Citation Nr: 21004677 Decision Date: 01/27/21 Archive Date: 01/27/21 DOCKET NO. 16-63 645 DATE: January 27, 2021 ORDER An initial rating of 10 percent for the service-connected hypertension, from March 1, 2014, is granted. REMANDED Entitlement to a compensable initial rating for hyperkeratosis from March 1, 2014 is remanded. Entitlement to a higher initial rating in excess of 30 percent for the service-connected irritable bowel syndrome (IBS) with heartburn and pyrosis (previously claimed as a stomach condition with gastroesophageal reflux disease, GERD), is remanded. FINDING OF FACT From March 1, 2014, the service-connected hypertension manifested in diastolic pressure predominantly 100 or more and required continuous medication for control of symptoms. CONCLUSION OF LAW Resolving reasonable doubt in favor of the Veteran, the criteria for an initial rating of 10 percent for the service-connected hypertension from March 1, 2014 have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service to include the periods from June 2003 to February 2009, February 2009 to February 2010, and February 2010 to February 2014. These matters are on appeal from a September 2014 rating decision issued by the Regional Office (RO) in Fargo, North Dakota. The RO granted service connection for hyperkeratosis with a rating of 0 percent from March 1, 2014, service connection for hypertension with a rating of 0 percent from March 1, 2014, service connection for heartburn and pyrosis (claimed as a stomach condition with GERD with an initial rating of 0 percent from March 1, 2014), and denied service connection for IBS. The Veteran filed a notice of disagreement in July 2015. A statement of the case was issued in October 2016. The Veteran filed a substantive appeal (VA Form 9) in December 2016. The RO subsequently granted a 10 percent initial rating for heartburn and pyrosis from March 1, 2014 and affirmed the other three denials. These matters were previously before the Board in August 2019. The Board denied a higher initial rating in excess of 10 percent for heartburn and pyrosis, a compensable initial rating for hyperkeratosis, a compensable initial rating for hypertension, and granted service connection for IBS. In a March 2020 rating decision, the RO effectuated the grant of service connection for IBS, by rating it in combination with the already service-connected heartburn and pyrosis, which resulted in a higher rating of 30 percent for IBS with heartburn and pyrosis from March 1, 2014 under 38 C.F.R. § 4.114, DC 7319. The Veteran appealed the August 2019 Board decision to the U.S. Court of Appeals for Veterans Claims (CAVC).  A September 2020 Order by CAVC adopted a Joint Motion for Partial Remand (JMPR) filed by the parties.  With regard to the hypertension claim, the parties agreed that the Board erred when it did not define the word “predominantly” when denying a compensable rating under 38 C.F.R. § 4.101, DC 7101, especially considering the Veteran’s diastolic pressure was measure above 100 on multiple occasions during the appeal period. With regard to the hyperkeratosis claim, the parties agreed that the Board erred when it relied on the May 2014 VA examination because the examination did not account for the Veteran’s documented worsening symptoms. With regard to the IBS with heartburn and pyrosis claim, the parties agreed that the Board erred when it did not remand for a VA examination to address claims of worsening symptoms and when it did not consider whether the Veteran was entitled to separate compensable ratings under 38 C.F.R. § 4.114, DCs 7301, 7305, 7306, and 7346. Legal Authority for Higher Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) found in 38 C.F.R. Part 4. 38 U.S.C. § 1155. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. Where there is a question as to which of two disability ratings shall be applied, the higher rating 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. It is the defined and consistently applied policy of VA to administer the law under a broad interpretation, consistent, however, with the facts shown in every case. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. In general, all disabilities, including those arising from a single disease entity, are rated separately, and all disability ratings are then combined in accordance with 38 C.F.R. § 4.25. Pyramiding, the rating of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when rating a veteran’s service-connected disabilities. 38 C.F.R. § 4.14 (2017). It is possible for a veteran to have separate and distinct manifestations from the same injury which would permit rating under several diagnostic codes; however, the critical element in permitting the assignment of several ratings under various diagnostic codes is that none of the symptomatology for any one of the conditions is duplicative or overlapping with the symptomatology of the other condition. Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994); Lyles v. Shulkin, 29 Vet. App. 107 (2017) (holding that 38 C.F.R. § 4.14 prohibits compensating a veteran twice for the same symptoms or functional impairment). 1. Entitlement to a Compensable Rating for the Hypertension The Veteran is in receipt of a noncompensable (0 percent) initial disability rating for hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101 from March 1, 2014. Under Diagnostic Code 7101, a 10 percent rating is assigned for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or is the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent disability rating is assigned for diastolic readings of predominantly 110 or more or systolic readings of 200 or more. A 40 percent disability rating is assigned for diastolic readings of predominantly 120 or more. A 60 percent disability rating is assigned for diastolic readings of predominantly of 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Although the schedular rating criteria do not specifically outline any criteria for a noncompensable (0 percent) rating, a 0 percent rating is assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. After a review of all the evidence, lay and medical, the Board finds that, for the entire initial rating period from March 1, 2014, hypertension manifested in diastolic pressure predominantly 100 or more. The Veteran’s blood pressure rating has varied over the course of the appeal. See June 2008 Private Treatment Record (159/106); December 2010 Private Treatment Record (170/110); October 2011 Private Treatment Record (132/102); January 2012 Private Treatment Record (139/101); April 2014 VA Treatment Records (137/90); May 2014 VA Hypertension Examination (136/98, 134/92, 138/90); May 2014 VA General Examination (137/90); July 2014 VA Treatment Records (132/89); September 2014 VA Treatment Records (118/83); September 2015 VA Treatment Records (139/96); May 2016 Private Treatment Records (131/98); October 2016 Private Treatment Records (124/82); January 2018 Private Treatment Record (120/78); February 2018 Private Treatment Record (104/72). After a review of all the evidence, lay and medical, the Board also finds that, for the entire initial rating period from March 1, 2014, the hypertension required continuous medication for control of symptoms. In the July 2015 notice of disagreement, the Veteran reported that he took medication to control the hypertension. Both private and VA medical treatment records indicate that the Veteran was taking medication throughout the entire appeal period to control the hypertension. For these reasons, and resolving reasonable doubt in the Veteran’s favor, the Board finds that the hypertension more nearly approximates the criteria for a 10 percent initial disability rating, but no higher, for the entire initial rating period from March 1, 2014. 38 C.F.R. §§ 4.3, 4.7, 4.21, 4.104, Diagnostic Code 7101. REASONS FOR REMAND 2. Entitlement to a compensable initial rating for hyperkeratosis from March 1, 2014 is remanded. The Veteran is in receipt of a 0 percent rating for the hyperkeratosis from March 1, 2014 under 38 C.F.R. § 4.118, DC 7824. A September 2020 Order by CAVC adopted a JMPR filed by the parties. In the JMPR, the parties agreed that the Board erred when it relied on the May 2014 VA examination as the examination did not account for the Veteran’s documented medical history as cited in multiple documents. See September 2009 Private Treatment Records (The records note possible infection); May 2010 VA treatment records (The Veteran reported that the scalp becomes itchy and bleed); October 2010 Private Treatment Records (The Veteran reported a history of recurrent bleeding, purulence, and infections due to the hyperkeratosis); April 2011 VA Treatment Records (The VA medical professional noted an unhealed nodule on the head, blood, and pus); May 2011 Private Treatment Record (The records noted an “eruption” on the scalp); July 2011 VA Treatment Records (The Veteran reported lesions, pain, blood, and pus on the scalp). The parties agreed that the VA examiner did not consider this medical history as part of the May 2014 VA examination and, instead, indicated “no” to all questions regarding symptoms and treatment. In the September 2020 JMPR, the parties also agree that symptoms are asserted to have worsened since the May 2014 VA examination, specifically citing to the July 2015 notice of disagreement. In the July 2015 notice of disagreement, the Veteran reported that the hyperkeratosis caused the head to bleed and ooze pus. The parties requested a remand in order to obtain a VA examination that will consider the Veteran’s medical history when evaluating the Veteran and assess the assertion of worsening symptoms. Based on the agreement of the parties before the Court, the Board finds that a VA examination is likely to assist in determining whether the Veteran is entitled to a compensable initial rating for hyperkeratosis from March 1, 2014. 3. Entitlement to a higher rating or separate rating(s) for the IBS with heartburn and pyrosis is remanded. The Veteran is in receipt of a 30 percent rating for the IBS with heartburn and pyrosis from March 1, 2014 under 38 C.F.R. § 4.114, DC 8873-7319. A September 2020 Order by CAVC adopted a JMPR filed by the parties. In the JMPR, the parties agreed, in part, that the Board erred when it relied on the May 2014 VA examination because the examination did not account for the Veteran’s worsening symptoms as described in the July 2015 notice of disagreement. In the July 2015 notice of disagreement, the Veteran reported that he experienced excess bile, which would cause him to vomit. Based on the agreement of the parties before the Court, the Board finds that a VA examination is likely to assist in determining whether the Veteran is entitled to an initial rating in excess of 30 percent for IBS with heartburn and pyrosis from March 1, 2014. The matter is REMANDED for the following action: 1. Request a VA examination to help assess the current nature and severity of the service-connected hyperkeratosis. The VA examiner should review the record, including the above-listed medical records as part of the Veteran’s medical history. See September 2009 Private Treatment Records (The records note possible infection); May 2010 VA treatment records (The Veteran reported that the scalp becomes itchy and bleed); October 2010 Private Treatment Records (The Veteran reported a history of recurrent bleeding, purulence, and infections due to the hyperkeratosis); April 2011 VA Treatment Records (The VA medical professional noted an unhealed nodule on the head, blood, and pus); May 2011 Private Treatment Record (The records noted an “eruption” on the scalp); July 2011 VA Treatment Records (The Veteran reported lesions, pain, blood, and pus on the scalp). 2. Schedule a VA examination to help assess the current nature and severity of the service-connected IBS with heartburn and pyrosis. The VA examiner should review the record, including the July 2015 report of excess bile that causes him to vomit. J. PARKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Costantino, 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.