Citation Nr: 1615935 Decision Date: 04/20/16 Archive Date: 04/26/16 DOCKET NO. 10-13 308 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in San Juan, the Commonwealth of Puerto Rico THE ISSUE Entitlement to an initial compensable evaluation for hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD D. M. Donahue Boushehri, Counsel INTRODUCTION The Veteran served on active duty from June 1980 to September 2008. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a November 2008 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Juan, Puerto Rico which, among other things, granted service connection for hypertension assigning a noncompensable rating. The issue was remanded by the Board in order to obtain outstanding VA treatment records in October 2013. Additional VA treatment records were added to the file dated from August 2008 to May 2013. And the claim was readjudciated in a November 2013 supplemental statement of the case. As a result of these steps taken, the Board finds that there has been substantial compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where remand order of the Board are not followed, the Board errs as a matter of law when failing to ensure compliance). FINDING OF FACT For the entire period on appeal, the Veteran's hypertension was continuously treated with medication, but did not have a history of diastolic pressure predominately 100 or more; the preponderance of the evidence is also against a finding that at any time during the appeal was the Veteran's diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. CONCLUSION OF LAW The criteria for a compensable disability rating for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107(b) (West 2014); 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7101 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duties to Notify and Assist When VA receives a complete or substantially complete application for benefits, it must notify the claimant of the information and evidence not of record that is necessary to substantiate a claim, which information and evidence VA will obtain, and which information and evidence the claimant is expected to provide. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). See also Quartuccio v. Principi, 16 Vet. App. 183 (2002); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In cases such as this, where service connection has been granted and an initial disability rating and effective date have been assigned, the typical service connection claim has been more than substantiated, it has been proven, thereby rendering 38 U.S.C.A. § 5103(a) notice no longer required because the purpose that the notice is intended to serve has been fulfilled. Dingess v. Nicholson, 19 Vet. App. 473 (2006); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). The appellant bears the burden of demonstrating any prejudice from defective notice with respect to downstream elements. Goodwin v. Peake, 22 Vet. App. 128 (2008). There has been no allegation of such error in this case. In light of the above, the Board finds that all notices required by VCAA and implementing regulations were furnished to the Veteran and that no useful purpose would be served by delaying appellate review to send out additional VCAA notice letters. VA must also make reasonable efforts to assist the appellant in obtaining evidence necessary to substantiate the claim for the benefit sought, unless no reasonable possibility exists that such assistance would aid in substantiating the claims. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015). Service treatment records are associated with claims file. All post-service VA and private treatment records identified by the Veteran have also been obtained. The Veteran has not identified any additional records that should be obtained prior to a Board decision. Therefore, VA's duty to further assist the Veteran in locating additional records has been satisfied. See 38 U.S.C.A. § 5103A(d); see also 38 C.F.R. § 3.159 (c)(4) (2015). The Veteran was provided VA examinations in August 2008 and May 2010 which are adequate for the purposes of determining the current severity of his service connected disability as it involved a review of the Veteran's pertinent medical history as well as a clinical evaluation of the Veteran. See generally Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Veteran has not contended that his hypertension has worsened since the prior examination in May 2010. In addition, the VA treatment records dated through May 2013 were substantially similar to the results at his May 2010 VA examination. The mere passage of time between the last examination and the Board's review does not automatically render the examination inadequate; there must be evidence of a change in the condition or allegation of worsening of the condition. Palczewski v. Nicholson, 21 Vet.App. 174, 182 (2007). As the evidence does not reflect, and the Veteran has not contended, that his hypertension has worsened since his May 2010 examination, the Board finds that remand for another examination is unnecessary, and there is no prejudice to the Veteran to proceed with deciding this claim. See Soyini v. Derwinski, 1 Vet. App. 540, 546 (1991) (strict adherence to requirements in the law does not dictate an unquestioning, blind adherence in the face of overwhelming evidence in support of the result in a particular case; such adherence would result in unnecessarily imposing additional burdens on VA with no benefit flowing to the claimant). In light of the foregoing, the Board is satisfied that all relevant facts have been adequately developed to the extent possible; no further assistance to the appellant in developing the facts pertinent to the issue on appeal is required to comply with the duty to assist. 38 U.S.C.A. §§ 5103 and 5103A; 38 C.F.R. § 3.159. II. Analysis The Veteran has asserted entitlement to an initial compensable evaluation for his service-connected hypertension. Disability ratings are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Evidence to be considered in the appeal of an initial assignment of a disability rating is not limited to that reflecting the then current severity of the disorder. Fenderson v. West, 12 Vet. App. 119 (1999). In Fenderson, the Court discussed the concept of the 'staging' of ratings, finding that in cases where an initially assigned disability evaluation has been disagreed with, it is possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Fenderson at 126-28; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hypertension has been evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). Hypertensive vascular disease with 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 continuous medication for control, is rated 10 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more, is rated 20 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. 38 C.F.R. § 4.104. Note (1) to Diagnostic Code 7101 provides that 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 that 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. 38 C.F.R. § 4.104. The Veteran's disability is currently rated as non-compensable. In order for the Veteran to receive a 10 percent evaluation, the evidence would have to show that he has hypertensive vascular disease with 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 continuous medication for control, is rated 10 percent disabling. The Veteran has a diagnosis of hypertension, he takes continuous medication for his disability, but the evidence of record does not indicate that he has a history of diastolic pressure of predominately 100 or more during the period on appeal. Service treatment records were negative for complaints or a diagnosis of hypertension. Of the multiple blood pressure readings in service, there are no records in which the diastolic pressure was 100 or more or systolic pressure was 160 or more. The Veteran was afforded a VA examination in August 2008. At that time his diagnoses included hypertension without hypertensive heart disease. The Veteran stated that in several medical evaluations, the examiners found borderline elevated blood pressures. On one occasion, a nurse advised him to start a low sodium diet and exercise. The examiner noted the date of onset in 1996. Upon physical examination, the blood pressure readings were 145/95, 145/94, and 156/99. Consecutive August 2008 blood pressure readings were noted as 141/87 and 132/92. During a May 2010 VA examination, the Veteran reported he has been followed by VA for his hypertension and that he has been using oral antihypertensive medications with good control. Upon physical examination, the blood pressure readings were 149/99, 149/91, 143/93, and 141/88. The examiner noted that the Veteran retired after 28 years in the military service. He now works as a teacher at a university. VA treatment records dated from August 2008 to May 2013 include ongoing monitoring of blood pressure. In a February 2009 note, the Veteran's blood pressure was noted as 150/90. The examiner indicated the Veteran's blood pressure was not under adequate control; however, he had been without medication. At that time, his medication was restarted. From August 2009 to April 2013, the Veteran's blood pressure was noted to be under good control. The Board has reviewed the evidence of record as well as the Veteran's assertions as to why he should be entitled to a higher evaluation; however the evidence of record does not support an initial compensable evaluation for his service-connected hypertension. The evidence of record shows that his hypertension is well controlled with medication and that he did not have a history of diastolic pressure of 100 during his active military service and he does not have a history of diastolic pressure over 100 since his separation from service. The preponderance of the evidence is also against a finding that at any time during the appeal was the Veteran's diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. See 38 C.F.R. § 4.1014, Diagnostic Code 7101. The Board has carefully considered the Veteran's contentions, noting that he is taking medication for the disability. The evidence, however, weighs against a finding that there's a history of diastolic pressure of 100. Without this history, a compensable rating is not warranted without evidence that the Veteran currently (or anytime during the appeal period) has diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. Further, the evidence does not indicate that the disability has otherwise causing functional impairment. The Board has considered whether referral for extraschedular consideration is warranted. 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. 38 C.F.R. § 3.321(b)(1) (2015); 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 claimant's level of disability and symptomatology and is found inadequate, the Board must determine whether the claimant'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 VA Under Secretary for Benefits or the Director of the Compensation Service to determine whether the veteran's disability picture requires the assignment of an extraschedular rating. Turning to the first step of the extraschedular analysis, the Board finds that the symptomatology and impairment caused by the Veteran's service-connected hypertension is specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria specifically provide for disability ratings based on a combination of history (blood pressure readings and medication) and clinical findings (blood pressure readings). The schedular rating criteria at Diagnostic Code 7101 specifically provide alternative criteria for ratings of hypertension based on systolic blood pressure readings, diastolic pressures readings, or medication for control in the context/history of elevated blood pressure readings. The schedule is intended to compensate for average impairments in earning capacity resulting from service-connected disability in civil occupations. 38 U.S.C.A. § 1155. 'Generally, the degrees of disability specified [in the rating schedule] are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability.' 38 C.F.R. § 4.1. In this case, the Veteran's symptoms are specifically contemplated by the schedular rating criteria discussed above. Additionally, he has not alleged or indicated that the collective impact or combined effect of more than one service-connected disability presents an exceptional or unusual disability picture to render inadequate the schedular rating criteria. See Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). Thus, 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). Lastly, the Board is not considering a total disability evaluation based on individual unemployability, as the Veteran is currently working and has not indicated that his service-connected hypertension impairs his ability to maintain employment. ORDER Entitlement to an initial compensable evaluation for hypertension is denied. ____________________________________________ Nathaniel J. Doan Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs