Citation Nr: 18156028 Decision Date: 12/06/18 Archive Date: 12/06/18 DOCKET NO. 15-00 114A DATE: December 6, 2018 ORDER The issues of entitlement to an increased ratings for migraines a left knee disability are dismissed without prejudice. Entitlement to a disability rating in excess of 10 percent for hypertensive vascular disease is denied. FINDINGS OF FACT 1. In October 2018, the Veteran submitted a written statement requesting his claims for entitlement to an increased rating for service-connected migraines and entitlement to an increased rating for a service-connected left knee impairment to be withdrawn 2. The Veteran’s hypertensive vascular disease has been characterized by slightly elevated blood pressures and the need for medication; a diastolic pressure of predominately 110 mm/Hg or more, or a systolic pressure of predominately 200 mm/Hg or more have not been shown. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the substantive appeal as to the issues of entitlement to an increased rating for service-connected migraines and entitlement to an increased rating for a service-connected left knee impairment have been met. 38 U.S.C. § 7105; 38 C.F.R. §§ 20.101, 20.202, 20.204. 2. The criteria for a disability rating in excess of 10 percent for hypertensive vascular disease have not been met. 38 U.S.C. §§ 1155, 5103(a), 5103A; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.6, 4.104, DC 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the Air Force from July 2004 to March 2012. In October 2018, the Veteran submitted a written statement to withdraw his request for a hearing before the Board. Therefore, this appeal is now ready for adjudication. 38 C.F.R. § 20.704 (e). Preliminarily, the Board notes that the RO received new VA treatment records in November 2015, March and April 2017, and September and October 2018, which were not previously considered in its last SOC. However, the Board has reviewed these records and finds that the vast majority of them are irrelevant, and that to the extent there are relevant records, these records were previously on file, and/or are redundant or cumulative of the records already on file. As a result, there is no prejudice to the Veteran for the Board to consider these records in the first instance and a remand for the RO’s initial consideration of this evidence is not required. 38 C.F.R. § 20.1304 (c). Withdrawal of Claims A veteran may withdraw his or her appeal in writing at any time before the Board promulgates a final decision. 38 C.F.R. § 20.204. When a veteran does so, the withdrawal effectively creates a situation in which an allegation of error of fact or law no longer exists. In such an instance, the Board does not have jurisdiction to review the appeal, and a dismissal is then appropriate. 38 U.S.C. § 7105 (d); 38 C.F.R. §§ 20.101, 20.202. Here, in October 2018, the Veteran submitted a written statement requesting his claims for entitlement to an increased rating for service-connected migraines and entitlement to an increased rating for a service-connected left knee impairment to be withdrawn. In view of the Veteran’s expressed desire, the Board concludes that his intent was to withdraw these claims and further action with regard to these claims is not appropriate. The Board no longer has jurisdiction over these claims and, as such, must dismiss the appeal as to these issues. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. While the Board typically considers only those factors contained wholly in the rating criteria, it is appropriate to consider factors outside the specific rating criteria when appropriate in order to best determine the level of occupational and social impairment. Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating. 38 C.F.R. § 4.7. When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where evidence indicates that the degree of disability increased or decreased during appeal period following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). Hypertensive Vascular Disease The Veteran is currently rated at 10 percent for his service-connected hypertensive vascular disease. According to the applicable rating criteria, a rating of 20 percent for hypertensive vascular disease requires evidence of: • diastolic pressure predominantly 110 mm/Hg or more; or • systolic pressure predominantly 200 mm/Hg or more. 38 C.F.R. § 4.104, DC 7101. Further, Note 1 of DC 7101 states that hypertension must be confirmed by readings taken two or more times on at least three different days. Based on the evidence of record, the Board determines that a rating in excess of 10 percent is not warranted. During the course of appeal, the Veteran’s VA treatment records show that his hypertensive vascular disease is well controlled by medication. Specifically, the records show that the Veteran’s systolic pressures were not predominantly 200 mm/Hg or more. The treatment records show a peak systolic pressure at 160 mm/Hg in December 2013, thus his systolic pressure was never observed close to 200 mm/Hg on any occasion. Moreover, the VA treatment records show that his systolic pressure falls within the range of 99 to 160 mm/Hg (including 99 mm/Hg in June 2012, 120 mm/Hg in November 2013, 120 mm/Hg in January 2014, 140 mm/Hg in July 2015, 141 mm/Hg in March 2016, 157 mm/Hg in January 2017, 120 mm/Hg in March 2017, and 140 mm/Hg in September 2018). Therefore, the Board finds that the Veteran’s systolic pressures do not meet the criteria for a rating in excess of 10 percent. Similarly, the Veteran’s diastolic blood pressures were not predominately above 110 mm/Hg as required for a rating in excess of 10 percent. During the course of appeal, the Veteran’s VA treatment records show his peak diastolic pressure at 112 mm/Hg in April 2017. This was the only observation in the treatment records of his diastolic pressure above 110 mm/Hg, and a repeat reading during the visit showed a decrease to 105 mm/Hg. The Veteran also reported consuming an energy drink on the way to his appointment. In any event, this single reading does not meet the requirement that an elevated reading must be confirmed by readings taken two or more times on at least three different days. The VA treatment records also show that the Veteran’s diastolic pressure is normally within the range of 70 to 109 mm/Hg (including 76 mm/Hg in June 2012, 84 mm/Hg in December 2013, 71 mm/Hg in January 2014, 82 mm/Hg in March 2014, 109 mm/Hg in December 2015, 99 mm/Hg in March 2016, 93 mm/Hg in January 2017, 70 mm/Hg in March 2017, and 90 mm/Hg in September 2018). The Board finds that the Veteran’s diastolic pressures are not predominately measured at above 110 mm/Hg, and therefore do not meet the criteria for a rating in excess of 10 percent. The Board also notes that the VA treatment records from August 2018 include notation of a phone call from the Veteran’s mother expressing concern for him. She reported that during a recent visit, his pulse was racing and his blood pressure was “300/100 something,” but she did not know the exact number. The Board finds this evidence to be of little probative value. While the Veteran’s mother is competent to provide evidence regarding her observation of a blood pressure reading, she was unsure of the number. Moreover, there is no evidence regarding her medical training and ability to ensure that a blood pressure reading is taken properly. Additionally, there is no evidence that this reading was confirmed by readings taken two or more times on at least three different days. Further, a systolic pressure of 300 mm/Hg is not supported by the medical evidence in the VA treatment records during the course of appeal, which never show a reading in excess of even 200 mm/Hg. Lastly, a diastolic pressure of 100 mm/Hg does not meet the criteria for a rating in excess of 10 percent. Accordingly, the Board concludes that the preponderance of the evidence is against the claim for service connection for hypertensive vascular disease, there is no doubt to be otherwise resolved, and the Veteran’s claim for hypertensive vascular disease is denied. B.T. KNOPE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Page-Nelson, Associate Counsel