Citation Nr: 1625790 Decision Date: 06/28/16 Archive Date: 07/11/16 DOCKET NO. 10-44 062 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Petersburg, Florida THE ISSUES 1. Entitlement to a compensable rating for hypertension. 2. Entitlement to an initial rating in excess of 10 percent for coronary artery disease. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD A. Ishizawar, Counsel INTRODUCTION The appellant is a Veteran who served on active duty from June 1964 to January 1989. These matters come before the Board of Veterans' Appeals (Board) on appeal from March 2007 and November 2014 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Petersburg, Florida. The March 2007 rating decision, in pertinent part, denied a compensable rating for hypertension. The Veteran's notice of disagreement (NOD) was received in April 2007. A statement of the case (SOC) was issued in September 2010, and a substantive appeal was received in October 2002. The November 2014 rating decision granted service connection for coronary artery disease, rated 10 percent, effective June 30, 2014 (date of claim). In January 2015, the Veteran filed an NOD with the rating assigned by the November 2014 rating decision for his coronary artery disease, but not the effective date assigned. An SOC was issued in June 2015, and a substantive appeal was received in July 2015. In a statement received in October 2010, the Veteran requested a hearing before a Decision Review Officer (DRO) at the RO, in conjunction with his claim for an increased rating for hypertension. Such a hearing was scheduled for July 2011; however, the day before the scheduled DRO hearing, the Veteran withdrew his hearing request and instead held an informal conference with a DRO. A report of the informal conference is associated with the Veteran's claims file. The Veteran has not requested a hearing before a DRO at the RO, or before the Board, in conjunction with his claim for an increased initial rating for coronary artery disease. The issue entitlement to an increased initial rating for coronary artery disease is addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDING OF FACT It is reasonably shown that the Veteran has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control of his hypertension. CONCLUSION OF LAW A 10 percent rating (but no higher) is warranted for hypertension. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code (DC) 7101 (2015). REASONS AND BASES FOR FINDING AND CONCLUSION I. Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by a letter addressed to the Veteran in August 2006. See 38 U.S.C.A. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran has had ample opportunity to respond/supplement the record, and neither he nor his representative has alleged that notice in this case was less than adequate. Regarding the duty to assist, all relevant evidence necessary for an equitable resolution of the issues on appeal has also been identified and obtained, to the extent possible. The relevant evidence of record includes the Veteran's service treatment records, postservice (VA and private) treatment records, and personal statements from the Veteran in support of his claim. Neither the Veteran nor his representative has identified any relevant outstanding evidence. The RO also arranged for VA examinations in October 2006 and August 2011. See Barr v. Nicholson, 21 Vet. App. 303 (2007) (finding that VA must provide an examination that is adequate for rating purposes). After reviewing the October 2006 and August 2011 VA examination reports, the Board finds that they contain sufficiently specific clinical findings and informed discussion of the pertinent history and features of the disability on appeal to provide probative medical evidence adequate for rating and adjudication purposes. In summary, the Board finds that appellate review may proceed without prejudice to the Veteran with respect to his claim. See Bernard v. Brown, 4 Vet. App. 384, 394 (1993). II. Legal Criteria, Factual Background, and Analysis 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 their residual conditions in civil occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body 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 rating will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. In addition, the United States Court of Appeals for Veterans Claims (Court) has determined that staged ratings are 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. Hart v. Mansfield, 21 Vet. App. 505 (2007) (citing Fenderson v. West, 12 Vet. App. 119, 126 (1999)). The Veteran's service-connected hypertension is rated as 0 percent disabling under 38 C.F.R. § 4.130, DC 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Hypertensive vascular disease (hypertension and isolated systolic hypertension) warrants a 60 percent rating when diastolic pressure is predominantly 130 or more. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. A 20 percent rating is warranted when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 10 percent rating is warranted when diastolic pressure is predominantly 100 or more or; systolic pressure predominantly 160 or more, or; as a minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continues medication. 38 C.F.R. § 4.104, DC 7101. It is the Veteran's contention that his hypertension is worse than the 0 percent rating currently assigned for that disability. Both he and his representative note that his hypertension requires the use of continuous medication for treatment. See June 2016 written argument by the Veteran's representative. It has also been argued that service connection for coronary artery disease was granted as secondary to hypertension, which suggests a compensable rating is warranted for the latter disability. See August 2015 written argument by the Veteran's representative. After evaluating the evidence of record, the Board finds that the Veteran's service-connected hypertension warrants an increased rating of 10 percent (but no higher). See 38 U.S.C.A. § 5107; 38 C.F.R. § 4.3, 4.104, DC 7101. In particular, the evidence shows that throughout the appeal period, the Veteran's blood pressure has been recorded frequently as part of his (VA and private) medical treatment. He was also provided VA examinations in October 2006 and August 2011. A review of those records shows that at no time during the appeal period has the Veteran's systolic pressure been recorded as 160 or higher. On two occasions, during the Veteran's most recent VA examination in August 2011, his diastolic pressure was recorded as 104 and 105. A third diastolic pressure reading at the August 2011 VA examination was recorded as 94. At no other time during the appeal period has the Veteran's diastolic pressure been recorded as 100 or higher, and the August 2011 VA examiner also indicated the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Despite such findings, the Board notes that at the time of the Veteran's grant of service connection for hypertension, it was recognized that "[m]ost of [his] diastolic pressures were 100 or more." He was not, however, at that time, placed on medication for hypertension and instead was placed on a diet. Therefore, a 0 percent disability rating was assigned initially for his hypertension. See March 1989 rating decision. Since then, the Veteran's treatment records (and the October 2006 and August 2011 VA examination reports) reflect that he has been placed on at least two medications for his hypertension, and that his hypertension currently remains stable on medication. As the evidence suggests elevated pressures precipitated the Veteran's treatment and warranted the prescription of the two medications he takes, the Board resolves all reasonable doubt in the Veteran's favor (as is required, see 38 C.F.R. § 4.3) and finds that a 10 percent rating is warranted for his service-connected hypertension. See also 38 C.F.R. § 4.7. The Board has considered whether a still higher rating is warranted for the Veteran's hypertension. The record presents no basis for the assignment of a schedular rating in excess of 10 percent. At no time is it shown that diastolic pressure was predominantly 110 or more, or that systolic pressure was predominantly 200 or more. Therefore, a 10 percent increased schedular rating is appropriately assigned for the entirety of the appeal period for the Veteran's service-connected hypertension. The Board has considered further whether referral for an extraschedular rating is appropriate. 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. 38 C.F.R. § 3.321(b). Therefore, initially, there must be a comparison between the level of severity and symptomatology of the claimant's service-connected disability with the established criteria found in the rating schedule for that disability. Thun v. Peake, 22 Vet. App. 111 (2008). In this case, there is no objective evidence, or allegation, suggesting that the disability picture presented by the Veteran's hypertension is exceptional or that the schedular criteria are inadequate. As discussed above, the Veteran's private and VA treatment records show that his hypertension is currently stable on medication. Therefore, it is not shown that he suffers from any symptoms that are not encompassed by the schedular criteria for the current rating assigned. Additionally, the Board notes that under Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 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, there are no additional symptoms 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. Thus, referral for assignment of an extraschedular evaluation in this case is not in order. Floyd v. Brown, 9 Vet. App. 88, 95 (1996); Bagwell v. Brown, 9 Vet. App. 337 (1996). ORDER A 10 percent rating is granted for hypertension, subject to the laws and regulations governing payment of monetary awards. REMAND VA is required to assist a claimant in developing his claim, which includes requesting relevant records from private sources, so long as the records are adequately identified. 38 U.S.C.A. § 5103A(b); 38 C.F.R. § 3.159(c)(1); Savage v. Shinseki, 24 Vet. App. 259, 269 (2011); Loving v. Nicholson, 19 Vet. App. 96, 102 (2005); see also Hyatt v. Nicholson, 21 Vet. App. 390, 394 (2007) ("In the context of the duty to assist in obtaining records, the relevance of the documents cannot be known with certainty before they are obtained."). In this case, a review of the Veteran's VA treatment records shows that in February 2015, it was noted that he was receiving follow-up care for his service-connected coronary artery disease from "non-va [sic] cardiology." The most recent private treatment records available in the claims file are from 2014. As the February 2015 VA treatment record suggests the Veteran has subsequently sought non-VA treatment for his coronary artery disease, any updated (and more recent) private treatment records should be secured, if available. Accordingly, the case is REMANDED for the following actions: 1. Contact the Veteran and request that he identify the provider(s) of all treatment or evaluation he has received for his service-connected coronary artery disease, records of which are not already associated with the claims file, and to provide any releases necessary for VA to secure records of such treatment or evaluation. Obtain complete records of all such treatment and evaluation from all sources identified by the Veteran, to specifically include treatment records from the non-VA cardiology source identified in his February 2015 VA treatment record. 2. If any of the above-requested records are unavailable, the claims file should be clearly documented to that effect, and the Veteran must be notified of any inability to obtain these records in accordance with 38 C.F.R. § 3.159(e). 3. After the development requested above has been completed, review the file and ensure that the development sought in this remand is completed. Undertake any additional development indicated by the results of the development requested above (to include the scheduling of a new VA examination, if warranted), and then re-adjudicate the claim. If it remains denied, the RO/AMC should issue an appropriate supplemental SOC (SSOC) and afford the Veteran and his representative the opportunity to respond. The case should then be returned to the Board, if in order, for further review. 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). ______________________________________________ DEBORAH W. SINGLETON Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs