Citation Nr: 20009742 Decision Date: 02/05/20 Archive Date: 02/05/20 DOCKET NO. 14-27 946A DATE: February 5, 2020 ORDER Entitlement to an evaluation in excess of 10 percent for service-connected hypertension is denied. FINDING OF FACT The preponderance of the evidence shows the Veteran’s hypertension is manifested by diastolic pressure readings predominantly under 110 mm and systolic pressure readings under 200 mm and requires continuous medication for control. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.6, 4.7, 4.104, Diagnostic Code 7101.   REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 1982 to January 1985. This case comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2013 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). The rating decision continued the Veteran’s 10 percent evaluation for his hypertension. The Veteran appealed that decision. In January 2018, the Veteran provided sworn testimony before the undersigned Veterans Law Judge (VLJ) at a Board hearing. A copy of the hearing transcript has been associated with the electronic claims file. The Board remanded this case to the AOJ in April 2018 for additional development. The 2018 remand directives instructed the RO to schedule the Veteran for a VA examination and to obtain outstanding VA medical records. The Veteran had a VA examination in February 2019. The VA examination report is of record and appears adequate. As such, VA has substantially complied with the 2018 remand directives. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007); Stegall v. West, 11 Vet. App. 268, 271 (1998). The Veteran has not raised any issues with the duty to notify or duty to assist in obtaining documentary evidence. Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Thus, the Board need not discuss any potential issues in this regard. Further, neither the Veteran nor his representative has alleged any deficiency with the conduct of his Board hearing as to the duties discussed in Bryant v. Shinseki, 23 Vet. App. 488, 496-97 (2010). In this regard, the Federal Circuit ruled in Dickens, 814 F.3d at 1361, that a Bryant hearing deficiency was subject to the doctrine of issue exhaustion as laid out in Scott, 789 F.3d at 1381. Thus, the Board need not discuss any potential Bryant problem because the Veteran has not raised that issue before the Board. The Veteran contends that he is entitled to a higher rating than 10 percent for his service-connected hypertension. Disability ratings are based on the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. See 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Although the Veteran’s entire history is reviewed when assigning a disability evaluation, where service connection has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994), see also 38 C.F.R. § 4.1. The United States Court of Appeals for Veterans Claims (Court) has held that in determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 510 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings would be necessary. The Veteran’s hypertension is rated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, which evaluates hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating will be assigned where a veteran has (1) a history of diastolic pressure of predominantly 100mm or more requiring continuous medication for control, (2) diastolic pressure readings that are predominantly 100mm or more, or (3) systolic pressure readings that are predominantly 160mm or more. A 20 percent rating is assigned where a veteran has (1) diastolic pressure readings of predominantly 110mm or more or (2) systolic pressure readings of predominantly 200mm or more. A 40 percent rating is assigned where the veteran has diastolic pressure readings of predominantly 120mm or more. A 60 percent rating is assigned where the Veteran has diastolic pressure readings of predominantly 130mm or more. Id. The question in this appeal is whether the Veteran’s hypertension has (1) diastolic pressure readings of predominantly 110mm or more or (2) systolic pressure readings of predominantly 200mm or more. The systolic is the upper number, whereas the diastolic is the lower number listed during a reading. The Board notes that the rating criteria for DC 7101 are successive. In other words, the evaluation for each higher disability rating includes the criteria of each lower disability rating. Therefore, if any criterion is not met at a particular level, the Veteran can only be rated at the level that does not require the missing component. Tatum v. Shinseki, 23 Vet. App. 152, 156 (2009); see also Melson v. Derwinski, 1 Vet. App. 334 (1991) (noting that the conjunctive “and” and “with” in a statutory provision means that all of the listed conditions must be met). Having considered all the evidence of record, the Board finds the preponderance of the evidence is against a higher rating for hypertension. Treatment records throughout the period on appeal show that the Veteran has required medications taken continuously to control his hypertension. Nonetheless, the most probative evidence of record does not show that his hypertension is (or has historically been) predominantly manifested by diastolic pressure that is 110 or more, or, systolic pressure that is predominantly 200 or more. By way of history, in February 2002, the Veteran’s hypertension was granted service connection at 10 percent disabling, effective September 6, 2001. Thereafter, in July 2012, he filed a claim for an increased rating. However, his medical records have not shown he meets the criteria required for a 20 percent evaluation. For example, his blood pressure reading in January 2013 was 154/88; in April 2014 it was 138/86; in May 2015 it was 128/80 and 136/85; in February 2017 it was 153/84 and 172/92; in December 2017 it was 125/80; in January 2018 it was 122/74; in October 2018 it was 111/73; in November 2018 it was 135/75; in March 2019 it was 150/74 and 132/80; in July 2019 it was 179/88 and 156/93; and in September 2019, it was 174/85 and 138/88.   In December 2012, the Veteran underwent a VA examination, where he reported his blood pressure was mainly controlled but sometimes went up and stayed up for a few days. His readings during the examination were 148/83; 131/83; and 124/78. The examiner opined the Veteran’s hypertension had no functional impact. As per the remand directives, the Veteran was afforded another VA examination in February 2019. His blood pressure readings at the examination were 127/76; 125/74 and 122/73 during the examination, and he reported that he occasionally checks his blood pressure at home, and he averages 126/76. The examiner marked the Veteran’s treatment plan included taking continuous medication but opined that his hypertension did not impact his functional ability. The Board has considered the Veteran’s contentions that he has to take continuous medication for his hypertension, and that due to his service-connected hypertension, he has higher insurance premiums and must live a certain lifestyle to keep his blood pressure within normal limits. See November 2012 statement; see also February 2013 statement. The Board empathizes with the Veteran, but unfortunately, the subjective medical evidence as discussed above does not show that his blood pressure readings met the criteria for a 20 percent rating as required under DC 7101. The Board also considered the Veteran’s testimony at the 2018 Board hearing, that his diastolic blood pressure readings were over 110 for a week during Hurricane Irma and he had intermittent episodes of spiking or rising blood pressure, but the Veteran also stated that these spikes could be due to stress, eating spicy foods, injuries to other parts of the body, and exercising. He also stated that his average diastolic readings were somewhere between 80 and 90. Further, the extent the Veteran argued that without continuous medication, his hypertension would elevate to higher levels, the Board acknowledges the Court’s holding in Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), 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. 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 compensable rating for hypertension. Therefore, the preponderance of the evidence shows that the Veteran’s hypertension has never manifested by blood pressure readings with diastolic pressure predominantly 110 or more or by systolic pressure predominantly 200 or more. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.Hoy, 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.