Citation Nr: 20008461 Decision Date: 01/31/20 Archive Date: 01/31/20 DOCKET NO. 19-13 780 DATE: January 31, 2020 ORDER An initial compensable rating for hypertension is denied. REMANDED Service connection for a left knee disability is remanded. Service connection for bilateral cataracts is remanded. An initial rating in excess of 30 percent for (posttraumatic stress disorder) is remanded. FINDING OF FACT 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. CONCLUSION OF LAW The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1990 to August 1994, October 2001 to November 2002, and August 2015 to January 2017. He has additional periods of service in the Navy Reserve dated through January 2017. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from April and June 2017 rating decisions issued by the Department of Veterans Affairs (VA) Regional Office (RO). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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. 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 deciding this appeal, the Board has considered whether staged ratings are warranted for distinct periods of time. Entitlement to an initial compensable rating for hypertension The Veteran generally contends that an initial compensable rating is warranted for his service-connected hypertension. His hypertension rated under Diagnostic Code 7101. Under that code, 10 percent rating is given 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. A 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104. The Board finds that the Veteran’s service-connected hypertension does not nearly approximate the criteria for an initial compensable rating at any point during the appeal period. While a March 2017 Disability Benefits Questionnaire (DBQ) examiner found that the Veteran required continuous medication for hypertension, he found that the Veteran did not have a history of diastolic blood pressure elevated to predominantly 100 or more, both of which are required to warrant a 10 percent rating under Diagnostic Code 7101. At the time of the March 2017 DBQ examination, the Veteran’s blood pressure readings were 153/87, 135/90, and 126/88. The evidence of record does not otherwise show a diastolic pressure reading of 100 or more during the appeal period to warrant a 10 percent or a higher rating under the regulation. See, e.g., March 2017 VA treatment note (documenting a blood pressure reading of 133/85); September 2017 VA treatment note (documenting a blood pressure reading of 132/86); March 2018 VA treatment note (documenting a blood pressure reading of 149/96); January 2018 Private treatment record (documenting blood pressure readings of 145/93, 154/97, 142/92, 144/94, 154/90, and 138/92); September 2018 VA treatment note (documenting a blood pressure reading of 131/86). The clinical evidence of record establishes that the Veteran’s diastolic pressure has not been predominantly 100 or more and that his systolic pressure has not been predominantly 160 or more, as contemplated in a 10 percent rating under Diagnostic Code 7101, at any point during the appeal period. As such, an initial compensable rating is not warranted for the Veteran’s hypertension during the entire appeal period. While the Board 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), VA has contemplated the effects of medication as a factor to be considered when rating hypertension under Diagnostic Code 7101. As such, 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 specifically does not apply to Diagnostic Code 7101). As the preponderance of the evidence is against the Veteran’s claim, the “benefit of the doubt” doctrine is not applicable; and the appeal as to the issue of entitlement to an initial compensable rating for hypertension must be denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert, supra. (CONTINUED ON NEXT PAGE) REASONS FOR REMAND 1. Service connection for a left knee disability The Veteran generally contends that he has a left knee disability that was caused or aggravated by his three active duty or Reserve duty periods of service. The record reflects that the Veteran initially sustained a left knee injury in 1999. See April 2009 Service treatment record (documenting a “torn ACL L knee [in] 1999”); May 2001 Service treatment record (noting a “L knee injury 2 years ago”). Since then, the clinical evidence shows various reports of left knee pain throughout the Veteran’s subsequent active duty (i.e. from October 2001 to November 2002 and from August 2015 to January 2017) and Reserve duty (dated through January 2017) periods of service. An April 2001 private treatment record notes that a report of twisted left knee, accompanied by a left knee strain diagnosis. An August 2001 clinical record show that the Veteran received a knee brace for his left knee pain. An October 2001 active duty report of medical history notes “torn ACL/tear lat menisc [sic]” of the left knee. An August 2009 Reserve duty service radiology report documents “postoperative ACL repair changes” of the left knee. September and October 2016 active duty service treatment records contain reports of left knee pain, accompanied by an X-ray report based on the Veteran’s left knee arthritic pain. A September 2016 active duty separation examination report notes a diagnosis of left knee patella tendon pain. A March 2017 DBQ examiner diagnosed left knee degenerative arthritis and rendered a negative nexus opinion, but the examiner did not address the correct legal criteria (i.e. whether there was clear and unmistakable evidence, or undebatable evidence, that a pre-existing left knee disability was not aggravated by service). The examiner also did not address whether the Veteran’s current left knee disability was caused or aggravated due to a disease or injury during a period of active duty for training (ACDUTRA) or inactive duty for training (INACDUTRA), based on the above-referenced Reserve duty service treatment records documenting the Veteran’s reports of left knee pain. A remand is necessary for an addendum addressing these deficiencies. While on remand, the RO should attempt to verify all periods of IN/ACDUTRA periods during the Veteran’s Reserve duty service, to specifically include the year 1999, when the Veteran sustained the initial left knee injury. The RO should also obtain all associated Reserve duty treatment records, to specifically include records dated in the year 1999. The RO should also attempt to obtain the Veteran’s enlistment examination reports for the second and third active duty periods of service (i.e. from October 2001 to November 2002 and from August 2015 to January 2017). 2. Service connection for bilateral cataracts The Veteran generally contends that he has bilateral cataracts due to service. A March 2017 Eye Conditions DBQ examiner diagnosed bilateral cataracts, but he did not issue a nexus opinion. A remand is necessary to obtain nexus opinions for the claimed bilateral cataracts. See 38 C.F.R. § 3.159. 3. An initial rating in excess of 30 percent for PTSD Since the Veteran underwent a March 2017 PTSD DBQ examination, his spouse has submitted a statement suggesting worsening of his PTSD symptoms. She has reported that “[h]e’s becoming isolated and a loner” and that he was now “extremely agitated and restless with a short fuse [where] anything could set him off,” which were not contemplated in the March 2017 DBQ report. See May 2019 Statement. Given the time period since the last examination and suggestion that the Veteran’s PTSD symptoms have worsened, a remand is necessary for a VA examination to assess the current nature and severity of his service-connected PTSD. The matters are REMANDED for the following action: 1. Contact the appropriate entity to verify the Veteran’s duty status (i.e. ACDUTRA or INACDUTRA) during his Navy Reserve service, to specifically include the year 1999. All records and/or responses received should be associated with the claims file. 2. Contact any appropriate source to obtain any outstanding Reserves duty treatment records as well as any outstanding active duty service treatment records, to specifically include treatment records from 1999 (if Reserve duty status is verified in that year), as well as enlistment examination reports for active duty periods of service from October 2001 to November 2002 and from August 2015 to January 2017. All reasonable attempts should be made to obtain such records and such must be documented. 3. Obtain an opinion from an appropriate clinician regarding the claimed left knee disability. (A) The clinician should identify all current diagnoses for the left knee. (B) For active duty service periods (i.e. from October 2001 to November 2002; and from August 2015 to January 2017), if any diagnosed disability identified above was noted on the enlistment examination (if obtained), the clinician should opine whether such left knee disability increased in severity in service. If so, the clinician should opine whether there is clear and unmistakable evidence that such increase in severity is due to the natural progress of the condition. (C) For each diagnosis identified in (A), if such disability was not noted on enlistment examination OR the enlistment examination report is not of record, the clinician should opine whether there is clear and unmistakable evidence (i.e. undebatable evidence) that the disability pre-existed service. If there is clear and unmistakable evidence that the disability pre-existed service, the clinician should opine whether there is clear and unmistakable evidence (i.e. undebatable evidence) that the pre-existing disability did not undergo an increase in the underlying pathology during service, i.e., was not aggravated during service. In answering the above question, the clinician should address all active duty service treatment records containing reports of left knee pain. See, e.g., VBMS, document labeled STR, receipt date 3/6/2017, pages 37, 63, and 71 of 121; VBMS, document labeled STR-Medical-Photocopy, receipt date 3/1/2017, pages 31, 33, and 36. (D) For each diagnosis identified in (A), if there is no clear and unmistakable evidence that a disability pre-existed service, then the clinician should opine whether it is at least as likely as not (a 50 percent probability or greater) that the disability is directly related to service. (E) The clinician should also opine whether it is at least as likely as not (a 50 percent probability or greater) arthritis of the left knee was manifest to at least a compensable degree within one year of his discharge as to all three active duty service periods. If so, the examiner should comment on the nature of those manifestations. (F) Notwithstanding the above, for each diagnosis identified in (A), the clinician should opine whether it is at least as likely as not that the disability was caused or aggravated due to a disease or injury during a period of ACDUTRA or INACDUTRA service in the Navy Reserve, to include consideration of the initial 1999 left knee injury (only if the injury was during a period of ACDUTRA or INACDUTRA period of service). In answering the above question, the clinician should consider all Reserve duty treatment records containing reports of left knee pain. See, e.g., VBMS, document labeled STR-Medical-Photocopy, receipt date 3/1/2017, pages 9, 10, and 29 of 39; VBMS, document labeled STR-Medical-Photocopy, receipt date 3/1/2017, page 21 of 55; VBMS, document labeled STR, receipt date 3/6/2017, page 38 of 121. The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 3. Obtain an opinion from an appropriate clinician regarding claimed the claimed bilateral cataracts. The clinician should opine whether the diagnosis is at least as likely as not (50 percent or greater probability) due to the Veteran’s service. The clinician is asked to provide the underlying reasons for all opinions expressed and is reminded that the term “as likely as not” does not mean “within the realm of medical possibility,” but rather that the evidence of record is so evenly divided that, in the examiner’s expert opinion, it is as medically sound to find in favor of the proposition as against it. 4. Schedule a VA examination with an appropriate clinician to determine the current nature and severity of the Veteran’s service-connected PTSD. The clinician should identify the nature and severity of all current manifestations of the Veteran’s service-connected PTSD. Bethany L. Buck Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Kim, 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.