Citation Nr: 21013880 Decision Date: 03/10/21 Archive Date: 03/10/21 DOCKET NO. 16-23 506 DATE: March 10, 2021 ORDER A disability rating greater than 10 percent for hypertension is denied. A total disability rating based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. During the appeal period, the Veteran’s hypertension did not manifest in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 2. The Veteran’s service-connected disabilities did not render the Veteran unable to secure or follow substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a rating greater than 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code (DC) 7101. 2. The criteria for entitlement to a TDIU rating have not been met. 38 U.S.C. §§ 1155, 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.18, 4.19. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from April 1957 to April 1977. This matter comes before the Board of Veterans’ Appeals (Board) from a March 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). In June 2019, the Veteran testified at a videoconference hearing before the undersigned Veterans Law Judge. A copy of the hearing transcript has been associated with the claims file. In November 2019, the Board remanded the claims for additional development. There was substantial compliance with the Board’s remand directives. Stegall v. West, 11 Vet. App. 268, 271 (1998). 1. The issue of entitlement to a disability rating greater than 10 percent for hypertension. Disability ratings are determined by applying the criteria set forth in VA’s Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding a degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s hypertension has been assigned a 10 percent rating under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who 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 evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more. 38 C.F.R. § 4.104. The term “predominant” is not defined in the rating criteria. Merriam-Webster defines predominant to mean “being most frequent or common.” See, e.g., “predominant,” Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. The Veteran’s hypertension is rated at 10 percent from May 1, 1977. The appellate period begins November 24, 2014, the receipt date of the Veteran’s claim for increased rating. For the reasons that follow, the Veteran’s hypertension has manifested in diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control, corresponding to the criteria for a 10 percent rating under DC 7101. VA medical treatment records from 2013 to 2014 noted the Veteran’s blood pressure reading was no higher than 173/93. The Veteran was afforded a VA examination in March 2015. His blood pressure readings were as follows: 145/78, 124/79 and 114/75. It was noted that the Veteran had been on medication for his hypertension daily. Private treatment records dated from 2015 to 2019 reflected the following blood pressure readings: 161/91, 157/94, 144/77, 137/84, 154/81, 120/69, 118/73, 160/90, 132/77 and 101/60. Additionally, private treatment records indicated the Veteran’s diastolic pressure never read higher than 100 and his systolic pressure never read higher than 174. The Veteran was afforded a VA examination in January 2021. His blood pressure readings were as follows: 134/72, 138/69 and 116/75. It was noted that the Veteran had been on medication for his hypertension. The preponderance of the evidence is against the Veteran’s claim for a rating increase higher than 10 percent for service-connected hypertension under DC 7101. The Veteran’s diastolic pressure has ranged between 60 and 100 and his systolic blood pressure has ranged between 114 and 174. These blood pressure readings are sufficient for making an increased rating determination even considering the Veteran’s use of medication to control his blood pressure. See McCarroll v. McDonald, 28 Vet. App. 267, 276-77 (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 DC 7101). While the Veteran contends that his hypertension warrants a higher rating, the evidence of record does not demonstrate findings of diastolic pressure of 110 or more, or systolic blood pressure predominantly of 200 or more at any time during the pendency of the Veteran’s appeal. The Veteran’s claim for rating increase higher than 10 percent for service-connected hypertension must therefore be denied. As the preponderance of the evidence is against the claim, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. 2. The issue of entitlement to a TDIU. VA will grant disability compensation based upon individual unemployability (TDIU) when the evidence shows that the Veteran is precluded, by reason of his service-connected disabilities, from obtaining or maintaining “substantially gainful employment” consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16; VAOPGCPREC 75-91; 57 Fed. Reg. 2317 (1992). A threshold requirement for eligibility for a TDIU under 38 C.F.R. § 4.16 (a) is that if there is only one such disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, and sufficient additional disability must bring the combined rating to 70 percent or more. In Hatlestad v. Derwinski, 1 Vet. App. 164 (1991), the United States Court of Appeals for Veterans Claims (Court) referred to apparent conflicts in the regulations pertaining to individual unemployability benefits. Specifically, the Court indicated that there was a need to discuss whether the standard delineated in the controlling regulations was an “objective” one based on the average industrial impairment or a “subjective” one based upon a veteran’s actual industrial impairment. In a pertinent precedent decision, VA’s General Counsel concluded that the controlling VA regulations generally provide that veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. VAOPGCPREC 75-91 (Dec. 17, 1991). Thus, the criteria for determining unemployability include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. Id. The law provides that a veteran’s advancing age and non-service-connected disabilities may not be considered in the determination of whether a veteran is entitled to a TDIU. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16(a)(b), 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). For a veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places him in a different position than other veterans with the same disability rating. The sole fact that a veteran is unemployed or has difficulty obtaining employment is not enough to prove unemployability. Additionally, it is noted that a high rating in and of itself is recognition that the impairment makes it difficult to obtain and maintain employment. Thus, the question is whether the veteran can perform the physical and mental acts required by employment, not whether the veteran can find employment. See Van Hoose, 4 Vet. App. at 363. The ultimate issue of whether a TDIU should be awarded is not a medical issue, but rather is a determination for the adjudicator. Moore v. Nicholson, 21 Vet. App. 211, 218 (2007). Although VA must fully consider “the effect of combinations of disability” under 38 C.F.R. § 4.15, regulations place responsibility for the ultimate TDIU determination on VA, not a medical examiner’s opinion. Geib v. Shinseki, 733 F.3d 1350, 1354 (2013). The Veteran had a total disability rating for residuals of prostate cancer from September 29, 2008 and a 60 percent rating from February 1, 2015. The Veteran is also service-connected for degenerative arthritis of the spine, rated as 10 percent disabling from May 1977; hypertension, rated as 10 percent disabling from May 1977; and erectile dysfunction, rated as noncompensable from September 2008, that combined equaled 100 percent from September 29, 2008 and 70 percent from February 1, 2015. Thus, the Veteran meets schedular requirements for a TDIU. 38 C.F.R. § 4.16 (a). In the August 2014 VA examination report for prostate cancer, the March 2015 and January 2021 VA examination reports for hypertension the examiners noted that neither the Veteran’s prostate cancer nor hypertension had an impact on his ability to work. In the May 2019 prostate cancer Disability Benefits Questionnaire completed by the Veteran’s private physician, it was noted that the Veteran’s prostate cancer did not have an impact on his ability to work. The Board encouraged the Veteran in its November 2019 decision to submit additional evidence and argument in support of his claim. However, there is no additional evidence or argument submitted in support of this claim. The record reflects the Veteran retired in 1999 from being employed as an electrician. There is no indication nor has the Veteran argued that he was forced to retire due to any service-connected disabilities. Based on all the evidence of record, the evidence does not support a finding of unemployability based solely on the Veteran’s service-connected disabilities. There is no objective evidence establishing that the Veteran is unable to secure or follow substantially gainful employment. Considering the effect of the Veteran’s service-connected disabilities and the Veteran’s employment history, the Board finds that the evidence does not demonstrate that the Veteran is unable to secure or follow substantially gainful employment due to his service-connected disabilities. Vito A. Clementi Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. McDuffie, 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.