Citation Nr: 21023066 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 16-27 515 DATE: April 20, 2021 ORDER Entitlement to an initial compensable rating for hypertension is denied. REMANDED Entitlement to an initial rating higher than 10 percent for right elbow sprain prior to April 20, 2017 is remanded. FINDING OF FACT The symptoms of the Veteran’s service-connected hypertension have not more nearly approximated predominant diastolic blood pressure of 100 or more, or a predominant systolic blood pressure of 160 or more at any time during the period on appeal. CONCLUSION OF LAW The criteria for an initial compensable rating for service connected hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from May 1974 to May 1976, June 1983 to June 1989, August 1994 to November 1994, March 1999 to December 2012. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a July 2013 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) which, inter alia, granted service connection for hypertension and right elbow sprain, evaluating each disability as noncompensable. In January 2014, the Veteran filed his notice of disagreement with, among other things, the ratings assigned for his hypertension and right elbow sprain, was issued a statement of the case in March 2016, and in May 2016 perfected his appeal to the Board. In a January 2018 rating decision, the RO granted a 10 percent rating effective January 1, 2013, and a noncompensable rating effective April 20, 2017, for right elbow sprain, creating a staged rating. In November 2019, the Board, among one other thing, denied a compensable rating for hypertension, and denied a rating higher than 10 percent prior to April 20, 2017, and a compensable rating from April 20, 2017, for right elbow strain. The Veteran appealed the Board decision to the Court of Appeals for Veteran’s Claims (Court) which in November 2020 granted a Joint Motion for Partial Remand (JMPR) filed by the parties, vacating and remanding that part of the Board’s November 2019 decision which denied a compensable rating for hypertension, and an initial rating higher than 10 percent prior to April 20, 2017 for right elbow sprain, finding that the Board failed to provide an adequate statement of reasons or bases by not addressing favorable evidence. Increased Rating Disability ratings are determined by applying the criteria set forth in the 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). If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. 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 “staged” ratings. See Fenderson v. West, 12 Vet. App. 119 (1999). In determining the appropriate evaluation for musculoskeletal disabilities, particular attention is focused on functional loss of use of the affected part. Under 38 C.F.R. § 4.40, functional loss may be due to pain, supported by adequate pathology and evidenced by visible behavior on motion. Weakness is as important as limitation of motion, and a part that becomes painful on use must be regarded as seriously disabled. Under 38 C.F.R. § 4.45, factors of joint disability include increased or limited motion, weakness, fatigability, or painful movement, swelling, deformity or disuse atrophy. Under 38 C.F.R. § 4.59, painful motion is an important factor of joint disability and actually painful joints are entitled to at least the minimum compensable rating for the joint. This regulation also requires that, whenever possible, the joints involved are tested for pain on both active and passive motion, in weight-bearing and nonweight-bearing and, if possible, with the range of the opposite undamaged joint. See Correia v. McDonald, 28 Vet. App. 158, 168 (2016). Where functional loss is alleged due to pain upon motion, the provisions of 38 C.F.R. § 4.40 and § 4.45 must be considered. DeLuca v. Brown, 8 Vet. App. 202, 207-08 (1995). Within this context, a finding of functional loss due to pain must be supported by adequate pathology, and evidenced by the visible behavior of the claimant. Johnston v. Brown, 10 Vet. App. 80, 85 (1997). Pain itself does not rise to the level of functional loss as contemplated by § 4.40 and § 4.45, but may result in functional loss only if it limits the ability to perform the normal working movements of the body with normal excursion, strength, coordination, or endurance. Mitchell v. Shinseki, 25 Vet. App. 32, 43 (2011). Hypertension The Veteran’s hypertension is currently rated noncompensable under 38 C.F.R. § 4.104, DC 7101. Under DC 7101, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is 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. January 2009 service treatment records reflect blood pressure readings of 135/88, and 143/100. May 2009 service treatment records reflect a blood pressure reading of 133/85. Service treatment records from May 2011 reflect a blood pressure reading of 152/94. Service treatment records from June 2011 reflect a blood pressure reading of 138/96. Service treatment records from March 2012 reflect blood pressure readings of 162/96, 140/84, and 154/102. Service treatment records from August 2012 reflect a blood pressure reading of 144/103. Service treatment records from September 2012 reflect blood pressure readings of 134/96, 134/92, 142/91, and 136/90. A July 2013 VA examination report indicated that the Veteran had a diagnosis of hypertension since 2005 and chose to pursue weight loss and exercise as opposed to medication as a treatment modality. The examiner noted that the Veteran’s treatment plan did not include taking continuous medication, the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more, and his current blood pressure readings were as follows: 129/98, 130/98, 130/104. In his January 2014 notice of disagreement, the Veteran reported that his hypertension required daily medication to maintain safe blood pressure levels. November 2015 VA treatment records reflect a blood pressure reading of 118/78. In his May 2016 form 9, the Veteran stated that he uses hydrochlorothiazide to treat hypertension, and that his diastolic pressure is consistently over 100. An April 2017 disability benefits questionnaire (DBQ) indicated that the Veteran’s treatment plan for hypertension included taking continuous medication, and the Veteran was noted to be asymptomatic as the condition was well controlled with medication. The DBQ indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more, and the blood pressure readings at the time of the DBQ were as follows: 134/80, 134/80, and 132/80. The preponderance of the evidence is against the Veteran’s claim for an initial compensable rating for service connected hypertension under DC 7101. While the Veteran reports taking prescribed medication for his hypertension, his diastolic pressure has ranged between 78 and 104, and his systolic blood pressure has ranged between 118 and 162. 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, and include the readings which were to be considered as agreed upon by the parties of the previously mentioned JMPR. While the Veteran contends that his hypertension warrants a higher rating, stating that his diastolic pressure is “consistently” over 100, the evidence of record does not demonstrate findings of diastolic pressure of predominantly 100 or more, or systolic blood pressure predominantly of 160 or more at any time during the pendency of the Veteran’s appeal. Predominantly means “being most frequent or common.” See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/predominant (last visited April 16, 2021). In the context of DC 7101, this means "above a certain level more often than it was below it." See Thompkins v. McDonald, No. 15-4128, 2016 U.S. App. Vet. Claims LEXIS 2013 (Dec. 29, 2016) (Greenberg, J.) (accepting this definition of predominant in the Board’s decision and affirming based on the Board’s application of the definition to the facts of that case); Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992) (single judge decisions may be relied upon for any persuasiveness or reasoning they contain). Of the multiple readings reflected by the evidence of record, there are only 4 instances where the Veteran’s diastolic pressure was of 100 or more, and 1 reading where the Veteran’s systolic pressure was of 160 or more. The number of instances where the Veteran’s diastolic pressure was less than 100 and his systolic pressure was less than 160 far outnumber the amount of times his diastolic pressure exceeded 100 and his systolic pressure exceeded 160. Therefore, the Veteran’s hypertension symptomatology does not more nearly approximate a history of diastolic pressure predominantly 100 or more requiring continuous medication or any of the other criteria for a compensable rating. Thus, the claim for an initial compensable rating for service connected hypertension must 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. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b) (1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff’d, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). REASONS FOR REMAND Right elbow sprain prior to April 20, 2017 The Veteran’s right elbow sprain is rated 10 percent disabling prior to April 20, 2017 under DC 5206. While portions of the rating schedule addressing the musculoskeletal system were revised effective February 7, 2021, this diagnostic code was not changed, and would not be impacted by the revisions for the time period on appeal. Under DC 5206, a noncompensable rating is warranted for the major and minor elbow where there is limitation of flexion of the forearm to 110 degrees; a 10 percent rating is warranted for the major and minor elbow where flexion is limited to 100 degrees; a 20 percent rating is warranted for the major elbow where flexion is limited to 90 degrees; a 30 percent rating is warranted for the major elbow where flexion is limited to 70 degrees; a 40 percent rating is warranted for the major elbow where flexion is limited to 55 degrees; and a 50 percent rating is warranted for the major elbow where flexion is limited to 45 degrees. Under DC 5207, a 10 percent rating is warranted for the major elbow where extension of the elbow is limited to 60 degrees; a 20 percent rating is assigned where extension of the major elbow is limited to 75 degrees; a 30 percent rating is assigned where extension of the major elbow is limited to 90 degrees; a 40 percent rating is assigned where extension of the major elbow is limited to 100 degrees; and a 50 percent rating is assigned where extension of the major elbow is limited to 110 degrees. Normal ranges of motion of the elbow are zero degrees of extension to 145 degrees of flexion. See 38 C.F.R. § 4.71, Plate I. Normal ranges of motion of the forearm are 80 degrees of pronation and 85 degrees of supination. A July 2013 VA examination report reflected that the Veteran reported right elbow pain with some numbness in his thumb. He indicated that his pain is against resistance or when lifting objects, and stated that he wears a compression stocking when lifting weights. The examination report indicated that the Veteran is right hand dominant, and the Veteran reported that flare-ups impacted the function of his elbow and/or forearm, as lifting objects increased the pain. The examiner noted flexion to 145 degrees or greater, and extension to 0 degrees, with no objective evidence of painful motion. There was no additional functional loss, impairment, or additional limitation of range of motion after repetitive use, but the Veteran reported localized tenderness or pain on palpation of joints/soft tissue of the right elbow or forearm. Muscle strength testing indicated active movement against some resistance with elbow flexion and extension, but there was no ankylosis of the elbow, and no flail joint, joint fracture, and/or impairment of supination or pronation. The examination report indicated that the Veteran had not had a total elbow joint replacement, or arthroscopic or other elbow surgery. In his January 2014 notice of disagreement, the Veteran stated that he needs support to perform routine tasks that require right arm strength due to his right elbow sprain. Unfortunately, as agreed upon by the parties of the previously discussed JMPR, the July 2013 examination report is inadequate for VA adjudication purposes. In Sharp v. Shulkin, 29 Vet. App. 26 (2017), the Court held that a VA examiner must attempt to elicit information from the record and the Veteran regarding the severity, frequency, duration, or functional loss manifestations during flare-ups before determining that an estimate of motion loss in terms of degrees could not be given. It also held that any inability to furnish such an estimate must be predicated on a lack of medical knowledge among the medical community at large, rather than insufficient knowledge by the individual examiner. Id. Here, as noted in the JMPR, the July 2013 examiner failed to provide an estimate of additional motion loss during flare-ups or explain why an estimate cannot be given contrary to Sharp. A remand is therefore warranted to provide the Veteran with a medical opinion to determine the level of the Veteran’s right elbow sprain prior to April 20, 2017, to include consideration of flare-ups as indicated in Sharp. The matter is REMANDED for the following action: 1. Obtain a medical opinion from an appropriate clinician to determine the severity of the Veteran’s right elbow sprain prior to April 20, 2017. The clinician must attempt to elicit information regarding the severity, frequency, and duration of any flare-ups, and the degree of functional loss during flare-ups. To the extent possible, the clinician should identify any symptoms and functional impairments due to the Veteran’s right elbow strain alone and discuss their effects on any occupational functioning and activities of daily living. If it is not possible to provide a specific measurement, or an opinion regarding flare-ups, symptoms, or functional impairment without speculation, the clinician must 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), a deficiency in the record (additional facts are required), or the clinician (does not have the knowledge or training). Jonathan Hager Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board R. Maddox, 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.