Citation Nr: 21001272 Decision Date: 01/07/21 Archive Date: 01/07/21 DOCKET NO. 14-37 383 DATE: January 7, 2021 ORDER A rating of no more than 20 percent is granted for hypertension from November 29, 2011, subject to the law and regulations governing the award of monetary benefits. A total disability rating based on individual unemployability due to service-connected disability (TDIU) prior to March 29, 2012 is denied. FINDINGS OF FACT 1. During the pendency of the Veteran’s claim for increase, which originated from an application received on November 29, 2011, his service-connected hypertension has more nearly approximated than not the criterion of diastolic pressure predominantly 110 or more. 2. Prior to March 29, 2012, the Veteran’s only service-connected disability was his hypertension; the record does not reflect that his hypertension rendered him incapable of securing or following a substantially gainful occupation during that time. CONCLUSIONS OF LAW 1. The criteria for an increased rating of no more than 20 percent for hypertension have been met from November 29, 2011. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101. 2. The criteria for an award of a TDIU prior to March 29, 2012 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 3.340, 4.16. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from March 1975 to October 1976. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by the Department of Veterans Affairs (VA) Regional Office in Roanoke, Virginia. This case was previously before the Board in September 2018 and July 2020. In September 2018, the Board, in pertinent part, denied a rating in excess of 10 percent for the Veteran’s hypertension. The Veteran appealed the Board’s September 2018 decision to the United States Court of Appeals for Veterans Claims (Court). In January 2020, the Court granted a Joint Motion for Partial Remand filed by the parties to the appeal (the Veteran, through an attorney, and representatives from VA General Counsel), thereby vacating the Board’s decision insofar as it denied a rating in excess of 10 percent for hypertension and remanding that matter for readjudication. In July 2020, the Board remanded the case to the agency of original jurisdiction (AOJ) for additional development, to include a new examination. There has been at least substantial compliance with the Board’s remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); Stegall v. West, 11 Vet. App. 268 (1998). The Board notes that the August 2012 rating decision did not formally adjudicate the issue of entitlement to a TDIU. However, in the July 2020 remand, the Board found that the issue had been raised as part and parcel of the Veteran’s claim for increase, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As TDIU had already been granted from March 29, 2012, the Board found that the issue of entitlement to a TDIU prior to that date was properly before it for adjudication. 1. Entitlement to a rating in excess of 10 percent for hypertension Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to the various disabilities. If there is a question as to which of two evaluations shall be applied, the higher evaluation 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. If different disability ratings are warranted for different periods of time over the life of a claim, “staged” ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hypertension is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.104, Diagnostic Code 7101. A 10 percent rating is warranted if hypertension is manifested by diastolic blood pressure predominantly 100 or more, or if the systolic pressure is predominantly 160 or more. A 10 percent rating is also warranted if the condition requires continuous medication for control, and there is a history of diastolic pressure predominantly 100 or more. A 20 percent rating is warranted if the diastolic pressure is predominantly 110 or more, or if the systolic pressure is predominantly 200 or more. A 40 percent rating is warranted if the diastolic pressure is predominantly 120 or more, and a 60 percent rating is warranted if the diastolic pressure is predominantly 130 or more. Initially, the Board notes that the Veteran's hypertension is treated with medication. That is consistent with the current 10 percent rating. As the rating criteria for hypertension specifically contemplate the use of medication to ameliorate symptoms, a higher rating may not be assigned based solely on the fact that medication is used. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), (“[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication . . . the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication.”); McCarroll v. McDonald, 28 Vet. App. 267 (2016) (finding that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of Diagnostic Code 7101 contemplates the effects of medication). The Veteran was afforded a VA examination in March 2012, at which time it was noted that he required continuous medication for control of his hypertension. It was further noted that he had a history of a diastolic blood pressure elevation to predominantly 100 or more. Blood pressure readings at the time of the examination were 140/107, 156/115, and 155/100. Treatment records show blood pressure readings as follows: 150/110 (January 2011); 130/93 (November 2011); 155/110 (March 2012); 150/100 (April 2012); 160/100 (May 2012); 132/78 (August 2012); 157/108, 142/90 (September 2012); 118/85, 122/83, 125/88, 121/86 (December 2012); 133/67 (February 2013); 122/87, 136/86, 134/91, 127/92 (March 2013);135/97 (April 2013); 118/84 (July 2013); 130/90 (September 2013); 160/90 (November 2013); 144/106 (December 2013); 194/135, 160/110 (September 2015); 144/87, 156/95 (October 2015); 184/110 (December 2015); 153/110, 181/118, 162/104, 161/105, 152/99, 151/101, 166/109, 177/118, 172/113, 160/104, 160/112 (January 2016); 156/98 (February 2016); 167/103, 177/117, 206/138 (May 2016); 142/88 (June 2016); 111/74 (July 2016); 180/90, 211/105 (October 2016); 148/91 (November 2016); 130/84 (July 2017); 159/97, 151/97 (December 2017); 128/89 (January 2018); 133/88 (September 2018); 146/93 (September 2019); 207/112, 216/114, 132/90 (October 2019); and 160/110, 125/82 (February 2020). At an August 2020 VA examination, it was noted that the Veteran took his own blood pressure readings at home. He reported the following readings: 175/115 and 184/111 (February 2020); 151/96, 153/99, 152/94, 142/88 (May 2020); 138/97, 146/93 (June 2020); and 134/91 (July 2020). The record reflects that the August 2020 examination was conducted via approved video telehealth, and that the blood pressure readings were noted as being the recent readings of 132/90 from October 2019, and 160/110 and 125/82 from February 2020. The Board notes that in evaluating the Veteran’s hypertension under Diagnostic Code 7101, emphasis is on “predominant” blood pressure readings. See McCarroll, 28 Vet. App. at 274 (holding that a single diastolic blood pressure reading of 100 does not demonstrate a history of diastolic pressure “predominantly” 100 or more, as required by Diagnostic Code 7101). Here, the Board notes that most of the Veteran’s diastolic readings have been below 110, and most of his systolic readings have been below 200. However, there are also multiple readings of diastolic pressure of 110 or more, to include in March 2012, September 2015, December 2015, January 2016, May 2016, October 2019, and February 2020. In the JMPR filed with the Court, the parties to the appeal agreed that the Board in its September 2018 decision had not adequately addressed evidence showing diastolic readings of 110 or more. The JMPR identified records containing such readings which were not explicitly noted in the September 2018 Board decision. Those readings have been included in the summary detailed above. The Board also notes that there have been some systolic readings in excess of 200, to include in May 2016, October 2016, and October 2019. The law mandates resolving any reasonable doubt regarding degree of disability in favor of the claimant, to include with respect to the question of whether a disability “more nearly approximates” the criteria for the next higher rating. See 38 C.F.R. §§ 3.102, 4.3, 4.7. Here, resolving reasonable doubt in the Veteran’s favor, the Board finds that during the pendency of his claim for increase, his service-connected hypertension has more nearly approximated than not the criterion of diastolic pressure predominantly 110 or more. Therefore, a 20 percent rating is warranted. This rating also contemplates the systolic readings of 200 or more. In making this determination, the Board notes that the appeal originated from an application received on November 29, 2011. As such, the 20 percent rating is warranted from that date. See 38 U.S.C. § 5110; 38 C.F.R. § 3.400. The Board notes that a July 2010 rating decision denied a rating in excess of 10 percent for the hypertension, and the Veteran did not appeal. The Board is generally precluded from evaluating the claim on the evidence that was of record at the time of that final decision. See 38 U.S.C. §§ 7104, 7105; 38 C.F.R. §§ 20.1100, 20.1103. A thorough review of the record does not reflect that the Veteran’s hypertension has been manifested by diastolic pressure predominantly 120 or more; nor does he contend otherwise. Consequently, the preponderance of the evidence is against the assignment of a rating in excess of 20 percent, to include as a “staged” rating(s) pursuant to Fenderson and Hart, supra. 2. Entitlement to a TDIU prior to March 29, 2012 It is the established policy of VA that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). A total disability will be considered to exist when there is present any impairment of mind or body which is sufficient to render it impossible for the average person to follow a substantially gainful occupation. A total disability may or may not be permanent. Total ratings will not be assigned, generally, for temporary exacerbations or acute infectious diseases except where specifically prescribed by the schedule. 38 C.F.R. § 3.340(a). A total disability rating for compensation purposes may be assigned where the schedular rating is less than total, where it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a service-connected disability ratable at 60 percent or more or as a result of two or more disabilities, providing at least one disability is ratable at 40 percent or more, and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. 38 C.F.R. §§ 3.340, 4.16(a). Prior to March 29, 2012, service connection was only in effect for hypertension, which had been evaluated as 10 percent disabling from March 4, 2009. For the reasons detailed above, the Board has found that he is entitled to a 20 percent rating from November 29, 2011. Regardless, he does not meet the schedular criteria for consideration of a TDIU prior to March 29, 2012 as set out at 38 C.F.R. § 4.16(a). The Board acknowledges that a TDIU may be awarded on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). Where appropriate, the case can be referred to the Director of the Compensation Service for initial consideration of whether a TDIU is warranted on an extraschedular basis. However, for the reasons detailed below, the Board must find that such referral is not warranted. The Board acknowledges that the Veteran has reported not engaging in substantially gainful employment prior to the March 2009 effective date of the award of service connection for hypertension. For example, on a July 2019 VA Form 21-8940 (Veteran’s Application for Increased Compensation Based on Unemployability) he reported that he had last worked full-time in 2006. At a July 2019 VA mental disorders examination, he reported that he had last worked full-time in 2004. In addition, the evidence reflects he was found entitled to disability benefits from the Social Security Administration (SSA) effective March 1, 2010. See February 2011 SSA decision. The Board notes, however, that the record, including the Veteran’s own contentions, reflects that his unemployment at that time was primarily due to his schizoaffective disorder. For example, while hypertension was listed as a secondary diagnosis, an SSA disability determination sheet listed affective/mood disorders as the primary diagnosis. Further, the Veteran himself listed the schizoaffective disorder as the cause of his unemployability on the July 2019 VA Form 21-8940, and did not list any other condition, to include hypertension. He also detailed at the July 2019 VA mental disorders examination how it was his psychiatric symptoms that had resulted in lost jobs over the years. Significantly, service connection for schizoaffective disorder was not in effect until March 29, 2012. As such, the impairment due to that disability is not for consideration when determining whether a TDIU is warranted prior to that date. See Van Hoose v. Brown, 4 Vet. App. 361 (1993) (a TDIU may not be based upon the veteran’s age or impairment attributable to non-service-connected disability.). The Board acknowledges that the Veteran did experience some occupational impairment due to his hypertension. For example, at the March 2012 VA examination, he reported that he kept losing jobs; that he was a carpenter and could not climb up high; he could not stoop down and raise up; and that they kept changing and adding to his blood pressure medication. Similarly, at the August 2020 VA examination, he reported that when he was working, on days his blood pressure was very elevated and he was lightheaded, he was unable to work up high on ladders. The Board finds, however, that the level occupational impairment attributable to the Veteran’s hypertension prior to March 29, 2012 has been adequately compensated by the schedular rating(s) in effect for that period. Loss of industrial capacity is the principal factor in assigning schedular disability ratings. See 38 C.F.R. §§ 3.321(a), 4.1. Indeed, 38 C.F.R. § 4.1 specifically states: "[g]enerally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability." See also Van Hoose, 4 Vet. App. at 363 (1993) (noting that the disability rating itself is recognition that industrial capabilities are impaired). The Board’s finding is further supported by other evidence which indicates the Veteran was not unemployable due solely to his hypertension prior to March 29, 2012. In pertinent part, medical records from the SSA dated in April 2009 noted that it was felt that the evidence showed non-severe physical impairment. A June 2010 VA examiner indicated that the Veteran was unemployed at the time of the examination, but that his unemployment was not due to his hypertension. Further, despite the Veteran’s contentions, the March 2012 VA examiner indicated that the Veteran’s hypertension did not have an effect on his ability to work. It is also noted that the Veteran reported at that examination that he “could not take the pressure of the job” which reflects the impairment he experienced from his schizoaffective disorder. For all of these reasons, the Board finds that the preponderance of the evidence is against an award of a TDIU prior to March 29, 2012, to include referral for extraschedular consideration. As such, the benefit of the doubt doctrine is not for application, and the appeal of this issue must be denied. See generally Gilbert v. Derwinski, 1 Vet. App. 49, 54 (1990). DAVID A. BRENNINGMEYER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board John Kitlas, 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.