Citation Nr: 21015271 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 17-59 038 DATE: March 17, 2021 ORDER A compensable rating for hypertension is denied. Service connection for obstructive sleep apnea (OSA) is granted. REMANDED The issue of a rating in excess of 30 percent for migraine headaches is remanded. FINDINGS OF FACT 1. The weight of the competent and probative evidence is against finding diastolic blood pressure readings of predominantly 100 or more; or systolic readings of predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 2. The competent and probative evidence is at least in equipoise as to whether OSA had its onset during or is otherwise related to the Veteran’s period of active service. CONCLUSIONS OF LAW 1. The criteria for a compensable rating 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 service connection for OSA have been met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1986 to January 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from an August 2012 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In May 2019, the Board denied the issue of a rating in excess of 30 percent for migraine headaches and remanded the issues of an increased rating for hypertension and service connection for OSA for further development. The Veteran appealed the May 2019 denial to the United States Court of Appeals for Veterans Claims (Court). In an August 2020 Order, the Court granted a Joint Motion for Partial Remand (JMPR), vacating the May 2019 decision to the extent it denied a rating in excess of 30 percent for migraine headaches under DC 8100 because the Board, in contravention to the law, considered the ameliorative effects of medication when rating the Veteran’s headaches. The JMPR indicated the Board should determine the severity of the Veteran’s headaches in an unmedicated state, including whether unmedicated headaches are productive of severe economic inadaptability. Increased Rating 1. Entitlement to a compensable rating for hypertension. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, see 38 C.F.R. § 4.2, the regulations do not give past medical reports precedence over current findings. Id. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the disorder. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589, 593 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). The Veteran contends that he is entitled to a compensable rating for service-connected hypertension, evaluated under DC 7101. Under DC 7101, a 60 percent rating is warranted for diastolic pressure predominantly 130 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. 38 U.S.C. § 4.104, DC 7101. Blood pressure measurements are usually given as two numbers, systolic blood pressure over diastolic blood pressure, written as systolic/diastolic. MedlinePlus, Blood pressure measurements, https://medlineplus.gov/ency/article/007490.htm (last updated Feb. 26, 2021). The ameliorative effects of medication are contemplated by the rating criteria set forth in Diagnostic Code 7101. McCarroll v. McDonald, 28 Vet. App. 267, 272 (2016). After reviewing the relevant medical and lay evidence and applying the above laws and regulations, the Board finds that a compensable rating for hypertension is not warranted. During the period on appeal, except for three days in January and February 2019, the evidence of record indicates the Veteran’s blood pressure readings range between 118 to 156 systolic and 74 to 97 diastolic. On January 25, 2019, the Veteran had blood pressure readings of 149/96 (left arm) and 151/102 (right arm). On February 5, 2019, the Veteran had a blood pressure reading of 156/101 and 156/103. Blood pressure logs from February 6-19, 2019, indicate systolic readings from 116 to 153, with one systolic reading of 165 on February 7, 2019, and diastolic readings from 76 to 94. See Government treatment records from August 2009 to September 2020; August 2017, VA examination (for headaches). In June 2012, a VA examiner noted that prior to 2006 when the Veteran began taking hypertensive medication, the Veteran’s blood pressure readings were 122/90 (June 1988), 130/100 (November 1989), and 144/100 (November 2005). During the examination, the Veteran’s blood pressure readings were 136/84, 136/87, and 132/89. The examiner found the Veteran did not have a history of diastolic blood pressure elevation of predominantly 100 or more. See June 2012, VA examination. In November 2019, a VA examiner noted the Veteran takes continuous medication for hypertension. The Veteran’s blood pressure readings were 156/92, 138/92, and 132/90. The examiner found the Veteran periodically, but not predominantly, had a history of diastolic blood pressure elevation over 100. See November 2019, VA examination. The Board finds the June 2012 and November 2019 VA examinations to be competent, credible, and highly probative, as they are supported by review of the relevant medical history and claims file, a physical examination, description of the Veteran’s symptoms, considered the Veteran’s lay statements, and the November 2019 examination complies with the May 2019 Board remand directives. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stegall v. West, 11 Vet. App. 268 (1998). In light of the above, the Board finds the weight of the competent and probative evidence is against finding diastolic blood pressure readings of predominantly 100 or more; or systolic readings of predominantly 160 or more; or a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. See 38 C.F.R. § 4.104, DC 7101. The Board acknowledges the Veteran’s contention that when recording his blood pressure at home “there are times” when he has readings of more than 100 diastolic and more than 160 systolic; and readings taken during a VA examination are merely a snapshot in time and do not represent the readings that occur quite often over the years. See October 2017, VA Form 9. The Board finds the Veteran’s statement that “there are times” when his diastolic readings are more than 100 and systolic readings are more than 160 to be competent and credible; however, it does not rise to the level of finding that the Veteran predominantly has diastolic readings of 100 or more or systolic readings of 160 or more. The Veteran is encouraged to keep a log of his blood pressure readings and submit to them in the future when diastolic and systolic readings are predominantly over 100 and 160, respectively. Further, the Board agrees that VA examinations only provide a snapshot of the Veteran’s blood pressure readings, which is why the Board has considered the Veteran’s statements and all of the medical evidence of record during the appeal period. Indeed, the evidence shows that there were two instances of diastolic readings of 100 or more, one systolic reading of 165, and the November 2019 VA examiner found there were periodic diastolic readings of 100 or more. See November 2019, VA examination; Government treatment records dated January 2019 and February 2019. The Board, accordingly, finds a compensable rating for hypertension is not warranted during the period on appeal. All possible applicable diagnostic codes have been considered in compliance with Schafrath, 1 Vet. App. at 593, but the Veteran could not receive a higher or separate rating for hypertension based on the evidence. See 38 C.F.R. § 4.104. Indeed, when a disorder is listed in the Rating Schedule, rating by analogy is not appropriate. Copeland v. McDonald, 27 Vet. App. 333, 336-37 (2015). The Board notes that the benefit of the doubt has been applied, where applicable. Service Connection 2. Service connection for OSA. Service connection will be granted if the evidence demonstrates that a current disability resulted from an injury or disease incurred in or aggravated by active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). As a general matter, establishing service connection requires competent evidence of (1) a current disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a nexus between the in-service disease or injury and the present disability. Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004); 38 C.F.R. § 3.303. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). In relevant part, 38 U.S.C. § 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability benefits. Davidson v. Shinseki, 581 F.3d 1313, 1316 (Fed. Cir. 2009). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). The Veteran contends that OSA began during service and has been continuous since discharge. Specifically, the Veteran indicated that during active service he frequently suffered from loud snoring, gasping for air during sleep, and daytime fatigue. The Veteran stated when he sought help for his sleep issues prior to discharge, but the military doctor informed him that if he pursued a sleep study, it would jeopardize his retirement and potentially lead to medical discharge. In the interest of his career and financial security, the Veteran stated he chose not to pursue the sleep study. November 2020, VA Form 21-4138; October 2017, VA Form 9; February 2013, Correspondence. After review of the record, the Board finds that the criteria for service connection for OSA have been met. The record contains a competent diagnosis of severe OSA pursuant to a sleep study. November 2019, VA examination; January 2013, Private treatment record. The Board, accordingly, finds competent evidence of a current disorder. Post-service treatment records include complaints from the Veteran’s wife that the Veteran frequently snores loudly, gasps for air during sleep, and suffers from daytime fatigue. February 2013, Private treatment record; September 2012, VA treatment records. In November 2019, a VA examiner noted that in the late 1990s the Veteran’s wife complained of the Veteran’s loud snoring and cessation of breath during sleep and the Veteran’s statement that prior to retirement he was told that if he pursued a sleep study it impact his military retirement. The examiner opined that OSA was less likely than not caused by military service because there was no evidence of sleep apnea during service. The Board finds the November 2019 VA examiner’s opinion to be inadequate because it failed to consider the competent lay statements from the Veteran and his wife concerning the onset and continuity of OSA symptoms. See Reonal v. Brown, 5 Vet. App. 458, 460-61 (1993) (medical opinions based on an incomplete or inaccurate factual premise are not probative). A statement from the Veteran’s wife indicates they were married in 1992 and the Veteran has continuously suffered from loud snoring, cessation of breath during sleep, and daytime fatigue. She further stated that in late 2007, when the Veteran was contemplating military retirement, he saw a military doctor for his sleep issues but was told that if he pursued a sleep study it would potentially suspend his retirement action and put him at risk of a medical discharge. To avoid a medical discharge, she stated, the Veteran chose to continue with retirement and did not pursue a sleep study. See November 2020, VA Form 21-4138. In light of the above, the Board finds that the competent and probative evidence is at least in equipoise as to whether OSA had its onset in or is otherwise related to the Veteran’s period of active service. The Board finds lay statements form the Veteran and his wife concerning the onset and continuation since discharge from active service of frequent loud snoring, daytime fatigue, and gasping for air while sleeping to be competent, credible, and highly probative. See November 2020, VA Forms 21-4138; see also Jandreau, 492 F.3d at 1377. Resolving all reasonable doubt in the Veteran’s favor, service connection for OSA is warranted. See 38 U.S.C. § 5107(b); Gilbert, 1 Vet. App. at 57-58. REASONS FOR REMAND The issue of a rating in excess of 30 percent for migraine headaches is remanded. In August 2017, a VA examination for migraine headaches was obtained. The VA examiner noted the Veteran described daily headaches that resolved with Excedrin Migraine but failed to solicit the nature and severity of the Veteran’s headaches in an unmedicated state, to include whether the Veteran’s unmedicated headaches are productive of severe economic inadaptability. See August 2017, VA examination. The Board, accordingly, finds a new VA examination is necessary. The Board notes that the claims file has VA treatment records to September 2020. On remand, any previously unobtained ongoing relevant medical records should be procured and associated with the Veteran’s claims file The matter is REMANDED for the following action: 1. Obtain all outstanding records of VA evaluation and/or treatment records of the Veteran dated since September 2020 and associate them with the claims file. 2. After completing directive #1, schedule the Veteran for a VA examination to determine the nature, frequency, and severity of service-connected migraine headaches. The clinician is the review the claims file and address the following: (a.) Solicit from the Veteran the nature, frequency, and severity of the Veteran’s migraine headaches in an unmedicated state during the entire period on appeal. (b.) Based on the Veteran’s statements and the evidence of record, state whether the Veteran’s unmedicated headaches are, or have been at any point during the pendency of the appeal, productive of severe economic inadaptability. The Veteran is competent to report his symptoms, experiences, and history, and such reports must be specifically acknowledged and considered in formulating any opinions. If the examiner rejects the Veteran’s reports of symptomatology, he or she must provide a reason for doing so. A comprehensive rationale for all opinions must be provided. All pertinent evidence, including both lay and medical, should be considered. If an opinion cannot be provided without resorting to speculation, the examiner must explain why this is so and 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), the record (additional facts are required), or the examiner (does not have the knowledge or training). JAMES L. MARCH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Straughn, 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.