Citation Nr: 20007547 Decision Date: 01/30/20 Archive Date: 01/29/20 DOCKET NO. 19-07 931 DATE: January 30, 2020 ORDER Entitlement to an initial rating of 10 percent, but no higher, for hypertension is granted. REMANDED Entitlement to service connection for a right eye disability is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s hypertension has required the use of continuous medication for control. CONCLUSION OF LAW Resolving reasonable doubt in the Veteran’s favor, the criteria for an initial disability rating of 10 percent, but no higher, for hypertension have been met. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.21, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Army from January 1985 to April 1989, May 1998 to June 1998, June 2000 to September 2000, January 2003 to January 2004, March 2004 to October 2004, October 2005 to August 2006, and from October 2006 to July 2007. The Veteran also served in the Army National Guard. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a July 2017 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). As an initial matter, given the Veteran’s multiple right eye disabilities, the Board has broadened and recharacterized the claim of service connection for right eye declining eye sight with spot to service connection for a right eye disability. See Clemons v. Shinseki, 23 Vet. App. 1, 4-5 (2009) (finding that what constitutes a claim is not limited by a lay veteran’s assertion of his condition in the application but must be construed based on the reasonable expectations of the non-expert claimant and the evidence developed in processing the claim). Entitlement to an initial rating of 10 percent, but no higher, for hypertension Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate DCs. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. § 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is 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 C.F.R. § 4.3. Where, as here, the appeal arises from the original assignment of a disability rating following an award of service connection, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. In the present case, the Veteran asserts that his hypertension is more disabling than reflected by his current noncompensable (0 percent) rating under DC 7101. He seeks an increased rating on the basis that he has a history of blood pressure readings showing diastolic pressure above 100 and systolic pressure above 160 and takes medication to control his blood pressure. Under DC 7101, a 10 percent disability rating requires diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating requires diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent disability rating requires diastolic pressure predominantly 120 or more. A 60 percent disability rating requires diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104. After a full review of the record, the Board concludes that the evidence is at least in equipoise on the question of whether the criteria for an initial 10 percent rating for hypertension have been met. In this regard, the medical evidence of record shows several blood pressure diastolic readings of 100 or more and several systolic readings of 160 or more. Specifically, during the appeal period, the VA treatment records reflect that the Veteran’s higher blood pressure readings have included 170/105 (09/15/2016), 159/99 (04/20/2017), 154/103 (05/09/2017), 173/105 (09/02/2017), 173/107 (09/06/2017), 153/109 (09/06/2017), 173/105 (09/06/2017), 160/99 (12/06/2017), 197/93 (01/17/2018), 191/104 (9/26/2018), 164/99 (09/26/2018), 155/100 (09/26/2018), and 185/110 (09/26/2018). Although the evidence does not demonstrate that the Veteran’s diastolic pressure has been predominantly 100 or more or that his systolic pressure has been predominantly 160 or more; in light of the above blood pressure readings, as well as the evidence showing that the Veteran’s hypertension required continuous medication for control, the Board finds the evidence more nearly approximates the criteria for a 10 percent rating for the initial appeal period. See 38 C.F.R. § 4.21 (it is not expected that all cases will show all the findings specified). As noted above, the medical evidence reflects that for the entire appeal period, the Veteran has taken continuous medication to control his hypertension symptoms. In particular, the Veteran has taken Hydrochlorothiazide, Losartan, and Metoprolol succinate. See June 2018 VA treatment records. Significantly, the medical evidence also suggests that his blood pressure readings may be higher if he was not taking continuous medication for his condition. In this regard, in September 2017, after noting diastolic pressure above 100 and systolic pressure above 160 on several instances, a VA physician concluded that the Veteran’s blood pressure was much too high and that his medication regimen should be adjusted to improve his blood pressure control. See September 2017 VA treatment note. As such, the Veteran was instructed to also take Maxzide to lower his blood pressure in conjunction with his other blood pressure medications. See id. The Board also notes that the Veteran was last examined by VA in May 2016. The examiner noted that the Veteran had been taking Losartan as continuous medication for his condition but found the Veteran did not have a diastolic blood pressure elevation predominantly 100 or more. On physical examination, his blood pressure readings indicated an average reading of 159/98. However, the Veteran has since taken additional medication to control his blood pressure and the examiner’s findings do not reflect consideration of the affects of the Veteran’s medication on his blood pressure readings. As the medical evidence suggests that the Veteran may have a history of diastolic pressure predominantly 100 or more without continuous medication and adjustment of such medication to control his blood pressure, and given the consistent and several blood pressure readings reflecting diastolic pressure of 100 or more and systolic pressure of 160 or more while on medication, the Board finds the evidence is in equipoise as to the question of whether the criteria for an initial 10 percent rating for hypertension have been met. Thus, resolving all doubt in favor of the Veteran, the Board finds that the Veteran’s symptoms more nearly approximate a history of elevated diastolic and systolic blood pressure readings that have since required continuous medication to control. Accordingly, a 10 percent initial disability rating for hypertension under DC 7101 for the entire initial rating period is granted. See 38 U.S.C. § 5107. The Board notes that a rating in excess of 10 percent is not warranted for any period on appeal because the evidence of record does not indicate diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more, as required by the next-higher 20 percent rating. Rather, the evidence of record shows that during the appeal period, the Veteran had one isolated diastolic reading of 110 and that the Veteran’s systolic reading was not greater than 197, which does not approximate the criteria for a 20 percent rating. The Board has considered the Veteran’s statements of record that a higher disability rating is warranted for his hypertension. The Veteran is competent to report symptomatology related to his hypertension because this requires only personal knowledge as it comes to him through his senses. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). To the extent that the Veteran alleges greater severity, the Board finds that the probative value of his allegations is outweighed by the VA treatment records and VA examiner’s findings. These medical findings directly address the evaluation criteria for this disability. As such, the Board finds that the medical records, as well as the medical examination opinion and findings are of greater probative value than the Veteran’s allegations regarding the severity of his hypertension. Lastly, the Board has considered whether without continuous hypertension medication, the Veteran’s blood pressure readings would elevate to higher levels. On this issue, the Board acknowledges the United States Court of Appeals for Veterans Claims (Court)’s holding that VA 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. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, the Court subsequently determined that for hypertension, the plain language of DC 7101 contemplates the effects of medication and, thus, the Jones case is not applicable to cases involving hypertension. McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016). That is, the rating criteria for hypertension already takes into account the ameliorative effects of medication. Id. As such, the Board is not required to discuss the ameliorative effects of medication when evaluating whether the Veteran is entitled to a rating over 10 percent for hypertension. Accordingly, the Board finds that the evidence supports a higher initial disability rating of 10 percent, but no greater, for hypertension. 38 C.F.R. § 4.3. REASONS FOR REMAND Entitlement to service connection for a right eye disability The Veteran contends that he has a right eye disability that is related to service, to include from an in-service corneal abrasion involving a branch/stick brushing his eye. See March 2019 Form 9. The Veteran’s service treatment reports (STRs) confirm that he was diagnosed with a corneal abrasion after a branch brushed his eye. See August 1987 STR. A June 1999 optometry clinic STR reflects that the Veteran was seen for a follow up concerning a spot on his eyes and was assessed with a stable size nevus. A May 2008 treatment note also indicates the Veteran had benign neoplasm of choroidal nevus, presbyopia, and refractive error. The Veteran’s post-service treatment records reflect current eye problems. In a March 2019 VA eye consult, the Veteran was assessed with a choroidal nevus that appeared benign, peripheral retinal degeneration, cataract, posterior vitreous detachment (PVD) without tear, and presbyopia. The VA treatment note also indicated that the Veteran had a superior peripheral chorioretinal scar superior temporal, that was evaluated previously elsewhere and considered to be a possible nevus. The Veteran was instructed to bring in old photos for comparison and the treatment note indicated concern with the pigmented lesion superior temporal. See March 2019 eye consult. His ocular history included a tree stick injury in 1987. Id. The Veteran has not been provided a VA examination related to his claim. As the Veteran has current right eye diagnoses and experienced an in-service eye injury, a remand is required for an examination. See McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Board notes that congenital or developmental defects, as well as refractive error of the eye, are not diseases or injuries within the meaning of applicable legislation. 38 C.F.R. § 3.303; Terry v. Principi, 340 F.3d 1378 (Fed. Cir. 2003). Generally, service connection is available for diseases; service connection is not available for congenital or developmental defects, including refractive error of the eye, without a superimposed disease or injury. See 38 C.F.R. §§ 3.303(c), 4.9; Quirin v. Shinseki, 22 Vet. App. 390 (2009). As such, on remand, a VA examiner should clarify the nature of the Veteran’s right eye disabilities and whether any diagnosed defect is related to the superimposed injury of a tree branch brushing the Veteran’s eye. The matters are REMANDED for the following action: 1. Obtain any outstanding, relevant VA treatment records, to include any non-VA care records pertinent to the Veteran’s claim that have been scanned into VistA and associate those documents with the claims file. 2. Provide the Veteran with an opportunity to identify any outstanding private treatment records relevant to his claim. After obtaining any necessary authorization from the Veteran all outstanding records should be obtained. 3. Schedule the Veteran for a VA examination concerning the nature and origin of his claimed right eye disability. The claims file, to include a copy of this remand, should be made available to and be reviewed by the examiner. The examiner is asked to respond to the following: (a) Identify/diagnose any right eye disability that presently exists or that has existed during the appeal period, including a choroidal nevus, peripheral retinal degeneration, cataract, posterior vitreous detachment (PVD) without tear, and presbyopia. (b) For each diagnosis, explain whether the condition is a defect (defined as “structural or inherent abnormalities or conditions which are more or less stationary in nature”) or a disease (defined as “capable or improving or deteriorating”). See Quirin, 22 Vet. App. at 394-95. (c) For any identified refractive error disability and/or defect, opine whether it is at least as likely as not (50 percent probability or greater) that the condition was subject to a superimposed disease or injury during service, to include the Veteran’s in-service corneal abrasion from a tree branch brushing his eye. (d) For each condition that is a disease, opine whether it is at least as likely as not (50 percent probability or greater) that the condition was caused by the Veteran’s service, to include the Veteran’s in-service corneal abrasion from a tree branch brushing his eye. (e) For each condition that is a disease, opine whether it is at least as likely as not (50 percent probability or greater) that the condition was aggravated beyond its natural progression by the Veteran’s service, to include the Veteran’s in-service corneal abrasion from a tree branch brushing his eye. The examiner should comment on all questions above and set forth a complete rationale for all opinions. The rationale for a negative opinion must not be based solely on the lack of a relevant in-service diagnosis or clinical finding and must reflect consideration of the lay assertions of pertinent symptomology. MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Amanda Purcell, 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.