Citation Nr: 1726899 Decision Date: 07/12/17 Archive Date: 07/20/17 DOCKET NO. 14-27 057 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Entitlement to an initial compensable evaluation for hypertension. ATTORNEY FOR THE BOARD M. Peters, Counsel INTRODUCTION The Veteran had active duty service from August 1972 to May 1976. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a May 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO), which awarded service connection for hypertension and assigned a noncompensable evaluation for that disability, effective June 27, 2011. The Veteran timely appealed that decision. The case was initially before the Board in July 2016, at which time the Board denied service connection for bilateral vision problems and an initial compensable evaluation for hypertension. The Veteran timely appealed that decision to the United States Court of Appeals for Veterans Claims (Court). During the pendency of the appeal, the Veteran and the Secretary of Veterans Affairs (the Parties) filed a Joint Motion for Remand, moving the Court to vacate the July 2015 Board decision as to the hypertension matter only. TheVeteran indicated that he did not wish to further contest the Board's decision with respect to the denial of service connection for bilateral vision problems. In a March 2017 Order, the Court partially vacated the Board's July 2016 decision as to the hypertension issue and remanded that claim to the Board for additional clarification consistent with the February 2017 Joint Motion for Remand. The hypertension issue has been returned to the Board at this time for further appellate review in compliance with the March 2017 Court order and February 2016 Joint Motion for Remand. As a final initial matter, in the February 2016 Joint Motion for Remand, the Parties indicated that the Board erred in failing to addressing the issue of service connection for gout as secondary to the Veteran's hypertension raised in the June 27, 2011 statement. The Veteran - since the Board's issuance of its July 2016 Board decision and subsequent to the issuance of the March 2017 Court order - filed a Fully Developed Claim (FDC), VA Form 21-526EZ, with respect to the claim of service connection for gout as secondary to hypertension. As the Veteran has filed an FDC with respect to that issue and that issue is now before the Agency of Original Jurisdiction (AOJ) for appropriate action, the Board finds that no further action is required at this time as to that issue. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran's systolic and diastolic pressures are not predominantly 160 mm Hg or more, or 100 mm Hg or more, respectively. 2. The Veteran requires continuous medication for control of his hypertension; he does not have a history of diastolic pressure that is predominantly 100 mm Hg or more. CONCLUSION OF LAW The criteria for establishing an initial compensable evaluation for hypertension have not been met. 38 U.S.C.A. §§ 1155, 5107 (West 2014); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7101 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSION VA has a duty to notify and assist claimants in substantiating claims for VA benefits. See e.g., 38 U.S.C.A. §§ 5103, 5103A (West 2014) and 38 C.F.R. § 3.159 (2016). This duty includes assisting the claimant in the procurement of relevant treatment records and providing an examination when necessary. 38 U.S.C.A. § 5103A; 38 C.F.R. § 3.159. VA provided adequate notice in a letter sent to the Veteran in July 2011. The Board also finds that all necessary development has been accomplished, and therefore appellate review may proceed without prejudice to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Service, VA and private treatment records are associated with the claims file. There is otherwise no indication of relevant, outstanding records which would support the Veteran's claim. 38 U.S.C.A. § 5103A(c); 38 C.F.R. § 3.159(c)(1)-(3). VA afforded the Veteran examinations in connection to the issues herein decided in August 2011. The Board finds that the VA examinations obtained in this case are adequate, as they were predicated on physical evaluations of the Veteran, as well as the Veteran's reported history and symptomatology. The examination reports reflect that the VA examiners reviewed the Veteran's past medical history, his current complaints, conducted/reviewed necessary testing and examination findings, and rendered appropriate diagnoses. The Board finds that the medical examination reports, along with his VA and private treatment records, are adequate for purposes of rendering a decision in the instant appeal. 38 C.F.R. §4.2 (2016). As such, the Board finds that VA's duty to assist with respect to obtaining a VA examination with respect to the issues decided herein has been met. 38 C.F.R. § 3.159(c)(4). There is no indication of additional existing evidence that is necessary for a fair adjudication of the claim that is the subject of this appeal. Hence, no further notice or assistance to the Veteran is required to fulfill VA's duty to assist. Accordingly, with respect to the Veteran's claim herein, VA has met all statutory and regulatory notice and duty to assist provisions. See generally, 38 U.S.C.A. §§ 5103, 5103A (West 2014); 38 C.F.R. § 3.159, 3.326 (2016); see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). The Veteran filed his claim of service connection for hypertension on June 27, 2011. His hypertension is currently assigned a noncompensable evaluation since that date; that evaluation has been assigned under Diagnostic Code 7101. Under Diagnostic Code 7101, a rating of 10 percent requires diastolic blood pressure predominantly 100 or more, or systolic blood pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control. A rating of 20 percent requires diastolic blood pressure predominantly 110 or more, or systolic blood pressure predominantly 200 or more. A rating of 40 percent requires diastolic pressure predominantly 120 or more. A rating of 60 percent requires diastolic blood pressure predominantly 130 or more. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. See 38 C.F.R. § 4.104, Diagnostic Code 7101 (2016). The Veteran's service treatment records document that on his enlistment examination in July 1972, his blood pressure was 120/80; he had a 120/72 reading in December 1973. In September 1975, the Veteran had a reaction to penicillin; he reported to the emergency room where he was shown to have a blood pressure of 220/90, and 10 minutes later he had a reading of 180/80. Approximately 3 hours later, he had a reading of 140/90. Three days later, the Veteran had a blood pressure reading of 148/88. In November 1975, the Veteran had blood pressure readings of 182/92 while sitting and 178/88 while standing. The next day he had 186/98 while sitting and 176/88 while standing; later, he was noted as being nervous on examination, and had blood pressure readings of 160/72 and 156/80. The Veteran was provisionally diagnosed with questionable elevated systolic hypertension at that time, probably related to anxiety; a chest x-ray and electrocardiogram (EKG) were both normal. A week later, the Veteran was noted to have anxiety while taking his blood pressure; he had a reading of 200/80 while standing and 180/88 while sitting. A couple of days later, in December 1975, the Veteran had a blood pressure reading of 170/78 and was again noted as being nervous; it was still felt that his elevated blood pressure was related to his nervousness. Approximately a week later, the Veteran was again noted to have a blood pressure reading of 160/70 with high anxiety; he was diagnosed with a hyperkinetic state probably related to marked anxiety. In January 1976, the Veteran was seen for complaints of seeing spots in his visual field. His blood pressure was 156/68 at that time and he had highly anxious. It was noted that no pathology was found and the doctors doubted he had an elevated blood pressure when he was away from the medics. On the Veteran's separation examination in March 1976, the Veteran had a blood pressure reading of 136/86. In May 1976, within one year of his discharge, the Veteran filed a claim for service connection for his hypertension. However, that claim was administratively closed in June 1976 after the Veteran failed to report for a VA examination. The Veteran filed his claim for service connection for hypertension on June 27, 2011, which has been service-connected since that date. Since filing his claim in June 2011, the Veteran stated that he had an elevated blood pressure reading of 200/100 during military service when he had an allergic reaction to an antibiotic during service; he stated that he had problems with his blood pressure ever since that time. The Veteran's private treatment records from Dr. C.L.C., an ophthalmologist, do not demonstrate any blood pressure readings for the Veteran. Additionally, the Veteran has submitted private treatment records from the Prevost Memorial Hospital which demonstrate blood pressure readings of 200/100 on September 5, 2002, and 112/64 on May 5, 2004. The Veteran additionally submitted private treatment records from the Cardiovascular Institute, which documents that on April 20, 2011, the Veteran had blood pressure readings of 140/78 and 138/78. On April 25, 2011, the Veteran was shown to have blood pressure readings of 140/92 and 130/80; on that date, the Veteran underwent a stress test, which noted a resting blood pressure reading of 140/92. During stage 1 of the stress test, he had a 150/84 reading, followed by 150/84, 140/84, 128/80, 122/80 and 136/88 respectively for 1, 2, 3, 4, and 5 minutes post-stress. The myocardial perfusion report that accompanied the stress test report noted that the Veteran had a resting and peak blood pressure readings of 140/92 and 150/84, respectively. The report noted that the stress test was a non-diagnostic Lexiscan test, and that there was no pharmacologically-induced chest pain; his blood pressure readings were normotensive, without any pharmacologic arrhythmias present. The report further concluded that the myocardial perfusion scan was normal without any perfusion defects noted. Further blood pressure readings from the Cardiovascular Institute records reveal the following readings: 144/90, 120/76, 122/71, and 117/73 on June 22, 2011, December 28, 2011, June 7, 2012, and December 7, 2012, respectively. The Veteran also submitted private treatment records from the Thibodaux Regional Medical Center, which reveal that on September 15, 2003, the Veteran sought treatment for hypotension at the emergency room; on admission to the emergency department, his blood pressure was 60/30, and later he had a blood pressure of 80/50. He was admitted to the hospital on September 15, 2003 and discharged on September 17, 2003. The Veteran's blood pressure readings throughout that hospital admission from September 15, 2003 through September 17, 2003 are as follows: Date-Time Blood Pressure Reading 09/15/03-18:02 64/33 18:05 93/49 18:20 65/40 18:35 81/47 19:15 77/42 19:37 85/42 19:59 90/43 20:51 81/41 21:19 89/65 21:47 89/59 22:04 88/37 22:15 103/49 22:30 101/54 23:00 93/54 23:46 98/56 09/16/03-00:16 106/55 00:51 97/48 02:04 105/56 07:20 109/52 08:00 100/60 09:00 101/63 10:00 102/64 11:00 102/65 12:19 110/69 13:44 115/67 15:20 120/68 16:09 122/61 17:24 130/73 18:26 123/73 18:35 100/54 Untimed 128/68 19:32 125/71 20:34 120/68 09/17/03-01:39 115/62 07:22 114/68 08:23 115/67 The Veteran was also treated by the Thibodaux Regional Medical Center on October 9, 2003, during which the following blood pressure readings were obtained: 190/99, 190/99, and 156/108. The Veteran was also admitted to that facility in May 2011, at which time the following readings were obtained: Date-Time Blood Pressure Reading 05/06/11-11:15 147/82 15:18 136/63 19:32 140/65 05/07/11-00:11 141/63 05:11 136/71 08:00 151/81 12:00 141/83 15:35 132/73 Discharge 150/90 The Veteran also submitted several treatment records from his primary care physician, Dr. J.P., from the Family Doctor Clinic. The Board notes the following blood pressure readings are taken from those records: Date-Time Blood Pressure Reading 04/24/00-10:20 190/92 05/08/00-08:00 184/110 05/15/00-09:30 140/92 05/22/00-09:00 180/82 05/26/00-08:00 200/110 06/02/00-16:21 146/90 10/23/00-08:20 152/76 05/21/01-08:10 172/80 09/06/02 190/108 12/23/02-08:40 170/72 04/28/03-13:50 140/88 05/23/03-08:30 134/82 09/19/03 140/82 10/14/03-16:30 140/98 05/06/04-08:30 140/80 05/08/04-09:10 104/60 05/17/04-09:10 130/82 11/03/04-08:00 150/90 04/27/05-08:00 160/88 07/19/05-10:40 134/80 10/20/05-08:00 130/86 12/30/05-08:30 144/80 04/18/06-08:00 130/80 06/26/06-10:20 132/80 10/19/06-08:15 179/87 04/23/07-08:05 139/78 10/17/07-08:20 163/82 12/10/07-10:43 158/90 01/09/08-09:20 172/81 04/15/08-08:05 157/75 10/09/08-13:55 140/78 04/06/09-08:04 152/78 09/09/09-10:20 142/87 02/18/10 119/76 05/05/10-09:30 138/76 07/19/10-10:05 133/80 10/04/10-08:00 121/77 10/19/10-10:15 137/79 11/29/10-11:40 135/85 04/11/11-08:40 134/85 05/06/11-09:02 153/80 09:45 96/53 10:00 136/70 10:10 151/89 10/12/11-08:35 123/74 10/25/11-10:10 162/89 05/23/12-08:40 129/75 Finally, it appears that the Veteran underwent a stress test supervised by Dr. J.P. in May 2004. The Veteran's resting blood pressure was 161/66 and his hyperventilated blood pressure was 179/72. At the beginning of the stress test, the Veteran had a blood pressure of 200/73; 248/70 at stage one; 289/75 between stage one and two; 193/60 at stage two; 287/77 between stage two and three; 273/43 at stage three; and, his post-test readings were 169/64, 176/70 and 213/70. Dr. J.P.'s records also contained a December 2010 treatment record from Dr. D.E., which noted a blood pressure reading of 137/79. In August 2011, the Veteran underwent a VA examination of his hypertension. During that examination, the Veteran reported that he began treatment with blood pressure medications approximately 10 years ago. He reported having difficulty with control of his hypertension until recently. The examiner noted that the Veteran was taking Benicar and Metoprolol for his hypertension and that his hypertension has improved with medications. The Veteran denied any side effects due to his medications at that time. On examination, the Veteran had blood pressure readings of 136/76, 132/73, and 138/79. His heart size was normal and his ejection fraction was greater than 50 percent; an echocardiogram noted hyperdynamic left ventricle function with an ejection fraction of 65 to 70 percent. His electrolytes were normal during laboratory testing. The Veteran was diagnosed with essential hypertension, without any evidence of hypertensive heart disease at that time. The examiner noted that there were no effects on the Veteran's occupational functioning or daily activities. He was shown to be employed at that time as a full-time postal officer, a job that he had been performing for more than 20 years. Finally, following remand by the Court, the Veteran submitted treatment records for two emergency room visits at the Thibodaux Regional Medical Center in March 2016 and November 2016. On March 6, 2016, the Veteran sought emergency treatment for complaints of his "blood pressure shooting up" that morning. He reported that he checked his blood pressure that morning and it was over 200 and he could feel his pulse pounding in his chest. The following blood pressure readings were obtained during that emergency visit: 178/79 at 07:05; 198/87 at 07:49; and 143/74 at 09:03. His EKG at that time was normal. The Veteran was discharged from the hospital with a diagnosis of chronic hypertension and was told to follow up with his primary care physician as necessary for any worsening in his condition. In November 9, 2016, the Veteran again sought emergency treatment for complaints of his "blood pressure running high" and feeling weak for approximately one hour. His blood pressure on examination was 235/103; a repeat reading approximately 45 minutes later was 179/82. The Veteran was discharged with a diagnosis of chronic hypertension and was told to follow up with his primary care physician for continued care of his hypertension and to return to the emergency room for any new or worsening symptoms he may experience. Based on the foregoing evidence, the Board finds that the Veteran's systolic pressure throughout the appeal period is not shown to be predominantly 160 or greater, nor is he shown to have a diastolic pressure that is predominantly 100 or greater throughout the appeal period. The Board notes that the definition of predominant is "most common or conspicuous." See Webster's New College Dictionary, 3rd Ed., 891 (2008). Regarding the Veteran's systolic pressure-since being service-connected on June 27, 2011-the Board reflects that the record demonstrates four systolic pressure readings greater than 160: 162 on October 25, 2011; 178 and 198 on March 6, 2016; and, 235 on November 9, 2016. The record therefore does not reflect that the predominant, or most common, systolic pressure throughout the appeal period is 160 or greater; rather the most common systolic pressure readings are shown to be less than 160 throughout the appeal period. Likewise, since the Veteran has been service connected, his diastolic pressure reading is shown to be 100 or greater just once, on November 9, 2016 when it was 103. The Board therefore cannot conclude that the most common diastolic pressure reading throughout the appeal period is 100 or more. Finally, the Board acknowledges that the Veteran has been taking medication for control of his hypertension throughout the appeal period. However, a compensable evaluation necessitates that the medication for control be shown in conjunction with a history of diastolic pressure which is predominantly 100 or greater. In this case, the Veteran reported that he had a blood pressure reading in service with a diastolic pressure of 100. As noted in the above service treatment records, the Veteran's reported history appears to be mistaken with regards to the elevation of his diastolic pressure during military service. Those records demonstrate that while the Veteran had elevated systolic pressure during service, his diastolic pressure readings were never 100 or greater during military service. Thus, insofar as the Veteran has asserted that he had a history of a diastolic pressure of 100 or greater during military service, the Board finds those statements to be less probative in light of the actual noted readings during military service showing that such was not the case. Furthermore, the Board reflects that in the post-service records associated with the claims file since 2000, the Veteran has had a diastolic pressure of 100 or greater just six times: 110 on May 8, 2000 and May 26, 2000; 108 on September 6, 2002 and on October 9, 2003; 103 on November 9, 2016; and, 100 on September 5, 2002. The Board reflects that those six readings are six isolated points in the medical records at which time the Veteran's diastolic blood pressure was 100 or greater; the Board views those six isolated points in conjunction with a multitude of other diastolic pressure readings which demonstrate pressure less than 100. Consequently, the Board cannot find that the record is reflective of a history of diastolic pressure that is most commonly, or predominantly, 100 or more in this case. With respect to the February 2017 Joint Motion for Remand, the parties indicated that the Board specifically address the September 6, 2002 diastolic reading of 108, particularly in light of noted May 2000 readings of diastolic pressure of 110, and what-if any-effect that had on the Board's analysis. The Board has addressed those noted specific readings-in addition to three other readings not noted by the parties or the Court-as discussed above. In response to the Joint Motion's query, however, the Board reiterates that those six individual, isolative readings that demonstrate a diastolic pressure of 100 or greater are not predominant in the record, i.e., they are not the most common values noted for the diastolic pressure in the record; in fact, there are several more diastolic readings demonstrable of diastolic pressure less than 100 in the record weighing against the mere six readings that demonstrate diastolic pressure 100 or greater. The Board further reflects that the Veteran has blood pressure all of the time and these isolative readings in aggregate are not demonstrable of a predominance of diastolic pressure values which are 100 or greater in relative perspective to the entire record when the Veteran presumably has diastolic pressure less than 100, as demonstrated by his routine and repeated notations of such throughout the record since May 2000. When viewed in this light, the six readings are not the most common state of the Veteran's diastolic pressure throughout the appeal period. In short, the evidence of record does not demonstrate that a few diastolic pressure readings of 100 or greater are most common, or the predominance of the Veteran's condition. Rather, it appears that the record more closely approximates a history of diastolic pressure less than 100. Furthermore, as the Veteran's service treatment records demonstrate, it appears that the severity of the Veteran's hypertensive disability is elevated systolic rather than diastolic pressure readings. The post-service treatment records appear to confirm that this is the case, and that such elevated systolic readings are the reason that his hypertension is treated by medication. VA law and regulations, particularly the Rating Schedule and Diagnostic Code 7101, are clear that a compensable evaluation is only available for use of medication with a history of elevated diastolic pressure, not systolic pressure. Consequently, although the Veteran is on medication to control his hypertension in this case, the Board is not able to assign a compensable evaluation because the evidence of record demonstrates that, although on medication, Veteran did not have a history of diastolic pressure which is predominantly 100 or more. Accordingly, the Board must deny a compensable evaluation for the Veteran's hypertension throughout the appeal period. See 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101. The Board has considered whether referral for an extraschedular rating under 38 C.F.R. § 3.321(b)(1) is warranted in this case. The Board finds that the Veteran's symptoms of hypertension are contemplated by the schedular rating criteria. Neither the facts of the case nor the Veteran's allegations raise the issue of extraschedular consideration. Thus, no analysis is required. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016) (holding that an extraschedular analysis is not warranted where it is not "specifically sought by the claimant nor reasonably raised by the facts found by the Board") (citing Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. App. 1004 (Fed. Cir. 2007). See also Doucette v. Shulkin, 28 Vet. App. 366, 369 (2017) (explaining that the Board had no obligation to analyze whether referral is warranted for extraschedular consideration if an extraschedular rating is not specifically sought by the claimant or reasonably raised by the facts found by the Board). Similarly, the Board recognizes that a claim for a total rating based on individual unemployability (TDIU) may be raised as a separate claim, or in the context of an initial rating or a claim for an increase. See Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case, the record does not show that the Veteran's hypertension has rendered him unemployable. The record shows that the Veteran has reported at his August 2010 VA examination that he was employed full time as a postal officer and there have been no recent allegations that he is unemployed. The VA examiner opined that the Veteran's hypertension had no effects on his employment. Consequently, neither the claimant nor the record has raised the question of unemployability due to service-connected disability. Therefore no further discussion of a TDIU is necessary. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C.A. § 5107(b) (West 2014); 38 C.F.R. § 3.102 (2016).). ORDER Entitlement to an initial compensable evaluation for hypertension is denied. ____________________________________________ JAMES G. REINHART Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs