Citation Nr: 20060688 Decision Date: 09/15/20 Archive Date: 09/15/20 DOCKET NO. 20-11 322 DATE: September 15, 2020 ORDER Entitlement to an initial compensable rating for hypertension associated with diabetes mellitus type II is denied. Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected hypertension is denied. FINDINGS OF FACT 1. For the entire period on appeal, the preponderance of the evidence is against a finding that the Veteran’s service-connected hypertension presented with diastolic pressure predominately 100 or more, systolic pressure predominately 160 or more, or a history of diastolic pressure predominately 100 or more requiring continuous medication for control. 2. For the entire period on appeal, the preponderance of the evidence is against a finding that the Veteran’s service-connected hypertension rendered him unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101. 2. The criteria for a TDIU have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from February 1969 to September 1970. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2018 rating decision issued by a Department of Veterans Affairs (VA) regional office. As an initial matter, the Board notes that, when evidence of unemployability is submitted during the course of an appeal of an assigned disability rating, a claim for entitlement to a TDIU will be considered to have been raised by the record as “part and parcel” of the underlying claim. Rice v. Shinseki, 22 Vet. App. 447, 453-454 (2009). Here, the evidence of record indicates that the Veteran’s service-connected hypertension may have impacted his ability to work. Specifically, in his October 2018 Notice of Disagreement (NOD), the Veteran stated that he was seeking the highest possible rating, to include TDIU. As such, the Board finds that a claim for a TDIU due to the Veteran’s service-connected hypertension has been raised as part and parcel to the increased rating claim. Therefore, although the issue of entitlement to a TDIU has not been addressed by the Agency of Original Jurisdiction (AOJ), the issue is before the Board on appeal and is properly included in the list of issues before the Board. See Rice v. Shinseki, supra. The Board notes that a TDIU claim pursuant to Rice is limited to whether a veteran is unemployable due to the service-connected condition from which the claim arose, which in this case is CAD. See id. The Board acknowledges that the Veteran filed a claim of entitlement to a TDIU due to his service-connected disabilities in March 2020. See March 2020 VA Form 21-8940. However, the evidence of record indicates that this claim is still in development with the AOJ and therefore is not before the Board at this time. See 38 C.F.R. §§ 19.20, 20.201, 20.202. Initial 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. Where a claimant timely appeals the rating initially assigned for the service-connected disability, VA must consider whether the claimant is entitled to “staged” ratings to compensate them for times since filing the claim when their disability may have been more severe than at other times during the course of the appeal. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). If two ratings are potentially applicable, 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. In view of the number of atypical instances, it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. 38 C.F.R. § 4.21. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent with the facts shown in every case. Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. §§ 3.102, 4.3. Under 38 C.F.R. § 4.104, DC 7101, a 10 percent rating is assigned when there is diastolic pressure predominately 100 or more, systolic pressure predominately 160 or more, or a history of diastolic pressure predominately 100 or more requiring continuous medication for control. A 20 percent rating is assigned when there is diastolic pressure predominately 110 or more, or systolic pressure predominately 200 or more. A 40 percent rating is assigned when there is diastolic pressure predominately 120 or more. Lastly, a 60 percent rating is assigned when there is diastolic pressure predominately 130 or more. The Veteran submitted a claim of entitlement to service connection for hypertension in May 2011. See May 2011 VA Form 21-526EZ. In a May 2018 Board decision, the Board granted service connection for hypertension, secondary to service-connected diabetes mellitus. In the August 2018 rating decision, the AOJ implemented the Board’s grant of service connection and assigned a noncompensable rating, effective November 29, 2010. In October 2018, the Veteran filed a Notice of Disagreement (NOD), appealing the assigned rating. The appeal was subsequently perfected and is the issue before the Board. The Veteran’s medical records indicate that the Veteran’s hypertension has predominately presented with systolic pressure below 160 and diastolic pressure below 100. See Orlando VA Medical Center (VAMC) records, received February 2018 and March 2020 in CAPRI; Mid-Florida Cardiologist Specialists records; Dr. W.L. Mills records. In November 2011, the Veteran was afforded a VA examination regarding his hypertension. In this examination, the examiner noted that the Veteran was diagnosed with hypertension in 1996 and was currently on antihypertensive medication. The examiner also noted blood pressure readings of 133/76 in May 2011, 131/65 in November 2010, and 136/71 in June 2010. See November 2011 VA Hypertension Disability Benefits Questionnaire (DBQ). In September 2017, the Veteran was afforded another VA examination regarding his hypertension, the results of which were associated with the claims file in October 2017. In this examination, the examiner noted blood pressure readings of 146/72 and 150/74 on September 19, 2017, 151/74 and 169/73 on September 20, 2017, 143/71 and 169/79 on September 21, 2017, and 162/90, 162/91, and 160/95 on September 26, 2017. The examiner further noted an average blood pressure reading of 147/72. See September 2017 VA Hypertension DBQ. Upon review of the evidence of record, the Board finds that a compensable rating for the Veteran’s service-connected hypertension is not warranted at any time during the period on appeal. As noted above, a compensable rating for hypertension requires, at a minimum, diastolic pressure predominately 100 or more, systolic pressure predominately 160 or more, or a history of diastolic pressure predominately 100 or more requiring continuous medication for control. See 38 C.F.R. § 4.104, DC 7101. The Veteran’s medical records show that, throughout the period on appeal, and excluding the results of an August 2011 exercise stress test, his systolic blood pressure has ranged from a low of 105, recorded on May 14, 2014, to a high of 165, recorded on August 30, 2016. However, aside from the August 30, 2016 reading, the Veteran’s blood pressure readings have consistently shown systolic pressure below 160. Additionally, the Veteran’s diastolic blood pressure has ranged from a low 56, recorded on May 14, 2014, to a high of 89, recorded on November 30, 2017. Further, while the August 2011 exercise stress test recorded peak blood pressure of 190 systolic, 90 diastolic, the base blood pressure was recorded as 130 systolic, 80 diastolic. See Orlando VA Medical Center records; Mid-Florida Cardiologist Specialists records; Dr. W.L. Mills records. In November 2011, the Veteran was afforded a VA examination, in which the examiner noted blood pressure readings of 133/76 in May 2011, 131/65 in November 2010, and 136/71 in June 2010. See November 2011 VA Hypertension DBQ. In September 2017, the Veteran was afforded another VA examination regarding his hypertension, in which the examiner noted blood pressure readings of 146/72 and 150/74 on September 19, 2017, 151/74 and 169/73 on September 20, 2017, 143/71 and 169/79 on September 21, 2017, and 162/90, 162/91, and 160/95 on September 26, 2017. The examiner further noted an average blood pressure reading of 147/72. See September 2017 VA Hypertension DBQ. While the Board acknowledges that the September 2017 examination documented systolic blood pressure of 160 or more, the examiner specifically noted that the Veteran’s average systolic blood pressure was 142. Id. Additionally, the Veteran’s medical records show that the Veteran’s systolic blood pressure was recorded as 132 in August 2017, and as 138 and 149 in November 2017. Further, in November 2017 the Veteran reported that, at home, his systolic blood pressure averaged in the 130s. See Orlando VAMC records. Accordingly, the Board finds that at all times during the appeal period the Veteran’s blood pressure readings have predominately, but admittedly, not exclusively, been under 160 systolic and 100 diastolic. Further, although the Veteran does take medication for his hypertension, the evidence does not demonstrate a history of diastolic pressure predominately 100 or more. The Board notes that, in a March 2020 correspondence, the Veteran asserted that his disability had worsened. See March 2020 Correspondence. However, DC 7101 only provides for rating based on blood pressure readings and the Veteran’s medical records show that, as late as March 2020, the Veteran’s blood pressure was recorded as 138 systolic, 77 diastolic. See Orlando VAMC records. In sum, the preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for his service-connected hypertension. Accordingly, the claim is denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in this appeal. 38 U.S.C. § 5107(b). Entitlement to a TDIU Under 38 C.F.R. § 4.16(a), a TDIU rating may be assigned in cases in which the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities, provided that either the veteran’s single service-connected disability is ratable at 60 percent or more, or, if the veteran has multiple service-connected disabilities, one of the disabilities is ratable at 40 percent or more and the others bring the combined rating to 70 percent or more. Further, under 38 C.F.R. § 4.16(b), a TDIU may be awarded on an extraschedular basis if a veteran is unemployable due to service-connected disabilities that do not meet the percentage requirements set forth in 38 C.F.R. § 4.16(a). The term “unable to secure or follow a substantially gainful occupation” contains economic and noneconomic components. The economic component means “an occupation earning more than marginal income (outside of a protected environment) as determined by the U.S. Department of Commerce as the poverty threshold for one person,” while the noneconomic component requires consideration of a veteran’s ability to secure or follow that type of employment. In determining whether a veteran can secure and follow a substantially gainful occupation, attention is given to: the veteran’s history, education, skill, and training; the veteran’s physical ability to perform the types of activities required by the occupation at issue; and the veteran’s mental ability to perform the activities required by the occupation at issue. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). In evaluating a veteran’s employability, consideration may be given to his level of education, special training, and previous work experience, but not to their age or impairment caused by non-service-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19. The fact that a Veteran may be unemployed or has difficulty obtaining employment is not determinative. The ultimate question is whether a veteran, because of service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether he can find employment. See Van Hoose v. Brown, 4 Vet. App. 361 (1993). In the October 2018 NOD, the Veteran asserted that he was seeking TDIU due to his service-connected hypertension. In November 2011, the Veteran was afforded a VA examination regarding his hypertension. In this examination, the examiner noted that the Veteran’s hypertension did not impact his ability to work. See November 2011 VA Hypertension DBQ. In September 2017, the Veteran was afforded a VA examination regarding his hypertension. In this examination, the examiner noted that the Veteran’s hypertension did not impact his ability to work. See September 2017 VA Hypertension DBQ. The Veteran’s medical records are silent with respect to impacts of his hypertension on employability/unemployability. See Orlando VA Medical Center records; Mid-Florida Cardiologist Specialists records; Dr. W.L. Mills records. In a March 2020 correspondence, the Veteran asserted that he was unable to obtain and maintain substantially gainful employment due to his service-connected conditions. Specifically, the Veteran asserted that, due to his service-connected disabilities, he becomes easily winded when walking up stairs, becomes dizzy when putting on shoes, becomes light-headed when lifting objects, and becomes exhausted after working outside for an hour. See March 2020 Correspondence. As discussed above, the issue of entitlement to a TDIU due to service-connected hypertension has been raised by the record. Throughout the appeal period, the Veteran has received benefits for: diabetes mellitus type II, rated at 20 percent; residuals fragment wound, left shoulder, with limitation of motion, rated at 20 percent; status post wound, left forearm, with retained foreign body, rated at 10 percent; coronary artery disease with coronary artery bypass graft (CABG), rated at 10 percent; chest surgical scar status post CABG, rated as noncompensable; and hypertension, rated as noncompensable. The combined rating throughout the appeal period has been 50 percent. As such, the schedular threshold requirement for establishing entitlement to a TDIU has not been met. See 38 C.F.R. § 4.16(a). Nonetheless, TDIU may still be awarded on an extraschedular basis. See 38 C.F.R. § 4.16(b). Therefore, the Board must consider whether referral to the Director of Compensation Service for extraschedular consideration is warranted. As noted above, an assessment for extraschedular referral requires consideration of the Veteran’s service-connected disability, employment history, educational and vocational attainment, and all other factors having a bearing on the issue. Id. The ultimate question is whether the Veteran, because of his service-connected disability, is incapable of performing the physical and mental acts required by employment, not whether they can find employment. See Van Hoose v. Brown, supra. Referral for entitlement to TDIU on extraschedular basis hs been considered, but there is no persuasive credible evidence that the Veteran is unemployable due to his service-connected hypertension. The Veteran’s medical records are silent with respect to the impacts of the Veteran’s hypertension on his employability/unemployability. See Orlando VA Medical Center records; Mid-Florida Cardiologist Specialists records; Dr. W.L. Mills records. However, in November 2011 and September 2017 VA examinations, the examiners noted that the Veteran’s hypertension did not impact his ability to work. See November 2011 VA Hypertension DBQ; September 2017 VA Hypertension DBQ. Further, the Board notes that, aside from the October 2018 NOD, the Veteran has not contended that he is unemployable due to his hypertension alone. Indeed, the Veteran contends that he is unemployable due to all of his service-connected disabilities. See March 2020 Correspondence; March 2020 VA Form 21-8940; March 2020 VA Form 9. Specifically, the Veteran has asserted that, due to his service-connected disabilities, he becomes easily winded when walking up stairs, becomes dizzy when putting on shoes, becomes light-headed when lifting objects, and becomes exhausted after working outside for an hour. See id. However, while the Veteran is certainly competent to report his symptoms, he is not competent to attribute those symptoms to a particular diagnosis. See Jandreau v. Nicholson, 492 F. 3d 1372 (Fed. Cir. 2007). The Board finds that the record does not reflect that the Veteran’s service-connected hypertension prevented the Veteran from obtaining and maintaining substantially gainful employment. Based on the lack of evidence indicating such impairment paired with the Veteran’s own statements regarding the impact of disabilities other than hypertension, the Board finds that the record does not support a finding of unemployability on an extraschedular basis. As the preponderance of the evidence is against the claim, a schedular TDIU is not warranted and referral for consideration of extraschedular TDIU is also not warranted. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable, and the claim is denied. See Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001); 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. T. Berry Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. T. Martin III, 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.