Citation Nr: 21012934 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 11-20 448 DATE: March 8, 2021 ORDER A disability rating in excess of 10 percent for hypertension is denied. REMANDED A disability rating in excess of 10 percent for fracture of right distal tibia-fibula is remanded. Entitlement to a total disability rating based on individual employability (TDIU) is remanded. FINDING OF FACT During the period on appeal, the Veteran’s diastolic blood pressure was predominately at less than 100, and the Veteran’s systolic blood pressure was predominately at less than 160. CONCLUSION OF LAW The criteria for entitlement to a rating in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Coast Guard from August 1978 to December 2002. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a rating decision issued in March 2010 by the Department of Veterans Affairs (VA) Regional Office in St. Petersburg, Florida. In October 2014, the Veteran testified at a Board hearing before a Veterans Law Judge (VLJ) who is no longer at the Board; a transcript of that hearing is of record. In October 2017, the Veteran was notified that the VLJ who presided over the October 2014 hearing was no longer at the Board and provided him with an opportunity to testify at another hearing before a different VLJ. The letter informed the Veteran that, if no response was received within 30 days, the Board would assume he did not want another hearing and proceed accordingly. The Veteran did not respond to the letter; thus, no further hearing-related action is warranted. This appeal was remanded in July 2015 and January 2018 for further development. The January 2018 Board remand directed the agency of original jurisdiction (AOJ) to obtain outstanding treatment records and provide the Veteran with a new VA examination. As concerns the issue of an increased rating for hypertension, the Board finds that the AOJ has substantially complied with the prior remand directives, to the extent possible. See Stegall v. West, 11 Vet. App. 268, 271 (1998) (Board remand confers a right on a claimant to compliance with the remand order). However, as explained infra, the Board finds that there has not been compliance with its remand orders concerning the remaining claims, which are being remanded below. Increased Disability Rating – Hypertension The Veteran asserts that his service-connected hypertension, currently rated at 10 percent disabling, has worsened and thus warrants a higher disability rating. His claim was received on December 4, 2009; therefore, the applicable “look-back” period for this matter begins on December 4, 2008. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, “staged” ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran’s service-connected hypertension is rated pursuant to Diagnostic Code 7101. Under that Diagnostic Code, a 10 percent rating is assigned for diastolic pressure predominantly at 100 or more, or; systolic pressure predominantly at 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly at 100 or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly at 110 or more, or; systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly at 120 or more. Finally, a maximum 60 percent rating is assigned for diastolic pressure predominantly at 130 or more. 38 C.F.R. § 4.104. An April 2011 VA examination noted diastolic blood pressure of 79, 81, and 89. Systolic blood pressure was 130, 132, and 131. Arrhythmia was noted. Concurrent VA treatment records do not reflect any reading showing a higher diastolic or systolic pressure readings. A December 2013 appellate brief noted that the Veteran’s hypertension was worsening. At the October 2014 Board hearing, the Veteran testified that his hypertension was uncontrolled and that he had a current diastolic reading of 89. In its July 2015 remand, citing the allegations of worsening, the Board directed the AOJ to obtain a new VA hypertension examination. A June 2016 VA examination noted that a review of the record did not show documentation of arrythmia and that hypertension is not a risk factor for arrhythmia. No Holter monitoring had been done to establish arrhythmia and a January 2014 ECV did not identify any arrhythmia. The examiner noted that the Veteran did not have a history of diastolic blood pressure predominantly at 100 or more, with three current readings of 70. The Veteran had current readings of systolic pressure at 122, 126, and 122. Again, concurrent VA treatment records do not reflect any higher diastolic or systolic pressure readings at any point. Pursuant to the January 2018 Board remand, the Veteran underwent another examination in November 2020. At that time, the Veteran reported his blood pressure was controlled. He had current readings of diastolic blood pressure of 105, 95, and 99, with systolic pressure at 185, 134, and 139. VA treatment records do not reflect higher diastolic or systolic pressure readings. Ratings for hypertension under Diagnostic Code 7101 involve application of blood pressure readings to the schedular criteria. The evidence reflects that the Veteran had diastolic pressure predominantly at less than 100 and systolic pressure predominantly at less than 160. While the Veteran had a single systolic pressure reading above 160 during the November 2020 VA examination, the majority of the readings for the appellate period reflected less systolic pressure and thus more closely approximate readings predominately at less than 160. Based on the foregoing, the Board finds that a rating in excess of 10 percent for the Veterans hypertension is not warranted as the evidence shows that, while he requires continuous medication for control, he does not have diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. In thus concluding, the Board acknowledges the Veteran’s belief that his hypertension symptoms are more severe than the current disability rating reflects. While the Board recognizes that the Veteran is competent to provide statements regarding his observable symptomatology, he is not competent to provide an opinion regarding the severity of his symptomatology in accordance with the assigned rating criteria. See Woehlaert v. Nicholson, 21 Vet. App. 456 (2007) (although the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Rather, the Board finds the evidence in which professionals with medical expertise examined the Veteran, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. The Board has also considered whether staged ratings under Hart, supra, are appropriate for the Veteran’s service-connected hypertension; however, it finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disabilities is not warranted. In sum, the Board finds that a disability rating in excess of 10 percent for the Veteran’s service-connected hypertension is not warranted. In reaching its determination, 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. See 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7; Gilbert, supra. The claim is denied. REASONS FOR REMAND A rating in excess of 10 percent for fracture of right distal tibia-fibula is remanded. In its July 2018 remand, the Board noted that there had not been compliance with its previous remand instructions and remanded the case to obtain the Veteran’s outstanding treatment records and provide him with a VA examination. In November 2020, the Veteran underwent a VA examination. At that time, the examiner noted that pain, weakness, fatigability, and incoordination significantly limited functional ability with repeated use over a period of time, describing the functional loss in the same full range of motion as the Veteran’s initial “normal” range of motion measurements: dorsiflexion to 20 degrees and plantar flexion to 45 degrees. It is unclear whether the significantly limited range of motion recorded for the significantly functional loss after repeated use was in error or whether the examiner found that the Veteran still retained full range of motion in his right ankle despite the limitation of functional ability with repeated use over a period of time. The Board further notes that the Veteran has described his right ankle’s default position as “almost locked.” Therefore, due to this internal inconsistency regarding range of motion, in addition to the discrepancy between the Veteran’s reports and the findings of the examiner, the Board finds that remand is required for an addendum opinion to clarify the findings of the November 2020 examiner. Entitlement to a TDIU is remanded. In its January 2018 remand, the Board directed the AOJ to obtain an examination and opinion regarding the functional impairment caused solely by the Veteran’s service-connected disabilities, considering the degree of interference with ordinary activities, including capacity for employment. The examiner was specifically asked to address the functional impairment caused by the Veteran's service-connected disabilities relative to his ability to engage in substantially gainful employment. The examiner was further asked to consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran's service-connected disabilities, and to describe what types of employment activities would be limited because of the service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. In response, VA examiners in November 2020 simply checked a box on their respective examination reports which indicated there were “no restrictions for job activities required.” Therefore, as the question of the functional impairment caused by the Veteran’s service-connected disabilities remains unanswered, there has been no compliance with the Board’s previous remand instructions. See Stegall, supra. As such, upon remand, an addendum opinion should be obtained. The matters are REMANDED for the following action: 1. Return the record to the VA examiner who authored the November 2020 examination report concerning the Veteran’s right ankle disability. If the November 2020 examiner is not available, the record should be provided to another medical professional so as to render the requested opinion. The need for another clinical evaluation is left to the discretion of the medical professional offering the addendum opinion, keeping in mind the practical difficulties of scheduling an examination in light of the current COVID-19 pandemic. The examiner is asked to discuss the discrepancy between the finding that the Veteran had significantly limited functional ability of the right ankle with repeated use over time, yet maintained the same range of motion in the right ankle. The examiner is also asked to address the Veteran’s description of his right ankle default position as “almost locked.” 2. Obtain a VA opinion to determine the impact of the Veteran’s service-connected disabilities on his ability to maintain gainful employment. The examiner should comment on the functional impairment caused solely by the Veteran’s service-connected disabilities relative to his ability to engage in substantially gainful employment. In providing the requested determination, the examiner must consider the degree of interference with ordinary activities, including capacity for employment, caused solely by the Veteran’s service-connected disabilities. The VA examiner should describe what types of employment activities would be limited because of the Veteran’s service-connected disabilities, what types of employment would not be limited (if any), and whether any limitation on employment is likely to be permanent. The VA examiner must acknowledge and take into account the Veteran’s education, training, and work history. Neither age nor non-service-connected disabilities should be considered or mentioned. A clear rationale for all findings should be provided. JEREMY J. OLSEN Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board I. Kerner, 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.