Citation Nr: 18132310
Decision Date: 09/06/18	Archive Date: 09/06/18

DOCKET NO. 15-32 232
DATE:	September 6, 2018
ORDER
Entitlement to an increased rating for hypertension, currently evaluated as 10 percent disabling, is denied. 
New and material evidence having been submitted, the claim for entitlement to service connection for a kidney disability is reopened.
REMANDED
Entitlement to service connection for a kidney disability, to include as secondary to service-connected hypertension, is remanded for additional development.
FINDINGS OF FACT
1. The Veteran’s hypertension has not been manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more during the period on appeal.  
2. An April 2009 Board of Veterans’ Appeals (Board) decision denied the Veteran’s claim of service connection for a kidney disability.
3.  Evidence received since the April 2009 Board decision is neither cumulative nor repetitive of facts that were previously considered, and raises the possibility of substantiating the claim.
CONCLUSIONS OF LAW
1. The criteria for a rating higher than 10 percent for hypertension have not been satisfied.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.104, Diagnostic Code 7101 (2017).
2. The April 2009 Board decision denying service connection for a kidney disability is final.  38 U.S.C. § 7266 (2012); 38 C.F.R. § 20.1100 (2017). 
3. The criteria for reopening the claim of service connection for a kidney disability have been met.  38 U.S.C. § 5108 (2012); 38 C.F.R. § 3.156(a) (2017). 
REASONS AND BASES FOR FINDINGS AND CONCLUSIONS
The Veteran had active military service with the U.S. Army from March 1990 to September 1992.  During this time, he was awarded the Kuwait Liberation Medal, the Southwest Asia Service Medal, and the National Defense Service Medal.
These matters come to the Board of Veteran’s Appeals (Board) on appeal from a February 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.
The Veteran filed a claim for entitlement to service connection for a kidney disability in October 2002.  Following a timely appeal of that decision, the Board issued a decision in April 2009 that denied service connection.  
The Veteran filed to reopen his claim for service connection for a kidney disability in November 2012, at which time he also filed a claim for an increased evaluation of his already service-connected hypertension, which is currently rated as 10 percent disabling. 
Increased Ratings
VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities.  38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally 38 C.F.R., Part IV.  The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment.  38 C.F.R. § 4.10.  The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability.  38 C.F.R. § 4.1. 
Separate diagnostic codes identify the various disabilities and the criteria for specific ratings.  If two disability evaluations are potentially applicable, 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.  Otherwise, the lower rating will be assigned.  Id.  All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant.  38 C.F.R. §§ 4.3, 3.102. 
Separate ratings for distinct disabilities resulting from the same injury or disease can be assigned so long as the symptomatology for one condition is not “duplicative or overlapping with the symptomatology” of the other condition.  Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994).  However, the evaluation of the same disability or its manifestations under various diagnoses, which is known as pyramiding, is to be avoided. 38 C.F.R. § 4.14.
Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria.  Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999).  In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection.  See Fenderson, 12 Vet. App. at 125; 38 U.S.C. § 5110; 38 C.F.R. § 3.400.  For increased-rating claims, where a claimant seeks a higher evaluation for a previously service-connected disability, it is the present level of disability that is of primary concern, and VA considers the level of disability for the period beginning one year prior to the claim for a higher rating to determine whether and when an ascertainable increase has occurred.  See Hart, 21 Vet. App. at 509; Francisco v. Brown, 7 Vet. App. 55, 58 (1994); Hazan v. Gober, 10 Vet. App. 511, 519 (1992); 38 U.S.C.       § 5110 (b)(2); 38 C.F.R. § 3.400 (o)(2).
A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102 (providing, in pertinent part, that reasonable doubt will be resolved in favor of the claimant).  When the evidence supports the claim or is in relative equipoise, the claim will be granted.  See Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990); see also Wise v. Shinseki, 26 Vet. App. 517, 532 (2014).  If the preponderance of the evidence weighs against the claim, it must be denied.  See id.; Alemany v. Brown, 9 Vet. App. 518, 519 (1996).
Entitlement to an Increased Rating for Hypertension
The Veteran asserts that his service-connected hypertension warrants a rating in excess of the 10 percent currently assigned.
Hypertension is evaluated under DC 7101.  38 C.F.R. § 4.104.  Under DC 7101, a 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more.  A 10 percent rating is also assigned when the individual has a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.  Id.  A 20 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  Id.  A 40 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 120 or more.  Id.  Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling.  Id.  
Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days.  Id., Note (1).  The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm.  Id.; see Gill v. Shinseki, 26 Vet. App. 386, 391 (2013) (holding that the definition in Note (1), including the requirement that hypertension be confirmed by readings taken two or more times on at least three different days, pertains to establishing the diagnosis rather than evaluating the severity of hypertension under the rating criteria).  
Here, the evidence does not show that the Veteran has had diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more at any point during the pendency of this claim.  Rather, the most recent VA examination reports reflect that his current highest diastolic pressure was 97 and his highest systolic pressure was 157.  See February 2013 VA Hypertension Examination Report (reflecting blood pressure readings of 157/95, 153/97, and 150/96, and noting that his hypertension required continuous medication for control).  A review of the Veteran’s medical treatment records dated during the appellate period additionally similarly do not contain any evidence of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more.  See, e.g., June 2012 El Paso VA Health Care System (HCS) Primary Care Note (reflecting blood pressure of 154/94 and reporting that continuous medication is required for control of his hypertension); February 2013 El Paso VA HCS Primary Care Note (noting a blood pressure reading of 137/84); July 2013 El Paso VA HCS Nursing Triage Note (reflecting a blood pressure reading of 144/98); April 2014 El Paso VA HCS Nursing Intake Follow-Up Note (reporting a blood pressure reading of 159/95); January 2015 El Paso VA HCS Nursing Intake Follow-Up Note (recording blood pressure of 121/81); September 2015 El Paso VA HCS Nursing Intake Follow-Up Note (indicating the Veteran’s blood pressure was 134/91); July 2016 El Paso VAOPC Mental Health Note (reporting that in October 2015, the Veteran’s blood pressure was 148/92; 141/90 in December 2015; 123/94 in April 2016; and 140/89 in July 2016);  May 2017 El Paso VA HCS Primary Care Note (observing that two blood pressure readings taken on the same day were 155/90 and 163/97, respectively); February 2018 El Paso VA HCS Primary Care Note (recording the Veteran’s blood pressure as 129/80).  Accordingly, the criteria for a rating of 20 percent or higher are not met or more nearly approximated.  38 C.F.R. § 4.104; DC 7101.
As the preponderance of the evidence shows that the Veteran’s hypertension has not met or more nearly approximated the criteria for a rating in excess of 10 percent during the pendency of this claim, for the reasons explained above, staging is not appropriate for the time period under review.  See Fenderson, 12 Vet. App. at 126. 
Extraschedular Consideration
Additionally, referral for extraschedular consideration is not warranted.  Thun v. Peake, 22 Vet. App. 111, 115 (2008); aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009); 38 C.F.R. § 3.321(b).  In this regard, because the ratings provided under the VA Schedule for Rating Disabilities are averages, it follows that an assigned rating may not completely account for each individual veteran’s circumstances, but nevertheless would still be adequate to address the average impairment in earning capacity caused by the disability.  Thun, 22 Vet. App. at 114.  However, in exceptional situations where the rating is inadequate, it may be appropriate to refer the case for extraschedular consideration.  Id.  The governing norm in these exceptional cases is a finding that the disability at issue presents such an exceptional or unusual disability picture with such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards.  Id.  38 C.F.R. § 3.321(b)(1).  These criteria have been broken up into a three-step inquiry: (1) The schedular criteria must be inadequate to describe the claimant’s disability level and symptomatology; (2) There must be related factors such marked interference with employment or frequent periods of hospitalization; (3) If so, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination of whether the claimant’s disability picture requires the assignment of an extraschedular rating.  Thun, 22 Vet. App. at 114. 
The evidence does not show that the Veteran’s hypertension is manifested by symptoms or functional impairment different or more severe than what is contemplated by the rating criteria, such as to render application of the rating schedule impractical.  A comparison of the Veteran’s hypertension with the schedular criteria, as discussed in detail above, shows that the rating criteria are adequate to describe the disability level and symptomatology.  See Thun, 22 Vet. App. at 114.  Specifically, while his hypertension has not been manifested by either diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more, he does require continuous medication to control his blood pressure levels.  These manifestations are contemplated under 38 C.F.R.      § 4.104, DC 7101.  See 38 C.F.R. § 4.104.  
The basis of the schedular ratings is the ability to function under the ordinary conditions of daily life including employment.  38 C.F.R. § 4.10.  The objective data upon which the schedular evaluations are based thus serve as markers of disability at different levels of severity in terms of the ability to function under the ordinary conditions of daily life and employment without specifically describing how that disability may manifest in everyday life.  38 C.F.R. § 4.104.  The schedular regulations cannot be found inadequate solely because they do not mention a particular symptom, clinical finding, example of functional impairment, or manner of coping with the disability, when they are generally devoid of any such description whatsoever.  There is no evidence that the Veteran’s hypertension pathology, symptoms, and functional limitations are not contemplated by the rating criteria, which must be assumed to capture a wide range of disabling manifestations.  Cf. 38 C.F.R. § 4.1.  Further, just as separate ratings would not be warranted for different diagnoses or clinical findings resulting in the same disability, referral for extraschedular consideration is not warranted solely based on clinical findings that do not produce disability distinct from or in addition to what is already compensated under the schedular criteria.  See 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided). 
In short, there are no manifestations of the Veteran’s hypertension not accounted for in evaluating it under the schedular criteria.  See Thun, 22 Vet. App. at 115; 38 C.F.R. § 3.321(b).  Thus, the available schedular evaluations are adequate to rate this disability, and the first step of the inquiry is not satisfied.  See id.  In the absence of this threshold finding, the second step of the inquiry, namely whether there are “related factors” such as marked interference with employment or frequent periods of hospitalization, is moot.  See Thun, 22 Vet. App. at 118-19.  Therefore, the Board will not refer the evaluation of the Veteran’s hypertension for extraschedular consideration.  See id.; 38 C.F.R. § 3.321(b).  
Claim to Reopen
The Veteran’s claim for entitlement to service connection for a kidney disability, to include as secondary to his already service-connected hypertension, was initially denied by the Board in an April 2009 decision, as the evidence did not show that it manifested in service or a compensable degree within a year of separation from service, nor that it was otherwise related to an already-service-connected disability.  This decision is final.  38 C.F.R. § 20.1100.
The Veteran filed to reopen his claim for entitlement to service connection in November 2012.  In support of his petition to reopen, the Veteran submitted correspondence from a private doctor regarding the possibility that the Veteran had renal artery stenosis.  See September 2013 Email Correspondence (positing that renal artery stenosis must be considered when a patient’s blood pressure is not sufficiently controlled by two or three types of medications and describing symptoms of as well as the testing method for this condition). The doctor also raised the possibility that of a non-cancerous tumor as the cause of high blood pressure. Id. 
Prior to making a determination with respect to the Veteran’s claim of service connection, the Board must first determine whether new and material evidence has been submitted sufficient to reopen the claim.  
A previously denied claim may be reopened by the submission of new and material evidence.  38 U.S.C. § 5108; 38 C.F.R. § 3.156.  New evidence is defined as evidence not previously submitted to agency decision makers.  Material evidence means existing evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim.  New and material evidence can be neither cumulative nor redundant of the evidence of record at the time of the last prior final denial of the claim sought to be reopened, and must raise a reasonable possibility of substantiating the claim.  38 C.F.R. § 3.156(a).
The Board is aware that when determining whether the submitted evidence meets the definition of new and material evidence, VA must consider whether the new evidence could, if the claim were reopened, reasonably result in substantiation of the claim.  Shade v. Shinseki, 24 Vet. App. 110, 118 (2010).  Moreover, the Court of Appeals for Veterans Claims explained this standard is intended to be a low threshold.  Id.  For purposes of reopening a claim, the credibility of newly submitted evidence is generally presumed.  Justus v. Principi, 3 Vet. App. 510, 513 (1992).
Following a review of the evidentiary record, the Board finds that evidence submitted by the Veteran since the date of the April 2009 Board decision constitutes “new” evidence, as it was not available at the time of the April 2009 decision.  Moreover, the Board finds that this new evidence is material, as it suggests that the Veteran may have another condition that may potentially be related to his already service-connected hypertension.  Therefore, the Board finds there is sufficient evidence to reopen the previously-denied claim for entitlement to service connection for a kidney disability.
REASONS FOR REMAND
With respect to the Veteran’s reopened claim for service connection for a kidney disability, a remand is required before the Board may make a determination on the merits.
The Veteran has undergone two previous VA examinations to determine the nature and etiology of his current kidney disorder, in January 2007 and February 2013.  However, both examinations addressed the Veteran’s diagnosis of distal renal tubular acidosis, and did not address the possibility of renal artery stenosis, as the Veteran submitted this evidence in September 2013.  Accordingly, the Board finds that a VA examination is necessary to assist in determining the nature and etiology of the Veteran’s claimed kidney condition.  See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006) (holding that an examination is required when (1) there is evidence of a current disability, (2) evidence of an “in-service event, injury or disease,” or a disease manifested in accordance with presumptive service connection regulations occurred which would support incurrence or aggravation, (3) an indication that the current disability may be related to the in-service event, and (4) insufficient evidence to decide the case); Waters v. Shinseki, 601 F.3d 1274 (Fed. Cir. 2010); 38 U.S.C. § 5103A (d); 38 C.F.R. § 3.159 (c)(4).
The matter is REMANDED for the following action:
1. Obtain all outstanding VA treatment records and associate them with the claims file. 
2.  After completion of the above development, schedule the Veteran for an additional VA examination in the appropriate specialty to determine the nature and etiology of the Veteran’s claimed kidney disability.  
3. The electronic claims file, including a copy of this remand, must be made available for the examiner to review.  The examination report must include a notation that this record review took place.  The Veteran must be interviewed.  It should be noted that the Veteran is competent to attest to matters of which he has first-hand knowledge, including observable symptomatology.  The examiner must provide a clear explanation for the opinion, to include any comment on any credibility issues raised by the record from a medical perspective.  The examiner should specifically address the relevant evidence, including evidence raising the possibility of renal artery stenosis or non-cancerous tumors.  
Based upon a review of the entirety of the claims file, the history presented by the Veteran, and the examination results, the examiner is requested to provide an opinion as to the following questions:
(a.) Please identify the nature and etiology of the Veteran’s kidney disability or disabilities.
(b.) With respect to any identified kidney disability, is it at least as likely as not (i.e. a 50 percent probability or greater) that the disability began during, or is otherwise related to the Veteran’s active duty service? 
(c.) With respect to any identified kidney disability, is it at least as likely as not (i.e. a 50 percent probability or greater) that the disability was caused by or aggravated by any of the Veteran’s service connected disabilities, to include hypertension? 
Governing regulations provide that service connection is permissible on a secondary basis if a claimed disability is proximately due, the result of, or aggravated by a service-connected disability.  38 C.F.R. § 3.310.
If aggravation has occurred, the provider must identify a baseline for the Veteran’s kidney disability or disabilities.  
The term aggravation is defined as a chronic and permanent worsening of the underlying condition beyond its natural progression versus just a temporary or intermittent flare-up of symptoms.  If the examiner determines there has been aggravation, he or she should try and quantify the amount of additional disability the Veteran had, above and beyond that he had prior to the aggravation. 
The examiner must provide a complete rationale for all opinions expressed.  As part of the rationale, the examiner should identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge or literature, etc., relied upon in reaching the conclusion(s).  A discussion of the facts and medical principles involved would be of considerable assistance to the Board.
If the examiner cannot provide the requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation.  The examiner must indicate whether there was any further need for information or testing necessary to make a determination.  
The examiner must indicate whether an opinion could not be rendered due to limitations of knowledge in the medical community at large and not those of the particular examiner.

 
DAVID L. WIGHT
Veterans Law Judge
Board of Veterans’ Appeals
ATTORNEY FOR THE BOARD	S. Raj, Associate Counsel 

For A Complete Guide To VA Disability Claims and to find out more about your potential VA disability case and how to obtain favorable VA Rating Decision! Visit: VA-Claims.org

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