Citation Nr: 20003597 Decision Date: 01/15/20 Archive Date: 01/15/20 DOCKET NO. 13-28 051 DATE: January 15, 2020 ORDER Service connection for a low back disability is dismissed. A rating in excess of 30 percent for migraine headaches is dismissed. A rating in excess of 20 percent for hypertension prior to February 21, 2019 is denied. A rating of 10 percent for hypertension is granted for the period beginning February 21, 2019; a rating in excess of 10 percent from that date is denied. FINDINGS OF FACT 1. On November 19, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of this appeal is requested as to the issue of service connection for a low back disability. 2. On November 19, 2019, prior to the promulgation of a decision in the appeal, the Board received notification from the appellant that a withdrawal of this appeal is requested as to the issue of a rating in excess of 30 percent for migraine headaches. 3. Prior to February 21, 2019, the Veteran’s hypertension was not manifested by diastolic pressure predominantly 120 or more. 4. From February 21, 2019, the Veteran’s hypertension has objectively improved and has not been manifested by diastolic pressure that has been predominantly 110 or more, or in systolic pressure that has been predominantly 200 or more; he has been on continuous medication for control of hypertension, without objective demonstration of a history of diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the appeal by the appellant as to the issue of service connection for a low back disability have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204. 2. The criteria for withdrawal of the appeal by the appellant as to the issue of a disability rating in excess of 30 percent for migraine headaches have been met. 38 U.S.C. § 7105(b)(2), (d)(5); 38 C.F.R. § 20.204 3. For the period prior to February 21, 2019, the criteria for a rating in excess of 20 percent rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.3, 4.7, 4.14, 4.104, Diagnostic Codes 7101. 4. For the period beginning February 21, 2019, the criteria for a 10 percent rating, and no higher, for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 3.344, 4.3, 4.7, 4.14, 4.104, Diagnostic Codes 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1981 to June 1985. These matters are before the Board of Veterans' Appeals (Board) on appeal of August 2009 (migraines), March 2010 (back) and July 2010 (hypertension) rating decisions. In November 2015, the Board issued a decision that in pertinent part (1) restored a 20 percent rating for hypertension effective April 15, 2010, finding that a July 2010 rating decision reducing the rating to 10 percent was improper; (2) remanded the claims of a rating in excess of 30 percent for migraine headaches, a rating in excess of 20 percent for hypertension, service connection for a back disability, to include as due to the Veteran’s service connected right and left knee disabilities, service connection for a psychiatric disability and total disability rating based on individual unemployability (TDIU). On remand, the Agency of Original Jurisdiction (AOJ) issued a January 2017 rating decision restoring the 20 percent rating for hypertension effective from April 15, 2010. In a June 2019 rating decision, the AOJ granted service connection and a 70 percent rating for somatic symptom disorder from January 19, 2012; granted TDIU effective from the date he last worked October 8, 2014, and denied a rating in excess of 30 percent for migraines and a rating in excess of 20 percent for hypertension, as well as reduced the evaluation for hypertension to noncompensable effective from February 21, 2019. The Board notes that in November 2019, the Veteran’s representative submitted a notice withdrawing as power of attorney on behalf of the Veteran. However, after the AOJ has certified an appeal to the Board, a representative may not withdraw services as a representative in the appeal unless good cause is shown on motion. See 38 C.F.R. § § 20.6 (formerly § 20.608). As no motion has been submitted showing good cause, the representative’s request to withdraw is denied. Withdrawal of Appeals The Board may dismiss any appeal which fails to allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal at any time before the Board promulgates a decision. 38 C.F.R. § 20.204. Withdrawal may be made by the appellant or by his or her authorized representative. 38 C.F.R. § 20.204. In the present case, the appellant has withdrawn this appeal as to two issues: service connection for a low back disability and an increased rating for migraine headaches. Thus, there remain no allegations of errors of fact or law for appellate consideration as to these two issues. Accordingly, the Board does not have jurisdiction to review this part of the appeal and it is dismissed as to these two issues. Disability Evaluation Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). 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 C.F.R. § 4.3. Where there is a question as to which of two ratings shall be applied, the higher rating 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 Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). VA must then ascertain whether the evidence reflects an actual change in the disability and whether the examination reports reflecting such change are based on thorough examinations. Faust v. West, 13 Vet. App. 342 (2000). Rating agencies will handle cases affected by change of medical findings or diagnosis, so as to produce the greatest degree of stability of disability evaluations consistent with the laws and VA regulations governing disability compensation and pension. VA benefits recipients may be afforded greater protections under 38 C.F.R. § 3.344 (a) and (b), which sets forth the criteria for reduction of ratings in effect for five years or more, which stipulate that only evidence of sustained material improvement under the ordinary conditions of life, as shown by full and complete examinations, can justify a reduction and prohibit a reduction on the basis of a single examination. Brown v. Brown, 5 Vet. App. 413, 417-18 (1993). However, with respect to other disabilities that are likely to improve (i.e., those in effect for less than five years), re-examinations disclosing improvement in disabilities will warrant a rating reduction. 38 C.F.R. § 3.344 (c). Specifically, it is necessary to ascertain, based upon a review of the entire recorded history of the condition, whether the evidence reflects an actual change in disability and whether examination reports reflecting change are based upon thorough examinations. In addition, it must be determined that an improvement in a disability has actually occurred and that such improvement actually reflects an improvement in the veteran’s ability to function under the ordinary conditions of life and work. See Brown, 5 Vet. App. at 420-421; 38 C.F.R. § 3.344 (c). Finally, in determining whether a reduction was proper, the Board must focus upon evidence available to the RO at the time the reduction was effectuated, although post-reduction medical evidence may be considered in the context of evaluating whether the condition had actually improved. Dofflemyer v. Derwinski, 2 Vet. App. 277, 281-282 (1992). It should be emphasized, however, that such after-the-fact evidence may not be used to justify an improper reduction. Hypertension Service connection and a 20 percent rating for hypertension, effective from February 24, 2009, were granted in a June 2009 rating decision. The rating was based on findings in an April 2009 VA examination. The RO received additional evidence and a statement from the Veteran in early April 2010 and ordered another VA examination in April 2010. In the July 2010 rating decision on appeal, the RO reduced the rating to 10 percent effective April 15, 2010. In his September 2013 substantive appeal, the Veteran indicated he was seeking a rating in excess of 10 percent for hypertension. The 2015 Board decision restored the 20 percent rating effective from April 15, 2010, finding the reduction was improper, and remanded issue of an increased rating in excess of 20 percent for hypertension. On remand, the RO in June 2019 again reduced the rating from 20 percent, this time to noncompensable, effective from February 21, 2019. As noted by the Board in the 2015 decision, there are both procedural and substantive aspects of reductions of disability ratings. The procedural aspects primarily have to do with notice to the veteran of a proposed rating reduction and are specified at 38 C.F.R. § 3.105 (e). To the extent that there is a reduction in rating effective in February 2019, because the reduction did not change the Veteran's total or combined service-connected evaluation and did not reduce his benefits, the procedural requirements set forth in 38 C.F.R. § 3.105 (e) do not apply. Diagnostic Code 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating is warranted for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. The matter was remanded in 2015 because the examination record was deemed inadequate to assess the manifestations of hypertension. The Veteran was provided VA examination in December 2015 and February 2019. The VA examiners reviewed the record, interviewed the Veteran and conducted in-person examinations. In December 2015, three medications were noted for control and the Veteran displayed blood pressure readings of 165/105, 160/100 and 160/98. The examiner did not find a history of a diastolic elevation to predominantly 100 or more though. In February 2019, four medications were required for control of hypertension. The Veteran displayed blood pressure readings of 138/88, 138/90 and 136/90. The examiner did not find a history of a diastolic elevation to predominantly 100. However, it was noted that hypertension impacts his ability to work in that he must avoid movement to prevent increased symptoms. The Board has carefully reviewed all of the relevant medical evidence of record and finds that, prior to February 21, 2019, none show a diastolic pressure reading 120 or above. As such, the competent evidence of record shows that hypertension did not manifest by diastolic pressure that was predominantly 120 or more. The Board therefore finds that the criteria for entitlement to a rating in excess of 20 percent for hypertension were not met. However, as of that date, the record is uncontroverted as to the fact that there has been substantial improvement. Moreover, no earlier examination is more thorough than the February 2019 examination. It fully addresses symptoms and functional impact of hypertension. Also, as to headaches, the Board notes these are evaluated under the Veteran’s migraine headache condition and to consider this in relation to hypertension would violate the rule against pyramiding. 38 C.F.R. § 4.14. The evidence of record does not show that, from February 21, 2019, the Veteran had any systolic pressure readings of 160 or more. Also, the Veteran’s diastolic pressure readings were predominantly lower than 100. That said, it is clear from the Veteran’s history that he was prescribed multiple medications for hypertension, and there is insufficient documentation of record to suggest that his diastolic pressure would not have been predominantly 100 or more, or his systolic pressure predominantly 160 or more, but for the medication. Conversely. His blood pressure appears lower now that he is on four as opposed to three medications. The disability picture that emerges is that, from February 21, 2019, the Veteran had a hypertension disability that medication kept below the threshold represented by the criteria for a 10 percent rating. The Board does not find his assertion of needing to avoid movement consistent with the record. Indeed, he was told by a treatment provider in November 2016 that he should exercise several times a week to control his blood pressure. He himself was making plans to work out and work on his body. See May 2018 VA Integrative Health Note. In summary, the competent evidence of record shows that, (1) prior to February 21, 2019, the criteria for a rating in excess of 20 percent are not met and (2) as of that date, the condition improved and the criteria for a 10 percent rating and no higher are met. To the extent that the Veteran seeks ratings in excess of those provided for his service-connected hypertension, the preponderance of the evidence is against the appeal, the benefit-of-the-doubt doctrine is not for application, and the appeal must be denied. 38 U.S.C. § 5107 (b); see also Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. RIPPEL 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.