Citation Nr: 20021231 Decision Date: 03/25/20 Archive Date: 03/25/20 DOCKET NO. 15-16 021 DATE: March 25, 2020 ORDER Entitlement to an initial compensable rating for hypertension is granted. Entitlement to an initial compensable rating for chronic otitis externa in the left ear (claimed as chronic ear infection) is granted. FINDINGS OF FACT 1. Throughout the appeal period, the Veteran required medication for control of his hypertension. 2. The preponderance of the evidence is at least in equipoise as to whether the Veteran’s chronic otitis externa of the left ear has resulted in serous discharge requiring frequent and prolonged treatment. CONCLUSIONS OF LAW 1. The criteria for an initial disability rating of 10 percent, but no higher, for hypertension have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.104, Diagnostic Code 7101. 2. Resolving doubt in the Veteran’s favor, the criteria for an initial rating of 10 percent rating for chronic otitis externa have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321 (b), 4.1, 4.87, 4.124a, Diagnostic Code 6210. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from October 2002 to September 2010. This matter comes before the Board of Veteran’s Appeals (Board) from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) which granted service connection for the Veteran’s hypertension and chronic otitis externa in his left ear disabilities. In November 2012 the Veteran submitted a notice of disagreement (NOD) regarding the noncompensable ratings assigned to his disabilities. In April 2018, the Veteran testified via videoconference before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the record. In September 2018 the Board remanded the claims for VA examinations. The Board finds the September 2018 remand directives have been substantially complied with, and the matters are again before the Board. Stegall v. West, 11 Vet. App. 268, 271 (1998). As this is an initial evaluation claim, the appeal period is from September 24, 2010; the date of the Veteran’s claim for service connection. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. A veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Board acknowledges that with respect to a claim for an increased rating for an already service-connected disability, a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The following analysis is therefore undertaken with consideration of the possibility that staged rating-assignment of different ratings for distinct periods of time-may be warranted. A Veteran is competent to describe symptoms that he experienced in service or at any time after service when the symptoms he perceived or experienced, were directly through the senses. 38 C.F.R. § 3.159; Layno v. Brown, 6 Vet. App. 465, at 469-71 (1994). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau v. Nicholson, 492 F. 3d 1372, 1377 (Fed. Cir. 2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518 (1996). 1. Entitlement to an initial compensable rating for hypertension The Veteran’s hypertension is rated as noncompensable under diagnostic code (DC) 7101. DC 7101 provides a 10 percent rating for essential hypertension when diastolic pressure is predominantly 100 or more, or; systolic pressure is predominantly 160 or more or; as a 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 that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure that is predominantly 120 or more. A 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. The Veteran’s medical records have been associated with the claims file. In September 2010, the Veteran was noted to have essential hypertension. In March 2011, the Veteran’s medical records show he was prescribed medication for his blood pressure with instructions to take it daily. Medical records for August 2012, April 2013, January 2014 show the continuous use of blood pressure medication. See medical records for September 2010, March 2011, August 2012, April 2013 and January 2014. In June 2016, the Veteran was administered a VA Hypertension Disability Benefits Questionnaire (Hypertension DBQ). The Veteran was noted to take continuous medication for his hypertension and his average blood pressure was noted to be 134/79. See Hypertension DBQ of June 2016. The Board finds this examination adequate and assigns it high probative value. In June 2019, the Veteran was re-administered a Hypertension DBQ. The Veteran was noted to have an average blood pressure reading of 160/97 and continuous use of medication. See Hypertension DBQ of June 2019. The Board finds this examination adequate and assigns it high probative value. Additionally, the Veteran testified that since his last VA examination; his hypertension medication had been increased. See hearing transcript page 5. The Board finds the Veteran’s testimony credible and assigns it high probative value. As previously, stated, a 10 percent disability rating under DC 7101 is warranted when the evidence shows the Veteran’s disability has resulted in diastolic pressure predominantly of 100 or more, or; systolic pressure predominantly of 160 or more or; as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Based on the above referenced evidence, the Board finds the preponderance of the evidence is in favor of the claim as the Veteran’s hypertension has required continuous medication throughout the appeal period and an initial disability rating of 10 percent, but no higher, for the Veteran’s hypertension disability is granted. The Board notes that although the Veteran’s disability has somewhat worsened during the appeal period; the worsening shown between the hypertension DBQ of June 2016 and June 2019 has not risen to the disability criteria required for a disability rating in excess of 10 percent under DC 7101. Accordingly, a disability rating in excess of 10 percent is denied, as the Veteran’s disability has not been shown to have resulted in diastolic pressure that is predominantly 110 or more, or; systolic pressure that is predominantly 200 or more. 2. Entitlement to an initial compensable rating for chronic otitis externa in the left ear (claimed as chronic ear infection) The Veteran’s disability is evaluated as noncompensable under DC 6210, which provides a 10 percent disability rating for swelling, dry and scaly or serous discharge, and itching requiring frequent and prolonged treatment. This is the maximum disability rating provided under this diagnostic code. 38 C.F.R. § 4.104, DC 6210. The Veteran’s medical records have been associated with the claims file. In August 2017 the Veteran was noted to have no ear pain nor discharge. Additionally, the physician noted that the perichondral hematoma (cauliflower ear or wrestler’s ear) on the Veteran’s left ear he had drained previously was looking better. This condition was on the Veteran’s outer ear and was a result of an injury the Veteran sustained in the gym. See medical records of August 2017. The Veteran testified that his ear infections have worsened since his last examination as his infections were happening more frequently. The Veteran explained that the doctors have given him steroid drops for the condition. The Veteran testified that his associated symptoms are headaches and drainage or discharge. See hearing transcript pages 9 and 10. The Board finds this lay statement credible and assigns it high probative value. In June 2019, the Veteran was administered an Ear Conditions DBQ. The examiner noted a diagnosis of chronic otitis externa in his left ear which was diagnosed in 2004. The Veteran reported experiencing worsened and more frequent symptoms such as headaches, infections, drainage and discharge. The examiner noted the Veteran had serous discharge attributable to his chronic otitis externa. The Veteran’s ear canal was noted as abnormal described as mild erythema of left ear canal. The examiner noted that there were no current symptoms noted during the exam. See Ear Conditions DBQ of June 2019. The Board finds this examination adequate and assigns it high probative value. The Board notes the Veteran’s medical records have little to no mentions of the Veteran’s chronic ear infections nor any prescription associated with the condition. However, the Veteran is competent to describe the symptoms he has experienced. Layno, supra. Accordingly, the Board finds the preponderance of the evidence is at least in equipoise as to whether the Veteran’s otitis extrema of the left ear disability has risen to meet the rating criteria of 10 percent as established by DC 6210. As such, resolving doubt in favor of the Veteran the Board finds the preponderance of the evidence is at least in equipoise and a disability rating of 10 percent, but no more, for the Veteran’s chronic otitis externa of the left ear is granted for the entire appeal period. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Gonzalez-Maldonado 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.