Citation Nr: 21001983 Decision Date: 01/12/21 Archive Date: 01/12/21 DOCKET NO. 09-02 270 DATE: January 12, 2021 ORDER Entitlement to an initial 10 percent evaluation for hypertension, on the basis of substitution is granted, subject to the laws and regulations governing the payment of monetary benefits. REMANDED Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 9, 2015, on the basis of substitution, is remanded. Entitlement to special monthly compensation (SMC) at the rate under 38 U.S.C. § 1114(s) (S level) based on housebound status prior to March 9, 2015, on the basis of substitution, is remanded. Entitlement to Chapter 35 Dependents’ Educational Assistance (DEA) benefits prior to March 9, 2015, on the basis of substitution, is remanded. REFERRED The record shows that claims for increased evaluations for left and right hand arthritis have remained in remand status with the agency of original jurisdiction (AOJ) awaiting readjudication following a January 2019 Board of Veterans’ Appeals (Board) decision. The claims are referred to the AOJ for appropriate action – including reactivating the appeal stream in VACOLS under the same docket number as this decision if necessary. See November 2020 and December 2020 email correspondence. FINDING OF FACT The Veteran’s hypertension more nearly approximated systolic pressure predominantly 160 or more; the appeal was limited to a request for a 10 percent evaluation for this disability. CONCLUSION OF LAW The criteria for an evaluation of 10 percent for hypertension, on the basis of substitution, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1-4.14, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1961 to November 1972. He died in October 2019, and the appellant is seeking benefits as his surviving spouse and substitute claimant. See February 2020 decision granting substitution. This case comes before the Board on appeal from January 2015 and August 2015 rating decisions by the Department of Veterans Affairs (VA). In the January 2019 decision, the Board denied the above claims, decided other claims that had been on appeal, and remanded the referred claims identified above for further development. The Veteran appealed the Board’s decision to the United States Court of Appeals for Veterans Claims (Court). In July 2019, the Court granted a Joint Motion for Partial Remand (Joint Motion) filed by the parties and remanded the above claims to the Board. The TDIU, SMC, and Chapter 35 DEA benefits earlier effective date claims have been recharacterized for clarity, given the nature of the Veteran’s original and the appellant’s current contentions and the content of the Joint Motion. The appellant’s representative requested multiple extensions of time to submit additional evidence and argument; he indicated that he would assume the requests were granted unless he received written notification to the contrary. See April 2020 to September 2020 written statements. In December 2020, he submitted such argument and evidence for which there is an automatic waiver of AOJ review, along with an actual waiver of such review. Law and Analysis Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where 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 for that rating. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where the question for consideration is the propriety of the initial rating assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Where VA’s adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or “staged” ratings may be assigned for such different periods of time. Fenderson v. West, 12 Vet. App. 119, 125-27 (1999). In this case, the now-assigned uniform evaluation is warranted based on the evidence. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the weight of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). The appellant’s representative has clarified that the appellant is seeking a 10 percent evaluation on appeal for the Veteran’s hypertension. See December 2020 written appellate brief. The Veteran was assigned a noncompensable evaluation pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent evaluation is warranted for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or, as the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Higher evaluations are warranted for higher predominant diastolic and systolic pressure readings. In considering the evidence of record under the laws and regulations as set forth above, the Board concludes that a 10 percent evaluation is warranted for hypertension. The record shows that the Veteran had a long history of hypertension with prescribed medication for management, including multiple medications and adjustments. See, e.g., VA treatment records from November 2005 (about one week before service connection claim, shows three active medications), September 2010, January 2015, January 2016, March 2017, and March 2018; November 2011 VA heart examination report (noted three active medications for hypertension). Although the Veteran had normal blood pressure readings during the appeal period, he also routinely had systolic blood pressure readings close to or greater than 160 (sometimes significantly more), including readings from the same months. See, e.g., VA treatment records from November 2005, March 2006, October 2008, November 2008, December 2008, May 2009, July 2010, September 2010, November 2010, August 2012, January 2013, January 2015, March 2015, January 2016, July 2016 to September 2016, March 2017, April 2017 (referred to clinic for counseling related to hypertension), and January 2018. The June 2006 VA examiner noted that the Veteran’s hypertension manifested in systolic blood pressure of 140 to 150. The September 2014 and July 2015 VA examination reports do not contain contemporaneous readings; the more recent of those reports listed three blood pressure readings from VA treatment records from which the examiner calculated an average reading. Based on the foregoing, the Board finds that the Veteran’s hypertension more nearly approximated systolic pressure predominantly 160 or more. As such, the evidence supports the assignment of an initial 10 percent evaluation. This evaluation represents a full grant of the benefit sought on appeal because the appellant is seeking a 10 percent evaluation for this disability, as noted above. The record also does not suggest that the Veteran would have met the criteria for a higher evaluation. The appellant has not raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (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). REASONS FOR REMAND In the August 2015 rating decision, the AOJ granted entitlement to TDIU effective from March 9, 2015. The Veteran expressed disagreement with the effective date assigned. The appeal was processed as an effective date claim based on a March 2015 date of claim, and the initial claim and appeal were adjudicated without consideration of all evidence prior to that date. See August 2015 rating decision; December 2017 statement of the case. The parties agreed in the Joint Motion that the issue of entitlement to TDIU was raised prior to March 2015 and phrased the issue on appeal as such. Moreover, the Veteran contended that his employment was not substantially gainful in part due to his hypertension during the course of the appeal as to the initial evaluation for that disability (stemming from his December 2005 original compensation claim) as addressed above. As such, the issue of entitlement to TDIU prior to March 2015 is on appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) and Harper v. Wilkie, 30 Vet. App. 356 (2018). The appellant has continued the Veteran’s contention that he was entitled to a TDIU dating back to the December 2005 original claim based on the combined effects of his service connected disabilities or service-connected posttraumatic stress disorder (PTSD) alone, as well as his appeals for corresponding earlier grants of entitlement to SMC at the housebound rate and basic eligibility for Chapter 35 DEA benefits. See, e.g., October 2016, July 2017, and December 2020 representative written statements. Because the AOJ has not considered the complete TDIU matter in the first instance, a remand is necessary to ensure due process. The remaining two claims are inextricably intertwined with the TDIU claim given the contentions in this case. There is an inconsistency in the evidence that must be resolved. On his VA Form 8940, the Veteran had reported he only worked one day per week as a bartender, earning approximately $248 per month. However, he told the 2015 VA examiner that he was working every other day as bartender. On the verification of employment forms, there is one form clearly completed by the Veteran and signed by the employer indicating he had earned slightly over $1,100 in the prior 12 months; however, there is another form from the same employer completed by another individual indicating he had earned almost $3,300 in the prior 12 months. While his attorney submitted the Veteran’s Social Security earnings report, which purportedly showed no income since 1983, that is inconsistent with the Veteran’s statement that he worked as a manager in an auto parts store from 1986 to 1992, with other jobs from 1993 to 1999. While the submission from the attorney included a statement from the Veteran in January 2017 that any inconsistencies in reported income were because he had tried to complete the VA forms from memory, that does not account for the Social Security statement showing NO earnings since 1983, while he clearly worked for many years after that. The appellant and her attorney should be asked to submit another Social Security earnings statement showing the Veteran’s income history. While any earnings prior to the period on appeal are not necessarily probative to his ability to work during the appeal period, it is important that the Board have an accurate picture of the Veteran’s occupational history. Since the argument has been raised that his earnings were marginal in nature, development should be undertaken to verify his income. The case is REMANDED for the following action: 1. Ask the appellant and her attorney to submit another Social Security earnings statement showing the Veteran’s income history until 2015 and/or an explanation as to the inconsistency between the Social Security earnings statement showing no income since 1983 while the Veteran reported working and earning $18,000 per year until 1996 and $5,760 per year from 1997 to 1999. 2. Review the case on the basis of additional evidence for the issues listed in the remand section above, including the issue of entitlement to TDIU prior to March 9, 2015, on the basis of substitution. The appeal period dates back to the Veteran’s December 2005 original compensation claim, and it does not appear that action was taken to review the complete appeal period during the initial processing of the appeal. See Rice v. Shinseki, 22 Vet. App. 447 (2009) and Harper v. Wilkie, 30 Vet. App. 356 (2018). The issue on appeal was previously characterized as entitlement to an earlier effective date for TDIU, but it has been recharacterized for clarity. If the benefits sought are not granted, the appellant and her representative should be furnished a supplemental statement of the case and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review. MICHELLE L. KANE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Postek, 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.