Citation Nr: 1624692	
Decision Date: 06/20/16    Archive Date: 06/29/16

DOCKET NO.  08-21 865	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in St. Petersburg, Florida


THE ISSUES

1. Entitlement to a disability rating for dislocation of the right shoulder (major) in excess of 20 percent prior to October 18, 2011, and in excess of 40 percent thereafter. 

2. Entitlement to a disability rating in excess of 10 percent for a medial meniscus tear and osteoarthritis of the right knee.

3. Entitlement to a disability rating in excess of 10 percent for hypertension.

4. Entitlement to a total rating based upon individual unemployability due to service-connected disabilities (TDIU).

5. Entitlement to an increased rating, greater than 10 percent, for tinnitus. 

6. Entitlement to service connection for posttraumatic stress disorder (PTSD).

7. Entitlement to service connection for a left knee disorder.

8. Entitlement to service connection for a left shoulder disorder.

9. Entitlement to service connection for erectile dysfunction, to include as secondary to hypertension.

10. Entitlement to service connection for heart problems, to include as secondary to hypertension.

11. Entitlement to service connection for hemophilia (also claimed as excessive bleeder).


REPRESENTATION

Appellant represented by:	Disabled American Veterans


ATTORNEY FOR THE BOARD

J. Schulman, Counsel


INTRODUCTION

The Veteran served on active duty with the United States Army from February 1970 to December 1971.

These matters come before the Board of Veterans' Appeals (Board) on appeal from a July 2007 rating decision of the St. Petersburg, Florida, Department of Veterans Affairs (VA) Regional Office (RO).

On his July 2008 substantive appeal, the Veteran requested a hearing before a Veterans Law Judge (VLJ) sitting at the Central Office in Washington, D.C. A hearing was scheduled for January 2011, but a month prior to that hearing the Veteran requested a postponement due to difficulty making travel arrangements. The Central Office hearing was rescheduled for April 2011, but one month prior to that hearing, the Veteran indicated that he would be unable to attend that hearing as well due to physical and financial reasons. See March 2011 statement. In light of the above, in a September 2011 remand, the Board considered the Veteran's request for a Board hearing to have been withdrawn.  

On a Notice Response form received in October 2012, the Veteran again asked for a Board hearing, and explained that because of his physical condition he was unable to travel to the previously scheduled hearing. In an April 2014 statement, the Veteran's representative asked that the Veteran's October 2012 request for a Travel Board hearing be honored. The Board remanded the Veteran's claims in May 2014, with orders for the RO to schedule another hearing before a VLJ at the RO. That hearing was scheduled for January 2015, with the Veteran having been notified in December 2014. On January 8, 2015, four days before his scheduled hearing, the RO received a hand written note from the Veteran stating that he had "car issues" and could not attend that hearing. He also asked that the hearing be rescheduled.

38 C.F.R. § 20.740 (2015) requires that "[r]equests for a change in a hearing date may be made at any time up to two weeks prior to the scheduled date of the hearing if good cause is shown. . . . Examples of good cause include, but are not limited to, illness of the appellant and/or representative, difficulty in obtaining necessary records, and unavailability of a necessary witness." The Veteran's stated reason does not constitute "good cause," and an additional hearing will not be scheduled.

The issues of service connection for PTSD, left knee and shoulder disorders, erectile dysfunction, heart problems, and hemophilia, as well as entitlement to an increased rating for tinnitus and TDIU, are addressed in the REMAND portion of the decision below and are REMANDED to the AOJ.



FINDINGS OF FACT

1. Prior to October 18, 2011, dislocation of the right shoulder was productive of motion functionally limited to not less than 140 degrees of flexion, 80 degrees of rotation, and 140 degrees of abduction.

2. Since October 18, 2011, dislocation of the right shoulder has been productive of motion functionally limited to not less than 20 degrees of flexion and abduction.

3. Throughout the entire rating period, medial meniscus tear and osteoarthritis of the right knee has been productive of extension functionally limited to not less than 90 degrees and extension limited to not more than 0 degrees.

4. Throughout the entire rating period, hypertension has been manifested by systolic blood pressure readings primarily below 200 and diastolic blood pressure readings primarily below 110.


CONCLUSIONS OF LAW

1. Prior to October 18, 2011, the criteria for a rating in excess of 20 percent for dislocation of the right shoulder were not met or nearly approximated. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5299-5201 (2015).

2. Since October 18, 2011, the criteria for a rating in excess of 40 percent for dislocation of the right shoulder have not been met or nearly approximated. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Code 5299-5201 (2015).

3. The criteria for a rating in excess of 10 percent for a medial meniscus tear and osteoarthritis of the right knee have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.71a, Diagnostic Code 5260-5010 (2015).

4. The criteria for a rating in excess of 10 percent for hypertension have not been met or more nearly approximated at any time during the rating period on appeal. 38 U.S.C.A. §§ 1155, 5103(a), 5103A, 5107(b) (West 2014); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.104, Diagnostic Code 7101 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

Duties to Notify and Assist

VA has a duty 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). Notice letters were sent to the Veteran in April 2007 and June 2008. The notice included descriptions of what information and evidence must be submitted to substantiate the claims, including a description of what information and evidence must be provided by the Veteran, and what information and evidence would be obtained by VA. The Veteran was also advised to inform VA of any additional information or evidence that VA should have, and to submit evidence in support of the claims to the RO. The content of the letters complied with the requirements of 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b).

For an increased-compensation claim, 38 U.S.C.A. § 5103(a) requires, at a minimum, that VA notify the claimant that, to substantiate a claim, the medical or lay evidence must show a worsening or increase in severity of the disability. Vazquez-Flores v. Shinseki, 580 F.3d 1270 (2009), see also Vazquez-Flores v. Shinseki, 24 Vet. App. 94 (2010). Compliant notice was provided in the letter sent to the Veteran in June 2008. Although VA's duty to notify was not fully satisfied until after the initial adjudication of the issues on appeal, the issues were readjudicated, most recently, with the issuance of a supplemental statement of the case in October 2012, thus curing any timing defect. Prickett v. Nicholson, 20 Vet. App. 370, 376 (2006) (the issuance of a fully compliant notification followed by readjudication of the claim, such as a statement of the case or supplemental statement of the case, is sufficient to cure a timing defect). 

VA also has a duty to assist an appellant in the development of the claim. VA must make reasonable efforts to assist the claimant 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 claim. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159 (2015); see Golz v. Shinseki, 590 F.3d 1317, 1320-21 (2010) (stating that the "duty to assist is not boundless in its scope" and "not all medical records . . . must be sought - only those that are relevant to the veteran's claim").

VA has satisfied its duty to assist by acquiring service records as well as records of treatment to the extent that such records have been identified by the Veteran. These pertinent records have been associated with the Veteran's claims file and reviewed in consideration of the issues before the Board. The duty to assist was further satisfied by VA examinations in July 2007 and October 2011 when examiners conducted physical examinations, recorded his history, and provided factually supported and explained opinions. While VA the July 2007 examiner was not provided the Veteran's claims file for review, accurate histories were elicited from the Veteran regarding his shoulder, knee, and hypertension symptoms. See Harris v. West, 203 F.3d 1347, 1350-51 (Fed. Cir. 2000) (examiner opinion based on accurate lay history deemed competent medical evidence in support of the claim); Kowalski v. Nicholson, 19 Vet. App. 171, 177 (2005) (holding that a medical opinion cannot be disregarded solely on the rationale that the medical opinion was based on history given by the veteran). VA's duty to assist with respect to obtaining a VA examination or opinion has been met. 38 C.F.R. § 3.159(c)(4) (2015); Sickels v. Shinseki, 643 F.3d 1362 (Fed. Cir. 2011) (holding that the Board is entitled to presume the competence of a VA examiner and the adequacy of their opinion). 

In September 2011 and May 2014, the Board remanded the claims on appeal for additional development, including retrieval of treatment records, and completion of VA examinations. The RO substantially complied with the remand directives, and 
the Board may properly proceed with the decisions below. See Stegall v. West, 11Vet. App. 268, 271 (1998) (noting the Board's duty to "insure [the RO's] compliance" with the terms of its remand orders).

Increased Ratings, Generally

The Veteran was previously awarded service connection and assigned initial disability ratings for dislocation of the right shoulder, medial meniscus tear and osteoarthritis of the right knee, and hypertension. Appeals of the initial ratings are not before the Board; rather the Veteran seeks increased ratings. In claims for increased ratings, separate disability ratings may be assigned for separate periods of time in accordance with the facts found; such separate disability ratings are known as staged ratings. In Hart v. Mansfield, the Court of Appeals for Veterans Claims (Court) held that staged ratings could be assigned in claims for increased disability ratings where "the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings." 
 Hart v. Mansfield, 21 Vet. App. 505, 511 (2007). 

Disability evaluations are determined by evaluating the extent that a veteran's service-connected disability adversely affects the ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). 38 U.S.C.A. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10 (2015). 

When all the evidence is assembled, the Board is then responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether the preponderance of the evidence is against the claim, in which case the claim is denied. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. §§ 3.102, 4.3 (2015). If two evaluations are potentially applicable, the higher evaluation 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 (2015). Further, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998) (per curiam).

Additionally, the evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

When evaluating musculoskeletal disabilities, such as those relating to the knee and shoulder, in addition to applying schedular criteria, VA may consider granting a higher rating in cases where the claimant experiences additional functional loss due to pain, weakness, excess fatigability, or incoordination, to include with repeated use or during flare-ups, and those factors are not contemplated in the relevant rating criteria. See 38 C.F.R. §§ 4.40, 4.45; DeLuca v. Brown, 8 Vet. App. 202, 204-7 (1995). The provisions of 38 C.F.R. § 4.40 and 38 C.F.R. § 4.45 are considered in conjunction with the Diagnostic Codes predicated on limitation of motion. See Johnson v. Brown, 9 Vet. App. 7 (1996). The intent of the Rating Schedule is to recognize actually painful, unstable or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. 38 C.F.R. § 4.59. When 38 C.F.R. § 4.59 is raised by the claimant or reasonably raised by the record, even in non-arthritis contexts, the Board should address its applicability. Burton v. Shinseki, 25 Vet. App. 1, 5 (2011).

Generally, lay evidence is competent with regard to a disease with "unique and readily identifiable features" that is "capable of lay observation." See Barr v. Nicholson, 21 Vet. App. 303, 308-09 (2007). 


Increased Rating for Dislocation of the Right Shoulder

Residuals of the Veteran's dislocated right shoulder are rated as 20 percent disabling prior to October 18, 2011, and 40 percent disabling thereafter. The disability is rated under 38 C.F.R. § 4.71a, Diagnostic Code (DC or Code) 5299-5201 (2015). Hyphenated Codes are used when a rating under one Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2015). The appellant's specific disability is not listed in the Rating Schedule, and the RO assigned Diagnostic Code 5299 pursuant to 38 C.F.R. § 4.27, which provides that unlisted disabilities requiring rating by analogy will be coded by the numbers of the most closely related body part and "99." See 38 C.F.R. § 4.20 (2015). The RO determined that the most closely analogous Diagnostic Code was 38 C.F.R. § 4.71a, DC 5201 for limitation of motion of the arm.

DC 5201 provides ratings of 20 percent for range of motion of the major shoulder limited to shoulder level (90 degrees); 30 percent for range of motion in the minor arm limited to midway between the side and shoulder level (45 degrees); and 40 percent for range of motion limited in the major arm to 25 degrees from the side. 38 C.F.R. §4.71a, DC 5201.

Prior to October 18, 2011, the Veteran's dislocated right shoulder has been not more than 20 percent disabling. Specifically, right shoulder symptoms have resulted in motion functionally limited to not less than 140 degrees of flexion, 80 degrees of rotation, and 140 degrees of abduction.

In January 2011, the Veteran reported aching joints, including the shoulders, which he attributed to working for many years as a marine mechanic. Although they ached, a July 2011 treatment report reflects that the Veteran maintained "good [range of motion] at both shoulders [but] with some discomfort on full elevation" of the arms.

On VA examination in July 2007, the Veteran reported increased difficulty with mobility in the right shoulder - his dominant shoulder. The joint was painful and weak, but without instability or stiffness. Flexion was to 150 degrees with pain at 140 degrees, abduction was to 140 degrees with pain at 130 degrees, and both internal and external rotation was to 90 degrees with pain at 80 degrees. There was no additional limitation of motion on repetitive use testing, and X-ray imaging showed mild to moderate degenerative changes of the right acromioclavicular joint. The examiner stated that shoulder symptoms included crepitus, painful movement, weakness, and guarding of movement, and occupational effects included problems with lifting and carrying, weakness, and fatigue.

Prior to October 18, 2011, when considering additional functional limitations due to weakness, fatigability, and incoordination, the Veteran's right shoulder has not been productive of symptoms which more closely reflect the criteria for a rating a greater than 20 percent. Again, to assign a rating of greater than 20 percent for the minor arm, movement must be limited to only 25 degrees of motion from the side of the body. 38 C.F.R. § 4.71a. The Veteran's shoulder does not meet or approximate these findings.

To the extent that he has endorsed pain and limitations such as weakness and guarding of movement, such reports from the Veteran are probative in describing his level of symptomatology. However, even when viewed in the most sympathetic light, the symptoms do not result in a disability picture that more closely matches the criteria of the next higher, 30 percent, rating. The preponderance of the evidence is against the claim for a rating greater than 20 percent, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 

Effective October 18, 2011, the Veteran's right shoulder has been rated as 40 percent disabling and the Board finds that since October 18, 2011, the dislocated right shoulder has been not more than 40 percent disabling. Specifically, symptoms have resulted in motion functionally limited to not less than 20 degrees of flexion and abduction.

On VA examination in October 2011, flexion and abduction of the right shoulder were to 40 degrees with pain at 20 degrees, and on repetitive use testing flexion and abduction were to 40 degrees. Functional impairment included less movement than normal, weakened movement, excess fatigability, and pain on movement. The Veteran also had localized tenderness in the right shoulder with guarding. Muscle strength was four out of five in the shoulder, and the Veteran denied flare-ups of symptoms. He reported infrequent episodes of recurrent dislocation (subluxation), with guarding of movement only at the shoulder level. During the examination, the Veteran was unable to perform several orthopedic tests due to "his very limited [range of motion] at the right shoulder joint." The same limitation resulted in his inability to lift or perform any overhead tasks with the right arm. In spite of these limitations, the examiner opined that the Veteran's right shoulder condition did not preclude sedentary employment not requiring overhead work, lifting, pushing, pulling, crawling, climbing, driving, or repetitive motion using the arms.

Since October 2011, the Veteran has been receiving the highest schedular rating based on limitation of motion of the right shoulder. Accordingly, the provisions of 38 C.F.R. §§ 4.10, 4.40 and 4.45 are not applicable to the Veteran's current claim. Johnston v. Brown, 10 Vet. App. 80 (1997).

During both periods on appeal, the Board has considered whether a higher rating may be warranted for the right shoulder under an alternative Code. However, there is no evidence of ankylosis of scapulohumeral articulation (DC 5200) or impairment of the humerus (DC 5202), and these are the only Codes that provide schedular ratings greater than those currently assigned. Having evaluated the right shoulder on a schedular basis, the Board has also considered whether referral for an extraschedular rating is warranted for the same. 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. Thun v. Peake, 22 Vet. App. 111 (2008). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the Veteran's service-connected disability with the established criteria found in the rating schedule for that disability. If the criteria reasonably describe the Veteran's disability level and symptomatology, then the Veteran's disability picture is contemplated by the rating schedule, the assigned schedular evaluation is adequate and no referral is required. Id. at 115.

The schedular rating criteria used to rate the right shoulder reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of limitation of motion, to include as due to factors such as pain and weakness; thus, the demonstrated manifestations - namely loss of range of motion and weakness - are contemplated by the provisions of the rating schedule as these either expressly mirror the rating criteria (limitation of motion) or are a direct consequence (a reduction in the capacity to lift or carry). The evidence does not show unique or unusual symptomatology regarding the Veteran's service-connected right shoulder disability that would render the schedular criteria inadequate. Additionally, the Veteran 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.

The preponderance of the evidence is against a finding of unique or unusual symptomatology regarding the Veteran's service-connected right shoulder that would render the schedular criteria inadequate. The schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. The preponderance of the evidence is also against the claims for a rating greater than 20 percent prior to October 18, 2011 and of greater than 40 percent thereafter, and there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Increased Rating for Medial Meniscus Tear and Osteoarthritis of the Right Knee

Medial meniscus tear and osteoarthritis of the Veteran's right knee is rated as 10 percent disabling, effective December 12, 1998, under 38 C.F.R. § 4.71a, DC 5260-5010. In an October 2012 decision by the RO, a separate compensable rating was granted for instability of the right knee, effective October 18, 2011, the date of a VA examination showing instability. The Veteran did not appeal from either the rating of the effective date established, and thus the rating for right knee instability is not on appeal.

Outside of the use of "99" Codes as described above and used for rating the Veteran's right shoulder disability, hyphenated Codes, such as the Code used to rate the right knee, are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27 (2015). In this case, DC 5260 is used for rating limitation of motion of the knee, while DC 5010 relates to traumatic arthritis, the underlying source of the disability.  

Under DC 5010, arthritis due to trauma, substantiated by x-ray findings, is rated under DC 5003 for degenerative arthritis, which itself directs that degenerative arthritis established by x-ray findings is rated on the basis of limitation of motion under the appropriate Code for the specific joint or joints involved. 38 C.F.R. § 4.71a, DC 5010. When, however, the limitation of motion of the specific joint or joints involved is noncompensable under the appropriate Diagnostic Codes, a rating of 10 percent is for application for each such major joint or group of minor joints affected by limitation of motion, to be combined, not added under DC 5003. Limitation of motion must be objectively confirmed by findings such as swelling, muscle spasm, or satisfactory evidence of painful motion. 38 C.F.R. § 4.71a, DC 5003 (2015).

VA regulations provide that normal range of motion for the knee is from 0 degrees of extension to 140 degrees of flexion. 38 C.F.R. § 4.71, Plate II (2015). Under DC 5260, a 10 percent rating is assigned for flexion of the leg limited to 45 degrees; a 20 percent rating is assigned for flexion of the leg limited to 30 degrees; and a 30 percent rating is assigned for flexion of the leg limited to 15 degrees. 38 C.F.R. § 4.71a, DC 5260 (2015).  

The Board has also considered whether a separate evaluation is warranted for both limitation of extension and limitation of flexion. See VAOPGCPREC 9-04 (interpreting that separate ratings may be granted based on compensable limitation of flexion under DC 5260, as well as compensable limitation of extension under DC 5261). Under DC 5261, a 10 percent rating is assigned for extension of the leg limited to 10 degrees; a 20 percent rating is assigned for extension of the leg limited to 15 degrees; a 30 percent rating is assigned for extension of the leg limited to 20 degrees; a 40 percent rating is assigned for extension of the leg limited to 30 degrees; and a 50 percent rating is assigned for extension of the leg limited to 45 degrees. 38 C.F.R. § 4.71a, DC 5261 (2015).

The right knee disorder has not been more 10 percent disabling at any time during the period on appeal. Specifically, even when considering his complaints of pain, pain on motion, and functional loss, his right knee disability has resulted in flexion functionally limited to no less than 90 degrees and extension limited to no more than 0 degrees.

On VA examination in July 2007, the Veteran reported increased difficulty with mobility in the right knee. He was able to stand for more than one, but less than three hours at a time, and walk for one to three miles. The right knee showed no evidence of deformity, or instability, but was painful. There were no episodes of dislocation or subluxation, and the joint locked several times a year, but less than monthly. The Veteran stated that he experienced additional limitations with walking or standing if he twists or stoops, causing increased pain in right knee. Flexion was to 140 degrees with pain at 130 degrees, and extension was to zero degrees without pain. The Veteran had tenderness and guarding of movement, but no other knee abnormalities. X-ray imaging showed mild narrowing of lateral patellofemoral joint compartment, but was otherwise unremarkable. Right knee symptoms resulted in "significant effects" occupationally, including decreased mobility, weakness, and fatigue.

During an October 2011 VA examination, the Veteran showed flexion to 110 degrees with pain at 90 degrees, and extension to zero degrees. Repetitive-use testing was conducted but did not change the Veteran's range of motion. Functional losses due to right knee symptoms included reduced and weakened movement, excess fatigability, pain on motion, swelling, and occasional locking of the right knee. The examiner noted evidence of medial-lateral instability, for which the Veteran has been awarded a separate 10 percent evaluation, effective the date of this examination, which is not on appeal. The Veteran had right knee medial joint line tenderness with crepitus, and used a cane to ambulate. Imaging studies showed mild medial joint compartment narrowing bilaterally and mild patellofemoral degenerative changes, but were otherwise unremarkable. The examiner opined that service-connected degenerative joint disease of the right knee did not "preclude sedentary employment not requiring standing more than a few minutes, walking more than 100 feet, sitting more than 30 minutes at a time, kneeling, squatting, climbing stairs or ladders or pushing or exerting any force with the legs."

There is no evidence suggestion that the Veteran has had functional limitation of extension of the knee, and on both VA examinations the Veteran had full extension to zero degrees. Treatment records otherwise fail to show any evidence of less than full extension, and without such evidence a separate compensable rating for limitation of extension cannot be granted. Furthermore, even taking in to account the Veteran's reports of pain, tenderness, and guarding on flexion, the Veteran is not functionally limited to 30 degrees or less of flexion, and a rating of greater than 10 percent cannot be granted. 38 C.F.R. §4.71a.

As with the right shoulder, the Board has considered whether referral for an extraschedular rating is warranted for the right knee disability, but one is not. The schedular rating criteria used to rate the Veteran's right knee above, reasonably describe and assess the Veteran's disability level and symptomatology. The criteria rate the disability on the basis of functional limitation of motion, to include due to factors such as weakness, fatigability, incoordination, and pain on movement; thus, the demonstrated manifestations - namely limitation of flexion with pain, weakened movement, and excess fatigability - are contemplated by the provisions of the rating schedule. The evidence does not show unique or unusual symptomatology regarding the Veteran's service-connected right knee that would render the schedular criteria inadequate. The schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. 

The preponderance of the evidence is against the claim, and the Veteran's medial meniscus tear and osteoarthritis of the right knee has been 10 percent disabling, and no higher, throughout the entire period on appeal. As the preponderance of the evidence is against the claim, there is no doubt to be resolved. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 4.3, 4.7.

Increased Rating for Hypertension

The Veteran's hypertension is rated as 10 percent disabling, under 38 C.F.R. § 4.104, DC 7101 (2015), effective as of July 19, 1988. Under DC 7101, a 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. 38 C.F.R. § 4.104, DC 7101 (2015). A 10 percent rating is also assigned when the individual has a history of diastolic pressure predominantly 100 or more who requires continuous medication for control; a 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more; a 40 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 120 or more. Id. Finally, hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. 

Hypertension has been not more than 10 percent disabling at any time during the period on appeal. Specifically, hypertension has been manifested by systolic blood pressure readings primarily below 200 and diastolic blood pressure readings primarily below 110.

On VA examination in July 2007, the Veteran reported that hypertension had been stable over the past year, and the examiner noted that the medications he was taking caused "no side effects." The Veteran's blood pressure was taken three times, with readings of 153/101, 151/98, and 146/93. The examiner opined that hypertension had "significant effects" occupationally, including "poor social interactions," and noted that according to the Veteran, "stress on [the] job sometimes causes [his blood pressure] to increase."

Periodic measurements reflect blood pressure readings of 125/77 in April 2008, 126/78 in February 2009, 128/81 in July 2009, 230/90 in January 2010, and 146/92 in January 2011. In October 2011, VA examination showed that the Veteran was taking the medications atenolol, hydrochlorothiazide, and lisinopril. All were "partially effective," and had potential side effects including fatigue and occasional dizziness. His blood pressure during the examination was 157/96, 156/94, and 145/97. The Veteran reported increased fatigue and occasional dizziness, especially when standing suddenly. These symptoms had onset with when he started taking his current regime of medication. The symptoms limited the Veteran from climbing ladders and similar activities where falling could be a concern, and "generally affecting most activities by the fatigue." The examiner opined, however, that "service-connected hypertension does not preclude sedentary employment not requiring climbing or operation of machinery or driving."

Again, in order to award a rating of greater than 10 percent, the evidence must reflect that the Veteran's diastolic pressure has been predominantly 110 or more, or that systolic pressure has been predominantly 200 or more. The Board recognizes that the Veteran takes continuous medication to control his hypertension, however, the effects of medication are contemplated under DC 7101. See Jones v. Shinseki, 26 Vet. App. 56 (2012). Thus, given that diastolic pressure has not exceeded 110, and that systolic pressure has not exceeded 200 at any time during the period on appeal, a schedular rating of greater than 10 percent cannot be granted.

The schedular rating criteria rate the Veteran's hypertension based on the predominant recorded blood pressure, as well as his use of medicine for treatment and control of his blood pressure. The Veteran takes continuous medication to control his hypertension, which is manifested primarily by systolic readings below 200 and diastolic readings below 110. Such findings are contemplated by the schedular rating criteria. There is nothing exceptional or unusual about that disorder, because the rating criteria reasonably describe his disability level and symptomatology. Thun, 22 Vet. App. at 115. Therefore, the Veteran does not meet the criteria for referral to the Director of the VA Compensation and Pension Service. 

Additionally, the Veteran 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). Nonetheless, the Board has fully considered the Veteran's additional service-connected disabilities - dislocation of the right shoulder, medial meniscus tear and osteoarthritis of the right knee, instability of the right knee, contusion of the lower left abdomen, and tinnitus - in concluding that referral for consideration of an extraschedular rating is not warranted. The schedular evaluation is adequate, and referral for consideration of extra-schedular evaluation is not required. 38 C.F.R. § 3.321; Thun, 22 Vet. App. 111. 


ORDER

A rating in excess of 20 prior to October 18, 2011, and in excess of 40 percent thereafter, for dislocation of the right shoulder is denied.

A rating in excess of 10 percent for medial meniscus tear and osteoarthritis of the right knee is denied.

A rating in excess of 10 percent for hypertension is denied.


REMAND

Total Disability Rating Based on Individual Unemployability

The Veteran contends that his service-connected disabilities - including hypertension, and orthopedic disabilities of the right knee and shoulder - render him unable to work and entitled to TDIU. His reported employment history has been limited to physical labor, primarily as a marine mechanic. The Board recognizes VA examiners' opinions that the Veteran is physically capable of performing sedentary occupations that do not require any upper body exertion, however no examiner who has arrived at this conclusion has discussed the Veteran's education and past work experience. See Beaty v. Brown, 6 Vet. App. 532, 538 (1994) (noting that the Board's determination that the Veteran could perform sedentary work had no plausible basis in the record when the Veteran had an eighth grade education, had been a farmer for 30-40 years and repeated unsuccessful efforts to obtain non-farming employment). The Veteran has not met the schedular criteria for the grant of TDIU under 38 C.F.R. § 4.16(a) (2015), and thus submission to the VA Director of Compensation Service for extra-schedular consideration is warranted under 38 C.F.R. §4.16(b). 

Statement of the Case

In a July 2015 decision, the RO denied service connection for PTSD, left knee and shoulder disorders, erectile dysfunction, heart problems, and hemophilia, as well as entitlement to an increased rating for tinnitus. The Veteran submitted a timely notice of disagreement with those determinations in September 2015. Since the issuance of and development letter later that month, no subsequent actions have been taken on the Veteran's appeals, including the issuance of a Statement of the Case. Manlincon v. West, 12 Vet. App. 238 (1999).

Accordingly, the case is REMANDED for the following action:

1. Issue the Veteran a Statement of the Case on the issues of: 
   
      (1) entitlement to service connection for PTSD;
(2) entitlement to service connection for a left knee disorder;
(3) entitlement to service connection for a left shoulder disorder;
(4) entitlement to service connection for erectile dysfunction;
(5) entitlement to service connection for a heart disorder, claimed as heart problems;
(6) entitlement to service connection for hemophilia;
(7) entitlement to an increased rating, greater than 10 percent, for tinnitus. 
   
The Veteran must be advised that for the Board to have jurisdiction in these matters, he must file a timely substantive appeal responding to the Statement of the Case. Should the Veteran submit a timely substantive appeal, the matter must be returned to the Board for appellate review.
		
2. Request that the Veteran submit any outstanding medical or non-medical evidence to support his claim for TDIU.

3. Refer the claim to the Director of VA's Compensation and Pension Service for consideration of entitlement to TDIU in accordance with 38 C.F.R. § 4.16(b). In evaluating the Veteran's claim, the Director is specifically asked to:
   
a. consider the combined impact of the Veteran's service-connected disabilities;
b. address his March 2011 statement that medications he takes to treat hypertension specifically preclude him from flying, driving, and the use of machinery;
c. discuss his occupational capacity, given his employment history as a manual laborer.

4. After the development requested above has been completed to the extent possible, the RO should again review the record, readjudicate the claim for TDIU, and the appellant and representative, if any, should be furnished a Supplemental Statement of the Case and given the opportunity to respond thereto.


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).




______________________________________________
Vito A. Clementi
Veterans Law Judge, Board of Veterans' Appeals




Department of Veterans Affairs