Citation Nr: 21071720 Decision Date: 12/01/21 Archive Date: 12/01/21 DOCKET NO. 17-34 809 DATE: December 1, 2021 ORDER Entitlement to an initial compensable rating for hypertension is denied. REMANDED Entitlement to an initial compensable rating for left knee disability is remanded. Entitlement to an initial compensable rating for right knee disability is remanded. Entitlement to service connection for a left elbow disability is remanded. FINDING OF FACT The Veteran's hypertension has not been manifested by readings of diastolic blood pressure of predominantly 100 or more, or systolic blood pressure predominately 160 or more; or a history of diastolic pressure predominantly 100 or more which requires continuous medication for control. 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. §§ 4.1-4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1991 to June 1991, July 1991 to April 1992, July 1996 to February 1997, December 2003 to March 2005, July 2008 to September 2009, and March 2014 to May 2015. The matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2015 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran was previously represented by the Military Order of the Purple Heart (MOPH). MOPH closed its Service Officer program on July 15, 2021, and requested that VA remove its recognition of MOPH as an organization that is authorized to prepare, present, and prosecute claims for VA benefits. The Veteran was notified that MOPH no longer represented him in August 2021. The Veteran was advised that he could obtain representation from accredited attorneys, claims agents, and other Veterans' service organizations; the process of obtaining such representation was explained in detail and the necessary forms were provided. See VA Correspondence (August 25, 2021). To date, he has not elected another representative. Thus, the Veteran is no longer represented in this matter. Increased Rating A disability rating is determined by the application of 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. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations that are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusions. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Fenderson v. West, 12 Vet. App. 119, 12627 (1999). However, separate ratings may be assigned for separate periods of time based on the facts found. This practice is known as "staged" ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an initial increased rating for hypertension. The Veteran contends that he is entitled to a higher rating for hypertension because he is on medication to control his hypertension. See September 2016 notice of disagreement. The Veteran was originally granted service connection in a December 2015 rating decision and was assigned an initial noncompensable rating, effective May 11, 2015. The Veteran appealed that decision. The Veteran's service-connected hypertension has been evaluated under Diagnostic Code 7101 for hypertension vascular disease (hypertension and isolated systolic hypertension). Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. A 40 percent rating is assigned for diastolic pressure predominantly 120 or more. Lastly, a 60 percent rating is assigned for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. The Veteran underwent a VA examination in December 2015. The examiner noted that the Veteran was diagnosed with hypertension in 2014. He indicated that the Veteran's blood pressure readings were 144/84, 138/86, and 134/88. He also indicated that his treatment plan included taking continuous medication. A review of the evidence of record shows the following blood pressure readings: 137/89 (October 2014); 157/96 (November 2014); 132/72 (December 2014); 139/73 (December 2014); 133/70 (January 2015); 132/87 (March 2015); 146/91 (April 2015); 141/84 (June 2015); and 124/80 (June 2015). After a review of the evidence of record, the Board finds that the Veteran does not meet the criteria for a compensable rating for hypertension. Although the Veteran has been taking continuous medication to control his hypertension, he has not at any time been shown to have a diastolic pressure predominately above 100 or a systolic pressure predominately 160 or above. Additionally, the evidence does not indicate that the Veteran has a history of diastolic blood pressure predominantly 100 or more. In sum, the Board concludes that the medical evidence does not demonstrate that the Veteran's hypertension more nearly approximates diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or having had a history of diastolic pressure predominantly 100 or more requiring continuous medication for control to warrant a compensable rating under Diagnostic Code 7101. Accordingly, the preponderance of the evidence is against the assignment of a compensable rating and the claim is denied. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND Entitlement to an initial increased rating for bilateral knee disability. The Veteran was afforded a VA examination in December 2015. The Veteran reported taking prescribed medication for his knee pain as well as experiencing pain while kneeling and rising from a seated position. Range of motion testing revealed flexion to 140 degrees and extension to 0 degrees for both knees. The examiner noted objective evidence of tenderness to palpation of the right and left medial knee and left anserine bursa. The examiner noted that he was unable to opine without resorting to speculation as to whether pain, weakness, fatigability, or incoordination significant limits functional ability following repeated use over time as the Veteran was not examined after repetitive use. The Board finds that the December 2015 VA examination is inadequate. Specifically, the Board finds that the examination does not comport to Sharp v. Shulkin, 29 Vet. App. 26 (2017), as the examiner improperly determined that rendering an opinion on the Veteran's functional loss after repetitive use over time would be speculative if not directly observed, contravening the Court's holding in Sharp. Accordingly, the Board finds that remand is necessary to obtain a new VA examination regarding the nature and severity of the Veteran's bilateral knee disability. Entitlement to service connection for a left elbow disorder. The Veteran contends that his left elbow disorder is related to service. The Veteran underwent a VA examination in December 2015, in which the examiner diagnosed left elbow contusion, sequela. The Veteran reported that he injured his left elbow in October 2014 while in Qatar and sought medical attention when he returned to Bagram. Upon examination, the Veteran's left elbow exhibited normal range of motion. The examiner noted tenderness to palpation of the medial epicondyle area. The Board finds that remand is necessary in order to afford the Veteran full consideration of his claim. The December 2015 VA examination is inadequate as the examiner did not fully consider the Veteran's reported pain. In this regard, the Board recognizes that in Saunders v. Wilkie, the Federal Circuit found that the term "disability" as used in 38 U.S.C. § 1110 "refers to the functional impairment of earning capacity, not the underlying cause of said disability," and held that "pain alone can serve as a functional impairment and therefore qualify as a disability." 886 F.3d 1356 (Fed. Cir. 2018). In other words, where pain alone results in functional impairment, even if there is no identified underlying diagnosis, it can constitute a disability. Accordingly, remand for a new VA examination is warranted to better determine whether there is a current diagnosis of a left elbow disorder, or alternatively if the Veteran's pain rises to the level of functional impairment. Additionally, the Board notes that the Veteran's service treatment records (STRs) are incomplete as it appears that only partial records from 2009, 2014, and 2015 have been associated with the claims file. Accordingly, on remand all outstanding STRs should be requested and associated with the claims file. The matters are REMANDED for the following action: 1. With any necessary identification of sources by the Veteran, request all VA treatment records and all private treatment records from the Veteran not already associated with the claims file. 2. Request any additional outstanding service treatment records from February 1991 to May 2015. 3. After completing directive #1, schedule the Veteran for an examination by an appropriate examiner to determine the current nature and severity of his bilateral knee disability. The evidentiary record, including a copy of this Remand, must be made available to, and reviewed by the examiner. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. After a review of the record, and a thorough examination and interview of the Veteran, the examiner should offer his/her opinions with supporting rationale as to the following inquiries: a) The examiner should describe all pertinent symptomology associated with the Veteran's bilateral knee disability. b) To the extent of any pain, incoordination, weakened movement, and excess fatigability on use should also be described by the examiner. If feasible, the examiner should assess the additional functional impairment due to weakened movement, excess fatigability, or incoordination in terms of degree of additional range of motion loss. c) The examiner should express an opinion concerning whether there would be additional limits on functional ability on repeated use or during flare-ups, and, to the extent possible, provide an assessment of the functional impairment on repeated use or during flare-ups. The examiner should put forth best efforts in estimating the additional functional impairment on repeated use or during flare-ups in terms of the degree of additional range of motion loss based on all information procured from relevant sources, including the Veteran's lay statements. If the examiner is unable to report the degree of additional range of motion loss on repeated use or during flare-ups, the examiner must explain why it is not feasible to render such an opinion; however, the examiner should not provide as reason that at the time of the examination the Veteran is not experiencing a flare-up or being observed after repeated use over time. A detailed rationale for the opinions must be provided. If the examiner is unable to offer a requested opinion, it is essential that the examiner offer a rationale for the conclusion that an opinion could not be provided without resort to speculation, together with a statement as to whether there is additional evidence that could enable an opinion to be provided, or whether the inability to provide the opinion is based on the limits of medical knowledge. 4. After completing directives #1-2, schedule the Veteran for an examination by an appropriate examiner to determine the nature and etiology of any left elbow disorder. The evidentiary record, including a copy of this Remand, must be made available to, and reviewed by the examiner. Any tests and studies deemed necessary by the examiner should be conducted. All findings should be reported in detail. The examiner should determine whether the Veteran has a current left elbow disorder, which may include pain alone that rises to the level of functional impairment. If a diagnosis or functional impairment is not shown, it should be explained why this is so. The examiner should also opine as to whether it is at least as likely as not (a 50 percent or greater probability) that the Veteran has a diagnosed left elbow disorder (including functional impairment) that is etiologically related to his active service. Please explain why or why not. (Continued on next page) A complete rationale must be provided for all opinions expressed. If the examiner is unable to provide an opinion without resort to speculation, an explanation as to why this is so should be provided and any additional evidence that would be necessary before an opinion could be rendered should be identified. Jenna Brant Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Robinson, 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.