Citation Nr: 21065509 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 16-43 652 DATE: October 26, 2021 ORDER Entitlement to an effective date earlier than October 31, 2017, for a 70 percent rating for major depressive disorder not otherwise specified (NOS) is dismissed. An initial rating in excess of 10 percent for hypertension prior to November 5, 2018, is denied. An initial rating in excess of 10 percent for hydrocephalus is denied. REMANDED Entitlement to a rating in excess of 30 percent for reactive airway disease (asthma) is remanded. Entitlement to a rating in excess of 30 percent for left ventricular hypertrophy is remanded. Entitlement to a rating in excess of 10 percent for hypertension since November 5, 2018, is remanded. Entitlement to an effective date earlier than March 29, 2017, for the grant of basic eligibility to Dependents' Educational Assistance (DEA) under 38 U.S.C. Chapter 35, is remanded. FINDINGS OF FACT 1. The issue of entitlement to an effective date earlier than October 31, 2017, for a 70 percent rating for major depressive disorder NOS was subsumed into the appeal for a rating in excess of 30 percent for such period, which was already considered and adjudicated by the Board of Veterans' Appeals (Board) in a May 2019 decision. 2. The December 2018 notice of disagreement (NOD) to a July 2018 rating decision, arguing for an effective date earlier than October 31, 2017, for a 70 percent rating for major depressive disorder NOS, was not valid. 3. For the entire appeal period, the Veteran's hypertension requires continuous use of medication for control, but is not manifested by diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 4. The Veteran's hydrocephalus has not resulted in active febrile disease or uncompensated residuals other than headaches. CONCLUSIONS OF LAW 1. The appeal of entitlement to an effective date earlier than October 31, 2017, for a 70 percent rating for major depressive disorder NOS is dismissed. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. 2. The criteria for an initial rating in excess of 10 percent for hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code (DC) 7101. 3. The criteria for an initial rating in excess of 10 percent for hydrocephalus are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321,4.1, 4.3, 4.124a, DC 8880-8000. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from January 1987 to November 1995. This matter comes before the Board on appeal from September 2013 (hypertension, hypertrophy, asthma), April 2018 (hydrocephalus), and July 2018 (DEA) rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). In March 2019 and May 2019, the Board remanded the case for additional development and it now returns for further appellate review. In this regard, the May 2019 remand included instructions to issue a statement of the case in regard to the issues of entitlement to an effective date earlier than March 29, 2017, for the grant of basic eligibility to DEA and entitlement to an initial rating in excess of 10 percent for hydrocephalus. However, prior to the issuance of the decision, a statement of the case was issued for each decision in May 2019. Consequently, although a statement of the case has not been issued since the Board remand, a remand is not necessary in order to fulfill the remand directives as the Veteran has been provided all the due process necessary. Further, he perfected an appeal to the Board following such statements of the case, and thus there is no prejudice to the Veteran in proceeding with a decision. Additionally, the May 2019 Board remand instructed the RO to obtain a VA examination to determine the current severity of the service-connected hypertension. As will be discussed in the remand portion of this decision, a remand is necessary in order to ensure such directive is followed. However, the Board finds that the record is sufficient to adjudicate the increased rating for the period prior to November 5, 2018, the date of medical records identified which could support a possible increase. In this regard, the Board notes that the May 2019 decision identified the pertinent records including a blood pressure (BP) reading of 173/111 as being dated March 2017. However, the BP readings were actually from November 2018 treatment. Therefore, as reflected in the title page of this decision, the Board has bifurcated the periods on appeal for hypertension to separately consider the periods before and after November 5, 2018. Dismissed Claim 1. Entitlement to an effective date earlier than October 31, 2017, for the assignment of a 70 percent rating for major depressive disorder NOS. In a July 2018 rating decision, the RO increased the Veteran's rating for major depressive disorder from 30 percent ot 70 percent. The Veteran filed an NOD to such decision in December 2018, contending an earlier effective date for such increase was warranted, specifically identifying the April 2012 date of claim for an increased rating. Importantly however, the Veteran had already initiated an appeal to September 2013 rating decision denying a rating in excess of 30 percent for the major depressive disorder. The appeal was perfected and certified to the Board, and adjudicated in the May 2019 decision. The appeal for a rating in excess of 30 percent prior to October 31, 2017, incorporates the Veteran's appeal for an earlier effective date for an assigned increased rating. Harper v. Wilkie, 30 Vet. App. 356 (2018). Thus, there was already an active appeal when the Veteran filed the NOD. Consequently, the NOD was not valid for the issue of entitlement to an effective date earlier than October 31, 2017 for the award of a 70 percent rating for major depressive disorder, and the appeal is dismissed as it has already been adjudicated. 38 U.S.C. § 7105; 38 C.F.R. § 20.202. Increased Rating The Veteran contends that his service-connected hydrocephalus and hypertension manifest in symptoms more severe than the current ratings reflect. Consequently, he contends higher ratings are warranted. However, after a review of the record, the Board finds the Veteran's symptoms are wholly considered by the currently assigned rating, and higher ratings are denied. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. 2. Entitlement to an initial rating in excess of 10 percent prior to November 5, 2018, for hypertension. As an initial matter, the current appeal arose from a September 2013 rating decision which denied a higher rating for hypertension, after an April 2012 claim for an increased rating. However, the Veteran had previously initiated an appeal to the March 1996 rating decision which granted service connection for hypertension, claiming an initial compensable rating was warranted. The Veteran indicated in a June 1998 correspondence that he would be satisfied with an agreed upon 10 percent rating, and he withdrew his appeal. However, the RO then issued a June 1998 rating decision after the Veteran's withdrawal was received, which assigned a 10 percent initial rating, but no higher. As the RO denied a rating in excess of 10 percent, despite the partial grant it is still considered an adverse decision. Importantly, within a year after the rating decision, new evidence which was potentially relevant was added to the record. The new evidence's materiality was not considered in a subsequent rating decision, and new evidence continued to be added to the record, including following the next rating decision of record in March 2001. Accordingly, the June 1998 rating decision did not become final, and the period on appeal for hypertension begins November 19, 1995, the effective date of the grant of service connection. See Bond v. Shinseki, 659 F.3d 1362, 1368 (Fed. Cir. 2011); see also Beraud v. McDonald, 766 F.3d 1402, 1407 (Fed. Cir. 2014). The Veteran's hypertension has been rated as 10 percent disabling for the entire appeal period pursuant to DC 7101. Under such DC, a 10 percent rating applies where there is 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 20 percent rating applies where there is diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating applies where there is diastolic pressure predominantly 120 or more. A 60 percent rating applies where there is diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104. During the pendency of the appeal, the DC 7101 was amended effective January 12, 1998; however, the amendment merely incorporated a note to the DC which established a minimum evaluation of ten percent was warranted when medication is necessary to control hypertension with a history of diastolic blood pressure predominantly 100 or more, into the rating criteria for a 10 percent rating. See Schedule for Rating Disabilities; The Cardiovascular System, 62 Fed. Reg. 65207 (Dec. 11, 1997). Therefore, the criteria under consideration for higher ratings in fact remained the same. Accordingly, in order to warrant a higher rating for any point during the period on appeal, the Veteran would need to show a diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. However, the medical evidence of record does not reflect such findings. In this regard, the Veteran underwent VA examinations pertinent to hypertension in February 1996, June 2008, August 2012, and August 2013. The Veteran was noted to require continuous medication to control his hypertension at all such examinations, however his BP readings were at worst 144/90, 160/100, 154/105, 110/80, respectively. The examinations uniformly indicated there was no history of diastolic pressure predominantly 100 or more, nor were there any other complications related to hypertension noted. Further, the treatment records of evidence do not show BP readings of a level necessary for a higher rating. In this regard, the Veteran's systolic pressure was never recorded higher than 200, and there were only four times of record (not including the November 2018 reading) when the Veteran's diastolic was 110 or higher. Specifically, a reading of 110 from March 2001, noting his pressure was high that day. A June 2002 note indicated he was seen for a follow-up of a reading of 116, with a reading that day of 88. A February 2012 record including readings from February 2010 through January 2012, which showed a reading of 120 in March 2011 and 110 in October 2011. Although these readings do meet the threshold of diastolic pressure 110 or more, the fact that there were only four readings of such severity over the course of over a 20-year appeal period shows that such infrequent readings could not be considered "predominant" as required by the ratings criteria. Notably, the record includes numerous other BP readings, taken multiple times a year in nearly every year of the appeal period, which otherwise show much lower diastolic pressure readings, often below 100. Therefore, based on the foregoing, the Board finds that an initial rating in excess of 10 percent for hypertension is not warranted throughout the appeal because the evidence shows that, while the Veteran requires continuous medication for control, he does not have diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 3. Entitlement to an initial rating in excess of 10 percent for hydrocephalus. In the instant case, service connection for hydrocephalus was granted in a February 2018 Board decision. The RO implemented the Board grant in the April 2018 decision on appeal, assigning the current 10 percent rating. Thus, the period on appeal begins the effective date of the grant of service connection on April 4, 2007. The Veteran's hydrocephalus has been rated as 10 percent disabling for the entire appeal period by analogy to chronic epidemic encephalitis under DCs 8880-8000. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under DC 8000, encephalitis is rated based on residuals with a minimum 10 percent rating assigned. A maximum 100 percent rating is assigned for active febrile disease. 38 C.F.R. § 4.124a, DC 8000. The Veteran was afforded a VA examination to determine the nature and severity of his hydrocephalus in August 2014. At that time, the examiner noted the Veteran's diagnosis of communicating hydrocephalus, and a history of migraine headaches being diagnosed in service, without a previous or family history of migraines. The Veteran reported his headaches changed in character around 2006 or 2007, with excruciating pain in the right frontal region associated with imbalance, and after evaluation he was diagnosed with headaches and hydrocephalus. He was treated at that time with medication which normalize his pressure, and thus shunting was deferred, but he still requires continuous medication. His headaches continued unchanged however, with associated nausea and dizziness. The examiner noted the Veteran does not have an infectious condition, let alone an active one. Further, upon examination, there were no physical or motor function impairment noted, including in speech, gait, strength, and reflexes. There were no tumors or neoplasms present, and the Veteran did not have any related cognitive impairment. The medical evidence of record shows the same symptomatology as the above examination. In this regard, the Veteran's hydrocephalus has been associated with his headaches only. Based on the foregoing, the Board finds a rating in excess of 10 percent for hydrocephalus is not warranted. In this regard, the Veteran does not have an active febrile or infectious disease, as required by a 100 percent rating. Further, there are no associated residuals that are not currently compensated. Specifically, the only symptoms attributable to hydrocephalus are the migraine headache symptoms of headache pain, pressure, and dizziness or imbalance. The Veteran is already in receipt of a separate 30 percent rating for his migraine headaches, with specific consideration of these enumerated symptoms. Thus, the Veteran qualifies for the minimum 10 percent rating under DC 8000 only. The Board has considered whether a higher rating under another DC is available. However, the Veteran does not have any tumors, growths, or neoplasms, thus the DCs applicable to such symptoms and diseases are not applicable. Further, the Board has considered DC 8020 for a brain abcess, as identified as a possible applicable DC in the February 2018 Board decision. However, such DC provides to rate for residuals, with a minimum 10 percent rating, and 100 percent rating for an active disease. Thus, the ratings criteria are the same as under DC 8000. Finally, as noted in the VA examination, the Veteran does not have any neural, physical, or cognitive impairment, and thus a higher rating is not available under any other DC for diseases of the central nervous system under 38 C.F.R. § 4.124a. Other Considerations The Board recognizes the Veteran's sincerely held belief that his symptomatology is more severe than as reflected by the currently assigned ratings, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). However, the Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disabilities in light of the rating criteria to be more persuasive than his reports regarding the severity of such conditions. In this regard, the Board notes that the Veteran's reported symptomatology is already contemplated by the currently assigned ratings. The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected hypertension and hydrocephalus; however, the Board finds that his symptomatology has been stable throughout the periods on appeal. Therefore, assigning staged ratings is not warranted. In reaching this decision, the Board has considered the benefit of the doubt doctrine; however, the preponderance of the evidence is against the Veteran's claims for higher initial ratings, and as such, that doctrine is not applicable in the instant appeal. Consequently, the claims must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 1. Entitlement to a rating in excess of 30 percent for asthma is remanded. 2. Entitlement to a rating in excess of 30 percent for left ventricular hypertrophy is remanded. 3. Entitlement to a rating in excess of 10 percent for hypertension since November 5, 2018, is remanded. Unfortunately, another remand is necessary to ensure compliance with previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). In the May 2019 decision, the Board noted that the Veteran was last examined for his hypertension, left ventricular hypertrophy, and asthma in August 2013, and the record indicated he was continuing treatment for such and there could be a possible worsening of his disabilities. Consequently, the Board remanded to schedule the Veteran for new examinations to determine the nature and severity of his service-connected hypertension, left ventricular hypertrophy, and asthma. The Veteran was scheduled for new examinations in February 2020; however, he failed to appear at the examinations. In this regard, the Veteran reported that he was originally scheduled for an examination that was too far from his house to drive, and his examinations were rescheduled. Then, he received notice that the rescheduled examinations were the same week he had a scheduled surgery, and thus he was unable to attend. He attempted to reschedule again with VA, but he received no response. The Board finds the Veteran provided good cause for his failure to report, and he should be scheduled for new examinations. Accordingly, another remand is necessary in order to comply with the Board prior remand instruction. Stegall, supra. 4. Entitlement to an effective date earlier than March 29, 2017, for the grant of basic eligibility to DEA under 38 U.S.C. Chapter 35 is remanded. Additionally, the issue of entitlement to an effective date earlier than March 29, 2017, for DEA eligibility, is inextricably intertwined with the issues remanded above. Specifically, eligibility for DEA benefits is statutorily determined on the basis of the Veteran's total disability level. Therefore, as the increased rating claims above include potential increased ratings for the period prior to March 29, 2017, the outcome of such claims will be determinative on the outcome of the earlier effective date for DEA eligibility claim. Accordingly, adjudication of an earlier effective date for DEA will again be deferred pending the proposed development for the hypertension, left ventricular hypertrophy, and asthma ratings claims. The matters are REMANDED for the following action: 1. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected hypertension. The record, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. 2. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected left ventricular hypertrophy. The record, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted The examiner should describe the nature and severity of all manifestations of the Veteran's left ventricular hypertrophy. He or she should specifically assess the Veteran's workload in METs and provide an ejection fraction reading. If a new stress test is contraindicated and/or interview-based MET data is provided in lieu of a stress test, please explain why. The examiner should also address the impact such disorder has on the Veteran's occupational functioning. 3. Afford the Veteran an appropriate VA examination to determine the current nature and severity of his service-connected asthma. The record, to include a copy of this Remand, must be made available to, and be reviewed by, the examiner. Any indicated evaluations, studies, and tests should be conducted. The examiner should describe the nature of all medications that the Veteran has taken for his asthma during the appeal period stemming from his April 2012 claim, i.e., whether such are inhalational, oral, or parenteral; whether such are systemic; whether such are corticosteroids or immuno-suppressive medications; and whether such are low or high dose. J. B. FREEMAN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Jonathan M. Estes 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.