Citation Nr: A20004960 Decision Date: 04/09/20 Archive Date: 04/09/20 DOCKET NO. 190708-35474 DATE: April 9, 2020 ORDER Entitlement to a 10 percent initial disability rating, but no higher, for service-connected hypertension, is granted. Entitlement to a compensable initial disability rating for service-connected hepatitis C is denied. Entitlement to a compensable initial disability rating for service-connected erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran’s hypertension has manifested in a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. 2. Throughout the period on appeal, the Veteran’s hepatitis C has not been manifested by any signs or symptoms. 3. The probative evidence of record does not demonstrate that the Veteran has deformity of the penis. CONCLUSIONS OF LAW 1. The criteria for entitlement to a 10 percent initial disability rating, but no higher, for service-connected hypertension, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101. 2. The criteria for entitlement to a compensable initial disability rating for service-connected hepatitis C have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.3, 4.114, DC 7354. 3. The criteria for entitlement to a compensable initial disability rating for service-connected erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.115b, DCs 7599-7522 REASONS AND BASES FOR FINDINGS AND CONCLUSIONS On August 23, 2017, the President signed into law the Veterans Appeals Improvement and Modernization Act, Pub. L. No. 115-55 (to be codified as amended in scattered sections of 38 U.S.C.), 131 Stat. 1105 (2017), also known as the Appeals Modernization Act (AMA). This law creates a new framework for Veterans dissatisfied with VA’s decision on their claim to seek review. The Veteran chose to participate in VA’s test program, the Rapid Appeals Modernization Program (RAMP). See February 2019 RAMP Opt-In Election Form; 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 19.2(d)). The Veteran served on active duty from November 1975 to November 1978. A June 2019 RAMP rating decision granted entitlement to service connection for hypertension and assigned a noncompensable initial rating effective from October 13, 2011, granted entitlement to service connection for hepatitis C and assigned a noncompensable initial rating effective from September 7, 2011, and granted entitlement to service connection for erectile dysfunction and assigned a noncompensable initial rating effective from October 13, 2011. In July 2019, the Veteran submitted a VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement) as to the initial ratings assigned in the June 2019 RAMP rating decision for hepatitis C, erectile dysfunction and hypertension. Thus, the Veteran timely appealed this RAMP rating decision to the Board. He requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). See July 2019 VA Form 10182. Under direct review, the Veteran indicates that he does not want a Board hearing, and that he will not submit any additional evidence in support of the appeal. Hence, no development may be undertaken; the Veterans Law Judge considers the same record as the AOJ in rendering a decision. 84 Fed. Reg. 138, 182 (Jan. 18, 2019) (to be codified at 38 C.F.R. § 20.301). The Board is cognizant of the ruling the CAVC in Rice v. Shinseki, 22 Vet. App. 447 (2009). In Rice, the Court held that a claim for a total rating based on individual unemployability due to service-connected disability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is part of the claim for an increased rating. In this case, the Veteran has not argued, and the record does not otherwise reflect, that the disabilities at issue render him unemployable. Accordingly, the Board concludes that a claim for a TDIU has not been raised. Increased Ratings Disability ratings are determined by the application of a Schedule of Ratings (Schedule) that is based on the average impairment of earning capacity. Separate DCs identify the various disabilities. 38 C.F.R., Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. The Veteran’s entire history is reviewed when making disability evaluations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1995). In general, the degree of impairment resulting from a disability is a factual determination and the Board’s primary focus in such cases is upon the current severity of the disability. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings can be assigned for separate periods of time based on facts found, a practice known as staged ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Entitlement to a 10 percent initial disability rating, but no higher, for service-connected hypertension. The Veteran seeks a compensable initial disability rating for his service-connected hypertension currently rated as noncompensable under DC 7101. Under DC 7101, a 10 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, DC 7101. A 20 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Id. At a February 2019 VA examination, the Veteran’s blood pressure readings did not meet the criteria for a 10 percent rating. However, the examiner noted the Veteran was taking continuous medication for his hypertension. See February 2019 VA examination. At a May 2019 VA examination, the Veteran’s blood pressure readings were 160/90; 164/92; and 170/94. There were no other pertinent physical findings, complications, conditions, signs, symptoms or scars associated with his hypertension in either VA examination. Neither examination addressed whether the Veteran had a history of diastolic blood pressure elevation predominantly 100 or more. The Veteran’s VA treatment records document blood pressure readings of 150/101 in June 2016; 175/115 in January 2016; 161/105 in November 2015; and 170/102 in October 2014. After review of the competent and probative evidence, the Board finds that the Veteran’s hypertension more nearly approximates the criteria for a 10 percent disability rating, but no higher. During the rating period, the Veteran has had a history of diastolic pressure of 100 or more and he has continuously used medication to manage his hypertension. Throughout the rating period on appeal, a rating in excess of 10 percent is not warranted because there is no competent evidence demonstrating that the Veteran had diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more at any time during the course of the appeal. The VA regulations do not define the term “predominantly.” The Merriam Webster dictionary defines the term “predominantly” as “for the most part” or “mainly.” See Predominantly definition, Merriam-Webster.com, available at https://www. Merriam-webster.com/dictionary/predominantly (last visited February 18, 2020). Though the Veteran’s diastolic blood pressure reading has been more than 110 on occasion, the evidence of record demonstrates his diastolic readings have mostly been 100 or less. Additionally, both the February and May 2019 VA examinations demonstrated blood pressure readings with diastolic pressure of less than 100. The Veteran has not presented or identified any evidence indicating that his diastolic pressure is predominantly 110 or more, or that his systolic pressure is predominantly 200 or more. The Board has also considered whether the Veteran’s claim should be referred for consideration of an extraschedular rating pursuant to 38 C.F.R. § 3.321(b), which is a component of a claim for an increased rating. See Bagwell v. Brown, 9 Vet. App. 337, 339 (1996). Significantly, the Board finds that referral for extraschedular consideration is not warranted in this case. The Veteran has not been shown to have symptoms that are not contemplated by the pertinent rating criteria. 38 C.F.R. § 4.104, DC 7101. In this regard, the Board concludes that there is nothing exceptional or unusual about the Veteran’s disability picture and that the rating criteria under DC 7101 adequately describe his disability level and symptomatology. See Thun v. Peake, 22 Vet. App. 111, 115 (2008). Thus, referral for extraschedular consideration is not warranted. In summary, the Board finds that, throughout the entire appeal period, the manifestations of the Veteran’s hypertension more nearly approximate the criteria for a 10 percent rating, but no higher. 38 C.F.R. §§ 4.3, 4.104, DC 7101. The Board notes that neither the Veteran nor his representative have raised any other issues over which the Board has proper jurisdiction, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Entitlement to a compensable initial disability rating for service-connected hepatitis C. The Veteran seeks a compensable disability rating for service-connected hepatitis C currently rated as noncompensable under DC 7354. Under DC 7354, a non-compensable (zero percent) disability rating is assigned for non-symptomatic hepatitis C. See 38 C.F.R. § 4.114, DC 7354. A 10 percent rating is assigned for intermittent fatigue, malaise, and anorexia; or, incapacitating episodes (with symptoms such as fatigue, malaise, nausea, vomiting, anorexia, arthralgia, and right upper quadrant pain) having a total duration of at least one week, but less than two weeks, during the past 12-month period. Id. Note (1) provides that sequelae such as cirrhosis or malignancy of the liver are to be rated under an appropriate DC, but not to use the same signs and symptoms as the basis for rating under DC 7354 respectively, and under a DC for sequelae. Id. Note (2) under DC 7354 provides that “incapacitating episodes” means a period of acute signs and symptoms severe enough to require bed rest and treatment by a physician. Id. VA treatment records indicate the Veteran was diagnosed with hepatitis C in February 2005, and the Veteran denied having any symptoms at that time. See May 2005 VA treatment records. In August 2007, the Veteran reported that he was fatigued from his hepatitis C; however, VA treatment records do not demonstrate the Veteran had intermittent fatigue and indicate the Veteran received treatment for his hepatitis C condition through the VA. See August 2007 VA treatment records. The Veteran was afforded VA examinations in February 2019 and May 2019. The examiners reviewed the Veteran’s laboratory and other test findings. Though both VA examiners diagnosed the Veteran with nonalcoholic steatohepatitis (fatty liver disease), both VA examinations indicate the Veteran did not have intermittent fatigue, malaise, anorexia or any incapacitating episodes. See February and May 2019 VA examinations. Both VA examiners also noted that the Veteran’s hepatitis C condition had gotten better and noted that the Veteran did not have any signs or symptoms of cirrhosis. Id. Based on the above, the preponderance of the evidence is against the assignment of a compensable rating for the Veteran’s service-connected hepatitis C. Neither the Veteran nor his representative have presented any lay or medical evidence which would indicate a worsening of his condition. In fact, the February and May 2019 VA examinations indicate the Veteran’s condition has improved and the Veteran has not provided any evidence to the contrary. As the preponderance of evidence is against the claim, the benefit of the doubt doctrine is not for application and the claim must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that neither the Veteran nor his representative have raised any other issues over which the Board has proper jurisdiction, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). Entitlement to a compensable initial disability rating for service-connected erectile dysfunction. The Veteran seeks a compensable rating for his service-connected erectile dysfunction currently rated as noncompensable under DCs 7599-7522. Hyphenated DCs are used when a rating under one code requires use of an additional DC to identify the basis for the rating assigned. 38 C.F.R. § 4.27. Here, the use of DC 7599-7522 reflects that there is no DC specifically applicable to the Veteran’s service-connected erectile dysfunction, and that the disability has been rated by analogy to penis deformity, with loss of erectile power, under DC 7522. 38 C.F.R. § 4.20. DC 7522 allows for a 20 percent disability rating when the evidence shows both loss of erectile power and a physical deformity of the penis. See 38 C.F.R. § 4.115b, DC 7522. Additionally, a note to DC 7522 indicates that entitlement to special monthly compensation (SMC) under 38 C.F.R. § 3.350 should also be considered. Id. Here, the Board notes that the Veteran is already in receipt of a separate award of SMC due to loss of use of a creative organ as a result of his erectile dysfunction from October 13, 2011, the effective date of the award of service connection. See June 2019 rating decision. Although the rating schedule does not provide a zero percent evaluation for DC 7522, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. After careful review of the evidence of record, the Board concludes that a compensable disability rating is not warranted for the Veteran’s erectile dysfunction as penile deformity has not been shown at any time during the rating period for consideration. VA treatment records received in January 2012 demonstrate the Veteran underwent an October 1992 genitalia examination resulting in a normal examination and no deformities were indicated. An August 2011 genitals exam also indicated that the testicular physical exam was normal, and no deformities of the penis were noted or reported. See August 2011 VA treatment records. Additionally, the Veteran submitted private treatment records in December 2011 that consists of an April 1994 physical examination resulting in normal genitalia and no deformities of the penis were reported or indicated in the examination. The Veteran was afforded VA examinations in January and May 2019. The January 2019 VA examiner did not exam the Veteran’s penis after determining that a physical exam was not relevant to the Veteran’s erectile dysfunction condition. See January 2019 VA examination. Therefore, the January 2019 VA examination is not adequate for decision making purposes. However, at a May 2019 VA examination, the Veteran submitted a waiver of the physical examination, and as such, the VA examiner did not conduct a physical examination of the Veteran’s penis. See May 2019 VA examination. The Veteran did not report that he had a deformity of his penis at either VA examination. The Board notes that neither VA examination addressed whether the Veteran had a penile deformity. However, the Veteran was afforded a second examination and waived the physical examination. In this respect, the duty to assist is a two-way street. A claimant must actively assist VA in assessing his disability, for example, allowing for the VA examiner to perform necessary testing and examinations that may provide a better understanding of the disability claimed. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). In short, the Veteran was given an opportunity to aid VA in developing his claim but failed to do so. Additionally, neither the Veteran nor his representative have provided VA with any competent evidence of penile deformity. As such, the Board finds it is not necessary to remand the claim for another VA examination. Based upon the evidence of record, the Board finds that the evidence of record does not demonstrate that the Veteran has a penile deformity. The Board therefore finds that the criteria for a compensable rating for the Veteran’s service-connected erectile dysfunction have not been met at any time during the rating period. As the preponderance of the evidence is against the assignment of a compensable rating, the benefit of the doubt doctrine is not for application and the appeal must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Board notes that neither the Veteran nor his representative have raised any other issues over which the Board has proper jurisdiction, nor have any other issues been reasonably raised by the record. See Yancy v. McDonald, 27 Vet. App. 484, 495 (2016); Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (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). U. R. POWELL Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. P. Moore, 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.