Citation Nr: 21004727 Decision Date: 01/28/21 Archive Date: 01/28/21 DOCKET NO. 14-19 281 DATE: January 28, 2021 ORDER An initial compensable rating for hypertension is denied. REMANDED Entitlement to an initial compensable rating for a status post left inguinal herniorrhaphy with mesh implant is remanded. Entitlement to service connection for bilateral hearing loss is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s hypertension has been manifested by diastolic pressure predominantly less than 100 and systolic pressure predominantly less than 160. Although the Veteran takes medication for this condition, he does not have a history of diastolic pressure predominantly 100 or more. CONCLUSION OF LAW The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.10, 4.7, 4.10, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 2003 to February 2004 and February 2004 to July 2008. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from August 2013 and November 2015 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified before the undersigned Veterans Law Judge during an April 2018 hearing. A transcript of the hearing is associated with the Veteran’s claim file. In a June 2018 Board decision, the Board denied reopening the claim for service connection for bilateral hearing loss and, in pertinent part, remanded the claims for initial compensable ratings for status post left inguinal herniorrhaphy with mesh implant and hypertension. The Veteran filed an appeal of the Board’s decision with the United States Court of Appeals for Veterans Claims (Court) with respect to the denial to reopen the claim of service connection for bilateral hearing loss. In an October 2019 Order, pursuant to a Joint Motion for Partial Remand (JMPR) filed by the parties, the Court vacated and remanded part of the June 2018 decision that denied reopening the claim for hearing loss back to the Board. In an April 2020 Board decision, the Board reopened the previously denied claim for entitlement to bilateral hearing loss and remanded the claim for entitlement to service connection for bilateral hearing loss. The Board most recently remanded the appeal for initial compensable ratings for service-connected status post left inguinal herniorrhaphy with mesh implant and hypertension in July 2020. 1. An initial compensable rating for hypertension Disability evaluations are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. In both initial rating claims and normal increased rating claims, the Board must discuss whether “staged ratings” are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The Veteran seeks an initial compensable rating for his service-connected hypertension. 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 disabling. 38 C.F.R. § 4.104. Hypertensive vascular disease with diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, is rated 20 percent disabling. 38 C.F.R. § 4.104, Diagnostic Code 7101. Hypertensive vascular disease with diastolic pressure predominantly 120 or more is rated 40 percent disabling. Id. Hypertensive vascular disease with diastolic pressure predominantly 130 or more is rated 60 percent disabling. Id. Note (1) to Diagnostic Code 7101 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. 38 C.F.R. § 4.104. In March 2007, while on active duty, the Veteran was diagnosed with systemic hypertension and was started on medication to control his blood pressure. However, a review of the Veteran’s service treatment records did not show history of diastolic pressure predominantly 100 or more that required continuous medication for control. For the year 2002, the Veteran had one reading with systolic pressure at 140, and diastolic pressure at 82. For the year 2003, the Veteran had one reading with systolic pressure at 122, and diastolic pressure at 66. For the year 2004, the Veteran had two blood pressure readings with systolic pressure at 118 and 145, and his diastolic pressure at 63 and 75. In January 2005, the Veteran underwent an exercise stress test. His resting blood pressure prior to the test was 149/79. His peak blood pressure reading during the test was 176/105. His blood pressure reading upon recovery was 141/84. For the year 2005, for blood pressure readings other than those taken for the January 2005 exercise stress test, the Veteran’s systolic pressure ranged between 122 and 181, with four of five readings at 158 or less, and his diastolic pressure ranged between 70 and 78. For the year 2006, the Veteran’s systolic pressure ranged between 121 and 171, with six of seven readings at 154 or less, and his diastolic pressure ranged between 63 and 101, with six of the seven readings at 75 or less. From January 2007 to March 2007 when the Veteran was diagnosed with hypertension and placed on medication, the Veteran’s systolic pressure ranged between 129 and 170, with five of seven readings at 149 or less, and his diastolic pressure ranged between 74 and 106, with four of the seven readings at 92 or less. From March 2007 to July 2008 when the Veteran separated from active duty service, the Veteran’s systolic pressure ranged between 141 and 174, with four of seven readings at 158 or less, and his diastolic pressure ranged between 68 and 108, with five of the seven readings at 93 or less. Based upon these readings, the Board finds that the preponderance of the evidence is against assigning a disability rating of 10 percent based on the Veteran’s blood pressure readings showing a history of diastolic pressure predominantly 100 or more that required continuous medication for control as the evidence does not show the Veteran’s blood pressure readings showed a history of diastolic pressure predominantly 100 or more that required continuous medication for control. The Veteran filed his claim for service connection for hypertension in December 2011. A review of the evidence since December 2011 also fails to show hypertensive vascular disease with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; a history of diastolic pressure predominantly 100 or more that required continuous medication for control. For the years 2011 and 2012, the Veteran did not have any blood pressure readings of record. For the year 2013, the Veteran had one reading with systolic pressure at 133, and diastolic pressure at 73. For the years 2014 and 2015, the Veteran did not have any blood pressure readings of record. For the year 2016, the Veteran’s systolic pressure ranged between 132 and 152, and his diastolic pressure ranged between 74 and 92. For the year 2017, the Veteran did not have any blood pressure readings of record. For the year 2018, the Veteran’s systolic pressure ranged between 130 and 143, and his diastolic pressure ranged between 83 and 93. The Veteran was afforded a VA examination in June 2019. The Veteran reported that he was diagnosed with hypertension during a routine physical examination and was placed on medication. At the time of examination, he was taking 10 mg of Lisinopril daily. The examiner noted it was unknown whether the Veteran’s initial diagnosis of hypertension was confirmed by blood pressure readings taken two or more times on at least three different days. The Veteran’s treatment plan did include taking continuous medication; however, the Veteran did not have a history of diastolic blood pressure elevation to predominately 100 or more. On physical examination, his blood pressure readings were 140/92, 142/92, and 142/94. The examiner opined the Veteran’s hypertension did not impact his ability to work. In July 2019, a VA treatment record showed the Veteran’s blood pressure reading at 136/84. In August 2019, a VA treatment record showed the Veteran’s blood pressure reading at 132/80. The Veteran was afforded another VA examination in October 2020. The Veteran reported onset of his hypertension around 2004 at age 23 or 24 years old. At the time of examination, he had not taken medication for his hypertension in over a year; however, the examiner noted that the Veteran’s treatment plan included taking continuous medication. The examiner noted it was unknown whether the Veteran’s initial diagnosis of hypertension was confirmed by blood pressure readings taken two or more times on at least three different days. The Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. The Veteran’s hypertension did not impact his ability to work. On physical examination, his blood pressure readings were 126/85, 128/87 and 125/85. Although the record indicates the Veteran has not used medication throughout the appeal period, examiners have indicated the Veteran has required continuous medication for blood pressure control throughout the appeal period. During the appeal period, there are no readings of diastolic pressure at or above 100mm and no readings of systolic pressure at or above at or above 160mm. As noted above, the evidence of record does not demonstrate a prior history of diastolic pressure predominantly at or above 100mm. Thus, while there are elevated readings, and continuous medication, the totality of the evidence does not show a history of diastolic pressure predominantly at or above 100mm. In order to warrant a compensable rating for service-connected hypertension, the Veteran would need both continuous medication for control of hypertension and a history of diastolic pressure predominantly 100 or more. That history is simply not shown by the record. Accordingly, the preponderance of evidence is against the claim for an initial compensable rating for hypertension; there is no doubt to be resolved; and an increased rating is not warranted. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. REASONS FOR REMAND 1. Entitlement to an initial compensable rating for a status post left inguinal herniorrhaphy with mesh implant is remanded. The Board notes that a December 2020 examination scheduling request indicated that a new hernia Disability Benefits Questionnaire (DBQ) was being requested to determine the current level of severity of the Veteran’s service-connected hernia. Therefore, in light of the pending examination request, together with contentions raised by the Veteran that an increased rating may be warranted for such disorder, any Board action on this matter would be premature at this juncture. 2. Entitlement to service connection for bilateral hearing loss is remanded. The Veteran was provided a VA audiological examination in October 2020. The examiner indicated that there was not a permanent positive threshold shift greater than normal measurement variability at any frequency between 500 and 6000 HZ for either ear. The examiner opined the Veteran’s hearing loss was not at least as likely as not caused by or a result of an event in service because the Veteran had normal hearing in both ears at separation from service. The examiner specifically noted there were no significant threshold shifts incurred in service. The examiner further noted that the Veteran was not diagnosed with hearing loss in service or within one year of separation. The examiner also noted that the Veteran’s hearing loss on the current examination did not meet the criteria for VA disability. In contradiction to the October 2020 VA audiological examination, the Board notes that the Veteran has had hearing loss that meets the criteria for VA disability during the appeal period. See June 2020 audiological examination. Further, the Board notes on the Veteran’s entrance audiological evaluation in July 2002, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 5 10 5 5 LEFT 0 0 5 0 0 On the Veteran’s separation audiological evaluation in February 2008, pure tone thresholds, in decibels, were as follows: HERTZ 500 1000 2000 3000 4000 RIGHT 10 0 5 10 15 LEFT 10 5 0 5 20 As such, the Veteran’s service treatment records do indicate threshold shifts and the examiner did not indicate what a significant threshold shift would be or discuss the threshold shifts from the Veteran’s entrance examination and separation examination. The Board finds the October 2020 VA audiology opinions are inadequate because they fail to discuss the Veteran’s in-service hearing threshold shift and relied on the normal audiometric examination findings at separation as the basis for their negative nexus rationales. See Hensley v. Brown, 5 Vet. App. 155, 157 (1993). Further, the examiner did not address the statements by the Veteran noted in his November 2015 Notice of Disagreement, March 2018 TBI consult note, or April 2018 Board hearing as directed in the April 2020 board remand. Finally, the examiner did not provide an adequate rationale for his opinions as to whether the Veteran’s hearing loss onset in service, was due to noise exposure and/or TBI due to blast noise or manifested to a compensable degree within one year of service. The examiner only noted that the records showed the answers to all these questions were no without any further explanation. Therefore, the Board finds the October 2020 examiner’s opinion inadequate. As such, a remand for another medical opinion as to the cause of any current bilateral hearing loss is necessary. Barr v. Nicholson, 21 Vet. App. 303 (2007). The matters are REMANDED for the following action: 1. Obtain all outstanding updated VA treatment records, to include any hernia DBQ reports in response to the December 2020 examination request. If any records cannot be obtained after reasonable efforts have been made, issue a formal determination that such records do not exist or that further efforts to obtain such records would be futile, which should be documented in the claims file. The Veteran must be notified of the attempts made and why further attempts would be futile, and allowed the opportunity to provide such records, as provided in 38 U.S.C. § 5103A(b)(2) and 38 C.F.R. § 3.159. 2. Refer the claims file to a qualified VA audiologist for another opinion regarding the Veteran’s claim for service connection for bilateral hearing loss disability. The claims file and a copy of this remand should be made available to and reviewed by the examiner in conjunction with the opinion. If the audiologist believes that an in-person examination is warranted, then schedule a full VA audiology examination. In rendering the below requested opinion, the examiner is advised that the mere absence of in-service evidence of a hearing loss disability is not fatal to a service connection claim. See Ledford v. Derwinski, 3 Vet. App. 87, 89 (1992). Evidence of a current hearing loss disability and a medically sound basis for attributing that disability to service may serve as a basis for a grant of service connection for hearing loss where there is credible evidence of acoustic trauma due to significant noise exposure in service, post-service audiometric findings meeting the regulatory requirements for hearing loss disability for VA purposes, and a medically sound basis upon which to attribute the post-service findings to the injury in service. See Hensley v. Brown, 5 Vet. App. 155 (1993). The prior audiology examination report has been found to be inadequate because the examiner failed to discuss the Veteran’s in-service hearing threshold shifts and relied on the normal audiometric examination findings at separation as the basis for the negative nexus rationales that the current bilateral hearing loss disability was not related to service. The examiner is asked to render an opinion as to whether it is as likely as not (a 50 percent probability or greater) that the Veteran’s current bilateral hearing loss disability is related to active service, including the Veteran’s reported in-service noise exposure? Upon what facts and medical principles do you base the opinion? The examiner must address the statements by the Veteran as noted in his November 2015 Notice of Disagreement, the March 2018 TBI consult note from El Paso VA Medical Center, and his April 2018 Board hearing testimony. In considering any lay statements of record, the examiner should note that the Veteran is competent to attest to matters of which he had first-hand knowledge, including observable symptomatology. If there is a medical basis to support or doubt the history provided by the Veteran, the examiner should provide a fully reasoned explanation. A full rationale must be provided for all medical opinions given. If the examiner is unable to provide an opinion without resorting to mere speculation, he or she should explain why this is so. The examiner shall then explain whether the inability to provide a more definitive opinion is the result of a need for more information and indicate what additional evidence is necessary, or whether he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). MARJORIE A. AUER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Kelly A. Gastoukian 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.