Citation Nr: 18156795 Decision Date: 12/11/18 Archive Date: 12/10/18 DOCKET NO. 13-16 531 DATE: December 11, 2018 ORDER Entitlement to an initial compensable rating for hypertension on an extraschedular basis is denied. FINDINGS OF FACT 1. During the period on appeal, the Veteran’s hypertension has not manifested with diastolic pressure predominately 100 or more; systolic pressure predominantly 160 or more; or a history of diastolic pressure predominately 100 or more, requiring continuing medication for control. 2. The severity and symptomatology of the Veteran’s hypertension, even when considering the combined effects of his service-connected disabilities, is not exceptional or unusual and has not resulted in marked interference with employment or frequent periods of hospitalization. CONCLUSION OF LAW The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1154(a), 1155, 5107(b); 38 C.F.R. §§ 3.321, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1966 to May 1970. A November 2016 memorandum decision of the Court of Appeals for Veterans Claims (Court) vacated the portion of an April 2015 Board decision that denied a referral for extraschedular consideration for hypertension. The Court affirmed the portion of that decision that denied a total disability rating based on unemployability (TDIU), noting that the Veteran presented no evidence of unemployability. Sufficiency of VA Examination In the June 2013 substantive appeal (VA Form 9), the Veteran asserted that the April 2008 VA examination was inadequate. The examiner described the Veteran as a “small-framed African American Male,” whereas the Veteran described himself as a “medium-framed Caucasian male.” The Veteran expressed concern that the clinical findings may be inaccurate as well do to the examiner’s inaccurate description of the Veteran. Acknowledging the apparent unreliability of this April 2008 VA examiner’s report, VA provided a new VA examination in February 2014, the results of which have been included in the claims file for review. The February 2014 examination involved a review of the Veteran’s medical records; a thorough, in-person examination; and clinical findings based on the above. The Board finds that the February 2014 examiner is a qualified medical professional who has the training, knowledge, and expertise on which he relied to conduct the February 2014 examination and to provide clinical findings used in deciding the claim. Thus, the Board finds the February 2014 VA examination adequate for rating purposes. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007).   1. Entitlement to an initial compensable rating for hypertension on an extraschedular basis Law Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations also provide that it is not necessary for all the individual criteria to be present as set forth in the Rating Schedule, but that findings sufficient to identify the disability and level of impairment be considered. 38 C.F.R. § 4.21. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominately 100 or more or systolic pressure predominantly 160 or more, or, minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating requires diastolic readings of predominantly 110 or more or systolic readings of 200 or more. A 40 percent disability rating required diastolic readings of predominantly 120 or more. A 60 percent disability rating required diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4104, Diagnostic Code 7101. Under a previous version of 38 C.F.R. 3.321(b)(1), an extraschedular rating could also be assigned based on the combined effect of multiple service-connected disabilities. Johnson v. McDonald, 762 F.3d 1262 (Fed. Cir. 2014). 38 C.F.R. § 3.321(b)(1) has since been amended, effective January 8, 2018, to clarify that extraschedular ratings are not available based on the combined effects of multiple disabilities. However, because the Veteran’s case was already before the Board at the time of the amendment, and because the Court’s memorandum decision ordered it, the Board will consider the combined effects of the Veteran’s hypertension and PTSD. Schedular For the entire initial rating period, the Veteran has been in receipt of a noncompensable (zero percent) rating under Diagnostic Code 7101 for hypertensive vascular disease. 38 C.F.R. § 4.104. Although the schedular criteria do not specifically outline any criteria for a noncompensable rating, the Board notes that a zero percent evaluation is assigned when the requirements for a compensable evaluation are not met pursuant to 38 C.F.R. § 4.31. After review of all the lay and medical evidence of record, the Board finds that the preponderance of the competent evidence of record is against a finding that a compensable evaluation for the Veteran’s hypertension disability is warranted under Diagnostic Code 7101 at any point during the period under appeal. VA medical records reflect that the Veteran has received continuous medication for his hypertension during the entire period under appeal. While the VA treatment records dated since 2009 do show some fluctuation in blood pressure during the appeal period these records do not reflect diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. With regard to the Veteran’s elevated diastolic/systolic blood pressure readings, the Veteran was afforded a VA examination in February 2014. The examination report indicated that Veteran’s blood pressure readings were 120/92 on December 28, 2012; 138/94 on March 1, 2013; and 136/90 on June 7, 2013. VA outpatient treatment records show the Veteran’s blood pressure reading was 163/75 in February 2017 and 161/88 in August 2017. Overall, the Veteran’s blood pressure readings documented on the February 2014 VA examination report and subsequent readings in February and August 2017 do not indicate hypertensive blood pressure readings that were predominately diastolic readings of 100 or more or systolic readings of 160 or more. The Board has considered the Veteran’s reports that his hypertension disability has worsened and his medication was increased twice during the pendency of his appeal. The Veteran has also asserted that his history of hypertension before he was put on medication, despite the lack of records, likely included diastolic pressure predominantly over 100. While the Veteran is competent to report his symptoms as experienced, he is not competent to opine as to the likely level of his blood pressure reading decades in the past without medical records to support these assertions. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Even if such an estimate is possible, it would require specialized training and medical knowledge that the Veteran is not shown to have. While the medical records in the claims file contain occasionally raised blood pressure readings as noted above, these appear to be outliers, with the Veteran’s blood pressure reading predominantly below 100 diastolic and 160 systolic. Extraschedular The February 2014 VA examination noted that an October 2013 echocardiogram (echo) showed left ventricular hypertrophy (LVH). The examiner stated that this LVH caused shortness of breath with mild exertion and made the Veteran constantly tired and weak, unable to perform physically strenuous tasks. Follow up echos from February 2015 and September 2015 did not show continued LVH and a February 2016 rating decision denied service connection for this condition. The Veteran has not provided evidence that these symptoms were caused by his hypertension, as opposed to his apparently transitory LVH. The Veteran has stated several times that he has night terrors and wakes sweating, short of breath, with his heart pounding. He stated that these symptoms resolve within a short time of waking. While the February 2014 VA examiner stated that it was possible that PTSD could aggravate hypertension in such a situation, it was impossible to confirm without blood pressure readings. In January 2017 the Veteran reported waking from a nightmare and taking his blood pressure with a reading of 145/45, which his treating doctor thought may have been a faulty reading. VA mental health records from July 2008 to June 2013 note nightmares as an ongoing but infrequent problem with the highest noted frequency of two times per month. VA obtained a February 2018 opinion from the Director of Compensation Service which considered the Veteran’s claim for an extraschedular rating. The Director considered the Veteran’s hypertension alone and as combined with the effects of his PTSD. First, the Director compared both the Veteran’s hypertension symptoms and PTSD symptoms to the relevant diagnostic codes and found that the established rating schedule criteria described the Veteran’s disability level and symptomatology, and neither disability caused frequent hospitalization or marked interference with employment. Regarding the combined impact of these disabilities, the Director again found that there was no indication that the combined effect of these disabilities presented an exceptional or unusual disability picture that would justify an extraschedular rating. The Director recommended denying an extraschedular rating on any basis. The Board finds that the two most probative pieces of evidence in favor of granting an extraschedular rating are the February 2014 VA examiner’s statement that LVH caused tiredness and weakness, and the Veteran’s statement that his night terrors cause an increase in his blood pressure. However, whether the diagnosis was a mistake or simply a temporary condition, the Veteran was denied service connection for LVH in February 2016 and did not appeal this decision, which is now final. An extraschedular rating cannot be granted for symptoms of a non-service-connected condition. The Veteran’s night terror episodes, while concerning, are reported to occur only one or two times per month, and the only reading we have during such an episode did not show diastolic pressure over 100 or systolic over 160. Even if this reading had been higher, and it was somehow shown that each incident caused a similar spike, the preponderance of the other readings in the record, taken over the same years the Veteran suffered from night terrors, show that the Veteran’s blood pressure remained predominantly under those lines for the entire period on appeal. For these reasons, the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating, including on an extraschedular basis and considering the combined effects of his service-connected disabilities. L. M. BARNARD Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Zimmerman, Associate Counsel