Citation Nr: A21020302 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 201209-123020 DATE: December 21, 2021 ORDER The claim for increased rating for hypertension is denied. Readjudication of the claim for service connection for back injury is warranted; to this extent, the appeal is granted. REMAND Entitlement to service connection for back injury is remanded. FINDINGS OF FACT 1. New evidence was received after the final rating decision that is relevant to the issue of entitlement to service connection for back injury. 2. During the appeal period, the Veteran's hypertension has not manifested in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Also, the Veteran did not both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. CONCLUSIONS OF LAW 1. The criteria for readjudication of the claim for service connection for back injury have been met. 38 U.S.C. §§ 501(a), 5103, 5108; 38 C.F.R. §§ 3.156(d), 3.2501. 2. The criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the Army from February 1966 to January 1969. A rating decision was issued under the legacy system in September 2017. In August 2018 the Veteran opted into the modernized review system, also known as the Appeals Modernization Act (AMA), by submitting a Rapid Appeals Modernization Program (RAMP) election form and selecting the supplemental claim lane. In August 2020, the agency of original jurisdiction (AOJ) issued a rating decision, which is the decision on appeal. The RAMP supplemental claim decision found that new and relevant evidence had not been received for the back injury claim and determined that the 0 percent rating for hypertension would be continued. In a November 2020 VA Form 10182, Decision Review Request: Board Appeal, the Veteran elected the Direct Review docket. In reviewing this case, the Board noted the Veteran (through counsel) made a request under the Privacy Act for a complete copy of the Veteran's claims file. The Board recognizes that when a Privacy Act request is filed "by an individual seeking records pertaining to him or her and the relevant records are in the custody of the Board, such request will be reviewed and processed prior to appellate action on that individual's appeal." 38 C.F.R. § 20.1200. In an August 2021 memorandum to the Veteran's counsel, the VA responded to the Privacy Act request and provided "the entire VA claims folder on file with this office." The Board finds the Privacy Act request has been satisfied and, therefore, the Board may conduct its review. 1. Readjudication of the claim for service connection for back injury is warranted. The VA will readjudicate a claim if new and relevant evidence is presented or secured. 38 U.S.C. § 501(a); 38 C.F.R. § 3.156(d). "Relevant evidence" is evidence that tends to prove or disprove a matter in issue. 38 U.S.C. §§ 501, 5103, 5108; 38 C.F.R. § 3.2501. The August 2020 supplemental claim decision did not readjudicate the claim because it determined the evidence was not relevant: The evidence that has been identified from the Muskogee VA Medical Center in connection with the current claim does not constitute relevant evidence because it does not prove or disprove a matter at issue within your claim. Though your recent Muskogee VA Medical Center records do constitute new evidence that discusses the symptoms of your medical condition, this evidence does not support a change in our prior decision. As a result, we are confirming the previous denial of this claim Upon a review of the record, the Board finds that new and relevant evidence has been presented after the final prior denial of the Veteran's claim for service connection for back injury. Notably, the Muskogee VA Medical Center records document the Veteran's history of chronic back pain. As such, the claim must be readjudicated. 2. Evaluation of hypertension, which is currently 0 percent disabling, is continued at 0 percent. The Veteran is seeking a higher rating for hypertension. The appeal period now before the Board begins in July 2020, which is when service connection went into effect for this condition. See Fenderson v. West, 12 Vet. App. 119 (1999). This disability has been assigned a 0 percent rating throughout the entire appeal period. Ratings are based on a schedule of reductions in earning capacity from specific injuries or combination of injuries. The ratings shall be based, as far as practicable, upon the average impairments of earning capacity resulting from such injuries in civil occupations. 38 U.S.C. § 1155. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. 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 required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. The Veteran's hypertension has been assigned a disability rating under DC 7101 of 38 C.F.R. § 4.104. The applicable rating schedule is set forth as follows: 7101 Hypertensive vascular disease (hypertension and isolated systolic hypertension): Diastolic pressure predominantly 130 or more 60 Diastolic pressure predominantly 120 or more 40 Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more 20 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 predominantly100 or more who requires continuous medication for control 10 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. Note (1) to 38 C.F.R. § 4.104, DC 7101, which requires two or more blood pressure readings on at least three different days, only applies to the initial confirmation of the hypertension diagnosis, and not the assignment of a disability rating. Gill v. Shinseki, 26 Vet. App. 386, 391 (2013). The question before the Board is whether the Veteran's hypertension involved 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. The evidence does not show diastolic pressure predominantly 100 or more, either during the course of the appeal or historically. In an August 2020 compensation and pension examination, the examiner confirmed the diagnosis of hypertension though the Veteran does not have a "history of diastolic BP [blood pressure] elevation to predominantly 100 or more." The Veteran's treatment records also show a history of blood pressure readings that are not predominantly 100 or more: In August 2014, 150/76; in February 2015, 138/79; in September 2015, 139/72; in March 2016, 165/76; and in October 2016, 138/79. Similarly, in an August 2020 examination, the examiner noted blood pressure readings that are not predominantly 100 or more: In July 2017, 154/93; in February 2018, 129/75; and in March 2018, 154/88. These readings are not consistent with a 10 percent rating. They are the only blood pressure readings available during the appeal period, and the Veteran did not identify any other potentially pertinent medical records. The C&P examiner also noted the Veteran takes continuous medication for hypertension. However, the use of medication is contemplated by the rating criteria set forth in DC 7101. McCarroll v. McDonald, 28 Vet. App. 267, 273 (2016) (en banc). Therefore, the use of medication does not impact the rating decision in this case. Applying the law and all reasonable inferences in favor of the Veteran, a 10 percent rating is not warranted as the Veteran's diastolic pressure during the appeal period was not pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. In short, the preponderance of the evidence is against the claim. As such the benefit-of-the-doubt doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Therefore, an increased disability rating is not warranted for hypertension. REASONS FOR REMAND Although the Board regrets additional delay, remand is necessary for additional evidentiary development before the Board can adjudicate the Veteran's claim. The issue of entitlement to service connection for a lower back injury is remanded to correct a duty to assist error related to the new and relevant evidence that now requires readjudication of the back injury claim. The RO did not obtain a compensation and pension (C&P) examination regarding whether the Veteran's back pain had onset due to disease or injury incurred in service. Rather, the RO determined stated the Veteran's service records do not show back pain and VA treatment records do not reference back injury for several years after release from active duty. The Board finds that the new and relevant evidence presented by the Veteran requires a VA examination and medical opinion to determine whether the back injury had its onset due to disease or injury incurred during his period of service. The duty to assist includes providing a medical examination or obtaining a medical opinion when necessary to decide a claim. 38 C.F.R. § 3.159(c)(4). Here, there was no medical examination to determine if the Veteran had an in-service back injury or if that injury is at least as likely as not related to his documented current back disability. On remand, a medical examination should be scheduled and an opinion obtained. For the reasons set forth above, the Board finds that a VA examination is necessary to address the nature and etiology of any back disability or it relates to service, to include the claimed in-service back injury. McLendon v. Nicholson, 20 Vet. App. 79 (2006). The portion of the Veteran's claim relating to back injury will be readjudicated and is REMANDED for the following: (Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c), so expedited handling is requested.) 1. Schedule the Veteran for VA compensation and pension examination to determine the nature and etiology of his back disability. The examiner should review the claims folder, and then respond to the following question. Is it at least as likely as not (i.e., probability of 50 percent or higher) that the back disability is related to an in-service disease, event, or injury? In answering this question, consider and address the lay statements from the Veteran as well all treatment records. Any opinion or conclusion reached should be fully explained. S. CHARLES NEILL Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Neill, Steven C. 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.