Citation Nr: 18150426 Decision Date: 11/15/18 Archive Date: 11/15/18 DOCKET NO. 14-30 082 DATE: November 15, 2018 ORDER A compensable rating for hypertension is denied. FINDING OF FACT The Veteran’s systolic blood pressure is predominantly under 160 and his diastolic blood pressure is predominantly under 100; he requires continuous medication for control and a history of diastolic pressure predominantly 100 or more is not shown. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107(b), 7104(a); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably in the United States Air Force from July 2003 to July 2007. This matter comes before the Board on appeal from a November 2013 rating decision issued by the agency of original jurisdiction (AOJ). The Veteran filed a notice of disagreement in February 2014. The AOJ issued a statement of the case in July 2014. The Veteran filed an appeal in August 2014. The Veteran’s appeal was certified to the Board in November 2014. Increased rating for hypertension 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 percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 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. It is the Board's responsibility to determine whether a preponderance of the evidence supports the claim or whether the evidence is in relative equipoise, with the veteran prevailing in either event, or whether there is a preponderance of evidence against the claim, in which case the claim must be denied. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). The Veteran's hypertension has been assigned a 0 percent evaluation under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under that code, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more. 38 C.F.R. § 4.104. Decisions of the Board should be based on the entire record in the proceeding and upon consideration of all lay and medical evidence of record in the case. 38 U.S.C. §§ 5107(b), 7104(a). The medical records associated with the claims file reflect that the Veteran has had his blood pressure taken more than twenty times since his claim was filed in January 2013. Only one of those readings reflects a diastolic pressure over 100 (July 2017), and none reflect a systolic pressure over 160. Dr. Rosa Borders filled out a disability benefits questionnaire in October 2013 based on a review of the Veteran’s medical files and stated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. Medical records from the Veteran’s December 2016 annual check-up at a VA clinic indicate that the Veteran’s outside systolic blood pressure is usually under 139 and his outside diastolic blood pressure is usually around 90. At an August 2017 annual check-up at a VA clinic the Veteran reported that his outside systolic blood pressure was often over 140 and his outside diastolic blood pressure was often over 90. These records reflect that the Veteran takes medication to control his blood pressure. In his appeal to the Board, the Veteran maintains that a compensable disability rating is warranted based on a history of diastolic pressure of 100 or more, requiring continuous medication for control. He claimed that his grandmother, a nurse, has taken his blood pressure reading many times and that his diastolic reading has been over 100 often. Unfortunately, neither the Veteran nor his grandmother has provided any documentation or other objective evidence that corroborates this claim. The Veteran is competent to report what he was told about the blood pressure reading, and it might be possible that his grandmother would be competent to conduct the test since the Veteran reported that she is a registered nurse. However, without corroboration from her and without objective evidence of the findings, the Veteran’s statement as to the results of the tests his grandmother performed is not particularly probative, and is outweighed by the objective evidence of record. The Veteran also asserted that on the day his appeal was filed in August 2014 his blood pressure was taken by the Federal Law Enforcement Training Center and was higher than 140/90. The Veteran is competent to report what he was told about his blood pressure reading. However, the Veteran has provided no supporting medical documentation to support this contention. Furthermore, a single blood pressure reading of over 140/90 does not satisfy the criteria for the assignment of a compensable disability rating. Furthermore, the Veteran’s blood pressure readings from his time in the Air Force cannot support an increase to a compensable rating because they, too, do not provide a history of diastolic pressure of predominantly 100 or more. The Veteran had his blood pressure taken over twenty times while he was serving, and only one of those readings shows a systolic pressure over 160 and a diastolic pressure over 100 (the April 16, 2007 reading which was 163/130). One instance of elevated blood pressure to the relevant threshold is not sufficient to establish a history of a systolic pressure predominantly 160 or higher, or a diastolic pressure of predominantly 100 or higher. While the Veteran has contended that his blood pressure readings were manipulated while he was in service to show that the documented readings were actually lower than was what initially observed, there is no medical evidence of record that would support this notion. More specifically, the Veteran has argued that on numerous occasions during service, his initial blood pressure reading showed a diastolic pressure of over 100. He further asserts that he would then be told to lay down and relax before his blood pressure was subsequently taken. Finally, he maintains that it was these second and subsequent readings that were written down and made part of the official record. He also believes that the severity of his hypertension in service was covered up and never explained to him. Unfortunately, there is no record of the Veteran’s assertions that he had a history of consistently elevated blood pressure readings in service showing that his diastolic pressure was predominantly 100 or more; and, notably, the Veteran was not on blood pressure medication at that time. The Board may make reasonable inferences that are supported by the evidence, however it may not make medical determinations. Colvin v. Derwinski, 1 Vet. App. 171, 175 (1991). In other words, the Board may use silence in Service Treatment Records as contradictory evidence if the alleged injury, disease, or related symptoms would have ordinarily been recorded in the STRs. Kahana v. Shinseki, 24 Vet. App. 428, 440 (2011) (Lance, J., concurring). In this case, it is reasonable to infer that had the Veteran’s systolic blood pressure been over 160 or had his diastolic blood pressure been over 100 on a consistent basis as the Veteran contends, it would have been noted in his STRs somewhere. Notably, there were several instances wherein multiple blood pressure readings were noted as having been taken at the same appointment; it would be unreasonable to infer that a medical record that notes two or more blood pressure readings at the same appointment would not contain all blood pressure readings taken at that time. Because the Veteran’s lay statements are unsupported and contradict all available medical records, they are not particularly probative and are outweighed by the objective findings in the record. The Board recognizes that the Veteran has argued that his current blood medication keeps his blood pressure down and that the medical evidence would likely reflect higher blood pressure readings if he were to stop taking his medicine. However, even assuming that this is true, an increased rating would not be warranted in this situation. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. "Thus, if [the applicable diagnostic code (DC)] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication when evaluating [the disability]. Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable." McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The Court in McCarroll explicitly addressed whether or not DC 7101 contemplates the effects of medication, and concluded that it did. Id. Since DC 7101 explicitly contemplates the effects of blood pressure medication, the Veteran cannot support an increased rating claim by asserting that his medication prevents his blood pressure readings from being high enough to qualify for a higher rating. In his August 2014 VA Form 9, the Veteran also asserts that the Air Force was negligent in not diagnosing the hypertension while he was in service. He further asserts that this negligence caused him to lose good jobs at the Pentagon after service because his hypertension went untreated during service. The Board does not question the sincerity of these arguments; however, the issue of whether the Air Force committed medical malpractice is not a VA issue, and therefore the issue of whether the Veteran should have been diagnosed with hypertension during service has no bearing on this claim. VA has already acknowledged that the Veteran’s hypertension had its onset during service, and the issue before the Board is limited to the propriety of the initial noncompensable rating assigned. Notably, in this case, and 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. 38 C.F.R. § 4.31. Finally, the Veteran asserts that his untreated blood pressure in service may lead to other serious conditions such as heart failure, heart attack, stroke, and kidney failure which could have potentially been avoided if he was properly treated in service. However, the Board notes that service connection on a secondary basis may not be granted for disabilities that have not yet been diagnosed, or may never be diagnosed. Under 38 U.S.C. § 1110, it is essential that there be a current disability in order to establish service connection. See Gilpin v. West, 155 F.3d 1353 (Fed. Cir. 1998). Absent proof of a current disability, there can be no valid claim. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). As noted above, service connection for hypertension has been established; however, the specific criteria in the rating schedule do not afford a compensable rating in this case for the reasons set forth above. (Continued on the next page)   In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). In light of the foregoing, the Board finds that the criteria for the assignment of a compensable rating for hypertension have not been met and the claim must be denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD P. Macchiaroli, Law Clerk