Citation Nr: 1823409 Decision Date: 04/20/18 Archive Date: 04/26/18 DOCKET NO. 14-29 389 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial compensable disability rating for hypertension. REPRESENTATION Appellant represented by: Texas Veterans Commission ATTORNEY FOR THE BOARD J.R. Bryant INTRODUCTION The Veteran had active service with the U.S. Marine Corps from July 1968 to January 1970. He was awarded a Purple Heart and Combat Action Ribbon. This matter is before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. As originally developed, the Veteran's appeal included the additional issue of entitlement to service connection for posttraumatic stress disorder (PTSD) which was later granted in a July 2014 rating decision. The Veteran has not initiated an appeal with respect to the initial ratings or effective dates assigned for this now service-connected disability and has provided no additional argument, therefore, the issue is not considered part of the current appeal. Accordingly, consideration herein is limited to the remaining issue that the Veteran wishes to pursue. FINDING OF FACT The Veteran's hypertension requires continuous medication, but has not shown diastolic readings predominantly 100 or more either historically or during the course of his appeal, nor has he shown systolic readings predominantly 160 or more. CONCLUSION OF LAW The criteria for an initial compensable disability rating for hypertension are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.31, 4.104 Diagnostic Code (DC) 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION Duties to Notify and Assist VA provided the Veteran with 38 U.S.C. § 5103(a)-compliant notice in correspondence dated August 6, 2010 and September 30, 2010. The record also shows that VA has fulfilled its obligation to assist the Veteran in developing the claim. All known and available records relevant to the issue on appeal have been obtained and associated with the Veteran's claims file; and he has not contended otherwise. The duty to assist also includes providing a medical examination or obtaining a medical opinion when such is necessary to make a decision on the claim, as defined by law, Green v. Derwinski, 1 Vet. App. 121 (1991). Here, the Board has also considered that the Veteran has not been afforded VA examination of his hypertension since 2013, but finds that the medical evidence of record in this case is not too old to adequately evaluate this disability. See Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (another VA examination is not warranted based on the mere passage of time). The Court noted that a factor to consider was whether the submission or identification of additional lay or medical evidence raised the question of whether the medical evidence of record was sufficient to render a decision on the claim. In this case, no competent medical evidence, by or on behalf of the Veteran, has been submitted which suggests that his service-connected hypertension has become worse in the period of time since the last evaluation. Given the lack of pertinent clinical findings since the 2013 VA examination and the fact that the history provided by the Veteran during that examination, and considered by the examiner, is consistent with that reflected in the record, the examiner's report (which reflects not only the Veteran's history, but complaints, clinical findings and diagnoses) is sufficient for rating purposes. 38 C.F.R. § 4.2 (2017); Abernathy v. Principi, 3 Vet.App. 461 (1992). Consequently a new VA examination to rate the severity of his service-connected hypertension is not warranted. The Veteran has not raised any issues with the duty to notify or duty to assist. Law and Analysis The Veteran is seeking higher disability rating for his service-connected hypertension. Disability ratings are determined by comparing a veteran's present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. Part 4 (2017). When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran's hypertension is currently evaluated as noncompensably disabling under DC 7101, which evaluates impairment from hypertensive vascular disease (hypertension and isolated systolic hypertension). For diastolic pressure predominately 100 or more or systolic pressure predominantly 160 or more or; minimum evaluation for a history of diastolic blood pressure predominately 100 or more requiring continuous medication for control, a 10 percent rating is assigned. A 20 percent disability evaluation requires diastolic readings of predominantly 110 or more, or systolic readings of 200 or more. A 40 percent disability evaluation requires diastolic readings of predominantly 120 or more. A 60 percent disability evaluation requires diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104 (2017). Under the provisions of 38 C.F.R. § 4.31, in every instance where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. In connection with the Veterans claim are VA outpatient treatment records dated between 2003 and 2016, which show numerous (more than 30) systolic readings ranging from 109 to 138 and diastolic readings ranging from 57 to 81. The Veteran was noted to have good blood pressure control and reported systolic pressures in the 140s and 150s with blood pressure checks done at home. During VA examination in November 2010, the Veteran's blood pressure readings were 136/70, 138/72, and 136/80. When examined by VA in April 2013, the examiner noted the Veteran had been diagnosed with hypertension in 2004 was on the medication Lisinopril daily and did not have a history of a diastolic pressure elevation to predominantly 100 or more. Current blood pressure readings were 144/80, 137/76 and 121/73. Subsequent readings were recorded between 2013 and 2016, none of which showed a diastolic of 100 or more or systolic of 160. The most recent blood pressure readings taken during VA outpatient evaluations were 119/72 in April 2015, 125/63 in August 2015, and 118/64 in August 2016. Based on a review of the above evidence, the Board concludes that entitlement to a compensable evaluation for hypertension is not warranted. Although the Veteran is on continuous medication to manage his hypertension, a 10 percent rating also requires a history of diastolic pressure predominantly 100 or more. In this case, out of the multiple blood pressure readings recorded, none are 100 or higher. The criteria also allow for an increased evaluation if the systolic pressures are predominately 160 or higher. Here, the highest systolic pressure shown is 138 out of numerous readings over the years, even considering the Veteran's reports of systolic readings at home. Despite his report of higher systolic readings, the evidence does not demonstrate any at 160. Also, as noted above, while the most recent VA examination was in 2013, the Board does not find another evaluation is required. Additional blood pressure readings have been obtained since then and neither the Veteran nor his representative has reported that the blood pressure readings have worsened. There is also no indication of an increase in medication. In this regard, the mere passage of time does not necessitate a new VA examination. see Palczewski, supra. The Board acknowledges that it 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. See Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012). However, where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (the Board may properly consider ameliorative effects of blood pressure medication in adjudicating claims for increased ratings for hypertension, because medication is specifically mentioned in DC 7101). The preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). ORDER An initial compensable disability rating for hypertension is denied. ____________________________________________ Thomas H. O'Shay Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs