Citation Nr: 18141658 Decision Date: 10/11/18 Archive Date: 10/11/18 DOCKET NO. 12-02 523 DATE: October 11, 2018 ORDER Entitlement to a compensable rating for hypertension is denied. Entitlement to a total rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran hypertension is not manifested by at least diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more or a history of diastolic pressure predominantly 100 or more with continuous medication for control. 2. The Veteran and his representative failed to cooperate with the prosecution of this claim by providing the agency of original jurisdiction with a fully executed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability despite being specifically asking for it by the agency of original jurisdiction in March 2016. 3. The record shows that, while when the Veteran service-connected cervical spine disability residuals when combined provide the claimant with a single disability rated as 40 percent disabling, his combined disability rating is 60 percent. 4. The preponderance of the evidence shows that the Veteran service-connected disabilities do not cause him to be able to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hypertension have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.104, Diagnostic Code 7101. 2. The criteria for a TDIU have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.1, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1976 to January 1979. In July 2015, the Veteran testified at a personal hearing before a Veterans’ Law Judge that has since retired. In July 2018, the Board of Veterans’ Appeal (Board) advised the et of this fact and gave him 30 days to request a new hearing. No reply was received from the Veteran. Therefore, the Board finds that it may adjudicate the appeal without providing the Veteran with another personal hearing. The undersigned did review the transcript. In September 2015, the Board remanded the appeal for additional development. The Remand, among other things, directed the agency of original jurisdiction (AOJ) to issue the Veteran a statement of the case (SOC) as to his claims of service connection for a traumatic brain injuries (TBI) and for higher ratings for a neck disability as well as scar. In June 2018, the agency of original jurisdiction (AOJ) issued the SOC. However, the Board finds that its’ jurisdiction does not include these claims because the record does not show that the appellant thereafter perfected his appeal by filing a substantive appeal or that these issues were certified to the Board. See 38 C.F.R. §§ 20.200, 20.302(c) (an appeal requires a notice of disagreement and a timely filed substantive appeal after issuance of a statement of the case); see also Percy v. Shinseki, 23 Vet. App. 37, 42 (2009). The Rating Claims Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Court has held that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). Separate evaluations may be assigned for separate periods of time if such distinct periods are shown by the competent evidence of record during the appeal, a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). Regulations require that where there is a question as to which of two evaluations is to 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. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits under the laws administered by VA. VA shall consider all information and medical and lay evidence of record. Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). In evaluating the evidence, the Board has been charged with the duty to assess the credibility and weight given to evidence. Davidson v. Shinseki, 581 F. 3d 1313 (Fed. Cir. 2009); Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). Indeed, the Court has declared that in adjudicating a claim, the Board has the responsibility to do so. Bryan v. West, 13 Vet. App. 482, 488-89 (2000). In doing so, the Board is free to favor one medical opinion over another, provided it offers an adequate basis for doing so. Owens v. Brown, 7 Vet. App. 429, 433 (1995). Where there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 1. Entitlement to a compensable rating for hypertension The Veteran claims that his hypertension meets the criteria for at least a compensable rating at all times during the pendency of the appeal. Historically the Veteran’s hypertension has been rated as non compensable under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under 38 C.F.R. § 4.104, Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control; a 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more; a 40 percent rating is warranted for diastolic pressure predominantly 120 or more 40; and a 60 percent rating is warranted for diastolic pressure predominantly 130 or more. Note 1 to Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note 2 to Diagnostic Code 7101 provides that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, is to be evaluated as part of the condition causing it rather than by a separate evaluation. Note 3 to Diagnostic Code 7101 provides that hypertension is to be evaluated separately from hypertensive heart disease and other types of heart disease. With the above criteria in mind, the Board notes that in a July 2015 statement from William A. Atlas, M.D., it was reported that the Veteran had over three documented instances when his blood pressure was elevated with his diastolic pressure over 100 and his systolic pressure over 160. However, the Board finds that Dr. Atlas’s opinion lacks accuracy because it is not supported by the clinical evidence of record. See Madden v. Gober, 125 F.3d. 1477 1481 (Fed. Cir. 1997) (holing that the Board is entitled to discount the credibility of evidence in light of its own inherent characteristics and its relationship to other items of evidence); Black v. Brown, 5 Vet. App. 177, 180 (1995) (holding that a medical opinion is inadequate when it is unsupported by clinical evidence). In this regard, at the time of the Veteran’s first VA examination dated in December 2009, it was reported that he had been on hypertension medication since 1989 and opined that he had mild to moderate essential hypertension. Thereafter, in the November 2010 addendum to the December 2009 VA examination, it was noted that the Veteran’s blood pressure reading at the December 2009 VA examination were 140/86 when sitting, 130/80 when recumbent, and 120/80 when standing. Similarly, at the March 2016 VA examination, the Veteran continued to report he takes medication to treat his hypertension. The examiner thereafter noted that when the Veteran was seen at VA in January 2013 his blood pressure was 139/81 and 134/74. Thereafter the examiner opined that the Veteran did not have a history of a diastolic blood pressure elevation predominantly 100 or more. On examination, his blood pressure was 128/72. Lastly the Board notes that while the Veteran’s treatment records dated before and after the above VA examinations document the fact that the occasionally had both higher diastolic and systolic pressures than what was reported at the above VA examinations as well as the fact that he takes medication to treat his hypertension, they do not show his diastolic pressure was ever 100 or more and his systolic pressure was ever 160 or more. See Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991) (VA may only consider independent medical evidence to support its findings and is not permitted to base decisions on its own unsubstantiated medical conclusions). Therefore, while the record shows that the Veteran takes medication to treat his hypertension and Dr. Atlas opined otherwise, the Board finds that the most probative evidence of record are the VA examinations reports and treatment records which show that the Veteran’s diastolic pressure is not predominantly 100 or more, his systolic pressure is not predominantly 160 or more, and his history does not show diastolic pressure predominantly 100. See Owens v. Brown, 7 Vet. App. 429, 433 (1995) (holding that VA may favor the opinion of one competent medical expert over that of another when decision makers give an adequate statement of reasons and bases); Wray v. Brown, 7 Vet. App. 488, 493 (1995) (holding that the adoption of an expert medical opinion may satisfy the Board’s statutory requirement of an adequate statement of reasons and bases if the expert fairly considered the material evidence seemingly supporting the veteran’s position). Furthermore, the Board finds the blood pressure readings provided by the above healthcare professionals more probative than any lay claims to the contrary from the Veteran and his representative because medical professional have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Accordingly, the Board finds that the most probative evidence of record shows that the criteria for at least a compensable rating for hypertension is not warranted under 38 C.F.R. § 4.104, Diagnostic Code 7101 at all times during the pendency of the appeal. Id; see also Hart, supra; Fenderson, supra. 2. Entitlement to a TDIU The Veteran and his representative claim, in substance, that he is entitled to a TDIU rating because his service-connected disabilities prevent the appellant from working. Initially, the Board notes that the record does not include a completed VA Form 21-8940, Veterans Application for Increased Compensation Based on Unemployability (TDIU claim form) despite the agency of original jurisdiction specifically asking the Veteran to provide one in March 2016. Therefore, the Board initially finds that the Veteran’s claim for a TDIU is denied because of his and his representative’s failure to cooperate with the prosecution of this claim. See M21-1, Part IV, Subpart ii, Chapter 2, Section F, Topic 2, Block b (change date July 21, 2016) (providing, in part, that VA may deny a claim for a TDIU for failure to cooperate with development when an appellant fails to complete and return a VA Form 21-8940). On this basis alone, the claim must be denied. In any event, even if the Board addressed this case on the merits, the Board notes that a TDIU may only be assign in the first instance provided that certain schedular disability ratings requirements. See 38 C.F.R. § 4.16(a); see also Bowling v. Principi, 15 Vet. App. 1, 10 (2001) (holding that the Board may not assign a TDIU in the first instance when the schedular requirements of 38 C.F.R. § 4.16(a) are not met). However, the Board finds that even when the Veteran’s service connected cervical spine disability, bilateral upper extremity radiculopathy, and neck scar are treated as a single disability, the appellant does not meet the preliminary schedular rating requirements for a TDIU because, while he has one disability rated as at least 40 percent disabling, he does not have sufficient additional disability to bring his combined rating to 70 percent. 38 C.F.R. § 4.16(a). Next, the Board notes that an award of a TDIU can also be granted on an extraschedular basis. In this regard, it is the policy of VA that all Veterans who are unable to secure and follow a substantially gainful occupation by reason of service connected disability shall be rated totally disabled. 38 C.F.R. § 4.16(b). The process for establishing entitlement to an extraschedular TDIU rating is described in 38 C.F.R. § 4.16(b). That process requires first an adjudicative determination that the Veteran is rendered unemployable by virtue of service-connected disabilities, and if that determination is affirmative, followed by referral to the Director, Compensation System. In this regard, the Board has no authority to award TDIU under § 4.16(b) in the first instance. See Kuppamala v. McDonald, 27 Vet. App. 447 (2015) (citing Floyd v. Brown, 9 Vet. App. 88, 94-95 (1996)). Rather, the Board’s focus in this part of the current appeal is whether the Veteran meets the criteria for a referral of his claim to the Director, Compensation System, for extraschedular consideration. See 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111 (2008). At the outset, it is noteworthy that disability ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from the service-connected disabilities in civil occupations. See 38 C.F.R. § 4.1. In other words, occupational impairment with respect to a specific type of employment is not dispositive; and if a Veteran is precluded by service connected disability or disabilities from participating in a specific type of employment in which the Veteran has primary experience, but remains capable of maintaining other regular substantially gainful employment consistent with education and occupational experience, such Veteran is not deemed unemployable. The central inquiry is “whether the Veteran’s service-connected disabilities alone are of sufficient severity to produce unemployability.” Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Neither nonservice-connected disabilities nor advancing age may be considered in the determination. 38 C.F.R. §§ 3.341, 4.19; Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). In this regard, the Veteran reported that he cannot work because of his service connected disabilities, he retired in December 2008, and the record shows that he has received Social Security Administration (SSA) disability benefits since June 2009. See, e.g., SSA letter dated in March 2009; VA examination dated in April 2010. Moreover, in a May 2013 letter William A. Atlas, M.D., opined that the Veteran was completely disabled. However, SSA decisions are not controlling for VA purposes. Murincsak v. Derwinski, 2 Vet. App. 363, 370 (1992). Moreover, because the SSA found the Veteran disabled because of degenerative disc disease and fibromyalgia, the Board finds that their finding has limited probative value as to the current claim for a TDIU because the Veteran is not service connected for fibromyalgia. See Hatlestad, supra. Overall, it provides evidence against the claim that it is the service connected disabilities that have caused the Veteran not to work. Likewise, while Dr. Atlas opined that the Veteran was disabled he also reported that his being disabled was due multiple disabilities, most of which are not service connected disabilities (i.e., the Veteran “is completely disabled from his chronic pain syndrome, as well as his chronic fatigue. He has seen multiple physicians, including orthopedists and spine surgeons and has had multiple procedures, none of which have resolved his functional disability or his pain”). Therefore, the Board finds that this opinion also has limited probative value as to the current claim for a TDIU. See Hatlestad, supra. Tellingly, the Board finds that nothing in the VA examinations conducted in connection with the Veteran’s claims for increased ratings show his service-connected cervical spine disability, bilateral upper extremity radiculopathy, neck scar, hypertension, and tinnitus causes him to be unable to secure and follow a substantially gainful occupation. See Owens, supra. In this regard, the January 2010 VA examiner reported that the Veteran’s tinnitus only employment related problems was that the appellant had difficulty hearing with background noise. Similarly, the December 2011 VA examiner opined that the Veteran’s service-connected neck disability’s adverse impact on his ability to work is that it limits his walking and his medication makes him drowsy while driving. Furthermore, the March 2016 VA examiner opined that the Veteran’s hypertension did not adversely impact on his ability to work. These medical opinions are not contradicted by any other medical evidence of record. See Colvin, supra. The Board also finds that while treatment records document the Veteran’s complaints and treatment for adverse cervical spine disability, bilateral upper extremity radiculopathy, neck scar, hypertension, and tinnitus symptomatology, nothing in these records show the adverse impact these disabilities have on employment to be worse than what was reported at the above VA examinations. See Colvin, supra. Therefore, the Board finds the most probative medical evidence of record shows that the criteria for referral of a claim for an extraschedular rating are not met because it shows his service-connected cervical spine disability, bilateral upper extremity radiculopathy, neck scar, hypertension, and tinnitus only causes an occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks and his service-connected cervical spine disability, bilateral upper extremity radiculopathy, neck scar, hypertension, and tinnitus cause little, if any, occupational impairment. See Owens, supra. As to the Veteran’s service connected cervical spine disability, bilateral upper extremity radiculopathy, neck scar, hypertension, and tinnitus, the Board also notes that they Veteran’s symptom (i.e., pain, weakness, lost motion, high blood pressure, and ringing in the ears) are already contemplated as well as compensated for by the rating criteria. See 38 C.F.R. §§ 4.71a, 4.87, 4.104, 4.118, 4.124a, Diagnostic Codes 5242, 6260, 7101, 7800, and 8510; Vazquez-Claudio, supra. Therefore, the Board finds that the most probative medical evidence of record also shows that the cervical spine disability, bilateral upper extremity radiculopathy, neck scar, hypertension, and tinnitus symptoms reported by the VA examiners and seen in the treatment records are not the type of symptomatology that meets the criteria for referral of a claim for an extraschedular rating. See Owens, supra; also see Bagwell v. Brown, 9 Vet. App. 337 (1996). The Board cannot ignore this highly probative evidence. Furthermore, the Board does not find any opinion by the Veteran that his service-connected disabilities prevent him from working accurate because he does not have the required medical experience to provide an answer to a complex medical question. See Davidson, supra. The Board also finds more probative the occupational impairment opinions provided by the above VA examiners because they have greater medical training. See Black v. Brown, 10 Vet. App. 297, 284 (1997) (in evaluating the probative value of medical statements, the Board looks at factors such as the individual knowledge and skill in analyzing the medical data). Therefore, the Board also finds the lay statements from the Veteran are not sufficient to meet the criteria for referral of a claim for an extraschedular rating. See Owens, supra. Therefore, the Board finds the most probative medical evidence of record shows that the Veteran’s service-connected disabilities do not meet the criteria for a referral of his claim to the Director, Compensation System under 38 C.F.R. § 4.16(b). See Owens, supra. Given the above, the Board finds that the claim for a TDIU is denied. 38 C.F.R. § 4.16. JOHN J. CROWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Neil T. Werner, Counsel