Citation Nr: 20044444 Decision Date: 07/01/20 Archive Date: 07/01/20 DOCKET NO. 15-21 700 DATE: July 1, 2020 ORDER An initial compensable rating for hypertension is denied. FINDING OF FACT The Veteran’s hypertension is not manifested by diastolic pressure predominantly 100 or more; by systolic pressure predominantly 160 or more; or by a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. CONCLUSION OF LAW The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, , 4.10, 4.31, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1969 to October 1993. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2013 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). This issue was previously before the Board in July 2018, at which time it was remanded for further development. In December 2016, the Veteran testified before the undersigned at a Board hearing. A transcript of that hearing has been associated with the virtual file and reviewed. The Board notes that the Veteran’s claim for entitlement to service connection for arthritis of the hands was granted in a May 2020 rating decision. The decision represents a grant that is considered to be a full and final determination of that claim. Therefore, the Veteran’s disabilities for arthritis of the hands will not be addressed in the Board’s decision. Entitlement to an initial compensable rating for hypertension Disability ratings are assigned under a schedule for rating disabilities and based on a comparison of the veteran’s symptoms to the criteria in the rating schedule. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Disability evaluations are determined by assessing the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the ratings schedule. Individual disabilities are assigned separate Diagnostic Codes, and ratings are based on the average impairment of earning capacity. See 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2. If there is a question as to which evaluation should be applied to the veteran’s disability, 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 Veteran’s service-connected hypertension has been assigned an initial noncompensable rating under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). In every instance, such as here, where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. DC 7101 provides a minimally compensable, 10 percent, rating where diastolic pressure is predominantly 100 or more; systolic pressure is predominantly 160 or more; or where an individual has a history of diastolic pressure that is predominantly 100 or more requiring continuous medication for control. The Board notes that words such as “predominantly” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Regardless, a basic understanding of predominant would suggest that the diastolic pressure was above a certain level more often than it was below it. The Board acknowledges the Court’s holding 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. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012). However, the Court subsequently determined that for hypertension, the plain language of Diagnostic Code 7101 contemplates the effects of medication and, thus, Jones 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. At his December 2016 Board hearing, the Veteran indicated that his blood pressure readings fluctuated and he, at times, got higher than normal readings. He took continuous medication and indicated that his hypertension had worsened. The Veteran underwent a VA examination in April 2013. At that time, the examiner noted the Veteran was diagnosed with hypertension. He required the continuous use of medication for his hypertension. The Veteran’s blood pressure readings at examination were 154/76, 151/83, and 150/75. It was indicated there was no history of diastolic blood pressure elevation to predominantly 100 or more. The Veteran underwent another VA examination in July 2013. He continued to take medication and did not have a history of diastolic blood pressure elevation to predominantly 100 or more. His blood pressure readings at examination were 150/78, 151/82, and 150/76. In a March 2015 VA examination, treatment included continuous medication and no history of diastolic blood pressure elevation to predominantly 100 or more. The examiner indicated the Veteran had an average blood pressure reading of 136/73 and a history of blood pressure readings of 130/69 (07/22/2014); 138/76 (01/29/2015); and 140/74 (03/10/2015). He reported dizziness associated with high blood pressure. The Veteran was afforded another VA examination in July 2019. He reported that his blood pressure regularly fluctuated. His treatment included continuous medication and he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. His readings earlier in the month of July 2019 included 165/114, 132/102, 142/107. On examination, his readings were 127/68, 128/69, and 112/65. The report reflects his average blood pressure reading was 135/85. At a December 2019 VA examination, it was noted that his treatment included continuous medication and he had no history of diastolic blood pressure elevation to predominantly 100 or more. His blood pressure readings at examination were 154/72, 128/83, 152/76. The Board acknowledges that a February 2016 private medical report reflects that the Veteran’s blood pressure was 181/93, but this reading appears to be an exception, as this was the only instance of a systolic reading over 160 in the medical records. The other competent evidence, as detailed above, tends to outweigh this lone reading. Therefore, it cannot be said that he had a history of diastolic pressure that was predominantly greater than 100 or a systolic pressure that was predominantly greater 160 or more. Finally, the Board has also considered the Veteran’s lay statements that he believes he is entitled to a higher rating. The Veteran is competent to report symptoms of the diagnosed hypertension as this requires only personal knowledge as it comes through the senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). He is not, however, competent to identify a specific level of disability for his condition, according to the appropriate diagnostic codes, or, to attribute specific symptoms to a disability. See Robinson v. Shinseki, 557 F.3d 1355 (2009). Such competent evidence concerning the nature and extent of the Veteran’s disability has been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and treatment records) directly address the criteria under which the disability is evaluated. Accordingly, the preponderance of the evidence is against the claim for an initial compensable rating for hypertension. In this matter, there is no doubt to be resolved and a higher rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. As such, the appeal for a higher rating is denied. Paul Sorisio Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Cruz, 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.