Citation Nr: 21010259 Decision Date: 02/24/21 Archive Date: 02/24/21 DOCKET NO. 16-26 393 DATE: February 24, 2021 ORDER Entitlement to a compensable disability rating for hypertension is denied. REMANDED Entitlement to service connection for obstructive sleep apnea is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s hypertension was manifested by the use of continuous medication, but not by a history of diastolic pressure in excess of 100 or more, systolic pressure predominantly in excess of 160, or diastolic pressure predominantly in excess of 100. CONCLUSION OF LAW The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from April 2003 to April 2006 and from July 2006 to March 2009. He had additional service with the Army National Guard. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2015, October 2015, and March 2016 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this case in September 2019 for further development. The Veteran testified at a videoconference hearing before the undersigned in June 2019. A transcript is of record. Pursuant to the Veterans Claims Assistance Act (VCAA), VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5102, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 (2017). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to a compensable disability rating for hypertension is denied. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 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 for that rating. Otherwise the lower rating will be assigned. 38 C.F.R. § 4.7. The veteran’s entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505, 509 - 10 (2007). The Veteran’s hypertension is currently rated under Diagnostic Code 7101, specifically contemplating hypertension. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or for a history of diastolic pressure predominantly 100 or more which 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. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Hypertension must be confirmed by readings taken two or more times on at least three different days. Id., Note 1. The term hypertension means that the diastolic blood pressure is predominantly 90mm or greater. Id. Where, as here, the Diagnostic Code contemplates the effect of the medication, the disability is to be rated as the symptoms are with the medication. McCarroll v. McDonald, 28 Vet. App. 267 (2016). Where a Diagnostic Code does not provide a noncompensable rating, a noncompensable rating shall be assigned when the requirements for a compensable rating are not met. 38 C.F.R. § 4.31. Post-service VA treatment records consistently reflect that the Veteran’s diastolic pressure was below 100 and systolic pressure was below 160. In July 2019, he reported that his blood pressure continues to elevate with migraine headaches. In a June 2015 VA examination, the examiner noted that the Veteran’s treatment plan for hypertension included taking continuous medication. It was also noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The blood pressure readings taken during the examination were as follows: 124/80, 113/81, and 112/73. The examiner found that the occupational impact due to the Veteran’s hypertension. In the May 2016 VA 9, the Veteran contended that his hypertension should be 10 percent disabling because he took medication for it every day. In a December 2016 VA examination, the examiner noted that the Veteran’s treatment plan for hypertension included taking continuous medication. While the examiner noted that the Veteran had a history of diastolic blood pressure elevation to predominantly 100 or more, it referred to an isolated reading of 146/107 in September 2006 with no evidence of subsequent or repetitive diastolic readings over 100. The blood pressure readings taken during the examination were as follows: 141/89, 133/84, and 126/82. The examiner found that the occupational impact due to the Veteran’s hypertension. At the June 2019 hearing, the Veteran reported that his blood pressure was 162/102 two weeks prior which came down to approximately 160/98 after sitting down for 30 minutes. He stated that he had to see his primary physician because even with medication, his blood pressure was always close to or higher than 100 most days. He also stated that when he went to doctors and got his blood pressure checked, most of the readings were 160 or 161 over 98 or 100, but that nurses only marked the last of the three readings. His reported symptoms for high blood pressure were headaches and feeling like he had been drinking. In a January 2020 VA examination, the Veteran reported irritability and impatience which aggravated and raised his blood pressure. Otherwise, his blood pressure readings remained within the same range. The examiner noted that the Veteran’s treatment plan for hypertension included taking continuous medication. It was also noted that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The blood pressure readings taken during the examination were as follows: 140/87, 131/83, and 137/86. The examiner found that the occupational impact due to the Veteran’s hypertension. Based on the foregoing, the Board finds that a compensable disability rating for hypertension is not warranted. The evidence of record, to include VA treatment records and the June 2015, December 2016, and January 2020 VA examinations reflect that the Veteran predominantly had systolic pressure below 160 and diastolic pressure below 100. Further, while the June 2015 and January 2020 VA examiners noted that the Veteran required continuous medication to control his hypertension, neither examiner noted a history of diastolic pressure over 100. Predominant is defined as “for the most part” or “mainly.” MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 978 (11 ed. 2003). In this case, the all of the Veteran’s treatment records show that his systolic pressure was below 160 and his diastolic pressure was below 100 during the period on appeal. While the December 2016 examiner noted that the Veteran required continuous medication to control his hypertension and noted a history of diastolic pressure over 100, the examiner referred specifically to an isolated reading in September 2006 and specifically found no evidence of subsequent or repetitive diastolic readings over 100. A singular reading of diastolic pressure over 100 with a specific finding of no subsequent or repetitive diastolic readings over 100 and the findings of the June 2015 and January 2020 examiners do not indicate a history of diastolic pressure predominantly over 100. Further, the Board notes that at the June 2019 hearing the Veteran reported that his blood pressure was 162/102 two weeks prior and that most of his readings were 160 or 161 over 98 or 100, but the nurses only marked the last of three readings. However, one report of blood pressure reading of 162/102 does not show that the Veteran’s systolic pressure was predominantly 160 or over or that his diastolic pressure was predominantly 100 or over. Further, the Board finds that the Veteran’s statement about his readings being 160 or 161 over 98 or 100 is outweighed by numerous blood pressure readings in the VA treatment records that show that his systolic pressure was not 160 or over or that his diastolic pressure was not 100 or over. The preponderance of the evidence is against the assignment of an initial compensable disability rating for the Veteran’s hypertension under Diagnostic Code 7101 throughout the appeal period. 38 U.S.C. § 5107 (b); Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea is remanded. In its September 2019 remand, the Board instructed the RO to verify all periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard and obtain a supplemental VA opinion regarding the nature and etiology of the Veteran’s sleep apnea in which the examiner considered statements from the Veteran, his spouse, and his fellow servicemembers. In this case, the RO obtained the Veteran’s Army National Guard Retirement Points History Statement from January 2003 to July 2017, which did not identify periods of ACDUTRA or INACDTURA, and an Army National Guard Retirements Points Statement Supplemental Detailed Report which showed periods of INACDUTRA from February 11, 2017 to February 12, 2017 and from April 1, 2017 to April 2, 2017 and indicated no periods of active duty, ACDUTRA, or active duty for special work. However, the military personnel records showed that the Veteran had ACDUTRA from January 7, 2011 to January 22, 2011, was ordered to full time National Guard Duty (Operational Support) in March 31, 2011, participated in the 2011 summer flood operations in North Dakota, and was ordered to active duty in December 23, 2016. As such, all periods of ACDUTRA and INACDTRA have not been verified and an additional remand is warranted. See Stegall v. West, 11 Vet. App. 268 (1998). In the January 2020 VA examination opinion, the examiner opined that it was at least as likely as not that the Veteran’s obstructive sleep apnea was incurred in service; however, this was largely based on an inaccurate factual premise that the Veteran had been diagnosed with sleep apnea in 2004 while on active duty. In the May 2020 supplemental opinion, the examiner found that there is no evidence that the Veteran’s military duties caused his sleep apnea, which was diagnosed after he left service and that there was no evidence in the medical records of complaints of sleep apnea or sleep disturbance. However, the examiner did not consider the lay statements from the Veteran, his spouse, his fellow servicemembers, and his mother. As such, a remand is required. The matters are REMANDED for the following action: 1. Verify all of the Veteran’s periods of active duty for training (ACDUTRA) and inactive duty for training (INACDUTRA) with the Army National Guard, to include an Army National Guard Retirements Points Statement indicating such periods. 2. After the above is completed, obtain a VA opinion from an appropriately qualified examiner regarding the nature and etiology of the Veteran’s obstructive sleep apnea. Only if deemed necessary to provide an opinion, should the Veteran be afforded a new VA examination. Provide the claims file, including a copy of this REMAND, to the examiner for review. The examiner should opine as to the following: a. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea is due to or aggravated by his service-connected PTSD and/or asthma. b. Is it at least as likely as not (50 percent probability or greater) that the Veteran’s sleep apnea was incurred in a period of active duty or any verified period of ACDUTRA. A complete rationale for all opinions must be provided. If the examiner cannot provide any requested opinion without resorting to speculation, it must be so stated, and the examiner must provide the reasons why an opinion would require speculation. In providing the opinions requested above, the examiner must consider statements from the Veteran, his spouse, his fellow servicemembers, and his mother regarding the onset and continuity of symptomatology pertaining to his sleep apnea since service. Dalton v. Nicholson, 21 Vet. App. 23 (2007). LESLEY A. REIN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board E. Ko, 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.