Citation Nr: 1412394 Decision Date: 03/25/14 Archive Date: 04/02/14 DOCKET NO. 10-06 367 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Los Angeles, California THE ISSUE Entitlement to an initial compensable rating for service-connected hypertension. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD Tresa M. Schlecht, Counsel INTRODUCTION The veteran had active service from August 1987 to August 2007. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2007 rating decision of the Los Angeles, California, Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for hypertension and assigned a noncompensable evaluation. In June 2008, before the September 2007 rating decision became final, the Veteran submitted additional evidence. The noncompensable initial rating was confirmed in a rating decision issued in October 2008. The issue on appeal is more accurately stated as listed on the title page of this decision. The Veteran later testified at a Travel Board hearing before the undersigned in July 2013. The hearing transcript is associated with the Veteran's electronic (Virtual VA) file. FINDINGS OF FACT 1. Service treatment records in July 2005 and August 2005, just prior to the initial assignment in service of a diagnosis of hypertension are incomplete, and apparently do not include the blood pressure readings on which the diagnosis was based. 2. The fact that the Veteran manifested two blood pressure readings which meet a criterion for a compensable evaluation in September 2005, after treatment for hypertension was instituted, places the evidence in equipoise so as to warrant a 10 percent evaluation. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran's favor, the schedular criteria for an initial 10 percent, but not greater, evaluation for hypertension have been met. 38 U.S.C.A. § 1155 West 2002); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7101 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to provide notification to the Veteran with respect to establishing entitlement to benefits, and a duty to assist with development of evidence. 38 U.S.C.A. §§ 5103, 5103A (West 2002 & Supp. 2013). As the Board's decision is favorable to the Veteran, no additional notice or development is required. Although some service treatment records dated in July 2005 and August 2005 appear to be missing, doubt as to the contents of those records has been resolved in the Veteran's favor. The evaluation of service connected disabilities is based on the average impairment of earning capacity they produce as determined by considering current symptomatology in light of appropriate rating criteria. 38 U.S.C.A. § 1155. Hypertension is evaluated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. 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. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. DC 7101. The U.S. Court of Appeals for Veterans Claims (Court) has recently held that the blood pressure readings to be considered in determining whether the criteria for a specific disability rating are met include only the blood pressure readings confirming the existence of hypertension. See Gill v. Shinseki, 26 Vet. App. 386, 388-389 (2013). The term hypertension means that the diastolic blood pressure is predominantly 90 mm Hg or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm Hg or greater with a diastolic blood pressure of less than 90. DC 7101. By regulation, the diagnosis of hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. DC 7101 Note (1); see Gill v. Shinseki, 26 Vet. App. 386, 388-392 (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 current severity of hypertension under the rating criteria). Facts and analysis The Veteran entered service in 1987. In 2001, while deployed to a war zone, he developed symptoms for which a diagnosis of anxiety disorder was assigned. The Veteran also developed migraine headaches. For several years, his treatment for anxiety or migraines included medications such as propranolol, which can be used to treat hypertension. Propranolol is defined as a beta-adrenergic blocking agent which reduces cardiac rate and output, reduces blood pressure, and is effective in the prophylaxis of migraines. Dorland's Illustrated Medical Dictionary 1551 (31st ed. 2007). Other medications prescribed during this period included Midrin, alprazolam (Xanax), and Valium, which are known to result in lower blood pressure in some individuals, but are not used generally to treat hypertension. The Veteran's use of propranolol for migraine prophylaxis was discontinued in July 2004. That month, diastolic blood pressures increased to 96 were noted. See July 7, 2004 USS Belleau Wood outpatient treatment note. Borderline hypertension was noted. In October 2004, the Veteran was instructed to keep a blood pressure log. Episodic elevation of the Veteran's blood pressure, also described in treatment notes as labile hypertension, was noted in November 2004. A November 2004 treatment states that Monopril (fosinopril) was prescribed in November 2004, but the Veteran's medication profile for the period from October 2004 to February 2006 does not reflect that fosinopril was obtained until August 2005. Fosinopril is an angiotensin-converting enzyme inhibitor used to treat hypertension. Dorland's Illustrated Medical Dictionary 746 (31st ed. 2007). In May 2005 and June 2005, the Veteran complained of chest pain. It was determined that the chest pain was likely "heartburn" due to gastroesophageal reflux disease (GERD) In mid-July 2005, the Veteran sought emergency treatment for chest pain on two separate occasions. The records of the Veteran's emergency treatment for atypical chest pain do not show that the Veteran had hypertension or that medication to control hypertension was prescribed. However, it is clear that the records of the Veteran's July 2005 emergency treatment are incomplete. In mid-August 2005, fosinopril was prescribed. The treatment note does not set forth the blood pressures on which the diagnosis of hypertension was based. The following week, the provider noted that the Veteran was unable to tolerate fosinopril. The provider directed the Veteran to attempt to control his hypertension through a reduced-salt diet and exercise. At the next treatment visit, in September 2005, the Veteran's blood pressure was 154/103. The Veteran was started on lisinopril (a lysine derivative of enalapril (Vasotec), an angiotensin-converting enzyme inhibitor used to treat hypertension). Dorland's Illustrated Medical Dictionary 1080 (31st ed. 2007). In late September 2005, the Veteran's blood pressure was 189/93, even though he was on lisinopril, nortriptyline, ranitidine, omeprazole, alprazolam (Xanax), and Relpax (eletriptan). A diuretic was added to the Veteran's medication regimen. The provider who evaluated the Veteran at the time of the October 2005 treatment record associated with the file stated that the Veteran should be evaluated by a specialist to determine if atenolol would benefit him. No specialty evaluation is of record. However, the next treatment note available, in November 2005, shows that the Veteran was taking atenolol. The provider recommended specialty cardiovascular evaluation, and recommended that the Veteran not be allowed to perform any physical training (PT) until the evaluation was conducted. However, no cardiology consultation report is associated with the claims file, and there are no other treatment records until January 2006. It is clear that a diagnosis of essential hypertension was assigned in either July 2005 or August 2005. The blood pressure readings which are the basis of that diagnosis are not of record, and are not discussed in the initial records following the diagnosis. However, when the Veteran was allowed to go off medications for two weeks, his blood pressure was 154/103. When medication to control hypertension was resumed, the Veteran required two medications to control his blood pressure. Although the medications used over time have changed, he continues to require two medications for the control of his blood pressure. The records do not include the blood pressures on which the Veteran's diagnosis of hypertension was finally made. The records do not clearly reflect when the diagnosis of essential hypertension was assigned, or when the diagnosis was first determined to require medication for control. Therefore, the blood pressure readings which are somewhat contemporaneous to the diagnosis do not meet the regulatory requirements for the blood pressures which may be used to determine whether the Veteran's diastolic blood pressure was predominantly over 100. Moreover, the Veteran's blood pressures prior to the diagnosis may not be substituted as representative, since the Veteran was on an anti-hypertensive medication, although not for specific treatment of hypertension, for several years, and the Veteran remained on multiple medications which could affect blood pressure. Since the record documents a diastolic blood pressure over 100 in September 2005, on the one occasion when the use of medication was temporarily discontinued and the provider briefly attempted to control the Veteran's blood pressure using diet and exercise, that blood pressure is the most relevant and probative evidence of record. Since that blood pressure is favorable to the claim, the relevant evidence is at least in equipoise to warrant a 10 percent initial evaluation. Resolving reasonable doubt in the Veteran's favor, an initial compensable, 10 percent evaluation, but no higher evaluation may be granted. The Board has considered whether an evaluation in excess of 10 percent may be granted. A 20 percent evaluation requires a diastolic blood pressure predominantly in excess of 110, or a systolic blood pressure in excess of 200. The record does not reveal any diastolic blood pressure of 110 or greater, or a systolic blood pressure in excess of 200. As there is no evidence that the Veteran met or approximated any criteria for a 20 percent evaluation, the evidence is unfavorable to an evaluation in excess of 10 percent for hypertension. The above determination is also based upon consideration of applicable rating provisions. The Board also finds that the Veteran's disability level and symptomatology is adequately described by the rating criteria. Indeed, the Veteran's symptomatology, elevated diastolic and systolic blood pressure readings and the use of continuous medication for control, are specifically contemplated by the rating criteria set forth in DC 7101. Without sufficient evidence reflecting that the Veteran's disability picture is "exceptional or unusual," such that the "the available scheduler evaluation for [his service-connected hypertension] are inadequate," referral for a determination of whether the Veteran's disability picture requires the assignment of an extra-schedular rating is not warranted. 38 C.F.R. § 3.321(b)(1); Thun v. Peake, 22 Vet. App. 111, 115-16 (2008). Similarly, as there is no indication that the Veteran cannot work as a result of this condition, the Board also does not find that the record raises an implied claim for a total disability rating based on individual unemployability (TDIU) under Rice v. Shinseki, 22 Vet. App. 447 (2009). ORDER An initial 10 percent, but not greater, evaluation for service-connected hypertension is granted, subject to the law and regulations governing the effective date of an award of compensation. ____________________________________________ Michael J. Skaltsounis Acting Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs