Citation Nr: 1803343	
Decision Date: 01/18/18    Archive Date: 01/29/18

DOCKET NO.  14-12 923	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania


THE ISSUES

1. Entitlement to a rating in excess of 10 percent for hypertension.

2. Entitlement to an initial compensable rating for left Achilles tendinitis.

3. Entitlement to service connection for an acquired psychiatric disorder, to include depression and to include as secondary to hypertension.

4. Entitlement to service connection for headaches, to include as secondary to hypertension and/or an acquired psychiatric disorder.

5. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU).


REPRESENTATION

Veteran represented by:	The American Legion


ATTORNEY FOR THE BOARD

A. Keninger, Associate Counsel


INTRODUCTION

The Veteran served on active duty from August 1972 to November 1973.

These matters come before the Board of Veterans' Appeals (Board) from a July 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Philadelphia, Pennsylvania.

A Supplemental Statement of the Case (SSOC) was issued by the RO in July 2015.

The issue(s) of entitlement to an initial compensable rating for left Achilles tendinitis; entitlement to service connection for an acquired psychiatric disorder, to include depression and to include as secondary to hypertension; entitlement to service connection for headaches, to include as secondary to hypertension and/or an acquired psychiatric disorder; and entitlement to a total disability rating based on TDIU 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 manifested as diastolic pressure predominantly of 110 or more, or systolic pressure predominantly of 200 or more, during the appeal period.





CONCLUSION OF LAW

The criteria for an initial disability rating in excess of 10 percent for hypertension have not been met.  38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.1-4.14, 4.104, Diagnostic Code 7101 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

I. Duties to Notify and Assist

Neither the Veteran nor the representative has raised any issues with the duty to notify or duty to assist.  See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the Veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

II. Increased Rating

Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1.

Where there is a question as to which of two evaluations shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Reasonable doubt as to the degree of the disability will be resolved in the Veteran's favor. 38 C.F.R. § 4.3.

The Court has held that, in determining the present level of a disability for an increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary.

(a) Hypertension

The Veteran asserts that his hypertension symptoms should be rated higher than the currently-assigned 10 percent disability rating.

The Veteran's hypertension is evaluated under Diagnostic Code 7101, which provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension).  Hypertensive vascular disease with 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, is rated 10 percent disabling.  Hypertensive vascular disease with diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more, is rated 20 percent disabling.  Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling.  Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling.  38 C.F.R. § 4.104, Diagnostic Code 7101.

In January 2012, the Veteran attended a VA examination for his hypertension. The examiner recorded the Veteran's blood pressure in the right arm, which read 150 systolic and 90 diastolic, and the left arm, which read 148 systolic and 92 diastolic.

At a January 2015 VA examination, the Veteran's blood pressure readings indicated 122 systolic and 80 diastolic, 126 systolic and 82 diastolic, and 124 systolic and 80 diastolic. The average blood pressure reading was 124 systolic and 80 diastolic.  The Veteran reported that he took daily medication for his hypertension. The examiner determined that the Veteran did not have any other pertinent findings, complications, conditions, signs, or symptoms related to his hypertension. Furthermore, the examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation of predominantly 100 or more.

The Board notes that a review the Veteran's VA treatment record do not indicate a history of systolic blood pressure elevation of predominantly 200  or more or diastolic blood pressure elevation of predominantly 110 or more.

This evidence shows that the Veteran's hypertension has not manifested as diastolic pressure predominantly of 110 or more, or systolic pressure predominantly of 200 or more, at any point during the appeal period. Accordingly, the evidence does not show that an initial disability rating in excess of 10 percent is warranted during the appellate period for the Veteran's hypertension.  38 C.F.R. § 4.104, Diagnostic Code 7101.  As the preponderance of the evidence is against the claim, the benefit of the doubt rule does not apply, and the Veteran's claim must be denied.  See 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to a rating in excess of 10 percent for hypertension is denied.


REMAND

The Veteran's left Achilles tendinitis must be remanded for a new VA examination. In a July 2013 rating decision, the Veteran was granted a noncompensable rating for left Achilles tendinitis and a 10 percent rating for left foot metatarsalgia with arthritis and mild pes planus. The Veteran appealed only the noncompensable rating for left Achilles tendinitis. Following this rating decision, the Veteran was provided another VA examination in October 2014, however, this examination addressed only the Veteran's left foot disabilities and did not measure the range of motion in the Veteran's left ankle, nor did it note any other deformities or ankylosis specific to the Veteran's left ankle. At this examination, the examiner reported that the Veteran had functional loss due to pain, which limited his ability to walk more than one block. This, combined with the Veteran's assertions regarding his increased left foot pain, indicate the Veteran's disability may have worsened since his November 2012 VA examination. As this examination is over five years old and the Veteran has asserted his disability has worsened, a new VA examination is necessary to determine the current nature of the Veteran's left Achilles tendinitis. 

Regrettably, the Veteran's claims for entitlement to service connection for an acquired psychiatric disorder and headaches must also be remanded for new VA examinations. 

The Veteran asserts that his major depressive disorder and headaches are secondary to his service-connected hypertension. The Veteran also asserts that his headaches are secondary to his acquired psychiatric disorder.  (The Veteran is not service connected for a psychiatric disorder.)

The Veteran was provided a VA mental health examination in November 2012. At this examination, the examiner did not provide a nexus opinion based on direct service connection, and in an addendum opinion, noted only that the Veteran did not mention hypertension at his initial evaluation, and, therefore, the examiner indicated he could not speculate as to whether the Veteran's diagnosed depressive disorder was related to his hypertension. The Board finds that a new VA examination is necessary to determine the nature and etiology of the Veteran's acquired psychiatric disorder.

The Veteran was also provided a VA examination for his headache disability in November 2012. The Veteran was diagnosed with migraine headaches, and it was noted by the examiner that the Veteran's headaches are not likely related to high blood pressure, but did not provide any additional rationale for this opinion. Additionally, the VA examiner did not opine as to whether the Veteran's headaches were related to any acquired psychiatric disorder and did not mention the Veteran's treatment records indicating hospitalization for a head trauma in July 1998. As such, a new VA examination is necessary to determine the nature and etiology of the Veteran's headache disability.

As the Veteran's TDIU claim is inextricably intertwined with the Veteran's other remanded claims, the Veteran's claim for TDIU must also be remanded.

Accordingly, the case is REMANDED for the following action:

1. Provide the Veteran with a VA examination to determine the current severity of his left Achilles tendinitis. The examiner should specifically complete range of motion testing of the Veteran's left ankle and note any ankylosis, malunion of the os calcis or astragulus, and astragalectomy.

2. Provide the Veteran with a VA a mental health examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided.

(i) For any diagnosed psychiatric disorder, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disorder had its onset during the Veteran's period of active duty service from August 1972 to November 1973.

(ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any psychiatric disorder, if not directly related to the Veteran's active service, are caused by the Veteran's service-connected hypertension.

(iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any psychiatric disorder is permanently aggravated by the Veteran's service-connected hypertension.

(iv) If the examiner finds that hypertension permanently aggravates the psychiatric disorder, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the psychiatric disorder prior to aggravation.  If the examiner is unable to establish a baseline for the hypertension prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

2. Provide the Veteran with a VA a mental health examination. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided.

(i) For any diagnosed psychiatric disorder, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disorder had its onset during the Veteran's period of active duty service from August 1972 to November 1973.

(ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any psychiatric disorder, if not directly related to the Veteran's active service, are caused by the Veteran's service-connected hypertension.

(iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that any psychiatric disorder is permanently aggravated by the Veteran's service-connected hypertension.

(iv) If the examiner finds that hypertension permanently aggravates the psychiatric disorder, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the psychiatric disorder prior to aggravation.  If the examiner is unable to establish a baseline for the hypertension prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

3. Provide the Veteran with a VA examination in connection with his headaches. The relevant documents in the record should be made available to the examiner. All indicated studies should be performed, and a rationale for all opinions and a discussion of the facts and medical principles involved should be provided.

(i) For any diagnosed headaches, the examiner should opine whether it is at least as likely as not (50 percent or higher degree of probability) that the disorder had its onset during the Veteran's period of active duty service from August 1972 to November 1973.

The examiner should specifically comment on the Veteran's treatment for head trauma in July 1998.

(ii) If the answer to (i) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that headaches, if not directly related to the Veteran's active service, are caused by the Veteran's service-connected hypertension.

(iii) If the answer to (ii) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that headaches are permanently aggravated by the Veteran's service-connected hypertension.

(iv) If the examiner finds that hypertension permanently aggravates headaches, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the headache disability prior to aggravation.  If the examiner is unable to establish a baseline for the hypertension prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

(v) If the answer to (i), (ii), and (iii) are negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that headaches are caused by the Veteran's psychiatric disorder, which is not currently service connected.

(vi) If the answer to (v) is negative, the examiner is asked to state whether it is at least as likely as not (50 percent or higher degree of probability) that headaches are permanently aggravated by the Veteran's psychiatric disorcer, which is not currently service connected.

(vii) If the examiner finds that the Veteran's psychiatric disorder permanently aggravates headaches, the examiner is asked to state whether there is medical evidence created prior to the aggravation or at any time between the time of aggravation and the current level of disability that shows a baseline for the headache disability prior to aggravation.  If the examiner is unable to establish a baseline for the hypertension prior to the aggravation, he or she should state such and explain why a baseline cannot be determined.

4. Thereafter, the claims should be readjudicated by the AOJ.  If any benefit sought on appeal remains denied, the Veteran and his representative should be furnished a Supplemental Statement of the Case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. 

The Veteran has the right to submit additional evidence and argument on the matters the Board has remanded.  Kutscherousky v. West, 12 Vet. App. 369 (1999).

These claims must be afforded expeditious treatment.  The law requires that all claims 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).




______________________________________________
A. P. SIMPSON 
Veterans Law Judge, Board of Veterans' Appeals

Department of Veterans Affairs