Citation Nr: 1634421	
Decision Date: 09/01/16    Archive Date: 09/09/16

DOCKET NO.  12-06 684	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Columbia, South Carolina


THE ISSUE

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

2. Entitlement to compensation for total disability based on individual unemployability (TDIU) prior to March 1, 2014.


REPRESENTATION

Appellant represented by:	The American Legion


ATTORNEY FOR THE BOARD

A.P. Armstrong, Associate Counsel




INTRODUCTION

The Veteran served on active duty from November 1968 to January 1972.  This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina.  

The claim for TDIU is inferred with the Veteran's pending appeal for an increased rating for his hypertension and evidence that he is unemployed.  See Rice v. Shinseki, 22 Vet. App. 447, 453-54 (2009).  The RO granted TDIU compensation from March 1, 2014.  However, the issue of entitlement to TDIU prior to that date is addressed in the REMAND portion of the decision below and REMANDED to the Agency of Original Jurisdiction (AOJ).


FINDINGS OF FACT

The evidence does not show that the Veteran had diastolic blood pressure predominantly 110 or more or systolic pressure predominantly 200 or more.


CONCLUSION OF LAW

The criteria for a rating in excess of 10 percent for hypertension have not been met.  38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.321, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2015).


REASONS AND BASES FOR FINDINGS AND CONCLUSION

I.  Procedural Duties
	
The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations require VA to provide claimants with notice and assistance in substantiating a claim.  See 38 U.S.C.A. §§ 5102, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015).

In July 2010, prior to adjudication of his claims, the RO sent the Veteran a letter, providing notice that satisfied the requirements of the VCAA. Dingess/Hartman v. Nicholson, 19 Vet. App. 473 (2006).  No additional notice is required.

Next, VA has a duty to assist the Veteran in the development of claims.  This duty includes assisting him in the procurement of pertinent treatment records and providing an examination when necessary.  38 C.F.R. § 3.159.

All pertinent, identified medical records have been obtained and considered, including private records with blood pressure readings.  VA provided an examination for the Veteran's hypertension in August 2010.  There is no indication or assertion that the examination was inadequate.  To the contrary, the examiner provided thorough detail on diagnoses, symptoms, and impairment appropriate for ratings determinations.  The Board has carefully reviewed the record and determines there is no additional development needed for the claims decided herein.

As VA has satisfied its duties to notify and assist the Veteran, no further notice or assistance is required.  See 38 U.S.C.A. §§ 5103, 5103A; 38 C.F.R. § 3.159.

II. Rating Analysis

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4.  The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. 

If two disability evaluations are potentially applicable, the higher evaluation 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.  All reasonable doubt as to the degree of disability will be resolved in favor of the claimant.  38 C.F.R. § 4.3.  

Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  However, the Board must also consider staged ratings, which are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the appeal.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007).  

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, 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.  Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14.

The Veteran is competent to give evidence of symptoms observable by his senses, and the Board finds him credible as his statements are detailed and consistent.  See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007).  He contends that he his hypertension is worse than that reflected by the 10 percent rating assigned.

Hypertension is evaluated under the rating schedule for the cardiovascular system, 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101.  For a 20 percent rating, the evidence must show diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more.  Id.  Any higher rating requires higher diastolic pressure readings.  Id.

After review of the record, the Board finds that the Veteran's hypertension does not meet the criteria for a compensable rating.  See 38 C.F.R. § 4.104, DC 7101.

The evidence does not show that the Veteran had diastolic blood pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  The VA examiner in August 2010 recorded the Veteran's blood pressure as 162/84, 162/86, and 164/84.  The record also includes blood pressure readings in VA and private providers' treatment records from 2010 to 2015.  These readings did not include any record or reported systolic pressure of 200 or more.  The majority of these readings show diastolic pressure below 100.  However, an April 2010 VA record notes diastolic pressure as 106 and 100 and November 2013 private records note two days where diastolic pressure was 100 and 101.  Based on the evidence, the Veteran did not have systolic pressure 200 or more or diastolic pressure 110 or more.  Therefore, he did not have a predominance of such pressures and his hypertension did not satisfy the criteria for a 20 percent or higher rating.  See 38 C.F.R. § 4.104, DC 7101.

The Board has considered all potentially applicable diagnostic codes in accordance with Schafrath v. Derwinski, 1 Vet. App. 589 (1991), but the evidence does not show hypertension symptoms that could be rated higher under another diagnostic code.  See 38 C.F.R. § 4.104.  The evidence shows generally the same hypertension symptoms throughout the period on appeal such that staged ratings are not appropriate.  See Hart, 21 Vet. App. at 509-10.

The Board has also considered whether this case should be referred for extra-schedular consideration pursuant to 38 C.F.R. § 3.321(b)(1).  However, this case does not present such an exceptional or unusual disability picture that it would be impracticable to apply the schedular standards, and referral is unnecessary.  See Thun v. Peake, 22 Vet. App. 111, 115-16 (2008).  Rather, the rating criteria consider blood pressure readings and required medication.  The Veteran has not reported any symptoms associated with his disability that are not considered by the criteria, and the rating code is sufficient to rate his disability picture.  Following Mittleider, there are no symptoms that have not been considered in connection with a service-connected disability.  Mittleider v. West, 11 Vet. App. 181 (1998).  As such, there is no combined effect, which is exceptional and not captured by the schedular evaluations.  See Johnson v. McDonald, 762 F.3d 1362 (2014).  As the first step of Thun was not satisfied, referral for consideration of an extra-schedular rating is not necessary.  See Thun, 22 Vet. App. at 115-16.   



ORDER

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


REMAND

As discussed above, the claim for TDIU has been pending alongside the claim for an increased rating for hypertension.  See Rice, 22 Vet. App. at 453-54.  A medical opinion is needed to determine how the Veteran's service-connected disabilities affected his employment prior to March 1, 2014.  

Accordingly, the case is REMANDED for the following action:

1. Schedule the Veteran for a general medical examination and forward the claims file to the examiner to evaluate the Veteran's service-connected disabilities.  The examiner should explain how the Veteran's service-connected disabilities would have affect his functioning in a work environment and what types of limitations he would have likely experienced prior to March 1, 2014.    

If the requested opinion cannot be provided without resort to speculation, court cases require the examiner explain why the opinion cannot be offered, and state whether the inability is due to the absence of evidence or to the limits of scientific or medical knowledge.

2. If any benefit sought on appeal remains denied, issue a supplemental statement of the case for the benign prostatic enlargement claim and return the case to the Board. 

The appellant has the right to submit additional evidence and argument on the 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).



______________________________________________
ERIC S. LEBOFF
Veterans Law Judge, Board of Veterans' Appeals





Department of Veterans Affairs