Citation Nr: A21020599 Decision Date: 12/28/21 Archive Date: 12/28/21 DOCKET NO. 180925-404 DATE: December 28, 2021 ORDER Entitlement to a 10 percent rating, but no higher, for high blood pressure (hypertension) is granted. REMANDED Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. Entitlement to service connection for a kidney condition is remanded. Entitlement to service connection for a back disability is remanded. Entitlement to service connection for shin splints is remanded. Entitlement to service connection for a right hip disability is remanded. FINDING OF FACT The Veteran has a history of diastolic pressure predominantly 100 or more and requires continuous medication, but he does not have diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for a 10 percent rating, but no higher, for high blood pressure have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.7, 4.10, 4.21, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1979 to August 2001. The Veteran's claims were originally denied in a June 2016 rating decision under the legacy system. The Veteran opted his claims into the Rapid Appeals Modernization Program (RAMP) on May 25, 2018, and selected higher-level review (HLR). The agency of original jurisdiction (AOJ) issued a RAMP rating decision August 2018, which is the decision on appeal. The Veteran submitted a RAMP selection form in September 2018, and selected the Hearing docket for review at the Board of Veterans' Appeals. The Veteran testified at a July 2021 Board hearing; a transcript of this hearing is of record. The Board may only consider the evidence of record at the time of the RAMP opt in, as well as any evidence submitted by the Veteran or his representative at the hearing or within 90 days following the hearing. 38 C.F.R. § 20.302(a). Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a question as to which of two evaluations apply, assigning the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Entitlement to a compensable rating for high blood pressure from December 17, 2015, through August 29, 2018. The Veteran's service-connected high blood pressure is currently rated as noncompensable and the Veteran contends he is entitled to a higher rating. High blood pressure (hypertension) is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 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 Veteran's hypertension has approximated the criteria for a 10 percent rating, but has not more nearly approximated the criteria required for a 20 percent rating. The Veteran attended a VA examination in May 2018. The examiner stated that the Veteran was taking continuous medication for his hypertension. The examiner noted current blood pressure readings of 172/78, 158/76, and 142/74. The examiner stated that the Veteran did not have any other pertinent physical findings, complications, conditions, signs or symptoms related to hypertension. The Veteran's treatment records from March 2010 at the Sadler Clinic show blood pressure of 128/88. 2012 blood pressure readings from Houston Northwest Medical Center show 110/80, 138/84, and 138/84. Medical records from North Houston Nephrology ranging from 2012 to 2016 show the highest systolic reading of 128 and highest diastolic of 88. Medical records from Dr. R.F. ranging from 2013 to 2016 show the highest systolic reading of 130 and highest diastolic reading of 86. A May 2014 record from Dr. Y.N. shows a reading of 153/116. However, on a manual recheck, the Veteran's blood pressure was 112/76. The highest other reading from this doctor was 152/98. However, other readings were lower, and were: 110/84, 113/84, 130/86. At the hearing, the Veteran testified that his last blood pressure reading was about 138/90 or 100. He stated that he has been taking medication since 1983, and even on medication his blood pressure goes up and down. He testified it is in the range of 130/90. The Veteran stated that he could not remember what his blood pressure was before he was put on blood pressure medication during service in the 1980s. Throughout the period on appeal, and back to the 1980s, the Veteran has been on continuous medication for high blood pressure. The Veteran was put on medication in service, and his service treatment records are unavailable for review. The Board notes that despite being on medication, he has had several blood pressure measurements where his diastolic readings were in the 90s. Resolving reasonable doubt in favor of the Veteran, the Board finds that it is more likely than not that prior to being put on continuous medication, the Veteran had a history of diastolic ratings above 100. Therefore, the Veteran is entitled to a 10 percent rating. For a higher 20 percent rating, the Veteran would need to have diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. None of the Veteran's treatment records or the VA examination show any blood pressure readings that would meet that criteria. Therefore, the Veteran is not entitled to a 20 percent rating. Providing the benefit of the doubt to the Veteran, the Board finds a rating of 10 percent, but no higher, is warranted for his high blood pressure under DC 7101. See 38 C.F.R. § 4.31. REASONS FOR REMAND 1. Entitlement to a rating in excess of 10 percent for a right knee disability is remanded. 2. Entitlement to a rating in excess of 10 percent for a left knee disability is remanded. The Board finds a pre-decisional duty to assist error on the part of the AOJ in not obtaining an adequate examination for the knee disabilities. Therefore, remand is required for a new VA examination. The Veteran attended a May 2018 VA examination for his right and left knee conditions. The examiner stated the Veteran did not report flare-ups of the knees. However, in the "details on onset" section, the examiner reported that the Veteran stated he has "bilateral pain and swelling which gets so bad at times he must take prednisone about 2x/year." In addition, the examiner documented the Veteran's statement that "When my knees are worst I can't get out of bed." These statements appear inconsistent with the finding that the Veteran did not have any flare-ups of the knee, and the examiner did not provide any explanation to reconcile these findings. In addition, the examiner stated the Veteran was not being examined immediately after repetitive use and stated that the examination was neither medically consistent or inconsistent with the Veteran's statements describing functional loss with repetitive use over time. The examiner does not provide any explanation for this statement and it is unclear what the Veteran's level of functioning is after repetitive use. As such, the Board finds that this examination is inadequate and that a new examination must be obtained on remand. See Barr v. Nicholson, 21 Vet. App. 303 (2007). 3. Entitlement to service connection for a kidney condition is remanded. The Board finds a pre-decisional duty to assist error on the part of the AOJ in not obtaining an opinion on the Veteran's kidney condition. Therefore, remand is required to obtain a VA examination and opinion. The Veteran is service connected for high blood pressure (hypertension). The Veteran's treatment records from Dr. R.F., which were in the record before the August 2018 rating decision, contain indications that the Veteran's kidney condition might be related to his hypertension. The Veteran's February 2016 medical records indicate that renal deterioration is presumably secondary to diabetes (for which the Veteran is not service connected), but also notes hypertension is an "associated condition." In addition, in the "current problems" portion of the medical records, the diagnosis listed is hypertension with chronic kidney disease. Therefore, these records contain at least an indication that the Veteran's kidney disease may be caused or aggravated by his service-connected hypertension. As such, remand is required to obtain an examination. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). 4. Entitlement to service connection for a back condition is remanded. The Board finds a pre-decisional duty to assist error on the part of the AOJ in not obtaining an opinion on the Veteran's back condition. Therefore, remand is required to obtain a VA examination and opinion. In disability compensation claims, VA must provide a VA medical examination when there is: (1) competent evidence of a current disability or persistent or recurrent symptoms of a disability; (2) evidence establishing that an event, injury, or disease occurred in service or establishing certain diseases manifesting during an applicable presumptive period for which the claimant qualifies; and (3) an indication that the disability or persistent or recurrent symptoms of a disability may be associated with the Veteran's service or with another service-connected disability; but (4) insufficient competent medical evidence on file for the Secretary to make a decision on the claim. McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The Veteran has not been afforded a VA examination for his back condition, and the Board finds that the Veteran should have been afforded a VA examination based on the evidence of record before the AOJ. The Veteran has October 2015 x-rays showing degenerative changes to the lumbar region. The Veteran submitted a June 2016 statement indicating that he had been treated for back pain several times since 1991 after returning from the Gulf at Fort Leonard Wood hospital. Therefore, the evidence of record shows a current disability, evidence of an in-service incident, and an indication that the disability may be associated with the Veteran's service. Accordingly, the AOJ should obtain a VA examination. 6. Entitlement to service connection for shin splints is remanded. The Veteran's claim for entitlement to service connection for shin splints is inextricably intertwined with his claim for entitlement to an increased rating for his bilateral knee disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board is remanding the knee disability claims for a new VA examination, and the knee examinations elicit information about whether there is a diagnosis, or symptoms of, shin splits. As development undertaken on the Veteran's bilateral knee disabilities will bear directly on the service connection claim for shin splints, a decision on this matter is deferred. 5. Entitlement to service connection for a right hip condition is remanded. The Veteran's claim for entitlement to service connection for a right hip condition is inextricably intertwined with his claim for entitlement to an increased rating for his bilateral knee disabilities. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The Board is remanding the knee disability claims for a new VA examination, and the knee examinations elicit information on the severity of the knee condition, which may inform whether the knee disability caused or aggravated the Veteran's hip disability. As development undertaken on the Veteran's bilateral knee disabilities will bear directly on the service connection claim for a right hip condition, a decision on this matter is deferred. The Board notes that at the July 2021 hearing, the Veteran testified that his hip condition was secondary to his service-connected knee disabilities. This theory of entitlement was not raised prior to the AOJ decision on appeal, so there is no pre decisional error on the part of the AOJ in not obtaining a secondary service connection opinion. However, the Board wanted to note this newly raised theory, and recommends that the AOJ obtain an opinion for secondary service connection for the right hip condition. The matters are REMANDED for the following actions: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected bilateral knee disabilities. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran's disability under the rating criteria. In so doing, the examiner must test the Veteran's active motion, passive motion, and pain with weight-bearing and without weight-bearing. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). In addition, the examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. If it is not possible to provide a specific measurement based on direct observation, the examiner should provide an estimate, if at all possible, of the additional impairment due to flare-ups based on the other evidence of record and the Veteran's statements. If it is not possible to provide a specific measurement without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). 2. Schedule the Veteran for a VA examination for his kidney condition. The claims file, including a copy of this Remand, must be made available to the examiner for review. Following a review of the record, the examiner is asked to provide a response to the following (each opinion must be supported by rationale): (a.) Is the Veteran's kidney condition at least as likely as not (a 50 percent or greater probability) related to service? (b.) Is the Veteran's kidney condition at least as likely as not caused by his service-connected hypertension? (c.) Is the Veteran's kidney condition at least as likely as not aggravated (i.e., worsened beyond its natural progression) by his service-connected hypertension? In doing so, the examiner must address the Veteran's February 2016 medical records which notes hypertension is an "associated condition" to renal deterioration, and a diagnosis of hypertension with chronic kidney disease was included under the "current problems" portion of the medical records. A complete rationale must be provided for the opinions rendered. The examiner is reminded that the Veteran's complete STRs are not available due to no fault of the Veteran, and rationale based solely on the lack of in-service treatment records will be found inadequate. 3. Schedule the Veteran for a VA examination for his back condition. The claims file, including a copy of this Remand, must be made available to the examiner for review. (a.) Is the Veteran's back condition at least as likely as not (a 50 percent or greater probability) related to service? (Continued on the next page) The examiner should address the Veteran's June 2016 statement that he was treated several times since 1991 for back problems after returning from the Gulf during active service. A complete rationale must be provided for the opinions rendered. The examiner is reminded that the Veteran's complete STRs are not available due to no fault of the Veteran, and rationale based solely on the lack of in-service treatment records will be found inadequate. Tiffany Dawson Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Patrick, 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.