Citation Nr: 21004153 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 18-17 146 DATE: January 26, 2021 ORDER Entitlement to a 10 percent rating prior to January 29, 2020, for hypertension, is granted. Entitlement to a rating greater than 10 percent beginning on January 29, 2020, for hypertension, is denied. Entitlement to service connection for a low back disability is granted. REMANDED Entitlement to a rating greater than 30 percent for hypertensive heart disease is remanded. FINDINGS OF FACT 1. For the period prior to January 29, 2020, the Veteran’s hypertension required continuous medication for control, with a history of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. 2. Beginning January 29, 2020, the Veteran’s hypertension required continuous medication for control, and she was shown to have hypertension with diastolic pressure predominantly 100 or more, but she did not have diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 3. The Veteran’s low back disability more likely than not was incurred in or aggravated during a period of active duty for training (ACDUTRA). CONCLUSIONS OF LAW 1. For the period prior to January 29, 2020, the criteria for a 10 percent rating, but no higher, for hypertension, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 2. Beginning January 29, 2020, the criteria for a rating in excess of 10 percent for hypertension, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 3. The criteria for service connection for a low back disability have been met. 38 U.S.C. §§ 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty for training in the United States Army Reserve from January 2007 to July 2007. This matter was previously before the Board in November 2018 and was remanded for further development. In August 2020, the agency of original jurisdiction (AOJ) granted the Veteran a 10 percent rating for service-connected hypertension, effective January 29, 2020. However, since a higher rating is available and the Veteran is presumed to seek the maximum benefit available, this claim remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). In October 2020, the Veteran’s attorney requested copies of the Veteran’s January 2020 examinations, as well as, an extension until December 29, 2020 for submission of argument and evidence. The Board notes that the requested documents were sent to the attorney on December 7, 2020. Although the Board did not formally respond to the attorney’s request for an extension, the Veteran’s appeal was placed in abeyance until the attorney’s requested extension date ended. Said date has passed and no new evidence has been submitted; nor has the attorney requested additional time. Therefore, as remand directives have been substantially complied with, the Board will proceed with adjudication of the claims. Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability ratings are determined by evaluating the extent to which a Veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical, as well as, industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. 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 required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. Separate ratings can be assigned for separate periods of time based on facts found, a practice known as “staged” ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 1. Entitlement to a compensable rating prior to January 29, 2020, and in excess of 10 percent thereafter, for hypertension. The Veteran’s hypertension has been evaluated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, hypertensive vascular disease with 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, is rated 10 percent. Id. A 20 percent rating is warranted with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. Id. A 40 percent rating is warranted with diastolic pressure predominantly 120 or more. Id. A 60 percent rating is warranted with diastolic pressure predominantly 130 or more. Id. 38 C.F.R. § 4.104, Diagnostic Code 7101. Where the schedule does not provide a 0 percent rating for a Diagnostic Code, a 0 percent rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. The Board notes that the plain language of Diagnostic Code 7101 contemplates the effects of medication. McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016). Turning to the merits of the Veteran’s claim, the Board has reviewed the evidence of record and finds that a compensable rating is not warranted for the period prior to January 29, 2020, and a rating greater than 10 percent is not warranted thereafter. For the period prior to January 29, 2020, the evidence shows that the Veteran required continuous medication to control her hypertension, but she did not have a history of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. This finding is evidenced in the Veteran’s June 2013 VA hypertension examination where the Veteran reported having adequate blood pressure readings at home with systolic pressure readings between 120 to 130, and diastolic pressures between 70 to 80. The examiner noted current blood pressure readings of 130/80, 135/85, and 135/82. In addition, the record shows a summary of the Veteran’s cumulative vitals from past VA visits between January 2014 to March 2020 which indicate the Veteran’s diastolic pressure remained below 100 except for one instance, and that her systolic pressure remained below 160, except for in one instance. Despite these two periods of elevation, the Board still finds a compensable rating is not warranted as these were isolated incidents and cannot be construed as having diastolic pressure “predominantly” 100 or more, or systolic pressure “predominantly” 160 or more. For example, in a July 14, 2015 private treatment record, the Veteran’s hypertension was described as uncontrolled when the Veteran’s systolic pressure was elevated to 163/99. Here, the Veteran’s medication was increased; however, this isolated incident is not evidence that her systolic pressure was predominantly 160 or more. The Board notes that while the private examiner found the Veteran’s hypertension was uncontrolled, remaining records from the private examiner do not show any other incidents of elevated blood pressure readings. Rather, progress notes prior to and after July 2015, specifically from November 2013, July 2014, and November 2015, show readings of 130/80, 140/70, and 154/89, respectively. In addition, less than one week earlier, specifically in a July 8, 2015 VA primary care visit, the Veteran’s blood pressure was noted as controlled with measurements of 130/85, 147/88, and 144/95. Moreover, VA treatment records from March 2015, April 2015, and August 2014 show blood pressure readings of 139/86, 130/80, and 120/78, respectively; with the Veteran’s hypertension being described as controlled. Likewise, subsequent VA treatment records, specifically from August 2015, show the Veteran’s blood pressure measured at 139/90, while November 2015, August 2016, and March 2019 VA treatment records described the Veteran’s blood pressure as controlled. Aside from her July 14, 2015 private care visit, there are no other records, VA or private, showing systolic pressure of at least 160 or greater for the period prior to January 29, 2020. Similarly, the Board notes an August 3, 2018 VA primary care visit in which the examiner indicated the Veteran’s hypertension was uncontrolled as the Veteran’s diastolic pressure was elevated with a blood pressure reading of 120/100. However, the Veteran suggested that she was not taking her medication as she reported that she did not receive one of her medications and that lisinopril caused her to cough. As a result, her medications were restarted and changed. Additionally, prior to this visit, the Veteran did not exhibit elevated blood pressures that would warrant a compensable rating. VA treatment records from June and July 2018 show blood pressure readings of 134/93 and 137/88, respectively. Likewise, treatment records subsequent to her August 2018 visit, specifically on August 8, 2018, show lower readings of 139/90 and 121/78. Aside from her August 3, 2018 visit, there are no other records, VA or private, showing a diastolic pressure of at least 100 or greater for the period prior to January 29, 2020. The Board recognizes an April 2017 VA primary care visit in which the examiner changed the Veteran’s blood pressure medications and described her condition as “not controlled.” However, during that visit the Veteran’s blood pressure was measured at 143/86, which does not support a compensable rating. In addition, a May 2017 follow-up evaluation shows the Veteran’s blood pressure read 120/88, while a June 2017 primary care note shows her hypertension was controlled. Given the above, the Board finds a 10 percent rating is warranted for the period prior to January 29, 2020. The Veteran’s hypertension required continuous medication for control, and she was on medication for the entire appeal period, with one instance in which her diastolic pressure being 100 or greater and one instance of her systolic pressure being 160 or greater, suggesting that prior to being on medication her blood pressure readings likely exceeded 160 or greater or 100 or greater until being controlled on medication. Thus, the Board finds the preponderance of evidence supports a 10 percent rating for the period prior to January 29, 2020. A higher rating is not warranted given that the evidence does not show diastolic blood pressure readings predominantly 110 or higher or systolic blood pressure readings predominantly 200 or higher. With regard to the period beginning January 29, 2020, the Board finds that a rating greater than 10 percent is not warranted. The Board notes that the Veteran was awarded an increased rating to 10 percent based on findings in her January 29, 2020 VA hypertension examination which showed elevated blood pressure readings of 154/101, 164/106, and 158/102. It was also noted that the Veteran takes medication to control her blood pressure. In her examination, the Veteran reported that her blood pressure is uncontrolled most of the time with several episodes of elevations above 100 a few times a month; however, the evidence of record does not support this assertion, and there is no evidence that indicates the Veteran had diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more such that a higher rating would be warranted. Instead, VA treatment records for the remainder of this period show much lower blood pressure readings which would equate to a noncompensable rating. Specifically, treatment records from January 2020 show the Veteran’s blood pressure measured 130/74, while records from February 2020 show readings of 118/74, 136/80, and 135/87. Likewise, March 2020 treatment records show lower readings of 120/80 and 124/89. The Board also notes that in an April 2020 primary care note, the Veteran reported that she was only using one medication since Losartan caused her to cough. Nevertheless, she reported her systolic pressure being near 140mmHg, and there was no mention of diastolic pressure from the Veteran or the examiner. Moreover, in a subsequent July 2020 cardiology follow-up, the Veteran’s blood pressure was measured at 100/86. The Board notes that aside from the elevated blood pressure readings in the Veteran’s January 2020 VA examination, there is no other evidence that would support a 10 percent rating or greater. Specifically, none of the evidence after January 29, 2020 shows diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more as required for a 20 percent evaluation. Therefore, the Board finds the preponderance of evidence is against the claim, and a rating greater than 10 percent is not warranted for the period beginning January 29, 2020. As the preponderance of evidence is against the claim, the benefit-of-the-doubt doctrine is inapplicable. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Accordingly, a 10 percent but no higher is granted prior to January 29, 2020, and a rating greater than 10 percent thereafter, for hypertension, is denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303 (a) (2018). To establish a right to compensation for a present disability, a Veteran must show: (1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service, the so-called “nexus” requirement. Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2009) (quoting Shedden v. Principi, 38 F.3d 1163, 1167 (Fed. Cir. 2004)). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303 (d). Whenever 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 Veteran. 38 U.S.C. § 5107 (b). 2. Entitlement to service connection for a low back disability. The Veteran’s service treatment records (STRs) are silent for treatment, complaints, or a diagnosis for a back disability in service. However, in a March 2016 affidavit, the Veteran attested to injuring her back in service during physical training. She stated that she often had to pick up heavy objects and equipment and carry them. She reported carrying objects that weighed between 60 and 80 pounds, and that she had to wear a heavy backpack. She further reported injuring her back in an Army jeep. With regard to a current diagnosis, private treatment records from October 2012 show that the Veteran complained of low back pain that radiates to her left lower extremity for one year. Her MRI showed spondylotic changes of the lumbar spine and multilevel degenerative disc disease. In her January 2020 VA back examination, the examiner diagnosed the Veteran with arthritis of the spine and IVDS; however, the examiner found that the Veteran’s back disability was less likely than not related to service. In doing so, the examiner noted that STRs are silent for complaints, treatment, or diagnosis of a back-related condition during the Veteran’s active duty service in 2007. The examiner further noted that while the Veteran’s account and 2012 MRI clearly shows a back disability, the records fail to show a connection to service. Alternatively, in May 2018, the Veteran submitted a July 2017 medical opinion from a private examiner that concluded the Veteran’s degenerative lumbar disc disease is due to her service-related strain on the lumbar spine. In considering the competing medical opinions, the Board assigns low probative value to the January 2020 VA examiner’s opinion since he relied on the absence of treatment or diagnosis in service. The Board notes that the absence of contemporaneous treatment records does not preclude granting service connection for a claimed disability. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). In addition, the January 2020 VA examiner merely considered the Veteran’s active duty training period from 2007; however, records suggest the Veteran had reserve service from 2007 to 2012. Although the Veteran’s service has not been verified, the Veteran listed her period of service as 12/21/2006 to 4/15/2012 in the Army Reserve, and her DD-214 shows active duty for training from January 2007 to July 2007. In addition, military personnel records show that her hypertensive heart disability was found to occur in the line of duty in April 2009, and that the Veteran was discharged from the Army Reserve, effective April 15, 2012. In addition, STRs show a physical profile for irregular heart rate in April 2011. Therefore, there is ample evidence to suggest the Veteran had periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) from 2007 to 2012. In this regard, the Board notes that service connection may be warranted for a disability that was incurred or aggravated during a period of ACDUTRA or INACDUTRA. The Board notes that the private examiner submitted medical literature which stated degenerative disc disease can be caused by the natural aging of the spine, gradual wear and tear, traumatic injury, a sports-related accident, frequent bending, twisting, or lifting, and other similar activities. The literature further noted that any activity that increases strain or stress on the spinal column can accelerate the degenerative process. Here, the record does not show complaints, treatment, or a diagnosis for a back disability while in service; however, the Veteran reported that she felt back pain in service from physical training, lifting heavy objects, and in a jeep incident. The Board finds the Veteran is competent to report an in-service injury and symptoms and there is nothing in the record that would give reason to doubt her credibility. See Layno v. Brown, 6 Vet. App. 465, 470 (1994); See also Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). In addition, there is plausible evidence that indicates the Veteran had service in the Army Reserve from 2007 to 2012; and the evidence shows that shortly after discharge, the Veteran received MRIs in August 2012 and October 2012 that show spondylitic changes and degenerative arthritis of the lumbar spine. Given these findings, coupled with the medical literature above, the Board finds it highly persuasive that the Veteran’s low back disability was incurred in or was aggravated by a period of ACDUTRA or INACDUTRA. To that end, the Veteran’s current low back disability has been attributed to the Veteran’s military service by the July 2017 private examiner. The Board finds the examiner’s opinion probative since she reviewed the Veteran’s service treatment records and post-service medical records, and provided a clear rationale supported by medical literature. Thus, considering the evidence as a whole, the Board finds the preponderance of evidence is in favor of the claim. Thus, service connection for a back disability is granted. REASONS FOR REMAND 1. Entitlement to a rating greater than 30 percent for hypertensive heart disease is remanded. The Board finds that remand is warranted to obtain outstanding treatment records relative to the Veteran’s increased rating claim for hypertensive heart disease. A November 2019 cardiology note shows that the Veteran received a cardiovascular stress test on October 10, 2019 which was noted as “positive stress test suggestive of ischemia;” however, the full test and results are not within the Veteran’s VA treatment records and have otherwise not been associated with the Veteran’s claims folder. In addition, VA treatment records from the San Juan VAMC show the Veteran was referred to the Miami VAMC in July 2018 and August 2019 for recommendations for treatment. Of record, is an August 2018 treatment note from the Miami VAMC which confirms the Veteran was evaluated and that outside providers were also being contacted for additional opinions. However, no additional records from the Miami VAMC have been associated with the claims folder. Further, a March 2020 cardiac note shows an evaluation was pending in north Florida and south Georgia; however, there are no further records to indicate whether this was completed. Therefore, remand is warranted so that the AOJ can obtain any outstanding treatment records to satisfy VA’s duty to assist. The matter is REMANDED for the following action: 1. Obtain any outstanding VA treatment records from the Miami VAMC, San Juan VAMC, and the Arecibo OPC and associate the records with the Veteran’s claims folder. 2. Ask the Veteran to identify any other VA treatment facilities and any private treatment providers in which she received treatment for her hypertensive heart disease. The Veteran’s assistance should be requested as needed. All obtained records should be associated with the evidentiary record. If the AOJ cannot obtain records identified by the Veteran, a notation to that effect should be inserted in the file. The Veteran is to be notified of unsuccessful efforts in this regard, in order to allow him the opportunity to obtain and submit those records for VA review. 3. Further develop the claim to the extent necessary, to include providing a VA examination, if warranted. 4. Then, readjudicate the claim. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Laffitte, 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.