Citation Nr: 21002520 Decision Date: 01/13/21 Archive Date: 01/13/21 DOCKET NO. 18-08 792 DATE: January 13, 2021 ORDER Entitlement to an initial disability rating in excess of 10 percent for hypertension is denied. FINDING OF FACT The Veteran’s service-connected hypertension is not manifested by systolic pressure predominantly 200 or more or diastolic pressure predominantly 110 or more. CONCLUSION OF LAW The criteria for entitlement to an initial disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Marine Corps from May 1984 to May 1987, from August 1990 to September 1992, and from June 1993 to February 1996. He also served in the U.S. Army Reserves from January 2000 to March 2005, from June 2009 to June 2012, and from January 2015 to July 2015. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO), which, in pertinent part, denied entitlement to service connection for sleep apnea, and declined to award an initial disability rating in excess of 0 percent for hypertension. The Veteran timely appealed. In a December 2017 rating decision issued during the course of the appeal, the Veteran was retroactively awarded an initial 10 percent disability rating for his service-connected hypertension. However, as the Veteran did not express satisfaction with the increased disability rating, this issue remains in appellate status. See AB v. Brown, 6 Vet. App. 35, 38 (1993) (when a veteran is not granted the maximum benefit allowable under the VA Schedule for Rating Disabilities, the pending appeal as to that issue is not abrogated). The Veteran testified before the undersigned Veterans Law Judge in a videoconference hearing in February 2020. A copy of the hearing transcript is of record. In March 2020, the Board remanded the issues on appeal for additional development. Following the development requested in the remand directives, the Veteran’s claim of entitlement to service connection for sleep apnea was granted in an August 2020 rating decision. As such this issue is no longer on appeal. The remaining issue, entitlement to an initial disability rating in excess of 10 percent for hypertension, has been appropriately returned to the Board as all required development has been completed. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an initial disability rating in excess of 10 percent for hypertension is denied. The Veteran maintains that an initial disability rating in excess of 10 percent is warranted for his service-connected hypertension. Disability evaluations are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s hypertension is rated under Diagnostic Code 7101. Under diagnostic code 7101, a rating of 10 percent is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A rating of 20 percent is warranted for diastolic pressure predominantly 110 or more; or systolic pressure predominantly 200 or more. A rating of 40 percent is warranted for diastolic pressure predominantly 120 or more. A rating of 60 percent is warranted for diastolic pressure predominantly 130 or more. Note (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Note (2): Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3): Evaluate hypertension separately from hypertensive heart disease and other types of heart disease. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a noncompensable rating, as in Diagnostic Code 7101, a noncompensable rating will be assigned when the required symptomatology for a compensable rating is not shown. 38 C.F.R. § 4.31. The Board may factor the ameliorative effects of blood pressure medication into its analysis of claims for increased ratings for hypertension because DC 7101 expressly mentions the effect of hypertension medications. See McCarroll v. McDonald, 28 Vet. App. 267, 276-77 (2016). The Veteran’s only documented blood pressure reading from 2012 was 170/90 (June 2012). At the Veteran’s August 2013 VA examination, his diagnosis of hypertension was confirmed, as was his continuous use of medication to control his disability. The examiner observed that the Veteran had a history of a diastolic blood pressure elevation to predominantly 100 or more. The examiner elaborated that the Veteran’s diastolic blood pressure commonly ran about 100 when he checked them at home. The examiner documented blood pressure readings from the previous month: 182/102, 176/100, 172/100 (July 2013). At the Veteran’s January 2014 VA examination, his diagnosis of hypertension was confirmed, as was his continuous use of medication to control his disability. The examiner noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The examiner documented blood pressure readings were as follows: 170/102, 174/104, and 178/108 (January 2014). He counseled the Veteran, advising him that his hypertension was inadequately controlled and recommended that he go to urgent care. Additional blood pressure readings from that year were 165/91, 159/89 (January 2014), 162/88 (September 2014). Documented blood pressure readings from 2015 were as follows: 166/112 (September 2015) and 168/103 (December 2015). The Veteran was hospitalized from April 29, 2016 through May 23, 2016 for a stroke. During that hospitalization, the Veteran’s blood pressure was measured on average twenty-five times a day. During that stay, while there were documented instances in which diastolic pressure was elevated to 110 or more and/or his systolic pressure was elevated to 200 or more, commensurate with a higher 20 percent rating, the readings predominantly were well below these criteria, reflective of the majority of the readings detailed herein. The Veteran’s only documented blood pressure reading from 2017 was 140/87 (February 2017). Documented blood pressure readings from 2019 were 136/89, 150/90 (August 2019) and 136/89 (October 2019). In May 2020, the Veteran underwent a VA examination. His diagnosis of hypertension was confirmed, as was his continuous use of medication to control his disability. The examiner observed that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. The examiner detailed the aforementioned blood pressure readings from 2019. A disability rating in excess of 10 percent is not warranted for the Veteran’s service-connected hypertension. There is no argument or indication that the detailed evidence of record is an inaccurate representation of the severity of the Veteran's hypertension. The Board observes that the Veteran has encountered some difficulties managing his hypertension. There have been instances of elevated diastolic and systolic pressure; however, the evidence overall does not support a finding of predominant diastolic blood pressure of 110 or more, or a predominant systolic blood pressure of 200 or more. The Veteran has generally been able to maintain blood pressure below that level through continuous use of medication. The criteria for an increased rating for hypertension have not been met or nearly approximated at any time during the claim period. 38 C.F.R. § 4.104, DC 7101. A rating in excess of 10 percent for hypertension is denied. JENNIFER HWA Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board L. Bush 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.