Citation Nr: 21011190 Decision Date: 03/01/21 Archive Date: 03/01/21 DOCKET NO. 15-15 085 DATE: March 1, 2021 ORDER Entitlement to a compensable rating for hypertension prior to June 5, 2019 is denied. Entitlement to a compensable initial rating for bilateral diplopia prior to June 5, 2019 is denied. Entitlement to special monthly compensation based on aid and attendance is granted. REMANDED Entitlement to a rating in excess of 20 percent for residuals, cerebrovascular accident, left thalamic with right-sided weakness and ballistic tremors of the right arm is remanded. Entitlement to an initial rating in excess of 10 percent for right lower extremity weakness is remanded. Entitlement to an initial rating in excess of 10 percent for speech difficulty with hesitancy is remanded. Entitlement to a rating in excess of 10 percent for hypertension from June 5, 2019 is remanded. Entitlement to a rating in excess of 30 percent for bilateral diplopia from June 5, 2019 is remanded. FINDINGS OF FACT 1. For the period on appeal prior to June 5, 2019, the Veteran’s hypertension requires continuous medication, but it is not manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more. 2. For the period on appeal prior to June 5, 2019, the Veteran’s bilateral diplopia varies between intermittent to constant diplopia and is correctable with spectacles that include special prismatic correction. 3. The Veteran’s service-connected disabilities require the need for regular aid and attendance. CONCLUSIONS OF LAW 1. Prior to June 5, 2019, the criteria for a compensable rating for hypertension prior are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1-4.3, 4.7, 4.31, 4.104, Diagnostic Code 7101 (2019). 2. Prior to June 5, 2019, the criteria for an initial compensable rating for bilateral diplopia are not met. 38 U.S.C. §§ 1155, 5107 (2012); C.F.R. §§ 4.1-4.3, 4.7, 4.75-4.79, Diagnostic Code 6090. 3. The criteria for special monthly compensation based on aid and attendance are met. 38 U.S.C. §§ 1114, 5107 (2012); 38 C.F.R. §§ 3.350, 3.352 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from November 1973 to January 1977. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2012 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) and were previously remanded by the Board in July 2018 and October 2019. In a March 2017 written correspondence, the Veteran’s representative indicated that the Veteran wished to withdraw his request for a travel Board hearing. Accordingly, his travel Board hearing request is considered withdrawn. 38 C.F.R. § 20.704(e) (2019). The Board’s October 2019 remand directed the RO to obtain any outstanding VA treatment records from September 2012 to January 2015 and from June 2019 to the present, refer the issue of entitlement to a total disability rating based upon individual unemployability (TDIU) due to service-connected disabilities prior to June 5, 2019 to the Director of Compensation Service for extraschedular consideration, and readjudicate the intertwined issue of entitlement to Dependents Educational Assistance (DEA) prior to June 5, 2019. The Board finds that there has been substantial compliance with its October 2019 remand directives, and it will proceed with adjudication of the issues on appeal. Stegall v. West, 11 Vet. App. 268 (1998). Following the Board’s October 2019 decision, which remanded the matters of entitlement to a TDIU prior to June 5, 2019 and entitlement to DEA prior to June 5, 2019, a September 2020 rating decision granted an earlier effective date of December 10, 2010 for the grant of eligibility to DEA and the grant of a TDIU. This represents a full grant of the benefits sought, and the issues are no longer in appellate status. See Grantham v. Brown, 114 F. 3d 1156, 1158 (Fed. Cir. 1997). A June 2019 rating decision assigned a 10 percent rating for hypertension from June 5, 2019, and an August 2019 rating decision assigned a 30 percent rating for bilateral diplopia from June 5, 2019. As the rating periods regarding the issues of hypertension and bilateral diplopia prior to June 5, 2019 and from June 5, 2019 are not the maximum allowable, the issues remain on appeal. AB. v. Brown, 6 Vet. App. 35 (1993). Increased Ratings Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2019). The basis of disability ratings 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 (2019). The determination of whether an increased rating is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two ratings shall be applied, the higher rating 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 (2019). However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14 (2019). While the Veteran’s entire history is reviewed when making a disability determination, where service connection has already been established and increase in the disability rating is at issue, it is the present level of the disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). However, staged ratings are appropriate for an increase rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a compensable rating for hypertension prior to June 5, 2019 The Veteran seeks a higher rating for his service-connected hypertension, which is currently rated as noncompensable prior to June 5, 2019 under Diagnostic Code 7101 (Hypertensive vascular disease). Under this diagnostic code, a 10 percent rating is assigned for diastolic pressure predominately 100 or more or systolic pressure predominantly 160 or more or; minimum evaluation for a history of diastolic blood pressure predominately 100 or more requiring continuous medication. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 20 percent rating is assigned for diastolic readings of predominantly 110 or more, or systolic readings of 200 or more. Id. A 40 percent rating is assigned for diastolic readings of predominantly 120 or more. Id. A 60 percent rating, the highest schedular rating allowed, is assigned for diastolic readings of predominantly of 130 or more. Id. Under the provisions of 38 C.F.R. § 4.31, in every instance where the schedule does not provide for a 0 percent rating, such an evaluation will be assigned when the requirements for a compensable evaluation have not been met. Based on a review of the relevant evidence, the Board finds that a compensable rating for the Veteran’s hypertension prior to June 5, 2019 is not warranted. While the medical evidence of record for the period on appeal reflects that the Veteran is treated with continuous medication to manage his hypertension, a 10 percent rating also requires a history of diastolic pressure predominantly 100 or more. Here, out of the numerous blood pressure readings recorded throughout the Veteran's post-service VA and private treatment records and VA examinations, prior to June 5, 2019, none reflect diastolic pressure predominantly 100 or more, nor do they demonstrate systolic pressure predominantly 160 or more. Specifically, diastolic readings predominantly range between 55 and 96, and systolic readings predominantly range between 108 and 157. While the Board acknowledges three systolic readings in the Veteran’s post-service treatment records over 160, specifically, 181 (May 2011), 175 (July 2016), and 166 (September 2015), these were isolated instances, as the Veteran’s systolic readings recorded prior to and after these instances remained predominantly well below 160 throughout the period on appeal. The Board acknowledges that it may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. See Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012). However, where the plain language of the diagnostic code contemplates the effects of medication, Jones is not applicable. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (the Board may properly consider ameliorative effects of blood pressure medication in adjudicating claims for increased ratings for hypertension, because medication is specifically mentioned in Diagnostic Code 7101). In sum, there is no evidence to support a finding of diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more to warrant a compensable rating for the Veteran’s hypertension prior to June 5, 2019. Accordingly, as the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable rating for hypertension prior to June 5, 2019, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a compensable initial rating for bilateral diplopia prior to June 5, 2019 The Veteran seeks a higher initial rating for his service-connected bilateral diplopia, which is currently rated as noncompensable prior to June 5, 2019 under Diagnostic Code 6090 (Ratings for Impairment of Muscle Function, Diplopia). 38 C.F.R. § 4.79. Under Diagnostic Code 6090, a noncompensable rating is assigned for diplopia that is occasional or that is correctable with spectacles. Id. During the pendency of the appeal, VA issued a final rule revising the portion of the VA Schedule for Rating Disabilities that addresses the organs of special sense and schedule of ratings-eye.  89 Fed. Reg. 15316 (Apr. 10, 2018).  The final rule went into effect May 13, 2018.  Where there is a change in the rating criteria during the appeal period, the Board will consider the claim in light of both the former and revised schedular rating criteria, although an increased evaluation based on the revised criteria cannot predate the effective date of the amendments.    Both the former and revised criteria provide for consideration of visual impairment, which is based on impairment of visual acuity (excluding developmental errors of refraction), visual field, and muscle function.  38 C.F.R. § 4.75(a).  The amendments made no substantive changes to how visual acuity is rated.  With regard to visual field and muscle function examinations, the use of a Goldmann chart is no longer required.  There are otherwise no substantive changes to how those types of visual impairment are rated.    Under Diagnostic Code 6090, diplopia in the central field (20 degrees or less) of any of the four major quadrants equates to 5/200 visual acuity. 38 C.F.R. § 4.79. From 21 to 30 degrees, diplopia in the down quadrant equates to 15/200 visual acuity, diplopia in either lateral quadrant equates to 20/100 visual acuity, and diplopia in the up quadrant equates to 20/70 visual acuity. Id. From 31 to 40 degrees, diplopia in the down quadrant equates to 20/200 visual acuity, diplopia in either lateral quadrant equates to 20/70 visual acuity, and diplopia in the up quadrant equates to 20/40 visual acuity. Id. As previously stated, in accordance with 38 C.F.R. § 4.31, diplopia that is occasional or that is correctable with spectacles is evaluated at 0 percent. Id. Based on a review of the relevant evidence, the Board finds that a compensable initial rating for the Veteran’s bilateral diplopia prior to June 5, 2019 is not warranted. Specifically, the May 2011 and January 2015 VA examinations and post-service treatment records reflect that the Veteran’s diplopia is primarily occasional in nature and correctable with spectacles. During the May 2011 VA examination, the examiner found that the Veteran’s diplopia is occasional and corrected with spectacles. While the May 2015 VA examination shows that the Veteran’s diplopia was constant, the examiner found that this eye disability was correctable with standard spectacles including a special prismatic correction. Post-service VA treatment records onward through June 4, 2019, show that the Veteran’s diplopia varied between intermittent and constant and that it was correctable with spectacles with a special prismatic correction. Here, the Veteran’s bilateral diplopia is correctable with spectacles containing a special prismatic correction, which Diagnostic Code 6090 instructs to evaluate as 0 percent. Therefore, the currently assigned noncompensable initial rating is appropriate, and the Veteran is not entitled to a higher initial rating. As the Board finds that the preponderance of the evidence is against the Veteran’s claim for a compensable initial rating for bilateral diplopia prior to June 5, 2019, the claim must be denied. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. Special Monthly Compensation The Veteran contends that he is entitled to special monthly compensation based on the need for regular aid and attendance. Compensation at the aid and attendance rate is payable when a Veteran’s service-connected disability or disabilities cause the anatomical loss or loss of use of both feet or one hand and one foot, cause the Veteran to be blind in both eyes, or render him permanently bedridden or so helpless as to be in need of regular aid and attendance. 38 U.S.C. § 1114(l); 38 C.F.R. § 3.350(b). Determinations as to the need for regular aid and attendance are factual and must be based upon the actual requirements for personal assistance from others. In making such determinations, consideration is given to such conditions as: the inability of the claimant to dress or undress himself, or to keep himself ordinarily clean and presentable; frequent need of adjustment of any special prosthetic or orthopedic appliances which by reason of the particular disability cannot be done without assistance; the inability of the claimant to feed himself through loss of coordination of upper extremities or through extreme weakness; inability to attend to the wants of nature; or incapacity, either physical or mental, which requires care or assistance on a regular basis to protect a claimant from hazards or dangers incident to one’s daily environment. It is not required that all of the disabling conditions enumerated be present before a favorable rating is made. 38 C.F.R. § 3.352. The particular personal functions that the veteran is unable to perform should be considered in connection with his condition as a whole. It is only necessary that the veteran be so helpless as to be in need of regular aid and attendance, not that there is a constant need. “Bedridden” constitutes a condition which, through its essential character, actually requires that an individual remain in bed. The fact that a veteran has voluntarily taken to bed, or that a physician has prescribed bed rest for a lesser or greater portion of the day will not suffice. 38 C.F.R. § 3.352. In Turco v. Brown, 9 Vet. App. 222, 224 (1996), the Court held that eligibility for special monthly compensation by reason of regular need for aid and attendance requires at least one of the factors set forth in VA regulation is met. In addition, determinations that the veteran is so helpless as to be in need of regular aid and attendance will not be based solely upon an opinion that the veteran’s condition is such as would require him or her to be in bed. They must be based on the actual requirement of personal assistance from others. See Turco, 9 Vet. App. at 224. The evidence must show that the veteran is so helpless as to need regular aid and attendance; constant need for aid and attendance is not required. 38 C.F.R. § 3.352(a). Entitlement to special monthly compensation for aid and attendance Upon review of the evidence of record, the Board finds that entitlement to special monthly compensation based on the need for regular aid and attendance is warranted. An August 2011 Examination for Housebound Status or Permanent Need for Regular Aid and Attendance, conducted by Dr. M. P. with the Jacksonville Southpoint VA Clinic, reflects that the Veteran’s service-connected stroke residuals render him incapable of preparing his own meals, bathing himself, and ambulating on his own. Dr. M. P. indicated that the Veteran is wheelchair bound due to his stroke residuals and that he is unable to leave the house without his wheelchair and assistance from his wife, his caregiver. The examination report states that the Veteran’s wife also provides assistance with medication management and financial affairs. A June 2019 VA aid and attendance examination revealed that, while the Veteran is not permanently bedridden, he requires regular aid and attendance from another due to his stroke residuals. Specifically, he has difficulty feeding himself, getting dressed, bathing, grooming, and using the toilet. The examiner indicated that the Veteran was severely impaired in his right upper extremity and that he requires the use of a cane or walker to ambulate. His wife accompanies him to all of his medical appointments. A November 2020 VA aid and attendance examination conducted by Dr. P. B. with the Jacksonville VA Clinic shows that the Veteran’s stroke residuals render him incapable of preparing his own meals, feeding himself, and attending to hygiene needs. The Veteran requires medication management and does not have the mental capacity to manage his own finances. Dr. P. B. indicated that, due to the Veteran poor function of his upper extremities and significant lower extremity weakness, he is at risk of falling and injuring himself, and that he requires assistance of another person for help with ambulation. In support of his claim, the Veteran submitted November 2020 correspondence from Ms. D. P., the Veteran’s wife and caregiver. Ms. D. P. stated that, due to the Veteran’s prior strokes, which have affected his movement, speech, and mental capacity, he has lost the ability to perform most daily functions on his own and that she provides him with necessary assistance with these functions. The Board finds no reason to doubt the credibility of Ms. D. P.’s statement. Accordingly, after consideration of the competent, credible, and probative lay and medical evidence of record provided by Dr. M. P., Dr. P. B. and Ms. D. P., the Board finds that, collectively, such evidence indicates that the Veteran is so helpless as to be in need of regular aid and attendance of another person primarily due to the manifestations of his service-connected stroke residuals, which requires care or assistance on a regular basis to perform his activities of daily living. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). As such, the claim of entitlement to special monthly compensation based on the need for regular aid and attendance is granted. REASONS FOR REMAND 1. Entitlement to a rating in excess of 20 percent for residuals, cerebrovascular accident, left thalamic with right-sided weakness and ballistic tremors of the right arm is remanded. 2. Entitlement to an initial rating in excess of 10 percent for right lower extremity weakness is remanded. 3. Entitlement to an initial rating in excess of 10 percent for speech difficulty with hesitancy is remanded. 4. Entitlement to a rating in excess of 10 percent for hypertension from June 5, 2019 is remanded. 5. Entitlement to a rating in excess of 30 percent for bilateral diplopia from June 5, 2019 is remanded. Following the issuance of an October 2020 supplemental statement of the case, additional VA treatment records were received that are relevant to the Veteran’s increased rating claims as to his stroke residuals, right lower extremity weakness, speech difficulty, hypertension from June 5, 2019, and bilateral diplopia from June 5, 2019. As this evidence was obtained by VA, the automatic waiver provisions do not apply. In November 2020, the Board notified the Veteran and his representative that it had received this additional evidence, and the Veteran was provided the opportunity to waive Agency of Original Jurisdiction (AOJ) consideration of that evidence or request that the AOJ review the additional evidence. In a December 2020 response, the Veteran indicated that he wanted the case remanded for the AOJ to consider the additional evidence. Therefore, the case must be remanded for the AOJ to review the additional evidence and to prepare a supplemental statement of the case if the benefits are not granted. The matters are REMANDED for the following action: The AOJ should review the case on the basis of any additional evidence obtained since the last adjudication in the October 2020 supplemental statement of the case. If the benefits sought are not granted, the AOJ should furnish the Veteran and his representative with a supplemental statement of the case and a reasonable opportunity to respond before the record is returned to the Board for further review. KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board D. Houle, 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.