Citation Nr: 21074649 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 17-54 083 DATE: December 15, 2021 ORDER Entitlement to an initial rating in excess of 10 percent for hypertension is denied. REMANDED Entitlement to an increased rating in excess of 70 percent for major depression is remanded. Entitlement to an increased rating in excess of 30 percent prior to March 5, 2021, and in excess of 60 percent from March 5, 2021 for heart valve replacement is remanded. FINDING OF FACT The Veteran's hypertension is manifested by diastolic blood pressure predominantly 100 or more and the requirement for continuous medication. During the appeal period, hypertension has not been manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for an initial rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, DC 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from June 1977 to May 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from September 2016 rating decisions of the VA Regional Office (RO). In June 2020, the Veteran testified at a videoconference hearing before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a September 2021 letter, the Board notified the Veteran that the VLJ who conducted his hearing had retired. This letter offered the Veteran the option of electing a new hearing before a different VLJ and indicated that if no response was received within 30 days, the Board would proceed without a hearing. See 38 C.F.R. § 20.707. A response was not received within 30 days. The Board will now proceed with the adjudication of the appeal. This case was remanded for additional development in December 2020. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The degrees of disability specified are considered adequate to compensate for a loss of working time proportionate to the severity of the disability. 38 C.F.R. § 4.1. Each service-connected disability is rated on the basis of specific criteria identified by Diagnostic Codes. 38 C.F.R. § 4.27. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. It is the policy of the VA to administer the law under a broad interpretation, consistent with the facts in each case, with all reasonable doubt to be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. After careful consideration of the evidence, any reasonable doubt remaining is resolved in the claimant's favor. 38 C.F.R. § 4.3. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where an award of service connection for a disability has been granted and the assignment of an initial evaluation for that disability is disputed, separate or "staged" evaluations may be assigned for separate periods of time based on the facts found. Fenderson v. West, 12 Vet. App. 119, 125-126 (1999). 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 concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). The Court has held that "staged" ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an increased rating for hypertension A September 2016 rating decision granted service connection for hypertension and assigned a 10 percent rating from April 2016. The 10 percent rating assigned in the September 2016 rating decision was based on diastolic blood pressure predominantly 100 or more and a requirement of continuous medication for control. The Veteran has appealed the initial rating for hypertension. In the November 2016 notice of disagreement, the Veteran stated that he has a history of diastolic blood pressure predominantly 100 more. The Veteran's hypertension is rated pursuant to 38 C.F.R. § 4.104, DC 7101. DC 7101 provides ratings for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating is warranted with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; when an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control. A 20 percent rating is warranted with diastolic pressure predominantly 110 or more or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted with diastolic pressure predominantly 120 or more. A 60 percent rating is warranted with diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. Note (1): Hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note (2): Evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note (3): Evaluate hypertension separately from hypertensive heart disease and other types of heart disease. Where the criteria for a compensable rating under a diagnostic code are not met, and the schedule does not provide for a noncompensable rating, as in DC 7101, a noncompensable rating will be assigned when the required symptomatology for a compensable rating is not shown. 38 C.F.R. § 4.31. The Veteran was afforded a VA examination in September 2016. The Veteran reported diastolic blood pressure predominantly 100 or more. He reported that he had a history of diastolic readings over 100 at least once week. The September 2016 examination showed blood pressure readings of 140/90, 142/90, and 144/90. The examination noted that the Veteran's treatment for hypertension included continuous treatment with medication. An October 2016 VA treatment record showed a blood pressure reading of 168/100. The treatment record shows that the Veteran reported that he had recent blood pressure readings of 190/98. A November 2016 treatment record noted that the Veteran reported a recent blood pressure reading of 154/96. At a March 2017 examination for PTSD, the Veteran reported that his systolic blood pressure was up to 160 when he was exerting himself. A June 2017 VA treatment record noted a blood pressure reading of 158/92. An August 2017 VA treatment record noted a blood pressure reading of 120/67. The Veteran was afforded a VA examination in March 2021. The examination showed blood pressure readings of 149/80, 130/72, and 146/90. VA treatment records during inpatient treatment in March 2021 reflect blood pressure readings of 156/71, 169/80, 161/75, and 122/68. An April 2021 VA treatment records noted a blood pressure reading of 128/62. The Board has considered the Veteran's statements about his blood pressure. As noted above, in March 2017, he reported that he had elevated systolic pressure up to 160 during exertion. In October 2016, he reported two systolic blood pressure readings over 160. He has not reported, and the evidence does not show, diastolic readings greater than 110 or systolic blood pressure readings of 200 mm during the appeal period. On review, the Board finds that the criteria for a rating in excess of 10 percent for hypertension are not met. The evidence does not show that the Veteran's hypertension is manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. As there is a preponderance of the evidence against the claim, the claim must be denied. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). REASONS FOR REMAND 1. Entitlement to an increased rating in excess of 70 percent for major depressive disorder is remanded. The Veteran had a VA examination in February 2021. In an October 2021 statement, the Veteran reported that he was hospitalized for a suicide attempt. A remand is required to allow VA to obtain the treatment records for his hospitalization. 2. Entitlement to an increased rating in excess of 60 percent for heart valve replacement is remanded. At the March 2021 VA examination, the examiner conducted an interview based METs test. The examiner concluded that an activity level of 3 to 5 METs would result in dyspnea and fatigue. The March 2021 examination report indicates that an activity level of 3 to 5 METs is found to be consistent with such activities as light yard work (weeding), mowing lawn (power mower), and brisk walking (4 mph). Subsequent to the examination, in March 2021, the Veteran was admitted to a VA hospital with complaints of chest pressure. He reported substernal non-exertional chest pressure daily over the past few weeks to months lasting half an hour to several hours, which had gradually been worsening over the past two years. He reported dyspnea on exertion over the past year and stated that his functional capacity had declined significantly. A remand is necessary to obtain a VA addendum medical opinion to consider the March 2021 treatment records and provide an estimate of the level of activity that results in dyspnea, fatigue, angina, or dizziness. The matters are REMANDED for the following action: 1. Obtain the Veteran's treatment records from the Sierra Nevada VAMC for treatment in October 2021. 2. Obtain a VA medical opinion regarding the severity and Veteran's service-connected heart valve replacement. The examiner should review the March 2021 VA treatment records of hospitalization for symptoms of chest pain and syncope. The examiner must specifically consider the Veteran's reported history of substernal non-exertional chest pressure daily over the past few weeks to months lasting half an hour to several hours, which had gradually been worsening over the past two years. He reported dyspnea on exertion over the past year and stated that his functional capacity had declined significantly. The examiner must estimate the level of activity that results in dyspnea, fatigue, angina, or dizziness. B. G. LeMoine Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Catherine Cykowski 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.