Citation Nr: 1817280	
Decision Date: 03/20/18    Archive Date: 03/30/18

DOCKET NO.  09-41 595	)	DATE
	)
	)

On appeal from the
Department of Veterans Affairs Regional Office in Waco, Texas


THE ISSUE

Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling.


REPRESENTATION

Appellant represented by:	Texas Veterans Commission


WITNESS AT HEARING ON APPEAL

The Veteran


ATTORNEY FOR THE BOARD

Christine E. Grossman, Associate Counsel


INTRODUCTION

The Veteran served in active duty in the U.S. Army from September 1977 to April 1986.

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating action of the Department of Veterans Affairs Regional Office (RO) in Waco, Texas.  In that decision, the RO denied an increased rating in excess of 10 percent for the Veteran's service-connected hypertension.

In June 2016, the Board remanded the issue of entitlement to an increased rating for hypertension, currently rated as 10 percent disabling to obtain a new VA examination to determine the current nature and severity of the Veteran's hypertension.  In September 2017, the Veteran was afforded a new VA examination.  The Board is satisfied there was substantial compliance with its remand orders.  See Dyment v. West, 13 Vet. App. 141 146 47 (1999); Stegall v. West 11 Vet. App. 268, 271 (1998).

The Veteran testified at a hearing before the undersigned Veterans Law Judge in January 2016.  A transcript of those proceedings is of record.

This appeal was processed using the Veterans Benefits Management System (VBMS) and Caseflow Reader paperless claims processing systems.  Accordingly, any future consideration of this Veteran's case should take into account the existence of these electronic records.


FINDING OF FACT

The Veteran's hypertension has not been manifested by diastolic pressure predominantly 110 or more, nor by systolic pressure predominantly 200 or more.


CONCLUSION OF LAW

The criteria for an evaluation in excess of 10 percent for hypertension are not met.  38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.85, Diagnostic Code 7101 (2017).  


REASONS AND BASES FOR FINDINGS AND CONCLUSION

Duty to Notify and Assist

Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument).

In sum, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication.  38 C.F.R. § 3.159(c).

Increased Rating for Hypertension

VA has adopted a Schedule for Rating Disabilities (Schedule) to evaluate service-connected disabilities.  See 38 U.S.C. § 1155; 38 C.F.R., Part IV.  Disability evaluations assess the ability of the body as a whole, the psyche, or a body system or organ to function under the ordinary conditions of daily life, to include employment.  38 C.F.R. § 4.10 (2017).  The percentage ratings in the Schedule represent the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The percentage ratings are generally adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the disability.  Id.

The Schedule assigns diagnostic codes (DCs) to individual disabilities.  DCs provide rating criteria specific to a particular disability.  If two DCs are applicable to the same disability, the DC that allows for the higher disability rating applies.  38 C.F.R. § 4.7.  Any reasonable doubt regarding the degree of disability is resolved in favor of the claimant.  38 C.F.R. § 4.3.  The Schedule recognizes that a single disability may result from more than one distinct injury or disease; however, rating the same disability or its manifestation(s) under different DCs - a practice known as pyramiding - is prohibited.  See 38 C.F.R. § 4.14 (2017).

In disability rating cases, VA assesses the level of disability from the initial grant of service connection or a year prior to the date of application for an increased rating and determines whether the level of disability warrants the assignment of different disability ratings at different times over the course of the claim, a practice known as "staged ratings."  See Fenderson v. West, 12 Vet. App. 119, 126 (1999); see also Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007) (holding that staged ratings may be warranted in increased rating claims).  Here, the Veteran's service-connected hypertension on appeal has not materially changed and a uniform evaluation is warranted.    

The Veteran is seeking a rating in excess of 10 percent for hypertension.  His hypertension is rated pursuant to 38 C.F.R. § 4.119, DC 7101, which assigns a 10 percent rating where diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more, or; an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control of the condition.  

Diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more is rated 20 percent disabling.  Diastolic pressure predominantly 120 or more is rated 40 percent disabling.  Diastolic pressure predominantly 130 or more is rated 60 percent disabling.

The Veteran believes that his hypertension has worsened.  In his January 2016 hearing, the Veteran stated he was currently experiencing a lot of sweating and nervousness related to his hypertension.  He also experienced dizziness and lightheadedness.

After reviewing the entire claims file, the Board finds that the Veteran's hypertension has not been 20 percent disabling based on the criteria described above.  Specifically, there has been no showing of diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  

VA and private medical treatment records prior to February 2013 confirm that the Veteran's blood pressure remained predominantly below those levels required for a 20 percent rating.  For instance, February and March 2010 records from the VA Medical Center in Waco, Texas show the Veteran's blood pressure (BP) readings ranged from 143/80 mmHg to 198/89 mmHg.  March and April 2012 records from Texas Health Fort Worth show isolated readings of the Veteran's BP were measured at 197/92 mmHg, 178/81 mmHg, 119/64 mmHg, and 169/79 mmHg.

In the Veteran's February 2013 VA examination for hypertension, the Veteran's BP readings were recorded at 140/70 mmHg, 142/72 mmHg, and 138/68 mmHg.  The examiner also indicated that the Veteran did not have a history of a diastolic BP elevation to predominantly 100 or more.

In the Veteran's September 2017 VA examination for hypertension, the Veteran's BP readings were recorded at 159/74 mmHg, 157/73 mmHg, and 162/80 mmHg.  The Veteran's average BP reading was 159/75 mmHg.  These readings fall short of the degree of disability contemplated by a 20 percent rating.

As the record demonstrates, the Veteran's diastolic blood pressure readings have been below 100mmHg, and certainly below 110mmHg, throughout the period at issue and his systolic blood pressure have been below 200mmHg.  As such, the Board cannot but conclude that the criteria for a 20 percent or higher rating under DC 7101 are not satisfied.  

While the Board is sympathetic with the Veteran's symptoms of dizziness and sweating, these do not indicate that his hypertension has increased to a level that would warrant a higher rating.

In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine, but finds that the preponderance of the evidence is against assignment of any higher rating for hypertension at any point pertinent to this appeal.  See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990).


ORDER

Entitlement to an increased rating for hypertension, currently rated as 10 percent disabling, is denied.








____________________________________________
GAYLE E. STROMMEN
Veterans Law Judge, Board of Veterans' Appeals



Department of Veterans Affairs