Citation Nr: 1805797	
Decision Date: 01/30/18    Archive Date: 02/07/18

DOCKET NO.  13-31 223A	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to a compensable rating for hypertensive vascular disease.


REPRESENTATION

Veteran represented by:	Disabled American Veterans


WITNESSES AT HEARING ON APPEAL

Veteran and his wife


ATTORNEY FOR THE BOARD

Rachel E. Jensen, Associate Counsel


INTRODUCTION

The Veteran served on active duty in the United States Army from September 1980 to September 1984 and from October 1987 to February 2006.

This matter comes to the Board of Veterans' Appeals (Board) on appeal from a June 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas.

The Veteran was service connected for hypertensive vascular disease, effective March 1, 2006, at a noncompensable rate.  He submitted a claim for an increased rating received in February 2011, which was denied in a June 2012 decision.  The Veteran submitted a timely Notice of Disagreement.  In a September 2013 Statement of the Case, the denial was confirmed and a claim for service connection for sleep apnea was also denied.  The Veteran subsequently perfected an appeal of both claims.  In a March 2015 rating decision, the RO granted the claim for service connection for sleep apnea and awarded a 50 percent rating, effective May 5, 2008.  That award represents a full grant of the benefits sought with respect to the claim for service connection.  As such, and since the Veteran has not expressed any disagreement with that rating action, no such matter is before the Board for consideration.  See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997).

In April 2017, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge.  A copy of the transcript has been associated with the Veteran's claim file.


FINDING OF FACT

Although the Veteran's hypertension requires continuous medication for control, his blood pressure has not demonstrated diastolic pressure predominantly 100 or more, a history of diastolic pressure predominantly 100 or more, nor systolic pressure predominately 160 or more.



CONCLUSION OF LAW

The criteria for a compensable rating for hypertensive vascular disease have not been met.  38 U.S.C. § 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7101 (2017).


REASONS AND BASES FOR FINDING AND CONCLUSION

At the April 2017 hearing, the Veteran's representative suggested that a new VA examination may be needed as his last VA hypertension examination was conducted in January 2015.  However, there is no objective evidence indicating that there has been a material change in the severity of the Veteran's service-connected disability since he was last examined.  38 C.F.R. § 3.327(a).  The mere passage of time alone since an otherwise adequate examination, does not obligate VA to have the Veteran reexamined simply as a matter of course.  See Palczewski v. Nicholson, 21 Vet. App. 174, 182-83 (2007); see also VAOPGCPREC 11-95 (1995), 60 Fed. Reg. 43186 (1995).  Further, there is ample evidence in the Veteran's medical records since his last VA examination to provide an adequate basis to understand the severity of his hypertension.  As noted in the hearing transcript, the Veteran was scheduled for an annual check-up to monitor his blood pressure just a few days after the hearing.  Therefore, as regards the medical evidence, the Board finds that the duty to assist has been satisfied.

Neither the Veteran nor his representative has raised any other 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 a duty to assist argument).

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. §§ 3.321(a), 4.1.

In evaluating the severity of a particular disability, it is essential to consider its history.  38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991).  Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance.  Francisco v. Brown, 7 Vet. App. 55, 58 (1994).  That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period.  See Fenderson v. West, 12 Vet. App. 119, 126 (1999).  This practice is known as staged ratings.  Id; see also Hart v. Mansfield, 21 Vet. App. 505 (2007). 

If the evidence for and against a claim is in equipoise, the claim will be granted.  38 C.F.R. § 4.3.  A claim will be denied only if the preponderance of the evidence is against the claim.  See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990).  Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant.  38 C.F.R. § 4.3.  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.

The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition.  38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994).

The Veteran's service-connected hypertension is currently evaluated as noncompensable under 38 C.F.R. § 4.104, General Formula for Diseases of the Heart, DC 7101.  Under DC 7101, a 10 percent disability evaluation is warranted where diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or the individual has a history of diastolic pressure of predominantly 100 or more and requires continuous medication for control.  38 C.F.R. § 4.104, DC 7101.  For the next higher 20 percent disability evaluation, diastolic pressure must be predominantly 110 or more or systolic pressure must be 200 or more.  A 40 percent disability evaluation requires diastolic pressure predominantly 120 or more, and a 60 percent disability evaluation requires diastolic blood pressure to be predominantly 130 or more.  Id.

In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met.  See 38 C.F.R. § 4.31 (2017).

The Veteran underwent two VA examinations during the period on appeal.  A May 2011 examination report noted that his hypertension required several medications (Lisinopril, Amlodipine, Atenolol) to maintain control and that his blood pressure was responding to the medications.  He reported intermittent headaches, as well.  A January 2015 VA examination noted that the Veteran took continuous medication for his hypertension (Lisinopril, Amlodipine), that he did not have a history of a diastolic blood pressure elevation to predominately 100 or more, and that he had an average blood pressure reading of 132/84.

VA and private treatment records indicated the following blood pressure readings: 126/76 (May 2010); 128/83 (March 2011); 141/93 (April 2011); 128/83, 126/76, 134/89 (June 2011); 141/89, 131/90, 130/89 (December 2011); 139/89, 149/94, 141/90, 139/89 (June 2012); 141/95, 141/98, 150/101, 140/90 (August 2012); 146/96, 140/90, 134/77 (April 2013); 133/86 (September 2013); 125/84, 144/86, 140/90 (January 2014); 128/83 (August 2014); 131/65 (April 2015); 136/80 (September 2015); 150/72 (October 2015); 121/61 (February 2016); 115/63 (September 2016); 130/83 (April 2017); 128/93 (November 2017).

The Veteran uses a home blood pressure machine and in January 2010 reported average readings around 130/90 to VA clinicians.  A VA record noted in June 2011 that the Veteran is asymptomatic for hypertension.  The Veteran reported home averages in April 2015 of 125/70.  A VA clinician stated in a September 2015 record that the Veteran had been experiencing very low readings of 90/60 to 100/70.  His medications were adjusted.  The Veteran reported home average readings of 120s/80s in October 2015 and stated that his blood pressure was always higher when he came to VA appointments.  At the April 2017 hearing, he testified that he usually had readings of 120-130/90-110.  He also reported that when he took his blood pressure medications later in the day, he would get headaches.  In a November 2017 VA medical record, a clinician noted that the Veteran's diastolic blood pressure readings continued to remain in the 90s on his medications (Amlodipine, HCTZ, Hydralazine).  

The numerous blood pressure readings in the record indicate that the Veteran does not exhibit diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more.  Within the record the Veteran did have a handful of diastolic pressure readings over 100 prior to the period on appeal.  However, the vast majority of diastolic pressure readings were under 100: fewer than 10 readings were over 100 out of more than 70 readings.  As such, the Veteran cannot be said to have a history of diastolic pressure predominantly 100 or more.  Thus, a 10 percent rating is not warranted.

The Board recognizes that the Veteran testified to average home readings of diastolic pressure from 90 to 110 at the April 2017 hearing.  He also stated that his blood pressure machine prints out readings.  He was afforded an opportunity following the hearing to submit a print-out of historical readings for consideration by the Board.  However, to date, nothing has been submitted.  The blood pressure readings that are available in the record are the most probative evidence.  Accordingly, based on the evidence of record, the Veteran's hypertensive vascular disease merits a noncompensable rating.

The Board finds that the preponderance of the evidence is against granting an increased rating.  The benefit of the doubt doctrine is not applicable in this case as there is no doubt to be resolved.  38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. at 57.  


ORDER

A compensable rating for hypertensive vascular disease is denied.




____________________________________________
MICHAEL E. KILCOYNE
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs