Citation Nr: 18158006 Decision Date: 12/14/18 Archive Date: 12/13/18 DOCKET NO. 16-33 915 DATE: December 14, 2018 ORDER Entitlement to a rating in excess of 10 percent for service-connected hypertension is denied. REMANDED Entitlement to service connection for sleep apnea is remanded. FINDING OF FACT The Veteran’s hypertension was not manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for a rating higher than 10 percent for hypertension have not been satisfied. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.3, 4.104, Diagnostic Code 7101 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from November 1971 to November 1996. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a November 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). 1. Entitlement to a rating in excess of 10 percent for service-connected hypertension is denied. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 3.321; see generally, 38 C.F.R. § Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10 (2017). The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected disabilities in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degrees of disability 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. 38 C.F.R. § 4.1. Diagnostic codes in the rating schedule identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. All reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3; see also 38 C.F.R. § 3.102. Because the level of disability may have varied over the course of the claim, the rating may be “staged” higher or lower for segments of time during the period under review in accordance with such variations. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). A claimant is entitled to the benefit of the doubt when there is an approximate balance of positive and negative evidence on any issue material to the claim. 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran’s service-connected hypertension has been assigned a 10 percent rating under DC 7101 for the entire appellate period. 38 C.F.R. § 4.104. Under DC 7101, a 10 percent evaluation is assigned for hypertensive vascular disease with diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. A 10 percent rating is also assigned when the individual has a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Id. A 20 percent evaluation is assigned when diastolic pressure is predominantly 110 or more, or systolic pressure predominantly 200 or more. Id. A 40 percent evaluation is assigned when diastolic pressure is predominantly 120 or more. Id. A maximum 60 percent rating is assigned when diastolic pressure is predominantly 130 or more is rated 60 percent disabling. Id. Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. Id., Note (1). The term hypertension means that the diastolic blood pressure is predominantly 90 mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160 mm. or greater with a diastolic blood pressure of less than 90 mm. Id.; but see Gill v. Shinseki, 26 Vet. App. 386, 391 (2013) (holding that the definition in Note (1), including the requirement that hypertension be confirmed by readings taken two or more times on at least three different days, pertains to establishing the diagnosis rather than evaluating the severity of hypertension under the rating criteria). Throughout the appellate period, the Veteran’s diastolic blood pressure was not predominantly 110 or more, and his systolic blood pressure was not predominately 200 or more. Specifically, his VA treatment records reflect readings of 139/93 and 120/85 in November 2014 and of 138/96 and 133/99 in February 2016. On VA examination in October 2014, his blood pressure was recorded as 136/87, 121/92 and 131/93, with an average of 129/90. More recently on VA examination in August 2016, the Veteran’s blood pressure was recorded as 130/88, 122/84 and 124/83, with an average of 125/85. The record does not otherwise show that the Veteran’s diastolic or systolic blood pressure readings satisfied the criteria for a 20 percent rating or higher, and the Veteran has not asserted that his blood pressure satisfies those criteria. As such, the criteria for the assignment of a 20 percent rating under DC 7101 have not been met or more nearly approximated. See 38 C.F.R. § 4.7 The Veteran asserted in a February 2015 letter that, “the fact that [he has] been controlling [his] blood pressure through persistent medication for over two decades,” justifies an increased rating. However, the rating criteria for hypertension under DC 7101 contemplate the effects of medication. McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications). Accordingly, the criteria for a rating higher than 10 percent for hypertension are not satisfied. See 38 C.F.R. § 4.104, DC 7101. Because the preponderance of the evidence weighs against a higher rating, the benefit-of-the-doubt rule does not apply. See 38 U.S.C. 5107; 38 C.F.R. § 3.102. REASONS FOR REMAND 1. Entitlement to service connection for sleep apnea is remanded. The Veteran asserts that his sleep apnea, diagnosed in 2003, is connected to his service. Specifically, he asserts that his sleep apnea had presented while in service and was the cause of his already service-connected hypertension, which was diagnosed in 1993. In a January 2015 letter, the Veteran’s private practitioner D.H., M.D. opined that, “it is not unreasonable to think that he had [s]leep [a]pnea at the time of the [h]ypertension diagnosis and that it was causative/contributory to the [h]ypertension.” The VA examiner in October 2014 concluded that “the condition claimed was less likely than not incurred in or caused by the claimed in-service injury, event, or illness.” However, the examiner was asked to determine whether the Veteran’s sleep apnea was caused by his hypertension. The examiner also indicated that the Veteran’s being overweight was a more likely cause of his sleep apnea. The Veteran weighed 131 pounds upon enlistment in September 1971, and weighed 202 pounds in May 1994, shortly after he was diagnosed with hypertension, which is a weight gain of 70 pounds. It is possible, then, that the Veteran’s weight gain in service could be sufficient to indicate that he would have developed sleep apnea in service. Accordingly, the Veteran’s claim must be remanded for a new medical opinion concerning his sleep apnea. The matter is REMANDED for the following action: 1. Obtain the Veteran’s updated VA treatment records. 2. Next, obtain a medical opinion from an appropriate examiner, which is formed after review of the entire claims file (including this remand), on the following: (a) Whether it is at least as likely as not (50% or greater probability) that the Veteran’s sleep apnea began in service or is related to any incident of service? • In providing this opinion, the examiner should consider that the Veteran weighed 131 pounds upon enlistment in September 1971 and weighed 202 pounds in May 1994, shortly after he was diagnosed with hypertension, which is a weight gain of 70 pounds in service. • The examiner should also acknowledge and consider the January 2015 letter from D.H., M.D. stating that medical studies show that sleep apnea can be a causative or contributing factor to hypertension, and that therefore, it is possible that the Veteran had sleep apnea during service at the time of his hypertension diagnosis and that it was causative/contributory to his hypertension. The examiner should also provide an opinion on the following: (b) Whether it is at least as likely as not (50% or greater probability) that the Veteran’s sleep apnea was aggravated (i.e., worsened by) his service-connected hypertension? The examiner must provide a complete rationale for his opinions. P.M. DILORENZO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Haas, Associate Counsel