Citation Nr: 1543467 Decision Date: 10/09/15 Archive Date: 10/13/15 DOCKET NO. 13-30 023 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Reno, Nevada THE ISSUES 1. Entitlement to an initial rating in excess of 20 percent for hypertension from February 16, 2010 to October 11, 2011. 2. Entitlement to an initial rating for hypertension with chronic renal disease and hypertensive heart disease in excess of 30 percent from October 12, 2011 and in excess of 80 percent from June 13, 2013. 3. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities. REPRESENTATION Veteran represented by: National Association for Black Veterans, Inc. WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD S. Sorathia, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1993 to June 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Portland, Oregon. The Veteran testified before the undersigned Veterans Law Judge in May 2015. A transcript of this hearing is associated with the claims file. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c). 38 U.S.C.A. § 7107(a)(2) (West 2014). FINDINGS OF FACT 1. From February 16, 2010 to June 12, 2013, the Veteran's diastolic pressure was predominantly 130 or more; but, his symptomatology did not include workload of 3 METs or less that results in dyspnea, fatigue, angina, dizziness, or syncope; left ventricular dysfunction with an ejection fraction of less than 30 percent; regular dialysis; renal dysfunction precluding more than sedentary activity due to persistent edema or albuminuria; BUN 40 to 80mg%; creatinine 4 to 8mg%; or generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or limitation of exertion. 2. From June 13, 2013, the preponderance of the evidence is against a finding that the Veteran required regular dialysis; was precluded from more than sedentary activity due to persistent edema or albuminuria; had BUN more than 80mg% or creatinine more than 8mg%; or had markedly decreased function of kidney or other organ systems. 3. Resolving reasonable doubt in favor of the Veteran, the Veteran has been unemployable as a result of his service-connected disabilities for the entirety of the appeal period. CONCLUSIONS OF LAW 1. From February 16, 2010 to June 12, 2013, the criteria for a 60 percent rating but no higher for hypertension with hypertensive heart disease and chronic renal disease have been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.104, diagnostic code 7007 and 7101, and 4.115a (2014). 2. From June 13, 2013, the criteria for a rating in excess of 80 percent for hypertension with hypertensive heart disease and chronic renal disease have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.7, 4.104, diagnostic code 7007 and 7101, and 4.115a (2014). 3. Effective February 16, 2010, the criteria for a TDIU based on the Veteran's service-connected disabilities have been met. 38 U.S.C.A. §§ 1154(a), 1155, 5107(b) (West 2014); 38 C.F.R. §§ 3.340, 3.341, 4.16 (2014). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS Duties to Assist and Notify The Veteran's claim for a higher rating for his hypertension arises from his disagreement with the initial evaluation following the grant of service connection. Once service connection is granted the claim is substantiated, additional notice is not required and any defect in the notice is not prejudicial. Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2007); Dunlap v. Nicholson, 21 Vet. App. 112 (2007). VA also has a duty to provide assistance to substantiate a claim. 38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159(c) (2014). The Veteran's post-service VA and private treatment records have been obtained and considered, as well as his Social Security Administration records. The Veteran was afforded several VA examinations during the pendency of the appeal. The examination reports are adequate to determine the nature and severity of the Veteran's hypertension, hypertensive heart disease, and chronic renal disease as the examiner reviewed pertinent medical records, conducted an appropriate evaluation of the Veteran, and recorded examination findings as to the severity and the extent of the Veteran's hypertensive symptoms. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008). The Veteran has been afforded a hearing before a Veterans Law Judge (VLJ) in which he presented oral argument in support of claims. In Bryant v. Shinseki, 23 Vet. App. 488 (2010), the United States Court of Appeals for Veterans Claims (Court) held that 38 C.F.R. § 3.103(c)(2) requires that the VLJ who chairs a hearing fulfill two duties to comply with the above regulation. These duties consist of (1) the duty to fully explain the issues and (2) the duty to suggest the submission of evidence that may have been overlooked. Here, during the hearing, the VLJ identified the issues to the Veteran and asked specific questions directed at identifying whether the Veteran met the criteria for TDIU and an increased rating for hypertension. The VLJ specifically asked questions regarding the nature and severity of the Veteran's hypertensive symptoms and discussed how the Veteran's service-connected disabilities impact his ability to work. Moreover, neither the Veteran nor his representative has asserted that VA failed to comply with 38 C.F.R. § 3.103(c)(2), or otherwise identified any prejudice in the conduct of the Board hearing. By contrast, the hearing focused on the elements necessary to substantiate the claim and the Veteran, through his testimony, demonstrated that he had actual knowledge of the elements necessary to substantiate his claim for benefits. As such, the Board finds that, consistent with Bryant, the VLJ complied with the duties set forth in 38 C.F.R. § 3.103(c)(2) and that the Board can adjudicate the claims based on the current record. Increased Rating Claim By way of background, the Veteran filed a service connection claim for hypertension in February 2010. He was then granted service connection in an August 2010 rating decision and assigned a 10 percent rating, effective February 16, 2010. The Veteran appealed the assigned disability rating. The RO, in March 2013, increased the Veteran's rating for hypertension to 20 percent, effective February 16, 2010. The RO issued a statement of the case and the Veteran perfected his appeal. Then, in June 2013, the Veteran submitted a statement contending that he had kidney disease and heart disease secondary to his hypertension. The RO, in a September 2014 rating decision, determined that hypertensive heart disease and chronic renal disease were related to hypertension and phrased the Veteran's service-connected issue as "hypertension with hypertensive heart disease and chronic renal disease." The RO assigned a 30 percent rating, effective October 12, 2011, the date the RO contended that it received evidence that chronic kidney disease was related to hypertension. An 80 percent rating was assigned effective June 13, 2013, the date the Veteran submitted his statement that he had heart disease secondary to hypertension. Thus, the Veteran is currently service-connected for hypertension with a 20 percent rating from February 16, 2010 to October 11, 2011. He is then service-connected for "hypertension with hypertensive heart disease and chronic renal disease" from October 12, 2011. He is assigned a 30 percent rating from October 12, 2011 and an 80 percent rating from June 13, 2013. The Veteran now contends that he is entitled to a higher rating for this service-connected disability. Hypertension is rated under 38 C.F.R. §4.104, diagnostic code 7101. A 20 percent rating for hypertension 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, and the maximum schedular rating of 60 percent is warranted for diastolic pressure predominantly 130 or more. Hypertensive heart disease is rated under 38 C.F.R. §4.104, diagnostic code 7007. A 10 percent rating is warranted where a workload of greater than 7 METs but not greater than 10 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; continuous medication is required. A 30 percent rating is warranted where a workload of greater than 5 METs but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or; a workload greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is evidence of left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A 100 percent rating is warranted where there is chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; there is left ventricular dysfunction with an ejection fraction of less than 30 percent. Chronic kidney disease is rated under 38 C.F.R. § 4.115a, renal dysfunction. Renal dysfunction with albumin and casts with history of acute nephritis; or, hypertension that is noncompensable under diagnostic code 7101 is noncompensable disabling. Renal dysfunction where albumin is constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under diagnostic code 7101 warrants a 30 percent rating. Renal dysfunction with constant albuminuria with some edema; or, definite decrease in kidney function; or, hypertension at least 40 percent disabling under diagnostic code 7101 warrants a 60 percent rating. Renal dysfunction characterized by persistent edema and albuminuria with BUN 40 to 80 mg% [milligrams per 100 milliliters or mg/dL]; or, creatinine 4 to 8 mg%; or, generalized poor health characterized by lethargy, weakness, anorexia, weight loss, or a limitation of exertion warrants an 80 percent rating. Renal dysfunction requiring regular dialysis, or precluding more than sedentary activity from one of the following: persistent edema and albuminuria; or, BUN [blood urea nitrogen] more than 80 mg%; or, creatinine more than 8 mg%; or, markedly decreased function of kidney or other organ systems, especially cardiovascular, warrants a 100 percent rating. Note 3 of 38 C.F.R. § 4.104, diagnostic code 7101, specifically states that hypertension should be separately evaluated from hypertensive heart disease. However, 38 C.F.R. § 4.115 states that separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis on account of the close interrelationships of cardiovascular disabilities. A separate rating for kidney disease and hypertension would be appropriate if the absence of a kidney is the sole renal disability or if regular dialysis is required. Id. As noted above, the Veteran has been service-connected for hypertension with hypertensive heart disease and chronic renal disease. In the instant case, the Board finds that a single rating is appropriate. Although note 3 of 38 C.F.R. § 4.104 states that hypertension and hypertensive heart disease should be rated separately, 38 C.F.R. § 4.115 specifically states that nephritis should not be rated separately from disease of the heart, unless the kidney requires dialysis or a kidney has been removed. Here, there is no evidence that his chronic renal disease has progressed to the point of requiring regular dialysis or the removal of a kidney. Moreover, the schedular rating requirements of hypertension listed in diagnostic code 7001 are specifically contemplated by 38 C.F.R. § 4.115a as the severity of hypertension is considered in the rating criteria for renal dysfunction. 38 C.F.R. § 4.14 states that the evaluation of the same manifestation under different diagnoses are to be avoided. Thus, in the instant case, the Board finds that it would be pyramiding to assign separate ratings for the Veteran's hypertension, hypertensive heart disease, and chronic kidney disease. The Board finds that a 60 percent rating is warranted from February 16, 2010 to June 12, 2013. The Veteran's claims file contains several years of private and VA treatment records documenting his hypertension. These treatment records reveal significantly differing blood pressure readings. A May 2011 VA examination report revealed that two of the three blood pressure readings have diastolic pressure above 130. This is reflective of a 60 percent rating. Although April 2012, July 2012, August 2014, and February 2015 VA examination reports did not reveal diastolic pressure ratings predominantly 130 or more, the evidence of record reveals that the Veteran has been hospitalized at least nine times for elevated blood pressure. A February 2011 letter from the chief of the renal department stated that the Veteran's hypertension is among the most severe and refractory of any of his patients. The Veteran "routinely runs blood pressures in excess of 200/130, despite treatment" with various medications. The doctor further stated that although there was some speculation regarding the Veteran's compliance with his medication, the doctor was "fully confident" that non-adherence was not a factor in the Veteran's hypertension. The Board finds this statement from the Veteran's treating physician to be highly probative as the doctor had the necessary knowledge of the Veteran's medical history and access to his treatment records. Thus, the Board finds that a 60 percent rating for hypertension is warranted for the entirety of the appeal period prior to June 13, 2013. This is the highest schedular rating for hypertension under diagnostic code 7101. A higher rating under 38 C.F.R. § 4.115a is not warranted prior to June 13, 2013. Even though the record reveals several hospitalizations for hypertension prior to June 2013, the July 2012 VA examiner noted that the Veteran did not have generalized poor health due to renal dysfunction, lethargy due to renal dysfunction, weakness due to renal dysfunction, or limitation of exertion due to renal dysfunction. Moreover, the examiner stated that the Veteran had "mildly" abnormal renal function. The evidence of record also did not reveal persistent edema and albuminuria with BUN 40 to 80mg%, or creatinine 4 to 8mg%. In fact, the July 2012 VA examination report noted normal BUN and creatinine. A higher rating under diagnostic code 7007 for hypertensive heart disease is also not warranted. The July 2012 VA examination report, as well as the extensive VA and private treatment records, revealed that the Veteran did not have a history of congestive heart failure and that he did not have a left ventricular dysfunction with an ejection fraction of less than 30 percent. Moreover, he did not have a history of a workload of less than 3 METs that resulted in dyspnea, fatigue, angina, dizziness, or syncope. As such, a higher rating under diagnostic code 7007 is not warranted. In the September 2014 rating decision, the RO granted a 80 percent rating, effective June 13, 2013 based on the results of an August 2014 VA examination report. This examination report indicated that the Veteran had generalized poor health due to renal dysfunction characterized by lethargy, weakness, and limitation of exertion. However, the evidence of record does not indicate that a 100 percent rating is appropriate for this time period. There is no evidence of a workload of 3 METs or less that result in dyspnea, fatigue, angina, dizziness, or syncope. See August 2014 VA examination report. There is also no indication of left ventricular dysfunction with an ejection fraction of less than 30 percent. Moreover, the August 2014 VA examination report, as well as the treatment records, confirm that the Veteran does not have a history of regular dialysis. The evidence does not show BUN more than 80mg% or creatinine more than 8mg%. In fact, the August 2014 VA examination report noted creatinine of 2.5 and a normal BUN of 22. There, is also no evidence that persistent edema and albuminuria due to renal dysfunction alone preclude more than sedentary activity. Although the Board acknowledges the Veteran's highly elevated blood pressure and his chronic renal disease, the evidence of record does not reveal that he has "markedly" decreased function of his kidney or other organ. See July 2012 and August 2014 VA examination reports. His condition has not resulted in congestive heart failure, kidney dialysis, or removal of a kidney. Thus, the Board finds that the preponderance of the evidence is against a finding of a rating in excess of 60 percent prior to June 13, 2013 and in excess of 80 percent on and after June 13, 2013. In exceptional cases an extraschedular rating may be provided. 38 C.F.R. § 3.321 (2014). The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a Veteran is entitled to an extraschedular rating: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the Veteran's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In the instant case, the Board finds that the rating criteria contemplate the Veteran's disability. The Board acknowledges the Veteran's several periods of hospitalization due to his hypertension. However, the rating criteria specifically contemplates the Veteran's symptomatology, including his elevated blood pressure readings and his workload of METs. Moreover, the rating criteria specifically contemplate poor health, lethargy, weakness, anorexia, weight loss, and limitation of exertion. Thus, the Veteran's symptoms of elevated blood pressure that require frequent treatment are specifically contemplated by the regulations. Although the Board in this decision finds that the Veteran is entitled to TDIU due to the impact of his service-connected disabilities, review of the record does not reveal an aggregate effect of the Veteran's service-connected disabilities so as to warrant an extraschedular referral. Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014). The rating criteria are therefore adequate to evaluate the Veteran's condition and referral for consideration of extraschedular rating is not warranted. TDIU Total disability ratings for compensation based on individual unemployability may be assigned where the schedular rating is less than total if it is found that the Veteran is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R §§ 3.340, 3.34l, 4.16(a). In this decision, the Board has granted a 60 percent rating for hypertension with hypertensive heart disease and chronic renal disease prior to June 13, 2013. The Veteran has sufficient additional service-connected disabilities for his right and left knee disabilities that bring his combined rating to 70 percent. As such, the Veteran meets the schedular requirement under 4.16(a) for the entirety of the appeal. The fact that a Veteran is unemployed or has difficulty obtaining employment is insufficient, in and of itself, to establish unemployability. The relevant question is whether the Veteran is capable of performing the physical and mental acts required by employment, not whether he or she can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993) (citing 38 C.F.R. §§ 4.1, 4.15). In reaching such a determination, the central inquiry is "whether the [V]eteran's service-connected disabilities alone are of sufficient severity to produce unemployability." Hatlestad v. Brown, 5 Vet. App. 524, 529 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his age or the impairment caused by nonservice-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19. The United States Court of Appeals for the Federal Circuit (Federal Circuit) held that determination of whether a veteran is unable to secure or follow a substantially gainful occupation due to service-connected disabilities is a factual rather than a medical question and that it is an adjudicative determination properly made by the Board or the RO. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). The Veteran contends that he last worked in 2009 and that his service-connected right knee disability, left knee disability, and hypertension with hypertensive heart disease and chronic renal disease impact his ability to work. During the May 2015 hearing, the Veteran testified that he previously worked as a cable installer. He stated that his service-connected disabilities, in the aggregate, prevent him from engaging in sedentary and physical employment. It is his contention that his hypertension with hypertensive heart disease and chronic renal disease impacts his physical abilities and that his knee disabilities impact his ability to sit for prolonged periods of time in a sedentary position. He further testified that his hospitalizations due to hypertension require too much time off from work and would prevent him from obtaining gainful employment. The Board notes that a May 2015 VA examination report noted that the Veteran's bilateral knee disabilities impede his ability to walk for a prolonged period of time and that this affects his ability to work. The July 2012 VA examination report found that the Veteran's knee disabilities, in part, resulted in his fitness deconditioning. An April 2012 VA examination noted that the Veteran should not walk or stand for more than five minutes per hour and that he should not have employment that requires climbing stairs, squatting, kneeling, or crawling. A March 2011 letter from the Veteran's doctor stated that it was "infeasible" for the Veteran to return to work as he has pain in his knees when he walks more than ten minutes. The July 2012 VA examiner opined that the Veteran's hypertension condition prevented him from engaging in physical employment as it would likely further elevate his blood pressure. The April 2012 VA examination report also noted that the Veteran's stress should be limited. A May 2011 VA examination report additionally noted that more than "mild" exertion might elevate his blood pressure. The March 2011 letter from the Veteran's doctor also stated that he "does not have the stamina to sustain even a part-time job." Thus, in light of the Veteran's competent and credible statements regarding his ability to walk, stand, and participate in physical activity, the Board finds that the Veteran's service-connected disabilities impact his ability to perform work. Given the competent medical evidence indicating that the Veteran's service-connected disabilities impact his ability to work, along with the documented periods of hospitalization due to elevated blood pressure, the Board finds that the evidence of record shows that he is entitled to an award of a TDIU, effective February 16, 2010. See Geib v. Shinseki, 733 F.3d 1350 (Fed. Cir. 2013). Accordingly, entitlement to TDIU is warranted. (CONTINUED ON NEXT PAGE) ORDER From February 16, 2010 to June 12, 2013, a 60 percent rating but no higher for hypertension with hypertensive heart disease and chronic renal disease is granted, subject to the applicable criteria governing the payment of monetary benefits. A rating in excess of 80 percent on and after June 13, 2013 for hypertension with hypertensive heart disease and chronic renal disease is denied. Effective February 16, 2010, entitlement to a total disability rating based on individual unemployability due to service-connected disabilities is granted, subject to the applicable criteria governing the payment of monetary benefits. ______________________________________________ STEVEN D. REISS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs