Citation Nr: 21008661 Decision Date: 02/17/21 Archive Date: 02/17/21 DOCKET NO. 190305-4707 DATE: February 17, 2021 ORDER Entitlement to a disability rating in excess of 10 percent for hypertension is denied. REMANDED Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) prior to August 9, 2011 is remanded. Entitlement to special monthly compensation (SMC) based on aid and attendance/housebound prior to January 26, 2009 is remanded. FINDING OF FACT The Veteran’s service-connected hypertension is manifested by diastolic blood pressure readings which are predominantly below 110 and systolic blood pressure readings which are predominantly below 200. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Board notes that the rating decision on appeal was issued in March 2017. In August 2018, the Veteran elected the modernized review system. 84 Fed. Reg. 138, 177 (Jan. 18, 2019) (codified at 38 C.F.R. § 19.2(d)). The Veteran served on active duty from April 1968 to December 1969. The Veteran selected the Higher-Level Review lane when he opted into the Appeals Modernization Act (AMA) review system by submitting a Rapid Appeals Modernization Program (RAMP) election form. Accordingly, the December 2018 AMA rating decision considered the evidence of record as of the date VA received the RAMP election form. The Veteran timely appealed this rating decision to the Board and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). In September 2019, the Board in pertinent part denied the Veteran’s appeal of entitlement to a disability rating more than 10 percent for hypertension and also declined to infer a claim of TDIU as part and parcel of the increased rating claim. The Veteran appealed the Board’s denial of the hypertension issue and decline to raise a TDIU claim to the United States Court of Appeals for Veterans Claims (Court). In August 2020, counsel for the Veteran and the Secretary of VA filed a Joint Motion for Partial Remand (JMPR). An Order of the Court dated August 2020 granted the motion, vacated in part the Board’s September 2019 decision, and remanded the case to the Board. Higher evaluation for hypertension from January 6, 2005 to August 7, 2018 Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4. 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. See 38 C.F.R. § 4.7. The Veteran’s disability has been evaluated under Diagnostic Code 7101 hypertensive vascular disease (hypertension and isolated systolic hypertension), which provides for a 60 percent rating for diastolic pressure predominantly 130 or more and a 40 percent disability rating for diastolic pressure is predominantly 120 or more. A 20 percent disability rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent disability rating is warranted for 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. 38 C.F.R. § 4.104, Diagnostic Code 7101. 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. 38 C.F.R. § 4.104, Diagnostic Code 7101. The evidence of record during the period under consideration shows blood pressure readings of 152/75 in June 2006, 120/80 in October 2006, 143/78 in November 2006, 139/65 in December 2007, 155/74 in January 2010, 174/82 in February 2013, 144/63 in March 2014, 138/80 in July 2014, 160/74 in March 2015, and 160/66 in October 2017. At a July 2005 VA examination the Veteran’s blood pressure readings were 151/85, 175/79, and 160/82. At a VA examination in October 2010, the Veteran’s blood pressure readings were 164/79, 149/72, and 148/74. Readings at a September 2011 examination were 165/60, 161/64, and 153/71. At a February 2015 VA examination, the Veteran’s blood pressure readings were 202/82, 192/93, and 203/83. Based on the review of the evidence, the Board finds that the criteria for an evaluation higher than 10 percent for hypertension have not been met. The Veteran has not demonstrated diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more which is required for a higher 20 percent disability rating. See supra 38 C.F.R. § 4.104, Diagnostic Code 7101. His systolic pressure was only above 200 at the February 2015 VA examination. All other blood pressure readings taken during the period, including one month later in March 2015, show a systolic pressure under 200. At no point was the Veteran’s diastolic pressure above 100. Therefore, an evaluation in excess of 10 percent for hypertension is not warranted for any time during the appeal period. REASONS FOR REMAND TDIU prior to August 9, 2011 and SMC prior to January 26, 2009 The parties to the August 2020 JMPR agreed that the Board in the September 2019 decision erred when it failed to provide an adequate statement of reasons or bases for not adjudicating entitlement to TDIU as part and parcel of the Veteran’s increased rating claim for hypertension. In finding that the evidence did not suggest that the Veteran’s hypertension contributed to his alleged inability to work and as such a claim of TDIU was not raised, the Board did not acknowledge that the Veteran explicitly raised the theory of entitlement to TDIU as part of his increased rating claim for hypertension. Therefore, remand was warranted for the Board to adjudicate entitlement to TDIU as part and parcel of the Veteran’s increased rating claim for hypertension. Under Rice v. Shinseki, 22 Vet. App. 447 (2009), a claim for TDIU is part of an increased rating claim when such is raised by the record. As noted above, it appears the Veteran has raised a claim for a TDIU based on his service-connected hypertension. In this case, the Veteran has a 100 percent total rating from August 9, 2011. On remand, the AOJ should take any appropriate action deemed necessary to adjudicate his claim of entitlement to TDIU prior to August 9, 2011. Additionally, when a Veteran files a claim for an increased rating, he is presumed to be seeking the maximum benefit under any applicable theory, including TDIU. See generally Roberson v. Principi, 251 F.3d 1378 (Fed. Cir. 2001); Rice v. Shinseki, 22 Vet. App. 447 (2009). In light of this principle, entitlement to SMC has been found to be an inferable issue anytime a veteran is requesting increased benefits. Akles v. Derwinski, 1 Vet. App. 118 (1991). The August 2020 JMPR noted that the Veteran has raised a claim for SMC as an inferred part of his TDIU issue. As the Veteran is entitled to SMC from January 26, 2009, the AOJ must adjudicate a claim of SMC prior to January 26, 2009. The matters are REMANDED for the following action: Adjudicate the Veteran’s claims of entitlement to TDIU prior to August 9, 2011 and SMC prior to January 26, 2009 remanded herein. H. N. SCHWARTZ Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Arif Syed, 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.