Citation Nr: 18144383 Decision Date: 10/24/18 Archive Date: 10/24/18 DOCKET NO. 16-34 125 DATE: October 24, 2018 ORDER Entitlement to a compensable rating for hypertension prior to June 9, 2016 is denied. Entitlement to a separate compensable rating for hypertension effective from June 9, 2016 (currently rated as diabetic nephropathy with hypertension and assigned a 30 percent effective from June 9, 2016) to include entitlement to a separate rating in excess of 20 percent for hypertension from August 4, 2016 is denied. FINDINGS OF FACT 1. Prior to August 4, 2016, the Veteran’s hypertension was not manifested as diastolic pressure predominantly 100 or more or systolic predominantly 160 or more, and has not been characterized by a history of diastolic pressure predominantly 100 or more. 2. From August 4, 2016, the Veteran’s hypertension was not manifested by diastolic pressure of predominantly 120 or more. CONCLUSIONS OF LAW 1. Prior to June 9, 2016, the criteria for entitlement to an initial compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7101. 2. From June 9, 2016, the criteria for a separate compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7101. 3. From August 4, 2016, the criteria for a separate rating in excess of 20 percent for service-connected hypertension have not been met. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from March 2012 to June 2015. Service connection for hypertension was granted in a June 2015 rating decision and a noncompensable evaluation assigned effective from June 2015. In June 2016, the Veteran appealed the assigned noncompensable rating. Subsequently, in a June 2016 rating decision, the Agency of Original Jurisdiction (AOJ) granted service connection for diabetic nephropathy and combined that disability with the Veteran’s already service-connected hypertension; a 30 percent disability evaluation was assigned effective from June 9, 2016, the date service connection was established for diabetes mellitus, which is the primary disability. The AOJ noted that the hypertension was now being rated together with the Veteran’s diabetic nephropathy since hypertension is one of the rating criteria for renal dysfunction. The AOJ explained further that the 30 percent rating was based on a June 9, 2016 VA examination that showed persistent albuminuria with additional symptoms of hypertension that was noncompensable under Diagnostic Code 7101 and evidence of BUN, creatinine at the upper limit of creatinine testing protocol. In a February 2017 rating decision, the AOJ determined that the Veteran’s hypertension warranted a 20 percent rating from August 5, 2016, the date of a VA examination; however, the condition remained rated together with the diabetic nephropathy pursuant to applicable regulation. Entitlement to an initial compensable rating for service-connected hypertension prior to June 9, 2016 and entitlement to a separate compensable rating from June 9, 2016 to include entitlement to a separate rating in excess 20 percent for hypertension from August 4, 2016 Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in the VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally, 38 C.F.R. 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). When rating the Veteran’s service-connected disability, the entire medical history must be borne in mind. Schafrath v. Derwinski, 1 Vet. App. (1991). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994); Solomon v. Brown, 6 Vet. App. 396, 402 (1994). However, staged ratings are appropriate in any initial rating/increased-rating claim in which distinct time periods with different ratable symptoms can be identified. Fenderson v. West, 12 Vet. App. 119, 126-127 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Under 38 C.F.R. § 4.115, “separate ratings are not to be assigned for disability from disease of the heart and any form of nephritis, on account of the close interrelationships of cardiovascular disabilities.” However, where absence of a kidney is the sole renal disability, or where a chronic renal disease has progressed to the point where regular dialysis is required, any coexisting hypertension or heart disease will be separately rated. 38 C.F.R. § 4.115. In this case, the evidence of record does not demonstrate either absence of a kidney or that regular dialysis has been required. Accordingly, granting separate ratings for the Veteran’s renal dysfunction and hypertension is not allowed. 38 C.F.R. § 4.115, see also 38 C.F.R. § 4.14. Further, renal involvement in diabetes mellitus is to be rated as renal dysfunction. 38 C.F.R. § 4.115b, Diagnostic Code 7541. For renal dysfunction, the Veteran's 30 percent rating reflects symptoms that meet or approximate dysfunction with albumin constant or recurring with hyaline and granular casts or red blood cells; or, transient or slight edema or hypertension at least 10 percent disabling under Diagnostic Code 7101. Id. The next higher rating for renal dysfunction is a 60 percent evaluation which requires constant albuminuria with some edema, or definite decrease in kidney function, or hypertension at least 40 percent disabling under Diagnostic Code 7101 which, as outlined below, requires diastolic pressure predominantly 120 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101. From June 19, 2015 to June 9, 2016, the Veteran’s hypertension was rated as noncompensable and from August 4, 2016, the Veteran’s hypertension would be rated as 20 percent disabling pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating is warranted with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent rating is warranted with diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more. Id. A 40 percent rating is warranted with diastolic pressure predominantly 120 or more. Id. A 60 percent rating is warranted with diastolic pressure predominantly 130 or more. Id. For the purposes of applying Diagnostic Code 7101, 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 blood pressure of less than 90mm. Id. at Note 1. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id. Although Diagnostic Code 7101 does not specifically provide for a noncompensable rating, a noncompensable rating is assigned when the required symptomatology for at least the minimum compensable rating is not shown. See 38 C.F.R. § 4.31. The Veteran contends that his hypertension symptoms have worsened and more closely approximate a higher rating. Service treatment records revealed that the Veteran was diagnosed with hypertension in June 2014 and has been taking continuous medication for control since. Such records do not show a history of diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more but as noted, do show that the Veteran was prescribed medication for hypertension. The initial grant of service connection with a noncompensable evaluation was based on the Veteran’s hypertension being a diagnosed disability with no compensable symptoms. In December 2014, the Veteran underwent a VA general medical separation health assessment (Disability Benefits Questionnaire (DBQ)) examination for hypertension. The Veteran reported taking continuous medication to control his hypertension. The following blood pressure readings were taken: 138/88, 145/98, and 134/94, with an average blood pressure reading of 139/93. The VA examiner found that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. In August 2016, the Veteran underwent another VA examination for hypertension. The Veteran’s treatment plan included taking continuous medication to control his hypertension. The following blood pressure readings were taken: 150/100, 160/110, and 140/90, with an average blood pressure reading of 150/100. The VA examiner found that the Veteran had a history of diastolic blood pressure elevation to predominantly 100 or more. The Veteran reported diastolic blood pressure readings ranging from 100 to 120. A June 2017 VA treatment note recorded the following blood pressure readings: 128/76, 138/76, and 148/94. In July 2017, the Veteran underwent another VA examination for hypertension. The Veteran’s treatment plan included taking continuous medication to control his hypertension. The Veteran reported that he had not changed his medication regimen in the past 12 months. The following blood pressure readings were taken: 157/93, 148/94, 150/100, with an average blood pressure reading of 151/95. The VA examiner found that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The Board concludes that the Veteran’s hypertension prior to June 9, 2016 does not warrant a compensable rating as the evidence does not show diastolic pressure (or a history of) predominantly 100 or more or systolic pressure predominantly 160 or more, nor does the hypertension meet such criteria from June 9, 2016 when the disability was combined with the Veteran’s service-connected renal disability to the date of examination showing an increase in August 2016. Further, the record does not reflect that the Veteran’s hypertension from August 4, 2016 would warrant a separate rating higher than 20 percent under the pertinent either Diagnostic Code 7101 (which as noted above, is prohibited in this case) or under the criteria for renal dysfunction as the Veteran’s hypertension symptoms are not at least 40 percent disabling under Diagnostic Code 7101. See 38 C.F.R. § 4.115a. In determining whether a higher rating is warranted for service-connected disability, VA must determine whether the evidence supports the Veteran’s claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107 (a); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As noted, the Board finds probative the Veteran’s blood pressure readings from his August 2016 VA examination which showed diastolic pressure of predominantly 100 or more. Prior to August 2016, the Veteran’s hypertension symptoms were not manifested by diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, although the Veteran required continuous medication for control. At no time did blood pressure readings show diastolic pressure predominantly 120 or more. Although the Veteran indicated that his diastolic pressure reached 120, he did not record specific readings such that it was shown that it was predominantly 120 or more. Accordingly, the Veteran’s hypertension does not meet the criteria for a compensable rating prior to June 9, 2016, or a separate compensable rating from that date to include a separate rating in excess of 20 percent from August 4, 2016 as the evidence has not shown that the Veteran’s diastolic blood pressure readings are predominantly 120 or higher. While the Veteran believes his hypertension is of greater severity than currently rated, he is not competent to provide a medical assessment of his present severity of hypertension. The issue is medically complex, as it requires the ability to interpret complicated diagnostic medical testing. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4. As such, and based on the foregoing discussion, the Board finds that the criteria for a higher (or separate) rating for service-connected hypertension are not met, and the claim must therefore, be denied. S. L. Kennedy Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Costello, Associate Counsel