Citation Nr: 21065982 Decision Date: 10/28/21 Archive Date: 10/28/21 DOCKET NO. 20-14 222 DATE: October 28, 2021 ORDER An earlier effective date of October 2, 2014, but not earlier, for service connection for hypertension is granted. An increased rating for hypertension in excess of 10 percent, to include a total disability due to individual unemployability (TDIU) rating, is denied. FINDINGS OF FACT 1. The Veteran's request to reopen his claim for hypertension, following an unappealed November 2001 rating decision, was received on October 2, 2014. 2. The evidence of record fails to show that the Veteran's systolic blood pressure has been predominately at 200 or more, or diastolic pressure predominately at 110 or more at any time during the rating period on appeal; or has manifested with any symptomatology beyond the elevated blood pressure levels requiring medication for control; or otherwise rendered the Veteran to be unable to secure and follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an effective date of October 2, 2014, but not earlier, for the award of service connection for hypertension have been met. 38 U.S.C. § 5110; 38 C.F.R. §§ 3.114, 3.156, 3.400, 3.861. 2. The criteria for rating hypertension in excess of 10 percent have not been met. 38 U.S.C. § 1155, 38 C.F.R. §§ 3.321, 4.16, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran honorably served on active duty from July 1966 to June 1970. In a May 2018 rating decision, the Regional Office (RO) granted service connection for hypertension, initially evaluated at 10 percent, and effectuated from March 2018. The Veteran appealed the effective date of the award and the assigned rating. At the outset, the Board notes in a June 2000 rating decision, the RO denied the Veteran's original claim which had been received in March 1998. In November 2001, following the amendments to the pertinent laws, the RO had reconsidered but again denied the claim, which the Veteran did not appeal. The unappealed rating actions generally become final, absent a perfected appeal. See 38 U.S.C. § 7105(c); 38 C.F.R. §§ 3.104, 20.302, 20.1103. The appeal is initiated by filing a Notice of Disagreement (NOD) within one year from the date of the rating action and is perfected by filing a substantive appeal (VA Form 9) within 60 days of the statement of the case (SOC) or within the remainder of the one-year period, whichever ends later. See 38 C.F.R. §§ 19.20, 19.22, 19.52. The record is devoid of any evidence suggesting that an appeal of the November 2001 decision had been initiated or perfected within the allotted timeframe. One exception to the general finality rule allows the RO to reopen and readjudicate the claim based on new and material evidence received prior to the expiration of the appeal period. 38 C.F.R. § 3.156(b). Here, however, the record is devoid of any evidence received at any time prior to November 2002, when the one-year period to initiate the appeal had elapsed. Likewise, the record is devoid of any allegation of clear and unmistakable error in prior adjudications, which is another exception to the general rules governing the finality of decisions. See 38 C.F.R. § 3.105(a)(1). Accordingly, the Board finds that the November 2001 rating decision had become final in November 2002. See 38 U.S.C. § 7105(c); 38 C.F.R. § 3.160(d)(1)(i). On October 2, 2014, the RO received the Veteran's request to reopen his claim. In October 2015, the RO notified the Veteran that his claim has been reopened but was denied on the merits. The Veteran's timely December 2015 NOD and his May 2017 substantive appeal (timely submitted after the RO issued a March 2017 SOC) have conferred the Board's jurisdiction over his October 2014 claim. Particularly in light of the December 2017 Notice to the Veteran that the RO had certified his appeal to the Board, it is unclear why the RO had not forwarded his appeal to the Board at that time and instead accepted his subsequent March 2018 request to reopen his claim. Of note, the RO also issued a supplemental statement of the case in September 2017, which did not require any response from the Veteran on an already perfected appeal. 38 C.F.R. § 19.52(c). In any event, he should not be penalized for any prejudicial administrative or legal errors beyond his control. Ultimately, the Board derives its jurisdiction over the claim from a NOD with a particular rating action and, once perfected, the Board's review of the appealed rating action becomes mandatory. See Buckley v. West, 12 Vet. App. 76, 82 (1998) (internal citations omitted). It is apparent that the Veteran has continuously pursued his claim for service connection for hypertension since October 2, 2014, which is now properly before the Board. In light of the eventual grant of service connection for hypertension in May 2018, the remaining issues on review before the Board are the effective date of the award and the increased rating. Effective date In seeking an earlier effective date, the Veteran maintains that the award of service connection for hypertension should be effectuated from the date of his original claim received in March 1998. The award of direct service connection based on the claim reopened after the final prior rating action is effectuated from the receipt date of the request to reopen the claim or the date entitlement to the sought benefit had arisen, whichever is later. See 38 U.S.C. § 5110(a); 38 C.F.R. § 3.400(q)(2). In accordance with the law, the Board has found that service connection for hypertension must be effectuated from October 2, 2014, when the Veteran's request to reopen his claim was received, but not earlier. To that end, the law is unequivocal in that the award of service connection shall not be effectuated retroactively beyond the receipt date of the request to reopen the claim, unless specifically authorized otherwise. See 38 U.S.C. § 5110(a)(3). Upon carefully considering the available exceptions to the general rule for effectuating the awards of service connection, the Board has found none that are applicable to the circumstance of this case. For example, upon noting that the Veteran has advanced a theory of entitlement to service connection for hypertension based on his exposure to herbicide agents in service, the Board has considered the regulatory provisions of 38 C.F.R. § 3.816 allowing for assigning the earlier effective dates in the following circumstances. Under § 3.816 codifying the class-action in case of Nehmer v. United States Department of Veterans Affairs, known as Nehmer class, on those claims, such as in this case, received on or after May 3, 1989, the awards of service connection may be effectuated as of the date on which the previously decided claim had been received by VA. See 38 C.F.R. § 3.816(c)(2). However, these regulatory provisions are expressly limited to the awards based on the statute or regulation establishing a presumption of service connection for the "covered herbicide disease" listed in 38 C.F.R. § 3.309(e), while hypertension is not merely unlisted therein but is specifically excluded therefrom. 38 C.F.R. §§ 3.816(a)(b)(1)(i), 3.309(e), Note 2. The Board acknowledges the Veteran's correspondence highlighting that the Congress and the VA Secretary are working on adding hypertension to the list of covered herbicide diseases. However, as of the date of this decision, it is not an existing law. Should Congress actually pass the statute and the Secretary codify it into the VA regulations, VA might reconsider the effective date of the award or the Veteran may submit a supplemental claim. Meanwhile, the Board intimates no further opinion to that end and is ultimately bound by the existing rather than prospective laws, under which hypertension is not a covered herbicide disease. As such, the current regulatory provisions for members of the Nehmer class are not applicable to the Veteran's circumstances. By implication, the effective date of the award is determined under subparts 3.114 and 3.400. See 38 C.F.R. § 3.816(c)(4). Under 38 C.F.R. § 3.114, covering the so-called liberalizing laws, that is, any laws subject to revisions, additions, amendments, rescissions, or other changes resulting in a grant of the sought benefits, the benefits may be authorized retroactively for up to one year prior to the date of receipt of the request to reopen the claim. Here, the November 2001 rating decision based on the rescinded threshold requirement for a well-grounded claim did not result in the award of service connection. During the pendency of this appeal, no pertinent liberalizing laws that had actually affected the outcome of this case were passed by Congress or codified by VA. As such, the regulatory provisions of § 3.114 are not applicable here. As discussed, under § 3.400(q)(2), the award of service connection based on the claim reopened after the final prior rating action may not be effectuated any earlier than the receipt date of the request to reopen the claim, in this case, on October 2, 2014. The Board acknowledges the attorney's contention that, per the December 2011 VA Compensation Service Bulletin concerning its policy for reconsideration of claims based on declassification of records pertaining to the U.S. Military use of herbicide agents in Thailand, the Veteran is entitled to an effective date as of the date of his original claim in March 1998 under provisions of 38 C.F.R. § 3.156(c). The Board disagrees. It is true that the effective date of the awarded benefits may be the date of the original claim in those cases, where a previously denied claim is reopened and granted based on the evidence resulting from the correction of the military records by proper service department or other competent authority. 38 U.S.C. § 5110(i). The award based all or in part on the correction of records such as declassification of materials, which were classified and not associated with the Veteran's claims file at the time VA first decided the claim, is effectuated from the date VA received the previously decided claim or the date entitlement arose, whichever is later. See 38 C.F.R. § 3.156(c)(3). Of particular note, however, these regulatory provisions apply only to the awards that are all or in part based on the corrected records. Id. The attorney points out that the grant of direct service connection in the Veteran's case was based on his exposure to herbicide agents in service, as at least in part was shown by the declassified departmental records related to that exposure, which warrants an earlier effective date under 38 C.F.R. § 3.156(c). In granting the Veteran's claim, the attorney explains, the May 2018 rating decision "cited," inter alia, "Agent Orange exposure articles, received April 14, 2018." Per attorney, given this evidence that VA "relied on" in its grant, it is clear that VA has "accepted the fact" that the Veteran was exposed to herbicides when he served in Thailand during the Vietnam War. At the time of prior decisions, these pertinent and now declassified service records corroborating the Veteran's contention of herbicide exposure during his service in Thailand were in VA's constructive possession but were unassociated with his claims file. With that, the attorney concludes that the Veteran's circumstances fall squarely within 38 C.F.R. § 3.156(c) and therefore the award should be effectuated from the date of his original claim in March 1998. The attorney's contention rests upon a proposition that the VA's decision at least in part was based on the evidence pertaining to the Veteran's exposure to herbicide agents because VA "cited" this evidence in its rating decision. However, the fact that VA "cited" evidence neither means nor implies that VA actually has "relied on" on this evidence or "accepted the fact" supported by that evidence, as purported by the attorney. Rather, the "cited" evidence was simply listed in the EVIDENCE section, so as to acknowledge what evidence was part of the record before VA at the time, to include any evidence received from the Veteran in support of his claim. Of particular note here is a "VA letter, dated March 19, 2018," which is also listed in the EVIDENCE section of the rating decision. In this letter, the RO notified the Veteran that his claim has been received and how his claim will proceed. It does not logically follow that, because VA has cited the letter, VA all or in part relied on this letter to find the Veteran's entitlement to service connection or otherwise accepted any material fact necessary to award service connection. Ultimately, nothing in the rating decision itself or in the record viewed as a whole suggests beyond the attorney's unsupported conjecture that the award of service connection for hypertension in this case was based on the declassified documents pertaining to the U.S. military use of herbicide agents in Thailand. Rather to the contrary, the award in this case was based on the VA's favorable medical opinion that the Veteran's medical records upon discharge show the elevated blood pressure levels at 132/88 which continued since then and within the same year had manifested to a hypertensive range for VA purposes. As such, the award in this case was based on the factual finding that the Veteran's hypertension in directly related to the onset of the elevated blood pressure levels in service, at which point the legal criteria for the award of service connection have been met. Of note, statutes and regulations for presumptive service connection are intended as liberalizations applicable when the evidence of record would not warrant direct service connection without their aid. 38 C.F.R. § 3.303(d). Once the evidence of record has established the Veteran's entitlement to direct service connection on the factual basis, any further inquiry into whether he factually or presumptively had been exposed to herbicide agents in service and whether such an exposure may have caused his hypertension was foreclosed. Of further note, as a matter of policy rather than of law, an exposure to herbicide agents at the Royal Thai Air Force Bases during the Vietnam War Era may be presumed only for service members who held certain military occupational specialties; otherwise, such an exposure must be found on the factual basis of each individual case, which is not the case here. Ultimately, given the Veteran's presumptive service connection for prostate cancer, his presumptive exposure to herbicide agents during service is not in dispute but is inconsequential here because the award of service connection for hypertension was based on other grounds wholly unrelated to his exposure to herbicide agents during his service in Thailand. As such, the fundamental legal requirement that the award of service connection must be based all or in part on the corrected service records in order to invoke the provisions of 38 C.F.R. § 3.156(c) for an earlier effective date has not been met here. No other material issues have been expressly raised by the Veteran or reasonably raised by the evidence of record. Accordingly, the effective date of the award of service connection for hypertension as of October 2, 2014, but not earlier, is granted. Increased rating As reflected in his February 2019 NOD, the Veteran is seeking the highest possible rating for his hypertension, to include a total disability rating due to individual unemployability (TDIU). Given that he has not advanced any specific contention as to why he believes that he is entitled to a rating in excess of 10 percent currently assigned, the Board decided the claim based on the evidence of record. Hypertension is evaluated per VA schedule for rating cardiovascular disabilities under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. Under DC 7101, a rating at 10 percent is assigned when the evidence shows diastolic pressure predominantly at 100 mm or more, or systolic blood pressure predominantly at 160 mm or more, or control of blood pressure requires a continuous use of medication and a medical history reflects a diastolic pressure of predominantly 100 or more. Id. Of note, the rating criteria for hypertension is successive, meaning that the criteria for a lower evaluation must be met before a higher rating may be considered. The regulations do not require every reading to meet the requisite thresholds, but the use of the term "predominantly" means that the readings must more often than not be at or above those thresholds. The plain regulatory language sets forth the precise numeric thresholds for a rating at 10 percent requiring the average readings in systolic pressure at 160 mm or more, or in diastolic pressure at 100 mm or more, which may be considered in two ways. The Board considers the current average readings in systolic and diastolic pressure. In cases, where a use of medication is required to control blood pressure, the Board additionally considers whether the average readings historically (such as prior to use of medications) meet the regulatory threshold for diastolic pressure at 100 mm or more. Here, during the rating period on appeal, namely, from October 2014 and shortly prior to that timeframe, the record reflects the following blood pressure readings: 122/68 shown in June 2014; 138/79 in June 2015; 115/71 in February 2016; 132/74 in November 2016; 149/79 in September 2017; 128/77 in September 2017; 115/66 in June 2018; 137/69 in March 2019; 134/73 in December 2019; 144/72 in June 2021; and 136/70 in March 2021. The average range shown in the 130s over 70s is wholly aligned with an April 2018 VA examination report. The April 2018 report reflects the average blood pressure of 137/70 based on the readings of 138/70, 138/68, and 136/70 shown on examination. While this average does not meet the criteria for a compensable rating for hypertension, the examiner noted that the Veteran requires a continuous use of medications for control of his blood pressure and does have a history of diastolic blood pressure predominately at 100 or more. As such, the RO has assigned a rating for hypertension at 10 percent, which is a favorable finding the Board is not going to revisit and disturb. However, none of the documented blood pressure readings during the rating period on appeal meets the criteria for rating hypertension in excess of 10 percent, which requires diastolic pressure to be predominately at 110 or more, or systolic pressure predominately at 200 or more. The examiner did note the Veteran's statement that, if he runs out of Nifedipine, his blood pressure goes sky high around 200/100s, but ultimately "is under control." As discussed, rating of hypertension is based on the predominant figures. In this case, the readings documented during the rating period on appeal reflect the 130s over 70s ranges which do not meet the thresholds for a compensable rating. Rather, the rating at 10 percent in this case has been assigned based on the required continuous use of medications coupled with the history of diastolic pressure at 100 or more. To that end, the legal criteria for rating hypertension clearly contemplate the ameliorative effects of medication and prompts a consideration of historical diastolic pressure, as has been done in this case. McCarroll v. McDonald, 28 Vet. App. 267, 272 (2016). However, in rating hypertension of an "individual . . . who requires continuous medication for control," the regulations do not provide for any considerations beyond the required rather than actual use of medication and history of diastolic pressure at 100 or more, which implies an exclusion of historic systolic pressure altogether, let alone considering isolated incidents of elevated systolic pressure when the Veteran might be off the prescribed regimen. Further given the Veteran's own statement that his blood pressure is under control, which is wholly consistent with the medical evidence of record, it cannot be said that his systolic pressure has been predominately at 200 or more during the rating period on appeal, as required for a rating at 20 percent. Likewise, the record is devoid of any evidence suggesting that diastolic pressure at any time has been predominately at 110 or more, based on which a 20 percent also may be assigned. As such, a rating at 20 percent is not warranted. Further given the successive nature of the rating criteria for hypertension, the Board ultimately finds that a rating in excess of 10 percent for hypertension is not warranted here. In reaching this conclusion, the Board has considered the Veteran's report to the VA examiner that he has headaches which he believes are associated with his hypertension. However, the examination report unequivocally indicates that the Veteran does not have any pertinent physical findings, complications, conditions, signs, or symptoms etiologically related to hypertension beyond the elevated blood pressure levels requiring a continuous regimen for control. Of note, the examiner noted and then reiterated that it is the Veteran who believes that his headaches are etiologically related to his hypertension. Absent any suggestion that the Veteran has specialized knowledge, training, or experience in rendering medical opinions, to include attributing his headaches to hypertension, the Board find the examiner's medical opinion to be of most probative weight which tips the scales against this particular claim. See Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). Otherwise, the Veteran has not identified, nor has the record suggested, any single symptom manifestation that is not contemplated by the schedular rating criteria for hypertension, so as to warrant an evaluation under any alternative diagnostic codes. Further, the absence of any symptomatology attributable to hypertension beyond a history of elevated blood pressure levels requiring a continuous use of medication for control, as unequivocally contemplated by the rating schedule, also precludes a finding that the application of the rating schedule to the Veteran's circumstances is impracticable, which is the foundational prerequisite to an extra-schedular rating consideration. Sowers v. McDonald, 27 Vet. App. 472, 478 (2016). As such, the Board finds that an extra-schedular rating consideration also is not warranted here. See 38 C.F.R. § 3.321(b)(1). The Board acknowledges the Veteran's request for consideration of assigning a TDIU rating, which may be assigned where the schedular rating is less than total. See 38 C.F.R. § 4.16(a). However, a TDIU may be assigned only is cases, where such an award would yield at least some additional benefit. Herlehy v. Principi, 15 Vet. App. 33, 35 (2001). Otherwise, a TDIU rating claim is considered moot. Id. Here, the award of a TIDU rating conceivably may yield some additional otherwise unavailable benefit, such as special monthly compensation(s), but only if such an award is based on account of the Veteran's service-connected disabilities to the exclusion of his totally disabling bilateral hearing loss throughout the rating period on appeal and his prostate cancer rated totally disabling from October 2019. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280 (2008). Of note, any disabilities already evaluated as totally disabling may not be counted twice and thus may not be considered for the purposes of TDIU rating that is an alternative rather than supplemental total rating. Id. The Board is not aware of any alternative scenario in which the Veteran may gain any additional otherwise unavailable benefit. Neither the Veteran nor his attorney has pointed one out. This leaves the Board with a consideration of the Veteran's hypertension evaluated at 10 percent and diabetes mellitus evaluated at 20 percent, yielding the combined rating of 29 percent which, when rounded to the nearest degree divisible by 10, yields combined evaluation of 30 percent from October 2014. See 38 C.F.R. § 4.25. In May 2017, the Veteran was awarded service connection for his bilateral lower extremity radiculopathy evaluated at 10 percent per each extremity with bilateral factor of 1.9 percent, which brought his combined evaluation to 36 percent and rounded to the nearest degree disable by 10 yields 40 percent. A schedular TDIU rating may be considered only in cases, unlike here, where one disability is ratable at 60 percent or more, or two or more disabilities bring the combined rating to 70 percent or more. See 38 C.F.R. § 4.16(a). As such, a schedular TDIU rating is not warranted. In cases, like this, where the threshold percentage requirements for the schedular TDIU are not met, the Board does not have jurisdiction to assign a TDIU rating in the first instance before any consideration by the VA Director of Compensation Service. 38 C.F.R. § 4.16(b). Rather, the Board may only refer the claim and only in those cases, where the evidence of record shows that the Veteran is unable to secure and follow a substantially gainful occupation employment due to functional limitations imposed by his service-connected disabilities. Id. To that end, the Veteran's disabilities must be shown to result in an impairment of the mind and/or body sufficient to render it impossible for the average person to get or hold a job providing for a sustainable living. See 38 C.F.R. § 4.15. As such, the focus of the Board's inquiry is placed on evaluating whether or not the Veteran is capable of performing acts required by employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). To that effect, the Board considers the impact of service-connected disabilities on the Veteran's physical and/or mental ability to perform the essential work-related tasks viewed in light of his vocational skillset as shown by such factors as education, vocational training, and employment history. See Ferraro v. Derwinski, 1 Vet. App. 326 (1991). Here, the January 2018 examination reports reflect that the Veteran's diabetes mellitus and associated radiculopathy have no functional impact on his ability to work. The VA examiner opined that the Veteran's hypertension does affect his ability to work, as his blood pressure level would go up during strenuous activities such as in his past occupations as a firefighter and a diesel fuel injector tester, both of which are physically stressful. Likewise, the Social Security Administration (SSA) determination letter reflects that the Veteran's hypertension has played a part in rendering him disabled for the SSA disability purposes, to include the aggregate impact of his non-service-connected headaches and sinuses, and his service-connected hypertension and hearing problems. Based on this evidence, the Board concedes that his hypertension does to a degree affect his ability to perform the essential work tasks in physically demanding environments. However, for VA purposes, a disability rating is recognition that the Veteran's hypertension to a degree impairs his earning capacity. See Van Hoose, 4 Vet. App. at 363. Based on the foregoing discussion, the Board has determined that such a degree is of no higher than 10 percent because the Veteran's blood pressure has been largely under control throughout the rating period on appeal, which fails to suggest that hypertension is the sole basis for rendering him unable to perform the essential work-related tasks under the less stressful and less physically demanding conditions. That is, in light of his vocational skillset in an intelligence line of work which does not preclude the Veteran from gainful employment in non-physically strenuous and less demanding environments. Rather, the collective impact of his service-connected disabilities, to include his totally disabling hearing loss for the entire rating period on appeal and the more recent totally disabling prostate cancer, is the most likely culprit here. As such, given that the evidence of record fails to show that diabetes mellitus and secondary radiculopathy affect the Veteran's ability to work, the Board finds that a referral to the Director for an extraschedular TDIU rating consideration on the sole basis of hypertension ratable at 10 percent is not warranted. Otherwise, the total schedular rating for the entire rating period on appeal effectively renders a TDIU rating consideration moot. This ultimately leaves the Board without any legal basis for rating hypertension in this case any higher than 10 percent. To this extent, the appeal is denied. L. Chu Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Alex Bardin, 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.