Citation Nr: A21020247 Decision Date: 12/20/21 Archive Date: 12/20/21 DOCKET NO. 200526-88016 DATE: December 20, 2021 ORDER Entitlement to a compensable rating for hypertension is denied. FINDING OF FACT The Veteran's hypertension is controlled by continuous medication; however, the hypertension does not have diastolic readings predominantly 100 or more, systolic readings of predominantly 160 or more, and the Veteran does not have a history of diastolic readings predominantly 100 or more. CONCLUSION OF LAW The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.159, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the United States Air Force from May 1969 to July 1991. This appeal comes to the Board of Veterans' Appeals (the Board) from a May 2020 rating decision in which the Agency of Original Jurisdiction (AOJ) granted entitlement to service connection for hypertension, assigning a noncompensable evaluation effective December 6, 2019. As this decision was issued in May 2020 and constitutes an initial decision, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In his May 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the May 2020 AOJ decision on appeal. 38 C.F.R. § 20.301. Entitlement to an initial compensable rating for hypertension. The Veteran contends a compensable disability rating is warranted for his service-connected hypertension. Disability evaluations are determined by the application of a schedule of ratings, which is in turn based on the average impairment of earning capacity caused by a given disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the evaluations to be assigned to various disabilities. If 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. If different disability ratings are warranted for different periods of time over the life of a claim, "staged" ratings may be assigned. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Hypertension is evaluated in accordance with the criteria set forth in 38 C.F.R. § 4.104, Diagnostic Code 7101. A 10 percent rating is warranted if hypertension is manifested by diastolic blood pressure predominantly 100 or more, or if the systolic pressure is predominantly 160 or more. A 10 percent rating is also warranted if the condition requires continuous medication for control, and there is a history of diastolic pressure predominantly 100 or more. A 20 percent rating is warranted if the diastolic pressure is predominantly 110 or more, or if the systolic pressure is predominantly 200 or more. A 40 percent rating is warranted if the diastolic pressure is predominantly 120 or more, and a 60 percent rating is warranted if the diastolic pressure is predominantly 130 or more. 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. For the reasons that follow, the Board finds that a compensable rating for hypertension is not warranted. The Veteran received one Department of Veterans Affairs (VA) examination in March 2020. During this examination, his blood pressure readings were reported as 136/99, 124/85, and 127/90. Furthermore, while the examiner noted that the Veteran's hypertension requires continuous medication, she concluded that the Veteran did not have a history diastolic blood pressure was not predominantly 100 or more. The readings and history reported during this examination therefore do not warrant a compensable rating. In addition to the March 2020 VA examination, the record also contains private treatment records, which also fail to support a compensable rating. Treatment records show blood pressure readings as follows: 136/80 (July 2018); 116/84 (August 2018); 122/70 (September 2018); and 107/67 (November 2018). These private treatment records show that the Veteran's highest documented diastolic blood pressure reading was 84 (in August 2018) and his highest documented systolic blood pressure reading was 136 (in July 2018). As his diastolic pressure was not predominantly 100 or more, nor was his systolic pressure 160 or more, the Veteran's private treatment records do not demonstrate that a 10 percent rating is warranted. The Board acknowledges the Veteran's long history of hypertension. The Veteran's service treatment records (STR) and March 2020 VA examination demonstrate that the Veteran was diagnosed with hypertension in March 1977 during his active service. He was prescribed Inderal and Apresoline during service to treat his hypertension. Additionally, the Board notes the Veteran has also had multiple diastolic readings above 100 during service, see, e.g., March 1980 STR (blood pressure at 148/102 and 148/104); November 1980 STR (blood pressure at 140/100); March 1981 STR (blood pressure at 132/100); November 1983 STR (blood pressure at 150/90); and October 1984 STR (showing blood pressure readings at 158/110 and 150/106); however, the Board finds such incidents to be acute flares of the Veteran's blood pressure and there is no indication that the Veteran has predominantly had diastolic readings of 100 or more or systolic readings of 160 or more during the appeal period. Accordingly, the Board finds that the Veteran's diastolic readings have not been predominantly 100 or more, his systolic readings have not been predominantly 160 or more, and the Veteran has not had a history of diastolic readings predominantly 100 or more. In evaluating the Veteran's hypertension under Diagnostic Code 7101, emphasis is on "predominant" blood pressure readings. See McCarroll v. McDonald, 28 Vet. App. 267 (2016) (holding that a single diastolic blood pressure reading of 100 does not demonstrate a history of diastolic pressure "predominantly" 100 or more, as required by Diagnostic Code 7101). Here, the clear majority of blood pressure readings are consistent with the current noncompensable evaluation. (Continued on the next page) The Board acknowledges that he takes continuous medications for his hypertension; however, as the rating criteria for hypertension specifically contemplate the use of medication to ameliorate symptoms, a higher rating may not be assigned based solely on the fact that medication is used. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), ("[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication... the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication."); McCarroll, 28 Vet. App. at 274 (finding that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of Diagnostic Code 7101 contemplates the effects of medication). As the preponderance of the evidence is against a compensable rating for hypertension, the benefit-of-the-doubt doctrine does not apply. See Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board R.M. Sachs, 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.