Citation Nr: A19001566 Decision Date: 09/25/19 Archive Date: 09/25/19 DOCKET NO. 190305-4707 DATE: September 25, 2019 ORDER Entitlement to an initial rating in excess of 10 percent for hypertension is denied. Entitlement to an effective date prior to August 09, 2011 for the grant of eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35 is denied. FINDINGS OF FACT 1. The Veteran’s service-connected hypertension is manifested by diastolic blood pressure readings which are predominantly below 110 and systolic blood pressure readings which are predominantly below 200. 2. Prior to August 09, 2011 a permanent and total disability rating was not in effect. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. 2. The criteria for an effective date prior to August 09, 2011 for the grant of eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35 have not been met. 38 U.S.C. §§ 1155, 3500, 3501, 5110; 38 C.F.R. §§ 3.1, 3.151, 3.340, 3.341, 3.400, 3.401. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Board notes that the rating decision on appeal was issued in March 2017. In August 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran served on active duty from April 1968 to December 1969. The Veteran selected the Higher-Level Review lane when he opted in to the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the December 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). The Veteran’s representative has argued that the issue of TDIU is raised as part and parcel of the appeal. However, the evidence does not suggest that the Veteran’s hypertension contributes to his alleged inability to work. As such, entitlement to TDIU is not raised. Rice v. Shinseki, 22 Vet. App. 447 (2009). We refer the representative to the rating decision that provides greater detail regarding the issue of TDIU. The AOJ has recognized that there is a new claim for TDIU, which is not on appeal. 1. Entitlement to an initial rating in excess of 10 percent for hypertension from January 6, 2005 to August 7, 2018 Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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. See 38 C.F.R. § 4.7. The Veteran’s disability has been evaluated under Diagnostic Code 7101 hypertensive vascular disease (hypertension and isolated systolic hypertension), which provides for a 60 percent rating for diastolic pressure predominantly 130 or more and a 40 percent disability rating for diastolic pressure is predominantly 120 or more. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent disability rating is warranted 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. 38 C.F.R. § 4.104, Diagnostic Code 7101. 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 is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. 38 C.F.R. § 4.104, Diagnostic Code 7101. The evidence of record during the period under consideration shows blood pressure readings of 152/75 in June 2006, 120/80 in October 2006, 143/78 in November 2006, 139/65 in December 2007, 155/74 in January 2010, 174/82 in February 2013, 144/63 in March 2014, 138/80 in July 2014, 160/74 in March 2015, and 160/66 in October 2017. At a July 2005 VA examination the Veteran’s blood pressure readings were 151/85, 175/79, and 160/82. At a VA examination in October 2010, the Veteran’s blood pressure readings were 164/79, 149/72, and 148/74. Readings at a September 2011 examination were 165/60, 161/64, and 153/71. At a February 2015 VA examination, the Veteran’s blood pressure readings were 202/82, 192/93, and 203/83. Based on the review of the evidence, the Board finds that the criteria for an evaluation higher than 10 percent for hypertension have not been met. The Veteran has not demonstrated diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more which is required for a higher 20 percent disability rating. See supra 38 C.F.R. § 4.104, Diagnostic Code 7101. His systolic pressure was only above 200 at the February 2015 VA examination. All other blood pressure readings taken during the period, including one month later in March 2015, show a systolic pressure under 200. At no point was the Veteran’s diastolic pressure above 100. Therefore, an evaluation in excess of 10 percent for hypertension is not warranted for any time during the appeal period. 2. Entitlement to an effective date prior to August 09, 2011 for the grant of eligibility to Dependents' Educational Assistance under 38 U.S.C. chapter 35 The Veteran contends that he is entitled to an effective date prior to August 9, 2011 for DEA chapter 35 benefits. Basic eligibility for DEA exists if a veteran has a permanent, total service-connected disability. 38 U.S.C. §§ 3500, 3501. A total disability may be assigned where the veteran’s service-connected disabilities are rated 100 percent disabling under the rating schedule, or if the veteran is unemployable due to service-connected disabilities. 38 C.F.R. §§ 3.340, 3.341. Permanence of total disability will be taken to exist when such impairment is reasonably certain to continue throughout the life of the disabled person. 38 C.F.R. § 3.340 (b). In this case, the effective date for the award of DEA benefits is August 9, 2011, the same date as the Veteran’s combined disability rating increased to 100 percent. As discussed above, the Board finds that the issue of TDIU prior to that date is not   properly before the Board, and the Veteran’s combined disability rating prior to that date was 80 percent. DEA benefits may not be awarded prior to the effective date of an award of a permanent and total disability rating. Therefore, the Veteran is not entitled to an effective date earlier than August 9, 2011, for entitlement to DEA benefits. 38 U.S.C. §§ 3501, 3510. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Creegan, Associate Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.