Citation Nr: 18144642 Decision Date: 10/25/18 Archive Date: 10/24/18 DOCKET NO. 15-38 685 DATE: October 25, 2018 ORDER Entitlement to a compensable evaluation for hypertension is denied. FINDING OF FACT The Veteran’s hypertension disability is not manifested by diastolic blood pressure predominantly 100 or more, systolic blood pressure predominantly 160 or more, or a history of diastolic pressure predominantly over 100 requiring continuous medication for control. CONCLUSION OF LAW The criteria for a compensable evaluation for a hypertension disability have not been met or approximated. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.31, 4.104, Diagnostic Code 7101 (2017).   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1987 to March 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in Waco, Texas. When a Veteran files a claim for an increased rating, he or she is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to special monthly compensation (SMC) has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). Here, both VA and private medical records indicate the Veteran has been employed full time, and he has not asserted that his service-connected disabilities keep him from gaining and maintaining suitable employment. There is no further lay or medical evidence the Veteran is housebound in fact, requires aid and attendance, or that his disabilities result in loss of use of a limb or blindness. 38 U.S.C. §§ 1114(s), (l), (k); 38 C.F.R. § 3.350(a), (b), (i). The Board finds that consideration of TDIU and SMC are not inferred by the record, and as such will not be discussed. The Veteran was scheduled for an October 2018 travel Board hearing, but he canceled prior to the scheduled date without a request to reschedule. The Veteran asked instead to have his appeal considered on the basis of evidence currently on file. The Board considers the hearing canceled without prejudice and will proceed with the adjudication of the Veteran’s claim. Veterans Claims Assistance Act of 2000 (VCAA) The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (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 [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Compensable Schedular Rating for Hypertension 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. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1 (2013); 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. The determination of whether an increased disability rating is warranted is to be based on a review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The Board considers not only the criteria of the currently assigned diagnostic codes, but also the criteria of other potentially applicable diagnostic codes. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. However, the evaluation of the same “disability” or the same “manifestations” under various diagnoses is not allowed. See 38 C.F.R. § 4.14. A claimant may not be compensated twice for the same symptomatology as “such a result would overcompensate the claimant for the actual impairment of his [or her] earning capacity.” See 38 U.S.C. § 1155 (2012); Brady v. Brown, 4 Vet. App. 203, 206 (1993). This would result in pyramiding, contrary to the provisions of 38 C.F.R. § 4.14. However, if a veteran has separate and distinct manifestations attributable to the same injury, they should be compensated under different diagnostic codes. See Esteban v. Brown, 6 Vet. App. 259 (1994); Fanning v. Brown, 4 Vet. App. 225, 230 (1993). 38 U.S.C. § 1154(a) requires that the VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim to disability benefits. Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). When analyzing lay evidence, the Board should assess the evidence and determine whether the disability claimed is of the type for which lay evidence is competent. See Davidson, 581 F.3d at 1313; Kahana v. Shinseki, 24 Vet. App. 428 (2011). 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 assignment of a particular diagnostic code is “completely dependent on the facts of a particular case.” See Butts v. Brown, 5 Vet. App. 532, 538 (1993). One diagnostic code may be more appropriate than another based on such factors as an individual’s relevant medical history, the current diagnosis, and the demonstrated symptomatology. Any change in a diagnostic code by VA must be specifically explained. See Pernorio v. Derwinski, 2 Vet. App. 625 (1992). The Veteran’s hypertension disability is rated pursuant to 38 C.F.R. § 4.104, Schedule of Ratings – Cardiovascular System, under Diagnostic Code 7101, hypertensive vascular disease (hypertension and isolated systolic hypertension). Diagnostic Code 7101 provides a 10 percent rating for evidence showing diastolic pressure of predominately 100 or more, or; systolic pressure of predominately 160 or more; or as a minimum rating for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided for evidence of diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is provided for evidence of diastolic pressure of predominantly 120 or more. A 60 percent rating is provided for evidence of diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes that relief provided by medication is specifically contemplated by the applicable schedular rating criteria. Evidence and Analysis The Veteran’s entitlement to service connection for hypertension was granted with a noncompensable evaluation in an April 2008 rating decision. The Veteran filed a claim for an increased rating on January 24, 2013. As such, the Board will focus on the disability level of his hypertension from one year immediately preceding the claim. See 38 U.S.C. § 5110 (b)(2) and 38 C.F.R. § 3.400 (o)(2) (stating that in assessing the present level of disability, the relevant temporal focus is from one year immediately preceding the filing of the increased-rating claim); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran asserted in his notice of disagreement that he is entitled to a compensable evaluation because he takes regular medication for his hypertension. The Veteran received a VA examination for his increased rating hypertension claim in May 2013. Here, the examiner noted the Veteran’s history that he had been diagnosed with hypertension in 2003 while still on active duty and has been on a variety of hypertension medications ever since into the present day. The examiner noted that the Veteran did not have a history of diastolic blood pressure to be predominantly 100 or more. On that day of the examination, the Veteran’s blood pressure was read three times, and the readings were 138/84, 133/84, and 144/89. This examiner noted the Veteran has no other pertinent physical findings, complications, conditions, or symptoms that could be related to his hypertension diagnosis. The Veteran has been seen in VA medical facilities for a variety of continuing medical conditions, and as such, has many instances during the appeal period where his blood pressure was measured. In the following paragraphs, separated by calendar year, a reported reading was done at a VA facility by VA medical personnel, unless otherwise noted. In May 2010, the Veteran received blood pressure reading of 156/94 and 144/91. In July 2010, he received readings of 149/90, 143/90, and 143/94. In September 2010, he received a reading of 125/70. In January 2011, he received a reading of 135/73. In March 2011, he received a reading of 132/83. In July 2011, a reading of 118/86 was recorded. In October 2011, he received readings of 125/83 and 141/84. In April 2012, the Veteran received readings of 154/88 and 126/68. In May 2012, a reading of 139/89 was recorded. In June 2012, a reading of 120/70 was recorded. In March 2013, a reading of 120/70 was recorded. In May 2013, during the VA examination as noted above, he received readings of 138/84, 133/84, and 144/89. In August 2013, the Veteran received a blood pressure reading of 136/103 when seen in a VA urgent care facility. In September 2013, a reading of 135/87 was recorded. In January 2014, the Veteran received a reading of 136/86. In April 2014, a reading of 128/81 was recorded. In October 2014, when instructed by VA medical providers to record his blood pressure at home, the Veteran submitted an average reading of 131/84. A reading at a VA clinic that same month was 134/91. In July 2015, the Veteran received readings of 139/80 and 122/94. In September 2015, he received a reading of 131/79. In October 2015, he received a reading of 127/80. In November 2015, the Veteran reported to VA a summary of home blood pressure readings of 123-125 systolic and 79-82 diastolic. That same month, the Veteran received a reading of 122/88 in a VA clinic. In December 2016, he received a reading of 122/85. In January 2017, the Veteran received readings of 132/81, 138/83, and 144/93. In May 2017, a reading of 134/76 was recorded. In February 2018, the Veteran received a reading of 131/84, and later that same month, 137/87. VA instructed the Veteran to take a series of readings over a two month period, and the Veteran reported 43 different readings from February 2018 to April 2018, all taken by the Veteran, with a systolic range of 120-141, and a diastolic range of 83-91. As a result of the two-month intensive recordings of blood pressure, a VA physician remarked that the Veteran’s blood pressure was adequately controlled and no changes in medication were indicated at the time. In August 2018, the Veteran received a reading of 134/80. The Board notes the Veteran’s submission of a September 2018 lay statement citing selected blood pressure readings as evidence he is entitled to a compensable rating for his hypertension. However, with one exception, the Board notes the dates of the readings submitted were all during his time on active duty, which ended in March 2008, and is well outside the period of appeal noted earlier in this decision. The one reading reported by the Veteran within the period on appeal, taken in April 2012 with a reading of 154/86, is below the 160 systolic or 100 diastolic levels noted in the rating criteria for a 10 percent evaluation for hypertension. The Board also notes the language of the criteria using the word “predominantly,” and as recorded above, in the period on appeal and taking notice of the entire record of blood pressure readings during that period, only one diastolic reading was over 100, and no systolic readings were over 160. The Board has considered that the Veteran’s blood pressure reading recorded during the August 2013 urgent care visit, when a reading of 136/103 was recorded. Of the entire group of blood pressure readings during the period on appeal, that date is the only time where the diastolic was recorded over 100, and the Board notes for the entire period on appeal, no systolic reading of 160 or higher was recorded. As such, there is no indication from the Veteran’s VA treatment record, which is well-documented with the Veteran’s blood pressure readings, that he has a history of diastolic blood pressure readings of predominantly 100 or more during the period under appeal. The Board has also considered the Veteran’s contention of August 2014 that because he is on medication for his hypertension, going back to 2003 and continuing into the present day, that he is entitled to an increased evaluation. Notwithstanding the Veteran’s contention, the Board is permitted to consider the alleviating effect of blood pressure medication in assigning a disability rating as the Diagnostic Code 7101 explicitly contemplate those effects. In Jones v. Shinseki, 26 Vet. App. 56, 61 (2012) the Court found that the Board committed legal error by considering the effects of medication on the appellant’s irritable bowel syndrome when those effects were not explicitly contemplated by the rating criteria. Where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable. See McCarroll v. McDonald, 28 Vet. App. 267 (2016). To warrant a minimal compensable rating of 10 percent based on the use of medication, the criteria requires a history of diastolic pressure predominately of 100 or more. As shown above, the vast majority of diastolic pressure readings are below 100. Thus, entitlement to a compensable rating on this basis is not warranted. The Board notes the Veteran has no current or past heart disease or other cardiovascular conditions, and no reports of aortic insufficiency or hyperthyroidism. Based on a review of the competent evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for hypertension. In this regard, there is no evidence of record showing that the Veteran has diastolic blood pressure predominantly 100 or more, systolic blood pressure predominantly 160 or more or that he has a history of diastolic pressure predominantly over 100 which requires medication for control. Therefore, a compensable rating for hypertension is not warranted. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted a higher schedular rating. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). All potentially applicable diagnostic codes have been considered, and there is no basis to assign an alternative evaluation for the Veteran’s skin disability other than that discussed above. See Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). Based on the foregoing, the Board concludes that the criteria for a compensable evaluation of the Veteran’s service-connected hypertension are not met or approximated, and the claim is denied. All evidence has been considered and there is no doubt to be resolved as the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990). Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. 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). Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Setter, Associate Counsel