Citation Nr: 1803745 Decision Date: 01/19/18 Archive Date: 01/29/18 DOCKET NO. 13-15 976 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Atlanta, Georgia THE ISSUES 1. Entitlement to service connection for arthritis of the bilateral hands. 2. Entitlement to an initial compensable rating for hypertension prior to December 12, 2016, and in excess of 10 percent on and after December 12, 2016. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD S. Krunic, Counsel INTRODUCTION The Veteran served on active duty in the United States Army from July 1977 to January 1998. This case comes before the Board of Veterans' Appeals (Board) on appeal from an October 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in St. Paul, Minnesota. Jurisdiction over the case was subsequently transferred to the RO in Atlanta, Georgia. In August 2016, a videoconference hearing was held before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The VLJ held the record open for a 60-day period following the hearing to allow for the submission of additional evidence; however, the Veteran and his representative did not submit any additional evidence thereafter. The Board remanded the case for additional development in November 2016. Subsequently, in an April 2017 rating decision, the Appeals Management Center assigned a 10 percent disability rating for the Veteran's hypertension, effective December 12, 2016. Nevertheless, the increased rating matter remains in appellate status, as the maximum rating has not been assigned. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (holding that a decision awarding a higher rating, but less than the maximum available benefit, does not abrogate the pending appeal). This matter has since been returned to the Board for appellate review. The Board notes that additional VA treatment records regarding the bilateral hand claim were associated with the claims file but were not reviewed by the Agency of Orignal Jurisdiction (AOJ); however, on remand the AOJ will have the opportunity to review these records. This appeal was processed using the Veterans Benefits Management System (VBMS) and Virtual VA paperless claims processing system. The issue of entitlement to service connection for arthritis of the bilateral hands is addressed in the REMAND portion of the decision below and is REMANDED to the AOJ. FINDINGS OF FACT 1. The Veteran's service-connected hypertension was not productive of blood pressure readings with diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more with the need for continuous medication for control prior to December 12, 2016. 2. The Veteran's service-connected hypertension was not productive of blood pressure readings with diastolic blood pressure of predominantly 110 or more, or systolic blood pressure predominantly 200 or more on and after December 12, 2016. CONCLUSIONS OF LAW 1. The criteria have not been met for an initial compensable evaluation for service-connected hypertension prior to December 12, 2016. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.31, 4.104, Diagnostic Code 7101 (2016). 2. The criteria have not been met for an evaluation in excess of 10 percent for service-connected hypertension on and after December 12, 2016. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 4.1-4.14, 4.21, 4.31, 4.104, Diagnostic Code 7101 (2016). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board has considered the Veteran's claims and decided entitlement based on the evidence or record. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record, with respect to his claims. See Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Consideration of the whole recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where an increase in the disability rating is at issue, the present level of the veteran's disability is the primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence "used to decide whether an [initial] rating on appeal was erroneous . . . ." Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, "staged" ratings may be assigned for separate periods of time based on facts found. Id ; see also Hart v. Mansfield, 21 Vet. App. 505 (2007) (VA's determination of the "present level" of a disability may result in a conclusion that the disability has undergone varying and distinct levels of severity throughout the entire time period the increased rating claim has been pending). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C.A. § 5107; 38 C.F.R. § 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The Veteran's hypertension has been assigned a noncompensable rating pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101 (hypertensive vascular disease). Where the Schedule does not provide a zero percent rating, a zero percent rating shall be assigned if the requirements for a compensable rating are not met. See 38 C.F.R. § 4.31. Under Diagnostic Code 7101, a 10 percent rating is assigned for hypertension with diastolic pressure (bottom number) predominantly 100 or more, or systolic pressure (top number) predominantly 160 or more. A 10 percent rating also is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for hypertension with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for hypertension with diastolic pressure predominantly 120 or more. The maximum 60 percent rating is assigned for hypertension with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104 (2016). Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (1). The evaluation of hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (2). Hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. 38 C.F.R. § 4.104, Diagnostic Code 7101, Note (3). In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that the Veteran is not entitled to an initial compensable rating for his service-connected hypertension prior to December 12, 2016, or a rating in excess of 10 percent on and after December 12, 2016. The private treatment records from S.F.M. indicate that in the year preceding the Veteran's December 2010 initial disability claim, his hypertension was noted to be under good control with no associated disabilities. His blood pressure readings were as follows: 128/80 (February 2010); 129/83 (April 2010); 131/86 (August 2010); and a November 2010 entry reflects that the Veteran's home readings ranged from 117/79 to 129/82. He was noted to be prescribed medication for his hypertension. In addition, the Veteran's VA treatment records were reviewed and indicate that the Veteran's predominant blood pressure readings did not meet the rating criteria for a 10 percent evaluation during the entire appeal period with the exception of the three readings taken at the December 2016 VA examination for which the AOJ subsequently assigned a 10 percent evaluation. The following blood pressure readings taken during the past several years, showed diastolic pressure below 100 and systolic pressure below 160: 130/80 (June 2011), 130/82 (December, 2011), 116/71 (May 2012), 130/82 (February 2013), 117/73 (August 2013), 113/68 (July 2014), 136/81 (February 2015), 126/80 (August 2015), and 129/82 (November 2016). Moreover, the Veteran's hypertension was noted to be under control and stable on several occasions. See e.g. June 2011, May 2012, August 2015 VA treatment records. In January 2011, the Veteran was provided a hypertension VA examination. The Veteran's blood pressure readings during the examination were measured as 124/86 (left arm seated) and 126/84 (right arm seated). The examiner noted that the Veteran's current hypertension was minimal and of the same severity as documented in service (e.g. 140/80,140/84, and 136/84). The Veteran was prescribed Diovan to control his hypertension. He reported occasional lightheadedness as his only symptom associated with hypertension; he also stated that his hypertension did not affect his work or activities of daily living. Moreover, the examination report shows that there was no end-organ damage to the eyes, kidneys, heart, and brain noted. An August 2016 Hypertension Disability Benefits Questionnaire (DBQ) was completed by a private practitioner. The examiner noted that the Veteran was diagnosed with hypertension in 2004 and has been on medication since October 2004 to control his hypertension. Additionally, the examiner indicated that the Veteran's initial diagnosis of hypertension was confirmed by blood pressure readings taken two or more times on at least three different days. Specifically, the blood pressure readings were 130/90 (January 2004), 154/78 and 140/88 (September 2004), and 144/86 (October 2004). The Veteran's current blood pressure readings included measurements of 134/85 (June 2015), 148/90 (July 2016), and 155/81 (August 2016). The examiner noted that the Veteran did not have any findings, complications, conditions, signs, or symptoms related to his hypertension. Moreover, the Veteran's hypertension did not impact his ability to work. Finally, the examiner stated that the Veteran continued to have some elevated readings such as 158/78 (September 2004), 150/96 (April 2005), and 148/96 (January 2006). The Veteran submitted a copy of his home blood pressure tracker dated from August 22, 2016 to August 26, 2016. The tracker reflects that morning and evening systolic blood pressures were all below 160 and diastolic blood pressures were all below 100. The Veteran was afforded a VA examination in December 2016. The examiner noted the Veteran's continuous medication for his hypertension included Diovan/HCT and Caduet. The blood pressure readings during the examination were 172/80 and 168/82 and in November 2016, blood pressure was noted to be 129/82. The examiner stated that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. Furthermore, the examiner did not find any other pertinent physical findings, complications, conditions, signs or symptoms related to the condition. The examiner diagnosed hypertension and found that the Veteran's hypertension did not impact his ability to work. The Board finds the Veteran is not entitled to a compensable rating prior to December 12, 2016 because his readings are not commensurate with a higher 10 percent rating during that period. Although the Veteran has been on continuous medication for his hypertension, none of the VA treatment records, the 2011 VA examination report, or private treatment records reveal any blood pressure readings showing a history of diastolic pressure predominantly 100 or more. As noted, the rating criteria requires the readings to be predominantly over 100 for diastolic or a history of such readings and the Board finds that a few isolated readings of 100 or more are insufficient to satisfy those requirements. In addition, the Veteran presently has a 10 percent rating from December 12, 2016. In order to warrant a higher 20 percent rating the evidence must show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101 (2016). The evidence of record does not show that the Veteran meets these criteria. Moreover, the Veteran and Dr. M.S.C. have stated that his readings would be higher without the use of continuous medication; however, a higher compensable rating cannot be granted on that basis, insofar as VA has included the effect of medication as a factor to be considered when rating hypertension. See McCarroll v. McDonald, 28 Vet.App. 267 (2016); Jones v. Shinseki, 26 Vet. App. 56 (2012). Furthermore, the Board finds that the Veteran is competent and credible to testify as to his symptoms; however, a rating for hypertension is dependent on objective blood pressure readings. Therefore, the Board finds the objective medical evidence to be more probative in assigning his rating. Accordingly, the Board concludes that an initial compensable evaluation is not warranted for the Veteran's hypertension disability prior to December 12, 2016, nor is an evaluation in excess of 10 percent warranted on or after December 12, 2016. 38 C.F.R. § 4.3. ORDER Entitlement to an initial compensable evaluation for hypertension prior to December 12, 2016 is denied. Entitlement to an evaluation of in excess of 10 percent for service-connected hypertension on and after December 12, 2016 is denied. REMAND The Veteran was afforded a hand and finger conditions VA examination in December 2016. However, remand is again required to obtain an adequate VA opinion to ensure compliance with the Board's November 2016 remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998) (noting that where the remand orders of the Board are not complied with, the Board errs as a matter of law when it fails to ensure compliance). The VA examiner diagnosed the Veteran as having nonspecific arthritis of the proximal interphalangeal joints (PIP) in both hands with the onset of the disease noted as 1998. The Veteran reported during the examination that his finger pain and swelling in the PIP joints of both hands began in 1998 while still on active duty; the Veteran attributed the pain to cold weather training and field exercises. The VA examiner opined that the Veteran's bilateral hand condition was less likely than not incurred in or caused by an event, injury or illness in service. In so finding, she concluded that work in a cold environment would not cause ongoing hand pain unless there was previous evidence of frostbite or cold injury which in this case was not documented in the Veteran's service treatment records. Moreover, she stated that the Veteran does not have evidence of osteoarthritis in hand x-rays but could have other forms of arthritis which have not been evaluated or diagnosed by his private practitioner as the cause for his finger joint pain. However, the Board finds that the VA medical opinion is inadequate. See Barr v. Nicholson, 21 Vet.App. 303, 311 (2007) ("[O]nce the Secretary undertakes the effort to provide an examination . . . he must provide an adequate one."). First, VA x-rays conducted in January 2011 and December 2016 revealed negative views of the bilateral hands, yet the examiner assessed the Veteran with nonspecific arthritis and stated that he may have other forms of arthritis as the cause of his finger joint pain. The opinion is further internally inconsistent insofar as the examiner rendered a negative nexus opinion, yet noted the onset of the Veteran's hand and finger pain was in 1998, which was during a period of active duty. Finally, the examiner did not address the Veteran's contention that he fractured his left wrist during service. Finally, since the December 2016 VA examination, VA treatment records associated with the claims file reflect a diagnosis of radial styloid tenosynovitis related to pain in the hands. Accordingly, the case is REMANDED for the following action: 1. The AOJ should obtain a VA examination and medical opinion with the appropriate specialist regarding the Veteran's claimed bilateral hand disorders. The examiner is requested to review all pertinent records associated with the claims file, including the Veteran's service treatment records, post-service medical records, lay statements, and prior VA examination reports. It should be noted that the Veteran is competent to attest to factual matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. The Veteran has contended that he has arthritis of the bilateral hands as a result of in-service cold weather exposure. He also stated that he fractured his left wrist during service. VA treatment records dated from 2017 indicate that the Veteran is diagnosed as having radial styloid tenosynovitis. The examiner should identify each diagnosis related to the bilateral hands and/or fingers. For each diagnosis identified, the examiner should state whether it is at least as likely as not (a 50 percent or greater probability) that the disorder manifested in or is otherwise related to the Veteran's military service, including exposure to cold weather. The examiner should state whether the Veteran has arthritis of the bilateral hands. The examiner must provide a complete rationale that fully considers and discusses the Veteran's report of in-service hand and finger symptoms, including pain and swelling, and continuity of symptoms since service. It is insufficient to merely note a lack of in-service medical evidence documenting complaints, treatment, diagnosis or cold injury related to the bilateral hands. (The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a conclusion is so evenly divided that it is as medically sound to find in favor of conclusion as it is to find against it.) A clear rationale for all opinions would be helpful and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. 2. After completing the above actions and any other development as necessary, the case should be reviewed by the AOJ on the basis of the additional evidence. If the benefits sought are not granted, 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 matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board 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.A. §§ 5109B, 7112 (West 2014). ______________________________________________ ANTHONY C. SCIRÉ, JR. Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs