Citation Nr: 18153571 Decision Date: 11/29/18 Archive Date: 11/28/18 DOCKET NO. 12-07 810 DATE: November 29, 2018 ORDER Entitlement to a disability rating in excess of 10 percent for hypertension prior to December 19, 2011 is denied. Entitlement to a 10 percent disability rating for hypertension from December 19, 2011 and thereafter is granted. Entitlement to an earlier effective date earlier than October 12, 2007, for service connection of hypertension is denied. FINDINGS OF FACT 1. Prior to December 19, 2011, the Veteran’s hypertension has not been manifested by diastolic blood pressure predominantly over 110 or systolic blood pressure over 200 or more. 2. From December 19, 2011, the Veteran’s hypertension has been manifested by the use of continuous medication, and his history shows a diastolic pressure predominantly over 100. 3. No communication was received from the Veteran prior to October 12, 2007, that may be construed as a formal or informal claim for entitlement to service connection for hypertension. CONCLUSIONS OF LAW 1. Prior to December 19, 2011, the criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.104, Diagnostic Code 7101 (2018). 2. From December 19, 2011, the criteria for a 10 percent rating for hypertension have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.2, 4.3, 4.7, 4.15, 4.16, 4.104, Diagnostic Code 7101 (2018). 3. The criteria for entitlement to an effective date earlier October 12, 2007, for the grant of entitlement to service connection for hypertension not been met. 38 U.S.C. §§ 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 3.159, 3.400 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1977 to June 1997, including almost seven years of foreign service. This matter is before the Board of Veterans’ Appeal (Board) on appeal from a June 2016 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). A July 2018 rating decision increased the disability rating for hypertension, from 0 percent to 10 percent, effective October 12, 2007, and noncompensable from December 19, 2011. However, as these grants do not represent total grants of benefits sought on appeal, the claims for increase remain before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Neither the Veteran nor his representative has raised any issues with respect to VA’s duty to notify or assist. The Board finds that no deficiencies in the duty to notify or assist are otherwise apparent from the record. INCREASED RATING Entitlement to a disability rating in excess of 10 percent prior to 2011, and a compensable rating from 2011 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. 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 Veteran’s hypertension is currently rated under Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent evaluation is assigned for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. Diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more is rated 20 percent disabling. Id. Diastolic pressure predominantly 120 or more is rated 40 percent disabling, and diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. A. Prior to December 19, 2011 During this period, the Veteran is assigned a 10 percent disability evaluation for the Veteran’s service-connected hypertension. The Veteran’s medical treatment records during this period show blood pressure readings of 132/106 (August 28, 2007), 114/82 and 124/96 (August 29, 2007), 146/100 (September 18, 2007), 190/100 (September 18, 2007), and 142/100 (March 21, 2008). The Veteran was prescribed medication for control of hypertension, and VA treatment records reflect consistent use of such. However, the record fails to reflect diastolic pressures (the lower number) that are predominantly 110 or more, or systolic pressure predominantly 200 or more to warrant a disability evaluation greater than 10 percent. No other evidence concerning the Veteran’s blood pressure during the appellate period is at issue. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has diastolic blood pressure was predominantly over 110 or systolic pressure predominantly over 200. Therefore, a disability rating greater than 10 percent for hypertension is not warranted in this case. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran has only been diagnosed with hypertension, which is specifically covered by Diagnostic Code 7101. As such, it would be inappropriate to rate his disability by analogy to any other Diagnostic Codes. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015) (“the Court reiterates that when a condition is specifically listed in the Schedule, it may not be rated by analogy”). Thus, consideration of any alternative Diagnostic Codes is not warranted in this case. The preponderance of the evidence is against a disability rating greater than 10 percent for the Veteran’s service-connected hypertension. As such, the benefit-of-the-doubt doctrine is inapplicable. 38 C.F.R. § 4.3. 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). For these reasons, the claim is denied. B. From December 19, 2011. The Veteran generally contends that he is entitled to a compensable rating for his hypertension, after December 19, 2011. The Veteran has been prescribed medication for control of hypertension, and VA treatment records reflect consistent use of such. Considering that, as detailed above, the Veteran’s blood pressure readings consistently showed a diastolic blood pressure of over 100, and required continuous medication, the Board finds that the criteria for a 10 percent reading for this period have been met. However, as above, the Veteran’s readings from this time forward have not approximated those required for a 20 percent rating. The Veteran was afforded a VA examination in December 2011 to determine the severity of his service-connected hypertension. Upon examination, the Veteran presented blood pressure readings of 112/68, 122/76, and 132/89. In addition, VA treatment records from December 2011 to present consistently reflect that the Veteran’s blood pressures are below 160 systolic and 100 diastolic and that the Veteran’s hypertension is well-controlled by his medication with blood pressure readings of 129/89, 123/78, 106/64, 134/73, 147/88, and 145/81. No other evidence concerning the Veteran’s blood pressure during the appellate period is at issue. Based on the evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has diastolic blood pressure predominantly over 110 or systolic pressure predominantly over 200. Therefore, a 10 percent rating, but no higher, for hypertension, from December 19, 2011, is warranted in this case. 38 C.F.R. § 4.104, DC 7101. EFFECTIVE DATE Entitlement to effective date prior to October 12, 2007 for the grant of service connection for hypertension. The Veteran seeks entitlement to an effective date prior October 12, 2007, for the grant of service connection for hypertension. Generally, the assignment of effective dates is governed by 38 U.S.C. § 5110 (2012) and 38 C.F.R. § 3.400 (2018). If a claim is received within one year of a veteran’s separation from service, the effective date will be the date of separation from active duty or the date that entitlement arose. Otherwise, the effective date for an award of pension, compensation, or dependency and indemnity compensation based on an original claim, a claim reopened after final disallowance, or a claim for increase, will be the date of receipt of the claim or the date that entitlement arose, whichever is later. See 38 U.S.C. § 5110 (2012); 38 C.F.R. § 3.400 (2018). Currently, the Veteran is assigned an effective date of October 12, 2007, for the award of service connection for hypertension. This effective date corresponds to the date of receipt for the initial claim of service connection for hypertension, which was opened via VA Form 21-526b after the Veteran contacted his local RO regarding his request for benefits. This claim was received well after one year following the Veteran’s discharge from service. The Veteran’s attorney contends that the Veteran submitted a claim for benefits in July 1997, and that VA should have interpreted that claim as a claim for service connection for hypertension. She further contends that the Veteran’s effective date for his award should date back to that initial claim, citing to the recent case of Sellers v. Wilkie, No. 16-2993, 2018 U.S. App. Vet. Claims LEXIS 1114 (2018). In this case, the Veteran submitted a claim on July 14, 1997. Under the section of the claim asking for the nature of sickness, disease, or injury, the Veteran wrote “please see service medical record.” Later that same month, the RO notified the Veteran that his claim had been received, but asked for further information. The RO specifically asked the Veteran to identify “[t]he type of illness, disease or injury for which you are claiming benefits.” The RO notified the Veteran that he should submit this information “preferably within 60 days,” and that if the Veteran did not reply within one year, VA would not be able to pay the benefit he sought. In October 1997, the RO again wrote the Veteran, noting that because he had not responded to their earlier letter, his claim would be denied. That October 1997 letter also, however, noted that the Veteran could submit evidence until July 1998 to be considered in conjunction with his original claim, but that evidence submitted after that date would have to be considered a new claim. No further communication was received from the Veteran regarding this or any other claim until October 2007, the date his claim for service connection for hypertension was received and, correspondingly, the effective date assigned here. Based on this history, no earlier effective date for the grant of service connection is warranted. Certainly there was an earlier claim for benefits. But at that time, the Veteran did not specify which disabilities or disease he was seeking service connection for, nor did he respond to two letters from the RO seeking additional information. Indeed, these additional letters help distinguish the case at bar from Sellers. In Sellers, the claimant sought service connection for enumerated physical disabilities, as well as “‘for disabilities occurring during active duty service.’” Id. at *3. Though the RO in that case adjudicated the specified physical disabilities, there is no evidence that they otherwise sought clarification from the Veteran as to what else was being sought. The fact that the RO did seek such clarification here, and that the Veteran did not respond to two separate letters seeking additional information, distinguishes this case. In light of this fact, the Board finds that the Veteran’s July 1997 claim was not an earlier claim for benefits for service connection for hypertension such that the effective date can be established earlier than his claim for benefits in October 2007. In reaching the above conclusion, 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) (2012); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). Evan Deichert Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. R. Higgins, Associate Counsel