Citation Nr: 1807813 Decision Date: 02/07/18 Archive Date: 02/20/18 DOCKET NO. 13-27 997 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUE Entitlement to an initial compensable evaluation for service-connected hypertension. REPRESENTATION Appellant represented by: Veterans of Foreign Wars of the United States WITNESS AT HEARING ON APPEAL Appellant ATTORNEY FOR THE BOARD A. Barner, Counsel INTRODUCTION The Veteran had active military service in the United States Navy from April 1961 to April 1965. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a February 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. The Veteran was afforded a Board video conference hearing before the undersigned in December 2012. New evidence was received along with a waiver of review by the agency of original jurisdiction. 38 C.F.R. §§ 19.37, 20.1304 (2017). The Board has considered the said evidence in its decision. A motion to advance this appeal on the Board's docket has been raised by the Veteran's representative at the hearing before the Board, and the undersigned is granting the motion and advancing the appeal on the docket based upon advanced age. 38 U.S.C. § 7107(a)(2) (West 2012); 38 C.F.R. 20.900(c) ("advanced age" is defined as 75 or more years of age) (2017). FINDING OF FACT The Veteran's hypertension more nearly approximates the criteria for a 10 percent rating with systolic pressure predominantly 160 or more; however, it has not been productive of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSION OF LAW With resolution of all reasonable doubt in favor of the Veteran, the criteria for an initial 10 percent rating, but no more, for hypertension have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.159, 4.7, 4.21, 4.104, Diagnostic Code 7101 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION The requirements of the Veterans Claims Assistance Act of 2000 (VCAA) have been met as to this issue. As service connection, an initial rating, and an effective date have been assigned, the notice requirements of 38 U.S.C.A. § 5103(a) have been met. VA has fulfilled its duty to assist the Veteran in obtaining identified and available evidence needed to substantiate this claim. The Veteran was afforded a VA examination most recently in June 2016, and the report contains sufficiently specific clinical findings and informed discussion of the pertinent history and clinical features of the disability on appeal, and is adequate for purposes of this appeal. The Veteran was provided the opportunity to present pertinent evidence and testimony, to include at a December 2017 hearing before the Board. In sum, there is no evidence of any VA error in notifying or assisting him that reasonably affects the fairness of this adjudication. 38 C.F.R. § 3.159(c). Indeed, the Veteran has not suggested that such an error, prejudicial or otherwise, exists. The case is ready for adjudication on the instant matter. Disability ratings are determined by application of the criteria set forth in VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code (DC), the higher rating is assigned if the disability more closely approximates the criteria for the higher rating; otherwise, the lower rating applies. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate ratings may be assigned for separate periods of time based on the facts found. In other words, the ratings may be staged. Fenderson v. West, 12 Vet. App. 119 (1999). Here, however, as shown below, the evidence warrants a uniform 10 percent rating. The Veteran's service-connected hypertension is currently evaluated as noncompensably disabling since February 9, 2011, pursuant to 38 C.F.R. § 4.104, DC 7101. Under DC 7101, a 10 percent rating is assigned for hypertension when diastolic pressure is 100 or more; or when systolic pressure is predominantly 160 or more; or when there is a history of diastolic pressure predominantly 100 or more and continuous medication for control is required. A 20 percent rating is assigned when diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 40 percent rating is assigned when diastolic pressure is predominantly 120 or more, and a 60 percent rating is assigned when diastolic pressure is predominantly 130 or more. There are three notes to 38 C.F.R. § 4.104, Diagnostic Code 7101. Note (1) provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Note (2) requires the evaluation of hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3) states that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. The Board emphasizes that more than one blood pressure reading is not required for evaluation purposes for rating hypertension under VA regulations. See Gill v. Shinseki, 26 Vet. App. 386, 391 (2013) (holding that the need for a specific number of blood pressure readings over multiple days is not required for determining disability evaluation, as the need for multiple blood pressure readings pertains only to the confirmation of the existence of hypertension). The evidence warrants a 10 percent evaluation, but no higher, for hypertension under Diagnostic Code 7101. 38 C.F.R. § 4.7 Even with his medication, the Veteran has exhibited elevated systolic pressure (top number) 160 or more, which is supportive of a 10 percent rating under Diagnostic Code 7101. VA treatment records show that the Veteran's blood pressure readings remain elevated even with the use of medications. The Veteran has variously been prescribed medications to include Lisinopril, Furosomide, Spironolactone, Metropolol, Atenolol, Verapamil, and Hydralazine in an attempt to control his blood pressure. In March 2012, the Veteran contended that his blood pressure readings would be above 100 diastolic and 160 systolic in the absence of medication that he took throughout the day. Examples of elevated blood pressure readings even while on medications for hypertension, include a November 2011 reading of 141/62 and a December 2011 VA blood pressure reading of 170/70. August 2012 readings showed that the Veteran's blood pressure ranged from 146 to 147 systolic/ 62 diastolic. July 2013 blood pressure reading was of 132/57. In January 2014 the Veteran's blood pressure was 127/79, and in March 2014 it was 177/74. November 2014 readings ranged from 106 to the 120s for systolic, and in the 50 to 60s for diastolic. January 2015 blood pressure reading was 141/63. Blood pressure readings ranging from September to October 2016 showed systolic blood pressure was no greater than 146, and diastolic not more than 65; and from October to November 2016 the systolic high was 153, and diastolic was 62. From November to December 2016 an average of the blood pressure readings was 131/54, and from December 2016 to January 2017 the average was 124/51. Although ranges from February to March 2017 of blood pressure readings on a home monitor were no more than 135 for systolic, and 62 diastolic, a March 2017 reading was 170/72. An April 2017 VA treatment note indicated that blood pressure was higher when the Veteran was at the hospital, but had been in the 110-120/80 range. An October 2017 treatment note showed blood pressure reading of 151/64, and a November 2017 treatment note indicated the Veteran's blood pressure reading was 146/68. June 2016 VA examination observed that from November 2014 to March 2016 the Veteran's blood pressure ranged from a low of 123/50 to a high of 175/73. The examiner noted the Veteran's treatment included continuous medication for hypertension-specifically, Lisinopril, Furosomide, Spironolactone, and Metropolol. There was no history of diastolic elevation predominantly 100 or more. The blood pressure readings on examination were 162/75; 160/70; and 162/75, such that the average was 161/73. During the December 2017 hearing the Veteran testified that even with taking medication four times daily his blood pressure was not consistently controlled. The Veteran reported that when he missed his blood pressure medications he experienced lightheadedness and dizziness. The Board has carefully considered the Veteran's pleadings regarding his symptoms, which include lightheadedness, dizziness and elevated blood pressure readings even while on medication. In this case, the Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through the senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran's disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which the disability is evaluated. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The fact that the Veteran intermittently had systolic blood pressure readings above 160, and the June 2016 VA examination showed systolic blood pressure in the 160s, is sufficient to more nearly approximate the criteria for the 10 percent evaluation. As such, a 10 percent rating, but no more, is warranted under DC 7101. As the Veteran's diastolic pressure has not been predominantly 110 or more, or his systolic pressure has not been predominantly 200 or more, the next higher, 20 percent rating, is not warranted under DC 7101. Staged ratings have been considered, but are not warranted. Lastly, throughout his appeal, the Veteran has indicated that without continuous medication, his hypertension elevates to higher levels. On this issue, the Board acknowledges the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, the Court subsequently determined that for hypertension, the plain language of Diagnostic Code 7101 contemplates the effects of medication and, thus, the Jones case is not applicable to cases involving hypertension. McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). That is, the rating criteria for hypertension already takes into account the ameliorative effects of medication. Id. As such, the Board is not required to discuss the ameliorative effects of medication when evaluating whether the Veteran is entitled to a rating over 10 percent for hypertension. Thus, in light of the foregoing, and resolving all reasonable doubt in the Veteran's favor, the Board finds that the Veteran's service-connected hypertension more nearly approximates an initial 10 percent disability rating, but no higher. 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) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER An initial 10 percent rating, but no higher, for service-connected hypertension, is granted, subject to the laws and regulations governing the award of monetary benefits. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs