Citation Nr: 21015346 Decision Date: 03/17/21 Archive Date: 03/17/21 DOCKET NO. 08-10 391 DATE: March 17, 2021 ISSUES 1. Entitlement to a disability rating in excess of 10 percent for coronary artery disease (CAD) for the period prior to November 9, 2016, and in excess of 60 percent from November 9, 2016. 2. Entitlement to an initial compensable disability rating for hypertension (HTN) for the period prior to November 9, 2016. 3. Entitlement to an evaluation in excess of 10 percent for HTN from November 9, 2016. ORDER Entitlement to an initial compensable disability rating for HTN for the period prior to October 12, 2011, is denied. Entitlement to a 10 percent disability rating for HTN, but no higher, for the period from October 12, 2011, to November 9, 2016, is granted. Entitlement to a disability rating in excess of 10 percent for HTN from November 9, 2016, is denied. REMANDED Entitlement to a disability rating in excess of 10 percent for CAD for the period prior to November 9, 2016, and in excess of 60 percent from November 9, 2016, is remanded. FINDINGS OF FACT 1. Prior to October 12, 2011, HTN was not manifested by diastolic pressure of predominately 100 or more, or; systolic pressure of predominately 160 or more; or a history of diastolic pressure of predominantly 100 or more. 2. From October 12, 2011, to November 9, 2016, HTN was manifested by systolic pressure of predominately 160 or more and required continuous medication for control. 3. From November 9, 2016, HTN was not manifested by diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for an initial compensable evaluation for HTN prior to October 12, 2011, have not been met or approximated. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101 (2017). 2. The criteria for a 10 percent disability rating, but no higher, for HTN from October 12, 2011, to November 8, 2016, have been met. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, DC 7101 (2017). 3. The criteria for a disability rating in excess of 10 percent for HTN from November 9, 2016, have not been met or approximated. 38 U.S.C. §§ 1155, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, DC 7101 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1975 to June 2005. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2006 rating decision by a Regional Office (RO) of the Department of Veterans Affairs (VA), which granted service connection for the above issues. The Veteran appealed the ratings in these decisions. In February 2013 the Veteran testified before an RO decision review officer. In July 2016 the Veteran testified before the undersigned at a Travel Board hearing. Transcripts of the hearings have been associated with the electronic claims folder. When this case was previously before the Board in September 2016, it was decided in part and remanded in part for further appellate action. It has since been returned to the Board for further appellate action. The Board finds that there has been substantial compliance with the remand directives in regards to the HTN claim addressed below. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Subsequently, in a January 2017 rating decision, the evaluation of CAD was increased to 60 percent effective November 9, 2016, and the evaluation of HTN was increased to 10 percent effective November 9, 2016. This did not satisfy the Veteran’s appeal. AB v. Brown, 6 Vet. App. 35, 38 (1993). VA’s Duty to Notify and Assist The Veteran Claims Assistance Act of 2000 (VCAA), in part, describes VA’s duties to notify and assist a claimant in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5106, 5107, 5126 (2012); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed.Cir. 2015, cert denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board....to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). Increased Rating Claim Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2017). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1 (2017). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. 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 are sufficient; and above all, a coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21 (2017). In accordance with 38 C.F.R. §§ 4.1, 4.2 (2017) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the Veteran’s service-connected HTN. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. The Board notes that, when it is not possible to separate the effects of a non-service-connected condition from those of a service-connected disorder, reasonable doubt should be resolved in the claimant’s favor with regard to the question of whether certain signs and symptoms can be attributed to the service-connected disability. Mittleider v. West, 11 Vet. App. 181, 182 (1998); see also 38 C.F.R. § 3.102. If the evidence for and against a claim is in equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (2002); 38 C.F.R. §§ 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. HTN DC 7101 provides a 10 percent rating for evidence showing diastolic pressure of predominately 100 or more, or; systolic pressure of predominately 160 or more; or as a minimum rating for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided for evidence of diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is provided for evidence of diastolic pressure of predominantly 120 or more. A 60 percent rating is provided for evidence of diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Historically, in a May 2006 rating decision, service connection for HTN was granted with an evaluation of 0 percent effective July 1, 2005. The Veteran disagrees with the assigned initial ratings. The question before the Board is whether higher ratings have been warranted since July 1, 2005. 38 C.F.R. § 3.400. The Veteran was afforded a VA examination in December 2005 in which his blood pressure readings were 126/71; 132/72; and 112/64. Private treatment records showed blood pressure readings of 118/74 in August 2005; 140/80 in March 2007; and 124/64 in April 2007. The Veteran was afforded a VA examination on November 9, 2016, in which he reported taking continuous medication for his HTN. His blood pressure readings were 158/90; 153/82; and 169/88. The examiner stated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. In a January 2017 rating decision, the evaluation of HTN, was increased to 10 percent effective November 9, 2016. In February 2017 the Veteran submitted private treatment records showing blood pressure readings of 160/90 on October 12, 2011, and December 2011. The above listed blood pressure readings show a documented history of systolic pressure of predominately 160 or more with a requirement of continuous medication for control from October 12, 2011. As such, a rating of 10 percent for the HTN is warranted from October 12, 2011. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than the assigned ratings. See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). In addition to the medical evidence above, the Board has considered the lay evidence in the form of the Veteran’s correspondence and testimony. A layperson is competent to testify in regard to the onset and continuity of symptomatology. Heuer v. Brown, 7 Vet. App. 379, 384 (1995); Falzone v. Brown, 8 Vet. App. 398, 403 (1995); Caldwell v. Derwinski, 1 Vet. App. 466 (1991). However, even affording the Veteran full competence and credibility, nothing in the statements shows impairment more closely approximating the criteria for higher staged ratings. The Board also acknowledges the Veteran’s use of continuous medication to treat his HTN. See Jones v. Shinseki, 26 Vet. App. 56, 62-63 (2012). However, in the case of HTN, Diagnostic Code 7101 expressly contemplates the effects of medication as a factor to be considered when rating the condition. See McCarroll v. McDonald, 28 Vet. App. 267, 271-73 (2016) (holding that Jones does not apply to Diagnostic Code 7101). Accordingly, the ameliorative effects of the Veteran’s HTN medications is not for consideration in rating the condition, and a higher rating may not be awarded based on the expected severity of the condition if those ameliorative effects were not considered. Therefore, based upon a review of the evidence of record, the Board concludes that the evidence does not support the Veteran’s claim of entitlement to an initial compensable disability rating for HTN for the period prior to October 12, 2011. A rating of 10 percent, but not greater, for HTN for the period from October 12, 2011, to November 8, 2016, is warranted. However, a 20 percent rating is not warranted as the Veteran’s medical treatment records do not show a diastolic pressure that is predominantly 110 or more, or systolic pressure predominantly 200 or more. See DC 7101; 38 C.F.R. § 4.104 (2017). REASONS FOR REMAND The Veteran testified at his July 2016 hearing that his coronary bypass and associated graft should be considered a separate disability from his CAD. He testified that he has residuals in his arm due to the removal of his artery for the graft and that he needs to take constant medication as a result of the bypass. The Board found in the prior remand that a new heart examination was warranted to determine the nature and severity of the Veteran’s CAD, reflecting any residuals from his bypass and artery graft. In response to the Board’s remand, the Veteran was afforded a VA examination in November 2016 in which the examiner stated that although the symptoms of shortness of breath and easy fatigability are symptoms most commonly associated with medical conditions, like heart rhythm disorder, HTN, anemia, thyroid problems, diabetes, and medications' reaction or side-effect of medications, it was not possible to associate the Veteran's symptoms to each disability separately. In this case, the Board finds that clarification is required from the November 2016 examiner. Namely, the examiner is asked to specifically address any residuals in the Veteran’s arm due to the removal of his artery for the graft. This matter is REMANDED for the following action: 1. Provide access to the electronic claims file to the November 2016 VA examiner, or appropriate substitute if this examiner is not available, to provide an addendum opinion. The electronic claims file must be made available to and reviewed by the examiner. An examination should be performed if deemed necessary by the examiner providing the requested opinion. The examiner is asked to address the Veteran’s claims that he has symptoms due this his bypass, graft, and his medications. See July 2016 hearing. Specifically, the examiner is asked to address any residuals in the Veteran’s arm due to the removal of his artery for the graft. In so doing, the examiner is requested to attempt (to the extent possible) to distinguish the symptoms that are associated with the service-connected CAD, and any other diagnosed cardiac and noncardiac condition which is not a manifestation of the service-connected CAD. Please indicate if it is not possible to attribute the Veteran’s symptoms to each disability separately. All opinions must be supported by a complete rationale. 2. After completing the requested actions, and any additional notification and/or development deemed warranted, the RO should readjudicate the claim on appeal. If any benefit sought on appeal remains denied, the RO must furnish the Veteran and his representative with an appropriate supplemental statement of the case and afford a reasonable opportunity for response. MICHAEL A. PAPPAS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R.M.K., 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.