Citation Nr: 1544240	
Decision Date: 10/16/15    Archive Date: 10/21/15

DOCKET NO.  13-24 660	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Jackson, Mississippi


THE ISSUE

Entitlement to an initial compensable rating for hypotension syncope from July 2, 1995 to December 19, 2002.


REPRESENTATION

Appellant represented by:	Mississippi State Veterans Affairs Board


ATTORNEY FOR THE BOARD

D. Bredehorst



INTRODUCTION

The Veteran served on active duty from December 1988 to July 1995.

This appeal to the Board of Veterans' Appeals (Board) is from an October 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO).

The Board notes that the Veteran indicated in correspondence dated in May 2015 that he had two appeals before the Board.  See VA 21-4138 Statement in Support of Claim received June 3, 2015.  However, a thorough review of the file shows the Board adjudicated three issues in October 2014 and the only remaining issue on appeal is the one listed on the title page of this decision.  Furthermore, no other issues are listed on the Certificate of Appeal.  See VA 8 Certificate of Appeal.

This appeal was processed using the Veterans Benefits Management System (VBMS) paperless claims processing system.  In the decision below the Board has also considered records stored electronically in Virtual VA.


FINDING OF FACT

From July 2, 1995 to December 19, 2002, the Veteran's orthostatic hypotension was manifested by occasional dizziness.


CONCLUSION OF LAW

The criteria for an initial evaluation of 10 percent for orthostatic hypotension have been met from July 2, 1995 to December 19, 2002.  38 U.S.C.A. §§ 1155 (West 2014); 38 C.F.R. §§ 4.7, 4.87, Diagnostic Code 6204 (1998).



REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

As provided for by the Veterans Claims Assistance Act of 2000 (VCAA), VA has a duty to notify and assist claimants in substantiating a claim for VA benefits.  38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). 

Proper notice from VA must inform the claimant of any information and medical or lay 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.  Quartuccio v. Principi, 16 Vet. App. 183 (2002).  This notice must be provided prior to an initial unfavorable decision on a claim by the RO.  Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006); Pelegrini v. Principi, 18 Vet. App. 112 (2004). 

The April 2009 letter to the Veteran complied with the VCAA duty to notify requirements.  He was advised as to what was required to substantiate the claim and of his and VA's respective duties for obtaining evidence.  The letter also provided the Veteran with notice of what type of information and evidence was needed to establish a disability rating, as well as notice of the type of evidence necessary to establish an effective date.  

VA also has a duty to assist a veteran in the development of the claim.  The RO obtained service treatment records, secured post-service records to include pertinent VA treatment records, and provided the Veteran with an examination.  38 U.S.C.A. § 5103A (West 2014); 38 C.F.R. § 3.159 (2015).  The Veteran's statements as well as those from others are also of record.  The Veteran was provided a VA examination in September 1995 and while no particular findings were noted at that time, it would serve no useful purpose to remand the matter for a more thorough examination since the time period pertinent to the appeal spans roughly from July 1995 to December 2002.  Furthermore, since the Veteran is seeking a 10 percent rating for this period and the decision below grants that benefit, there is no prejudice to the Veteran.  

Neither the Veteran nor his representative has identified, and the record does not otherwise indicate, any additional existing evidence that is necessary for a fair adjudication of the claim that has not been obtained.  Hence, no further notice or assistance to the appellant is required to fulfill VA's duty to assist him in the development of the 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); Quartuccio v. Principi, 16 Vet. App. 183 (2002).

II. Legal Criteria and Analysis

Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities.  38 U.S.C.A § 1155; 38 C.F.R. Part 4.  Although the disability must be considered in the context of the whole recorded history, including service medical records, the present level of disability is of primary concern in determining the current rating to be assigned.  38 C.F.R. § 4.2 (2014); Francisco v. Brown, 7 Vet. App. 55 (1994); Schafrath v. Derwinski, 1 Vet. App. 589 (1991).  If the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending, staged ratings may be assigned.  Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999); 38 C.F.R. § 4.2.

Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned.  38 C.F.R. § 4.7.

Orthostatic hypotension is an unlisted disability, which means this specific disability does not have a designated diagnostic code under which it is rated.  It has therefore been rated by analogy under Code 6099-6204 due to the symptoms being closely related to Code 6204, which is applicable to peripheral vestibular disorders.  38 C.F.R. §§ 4.20, 4.27 (2015). 

Historically, service connection for hypotension was granted in an April 2004 rating decision and since the RO determined it was part and parcel to the service-connected hypertension, a separate rating was not assigned.  See Rating Decision - Narrative received April 14, 2004.  The Veteran appealed the decision and sought to have separate ratings assigned since hypertension and orthostatic hypotension were distinct and separate disabilities.  In a June 2008 decision, the Board granted a separate 10 percent rating for orthostatic hypotension and rated the disability by analogy under Code 6204 recognizing there was no objective evidence but finding credible reports of dizziness due to positional changes.  See BVA decision received June 27, 2008.

In a July 2008 rating decision, the RO effectuated the 10 percent rating for orthostatic hypotension and made it effective December 19, 2002.  The Veteran appealed the effective date of the award on the basis he had filed an earlier claim in 1995 that was not adjudicated.  During the course of the appeal, a February 2012 rating decision granted an effective date of July 2, 1995 for service connection and assigned a noncompensable rating on the basis there was no objective findings to support the diagnosis and that the only private treatment record that noted dizziness indicated is was related to medication he was given for hypertension.

There is no objective evidence of symptoms of orthostatic hypotension prior to December 19, 2002.  However, by the same token, the assignment of a compensable rating should not necessarily be precluded since there was also no objective evidence at the time the Board granted a separate rating and awarded the 10 percent rating.  

The Veteran underwent a general medical VA examination in September 1995, in part, due to his orthostatic hypotension.  The physician noted the Veteran's reported history of dizziness when he stands and provided a diagnosis of orthostatic hypotension.  Even though the examination included blood pressure readings while sitting and standing, she offered no comment as to whether or not his dizziness was observed at that time or any other time during the examination.  See VA Examination received September 1, 1995.  

In July 2003 he testified that he mostly had low blood pressure when moving from sitting to standing or lying to standing.  See page 13 of Hearing Testimony received July 2, 2003.

A June 2009 statement from the Veteran's parents indicates they notice he complained of dizziness from sitting to standing or lying to standing positions after he separated from service.  See Correspondence received July 2, 2009.

The Veteran is competent to report his symptoms and his parents are competent to report what they observed.  There is also no reason to doubt the veracity of these statements.  Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see Baldwin v. West, 13 Vet. App. 1 (1999).

In short, a 10 percent rating for orthostatic hypotension is warranted from July 2, 1995 to December 19, 2002.  

The Board notes that during the period from July 2, 1995 to December 19, 2002 the criteria for Code 6204 were amended, effective May 11, 1999.  See 38 C.F.R. § 4.87a, Code 6204 (1999).  

The revised criteria provide a 10 percent rating for occasional dizziness and the maximum schedular rating of 30 percent is warranted for dizziness and occasional staggering.  38 C.F.R. § 4.87, Code 6204.  A Note following Code 6204 provides that objective findings supporting the diagnosis of vestibular disequilibrium are required before a compensable evaluation can be assigned under this code.  Id.  Where the Rating Schedule does not provide a 0 percent or noncompensable rating for a particular diagnostic code, such a rating is to be assigned when the requirements for a compensable rating are not met.  38 C.F.R. § 4.31.  

Prior to this, the criteria allowed for a 10 percent rating for moderate symptoms of tinnitus and occasional dizziness.  A 30 percent rating was assigned for severe symptoms of tinnitus, dizziness, and occasional staggering.  See 38 C.F.R. § 4.87a, Code 6204 (1998).  There was no requirement of objective evidence of vestibular disequilibrium at that time.

Generally, in a claim for an increased rating, where the rating criteria are amended during the course of the appeal, the Board will consider both the former and current schedular criteria.  However, should an increased rating be warranted under the revised criteria, that award may not be made effective prior to the effective date of the change.  See Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003) [overruling Karnas v. Derwinski, 1 Vet. App. 308 (1991) to the extent it held that, where a law or regulation changes after a claim has been filed or reopened, but before the administrative or judicial appeals process has concluded, the version more favorable to the Appellant will apply.]  Since only the prior version of the criteria may be applied for the entire period and since it is more favorably by not requiring objective evidence of vestibular disequilibrium, the disability is rated pursuant to this version of the criteria.  As such, a 10 percent rating is warranted based on evidence of occasional dizziness.  A higher rating of 30 percent rating is not warranted since occasional staggering is a requirement for both versions of the criteria and it is not shown.

A preponderance of the evidence is against a rating in excess of 10 percent because while there is lay evidence of occasional staggering and dizziness in later years, there is no such evidence that he had staggering during the period pertinent to this appeal.


ORDER

A 10 percent rating for orthostatic hypotension from July 2, 1995 to December 19, 2002 is granted, subject to the regulations governing payment of monetary awards.



____________________________________________
MICHAEL A. HERMAN
Veterans Law Judge, Board of Veterans' Appeals


Department of Veterans Affairs