Citation Nr: 21013038 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-03 442 DATE: March 8, 2021 ORDER Entitlement to an initial compensable evaluation for hypertension is denied. REMANDED Entitlement to an initial evaluation in excess of 50 percent for obstructive sleep apnea (OSA) and asthma is remanded. Entitlement to an evaluation in excess of 10 percent for left knee arthritis (flexion), partial ACL tear and status post left knee arthroscopy is remanded. Entitlement to a compensable evaluation prior to January 17, 2020, and in excess of 10 percent from that date, for left knee arthritis (instability), partial ACL tear and status post left knee arthroscopy is remanded. Entitlement to a compensable evaluation for left knee arthritis with limitation of extension is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s diastolic pressure was not predominantly 100 or more, his systolic pressure was not predominantly 160 or more, and he did not have a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. CONCLUSION OF LAW The criteria for entitlement to an initial compensable disability rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from July 1987 to December 2010, with 7 months of prior active service. The Board denied the claims in an August 2018 decision. The Veteran appealed the denial to the United States Court of Appeals for Veterans Claims (Court). In a May 2019 Order, the Court granted the parties’ Joint Motion for Partial Remand (JMPR). The Board remanded these issues in October 2019. A July 2020 rating decision granted service connection and assigned a separate 10 percent rating for left knee arthritis (instability), effective January 17, 2020. A January 2021 rating decision granted service connection and assigned a separate noncompensable rating for left knee arthritis with limitation of extension, effective January 7, 2021. The separate evaluations of the left knee for instability and limitation of extension are manifestations of the increased rating claim for the left knee on appeal. As a result, the Board will take jurisdiction of these issues. This case was most recently before the Board of Veterans’ Appeals (Board) in September 2020 when the issues were remanded for further development. There has been substantial compliance with the remand in connection with claim decided here and the Board will proceed with adjudication. Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to a compensable evaluation for hypertension The Veteran contends that an initial compensable evaluation is warranted for hypertension. The Board finds that the preponderance of the evidence is against an initial compensable evaluation. The Veteran’s hypertension is evaluated under DC 7101. Under DC 7101, a 10 percent rating is assigned for diastolic pressure predominately 100 or more, or; systolic pressure predominantly 160 or more, or is the minimum rating for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. Although the schedular criteria do not specifically outline any criteria for a noncompensable (0 percent) rating, a 0 percent rating is assigned when the requirements for a compensable evaluation are not met pursuant to 38 C.F.R. § 4.3. Turning to the evidence of record, the Veteran underwent a VA examination in July 2017 where he was noted to have a diagnosis of hypertension. He was taking medication to control his symptoms, namely metoprolol and lisinopril. Upon examination, his blood pressure was taken three times and measured at 123/72, 127/75, and 129/59. The examiner found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. A review of the Veteran’s medical records shows that has had diastolic blood pressure readings predominantly below 100, and systolic pressure readings measuring less than 160. Overall, the evidence does not indicate diastolic blood pressure of predominantly 100 or more, or systolic pressure predominantly 160 or more. The Veteran also did not have a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. There are no other Diagnostic Codes that might apply to the Veteran’s hypertension. In light of the foregoing, the Board finds that an initial compensable evaluation for hypertension is not warranted. The Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the claim. 38 U.S.C. § 5107. REASONS FOR REMAND 1. Entitlement to an evaluation in excess of 50 percent for OSA and asthma is remanded. The Veteran was last afforded VA examinations in July 2017 to evaluate the severity of this disability. The examination findings do not provide the Board with the information needed to determine whether the Veteran is entitled to a potentially higher rating. Notably, neither the sleep apnea nor the respiratory conditions exam reports comment on whether the Veteran suffers from chronic respiratory failure with carbon dioxide retention or cor pulmonale, or whether he requires a tracheostomy – conditions necessary for the award of a 100 percent disability rating under 38 C.F.R. § 4.97, Diagnostic Code 6847. Remand is needed for a new VA examination with more thorough findings. 2. Entitlement to an evaluation in excess of 10 percent for left knee arthritis (flexion), partial ACL tear and status post left knee arthroscopy is remanded. 3. Entitlement to a compensable evaluation prior to January 17, 2020, and in excess of 10 percent from that date, for left knee arthritis (instability), partial ACL tear and status post left knee arthroscopy is remanded. 4. Entitlement to a compensable evaluation for left knee arthritis with limitation of extension is remanded. The Veteran was last afforded a VA examination in January 2021 to evaluate the severity of his service-connected left knee disabilities. Unfortunately, it does not comply with the requirements in Correia v. McDonald, 28 Vet. App. 158 (2016). The examination report does not provide range-of-motion findings either in passive motion or in non-weight bearing positions. Rather, the report simply states that there was objective evidence of pain when testing under these conditions. No explanation was provided by the examiner for why range-of-motion findings could not be provided. Remand is needed for a new VA examination with more thorough findings in compliance with Correia. The matters are REMANDED for the following action: 1. Schedule the Veteran for an examination by an appropriate clinician to determine the current severity of his service-connected obstructive sleep apnea and asthma. Copies of all pertinent records must be made available to the examiner for review. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria. The examiner must complete the corresponding VA disability benefits questionnaire (DBQ). Specifically, the examiner should provide specific findings that would allow the Board to evaluate whether the Veteran ever suffered from chronic respiratory failure with carbon dioxide retention or cor pulmonale, whether he required a tracheostomy or whether his service-connected asthma required oral or parenteral corticosteroid use at least three times per year. 2. Then, schedule the Veteran for a VA examination (or telehealth interview, review of the record, etc., if an in-person examination is not feasible), to determine the current severity of his service-connected left knee disabilities. Copies of all pertinent records must be made available to the examiner for review. The examiner must complete the corresponding VA DBQ. The examiner must test and provide range-of-motion findings for the Veteran’s disabilities on active motion, passive motion, and pain with weight-bearing and with nonweight-bearing. The examiner must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. The examiner must also specifically comment on whether the disabilities involve any functional limitation of the left knee. To the extent possible, the examiner should identify any symptoms and functional impairments due to the disabilities alone and discuss the effect of the Veteran’s service-connected left knee disabilities on any occupational functioning and activities of daily living. An opinion regarding flare-ups should be based on information available in the claims file as to frequency, duration, characteristics, severity or functional loss, to include lay statements. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner does not have the knowledge or training. M. E. Larkin Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Jack S. Komperda, 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.