Citation Nr: 21013243 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 20-28 608 DATE: March 9, 2021 ORDER Entitlement to an initial compensable rating for hypertension is denied. REMANDED Entitlement to an initial increased rating above 10 percent for transient ischemic attack (TIA) is remanded. Entitlement to an initial compensable rating for residuals of serotonin syndrome is remanded. FINDING OF FACT Although the Veteran’s hypertension required continuous medication for control, his blood pressure readings never were predominantly 100 or more in the diastolic readings or predominantly 160 or more in the systolic readings during the appeal period. CONCLUSION OF LAW The criteria for entitlement to an initial compensable rating for hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from March 1968 to January 1970. Unfortunately, the Veteran passed away in August 2020; the Appellant is the surviving spouse and substitute claimant. For many years before his passing, the Veteran pursued a claim of entitlement to compensation under the provisions of 38 U.S.C. § 1151 for residuals of a medication error by VA. In a September 2018 Decision, the Board granted compensation under the provisions of 38 U.S.C. § 1151 for residuals of hypertension, TIA, and serotonin syndrome. In an October 2018 Rating Decision, the agency of original jurisdiction (AOJ) implemented the September 2018 Board Decision by assigning the current diagnostic codes and ratings. Through a February 2019 Notice of Disagreement (NOD) and an April 2020 VA Form 9, the Veteran timely appealed the October 2018 Rating Decision, generally contending that the severity of his residuals warranted increased ratings. Unfortunately, the Veteran passed away in August 2020, during the pendency of the appeal; the Appellant is the surviving spouse and substitute claimant, similarly contending that the severity of the Veteran’s residuals warranted increased ratings. 1. Entitlement to an initial compensable rating for hypertension Disability ratings are determined by comparing the severity of a disability to the applicable criteria listed in VA’s Schedule for Rating Disabilities, which is based, as far as can practically be determined, on the average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, VA assigns the higher rating if the disability picture more nearly approximates the higher rating’s criteria. 38 C.F.R. § 4.7. The Veteran’s hypertension has been rated as noncompensable since March 21, 2001. See October 2020 Codesheet; 38 C.F.R. § 4.104, DC 7101. However, the Appellant generally contends that the severity of the Veteran’s hypertension warranted a higher rating. Under DC 7101, a 10 percent rating is warranted when: diastolic (bottom number) pressure is predominantly 100 or more, systolic (top number) pressure is predominantly 160 or more, or there is a history of diastolic pressure predominantly 100 or more requiring continuous medication for control. 38 C.F.R. § 4.104, DC 7101. A 20 percent rating is warranted when: diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. Id. A 40 percent rating is warranted when: diastolic pressure is predominantly 120 or more. Id. A 60 percent (maximum schedular) rating is warranted when: diastolic pressure is predominantly 130 or more. Id. Crucially, although private and VA records show that the Veteran was on continuous medication throughout the appeal period, the medical evidence does not indicate, and the Veteran did not otherwise report, diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more. See, for example, February 20, 2007, Dallas VAMC record (the Veteran reported that he does not monitor his blood pressure, but takes his medication); January 2011 VA heart examination (hypertension is controlled on medications); December 12, 2011, Dallas VAMC record (continued taking blood pressure medications); June 18, 2012, Dallas VAMC record (continued taking two hypertensive medications); October 21, 2019, Dallas VAMC record (105/58 and 132/75); December 12, 2019, Dallas VAMC record (128/58); July 8, 2020, Dallas VAMC (124/90); August 4, 2020, Dallas VAMC record (two medications prescribed for reducing blood pressure). Notably, the Board found one instance on January 31, 2010, when the Veteran arrived to the Dallas VAMC emergency room with elevated blood pressure (192/104); however, the provider noted that the elevation was probably secondary to pain and found that the blood pressure improved with medication, documenting a lowered blood pressure (134/80) upon examination. Further, neither the Veteran nor Appellant submitted an opinion from a private provider describing manifestations that would warrant a higher rating. Thus, based on the evidence currently of record, particularly that which was highlighted above, the Board finds that, although the Veteran’s hypertension required continuous medication for control, his blood pressure readings were never predominantly 100 or more in the diastolic readings or predominantly 160 or more in the systolic readings during the appeal period. Further, the Board does not discount the ameliorative effects of blood pressure medication because the plain language of DC 7101 contemplates the effects of medications. McCarroll v. McDonald, 28 Vet. App. 267 (2016). As the Veteran’s blood pressure readings simply were not elevated to the levels needed for higher ratings, the criteria for a compensable rating have not been met and the claim must be denied. REASONS FOR REMAND 1. Entitlement to an initial increased rating above 10 percent for TIA In an August 2018 Independent Medical Opinion (IMO) regarding the 1151 claim, the provider discussed the continuing symptoms/manifestations of the medication error. He identified that, during the May 2001 hospitalization, the Veteran had fluctuations in blood pressure, mood, palpitations, diarrhea, disrupted sleep. He attributed the following May 2001 hospitalization symptoms to serotonin syndrome: confusion; loss of coordination; restlessness; extreme agitation; fluctuations in blood pressure; heart palpitations; diarrhea. He said that the medication error (adverse drug event [ADE]) may continue for some time, even after resuming correct dosing and that the Veteran’s continuing ADE provoked symptoms sufficient to trigger his carotid endarterectomy and a “smoldering” serotonin syndrome. He also said that: around the time of the ADE, no MRI was performed to confirm whether the Veteran’s cluster of TIA’s had actually resulted in permanent injury; residuals of such small strokes may not be evident for several years until the aging of the brain makes their cumulative effects once more manifest, whether as worsening in cognitive function, worsening in memory, or both; failure to fully test for these likely injuries and their resultant additional disabilities at the time does not lessen their potential long-term impact on the Veteran; after the advent of high-resolution MRI-imaging, it has become accepted that at least 50 percent of TIA’s have an associated brain lesion on subsequent MRI if performed; it is the sum total of insults to the cerebral cortex and white matter that determine the manifestation, extent, and progression of cerebrovascular disease; and, given the presence of ‘diffuse cerebral atrophy’ on the first of three head CT’s from 2001, specified simply as no significant acute changes on subsequent exams that year, it is clear that the Veteran would be at increased risk from multiple mini-strokes in light of his existing organic brain disease reported then (diffuse cerebral atrophy). He also stated that serotonin syndrome would most likely contribute (with a likelihood of greater than 50 percent) to future manifestations of the Veteran’s cognitive, motor, and/or memory function since 2001. He also said that neuropsychiatric cognitive and memory testing would likely be necessary to establish the extent of the disabilities, which, in turn, are attributable to the 2001 events and that such testing might also be subject to periodic review and retesting, as the sum total effect of injuries associated with the events of 2001 would be expected to most likely increase over time. He concluded that he was unable to assign a specific permanent partial disability due to inadequacy of making such determination in highly complex and complicated cases such as this on records alone, but that additional disability would likely fall into the range of greater than 30 percent and less than 70 percent. Despite the August 2018 IMO discussing the many and complex residuals, in the October 2018 Rating Decision, the AOJ merely rated: (a) the serotonin syndrome residuals under DC 7319, which contemplates irritable colon syndrome (38 C.F.R. § 4.114, DC 7319); and (b) the TIA residuals under DC 8008, which contemplates thrombosis of brain vessels (38 C.F.R. § 4.124a, DC 8008). Oddly, the AOJ did not assign separate ratings for the other identified manifestations like neuropsychiatric cognitive and memory residuals; further, regarding DC 8008, the AOJ did not even assign a temporary 100 percent for the first six months following the TIA, as instructed by DC 8009 (vascular conditions under DC’s 8007 through 8009 are rated at 100 percent for six months and then the residuals are rated at a minimum of 10 percent thereafter). Further, although the AOJ scheduled the Veteran for examinations in February 2019, he was only afforded VA examinations for: (a) intestinal conditions; and (b) central nervous system and neuromuscular diseases. The February 2019 VA examiner found that: (a) the Veteran did not have any sigs/symptoms of serotonin syndrome (noting that he had not had diarrhea since discontinuation of Zoloft in 2001); and (b) the Veteran did not have any residuals of TIA. Crucially, neither of the February 2019 VA examinations, nor any VA examination of record, contends the neuropsychiatric cognitive and memory testing that the August 2018 IMO provider described as necessary to determine the extent of the residual disability. Further, the AOJ never obtained a medical opinion to explore whether the contended colon cancer and aortic aneurisms in the abdomen were residuals of the serotonin syndrome. Unfortunately, the Veteran passed away in August 2020 and can no longer participate in neuropsychiatric cognitive and memory testing. However, the record currently lacks enough medical development for the Board to decide the claim. As such, the Board must remand for the AOJ to obtain a clarifying medical opinion regarding: (a) whether any neuropsychiatric cognitive and memory deficits in the record since March 21, 2001, can be at least as likely as not attributed to either the TIA or serotonin syndrome; and (b) whether the contended colon cancer and aortic aneurisms in the abdomen were residuals of the serotonin syndrome. After completing the requested medical development, the Board directs the AOJ to then assess which diagnostic codes are most appropriate and to evaluate the severity of the residuals accordingly. 2. Entitlement to an initial compensable rating for residuals of serotonin syndrome This issue is remanded for the same reasons discussed above. The matters are REMANDED for the following action: 1. Obtain a clarifying medical opinion regarding: (a) whether any neuropsychiatric cognitive and memory deficits in the record since March 21, 2001, can be at least as likely as not attributed to either the TIA or serotonin syndrome. The examiner’s opinion should address, but is not limited to, the August 2018 IMO, discussed in depth above. 2. After completing the requested medical development, the Board directs the AOJ to then assess which diagnostic codes are most appropriate and to evaluate the severity of the residuals accordingly. 3. Readjudicate the appeal. R. FEINBERG Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board H. Daus, 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.