Citation Nr: 20038697 Decision Date: 06/05/20 Archive Date: 06/05/20 DOCKET NO. 20-12 135 DATE: June 5, 2020 ORDER Entitlement to an initial 10 percent rating, but no higher, for hypertension, is granted. FINDINGS OF FACT 1. Since the beginning of the claim, the Veteran’s hypertension has required continuous use of medication for control, and resolving any reasonable doubt in the Veteran’s favor, he has a history of diastolic pressure predominantly 100 or more. 2. The Veteran’s hypertension has not been manifested by diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more at any time during the period on appeal. CONCLUSION OF LAW Resolving any reasonable doubt in the Veteran’s favor, the criteria for an initial 10 percent rating, but no higher, for hypertension are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code 7101 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from September 1989 to September 2015. This appeal stems from an October 2015 rating decision that granted service connection for hypertension and assigned an initial noncompensable disability rating. Initial Compensable Rating for Hypertension The Veteran’s hypertension is rated as noncompensable under Diagnostic Code 7101 for hypertensive vascular disease. 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted 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 warranted for diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. For the reasons expressed below, the Board finds that a 10 percent rating is warranted for the entire initial rating period on appeal. During a September 2015 VA general medical examination, blood pressure readings were 134/91, 138/90, and 134/89. At the time of a VA examination for heart conditions, blood pressure reading was 138/90. In September 2015, the Veteran underwent a VA examination for hypertension, at which time the examiner confirmed a diagnosis of hypertension. The examiner noted that the Veteran’s treatment plan included taking continuous medication, which was identified as Toprol, Lotrel, Hydrochlorothiazide, and Coreg. There was no history of a diastolic blood pressure elevation to predominantly 100 or more. At the time of the examination, blood pressure readings were as followings: 134/91, 138/90, and 134/89 with an average of 135/90. In support of his claim, the Veteran submitted a blood pressure reading log dated from November to December 2015. Blooded pressure readings were as follows: 164/110, 160/110, 155/108, 163/105, 160/102, 167/102, 167/104, 167/100, 160/99, 163/98, 157/105, 155/101, 150/105, 155/102, 160/100, 140/91, 144/91, 140/90, 146/92, and 142/91. In the December 2015 notice of disagreement, the Veteran quoted the rating criteria for a 10 percent disability rating indicating that the medical evidence supports the assignment of a 10 percent rating. According to September 2016 VA treatment records, blood pressure reading was 180/120. Thereafter, in November 2016, a treatment record noted that the Veteran did not take blood pressure medications on that day, and blood pressure readings were 150/90 and 159/104. In December 2017, blood pressure reading was 130/78, and in December 2018, blood pressure readings were 120/82 and 126/89. In October 2019, the Veteran underwent an additional VA hypertension examination, at which time the examiner noted that the Veteran was taking additional medications for treatment of his blood pressure, to include Amlodipine, Carvedilol, and Metoprolol. At the time of the examination, blood pressure readings were as follows: 166/95, 142/92, and 143/93. According to December 2019 VA treatment records, blood pressure reading was 99/61. In the March 2020 substantive appeal, the Veteran argued that he was taking continuous medication to control his hypertension and that in 2005 and 2006 his diastolic blood pressure was predominantly 100 or more. In the May 2020 informal hearing presentation (IHP), the Veteran’s representative quoted the Veteran’s reports as noted in the substantive appeal, to include the blood pressure readings from the years 2005 and 2006. The representative concluded that the Veteran maintains that his hypertension more closely approximated a compensable evaluation of at least 10 percent. Initially, the Board recognizes the Veteran’s statement that without continuous medication, his hypertension would elevate to higher levels. The Board may not discount the effects 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). However, VA has contemplated the effects of medication as a factor to be considered when rating hypertension under DC 7101. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (holding that Jones does not apply to DC 7101). In other words, the rating criteria for hypertension already take 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 higher rating for hypertension. Nevertheless, for the reasons discussed below, the Board finds that a higher rating for the Veteran’s hypertension is warranted. Specifically, a review of the evidence from 2015 to the present revealed that the Veteran had many blood pressure readings that showed diastolic pressure of 100 or more. Moreover, although some blood pressure reading showed lower diastolic pressure, the Veteran was taking multiple medications to control the blood pressure and by the of the 2019 VA examination, it was noted that he was prescribed even more medications. Accordingly, the Board will resolve any reasonable doubt in favor of the Veteran and find that, at the very least, a history of diastolic pressure predominantly 100 or more is demonstrated. This finding coupled with the fact that the Veteran’s hypertension has required continuous medication for control entitles him to the minimum 10 percent rating under DC 7101 since the beginning of the claim. A rating higher than 10 percent however is not warranted as the record with the exception of one reading in November 2015 has not shown the Veteran’s hypertension to be manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Importantly, blood pressure readings from 2005 and 2006 are not for consideration as those are outside the rating period on appeal, which begins from October 1, 2015. In sum, the Board finds that the probative medical evidence supports an initial 10 percent rating for the Veteran’s hypertension since the beginning of the claim, and to this extent the appeal is granted. Lastly, the Board notes that in the May 2020 IHP, the Veteran’s representative added that the Veteran requests “the maximum benefit allowed by law and regulation,” to include, extraschedular rating based on the exceptional and unusual symptoms and severity of his service-connected disability. The Court has clarified that there is a three-step inquiry for determining whether a veteran is entitled to an extraschedular rating. Thun v. Peake, 22 Vet. App. 111, 115 (2008). Initially, the Board must determine whether the evidence presents such an exceptional disability picture that the available schedular ratings for the service-connected disability are inadequate. See Yancy v. McDonald, 27 Vet. App. 484 (2016); Doucette v. Shulkin, 28 Vet. App. 366 (2017) (holding that either the veteran must assert that a schedular rating is inadequate or the evidence must present exceptional or unusual circumstances); Sowers v. McDonald, 27 Vet. App. 472, 478 (2016) (“[t]he rating schedule must be deemed inadequate before extraschedular consideration is warranted”). Second, if the schedular rating does not contemplate the veteran’s level of disability and symptomatology and is found inadequate, the Board must determine whether the veteran’s disability picture exhibits other related factors such as marked interference with employment and frequent periods of hospitalization. Thun, 22 Vet. App. at 116. Third, if the first two Thun elements have been satisfied, then the case must be referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service to determine whether, to accord justice, the veteran’s disability picture requires the assignment of an extraschedular rating. Thun at 116. In other words, the first element of Thun compares a veteran’s symptoms to the rating criteria, while the second element considers the resulting effects of those symptoms; if either prong is not met, then referral for extraschedular consideration is not appropriate. Yancy, 27 Vet. App. at 494-95. With respect to the first prong of Thun, the evidence does not establish such an exceptional disability picture as to render the schedular criteria inadequate. The representative did not provide any evidence in support of the statement that extraschedular rating was warranted nor discussed what symptoms were “exceptional and unusual.” As discussed above, the schedular rating criteria for hypertension provide for disability ratings based on objective findings of blood pressure readings and as noted above, the currently assigned 10 percent disability rating contemplates the severity of the Veteran’s hypertension. In addition, all of the examination reports indicated that the Veteran did not have any other pertinent findings related to the diagnosed hypertension and that hypertension did not impact his ability to work. Comparing the Veteran’s disability level and symptomatology of the hypertension to the rating schedule, the degree of disability throughout the entire period under consideration is contemplated by the rating schedule and the assigned ratings are, therefore, adequate. Notably, the representative’s suggestion that the Veteran’s “symptoms” were not contemplated by the rating criteria is not supported by any of the competent medical and lay evidence of record. There are no additional expressly or reasonably raised issues presented on the record. Absent any exceptional factors associated with hypertension, the Board finds that the criteria for submission for assignment of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b)(1) are not met. See Bagwell v. Brown, 9 Vet. App. 337 (1996); Shipwash v. Brown, 8 Vet. App. 218, 227 (1995). Finally, neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 69-70 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). S. B. MAYS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Yaffe, 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.