Citation Nr: 1327352 Decision Date: 08/26/13 Archive Date: 08/29/13 DOCKET NO. 09-24 618 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in St. Louis, Missouri THE ISSUE Entitlement to an increased disability rating (or evaluation) in excess of 10 percent for hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Thomas D. Jones, Counsel INTRODUCTION The Veteran, who is the appellant, served on active duty from September 1989 to October 1996. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2008 rating decision of a Regional Office (RO) of the Department of Veterans Affairs (VA) in St. Louis, Missouri. By decision of May 2011, the Board denied the appeal for a disability rating in excess of 10 percent for service-connected hypertension. The Veteran appealed the Board's decision to the U.S. Court of Appeals for Veterans Claims (Court). In February 2012, the Court issued an order granting a Joint Motion for Partial Remand (Joint Motion), vacating that portion of the Board's May 2011 decision which denied an increased rating for hypertension, and remanded that issue to the Board for further consideration. This issue was then remanded to the RO by the Board for additional development. In its May 2013 remand, the Board ordered the RO to obtain additional medical treatment records and afford the Veteran another VA medical examination and opinion. VA medical treatment records have been obtained and associated with the claims folder, and the Veteran was afforded a VA medical examination in June 2013. Thus, the required development has been completed and this case is appropriately before the Board. See Stegall v. West, 11 Vet. App. 268 (1998). FINDINGS OF FACT 1. For the entire period of rating, the Veteran's hypertension has been manifested by diastolic pressure predominantly less than 110, and systolic pressure predominantly less than 200. 2. The Veteran's hypertension has resulted in left ventricular diastolic dysfunction which results in a METs level of between 7-10, without cardiac hypertrophy or dilation. CONCLUSIONS OF LAW 1. The criteria for a disability rating higher than 10 percent for hypertension have not been met for any period. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101 (2012). 2. The criteria for a separate compensable rating of 10 percent and no higher for left ventricular diastolic dysfunction, as secondary to service-connected hypertension, are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107, 7104 (West 2002); 38 C.F.R. §§ 3.102, 3.310, 3.159, 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7007 (2012). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) enhanced VA's duty to notify and assist claimants in substantiating a claim for VA benefits, as codified in pertinent part at 38 U.S.C.A. §§ 5103, 5103A, 5107, 5126 (West 2002 & Supp. 2013); 38 C.F.R. §§ 3.102, 3.159, 3.326(a) (2012). A VCAA notice consistent with 38 U.S.C.A. § 5103(a) and 38 C.F.R. § 3.159(b) must (1) inform the claimant about the information and evidence not of record that is necessary to substantiate the claim; (2) inform the claimant about the information and evidence that VA will seek to provide; and (3) inform the claimant about the information and evidence the claimant is expected to provide. VCAA notice requirements apply to all five elements of a service connection claim (1) veteran status; (2) existence of disability; (3) connection between service and the disability; (4) degree of disability; and (5) effective date of benefits where a claim is granted. Dingess v. Nicholson, 19 Vet. App. 473, 484 (2006). The Board finds that in this case VA has satisfied its duties to notify the Veteran under the VCAA. In January 2008, April 2009, and May 2013 letters, the Veteran was notified of the information and evidence needed to substantiate and complete the claim on appeal. Additionally, the January 2008 letter provided the general criteria for the assignment of an effective date and initial rating. Id. In the present case, initial notice was issued prior to the May 2008 adverse determination on appeal; thus, no timing issue exists with regard to the notice provided the claimant. See Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). The Board further finds that VA has complied with the duty to assist by aiding the Veteran in obtaining evidence. It appears that all known and available records relevant to the pending appeal have been obtained and are associated with the Veteran's claims files. The RO has obtained the Veteran's service treatment records, as well as VA and non-VA medical treatment records. The Veteran was also afforded multiple VA medical examinations, the most recent conducted in June 2013, during the appeals period. The Board notes that the VA medical evidence contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal and is adequate for purposes of this appeal. The Board is not aware of, and the Veteran has not suggested the existence of, any additional pertinent evidence not yet received. Increased Rating for Hypertension The Veteran seeks a disability rating in excess of 10 percent for her service-connected hypertension. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4 (2012). In order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history a veteran's condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). However, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). In cases in which a reasonable doubt arises as to the appropriate degree of disability to be assigned, such doubt shall be resolved in favor of the veteran. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. In the case of Hart v. Mansfield, 21 Vet. App. 505 (2007), the U.S. Court of Appeals for Veterans Claims (Court) held that staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibited symptoms that would warrant different ratings. As such, the Board will consider whether staged ratings are appropriate to the pending appeal. In a September 1997 rating decision, the RO granted service connection and assigned an initial 10 percent rating for hypertension, pursuant to Diagnostic Code 7101, effective November 1, 1996. The Veteran filed the current claim for increase in January 2008. Diagnostic Code 7101 governs ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension) and grants a 60 percent evaluation for diastolic pressure predominantly 130 or more; a, 40 percent evaluation for diastolic pressure predominantly 120 or more; a 20 percent evaluation for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more; and a 10 percent evaluation for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 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. 38 C.F.R. § 4.104, Diagnostic Code 7107. Thus, the 10 percent rating for hypertension contemplates diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. In order to warrant a higher evaluation, there must be diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Such findings have not been demonstrated in the present case. The report of a VA foot examination in April 2008 reveals systolic/diastolic blood pressure readings of 137/91. At an August 2008 E.R. visit, the blood pressure readings were 140/92. A VA joints examination in April 2009 showed blood pressure at 129/87. In December 2009, the Veteran's blood pressure was measured in three positions: lying down, it was 109/71, sitting it was 122/78, and standing, it was 112/80. Most recently, a VA examination in June 2013 recorded blood pressure readings of 140/97, 143/90, and 147/93. Thus, in all measurements of record, the diastolic pressure is less than 110, and in all measurements, the systolic pressure is less than 200. While the Veteran believes she is entitled to a higher rating, she has not explained in terms of the rating schedule and criteria how her symptomatology warrants a higher rating, and the evidence indicates that it does not. In summation of the Board's findings, for the entire period of the claim, the criteria for any higher rating than those for the current 10 percent rating are not more nearly approximated for the entire period of rating. To the extent any higher level of compensation is sought, the preponderance of the evidence is against this claim, and the benefit-of-the-doubt doctrine does not apply. 38 U.S.C.A. § 5107(b); 38 C.F.R. §§ 3.102, 4.3, 4.7. Separate Rating for Left Ventricular Diastolic Dysfunction The Veteran also contends that her hypertension has resulted in other cardiovascular complications. When assessing the degree of impairment resulting from a service-connected disability, the "use of manifestations not resulting from service-connected disease or injury in establishing the service-connected evaluation . . . [is] to be avoided." 38 C.F.R. § 4.14 (2012). Nevertheless, "when it is not possible to separate the effects of the [service connected disability and the non- service connected disability], VA regulations at 38 C.F.R. § 3.102, which require that reasonable doubt on any issue be resolved in the appellant's favor, clearly dictate that such signs and symptoms be attributed to the service-connected condition." 61 Fed. Reg. 52698 (Oct. 8, 1996); see also Mittleider v. West, 11 Vet. App. 181, 182 (1998) (holding that, when a claimant has both service-connected and non-service-connected disabilities, the Board must attempt to discern the effects of each disability and, where such distinction is not possible, attribute such effects to the service-connected disability); see also Esteban v. Brown, 6 Vet. App. 259 (1994) (holding that a veteran is entitled to separate ratings for each residual arising from a single disability only if none of the symptomatology for one condition is duplicative). Moreover, the criteria for rating hypertensive heart disease, Diagnostic Code 7007, and hypertensive vascular disease, Diagnostic Code 7101, are distinct and separate criteria. Diagnostic Code 7007 measures disability based on impairment of cardiac workload (measured in METs) and related symptomatology of the heart, whereas Diagnostic Code 7101 rates impairment based on blood pressure readings alone, without regard for any cardiac symptomatology. 38 C.F.R. § 4.104. Thus, because the criteria are distinct and separate, a separate rating may be awarded for related cardiovascular complications without violating the provision against pyramiding. In the present case, the Veteran was diagnosed with left ventricular diastolic dysfunction, a type of congestive heart failure, according to a June 2013 VA medical examination report. According to the examiner, this disability was more likely than not due to the service-connected hypertension. Service connection may be awarded for any disability which is proximately due to or the result of, or is otherwise aggravated by, a service-connected disease or injury. 38 C.F.R. § 3.310. Thus, a separate rating is potentially warranted for left ventricular diastolic dysfunction. Hypertensive heart disease is rated under Diagnostic Code 7007, which provides a 10 percent evaluation when a workload of greater than 7 METs (metabolic equivalent unit) but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or when continuous medication is required. A 30 percent evaluation is assignable when a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or x-ray. 38 C.F.R. § 4.104, Diagnostic Code 7007. Evaluating the Veteran's left ventricular diastolic dysfunction in light of the schedular criteria, the Board finds a separate compensable rating of 10 percent is warranted. The June 2013 VA cardiovascular examination report indicates the Veteran's estimated METs was between 7 and 10. Pursuant to Diagnostic Code 7007, a separate rating of 10 percent and no higher is warranted. A disability rating of 30 percent is not warranted, as the estimated METs was in excess of between 5 and 7 and, according to concurrent June 2013 echocardiograms and x-rays, the Veteran was without cardiac hypertrophy or dilation. Finally, because the Veteran's level of impairment resulting from the hypertension and left ventricular diastolic dysfunction has remained essentially the same for the pendency of this appeal, a staged rating is not warranted. Extraschedular consideration will be discussed below. In conclusion, the evidence supports the award of a separate rating of 10 percent and no higher for left ventricular diastolic dysfunction resulting from hypertension. However, the preponderance of the evidence is against a rating in excess of 10 percent for the service-connected hypertension for the entirety of the appeal. As a preponderance of the evidence is against the award of an increased rating, the benefit of the doubt doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b). Extraschedular Consideration The Board has also considered whether referral for adjudication of an extraschedular rating is warranted. Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. 38 U.S.C.A. § 1155; 38 C.F.R. Part 4. To accord justice in an exceptional case where the schedular standards are found to be inadequate, the RO is authorized to refer the case to the Chief Benefits Director or the Director, Compensation and Pension Service for assignment of an extraschedular evaluation commensurate with the average earning capacity impairment. The criterion for such an award is a finding that the case presents an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical application of regular schedular standards. 38 C.F.R. § 3.321(b)(1) (2012). In Thun v. Peake, 22 Vet. App. 111, 115 (2008), the Court clarified the analytical steps necessary to determine whether referral for extraschedular consideration is warranted. Either the RO or the Board must first determine whether the schedular rating criteria reasonably describe the Veteran's disability level and symptomatology. If the schedular rating criteria reasonably describe a veteran's disability level and symptomatology, the assigned schedular evaluation is adequate, referral for extraschedular consideration is not required, and the analysis stops. If the RO or the Board finds that the schedular evaluation does not contemplate a veteran's level of disability and symptomatology, then either the RO or the Board must determine whether the veteran's exceptional disability picture includes other related factors such as marked interference with employment and frequent periods of hospitalization. Id. at 116. If this is the case, then the RO or the Board must refer the matter to the VA Under Secretary for Benefits or the Director of the Compensation and Pension Service for the third step of the analysis, determining whether justice requires assignment of an extraschedular rating. Id. Turning to the first step of the extraschedular analysis in the present case, the Board finds that the symptomatology and impairment caused by the Veteran's hypertension and left ventricular diastolic dysfunction are specifically contemplated by the schedular rating criteria, and no referral for extraschedular consideration is required. The schedular rating criteria for cardiovascular disorders specifically provide for disability ratings based on a combination of reported symptoms and clinical findings. In this case, considering the lay and medical evidence, the Veteran's hypertension and left ventricular diastolic dysfunction are manifested by elevated blood pressure readings, shortness of breath with exertion, the need for medication, and a reduction in the METs level. These symptoms are part of or like or similar to symptoms listed under the schedular rating criteria at 38 C.F.R. §§ 4.104. The schedular rating criteria specifically address the Veteran's cardiovascular symptomatology, including the use of blood pressure medication and dyspnea with exertion; therefore, referral for an extraschedular evaluation is not warranted. ORDER A disability rating in excess of 10 percent for hypertension is denied. A separate compensable rating of 10 percent for left ventricular diastolic dysfunction is granted. ____________________________________________ J. Parker Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs