HCTZ, Enalapril, and Atenolol. The examiner rendered a diagnosis of hypertension. In conjunction with the October 2014 Board remand, the Veteran was afforded a VA examination in December 2014. At the time of the examination, the Veteran was noted to be on multiple medications to keep his blood pressure low due to his aortic aneurysm. He stated he would get light-headed when going from sitting to standing position due to his low blood pressure and felt weak all the time. Blood pressure readings of 110/62, 96/60, and 110/64 were recorded. The examiner noted that due to his orthostatic hypotension, the Veteran had to get up slowly from a sitting position. Treatment records associated with Veteran's claim covering the entire appeal period do not show diastolic pressure readings predominantly 110 or more, and no systolic pressure readings of 200 or more. The Veteran has indicated that the VA examiners did not acknowledge flare-ups, which were productive of higher diastolic pressure than as represented by VA, especially since his hypertension at time of the VA examinations was not confirmed by readings taken two or more times on at least three different days, to his prejudice, which would warrant a rating in excess of 10 percent. The Board has carefully reviewed the evidence of record and finds that the preponderance of the evidence is against the assignment of a disability rating in excess of 10 percent for the service-connected hypertension at any point during the appeal period. VA and private treatment records reflect that during the relevant rating period on appeal, the Veteran's systolic blood pressure was never recorded in a treatment record at 200 or more, and the diastolic blood pressure was never recorded at 110 or more. While the Veteran did indicate that he had hypertensive flare-ups, this does not appear to have occurred for any extended period of time. As such, the Board finds that the weight of the evidence, lay and medical, does not demonstrate that the Veteran's systolic blood pressure is predominantly 200 or more, or that the diastolic blood pressure is predominantly 110 or more which would warrant a 20 percent disability rating. As the preponderance of the evidence is against the appeal for a disability rating for hypertension in excess of 10 percent for the entire rating period on appeal, the appeal must be denied. 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. Abdominal Aortic Aneurysm The rating criteria for aortic aneurysm are found at 38 C.F.R. § 4.104, Diagnostic Code (DC) 7110 (2015). Under DC 7110, a 60 percent rating is warranted if the aortic aneurysm precludes exertion. A 100 percent rating is warranted if the aortic aneurysm is five centimeters or larger in diameter, or is symptomatic, or for an indefinite period from the date of hospital admission for surgical correction. Although DC 7110 does not provide for a zero percent rating, a noncompensable evaluation is assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31 (2015). On VA examination in September 2008, the examiner noted that the aortic aneurysm had been diagnosed in 1996 and had been checked on a yearly basis at Audie Murphy. The aneurysm had slowly increased to 4+ cm. at the time of the examination. Exercise and exertion were specifically noted to not be precluded. The examiner indicated that no surgery had been done yet and reported that when the aneurysm reached 5 cm. there were plans to operate on the aneurysm. A final diagnosis of aortic aneurysm slowly increased in size, at the present time measuring over 4 cm., was rendered. The examiner stated that the aneurysm was secondary to long-standing hypertension and that it was slowly growing, and that his symptoms were increasing mildly in a progressive way. In conjunction with the October 2014 Board remand, the Veteran was afforded an additional VA examination in December 2014. The examiner noted that the Veteran reported that due to his history of aortic aneurysm, they kept his blood pressure low, which caused him to get dizzy at times when standing. The examiner specifically indicated that the aortic aneurysm was less than 5 cms. in diameter, was asymptomatic, and did not preclude exertion. The examiner also indicated that the Veteran's aortic aneurysm did not impact his ability to work. Based on the competent, probative evidence of record, the Board finds that the preponderance of the evidence shows that the Veteran's aortic aneurysm does not preclude physical exertion, and therefore an initial compensable rating is not warranted. While the Veteran has contended that he has flare-up that which are productive of inability to engage in exercise or activities that result in exertion to include ambulating, and standing for prolonged periods of time due to his aneurysm and residuals, the weight of the evidence does not demonstrate that the aortic aneurysm precludes exertion, which is required for the higher 60 percent rating. In addition, at no point has the Veteran's aortic aneurysm measured greater than 5 cm. in diameter, been symptomatic, or required hospitalization or surgical intervention. Thus, a higher 100 percent rating is also not warranted. See 38 C.F.R. § 4.104, DC 7110 (2015). Further, since the Veteran's aortic aneurysm has not required surgery, there are no surgical residuals to evaluate. Accordingly, as the Veteran's disability does not most nearly approximate the criteria associated with a compensable evaluation under 38 C.F.R. § 4.104, DC 7110 (2015), a noncompensable rating is appropriate. See 38 C.F.R. § 4.31 (2015). Extraschedular Consideration The Board had also considered whether an extraschedular rating is warranted for the service-connected hypertension and abdominal aorta during the relevant periods on appeal. Ratings shall be based as far as practicable upon the average impairments of earning capacity with the additional proviso that the Secretary shall from time to time readjust this schedule of ratings in accordance with experience. To accord justice, therefore, to the exceptional case where the schedular ratings are found to be inadequate, the Under Secretary for Benefits or the Director, Compensation and Pension Service, upon field station submission, is authorized to approve on the basis of the criteria set forth in this paragraph an extraschedular rating commensurate with the average earning capacity impairment due exclusively to the service connected disability or disabilities. The governing norm in these exceptional cases is: 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 as to render impractical the application of the regular schedular standards. 38 C.F.R. § 3.321(b)(1). The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. Second, if the schedular rating 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. Thun v. Peake, 22 Vet App 111 (2008). With respect to the first prong of Thun, as to the hypertension disability rating, the Board finds that the symptomatology and impairment caused by the Veteran's hypertension, throughout the appeal period, is fully contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria provide for disability ratings based on the predominant diastolic blood pressure and predominant systolic blood pressure shown during the rating period, as well as any history of diastolic blood pressure predominantly 100 or more with continuous medication required for control. In this case, the Veteran's hypertension requires continuous medication for control and is manifested by a history of diastolic pressure of 100 or more. The Veteran has also reported having dizziness. Dizziness, as reported by the Veteran, is contemplated under high blood pressure readings as a possible result thereof. The Veteran has also advanced having headaches related to the hypertension; however, headache disabilities are addressed in the rating schedule (Diagnostic Code 8100) and the Veteran is currently service connected for headaches. The Veteran has also reported having blurry vision. Again, as these are symptoms related to the service-connected headaches, such symptoms have been addressed in the schedular rating criteria (Diagnostic Code 8100). 38 C.F.R. § 4.124a (2015). As to chest pain and dyspnea, these are symptoms associated with hypertensive heart disease, for which service connection is already in effect. For these reasons, there is no symptomatology and/or functional impairment due to hypertension that is not considered by the schedular rating criteria. Likewise, with the abdominal aortic aneurysm, the Board finds that the symptomatology and impairment caused by the Veteran's aortic aneurysm, throughout the appeal period, is fully contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria provide for disability ratings based upon the size of the aortic aneurysm, post-surgical residuals, and preclusion of exertion. In this case, the Veteran's aortic aneurysm has not been shown to be bigger than 5 cm., to have necessitated surgical intervention, or to have precluded exertion. For these reasons, there is no symptomatology and/or functional impairment due to aortic aneurysm that is not considered by the schedular rating criteria. According to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), a veteran may be entitled to "consideration [under 38 C.F.R. § 3.321(b)] for referral for an extra-schedular evaluation based on multiple disabilities, the combined effect of which is exceptional and not captured by schedular evaluations." Referral for an extraschedular rating under 38 C.F.R. § 3.321(b) is to be considered based upon either a single service-connected disability or upon the "combined effect" of multiple service-connected disabilities when the "collective impact" or "compounding negative effects" of the service-connected disabilities, when such presents disability not adequately captured by the schedular ratings for the service-connected disabilities. In this case, the Veteran has not asserted, and the evidence of record has not suggested, any such combined effect or collective impact of multiple service-connected disabilities that create such an exceptional circumstance to render the schedular rating criteria inadequate. Comparing the Veteran's disability level and symptomatology of the hypertension and aortic aneurysm to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. Absent any exceptional factors associated with hypertension or the aortic aneurysm, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). As to a total disability evaluation based upon individual unemployability (TDIU), such a rating has been in effect based on the Veteran's service-connected disabilities since September 2010. A TDIU claim based on the service-connected hypertension and/or aortic aneurysm is not raised by the Veteran or the record. ORDER A disability evaluation in excess of 10 percent for hypertension is denied. An initial compensable evaluation for an abdominal aortic aneurysm is denied. ____________________________________________ K. J. Alibrando Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs