Citation Nr: 1753350 Decision Date: 11/21/17 Archive Date: 12/01/17 DOCKET NO. 13-33 222 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Oakland, California THE ISSUES 1. Entitlement to a compensable rating for hypertension. 2. Entitlement to a compensable rating for migraine headaches. 3. Entitlement to service connection for bilateral ocular hypertension. REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD Steven D. Najarian, Associate Counsel INTRODUCTION The Veteran served on active duty from September 1985 to April 2001 and from June 2006 to October 2011. This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Salt Lake City, Utah. The Oakland, California RO subsequently acquired jurisdiction. The paperless record of Legacy Content Manager (formerly Virtual VA) and the Veterans Benefits Management System (VBMS) has been reviewed. The issues of entitlement to a compensable rating for migraine headaches and entitlement to service connection for bilateral ocular hypertension are addressed in the REMAND portion of the decision below and are REMANDED to the agency of original jurisdiction (AOJ). FINDING OF FACT The Veteran's hypertension has not been manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more and requiring continuous medication. CONCLUSION OF LAW The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA), in part, describes VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA applies to the instant claim. VA has satisfied the notification and duty-to-assist provisions of the VCAA. See Mayfield v. Nicholson, 19 Vet. App. 103 (2005), rev'd on other grounds, Mayfield v. Nicholson, 444 F.3d 1328 (Fed. Cir. 2006). In May 2011, the Veteran filed a pre-discharge compensation claim for, among other disabilities, hypertension, ocular hypertension, and migraine headaches. A pre-discharge notice was provided to the Veteran, although no record of the letter was scanned into Virtual VA or VBMS. By correspondence dated May 2011, VA indicated that notice had been provided as to the evidence and information needed to support the Veteran's claim for benefits. The Veteran checked a form box indicating that he had no further information or evidence to give and that he wished for VA to decide his claim as soon as possible. The VCAA also requires VA to make reasonable efforts to help a claimant obtain evidence necessary to substantiate the claim. See 38 U.S.C. § 5103A (2012); 38 C.F.R. § 3.159(c), (d) (2017). This duty to assist contemplates that VA will help a claimant obtain records relevant to the claim and that VA will provide a medical examination or obtain an opinion when necessary to decide the claim. See 38 C.F.R. § 3.159(c)(4) (2017). The evidence of record includes service treatment records, VA treatment records, private treatment records, statements of the Veteran, and home blood pressure readings made by the Veteran. The Veteran has identified no outstanding evidence pertaining to his hypertension disability that could be obtained to substantiate the claim, and the Board is unaware of any such outstanding evidence. The Veteran underwent a VA general medical examination in July 2011. The findings of the examination report are adequate for adjudicatory purposes. See 38 C.F.R. § 3.159(c)(4) (2017); Barr v. Nicholson, 21 Vet. App. 303 (2007). The Veteran does not report that his hypertension has worsened since the July 2011 VA examination. The mere passage of time does not necessitate a new VA examination. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007). Entitlement to a compensable rating for hypertension Disability evaluations are determined by evaluating the extent to which a claimant's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). See 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.10 (2017). If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. See 38 C.F.R. § 4.7 (2017). A claimant's entire history is to be considered when making disability evaluations. See 38 C.F.R. § 4.1 (2017); Schafrath v. Derwinski, 1 Vet. App. 589 (1995). The Veteran's entire history is reviewed when assigning a disability evaluation per 38 C.F.R. § 4.1. However, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007). The Board must give claimant the benefit of the doubt as to any issue material to the determination of a matter when there is an approximate balance of positive and negative evidence. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. § 3.102 (2017). For a claim to be denied on the merits, the preponderance of the evidence must be against the claim. See Alemany v. Brown, 9 Vet. App. 518, 519 (1996). A rating decision of April 2012 granted service connection for hypertension and assigned a noncompensable rating. The Veteran appealed as to the assigned rating. See notice of disagreement of March 2013; VA Form 9 of October 2013. The Veteran's hypertension is rated as noncompensable under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. It is the most appropriate rating code in this case because it pertains specifically to the Veteran's diagnosed disability of hypertension. DC 7101 provides for a 10 percent rating for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent disability rating is warranted for diastolic pressure predominantly 120 or more, while a 60 percent rating is warranted for diastolic pressure predominantly 130 or more. The Veteran's separation examination report of July 2011 noted blood pressure of 131/88. The Veteran underwent a VA general medical examination in July 2011. It was noted that Lisinopril and hydrochlorothiazide had kept the Veteran's blood pressure down and that he had no complications of hypertension. It was further noted that Verapamil taken for cluster headaches acted to lower blood pressure. On examination, the Veteran's blood pressure readings were 125/84 when sitting, 122/80 when standing, and 134/86 when lying down. The Veteran argues that, without the Verapamil, Lisinopril, and hydrochlorothiazide medication that he takes to control his blood pressure, his blood pressure would surpass the parameters noted in his medical records. See notice of disagreement of March 2013. The Board finds that a compensable rating for the Veteran's hypertension is not warranted. Since becoming service-connected for hypertension, the Veteran has not had diastolic pressure predominantly 100 or more, and the systolic pressure has not been predominantly 160 or more. The objective blood pressure readings throughout the appeal period do not support a compensable rating. This objective evidence is highly persuasive to the Board as to the severity of the Veteran's service-connected hypertension and the appropriate rating for the disability. The Veteran contends that, without continuous medication, his blood pressure readings would likely be higher and potentially entitle him to a compensable rating. When assigning a disability rating, the Board is required to discount the ameliorative effects of medication unless such effects are explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). If the applicable DC specifically contemplates the effects of medication, Jones is inapplicable. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). Here the Rating Schedule contemplates the effects of medication as a factor to be considered when rating hypertension under DC 7101. Therefore any ameliorative effect of the Veteran's blood pressure medication is not to be discounted. Having considered whether a staged rating is warranted, the Board finds that the Veteran's hypertension has remained essentially the same during the period under appellate review and at no time meets the criteria for a higher evaluation. Therefore a uniform rating is warranted. While the Veteran is on continuous medication to control his hypertension, a higher, 10 percent rating requires that the Veteran be on continuous medication and have a history of diastolic pressure predominantly 100 or more. A preponderance of the evidence is against finding diastolic blood pressure readings of predominantly 100 or higher. Under the circumstances, the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107(b) (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). A total disability rating based on individual unemployability due to service-connected disabilities (TDIU), when either expressly raised by a claimant or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of a claim for an increased rating. See Rice v. Shinseki, 22 Vet. App. 447 (2009). A June 2011 VA examination report for mental disorders noted that the Veteran was currently employed full-time as a surgical nurse. The Veteran has not asserted, and the evidence does not suggest, that his service-connected disabilities render him unable to obtain or maintain substantially gainful employment. Accordingly the Board concludes that the issue of TDIU has not been raised in this case. ORDER Entitlement to a compensable rating for hypertension is denied. REMAND With regard to the Veteran's service-connected migraine headaches, a medical record of July 2007 diagnosed migraine headaches and cluster headaches. A medical record of September 2010 noted that the Veteran takes medication for migraine headaches that occur three to four times a year with visual symptoms and severe, pounding pain lasting approximately four hours. Imitrex was taken for these headaches. Also noted was a second type of headache, which the doctor characterized not as cluster headaches but "another primary headache syndrome." The Veteran complained of headaches that were worsening in frequency and severity. A VA general medical examination in July 2011 noted the Veteran's history of cluster headaches for which he took Verapamil and Midrin. There was no report of incapacitating episodes. In March 2013, the Veteran reported that his headaches continue to cause great pain approximately ten times per day. He stated that headache medication has helped to decrease the frequency of the episodes. See notice of disagreement of March 2013. A private treatment record of January 2014 made an assessment of fairly infrequent migraine headaches, as well as essentially daily attacks of short-lasting, unilateral headache pain. The Veteran estimated having had six migraines in the past year, during which he experienced visual symptoms, loss of vision, and severe, diffuse headache pain that lasted for several hours if untreated. The Veteran found Maxalt to be very helpful as abortive treatment for these headaches. See January 2014 record of Dr. D. G. The Veteran's headache disability is currently rated under 38 C.F.R. § 4.124(a), DC 8100 (2017), which provides that migraine headaches with very frequent, completely prostrating, and prolonged attacks productive of severe economic inadaptability warrant a 50 percent evaluation. Migraine headaches disorders with characteristic prostrating attacks occurring on an average once a month warrant a 30 percent disability evaluation. A 10 percent evaluation requires characteristic prostrating attacks averaging one in two months over the last several months. A noncompensable evaluation is assigned for migraine headaches with less frequent attacks. See 38 C.F.R. § 4.124a, DC 8100 (2017). The rating criteria do not define "prostrating," nor has the Court of Appeals for Veterans Claims defined the term. A dictionary definition of prostration is "complete physical or mental exhaustion." Merriam Webster's Collegiate Dictionary (11th Ed. 2007). A similar definition is found in Dorland's Illustrated Medical Dictionary (31st Ed. 2007), which defines prostration as "extreme exhaustion or powerlessness." In the context of assigning disability ratings, the Board may not consider the ameliorative effects of medication where such effects are not explicitly contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56 (2012). The July 2011 VA examiner noted that the Veteran's headaches were not incapacitating on current medication. Because the code under which the Veteran's disability is rated, Diagnostic Code 8100, does not address any effects of medication, the ameliorative effects of medication may not be taken into consideration in assigning a rating. Thus the Veteran must be afforded an examination that disregards the ameliorative effects of medication in assessing the severity of his service-connected headache disability. Turning to the Veteran's claim for service connection for bilateral ocular hypertension, the Veteran underwent a VA eye examination in June 2011. He complained of blurred distance and near vision. The examiner diagnosed ocular hypertension and bilateral refractive error. No nexus opinion was provided. The Veteran's service treatment records document eye symptoms. There are medical assessments of traumatic iritis of both eyes (March 1995), mixed astigmatism, OD, and simple myopic astigmatism (October 1995), cornea abrasion of the right eye (November 1998), astigmatism and refractive error - hypermetropia (October 2008 and June 2011), and ocular hypertension (July 2009 and March 2011). A record of March 2011 lists regular astigmatism, recession of chamber angle, pre-glaucoma ocular hypertension, open angle pre-glaucoma with borderline findings, and astigmatism as chronic problems. For the separation examination of July 2011, the Veteran noted having, or having had, "interocular pressure ? vision, multiple eye trauma bilateral, and traumatic iritis/head trauma." Upon examination, the Veteran was found to have uncorrected distant vision of 20/25 of the right eye and 20/30 of the left eye, and uncorrected near vision of 20/40 of the right eye and 20/40 of the left eye. The examiner made no notation of eye or vision symptoms in the remarks section of the report. Absent a medical opinion, the record is insufficient for the Board to decide the Veteran's claim. The Board will remand for a medical opinion as to the likelihood that the Veteran has a current eye disability that is related to eye injuries incurred during service. See McLendon v. Nicholson, 20 Vet. App. 79 (2006). The Veteran argues that bilateral ocular hypertension is not merely a laboratory finding, but rather a disability that requires him to be placed on medication to reduce pressure in the eye in order to prevent damage to the retina. See notice of disagreement of March 2013. The Board will also request a medical opinion as to whether the Veteran's ocular hypertension is properly understood as a disability from a medical perspective. See Rabideau v. Derwinski, 2 Vet. App. 141, 143 (1992); Gilpin v. Brown, 155 F.3d 1353 (Fed. Cir. 1998) (service connection may not be granted unless a current disability exists). Accordingly, the case is REMANDED for the following action: 1. Undertake appropriate development to obtain any outstanding treatment records relating to the remanded claims. All records/responses received must be associated with the electronic claims file. 2. Schedule the Veteran for an appropriate VA medical examination to evaluate the manifestations and severity of his service-connected headaches. To the extent possible, the examiner must disregard the ameliorating effects of medication. The Veteran's virtual claims file must be made available for the doctor's review. All tests and studies deemed necessary by the doctor should be performed. All pertinent signs and symptoms necessary for rating the disability should be reported in detail. 3. Refer the Veteran's claims file to a qualified VA doctor for a medical opinion relating to the claimed eye disability. The Veteran's virtual claims file must be made available for the doctor's review. An examination of the Veteran must be scheduled if deemed necessary by the reviewing doctor. A medical opinion is requested as to whether it is at least as likely as not (that is, a probability of at least 50 percent) that any eye disability of the Veteran since the filing of his claim in May 2011, to include ocular hypertension and bilateral refractive error (even if now resolved), is caused or aggravated by an injury or disease incurred during service. The reviewing doctor should also provide a medical opinion as to whether he or she considers the Veteran's ocular hypertension and/or bilateral refractive error to constitute a disability, a laboratory finding representing merely a potentially developing disability, or otherwise classifies the fact. The reviewing doctor must explain the reasons behind any opinions expressed. A discussion of the facts and medical principles involved would be of considerable assistance to the Board. 4. After completion of the above action and any additional development deemed necessary, readjudicate the remanded claims. If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a supplemental statement of the case (SSOC) and afforded the requisite opportunity to respond, before the case is returned to the Board for appellate review. The Veteran has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). The claims must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C. §§ 5109B, 7112 (2012). ______________________________________________ KRISTI L. GUNN Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs