Citation Nr: 21005347 Decision Date: 02/01/21 Archive Date: 02/01/21 DOCKET NO. 12-30 607 DATE: February 1, 2021 ORDER Entitlement to an initial 10 percent rating, but no higher, for hypertension is granted. Entitlement to an initial 10 percent rating, but no higher, for gastroesophageal reflux disorder with gallbladder disease (GERD) is granted. Entitlement to service connection for bilateral carpal tunnel syndrome is granted. Entitlement to service connection for a heart disorder is denied. FINDINGS OF FACT 1. Resolving all reasonable doubt in his favor, for the entire appeal period, the Veteran’s hypertension has manifested by diastolic pressure predominantly 100 or more and has required continuous use of medication for control. 2. For the entire appeal period, the Veteran’s GERD has manifested by indigestion and regurgitation and has required the continuous use of medication for control. 3. The preponderance of the evidence shows that the Veteran’s bilateral carpal tunnel syndrome had its onset in service and has continued since. 4. The preponderance of the evidence is against a finding that the Veteran has a current heart disability that causes functional impairment in earning capacity apart from his already service-connected hypertensive heart disease. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial 10 percent rating for hypertension, but no higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101. 2. The criteria for entitlement to an initial 10 percent rating for gastroesophageal reflux disorder (GERD), but no higher, have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.24, 4.114, Diagnostic Code 7346. 3. The criteria for entitlement to service connection for bilateral carpal tunnel syndrome have been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for a heart disorder have not been met. 38 U.S.C. §§ 1110, 1131, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from July 1987 to October 1987 and from January 1989 to March 2010. In October 2020, the Veteran was contacted regarding rescheduling his request for a Travel Board hearing in light of COVID-19. However, as noted by the Board in its February 2016 decision, he was previously scheduled for a hearing in October 2015. In that same month, the Board received notification of cancellation. Therefore, the Board determined the Veteran’s hearing requested had been withdrawn. Since that time, the Veteran has requested a hearing before a Board of Veterans’ Appeals Veterans Law Judge (VLJ). As a result, the Board may proceed to adjudicate the Veteran’s appeal on the merits and continues to find that his original hearing request was withdrawn. It is also worth noting that the Veteran’s case file lists his son, who has the same name, as the Appellant in this case. However, there is no rating decision of record indicating that the Veteran is incompetent or that he has passed away. As such, the Board has addressed this decision to the Veteran. Finally, the Board notes that in its February 2016 decision, the Board directed the RO to issue a statement of the case (SOC) for the issue of service connection for pseudofolliculitis barbae (PFB) in accordance with Manlincon v. West, 12 Vet. App. 238 (1999). The RO issued a SOC in May 2016. The SOC included a statement that in order to complete his appeal, the Veteran would have to file a VA Form 9 for that issue. The Veteran has not provided a VA Form 9 in connection with his claim. Because no substantive appeal has been filed, the Board does not have jurisdiction over this issue, and it will not be addressed within this decision. See Percy v. Shinseki, 23 Vet. App. 37 (2009). Increased Rating Under 38 C.F.R. § 3.655(a), when entitlement to a benefit cannot be established without a current VA examination or reexamination and a claimant, without good cause, fails to report for such examination or reexamination, action shall be taken in accordance with 38 C.F.R. § 3.655(b) or (c) as appropriate. 38 C.F.R. § 3.655(b) applies to original or reopened claims or claims for increase, and 38 C.F.R. § 3.655(c) applies to running awards, when the issue is continuing entitlement. Examples of good cause include, but are not limited to, the illness or hospitalization of the claimant, and death of an immediate family member. 38 C.F.R. § 3.655(a). The provisions of 38 C.F.R. § 3.655(b) provide that when a claimant fails to report for a necessary examination scheduled in conjunction with a claim for increase or a reopened claim for a benefit which was previously disallowed, the claim shall be denied. In February 2016, the Board remanded, inter alia, the Board’s increased ratings claims for hypertension and GERD. The basis of the remand was to “determine if there are relevant private treatment records that have not been associated with the claims file.” In the remand directives portion, the Board stated: If any additional relevant records are received pursuant to the above request, determine if new VA examinations are necessary and, if so, afford the Veteran VA examinations and opinions . . . to assess the severity of his service-connected hypertension and GERD with gallbladder disease. In this instance, the Veteran did not respond to the RO’s requests to complete a VA Form 21-4142, so that private treatment records could be obtained. He also did not present for the two scheduled VA examinations for his GERD in March 2018 and February 2020. Further, regarding the Veteran’s hypertension, the Board notes that the Veteran presented for VA examination in July 2017. The RO then attempted to schedule the Veteran for another VA examination in January 2018. He did not attend that examination. However, a VA examiner completed a hypertension disability benefits questionnaire (DBQ) based on the available medical evidence of record. The Veteran has several appeal streams and has been responsive related to his other claims. At no point has he provided good cause for not presenting for his scheduled VA examinations. However, because these examinations were not mandated by the Board, especially in light of the fact that the Veteran did not provide release for any outstanding private treatment records, the Board will not deny the Veteran’s claims as a matter of law and instead will adjudicate the claims based on the available evidence of record. 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 the 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). Here, the evidence of record does not establish that the Veteran’s service-connected disabilities on appeal have materially changed and a uniform rating is warranted for the entire rating period on appeal. 1. Entitlement to an initial compensable rating for hypertension. The Veteran’s hypertension is currently rated as noncompensable (0 percent) under Diagnostic Code 7101. According to Diagnostic Code 7101, a 10 percent disability evaluation is warranted where diastolic pressure is predominantly 100 or more, systolic pressure is predominantly 160 or more, or the individual has a history of diastolic pressure of 100 or more and requires continuous medication for control. 38 C.F.R. § 4.104, Diagnostic Code 7101. For the next higher 20 percent disability evaluation, diastolic pressure must be predominantly 110 or more or systolic pressure must be 200 or more. A 40 percent disability evaluation requires diastolic pressure to be predominantly 120 or more, and a 60 percent disability evaluation requires diastolic blood pressure to be predominantly 130 or more. Id. After a review of all the evidence of record, lay and medical, the Board finds that a 10 percent rating, but no higher, is warranted for the Veteran’s hypertension for the entire appeal period. The Veteran is service-connected for both hypertensive heart disease as well as hypertension. However, the rating assigned for the Veteran’s hypertensive heart disease is not currently on appeal. It must be noted; however, that the Veteran is currently in receipt of a 10 percent rating for his hypertensive heart disease on the basis that: We have assigned a 10 percent evaluation based on VA examination findings of a METs level of 10.1 and the use of continuous medication. An evaluation of 10 percent is assigned if there is workload greater than 7 METs but not greater than 10 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or continuous medication is required. See June 2011 Rating Decision. The basis of the grant of the 10 percent rating was because the Veteran required continuous medication for his hypertensive heart disease. The September 2010 VA examination noted “Metoprolol for ongoing [control] and the response has been good. There have been no side effects. Treatment has also included Lisinopril for ongoing [control] and the response has been good.” VA treatment records show that the Veteran continued to take Lisinopril for his hypertension and hypertensive heart disease for the entire appeal period until recently as a result of angioedema. He currently takes losartan and Coreg. See e.g. December 2020 VA Treatment Records. The evaluation of the same disability under several Diagnostic Codes, known as pyramiding, must be avoided. See 38 C.F.R. § 4.14. Separate ratings may be assigned for distinct disabilities resulting from the same injury only where the symptomatology for one condition is not duplicative or overlapping with the symptomatology of the other condition. See Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). Thus, the Board may not award a higher rating for the Veteran’s hypertension on the basis of “requiring continuous medication” alone as that would constitute pyramiding. Put differently, the Veteran currently takes the same medication to treat his hypertension as well as his hypertensive heart disease. Because he is already being compensated for taking this medication for his hypertensive heart disease, the Board may not also award a compensable rating for taking these medications for his hypertension. For the purposes of rating hypertension, it has been determined that the ameliorative effects of medicine should be considered when rating the disability. See McCarroll v. McDonald, 28 Vet. App. 267 (2016) (holding that DC 7101 (for hypertension) explicitly contemplates the ameliorative effects of medication and the Board did not err when it considered the effects of the appellant’s medication when evaluating his hypertension). Despite the Veteran’s continuous use of medication, however, the Board finds that for the entire appeal period, the evidence shows that his diastolic pressure was predominantly 100 or more, such that a minimum compensable rating is warranted. VA treatment records Madigan Army Medical Center dated in March 2008 show that the Veteran had a blood pressure reading of 172/104. At the time, he was noted to be on Metoprolol for his high blood pressure. In addition, private treatment records dated in September 2009 document a blood pressure reading of 196/129. On VA examination in July 2017, the Veteran reported: He was diagnosed with DM Type 2 in 2009. By 2012, control of hypertension became complicated and he was told this was secondary to his poorly controlled diabetes. His medication currently includes Metoprolol 50 mg twice per day, HCTZ 25 mg twice per day, and Lisinopril 30 mg orally per day. On examination the Veteran’s average blood pressure reading was 137/88. However, the January 2018 VA examiner stated, “based on review of the available medical treatment records it appears that the Veteran’s hypertension has been sporadically controlled with medication.” Indeed, recent treatment records document that the Veteran’s hypertension continues to be complicated with “intermittent hypotension of unclear etiology.” At no point during the appeal period, however, has the evidence shown the Veteran’s hypertension to be productive of diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Indeed, private treatment records generally indicate that the Veteran’s blood pressure has at times been below even that contemplated by the 10 percent rating. See e.g. Provide St. Peter Hospital December 2009 (130/80). As noted above, private treatment records do document blood pressure readings as high as 196/129. However, when weighing the other evidence of record, the Board finds that the evidence does not establish that the Veteran’s diastolic readings are predominantly 110 or more or systolic pressure predominantly 200 or more. Although the Veteran has generally contended that a higher rating is warranted for his hypertension, in this instance, the Board affords the most probative weight to the medical evidence of record, which shows that the Veteran’s hypertension has been predominantly less than contemplated by the 20 percent rating criteria. The Veteran is competent to report his blood pressure is high and the Board does not dispute as much. He may also provide information from when he took any blood pressure readings. However, a blood pressure reading log, or similar evidence of consistently high blood pressure readings, is not of-record. Therefore, the Board must rely on the medical evidence of record documenting the Veteran’s blood pressure readings. In reaching this decision, the Board also considered other applicable Diagnostic Codes for his hypertension. However, as noted, the Veteran is already separately service-connected for hypertensive cardiovascular disease and there is no evidence of any other cardiovascular abnormality. Thus, a higher rating is not warranted under any other diagnostic code. Therefore, the Board finds that, after resolving all reasonable doubt in his favor, the Veteran’s symptomatology most closely approximates the criteria for a 10 percent disability rating, but no higher, under Diagnostic Code 7101. 2. Entitlement to an initial compensable rating for gastroesophageal reflux disorder (GERD) and gallbladder disease. As previously noted by the Board, the Veteran’s appeal for an increased initial rating for GERD stems from a June 2010 rating decision, which assigned a noncompensable rating under hyphenated Diagnostic Code 7317-7346. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. The additional code is shown after the hyphen. 38 C.F.R. § 4.27. Under Diagnostic Code 7317, a gall bladder injury is to be rated as for peritoneal adhesions under Diagnostic Code 7301. 38 C.F.R. § 4.114. In this instance, the RO has rated by analogy under Diagnostic Code 7346, which contemplates hernia hiatal as GERD is not specifically provided for in the rating criteria. See 38 C.F.R. § 4.20. The Board will consider the residuals from both the Veteran’s GERD and gallbladder disease in determining the appropriate rating. Under Diagnostic Code 7346, a 10 percent rating is warranted for two or more of the symptoms for the 30 percent evaluation of less severity. A 30 percent rating is warranted for persistently recurrent epigastric distress with dysphagia, pyrosis, and regurgitation, accompanied by substernal or arm or shoulder pain, productive of considerable impairment of health. A maximum 60 percent rating is warranted for symptoms of pain, vomiting, material weight loss and hematemesis or melena with moderate anemia; or other symptom combinations productive of severe impairment of health. The criteria under Diagnostic Code 7346 are conjunctive, not disjunctive; and thus, all criteria must be met. See Melson v. Derwinski, 1 Vet. App. 334, 337 (1991) (holding that use of the conjunctive “and” in a statutory provision means that all of the conditions listed in the provision must be met). At the outset, the Board wishes to note that the record shows that the Veteran takes medication for his GERD symptomatology. Unlike the rating criteria for hypertension, the ameliorative effects of such medication may not be considered in evaluating the severity of the Veteran’s GERD. See Jones v. Shinseki, 26 Vet. App. 56 (2012) (when a Diagnostic Code is silent as to the effects of medication, VA may not deny entitlement to a higher disability rating based on the relief provided by medication). After considering all of the evidence of record, the Board finds that a 10 percent rating, but no higher, is warranted for the entire appeal period for the Veteran’s GERD. VA treatment records from May 2012 show that the Veteran was on omeprazole (20mg), which helped with his indigestion and regurgitation. He had a GI work-up for nausea after eating. His endoscopy was negative, and his helicobacter pylori test was negative. VA treatment records from August 2013 document that the Veteran’s GERD was controlled. In February 2014, the record shows that the Veteran failed to report for his VA examination, however, he presented in August 2014. At that time, a diagnosis of GERD was noted. The Veteran reported: Onset of GERD in about 2005. He was started on Prilosec at that time. If he takes the Prilosec, he may have heartburn 2-3 times a month. If he misses a dose, he has immediate symptoms. Symptoms of reflux was noted on examination but there was no esophageal stricture, spasm of the esophagus, or an acquired diverticulum of the esophagus. Private and VA treatment records obtained in connection with the Veteran’s claims document a history of GERD but do not document any symptoms. VA treatment records from December 2020 show that the Veteran continues to take Omeprazole for his GERD. As noted, the RO has attempted to schedule the Veteran for VA examinations in connection with his claim for an increase for his GERD in March 2018 and again in February 2020. However, the Veteran has failed to response to such requests and also has not provided good cause for doing so. Thus, the Board is limited to considering the evidence of record. This evidence shows that the Veteran’s symptomatology related to his GERD has been mild. Although he requires continuous medication, when he doesn’t take the medication, the evidence establishes that he experiences heartburn (pyrosis) as well as some regurgitation. This is consistent with a 10 percent rating, but no higher. At no point during the appeal period has the Veteran been shown to experience persistently recurrent epigastric distress accompanied by substernal or arm or shoulder pain, productive of considerable impairment to health. Indeed, the treatment records state that the Veteran’s GERD is controlled and only when he forgets to take his medication, he experiences less severe symptoms than contemplated by the higher 20 percent rating. As such, after resolving all reasonable doubt in his favor, the Board finds that a 10 percent right, but no higher, is warranted for the Veteran’s GERD with gallbladder disease. Service Connection Service connection may be granted for current disability arising from disease or injury incurred or aggravated by active service. 38 U.S.C. § 1110. Service connection may be granted for any disease diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). Service connection generally requires (1) medical evidence of a current disability; (2) medical or, in certain circumstances, lay evidence of in-service incurrence or aggravation of a disease or injury; and (3) medical evidence of a nexus between the claimed in-service disease or injury and the current disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004). Carpal tunnel syndrome is a “chronic disease” listed under 38 C.F.R. § 3.309(a) as an organic disease of the nervous system. Therefore, the provisions of 38 C.F.R. § 3.303(b) are for application. Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Where the evidence shows a “chronic disease” in service or “continuity of symptoms” after service, the disease shall be presumed to have been incurred in service. For the showing of “chronic disease” in service, there is required a combination of manifestations sufficient to identify the disease entity, and sufficient observation to establish chronicity at the time. With chronic diseases during active service, subsequent manifestations of the same chronic disease at any later date, however remote, are service-connected unless they are clearly attributable to intercurrent causes. Generally, if a condition noted during active service is not shown to be chronic, then, a “continuity of symptoms “after service is required to establish service connection. 38 C.F.R. § 3.303(b). 1. Entitlement to service connection for bilateral carpal tunnel syndrome. A review of the Veteran’s service treatment records shows that he had an in-service diagnosis of bilateral carpal tunnel syndrome. Specifically, service treatment records from May 2007 state that the Veteran was diagnosed with bilateral carpal tunnel syndrome and given an ergonomics keyboard. His later service treatment records document that he was also given a brace for his wrists. See e.g. July 2008, September 2008, February 2009 Service Treatment Records. On his discharge examination dated in February 2009, for question 12, the Veteran checked “yes” to painful wrists. In the explanation section, he described painful wrists with weakness in the left wrist. Although he did not present for VA examination in relation to his carpal tunnel syndrome, post-service VA treatment records continue to document a diagnosis of carpal tunnel syndrome. See e.g. April 2010 VA Treatment Records; February 2020 VA treatment Records (consult for left wrist splint). As such, when resolving all reasonable doubt in his favor, the Board finds that the Veteran’s carpal tunnel syndrome had its onset in service and has continued since. Therefore, service connection is warranted. 2. Entitlement to service connection for a heart disorder claimed as heart murmur. The Veteran contends that he should be service-connected for a heart murmur. Specifically, on his VA Form 9, he stated: “record is replete with diagnosis of slight heart murmur.” The Board does not dispute that the Veteran was seen during service on several occasions for his heart. See e.g. April 2001 (chest pain and shortness of breath); March 2009 STR (rapid heartbeat, mild LVH); compare February 2009 Discharge Examination (heart clinically normal). As noted above, the Veteran has already been granted service-connection for hypertensive heart disease. Private treatment records from September 2009 note a “history of chest pain with negative cardiac cath in 2002.” They also note “regular rate and rhythm with a 2/6 systolic ejection murmur.” Private treatment records from December 2009, three months before the Veteran was discharged from service, show “the heart is within normal limits in size. Mediastinum is normal. Pulmonary vascularity is normal. Lungs are clear. Osseous structures are intact. Impression: normal.” A December 2009 echocardiogram report states: The aortic valve is a trileaflet valve and is normal. There is no aortic stenosis or insufficiency. Mitral valve has normal appearance. There is mild mitral regurgitation. Tricuspid valve is normal. There is mild tricuspid regurgitation. The pulmonary arterial systolic pressure was estimated at 25 to 30 mmHg, which is normal. The pulmonic valve is normal by Doppler study. The left atrium is normal size. The left ventricle is normal size with normal systolic function. There is no regional wall motion abnormality. The left ventricular ejection fraction is around 60 percent to 65 percent. The right atrium is normal size. The right ventricle is normal size with normal function. There is no pericardial effusion. The aortic root is normal size. Conclusions: (1) No pericardial effusion; (2) normal cardiac valve; (3) mild mitral regurgitation and tricuspid regurgitation; (4) normal cardiac chamber size; (5) normal left ventricular systolic function. The Veteran was scheduled for a VA examination for his heart in February 2014. However, he failed to report for such examination. He presented for another VA examination in August 2014. At that time, he recalled having an echocardiogram in service which was negative. He was advised he had a benign heart murmur. He denied cardiac symptoms since his in-service examination. The examiner opined that the Veteran did not have any diagnosed heart disability as all diagnostic testing was normal. On examination, the Veteran denied experiencing symptoms related to his heart with any level of physical activity. The remarks portion of the examination stated “benign heart murmur. This was noted in the service. Echocardiogram and CT angiogram were essentially negative. No chronic issues.” As noted by the Board in its February 2016 remand, a clarifying opinion was necessary to determine whether the Veteran’s murmur constituted a disability for VA purposes. “Disability,” as used in 38 U.S.C. § 1110, refers to the functional impairment of earning capacity, not the underlying cause of said disability.” Saunders v. Wilkie, 886 F.3d 1356 (Fed. Cir. 2018). A VA medical opinion regarding the Veteran’s heart was obtained in March 2018. The examiner stated: The Veteran’s heart murmur does not constitute as a current disability for VA purposes. The murmur is a functional (or innocent/physiologic) murmur. The repeat echocardiogram from 9/19/2017 does not show significant valvular heart disease. The trace mitral and pulmonic regurgitation does not cause significant symptoms therefore there is no current evidence of heart murmur related disability for VA purposes. Later private treatment records indicate that the Veteran’s heart is normal. They state “heart is regular rate and rhythm without murmurs, rubs or gallops. Chest wall is not reproducibly tender. There is no rash. Not tachycardic.” See January 2020 Private Treatment Records. The existence of a current disability is the cornerstone of a claim for VA disability compensation, and without a current disability, service connection is not warranted. 38 U.S.C. § 1110. Based on the available evidence of record, the Board finds that the preponderance of the evidence is against a finding that the Veteran has a current heart disability to include a murmur that causes functional impairment to earning capacity. As such, service connection for a heart disorder must be denied. H.M. WALKER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Martha R. Luboch, 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.