Citation Nr: 1619669 Decision Date: 05/16/16 Archive Date: 05/27/16 DOCKET NO. 12-26 397 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Denver, Colorado THE ISSUES 1. Entitlement to a disability rating in excess of 30 percent for hypertensive heart disease, valvular heart disease with left atrial enlargement, dilated aortic root, and increasing aortic insufficiency (previously claimed as valvular disease). 2. Entitlement to a compensable rating for hypertension. REPRESENTATION Appellant represented by: Colorado Division of Veterans Affairs WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD J.A. Williams, Associate Counsel INTRODUCTION The Veteran served on active military duty from November 1966 to November 19. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Denver Colorado, which granted service connection for valvular heart disease and assigned a 10 percent disability evaluation effective May 31, 2011 and continued the Veterans noncompensable rating for hypertension. The Veteran filed a Notice of Disagreement (NOD) in November 2011. A Statement of the Case (SOC) was issued in September 2012, and the Veteran filed his VA Form 9 in September 2012. A Supplemental SOC (SSOC) was issued in September 2015. A July 2013 rating decision recharacterized the Veteran's valvular heart disease as hypertensive heart disease, valvular hear disease with left atrial enlargement, dilated aortic root, and increasing aortic insufficiency and granted an increased rating of 30 percent effective September 28, 2012. A September 2015 rating decision then granted an earlier effective date for the 30 percent disability rating of May 11, 2011. The Veteran testified before the undersigned Veterans Law Judge at a video conference hearing in April 2016. A transcript of the hearing has been associated with the Veteran's claims file. The undersigned left the record open for 30 days to allow the Veteran to submit additional evidence. In April 2016, the Veteran submitted additional evidence with a waiver of the Veteran's right to have additional evidence initially considered by the RO. Accordingly, the Board may consider the new evidence in the first instance. See 38 C.F.R. § 20.1304 (2015). FINDINGS OF FACT 1. On March 16, 2016, prior to the promulgation of a decision in the appeal, the Veteran stated on the record during a video conference hearing before the Board, that he was withdrawing his appeal concerning the issue of entitlement to disability rating in excess of 30 percent for hypertensive heart disease, valvular heart disease with left atrial enlargement, dilated aortic root, and increasing aortic insufficiency (previously claimed as valvular heart disease); there is no question of fact or law remaining before the Board in this matter. 2. Hypertension has not manifested with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more. CONCLUSIONS OF LAW 1. Concerning the issue of entitlement to disability rating in excess of 30 percent for hypertensive heart disease, valvular heart disease with left atrial enlargement, dilated aortic root, and increasing aortic insufficiency (previously claimed as valvular heart disease), the criteria for withdrawal of an appeal by the appellant are met; the Board has no further jurisdiction in this matter. 38 U.S.C.A. § 7105(b)(2), (d)(5) (West 2014); 38 C.F.R. §§ 20.202, 20.204 (2015). 2. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's Duty to Notify and Assist The Veteran's Claims Assistance Act of 2000 (VCAA) describes VA's 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 and 3.326(a) (2015). The Board finds that VA has met all statutory and regulatory notice and duty to assist provisions. With respect to the Veteran's claim for increased rating for valvular heart disease, given his expression of intent to withdraw his appeal in that matter, further discussion of the impact of VA's duties to notify and assist is not necessary. Regarding the Veteran's claim for a compensable rating for hypertension, notice requirements were met in an August 2011 letter. The letter provided notice of how disability rating and effective dates would be determined. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal have been identified and obtained, to the extent possible. The evidence of record includes service treatment records, VA examination reports; private treatment records; and evidence submitted by the Veteran, including his lay statements. The Veteran contends that his military chronological record of medical care "ends on October 27, [1970] despite him being on medical extension for hypertension until December 15, [1970], and thus some of [his] records are missing or the Air Force [documents] were lax." While the Board has considered the Veteran's contentions, there is nothing in the Veteran's service treatment records or personnel files indicating that any portion of his service treatment records is still outstanding. Therefore, the Board finds that VA has satisfied its duty to assist in this regard. The Veteran was afforded VA examinations in October 1971, August 2011, and July 2013. The Board finds that the evaluations were adequate because, as will be shown below, they were based upon consideration of the Veteran's pertinent medical history, his lay assertions and current complaints, and they describe the claimed disabilities in sufficient detail to allow the Board to make a fully informed determination. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (noting that VA must provide an examination that is adequate for rating purposes). Lastly, the Veteran testified during a video conference hearing in April 2016. At the hearing, the undersigned explained the issues on appeal, asked questions focused on the elements necessary to substantiate the claims, and sought to identify any further development that was required. These actions satisfied the Veterans Law Judge's duty to explain fully the issues and to suggest the submission of evidence that may have been overlooked. See Bryant v. Shinseki, 23 Vet. App. 488, 492 (2010). Neither the Veteran nor his representative have contended, and the evidence does not otherwise show that the undersigned failed to comply with 38 C.F.R. § 3.103(c)(2), nor have they identified any prejudice in the conduct of the hearing. Under these circumstances, the Board finds that VA has complied with all duties to notify and assist required under 38 U.S.C.A. § 5103A and 38 C.F.R. § 3.159. General Legal Principles The Board notes that it has reviewed all of the evidence in the Veteran's claims file, with an emphasis on the evidence relevant to these appeals. Although the Board has an obligation to provide reasons and bases supporting its decision, there is no need to discuss, in detail, every piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (holding that VA must review the entire record, but does not have to discuss each piece of evidence). Hence, the Board will summarize the relevant evidence as appropriate and the Board's analysis will focus specifically on what the evidence shows, or fails to show, as to the claims. Increased Rating for Valvular Heart Disease The Board has jurisdiction where there is a question of law or fact on appeal to the Secretary. 38 U.S.C.A. § 7104; 38 C.F.R. § 20.101. Under 38 U.S.C.A. § 7105, the Board may dismiss any appeal, which fails to allege specific error of fact or law in the determination being appealed. An appeal may be withdrawn on the record at a hearing or in writing at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his authorized representative. Id. During the April 2016 hearing, the appellant withdrew his appeal concerning the issue of entitlement to disability rating in excess of 30 percent for hypertensive heart disease, valvular heart disease with left atrial enlargement, dilated aortic root, and increasing aortic insufficiency (previously claimed as valvular heart disease). Hence, there is no allegation of error of fact or law for appellate consideration on this claim. Accordingly, the Board does not have jurisdiction to consider an appeal in this matter, and the appeal must be dismissed. Increased Rating for Hypertension Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 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 civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2015). The basis of disability evaluations is the ability of the body as a whole to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In Fenderson v. West, 12 Vet. App. 119 (1999), it was held that evidence to be considered in the appeal of an initial assignment of a disability rating was not limited to that reflecting the then current severity of the disorder. Cf. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). In Fenderson, the Court also discussed the concept of the 'staging' of ratings, finding that, in cases where an initially assigned disability evaluation has been disagreed with, it was possible for a veteran to be awarded separate percentage evaluations for separate periods based on the facts found during the appeal period. Id. at 126-127. The Veteran bears the burden of presenting and supporting his claim for benefits. 38 U.S.C.A. § 5107(a). In its evaluation, the Board considers all information and lay and medical evidence of record. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board gives the benefit of the doubt to the claimant. Id. The Veteran asserts that his hypertension is more disabling than reflected by his current noncompensable rating. He seeks an increased rating on the basis that without his medication, his blood pressure readings would be higher. See April 2016 Hearing Transcript. Hypertension is rated under Diagnostic Code 7101. Under Diagnostic Code 7101, the criteria for a 10 percent rating are diastolic pressure predominantly 100 or more; or systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. The criteria for a 20 percent rating are diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104 (2015). The Veteran's October 1970 separation examination shows a blood pressure reading of 124/100. A May 1971 VA examination showed the Veteran's blood pressure readings were 130/90 and 129/85. An October 1971 VA examination showed that the Veteran's sitting blood pressure was 122/90 with his sitting after exercise at 132/96, and his blood pressure minutes after exercise was 128/92 However, the blood pressure readings of record during the appeal period do not show that the Veteran had a history of diastolic pressure predominantly 100 or more nor does the record show his systolic pressure predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. During the August 1, 2011 VA examination, the Veteran's blood pressure readings were 121/79, 125/78, and 117/76. The examiner reported that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. During the Veteran's August 26, 2011 VA examination, the Veteran's blood pressure was 105/68. During the July 2013 VA examination, the Veteran's blood pressure was 150/89. The Board finds the VA examiners' findings adequate and highly probative to the question at hand. The examiners possessed the necessary education, training, and expertise to provide the necessary testing. See Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). Private treatment records show the Veteran's blood pressure readings were as follows: 120/82 in August 2012, 122/78 in July 2013, 124/70 in August 2013, 130/80 in November 2013, 154/84 in October 2014, 132/74 in March 2015, 138/80 in September 2015, 136/86 in December 2015, 124/86 in December 2015, and 132/84 in March 2016. In support of this contention, the Veteran submitted internet articles regarding the cause of diabetes from WebMD regarding hypertension. The Board has also considered articles from the American Heart Association, Centers for Disease Control and Prevention, and Wikipedia discussing high blood pressure. Medical treatise evidence can, in some circumstances, constitute competent medical evidence. Wallin v. West, 11 Vet. App. 509, 514 (1998); see also 38 C.F.R. § 3.159(a)(1). However, while the articles submitted by the Veteran addresses hypertension, they do not contain any information or analysis specific to the Veteran's case. As such, the article evidence submitted by the Veteran is of limited probative value. The Board acknowledges the Veteran's assertion that without medication his blood pressure readings would be higher. See April 2016 Hearing Transcript. Although "the Board may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria," Jones v. Shinseki, 26 Vet. App. 56, 62 (2012), given that VA has included the effect of medication as a factor to be considered when rating hypertension, the reasoning of Jones indicates that the Board may reject the Veteran's specific theory of entitlement to a higher rating in this case. Id. at 62 (reasoning that had VA wanted to include the effect of medication as a factor to be considered when rating a particular disability, it would have done so, as it had done in other diagnostic codes (citing 38 C.F.R. § 4.71a, DC 5025 (10 percent rating for fibromyalgia requires symptoms "[t]hat require continuous medication for control"); 38 C.F.R. § 4.97, DC 6602 (rating criteria for bronchial asthma)). Further, while the Veteran is on medication to control his hypertension, a 10 percent rating requires that the Veteran be on medication and have a history of diastolic pressure predominantly 100 or more or a history of a systolic pressure of 160 or more. The Veteran reported that he has been on Cozaar since around 1998 and began taking Colrec in 2010 to control his blood pressure. See April 2016 Hearing Transcript. In this instance, while the evidence shows that the Veteran requires continuous use of medication to control his hypertension, the evidence does not show, that his diastolic blood pressure readings were predominantly 100 or higher or systolic readings predominantly 160 or higher. Indeed, throughout the entire course of the Veteran's appeal, the Veteran's blood pressure readings never rose to the level of 100 diastolic or 160 systolic. In the absence of diastolic readings predominantly 100 or higher or systolic readings predominantly 160 or higher, the criteria for a compensable rating are not met because, unlike other disorders in the Code of Federal Regulations, the rating criteria for hypertension explicitly contemplate the effects of medication. Cf. Jones v. Shinseki, 26 Vet. App. 56, 61 (2012). Therefore, the Board finds that the preponderance of the evidence is against a compensable rating for hypertension at any time during the appeal period. 38 U.S.C.A. § 5107(b) (West 2014); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Board also has considered whether the Veteran's hypertension presents an exceptional or unusual disability picture as to render impractical the application of the regular schedular standards such that referral to the appropriate officials for consideration of an extraschedular rating is warranted. See 38 C.F.R. § 3.321(b)(1) (2015); Bagwell v. Brown, 9 Vet. App. 337, 338-39 (1996). The threshold factor for extraschedular consideration is a finding that the evidence before VA presents such an exceptional disability picture that the available schedular evaluations for that service-connected disability are inadequate. See Fisher v. Principi, 4 Vet. App. 57, 60 (1993) ("[R]ating schedule will apply unless there are 'exceptional or unusual' factors which render application of the schedule impractical."). Here, the rating criteria reasonably describe the Veteran's disability level and symptomatology, and provide for higher ratings for additional or more severe symptomatology than is shown by the evidence. The Veteran's rating for his service-connected hypertension contemplates his current blood pressure levels, with consideration given to the medication that is used to control them. As such, the Veteran's hypertension disability picture is contemplated by the rating schedule and the assigned schedular evaluation is adequate. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Consequently, referral for extraschedular consideration is not warranted. Further, 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. Finally, the Board is cognizant of the ruling in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the United States Court of Appeals for Veterans Claims held that a claim for a total rating based on unemployability due to service-connected disability, either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect that his hypertension results in functional impairment which precludes his ability to obtain or retain substantially gainful employment. Accordingly, the Board finds that a claim or TDIU has not been reasonably raised by the record. ORDER The appeal issue of entitlement to disability rating in excess of 30 percent for hypertensive heart disease, valvular heart disease with left atrial enlargement, dilated aortic root, and increasing aortic insufficiency (previously claimed as valvular heart disease), is dismissed. Entitlement to a compensable rating for hypertension is denied. ____________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs