Citation Nr: 21008109 Decision Date: 02/11/21 Archive Date: 02/11/21 DOCKET NO. 14-39 554 DATE: February 11, 2021 ORDER A compensable rating for the service-connected hypertension is denied. FINDING OF FACT The Veteran’s systolic blood pressure is predominantly under 160 and his diastolic blood pressure is predominantly under 100; he requires continuous medication for control and a history of diastolic pressure predominantly 100 or more is not shown. CONCLUSION OF LAW The criteria for the assignment of a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107(b), 7104(a); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the Marines from October 1964 to July 1988. This case is before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 Regional Office (RO) rating decision. In that rating decision, the RO granted service connection for hypertension, and assigned an initial noncompensable disability rating, effective from March 22, 2012. The Veteran’s notice of disagreement (NOD) was received in August 2013. The RO issued a statement of the case (SOC) in September 2014. The Veteran’s VA Form 9, substantive appeal to the Board, was received in October 2014. In November 2018 the Board remanded the case to the RO for further development and adjudicative action. Entitlement to a compensable disability rating for the service-connected hypertension The Veteran seeks a compensable disability rating for his service-connected hypertension. In his October 2014 VA Form 9, the Veteran contends that his blood pressure readings are only within limits (noncompensable) due to his ongoing hypertension medication, which he does not want to suspend days before an examination for fear of a stroke. He further asserts that the high stress he experienced as an air traffic controller caused him to develop hypertension at a younger than normal age which has been a constant struggle his whole life and has caused stress on his internal organs and nervous system. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant’s favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The basis of disability evaluation is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. The Veteran’s service-connected hypertension has been rated as noncompensable since the effective date of service connection, March 22, 2012. Hypertension is rated under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent evaluation is warranted where diastolic pressure is predominantly 100 or more, or systolic pressure is 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 evaluation is warranted where diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Turning to the evidence of record, the Veteran underwent a VA examination of his hypertension in June 2013. The Veteran has been on medication to treat the disorder since his time in service. The examiner indicated the Veteran’s treatment plan included taking continuous medication for hypertension or isolated systolic hypertension, specifically 20mg Inderal per day. In her review of the Veteran’s service records the examiner noted the following blood pressure readings: May 1982 110/70, March 1986 122/78 and 118/80, February 1988 110/70 and 119/72 and noted the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more prior to taking medication for control. During the exam the Veteran’s blood pressure reading was 137/76. As to the functional impact, the examiner determined the Veteran’s hypertension or isolated systolic hypertension did not impact his ability to work. The Veteran was given another VA examination in December 2018. The Veteran reported his condition has stayed the same with no current symptoms. During the examination, the examiner indicated the Veteran’s treatment plan included taking continuous medication for hypertension or isolated systolic hypertension, specifically 5mg of Lisinopril per day. As to current blood pressure readings on the day of the examination, the examiner recorded 140/84, 138/80, 142/86 and an average of 140/83. The doctor determined the Veteran’s hypertension or isolated systolic hypertension did not impact his ability to work and concluded that there is a worsening in the Veteran’s symptoms however no change in the service-connected diagnosis and no additional diagnoses have been rendered. The private medical records from 2010 to 2012 associated with the claims file reflect that the Veteran has had his blood pressure recorded several times, however those readings do not reflect a diastolic pressure predominately over 100, do not reflect a systolic pressure predominately over 160 and are consistent with the opinion of both the 2013 and 2018 VA examiners. Furthermore, the Veteran’s blood pressure readings from his time in the Marines cannot support an increase to a compensable rating because they, too, do not provide a history of diastolic pressure of predominantly 100 or more. Additionally, the records reflect that the Veteran takes medication to control his blood pressure. The Board recognizes that the Veteran has argued that his current hypertension medication keeps his blood pressure down and that the medical evidence would likely reflect higher blood pressure readings if he were to stop taking his medicine. However, even assuming that this is true, an increased rating would not be warranted in this situation. In Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), the Court held that, when assigning a disability rating, the Board may not consider the ameliorative effects of medication where those effects are not explicitly contemplated by the rating criteria. “Thus, if [the applicable diagnostic code (DC)] does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects of medication when evaluating [the disability]. Conversely, if [the applicable DC] does specifically contemplate the effects of medication, then Jones is inapplicable.” See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (en banc). The Court in McCarroll explicitly addressed whether or not DC 7101 contemplates the effects of medication and concluded that it did. Id. Since DC 7101 explicitly contemplates the effects of blood pressure medication, the Veteran cannot support an increased rating claim by asserting that his medication prevents his blood pressure readings from being high enough to qualify for a higher rating. The Veteran also alleges that the high stress he experienced as an air traffic controller caused him to develop hypertension at a younger than normal age which has been a constant struggle his whole life and has caused stress on his internal organs and nervous system. In this regard, although the Veteran is competent to report his observable symptoms such as his hypertension feeling like a constant struggle since his 20s; and, sincerely believes that his hypertension causes stress to his internal organs and nervous system, his opinion as to causation is not competent. The Veteran is not competent to provide an opinion regarding a cause and effect relationship that his hypertension has on his other organs. The Veteran has not been shown to possess the requisite training or credentials necessary to render a competent opinion as to causation given the medical physiological complexity of the Veteran’s hypertension. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). The issue in this case is medically complex and is not capable of lay observation. Moreover, the grant of service connection reflects VA’s acknowledgement that the hypertension had its onset during service, and with respect to the assignment of a disability rating, the Board is bound by the rating criteria and in this case, the criteria for a compensable rating are not met at any time during the appeal period. The Board places great weight on the examiner’s opinion as it is based on a review of service records and current medical findings. There is no contradictory medical evidence of record. In this case, and in every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran’s claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107 (b); Ortiz v. Principi, 274 F.3d 1361, 1364 (Fed. Cir. 2001); Gilbert v. Derwinski, 1 Vet. App. 49, 55-56 (1990). In light of the foregoing, the Board finds that the criteria for the assignment of a compensable rating for hypertension have not been met and the claim must be denied. L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board N. Ardalan, 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.