Citation Nr: 20057774 Decision Date: 09/01/20 Archive Date: 09/01/20 DOCKET NO. 15-17 819 DATE: September 1, 2020 ORDER An initial compensable disability rating for service-connected hypertension is denied. FINDING OF FACT It is not reasonably shown that the Veteran’s hypertension is manifested by diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more and requires continuous medication. CONCLUSION OF LAW The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.31, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from March 1971 to April 1972, including service in the Republic of Vietnam. Procedurally, the Veteran testified at a hearing held before the Board of Veterans’ Appeals (Board) in July 2018. Following the Board hearing, that same month, the Veteran’s claims of entitlement to service connection for chronic obstructive pulmonary disease (COPD), irritable bowel syndrome (IBS), gastroesophageal reflux disease (GERD), special monthly compensation (SMC) based on aid and attendance/housebound and entitlement to an initial compensable disability rating for service-connected hypertension were remanded for additional development. The additional development was completed and the Regional Office (RO) issued a supplemental statement of the case (SSOC) in March 2020. Following the issuance of the SSOC, in April 2020, the Veteran filed a Decision Review Request: Board Appeal (Notice of Disagreement) for the issues of entitlement to service connection for COPD, GERD, IBS and SMC based on aid and attendance /housebound which opted those claims into the Appeals Modernization Act (AMA). However, the issue of entitlement to an initial compensable disability rating for service-connected hypertension was not included on the Veteran’s VA Form 10182 and therefore, remained in the legacy appeals system. Because the Veteran’s service connection and SMC claims have been opted into the AMA system, they will not be addressed further in this decision. A separate Board decision will be issued at a later date. Increased Rating Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran’s disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The United States Court of Appeals for Veterans Claims (Court) has held that “staged” ratings are appropriate for an increased rating claim where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the veteran prevailing in either event, or whether a preponderance of the evidence is against the claim, in which case the claim is denied. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination, the benefit of the doubt is afforded to the veteran. Gilbert, 1 Vet. App. at 53. Entitlement to an initial compensable disability rating for service-connected hypertension The Veteran contends his service-connected hypertension warrants a compensable disability rating. The Veteran’s hypertension is evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under this code, a 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or for a history of diastolic pressure predominantly 100 or more controlled by medication. 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 for diastolic pressure predominantly 120 or more. A maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. Throughout the period at issue, VA treatment records show the Veteran has been prescribed Lisinopril and Hydrochlorothiazide in order to control his hypertension. Additionally, discharge records from a private hospital dated November 2011 show blood pressure readings of 118/73 and 112/67 and VA treatment records dated March 2012 from the Veteran’s primary care appointment show his blood pressure was 132/94. See Medical Treatment Records received July 2013; VA treatment records received June 2013. Furthermore, VA treatment records dated August 2012 show the Veteran’s blood pressure was 135/90. See VA treatment records received January 2013. On June 2013 VA examination, the Veteran reported that his hypertension had worsened by noting that he had episodes of high and low blood pressure an had to adjust his medication dosage. It was noted that the Veteran’s treatment plan included taking continuous medication; however, there was no history of diastolic blood pressure elevation to predominantly 100 or more. The Veteran’s blood pressure readings recorded that day were 148/84, 148/86 and 146/82. The examiner indicated the Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to his hypertension. The functional impact of the Veteran’s hypertension or isolated systolic hypertension was noted to be labile hypertension causing frequent dizziness and medication adjustments. At the July 2018 Board hearing, the Veteran’s private attorney contended a 10 percent disability rating was warranted for the Veteran’s hypertension because, since the July 2013 VA examination, his VA treatment records had documented four instances where his systolic pressure had been over 160. No additional testimony was provided relating to this issue. See July 2018 hearing transcript. Following the Board hearing, the Veteran underwent an updated VA examination in May 2019 to determine the current nature of his hypertension. At the examination, the Veteran reported his current symptoms as feeling flush, dizzy and had a loss of balance at times. It was noted that his treatment plan included taking continuous medication for hypertension; however, he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. Blood pressure readings recorded that day were 141/87, 148/79, and 150/91 with an average blood pressure reading of 148/91. Edema with cellulitis, purple-reddish erythremia with evidence of small healing sores (reported ant bites) were also observed. There examiner did not find any functional impact from the Veteran’s hypertension on his ability to work. See May 2019 VA examination. More recent VA treatment records show that in July 2018, the Veteran’s blood pressure was 166/105. In September 2018, his blood pressure was 136/90 and 147/79 in November 2018. In March 2019, his blood pressure was 124/81; in April 2019, his blood pressure was 144/92; in June 2019, his blood pressure 135/87; in October 2019, his blood pressure was 155/84 and 139/88; and in November 2019, his blood pressure was 144/97 and 164/90. In February 2020, his blood pressure was 148/87 and 149/84. See VA treatment records received March 2020. After reviewing the foregoing evidence, the Board finds that a compensable evaluation is not warranted for the Veteran’s hypertension. Compensable ratings are available for diastolic pressure predominantly 100 or more, for systolic pressure predominantly 160 or more, or for a history of diastolic pressure predominantly 100 or more controlled by medication. The evidence weighs against such manifestations. During the appeal period, the Veteran has required continuous medication for control of his hypertension. There have also been isolated systolic readings of 160 or more and diastolic readings of 100 or more. However, even acknowledging these isolated readings, the Board finds they are vastly outnumbered by those readings that are less than 160 and 100, and the regulations explicitly require predominance for compensable ratings. Importantly, the recent May 2019 VA examination also showed systolic readings of less than 160 and diastolic readings less than 100, and both examiners indicated the Veteran did not have a history of diastolic pressure predominantly 100 or more. Additionally, although the Veteran has asserted that his blood pressure readings meet the required levels for a compensable disability rating, as noted above, his statements are not corroborated by the treatment records or VA examination reports associated with his claims file. Notably, although the Veteran complained of dizziness at the VA examinations conducted in 2013 and 2019, a review of his VA treatment records shows that he has consistently denied having dizziness during routine reviews of his systems. Accordingly, a compensable disability rating for service-connected hypertension is not warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Churchwell, 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.