Citation Nr: 18126173 Decision Date: 08/14/18 Archive Date: 08/14/18 DOCKET NO. 15-04 839 DATE: August 14, 2018 ORDER An initial compensable rating for hypertension is denied. An initial compensable rating for hepatitis C is denied.   FINDINGS OF FACT 1. The Veteran’s hypertension has not been manifested by diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more and requiring continuous medication. 2. The Veteran’s hepatitis C has not caused symptoms such as intermittent fatigue, malaise, and anorexia, or any incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain). CONCLUSIONS OF LAW 1. The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.104, Diagnostic Code (DC) 7101. 2. The criteria for a compensable rating for hepatitis C have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.114, DC 7354. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1979 to September 1992 and from February 2003 to September 2003 and his decorations include the Combat Medical Badge. He also had service in the Army Reserves. The case is on appeal from a May 2014 rating decision. In April 2014, the Board of Veterans’ Appeals (Board) granted service connection for hypertension and hepatitis C. Additional evidence was received subsequent to the January 2015 statement of the case (SOC), including VA treatment records. The Board finds that the additional evidence is not pertinent to the claims. Thus, a remand for an SSOC is not necessary for these two claims. See 38 C.F.R. § 20.1304(c). The record contained confusion regarding the representative of record, as it did not clearly indicate which organization is currently representing the Veteran. In June 2018, the Board sent to the Veteran a letter requesting clarification as to his representation. The letter indicated that if no response was received from either the Veteran or his new representative within 30 days, VA would assume that the Veteran is represented by the Disabled American Veterans (DAV), and proceed with adjudication. As no response to the letter has been received, consistent with the terms therein, the indicated VSO is recognized as the Veteran’s representative. The Veteran indicated in the January 2015 substantive appeal that no hearing was requested; however, he also indicated a Travel Board hearing was requested. After a June 2018 letter was sent to the Veteran for clarification, he submitted a later June 2018 statement withdrawing his request for a hearing. Thus, the Board finds that his hearing request has been withdrawn. Increased Rating Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 1. An initial compensable rating for hypertension The Veteran is presently rated under 38 C.F.R. § 4.104, DC 7101 for his hypertension. This code provides for a 10 percent rating for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. Lastly, a 60 percent rating is assigned for diastolic pressure predominantly 130 or more. The Veteran contends that his hypertension warrants a compensable rating. He was afforded a February 2009 VA examination in which the Veteran was prescribed medication for his elevated blood pressure. The examiner noted continuous medication is needed to control his hypertension. Testing revealed blood pressure readings of 108/72, 119/78 and 124/81. A private medical record from July 2010 reported that the Veteran had received treatment for high blood pressure in December 2003, including a reading of 150/95. He was afforded an October 2010 VA examination in which he reported worsening hypertension. The examiner noted continuous medication is required for the disorder and testing revealed blood pressure readings of 138/88, 136/86 and 138/88. As noted, the Board granted service connection for hypertension in April 2014. Thereafter, the Veteran underwent a December 2014 VA examination in which he reported systolic readings between 120 and 132 and diastolic readings between 90 and 94. She reported the Veteran requires continuous medication for control of his hypertension. Blood pressure testing revealed 145/91, 140/90 and 139/89. The Board notes the Veteran received VA treatment during the appeal period and a January 2011 VA treatment record showed blood pressure of 120/68. A January 2013 record revealed blood pressure of 117/76. After a careful review of the evidence, the Board finds there are no blood pressure readings supportive of a compensable rating. A blood pressure reading is a medical test that is the most probative evidence of the actual blood pressure and none showed diastolic pressure of 100 or more, or systolic pressure of 160 or more. The Board notes 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, VA has contemplated the effects of medication as a factor to be considered when rating hypertension under DC 7101. Thus, any ameliorative effects of the Veteran’s blood pressure medication were not discounted in arriving at this decision. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (holding that Jones does not apply to DC 7101). There were three VA examination reports which revealed blood pressure readings, as well as VA treatment records. As noted, none of these records showed a blood pressure reading of diastolic pressure 100 or more or systolic pressure 160 or more. Whether blood pressure readings would increase to higher levels of impairment without medication is not part of this analysis. Additionally, veterans in general should not be encouraged to guess what their symptoms might be without medication or be encouraged not to take their medication to document potentially worsening symptoms. See McCarroll, 28 Vet. App. at. 278. Therefore, while the Veteran is on continuous medication to control his hypertension, a 10 percent rating requires that he be on continuous medication and have a history of diastolic pressure predominantly 100 or more. Although an earlier record from November 2002 showed blood pressure of 142/104, 146/106 and 130/92, the evidence does not show diastolic blood pressure readings of predominantly 100 or higher during the appeal period. Consequently, the preponderance of the evidence is against a finding of a compensable rating for the Veteran’s hypertension and the increased rating claim must be denied. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. 2. An initial compensable rating for hepatitis C The Veteran was awarded service connection for hepatitis C by the Board in April 2014 and the RO awarded a noncompensable rating in May 2014, under DC 7354. Under DC 7354, a 10 percent rating is warranted when there is intermittent fatigue, malaise, and anorexia or incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. Note 2 under DC 7354 provides that for purposes of evaluating conditions under DC 7354, “incapacitating episode” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. See Note 2 following 38 C.F.R. § 4.114. Turning to the evidence, the Veteran underwent a VA examination in February 2009 in which he indicated after being diagnosed with hepatitis C, he received medication to treat the disease. He stated his gastroenterologist told him the treatment and medication properly controlled the disorder. The examiner noted his condition had improved and there was no current treatment at that time. The Board notes the Veteran reported symptoms of nausea, vomiting and right upper quadrant pain, but that those were related to his acute and chronic cholecystitis and not his hepatitis C. The Veteran was afforded an October 2010 VA examination in which the Veteran denied pain, fatigue or weakness due to his hepatitis and the disorder was listed as stable. The examiner also noted no incapacitating episodes during the prior 12-month period. VA treatment records from January 2011 and May 2013 indicated no abdominal pain, nausea, vomiting, diarrhea or constipation reported by the Veteran. He was afforded a December 2014 VA examination in which the examiner indicated there were some recurrent elevations of liver enzymes, but a CT scan from September 2013 revealed no significant abnormalities. She indicated the Veteran does not require continuous medication for control of his hepatitis and he has no signs or symptoms attributable to the liver disorder. Based on the foregoing evidence, the Board finds that the criteria for a compensable rating for the Veteran’s hepatitis C have not been met. Evidence suggestive of a 10 percent rating for hepatitis C includes intermittent fatigue, malaise, and anorexia, or incapacitating episodes, including nausea, vomiting, arthralgia and right upper quadrant pain. However, the most probative evidence of record, including the December 2014 VA examination report, shows the Veteran’s hepatitis C has been treated effectively and is asymptomatic. In sum, the medical evidence of record suggests the Veteran’s hepatitis C is nonsymptomatic. As such, the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Accordingly, an initial compensable rating for hepatitis C is not warranted. STEVEN D. REISS Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel