Citation Nr: 1828166 Decision Date: 05/07/18 Archive Date: 05/18/18 DOCKET NO. 14-35 574 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Roanoke, Virginia THE ISSUES 1. Entitlement to an increased rating in excess of 10 percent disabling for hypertension. 2. Entitlement to service connection for an anxiety disorder. REPRESENTATION Appellant represented by: J. Michael Woods, Esq. ATTORNEY FOR THE BOARD A. M. Williams, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1967 to July 1973 and March 1977 to July 1986. These matters are before the Board of Veterans' Appeals (Board) on appeal from a February 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). FINDINGS OF FACT 1. The Veteran's hypertension is productive of diastolic pressure predominately 100 or more; or systolic pressure predominately 160 or more; but not diastolic pressure predominately 110 or more; or systolic pressure predominately 200 or more. 2. The Veteran's anxiety disorder is secondary to his service-connected recurrent dislocation of the left shoulder disability. CONCLUSIONS OF LAW 1. The criteria for a rating increase, in excess of 10 percent disabling, for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.14, 4.104, Diagnostic Code (DC) 7101 (2017). 2. The criteria for service connection for an anxiety disorder have been met. 38 U.S.C. §§ 1101, 1110, 1131, 1154 (2012); 38 §§ C.F.R. 3.159, 3.303, 3.310(a) (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 1101, 1110, 5103, 5103A, 7104 (2012); 38 C.F.R. §§ 3.102, 3.151, 3.159, 3.326(a) (2017). Here, regarding the duty to notify, VA sent the Veteran a predecisional notification letter in August 2013. Next, VA has a duty to assist a claimant in the development of a claim. This duty includes assisting in the procurement of service treatment records and all relevant pre-and post-service treatment records, and by providing an examination, when necessary. 38 U.S.C. § 5103A; 38 C.F.R. § 3.159. In this regard, the record reflects that VA has made reasonable efforts to obtain relevant records including service treatment records, post-service VA treatment, and private treatment records. The Veteran has not identified any additional outstanding records. The Veteran was afforded a VA examination in July 2014. As such, the Board will proceed to the merits. I. Rating Increase Legal Criteria Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41 (2017). Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2 (2017). While the Veteran's entire history is reviewed when assigning a disability rating, 38 C.F.R. § 4.1, where service connection 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. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Additionally, in determining the present level of disability for any increased rating claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different rating during the course of the appeal, the assignment of staged ratings would be necessary. If there is a question as to which of two evaluations should apply, the higher rating is assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. Hypertension Hypertension is rated under 38 C.F.R. § 4.104, DC 7101. A 10 percent disability rating, the Veteran's current rating, is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure of 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 disability rating is warranted when diastolic pressure is predominantly 110 or more, or; systolic pressure is predominantly 200 or more. Id. A 40 percent disability rating requires diastolic pressure of predominantly 120 or more. Id. A 60 percent disability rating requires diastolic pressure of predominantly 130 or more. Id. Analysis VA received the Veteran's claim for increase for his service-connected hypertension on May 21, 2013. See 05/21/2013 VA 21-0820. As such, the period on appeal is from 1 year prior to this date. 38 U.S.C. § 5110(b)(2); 38 C.F.R. § 3.400(o)(2). After review of the relevant medical and lay evidence over the period on appeal, the Board finds that a rating in excess of 10 percent disabling for hypertension is not warranted. The evidence of record shows that the Veteran's blood pressure readings taken during the appeal period do not demonstrate a diastolic pressure predominatly 110 or more; or a systolic pressure predominately 200 or more as required by the next-higher 20 percent rating. Specifically, during a July 2014 VA examination the blood pressure readings were 126/84; 120/80; and 124/80. See VA Examination July 2014. The evidence demonstrates that the Veteran is prescribed continuous medication to control his hypertension. The Board recognizes the Veteran's contention that he has increased symptomatology and he is competent to provide observable symptoms. See Layno v. Brown, 6 Vet. App. 465, 469 (1994). The Board also finds the Veteran credible in his assertions; however in this particular case the probative, competent medical evidence outweighs his lay statements. Throughout the period on appeal diastolic pressure was less than 100 and systolic pressure was less than 160. The totality of the weight of competent, probative evidence shows the Veteran's symptomatology reflects a frequency, severity, and duration not commensurate with the criteria for the next-higher rating of 20 percent disabling. As the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and the claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. Therefore, a higher rating for hypertension is not warranted at this time. II. Service Connection Legal Criteria Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by service. 38 C.F.R. § 3.303(a). Service connection generally requires credible and competent evidence showing: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service. Holton v. Shinseki, 557 F.3d 1363, 1366 (Fed. Cir. 2009). Under 38 C.F.R. § 3.303(b), an alternative method of establishing the second and third elements above is through a demonstration of continuity of symptomatology. However, this method may be used only for the chronic diseases listed in 38 C.F.R. § 3.309. Walker v. Shinseki, 708 F.3d 1331, 1336-38 (Fed. Cir. 2013). Regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Further, a disability which is aggravated by a service-connected disorder may be service connected to the degree that the aggravation is shown. Allen v. Brown, 7 Vet. App. 439, 448 (1995); 38 C.F.R. § 3.310(b). In order to establish entitlement to secondary service connection, there must be (1) evidence of a current disability; (2) evidence of a service-connected disability; and (3) medical evidence establishing a nexus between the service-connected disability and the current disability. See Wallin v. West, 11 Vet. App. 509, 512 (1998). When 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(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-54 (1990). Anxiety Disorder The Board has reviewed the evidence of record and finds that the criteria for service connection for anxiety disorder have been met. A Mental Disorders Disability Benefit Questionnaire (DBQ) dated March 2015 diagnosed the Veteran with anxiety disorder, thus meeting the first element of a secondary service-connection claim. See Representative's Brief December 2017. The Veteran is service connected for recurrent dislocation of left shoulder from July 1973. See 08/06/1972 Rating Decision. Therefore, the probative evidence of record establishes the second element of a secondary service-connection claim. The Board finds that there is a "nexus" between the Veteran's current anxiety disorder and his service-connected shoulder disability. In December 2017, the Veteran's representative submitted a brief which included a mental disorder DBQ where the doctor concluded that the current anxiety diagnosis was related to his shoulder disability. See Representative's Brief December 2017. The rationale was based on the physical limitations that the Veteran suffered due to an inability to lift his left arm above his head. His occupational and social impairment was described as deficiencies in most areas, such as work, school, family relations, thinking and/or mood. Along with the doctor's conclusions the representative's brief also included a statement by the Veteran's wife further corroborating the challenges the Veteran faced utilizing his left arm. His wife described him as having difficulty reaching items on top of shelfs, difficulty with dressing himself and she had to occasionally wash his back in the shower. Both the doctor and the Veteran's wife described the mental impact of the shoulder disability on the Veteran. As noted above, regulations provide that service connection is warranted for a disability which is aggravated by, proximately due to, or the result of a service-connected disease or injury. 38 C.F.R. § 3.310(a). Here, the probative, competent evidence weighs in favor of a finding that the Veteran's anxiety is proximately due to his service-connected left shoulder disability. Therefore, secondary service-connection is warranted. In sum, the Veteran has a current disability, a service-connected disability, and there is a nexus between the current disability and the service-connected disability. The preponderance of the evidence weighs in favor of the claim, therefore secondary service-connection is granted. 38 C.FR. § 3.102. (CONTINUED ON NEXT PAGE) ORDER A rating in excess of 10 percent for hypertension is denied. Service connection for anxiety disorder is granted. ______________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs