Citation Nr: 21023107 Decision Date: 04/20/21 Archive Date: 04/20/21 DOCKET NO. 13-21 844A DATE: April 20, 2021 ORDER Entitlement to a compensable rating for service-connected hypertension for the rating period prior to December 20, 2015, is denied. FINDING OF FACT During the rating period prior to December 20, 2015, the Veteran’s hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, and he did not both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. CONCLUSION OF LAW The criteria for a compensable rating for service-connected hypertension for the appeal period prior to December 20, 2015 are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from October 1978 to October 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a May 2011 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). By way of history and as pertinent to this appeal, the Veteran’s hypertension disability was initially assigned a noncompensable service connection rating. The Veteran filed the increased rating claim at issue here on March 21, 2010 and perfected the appeal of the May 2011 rating decision. In a July 2015, the matter came before the Board and was remanded. In April 2016, the RO increased the Veteran’s rating for service-connected hypertension to 20 percent effective December 21, 2015 in a supplemental statement of the case. In November 2018, the case was again before the Board and entitlement to an increased rating for hypertension was denied. The Veteran appealed the Board’s November 2018 decision to the United States Court of Appeals for Veterans Claims (Court), which issued an Order in December 2019 granting a November 2019 Joint Motion for Partial Remand (JMPR). The Court’s Order vacated and remanded that portion of the Board’s decision denying entitlement to an initial compensable rating for service-connected hypertension for the period prior to December 21, 2015 for action consistent with the terms of the JMPR. The Veteran did not challenge that portion of the Board’s decision that denied entitlement to a rating in excess of 20 percent beginning December 21, 2015 and the Board has thus recharacterized the issue remaining on appeal as reflected on the title page. The issue was most recently before the Board in June 2020 and was remanded for further development. The case has been returned to the Board for appellate review. Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist with regards to the issues discussed below on the merits. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (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 veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Entitlement to a compensable rating for service-connected hypertension for the rating period prior to December 20, 2015 Disability evaluations (ratings) are determined by the application of the VA’s Schedule for Rating Disabilities (Rating Schedule), 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 their residual disorders in civil occupations. See 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, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Separate ratings may be assigned for separate periods of time based on the facts found; this practice is known as staged ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). 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. See 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; see also Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). The Veteran contends that his hypertension symptomatology for the rating period from March 21, 2009, one year prior to the date VA received his increased rating claim, to December 20, 2015, the day before the increased 20 percent is effective, warrants a compensable rating. Specifically, the Veteran contends a higher evaluation is warranted based on his history of elevated blood pressures prior to being prescribed medication and due to the medications he takes to control his hypertension disability. See June 2015 Informal Hearing Presentation. The Veteran’s hypertension is rated noncompensable (zero percent) for the period prior to December 20, 2015 pursuant to 38 C.F.R. § 4.104, DC 7101 for hypertensive vascular disease (hypertension and isolated systolic hypertension). A 10 percent rating is warranted with diastolic pressure predominantly 100 or more, 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 is warranted with diastolic pressure predominantly 110 or more or systolic pressure 200 or more. A 40 percent rating is warranted with diastolic pressure predominantly 120 or more, and a 60 percent disability evaluation, the maximum available, is warranted with diastolic blood pressure predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. In every case where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met, as is the case here. 38 C.F.R. § 4.31. The Board notes that words such as “predominantly” are not defined in the Rating Schedule. Rather than applying a mechanical formula, VA must evaluate all evidence, to the end that decisions will be equitable and just. 38 C.F.R. § 4.6. Regardless, a basic understanding of predominant would suggest that the diastolic pressure was above a certain level more often than it was below it, and the Board understands it to have its ordinary meaning of “for the most part,” or “mainly.” See Merriam-Webster’s Collegiate Dictionary, 978 (11th ed. 2012). Turning to the evidence of record, the Veteran underwent a VA examination for his hypertension in December 2015. The examiner noted that the Veteran’s treatment plan included taking continuous medication, which was noted at that time as Micardis HCTZ and Bystolic. The examination report shows that the Veteran’s three blood pressure readings during the examination were 171/113, 181/117 and 172/115. The examiner reported that the Veteran has a history of diastolic pressure predominantly 100 or more but that his hypertension does not affect his ability to work due. Further, during the examination, the Veteran reported that diastolic pressures are 100 or higher more than half of the time. Pursuant to the June 2020 Board remand, the Veteran was afforded another VA hypertension examination in January 2021 and a retrospective opinion issued. The examiner opined that the Veteran’s blood pressure for the rating period prior to December 20, 2015 cannot be best characterized as diastolic pressure of predominantly 100 or more, or; systolic pressure of predominantly 160 or more, or; a history of diastolic pressure predominantly or more with continuous medication for control. The examiner based her opinion on the fact that the Veteran’s average blood pressure reading for the period prior to December 20, 2015 was 125/86, and noted the average blood pressure readings on the date of examination, December 21, 2015, was 143/100. The private treatment records submitted by the Veteran contain blood pressure readings dated from July 2009 to November 2015, virtually spanning the entire rating period from March 21, 2010 to December 20, 2015, including the one-year lookback period going back to March 21, 2009 under 38 C.F.R. § 3.400(o)(2). (Continue on the next page) Those readings are as follows: Date BP reading Date BP reading 7/13/09 108/70 1/3/13 124/86 7/22/09 120/80 3/7/13 111/73 9/1/09 118/80 5/1/13 123/77 1/18/10 112/80 8/8/13 125/86 9/8/10 120/80 9/4/13 131/79 12/22/11 130/100 11/26/13 126/82 1/12/12 122/82 12/23/13 128/90 2/14/12 120/88 2/21/14 140/87 4/26/12 124/88 10/2/14 118/78 5/2/12 140/98 12/4/14 122/89 6/18/12 109/62 1/6/05 135/85 7/5/12 128/80 3/5/15 127/86 11/1/12 126/90 3/19/15 108/69 11/29/12 122/84 11/30/15 124/76 Therefore, the Veteran’s average blood pressure reading for the period from March 21, 2009 to December 20, 2015, inclusive of the one-year lookback period, is 123/82. Thus, the Board finds that throughout the rating period from March 21, 2010 to December 20, 2015, the Veteran’s hypertension symptomatology does not warrant a compensable rating. The Board acknowledges the Veteran’s contentions that his hypertension would be worse without medication but notes that the rating criteria for hypertension specifically contemplate the use of medication to ameliorate symptoms, and that a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat symptoms. McCarroll v. McDonald, 28 Vet. App. 267 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications). The Board also notes that the most probative evidence of record, to include the blood pressure readings recorded by medical professionals, does not show a diastolic pressure of predominantly 100 or more or systolic pressure of predominantly 160 or more, or a history of diastolic pressure of predominantly 100 or more and which requires continuous medications for control. The Board also acknowledges the Veteran’s November 2012 report of going to the emergency department the previous evening with an increased blood pressure reading of 165/125. While that particular medical treatment record is not of record, for the sake of argument, factoring the self-reported higher 165/125 November 2012 reading into the above list of blood pressure readings for the period from March 21, 2009 to December 20, 2015, the Veteran’s blood pressure average changes negligibly to 124/82, which still does not warrant a compensable rating. The Board further notes a December 2011 private medical treatment record documented a blood pressure reading of 130/100, which is taken into account above in finding the Veteran’s average blood pressure for the period on appeal. The Board further notes that this is the only reading in the Veteran’s treatment records for the period on appeal which shows a diastolic pressure of 100 or more, which is far afield from the Veteran’s December 2015 statement that it was over 100 over half the time. One reading out of the many in the record throughout the appeal period does not substantiate that his diastolic pressure is predominantly 100 or more. Thus, the Board finds that for the entire period on appeal from March 21, 2010 to December 20, 2015, the Veteran does not have diastolic pressure predominantly 100 or more. The Board notes that the June 2020 Board remand directives, which were consistent with the terms of the JMPR, directed that the RO contact the Veteran to give him the opportunity to provide evidence in support of his December 2015 statement of diastolic pressures of 100 or higher more than half the time in order to make clear how he reached this conclusion, or how or when measurements were taken on which he could base that conclusion. A VA letter dated in July 2020 requested he provide this additional evidence for the specific period on appeal from March 21, 2010 to December 20, 2015. The request for this evidence was mailed to the Veteran’s correct address of record and a copy was mailed to his representative. Neither letter was returned as undeliverable and neither the Veteran nor his representative have responded further in support of his statement to date. The June 2020 Board remand directives further directed that after the Veteran had a reasonable opportunity to submit evidence in support of his December 2015 statement, an appropriate examiner should review the record and any additional evidence submitted by the Veteran to provide an opinion as to the nature and severity his hypertension during the time period of March 21, 2010 to December 20, 2015. Specifically, the examiner was directed to offer an opinion as to whether the Veteran’s blood pressure during that time period can be best characterized as diastolic pressure of predominantly 100 or more, or; systolic pressure of 160 or more, or; a history of diastolic pressure predominantly 100 or more with continuous medication for control, while specifically addressing whatever evidence was provided by the Veteran in response to the remand. The VA examiner considered the Veteran’s statements, as well as reviewed the claims file in reaching her conclusion. Considering that the Veteran did not submit any additional information to specifically address or consider, the Board finds that the June 2020 remand directives have been substantially complied with. Stegall v. West, 11 Vet. App. 268, 271 (1998). The Board also acknowledges the Veteran’s own lay statements. Considering the medical evidence discussed above and the Boards thorough review of the record, the probative value of the contentions of the Veteran is outweighed by the January 2021 medical opinion of record. Based on this evidence, the Board finds that the criteria for a compensable rating for hypertension is not warranted. Accordingly, the Veteran’s claim must be denied. 38 C.F.R. §§ 3.102, 4.3, 4.7. (Continued on the next page)   The Board has considered the possibility of staged ratings and finds that the 0 percent disability rating for hypertension was in effect for appropriate period on appeal prior to December 20, 2015. Accordingly, additional staged ratings are inapplicable. See Hart, 21 Vet. App. at 505. T. Blake Carter Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board S. Battaile 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.