Citation Nr: 20006052 Decision Date: 01/24/20 Archive Date: 01/24/20 DOCKET NO. 19-13 493 DATE: January 24, 2020 ORDER Entitlement to an initial compensable disability rating for hypertensive vascular disease (hypertension) is denied. FINDING OF FACT The Veteran’s hypertension does not manifest as diastolic pressure predominantly 100 mm or more, as systolic pressure predominantly 160 mm or more, or with a history of diastolic pressure predominantly 100 mm or more requiring continuous medication for control. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for the Veteran’s hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1978 to May 1981 and from December 1985 to November 2007. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision of December 2018 issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that the Veteran previously filed a claim on this issue in January 2009, which was addressed in a previous rating decision of July 2009. The record reflects that the Veteran did not timely appeal the July 2009 rating decision, which subsequently became final. See 38 U.S.C. § 7105(c) (2018) (providing that in legacy claims, the absence of a timely-filed notice of disagreement renders a determination final). Following the rating decision on appeal, the Veteran timely filed a notice of disagreement (NOD) in January 2019. The RO issued a statement of the case (SOC) in March 2019 and the Veteran’s timely appeal to the Board followed in May 2019. Because the Veteran did not request a hearing in his May 2019 appeal, no hearing before the undersigned VLJ was scheduled. 1. Entitlement to an initial compensable disability rating for hypertension. Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings apply under a particular diagnostic code, the higher evaluation is assigned if the disability more closely approximates the criteria for a higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability rating decisions. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). However, where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See 38 C.F.R. § 4.2; Francisco v. Brown, 7 Vet. App. 55 (1994). When the appeal is from the initial rating assigned with the grant for service connection, “staged” ratings (for periods when varying degrees of disability are shown) may be assigned based on facts found. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s hypertension is rated as noncompensable from July 2018. The applicable rating criteria provide that a compensable disability rating is assigned where diastolic pressure is predominantly 100 mm or more, where systolic pressure is predominantly 160 mm or more, or where there is a history of diastolic pressure predominantly 100 mm or more and the condition requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes that in the context of measurements of blood pressure, systolic pressure is represented by the first number recorded, diastolic pressure is represented by the second number recorded, and the applicable unit of measurement is “millimeters of mercury,” notated in full as “mm Hg.” See “Understanding Blood Pressure Readings,” American Heart Association (accessed via https://www.heart.org/en/health-topics/high-blood-pressure/understanding-blood-pressure-readings). The Veteran underwent a VA examination on this issue in November 2018. The VA examiner diagnosed the Veteran with hypertension but opined that the condition did not have a history of diastolic pressure in excess of 100 mm. See November 2018 VA Examination Report at 2. Furthermore, the VA examiner found that the Veteran’s current blood pressure measurements did not support a finding of either systolic pressure in excess of 160 mm or of diastolic pressure in excess of 100 mm. Id. The Veteran filed a statement of intent to file a claim in June 2018. See 38 C.F.R. § 3.155(b) (providing that a statement of intent to file, if submitted within 1 year of a subsequent fully completed application, will be considered the date of receipt of such applications for purposes of calculating the effective date from which benefits may be granted). In its review of the evidence of record, the Board notes that blood pressure measurements taken at monthly or near-monthly intervals from June 2018 unanimously support the VA examiner’s findings. See, e.g., October 2018 VA Medical Records at 1, 9, 20, 66, and 71; see also November 2019 Medical Records at 5, 19, 49, 56, 62, and 103. The Board has found no evidence indicating that the Veteran’s hypertension met the applicable rating criteria for an initial compensable disability rating during the rating period on appeal. The Board notes the Veteran’s assertions of higher blood pressure measurements in the past, to include “a systolic reading in excess of 160 mmHg [in 2006]” and “two of three readings in 2007 with a diastolic reading in excess of 100 mgHg.” See November 2019 Appellate Brief at 2. However, as previously discussed, where “an increase in the disability rating is at issue, the present level of disability is of primary concern… the regulations do not give past medical reports precedence over current findings.” Francisco, 7 Vet. App. at 58. The Board must construe the applicable rating criteria, including “a history of diastolic pressure predominantly 100 [mm] or more,” in a manner consistent with Francisco. 38 C.F.R. § 4.104, Diagnostic Code 7101; see also Stewart v. Wilkie, 30 Vet. App. 383, 397 (2018) (internal citations omitted) (providing that legal terms are to be construed “in their context and with a view to their place in the overall statutory scheme”); see also 38 U.S.C. § 7104(c) (providing that the Board is bound in its adjudication by VA regulations). The Board notes that the Veteran’s blood pressure measurements preceding the rating period on appeal are likewise not sufficient to support a compensable disability rating. See, e.g., October 2018 VA Medical Records at 80, 82, 149, 152, 164, 167, 184, 199, 209, 213, and 233; see also April 2017 VA Medical Records at 16, 37, 67, 75, and 89; see also March 2015 VA Medical Records at 13, 30, 60, 79, 82, and 95; see also August 2014 VA Medical Records at 2 and 10; see also March 2015 Social Security Records (providing private medical records noting diastolic pressure under 100 mm in January and September 2008). These records further support the November 2018 VA examiner’s conclusion that the Veteran’s hypertension does not have a history of diastolic blood pressure predominantly 100 mm or more. The assignment of an initial compensable disability rating for the Veteran’s hypertension is therefore not warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board has considered the doctrine of reasonable doubt but finds that it is not   applicable because the balance of the evidence is against the Veteran’s claim. 38 U.S.C. § 5107(b). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Blore, 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.