Citation Nr: 20028481 Decision Date: 04/23/20 Archive Date: 04/23/20 DOCKET NO. 15-07 361 DATE: April 23, 2020 ORDER Entitlement to an initial rating in excess of 10 percent for hypertension is denied. FINDING OF FACT The Veteran’s hypertension has not been manifested by blood pressure readings with diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2019). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1990 to March 1995. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an October 2013 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) in Honolulu, Hawaii. The Veteran testified at a Board hearing before the undersigned Veterans Law Judge (VLJ) in April 2017. A transcript of the hearing has been associated with the electronic record. Following an August 2017 Board decision, remanding the issue for additional development, in a May 2018 decision, the Board denied an increased rating for hypertension, finding that the Veteran’s disability was adequately reflected by a 10 percent disability rating. Thereafter, the Veteran appealed to the United States Court of Appeals for Veterans Claims (Court). In an April 2019 Joint Motion for Partial Remand (JMR), the Secretary of VA and the Veteran (the parties) moved the Court to vacate the portion of the Board’s May 2018 decision denying an increased disability rating for hypertension. The Court granted the JMR in an April 2019 order and the matter was returned to the Board. In October 2019, consistent with the terms of the JMR, the Board remanded the issue for additional development. Specifically, the Board instructed the RO to obtain a medical opinion to determine the residuals of his service-connected hypertension. See April 2019 JMR. In January 2020, the RO granted service connection for benign paroxysmal positional vertigo associated hypertension and for hypertensive headaches. This action constitutes substantial compliance with the Board’s remand instructions, and the requirements of Stegall have been met. See Stegall v. West, 11 Vet. App. 268, 271 (1998). This decision also represents a full grant of the benefits sought on appeal with regard to those issues. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board also notes that in the August 2017 decision, the Board acknowledged that the issue of entitlement to a TDIU was raised by the record and remanded that issue for proper notice. Likewise, in the May 2018 Board decision, the issue of entitlement to a TDIU was remanded for issuance of proper notice. As the RO has not certified this issue to the Board, the Board finds that it appears the RO is still working on the claim. As such the issue of entitlement to a TDIU is not before the Board at this time. Accordingly, the only issue before the Board at present is entitlement to an initial rating in excess of 10 percent for hypertension. Entitlement to an initial rating in excess of 10 percent for hypertension. The Veteran is seeking an initial disability rating in excess of 10 percent for his service-connected hypertension. Specifically, he contends that his hypertension warrants an increased rating because it is not well controlled. See April 2017 Hearing Tr. A disability rating is determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as “staged ratings,” whether it is an initial rating case or not. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Here, the Veteran’s service-connected hypertension is rated as 10 percent disabling under 38C.F.R.§4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, hypertension warrants a 10 percent rating with 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 evaluation is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent evaluation is warranted when diastolic pressure is predominantly 120 or more. Lastly, a 60 percent evaluation is warranted when diastolic pressure is predominantly 130 or more. 38C.F.R.§4.104, Diagnostic Code 7101. The Board notes that “predominantly” is not defined in the Rating Schedule, however the Board understands it to have its ordinary meaning of “for the most part,” or “mainly.” See Merriam-Webster’s Collegiate Dictionary, 978 (11th ed. 2012). Although the Board has reviewed the Veteran’s entire claims file, for the purpose of this analysis, only some of his medical records will be cited. In August 2013, the Veteran sought care for elevated blood pressure. His initial blood pressure reading was 160/110. A repeated reading a few minutes later was 159/107. He denied dizziness, blurred vision, and headache. He reported home readings of 150/108 at highest. The Veteran also complained of a cough for the past 10 days. His lungs were “wheezing throughout” during evaluation. He was given an antibiotic and prescription cough medicine. His blood pressure medications were continued without an increase in dosage. Two weeks later, on follow-up, his blood pressure was 127/88. August and September 2013 blood pressure log provided by the Veteran had a highest systolic reading of 123, and a highest diastolic reading of 86. His log from September to October 2013, had a highest systolic reading of 128, and a highest diastolic reading of 93. His October to December 2013 blood pressure log had a highest systolic reading of 128, and a highest diastolic reading of 88. In September 2013, the Veteran was afforded a VA hypertension examination. He was noted to have been diagnosed with hypertension in 1995. The examination report cites a number of blood pressure readings over the years. The highest reading cited was 166/105 in July 1992 when being seen for hand trauma, and 134/110 in November 1992 during dental care. His readings during the examination were 128/79, 120/76, and 116/74. He did not report any other complications or symptoms associated with his hypertension. The Veteran was afforded another VA hypertension examination in December 2013. At the time of the examination he was on four medications. His blood pressure readings during the examination were 135/92, 124/87, and 131/86. His hypertension was noted to impact his functional abilities by causing fatigue. The Veteran did not report any other complications, signs, or symptoms associated with his hypertension. In December 2014, the Veteran testified at a formal DRO hearing. He stated he was on three types of medication for his hypertension daily. He stated his blood pressure readings averaged 125/89. When asked what his blood pressure readings were without medication, the Veteran replied he did a “three-month home blood pressure thing” and his blood pressure ran “about 120 over 110.” The Veteran reported that he was told by his primary care physician that when he comes to the hospital, he sits for 30 minutes in a cold room and his heart rate would drop, but when he goes home and does his “regular things, that the reason why it’s so high.” He stated the three-month log was from March to May 2013. In September 2016, the Veteran was seen for reported increased blood pressure and noted he was not taking his blood pressure medication. He also had a rash on his face and an infection in his mouth. His blood pressure was 156/106, 156/96. The record indicated that the Veteran was not using his CPAP machine for his obstructive sleep apnea due to housing constraints (living in his SUV at the time of the appointment), and he was unable to take one of his blood pressure medicines, it is unclear, but possibly due to a need to stay hydrated while on the medication. In November 2016, the Veteran was seen at Tripler Army Medical Center for multiple complaints. His blood pressure was initially 168/115. He reported his pain was of a 9 out of 10 intensity. After two hours of treatment, including IV fluids, the Veteran was discharged with a blood pressure of 137/82 and a pain level of 2 out of 10. Additionally, in November 2016, the Veteran sought VA care for complaints of elevated blood pressure. His blood pressure during the visit was 141/100 and 141/101. Blood pressure readings from February and September 2017 were 128/90, 134/93, 143/102, 140/94, and 138/84. These blood pressure readings were taken during treatment for severe leg pain. During the April 2017 Board hearing, the Veteran noted he had been on hypertension medications for 10 years. When asked, on average, how high his blood pressure readings were, the Veteran replied, “probably 120/103.” He argued that he was entitled to an increased rating for his hypertension due to dizzy spells and headaches. In December 2017, the Veteran called a VA clinic and complained of a severe headache and elevated blood pressure. He was advised to go to the nearest emergency room. The record does not include whether the Veteran reported to an emergency room; there was no follow-up of this telephoned complaint. In February 2018, the Veteran had blood pressure readings of 138/101, 145/101, and 146/102. The Veteran was being treated for right arch pain. In March 2018, the Veteran was afforded another VA examination as directed by the Board remand. He was noted to be asymptomatic. He measured his blood pressure at home daily and reported 130-140/100-105 readings on average. He was on Lisinopril daily. The examiner noted that the Veteran’s blood pressure reading on the day of the examination was 180/120. His blood pressure measured in September 2017 was 140/94, and as measured in November 2016 was 141/100. The average of these measurements was 154/104. He had no additional complications or findings related ot his service-connected hypertension. The examiner noted that the Veteran’s hypertension did not impact his ability to work; he required medication to control his elevated blood pressure. In December 2019, following another Board remand, the Veteran was afforded a VA examination. Current blood pressure measurements were recorded as 178/126; 165/127, and 169/125. The Veteran’s blood pressure baseline was recorded as 134/110 and 120/76 in November 1992; 166/105 in July 1992; and 135/92 and 131/86 in December 2013. In a January 2020 VA treatment, the Veteran’s blood pressure measurements from December 2010 through December 2019 reveal out of 78 measurements, two diastolic measurements were of 110 or more: an August 2013 measurement of 160/110 and a February 2018 measurement of 169/117. As reflected in the cited records above, the Veteran’s hypertension has worsened from approximately 2016 onward. However, it remains that diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more has not been shown. The Veteran has had diastolic pressure of 110 or more on five occasions shown in the record. VA examinations show that in December 2019 the Veteran exhibited a diastolic pressure of at most 127 and in March 2018 his diastolic pressure was 120. VA treatment records show a February 2018 diastolic pressure of 117, in November 2016 his diastolic pressure was 115 during treatment for blisters, and in August 2013 his diastolic pressure was 110. The remainder of his blood pressure readings, including his self-reported log of daily readings, did not show diastolic pressure of 110 or greater and his systolic pressure has not reached 200 during the period on appeal. As such, the Board finds that his readings do not show diastolic pressure predominantly, as in for the most part (as defined above), of 110 or greater or systolic pressure predominantly 200 or more. The Board additionally notes that the 2013 and 2016 instances where the Veteran’s diastolic pressure was 110 or more were during periods of severe pain, and the Veteran’s blood pressure readings were considerably lower after treatment for his pain and dehydration. Regarding the Veteran’s assertion that he is entitled to a higher rating because when he does regular activities his blood pressure is higher than when measured in the hospital, the Board notes that the Veteran is competent to report observations with regard to the severity of his symptomatology. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). The Board finds these lay statements to be credible and consistent with the rating now assigned. To the extent he argues his symptomatology is more severe, however, the Veteran’s statements must be weighed against the other evidence of the record. Here, the specific examination findings of trained health care professionals and documented medical treatment records and daily logs are of greater probative weight than the more general lay assertions that a higher rating evaluation is warranted. The Board acknowledges that the Veteran has requested in a May 2018 appellate brief an extraschedular rating. Consideration has been given to the possibility of assignment of an extraschedular evaluation under 38 C.F.R. § 3.321. Extraschedular consideration involves a three-step analysis. Thun v. Peake, 22 Vet. App. 111 (2008). First, a determination must be made as to whether the schedular criteria reasonably describe a veteran’s disability level and symptomatology. Id. at 115. If the schedular rating criteria do reasonably describe a veteran’s disability level and symptomatology, referral for extraschedular consideration is not required and the analysis stops. Id. If the schedular rating criteria do not reasonably describe a veteran’s level of disability and symptomatology, a determination must be made as to whether an exceptional disability picture includes other related factors, such as marked interference with employment and frequent periods of hospitalization. Id. at 116. Here, the Board finds that the record does not establish an exception or unusual disability picture. The symptomatology and impairment caused by the Veteran’s hypertension is specifically contemplated by the schedular rating criteria. Specifically, the Veteran’s hypertension is not manifested by such related factors as marked interference with employment or frequent periods of hospitalization as to render impractical the application of the regular schedular standards and warrant extra-schedular consideration. Thun, supra; Doucette, supra. Referral for extraschedular consideration is thus not required. (Continued on the next page)   Accordingly, the Board finds the evidence of record weighs against a finding of a rating in excess of 10 percent for the Veteran’s service-connected hypertension and the claim must be denied. KRISTI L. GUNN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Kaufer, 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.