Citation Nr: 21021928 Decision Date: 04/14/21 Archive Date: 04/14/21 DOCKET NO. 15-35 814 DATE: April 14, 2021 ORDER A rating in excess of 10 percent for hypertension is denied. A rating in excess of 20 percent for erectile dysfunction is denied. FINDINGS OF FACT 1. The Veteran’s hypertension does not manifest in diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. 2. The 20 percent rating currently in effect is the maximum schedular rating for the Veteran’s erectile disfunction; the symptomatology associated with this disability is adequately addressed by this rating. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 10 percent for service-connected 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 a disability rating in excess of 20 percent for service-connected erectile dysfunction have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.115b, Diagnostic Code (DC) 7522. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from August 1974 to August 1977 and from May 1988 to May 2001. In a decision issued April 2019, the Board denied entitlement to a rating in excess of 10 percent for hypertension and to a compensable rating for erectile dysfunction. The Veteran appealed that decision to the United States Court of Appeals for Veterans Claims (Court). In April 2020, the Court issued an order that vacated the Board’s April 2019 decision, and remanded the matter on appeal for adjudication consistent with the instructions outlined in an April 2020 Joint Motion for Remand (JMR) by the parties. In the April 2020 JMR, it was noted that, the May 2013 VA medical opinion pertaining to hypertension was inadequate as it was based upon an inaccurate factual premise. This was due to the fact that, despite not having received or reviewed the claims file, the May 2013 VA examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation of 100 or more. The JMR also held that that the May 2013 VA examination addressing erectile dysfunction was inadequate, as there was no indication that the examiner assessed any internal deformity. Furthermore, the JMR held that the Board, in its April 2019 decision, failed to provide an adequate statement of reasons and bases for denying a compensable rating for the Veteran’s erectile dysfunction. Accordingly, the parties agreed that remand was warranted to remedy the aforementioned errors. In September 2020, the Board remanded this case for additional development. In January 2021, the Agency of Original Jurisdiction (AOJ) issued a rating decision that, in pertinent part, granted an increased rating of 20 percent for the Veteran’s erectile dysfunction, effective November 23, 2010 (date of initial claim). Although a Supplemental Statement of the Case (SSOC) has not been issued addressing the denial of a rating in excess of 20 percent for erectile dysfunction, the issue was considered and adjudicated in the January 2021 rating decision. See 38 C.F.R. § 19.31. Furthermore, the rating decision addresses and explains why a rating in excess of 20 percent is not warranted. Thus, while adjudication of the claim was conducted in a rating decision rather than a SSOC, the evidence was clearly considered by the AOJ in the first instance. The Veteran is not prejudiced because he was notified of the AOJ’s consideration of the evidence and adjudication of his claim in a rating decision rather than a SSOC. Accordingly, the Board finds that a waiver of AOJ consideration is not required for the evidence considered by the AOJ as of the January 2021 rating decision, and the issue of entitlement to a rating in excess of 20 percent for erectile dysfunction is properly before the Board. Finally, in April 2021, the Veteran’s representative filed an appellate brief, which, in pertinent part, claimed that the Veteran should be entitled to service connection for pneumonia with chest and back pain, service connection for sleep apnea, and a rating in excess of 10 percent for hypertension. See April 2021 Appellate Brief. The Board notes, however, that in a September 2020 decision, the Board reopened and subsequently denied the Veteran’s claim for pneumonia. See September 2020 Board Decision. The January 2021 rating decision, mentioned above, also granted the Veteran’s claim for sleep apnea. See January 2021 Rating Decision. Accordingly, the issues of entitlement to service connection for sleep apnea and pneumonia will not be addressed in this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the veteran, as well as the entire history of the veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Hart v. Mansfield, 21 Vet. App. 505 (2007). The Board must also analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material evidence favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker, 10 Vet. App. at 74; Layno v. Brown, 6 Vet. App. 465, 469 (1994). When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit-of-the doubt in resolving each such issue shall be given to the veteran. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102. Entitlement to a rating in excess of 10 percent for hypertension. The Veteran contends he is entitled to an increased disability rating in excess of 10 percent for his service-connected hypertension. The Veteran's hypertension is rated under DC 7101 for hypertensive vascular disease. 38 C.F.R. § 4.104. Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; 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 for diastolic pressure predominantly 120 or more. A 60 percent evaluation is warranted for diastolic pressure predominantly 130 or more. VA treatment records from the relevant appeal period show diastolic blood pressure readings that are not predominantly 110 or more, or systolic pressure that are predominantly 200 or more. Specifically, VA treatment records from the period show blood pressure readings as follow: 133/90 (July 2010), 151/96 (October 2010), 145/101 (March 2011), 130/81 (April 2011), 128/56 (July 2012), 139/82 (January 2013), 138/82 (June 2013), 158/86 (December 2013), 137/87 (March 2014), 144/101 (July 2014), 180/103 (September 2014), 107/65 (June 2015), 128/82 (January 2016), 134/74 (June 2016), 150/89 (July 2017), 132/81, 153/100 (August 2017), (September 2018), 120/67 (July 2019), 133/80 (December 2019), 156/92 (November 2020). In May 2013, the Veteran underwent a VA examination to evaluate his hypertension. The examiner diagnosed the Veteran with hypertension and indicated that the Veteran’s treatment plan included taking continuous medication consisting of amlodipine and lisinopril. During the examination, the Veteran’s blood pressure readings were recorded at: 158/110, 174/110, 165,109, with an average blood pressure reading of 166/110. See May 2013 VA Examination. In December 2020, the Veteran underwent another VA examination to evaluate the current severity of his hypertension. The examiner diagnosed the Veteran with hypertension and indicated that the Veteran’s treatment plan included taking continuous medication consisting of amlodipine and lisinopril. The Veteran’s blood pressure readings were recorded at: 163/111, 170/105, 173/102, with an average blood pressure reading of 169/106. The examiner indicated that the Veteran’s hypertension did not impact his ability to work. See December 2020 VA Examination. In a statement attached to his VA Form 9, substantive appeal, the Veteran contended that a higher rating for his hypertension was warranted because he had submitted evidence tending to prove that his diastolic pressure was predominantly 110 or more. See September 2015 Correspondence. The Board recognizes that while individual diastolic pressure measurements have shown readings of 110 or more, the vast majority of diastolic pressure measurements during the appeal period yielded results of less than 110. For this reason, the Board finds that, during the appeal period, the Veteran’s diastolic pressure measurements were not predominantly 110 or more. The Board also acknowledges the Veteran’s contention that he has periodic nose bleeds that are related to his hypertension and are a symptom of a hypertensive crisis. See April 2021 Appellate Brief. However, in a January 2021 rating decision, the Veteran was granted service connection for epistaxis, a nose condition claimed as nose bleeds as secondary to service-connected hypertension. See January 2021 Rating Decision. Therefore, it would be pyramiding to award the Veteran an increased rating for his hypertension on this basis when he is already separately service-connected for his periodic nose bleeds. See 38 C.F.R. § 4.14 (the evaluation of the same disability under various diagnoses is to be avoided). In conclusion, the Board finds that entitlement to a rating in excess of 10 percent for hypertension is not warranted. Significantly, the evidence does not otherwise show diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. See 38 C.F.R. § 4.104, DC 7101. Accordingly, entitlement to a higher rating for service-connected hypertension is denied. Entitlement to a rating in excess of 20 percent for erectile dysfunction. The Veteran claims he is entitled to a rating in excess of 20 percent for erectile dysfunction. The Veteran is currently service-connected for erectile dysfunction, rated by analogy, at 20 percent, under Diagnostic Code 7522. See 38 C.F.R. § 4.115b. Under Diagnostic Code 7522, a 20 percent rating requires a deformity of the penis with loss of erectile power. 38 C.F.R. § 4.115b. This is the maximum schedular rating for this condition. Id. A review of the Veteran’s private and VA treatment records indicate that the Veteran has a diagnosis of erectile dysfunction. In May 2013, the Veteran underwent a VA examination to evaluate his erectile dysfunction. During the examination, the examiner diagnosed the Veteran with erectile dysfunction. The examiner noted that the Veteran’s condition mostly affected his ability to maintain an erection, and indicated that the Veteran tried Viagra for treatment, which he found to work most of the time. No orchiectomy, voiding dysfunction, recurrent urinary tract infections, or retrograde ejaculation was noted on the examination. Additionally, the examiner found that the Veteran did not have a history of chronic epididymitis, epididymo-orchitis, or prostatitis. Upon examination, the Veteran’s penis, testes, and prostate were found to be normal. No tumors, neoplasms, or scars were noted. Finally, the examiner opined that the Veteran’s erectile dysfunction did not impact his ability to work. See May 2013 VA Examination. In December 2020, the Veteran underwent another VA examination to evaluate his erectile dysfunction. The examiner diagnosed the Veteran with erectile dysfunction and Peyronie’s Disease. During the examination, the examiner indicated that the Veteran started having problems with having and maintaining erections in 2010 and this worsened in 2013. Additionally, the examiner found that a curve was noted in the Veteran’s penis in 1993. To treat the condition, the Veteran took Viagra. No renal dysfunction was attributable due to the disease and no voiding dysfunction was found upon examination. The etiology of the disease was noted to be blood pressure medication. No retrograde ejaculation, or a history of chronic epididymitis, epididymo-orchitis or prostatitis was noted. Testes were found to be normal and no benign or malignant neoplasm or metastases were found. Additionally, no other pertinent physical findings, complications, conditions, signs or symptoms, or scars were found related to the condition. The condition was not found to impact the Veteran’s ability to work. See December 2020 VA Examination. (Continued on the next page)   The Board acknowledges the Veteran’s contention that he should be entitled to up to a 50 percent rating for his erectile dysfunction. See June 2013 Notice of Disagreement. In this regard, the Board notes that since November 23, 2010, the Veteran’s erectile dysfunction has been assigned a 20 percent rating, which is the maximum schedular rating available under DC 7522. In the present case, the record does not show or suggest that the rating criteria are inadequate for rating the Veteran’s erectile dysfunction, to warrant referral for consideration of an extra-schedular rating. Additionally, the record does not show that the Veteran has had testis, or half or more of his penis removed. In reaching this determination, the Board also notes that the Veteran is receiving special monthly compensation for loss of use of a creative organ. Accordingly, the Board finds that a rating in excess of 20 percent for erectile dysfunction is not warranted. A. ISHIZAWAR Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Talton, John H. 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.