Citation Nr: 18142411 Decision Date: 10/15/18 Archive Date: 10/15/18 DOCKET NO. 15-20 626 DATE: October 15, 2018 ORDER A separate compensable rating for hypertension prior to August 3, 2015, is denied. REMANDED Entitlement to service connection for an acquired psychiatric disorder, to include posttraumatic stress disorder (PTSD), is remanded. FINDING OF FACT For the entire appeal period prior to August 3, 2015, the Veteran’s hypertension required continuous use of medication for control, but was not manifested by a history of diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or diastolic pressure predominantly 100 or more. CONCLUSION OF LAW The criteria for a separate compensable rating for hypertension prior to August 3, 2015, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Codes (DC) 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1971 to August 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in August 2011 by a Department of Veterans Affairs (VA) Regional Office (RO), In June 2017, the Veteran and his fiancé testified at a Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing is of record. The Board notes that, subsequent to the issuance of the April 2017 supplemental statement of the case, additional evidence consisting of the Veteran’s vocational rehabilitation records was associated with the file. While he has not waived Agency of Original Jurisdiction (AOJ) consideration of such evidence, the Board finds that there is no prejudice to him in proceeding with a decision at this time as such are irrelevant to the instant claims. 38 C.F.R. § 20.1304(c). The Board further observes that, in June 2018, the Veteran submitted an Appointment of Veterans Service Organization as Claimant’s Representative (VA Form 21-22) in favor of Disabled American Veterans. However, as the Veteran’s current appeal was certified to the Board in May 2017 and such change in representation was submitted more than 90 days thereafter without good cause, the Board finds that, at the current time, the Veteran remains unrepresented in his current appeal. 38 C.F.R. § 20.1304(a), (b); see e.g. Perez v. Shinseki, 25 Vet. App. 190 (2011) (the Board did not err in denying claimant’s request for change of representative, where request was submitted more than 90 days after his appeal was certified to the Board and no good cause was shown for the delay). 1. Entitlement to a separate compensable rating for hypertension prior to August 3, 2015. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. By way of background, the Board notes that, prior to August 3, 2015, the Veteran’s hypertension was rated with his diabetes mellitus, type II, as a complication of such disability pursuant to 38 C.F.R. § 4.119, DC 7913, Note (1). As of August 3, 2015, as such disability met the criteria for a compensable rating under 38 C.F.R. § 4.104, DC 7101, it has been rated separately. The Veteran alleges that his hypertension was of a sufficient severity so as to warrant a separate compensable rating prior to August 3, 2015. In this regard, at the April 2017 Board hearing, he testified that he was always told that he had high blood pressure and was prescribed Lisinopril. In this regard, pursuant to DC 7101, a 10 percent rating for hypertension is assigned where there is 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 rating applies where there is diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating applies where there is diastolic pressure predominantly 120 or more. A 60 percent rating applies where there is diastolic pressure predominantly 130 or more. Notes to DC 7101 provide that 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 is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic pressure of less than 90mm. Additionally, such direct that hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, should be evaluated as part of the condition causing it rather than by separate evaluation. Finally, hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. Throughout the appeal period prior to August 3, 2015, the Veteran has had his blood pressure checked as a part of his regular care at VA facilities. In this regard, such records show that the Veteran’s highest readings were 159/84 (July 2012), 150/85 (December 2014), and 156/68 (March 2015), and he did not have a history of diastolic pressure predominantly 100 or more. During this period, the Veteran took Lisinopril and Hydrochlorothiazide to control his hypertension. Additionally, at the June 2011 VA examination, the Veteran reported that his blood pressure was well controlled since he began taking medications. He also stated that he never had any crisis or critically high blood pressure readings. At such time, he had blood pressure readings of 110/78, 108/80, and 112/80. Furthermore, while the Veteran has been prescribed medicine to treat his hypertension, the Board notes that the rating criteria for such disability specifically contemplates the use of medication to ameliorate symptoms and a compensable rating may not be assigned based solely on the fact that the Veteran uses medication to treat his symptoms. McCarroll v. McDonald, 28 Vet. App. 267, 272-73 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications). Therefore, based on the foregoing, the Board finds that a separate compensable rating for hypertension prior to August 3, 2015, is not warranted because the evidence shows that, while the Veteran requires continuous medication for control, such was not manifested by a history of diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or diastolic pressure predominantly 100 or more. Therefore, the benefit of the doubt doctrine is not applicable in the instant appeal and claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for an acquired psychiatric disorder, to include PTSD. The Veteran contends that he has an acquired psychiatric disorder, to include PTSD, that is related to his military service. Specifically, he reports that he was stationed on the ground in Vietnam and worked as a helicopter repairman. The Veteran indicated that his missions included air reconnaissance missions, search and destroys, rescue missions, and evacuations of both Americans and South Vietnamese officers. He further reported that his helicopter came under fire several times. The Veteran stated that he was in fear for his life as a result of hostile military activity while in Vietnam. Furthermore, at the June 2017 Board hearing, the Veteran stated that his psychiatric symptoms, to include anger, flashbacks, nightmares, depression, and inability to sleep, began while he was in service, and have continued to the present time. The Board notes that the Veteran’s DD Form 214 confirms that his military occupational specialty (MOS) was a helicopter repairman with service in Vietnam. His service treatment records are silent as to any complaints, treatment, or diagnoses referable to an acquired psychiatric disorder. The Veteran was afforded a VA examination in June 2011, at which time the examiner reviewed the record and interviewed him. The examiner found that, while the Veteran had a few symptoms of PTSD, he did not meet the criteria for such a diagnosis under the Diagnostic and Statistical Manual of Mental Disorders, Fourth Edition (DSM-IV). Further, no diagnosis subject to service connection was rendered. However, at the June 2017 Board hearing, the Veteran stated that the June 2011 VA examiner did not necessarily acknowledge the nature of his service in Vietnam and he may have appeared more upbeat during the 2011 examination because he recently met his future wife. Furthermore, effective August 4, 2014, VA amended the portion of its Schedule for Rating Disabilities dealing with mental disorders and its adjudication regulations to remove outdated references to the DSM-IV and replaced them with references to the updated Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition (DSM-5). See 79 Fed. Reg. 149, 45094 (August 4, 2014). As the Veteran’s appeal was certified in May 2017, his claim is governed by the DSM-5. Consequently, the Board finds that a remand is warranted to afford the Veteran a new VA examination so as to determine whether he meets the DSM-5 criteria for a diagnosis of an acquired psychiatric disorder, to include PTSD, related to his military service. The matter is REMANDED for the following action: Schedule the Veteran for a VA examination to determine the nature and etiology of his acquired psychiatric disorder. The examination must be completed by a VA psychiatrist or psychologist, or a VA psychiatrist or psychologist with whom VA has contracted. The record, to include a copy of this Remand, should be reviewed by the examiner. All necessary tests and studies should be conducted. (A) The examiner should identify all of the Veteran’s acquired psychiatric disorders that meet the DSM-5 criteria. (B) If a diagnosis of PTSD is rendered, the examiner should state whether such diagnosis is the result of an in-service stressor, to include the Veteran’s acknowledged fear of hostile military activity coincident with his service in Vietnam. (C) For each diagnosed acquired psychiatric disorder other than PTSD, the examiner should offer an opinion as to whether it is at least as likely as not (50 percent or greater probability) that any such disorder is related to the Veteran’s military service, to include his service in Vietnam. A rationale should be provided for any opinion offered. A. JAEGER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Brennae L Brooks, Associate Counsel