Citation Nr: 1801443 Decision Date: 01/09/18 Archive Date: 01/19/18 DOCKET NO. 12-14 969 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Cleveland, Ohio THE ISSUE Entitlement to a compensable rating for hypertension prior to June 13, 2017, and in excess of 10 percent thereafter. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD J. Meyer, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1998 to December 2006. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2011 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Cleveland, Ohio. In April 2017, this appeal was remanded by the Board for further development. After further development, the issue on appeal is now ready for adjudication. FINDING OF FACT Throughout the entire period on appeal, the Veteran's hypertension has been characterized by slightly elevated blood pressures and the need for medication; a diastolic pressure of predominately 110 mm/Hg or more, or a systolic pressure of predominately 200 mm/Hg or more have not been shown. CONCLUSIONS OF LAW 1. The criteria for a disability rating of 10 percent, but no more, prior to June 13, 2017 for hypertension have been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.104, DC 7101 (2017). 2. The criteria for a disability rating in excess of 10 percent as of June 13, 2017 for hypertension have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.104, DC 7101 (2017). REASONS AND BASES FOR FINDING AND CONCLUSIONS Increased Ratings As a preliminary matter, the Board notes that on December 11, 2017, the Veteran requested a copy of a rating decision that does not involve the issue currently before the Board. VA responded to that request on December 21, 2017 providing him with a copy of the requested decision. There is also a January 2, 2018 letter from a VA office acknowledging the receipt of that same December 11, 2017 request and a statement that the request will be processed. As the December 21, 2017 response from VA indicated that VA has fulfilled his request, the January 2, 2018 letter does not provide a reason to delay adjudication of this appeal. The issue before the Board is whether the rating assigned for the Veteran's hypertension should be increased. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified 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. See 38 C.F.R. § 4.1 (2017). Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. See Mauerhan v. Principi, 16 Vet. App. 436 (2002); Massey v. Brown, 7 Vet. App. 204, 208 (1994). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7 (2017). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran is currently in receipt of a noncompensable rating prior to June 13, 2017, and a 10 percent rating thereafter for his service-connected hypertension. As a preliminary matter, the Board determines that a rating of 10 percent, but no more, prior to June 13, 2017 is warranted. Specifically, the evidence of record, including VA examinations from October 2010, July 2013, and June 2016, along with the credible statements from the Veteran is at least in equipoise that the Veteran's diastolic pressure was predominantly greater than 100 mm/Hg but less than 110 mm/Hg with a systolic pressure predominantly greater than 160 mm/Hg but less than 200 mm/Hg., and that he required continuous medication for control. In order to warrant the next higher 20 percent rating for hypertension, the evidence must demonstrate diastolic pressure predominantly 110 mm/Hg or more, or a systolic pressure predominantly 200 mm/Hg or more. 38 C.F.R. § 4.104, DC 7101 (2017). Based on the evidence of record, the Board determines that a rating in excess of 10 percent is not warranted for the entire period on appeal. Specifically, at a VA examination in October 2010, the Veteran's peak systolic pressure was 140 mm/Hg with a peak diastolic pressure of 94 mm/Hg. Moreover, the examiner reported that his blood pressure has been well controlled with medication therapy. In July 2013, the Veteran's peak systolic pressure was 140 mm/Hg with a peak diastolic pressure of 82 mm/Hg. At his most recent June 2017 VA examination, the Veteran's peak systolic pressure was 158 mm/Hg with a peak diastolic pressure of 100 mm/Hg. Further, during the course of the appeal, most typically his systolic pressures have been in the range of 140 mm/Hg to 180 mm/Hg, and only had one measurement of 200 mm/Hg - which occurred during a stress test in April 2010. Similarly, the Veteran's diastolic blood pressures were generally well below the 110 mm/Hg required for a rating in excess of 10 percent. In fact, the Veteran's diastolic pressure never exceeded 110 mm/Hg. Additionally, the June 2008, May 2011, June 2015, and July 2017 treatment records reflect that the Veteran's overall blood pressure has been stable and well below the level to warrant a higher rating. Therefore, as a predominant systolic blood pressure of 200 mm/Hg or a predominant diastolic blood pressure of 110 mm/Hg have not been shown, a rating in excess of 10 percent is not warranted for the Veteran's service-connected hypertension. In considering the appropriate disability ratings, the Board has also considered the statements from the Veteran indicating that his hypertension is worse than the ratings he currently receives. In particular, the Board has considered his May 2012 statement that he has suffered from nosebleeds and that in 2011 he had chest pain and a blood pressure of 165 over 100. However, these symptoms and readings do not give rise to a rating higher than what the Board has decided in this decision. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. See Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. While the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses, he is not competent to identify a specific level of disability of his disorders according to the appropriate diagnostic codes. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Cartright v. Derwinski, 2 Vet. App. 24, 25 (1991) ("although interest may affect the credibility of testimony, it does not affect competency to testify"). On the other hand, such competent evidence concerning the nature and extent of the Veteran's service-connected hypertension has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports) directly address the criteria under which hypertension is evaluated. The Board also finds that consideration for an extraschedular evaluation, a component of a claim for an increased rating, is not warranted. Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Although the Board may not assign an extraschedular rating in the first instance, it must specifically adjudicate whether to refer a case for extraschedular evaluation when the issue either is raised by the claimant or is reasonably raised by the evidence of record. Barringer v. Peake, 22 Vet. App. 242 (2008). In considering whether an extraschedular rating may be warranted, VA must first determine whether the available applicable schedular rating criteria are inadequate because they do not contemplate the Veteran's level of disability and symptomatology. If the rating criteria are inadequate, VA must then determine whether the Veteran exhibits an exceptional disability picture indicated by other related factors such as marked interference with employment or frequent periods of hospitalization. If such related factors are exhibited, then referral must be made to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. See Thun v. Peake, 22 Vet. App. 111 (2008). In this case, the evidence does not indicate that Veteran's disability picture could not be adequately contemplated by the applicable schedular rating criteria discussed above. Specifically, the Board has reviewed all of his relevant symptoms related to the issues on appeal, including limitations with activities of daily living, and concludes that there are no symptoms that were not able to be addressed by the applicable diagnostic codes. See Mittleider v. West, 11 Vet. App. 181 (1998). As such, the Veteran's symptoms are not which are so unusual that they are outside the schedular criteria. Therefore, given that the applicable schedular rating criteria are more than adequate in this case, the Board need not consider whether the Veteran's disability picture includes exceptional factors, and referral for consideration of the assignment of a disability evaluation on an extraschedular basis is not warranted. See Thun, 22 Vet. App. at 111; see also Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Additionally, as the Veteran is seeking increased ratings for his hypertension, the Board acknowledges the holding in Rice v. Shinseki, 22 Vet. App. 447 (2009), that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. Nevertheless, the Veteran is currently employed full-time as a police officer and he does not assert, and the record does not suggest, that his service-connected hypertension renders him unemployable. As such, Rice is inapplicable in this case. VA Duty to Notify and Assist The Board has given consideration to the Veterans Claims Assistance Act of 2000 (VCAA), which includes an enhanced duty on the part of VA to notify a veteran of the information and evidence necessary to substantiate claims for VA benefits. 38 U.S.C. §§ 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017). The VCAA also redefines the obligations of VA with respect to its statutory duty to assist veterans in the development of their claims. 38 U.S.C. §§ 5103, 5103A. Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his representative, if any, of any information, and any medical or lay evidence, that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a) (2012); 38 C.F.R. § 3.159(b) (2017); Quartuccio v. Principi, 16 Vet. App. 183 (2002). Proper notice from VA must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. This notice must be provided prior to an initial unfavorable decision on a claim by the agency of original jurisdiction. Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). In this case, the Veteran was provided notice letters informing him of both his and VA's obligations. Moreover, there is no indication of a failure to notify. Therefore, additional notice is not required and any defect in notice is not prejudicial. With respect to the duty to assist, VA must obtain "records of relevant medical treatment or examination" at VA facilities. 38 U.S.C. § 5103A(c)(2). All records pertaining to the conditions at issue are presumptively relevant. See Moore v. Shinseki, 555 F.3d 1369, 1374 (Fed. Cir. 2009); Golz v. Shinseki, 590 F.3d 1317 (Fed. Cir. 2010). In addition, where the Veteran "sufficiently identifies" other VA medical records that he or she desires to be obtained, VA must also seek those records even if they do not appear potentially relevant based upon the available information. Sullivan v. McDonald, 815 F.3d 786, 793 (Fed. Cir. 2016) (citing 38 C.F.R. § 3.159(c)(3)). The Board finds that all necessary assistance has been provided to the Veteran. Indeed, all VA treatment records and relevant private treatment records have been obtained. The Veteran has also been provided with a VA examination per the Board's April 2017 remand directives. Finally, as discussed, this appeal was remanded by the Board in April 2017 to obtain outstanding records and a new VA examination. The Board is now satisfied there was substantial compliance with this Remand. See Stegall v. West, 11 Vet. App. 268 (1998); Dyment v. West, 13 Vet. App. 141, 146-47 (1999). Specifically, all relevant and available outstanding records have been obtained. Moreover, the Veteran was provided with a VA examination in June 2017 and the report is adequate for the purpose of rendering a decision on appeal. 38 C.F.R. § 4.2 (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). Accordingly, the Board finds that the Remand directives were substantially complied with and, thus, there is no Stegall violation in this case. Overall, no further notice or assistance is required to fulfill VA's duty to assist in the development of the above-cited claim. Smith v. Gober, 14 Vet. App. 227 (2000), aff'd, 281 F.3d 1384 (Fed. Cir. 2002); Dela Cruz v. Principi, 15 Vet. App. 143 (2001); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). ORDER A disability rating of 10 percent, but no more, for hypertension prior to June 13, 2017, is granted, subject to the regulations governing the disbursement of monetary benefits. A disability rating in excess of 10 percent for hypertension as of June 13, 2017, is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs