Citation Nr: 21004467 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-48 876 DATE: January 27, 2021 ORDER Entitlement to an initial disability rating of 10 percent for the service-connected hypertension is granted. REMANDED Entitlement to an initial compensable rating for the service-connected bilateral sensorineural hearing loss is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is remanded. FINDING OF FACT Resolving doubt in the Veteran’s favor, his hypertension has been manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more—but his diastolic pressure is not predominantly 110 or more, and his systolic pressure is not predominantly 200 or more. CONCLUSION OF LAW The criteria for an initial compensable rating of 10 percent, but no higher, for the service-connected hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1969 to October 1971. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from December 2013, May 2014, and November 2014 rating decisions by a Department of Veterans Affairs (VA) Regional Office (RO). In the December 2013 decision, the RO granted service connected for bilateral sensorineural hearing loss and assigned a noncompensable rating, effective March 4, 2013. In the November 2014 decision, the RO granted service connection for hypertension and assigned a noncompensable rating, effective June 25, 2014. In May 2019, the Veteran testified at a hearing before the undersigned Veterans Law Judge (VLJ), and a transcript of that proceeding has been associated with the claims file. This matter was previously before the Board in September 2019, at which time it was remanded for further development. The Board acknowledges that, in March 2019, the Veteran perfected an appeal regarding the issues of entitlement to service connection for a back disability and a skin disability. See March 2019 VA Form 9 (Substantive Appeal). However, as the Veteran is currently awaiting a Board hearing as to those issues, such issues will be addressed in a separate decision at a later date. Entitlement to an initial compensable rating for the service-connected hypertension Disability evaluations are based upon the average impairment of earning capacity as contemplated by the schedule for rating disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Rating 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; Mauerhan v. Principi, 16 Vet. App. 436 (2002). With the initial rating assigned following a grant of service connection, separate staged ratings may be assigned for separate periods of time, based on facts found. Fenderson v. West, 12 Vet. App. 119, 126 (1999). In all claims for an increased rating, VA has a duty to consider the possibility of assigning staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran’s hypertension has been rated at 0 percent under Diagnostic Code 7101. 38 C.F.R. § 4.104. Under this Code, a 10 percent rating is warranted where diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or where an individual has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. A 20 percent rating may be assigned if diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. Diastolic pressure predominantly 120 or more is rated at 40 percent, and a maximum 60 percent rating is warranted for diastolic pressure predominantly 130 or more. An October 2014 VA examination notes that the Veteran was taking two medications for his hypertension. Readings provided on the examination report, which may have been from visits in the months prior to the examination, were 132/78, 126/78, and 142/95. In September 2019, the Board remanded this matter to obtain a new VA examination regarding the Veteran’s hypertension. An examination was obtained in December 2019, and the Board finds that there has been substantial compliance with this portion of the Board’s directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). On the December 2019 VA examination, the Veteran reported continuing to take two medications for control of his hypertension. His blood pressure readings at the time of the examination were 160/100, 158/90, and 160/90. The Veteran also reported that he has frequent episodes of hypertension with readings of 170 180/90-100 when he experiences triggers related to his Vietnam service and that his numbers remain elevated even though he reports taking his medications as prescribed. He reported that, when this happens, he experiences headaches and dizziness along with the elevated readings. The Veteran was regularly seen for VA treatment for other condition, when his blood pressure readings ranged from 118-159/67-99. His VA treatment records also indicate that he has been given a blood pressure machine in order to monitor his numbers. See, e.g., May 2015 VA Treatment Note. While the Veteran’s blood pressure readings have ranged widely on his VA examinations and in his VA treatment records, the Board resolves reasonable doubt in the Veteran’s favor and finds that the record indicates that the Veteran’s hypertension is manifested by diastolic pressure predominantly 100 or more and systolic pressure predominantly 160 or more, as documented on the December 2019 VA examination and as reported by the Veteran in his at-home measurements during times of high stress. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran has incurred these readings even with his continuous use of two different medications to control his hypertension. Although the record does not include at home blood pressure logs, the Board finds the Veteran credible to report the range of his blood pressure readings outside of his VA treatment and examinations, as he has been instructed in operating a blood pressure machine in order to monitor his numbers for his treatment purposes. Furthermore, his blood pressure readings during the December 2019 VA examination were consistent with his reports. Given the above, the Board finds that the evidence is in relative equipoise as to whether the Veteran’s hypertension has been manifested by diastolic pressure predominantly 100 or more and systolic pressure predominantly 160 or more. Accordingly, resolving all doubt in favor of the Veteran, an initial compensable rating of 10 percent rating is warranted. 38 C.F.R. § 4.104, Diagnostic Code 7101. The next higher rating of 20 percent is not warranted, as the Veteran’s diastolic pressure is not predominantly 110 or more and as his systolic pressure is not predominantly 200 or more. Id. Thus, a compensable rating of 10 percent, but no higher, is warranted for the service-connected hypertension. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). REASONS FOR REMAND Entitlement to an initial compensable rating for the service-connected bilateral sensorineural hearing loss A remand by the Board confers on the claimant a legal right to compliance with the remand order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Compliance with a remand is not discretionary, and failure to comply with the terms of a remand necessities remand for corrective action. Id. Substantial compliance with the remand order, not strict compliance, is required. Donnellan v. Shinseki, 24 Vet. App. 167, 176 (2010); Dyment v. West, 13 Vet. App. 141, 147 (1990). Failure of the Board to ensure compliance with remand instructions constitutes error and warrants the vacating of a subsequent Board decision. Stegall, 11 Vet. App. at 271. In September 2019, the Board remanded this matter for a new VA examination to ascertain the current severity of the Veteran’s service-connected bilateral sensorineural hearing loss. He was accorded the requested VA examination in December 2019. Unfortunately, the Board finds this examination to be inadequate, as there has not be substantial compliance with the September 2019 Board remand directives. Stegall, 11 Vet. App. at 271. The examiner did not provide responses to puretone testing and indicated that test results were not valid for rating purposes. Specifically, the examiner indicated that audiometric results were inconsistent with organic hearing loss and that the test results were, thus, not valid for rating purposes. The examiner did not provide speech recognition scores and indicated that the use of word recognition scores was not appropriate for the Veteran. The examiner failed to explain or provide reasoning for why testing could not be conducted or was not appropriate. In any event, as the examination did not include puretone thresholds and did not include speech discrimination scores using the Maryland CNC word list, a remand is necessary to obtain an adequate VA examination that properly addresses the current severity of the Veteran’s service-connected bilateral sensorineural hearing loss disability. Entitlement to a TDIU As the grant of an initial disability rating of 10 percent for the Veteran’s service-connected hypertension and the remand of the claim for an increased rating for bilateral sensorineural hearing loss could affect the claim for a TDIU, the Board finds that these issues are inextricably intertwined and that a decision on the TDIU claim at this time would be premature. Harris v. Derwinski, 1 Vet. App. 180 (1991). Accordingly, these matters are REMANDED for the following action: 1. Schedule the Veteran for a VA audiological examination to determine the current severity of his service-connected bilateral sensorineural hearing loss. The entire claims file must be made available to, and be reviewed by, the examiner in conjunction with the examination. Any indicated tests and studies must be accomplished, and all clinical findings should be reported in detail. The examiner should address how the Veteran’s bilateral hearing loss disability impacts his functioning and ability to obtain or maintain substantially gainful employment. A clear explanation for all opinions would be helpful, and a discussion of the facts and medical principles involved would be of considerable assistance to the Board. If the examiner is unable to provide an opinion, he or she should explain why. 2. Provide the Veteran with a copy of the VA Form 21-8940, Veteran’s Application for Increased Compensation Based on Unemployability, as well as notice of the evidence and information necessary to substantiate a claim for a TDIU. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board A. Goreham 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.