Citation Nr: 21025423 Decision Date: 04/28/21 Archive Date: 04/28/21 DOCKET NO. 10-00 211 DATE: April 28, 2021 ORDER Entitlement to a compensable rating for hypertension prior to March 12, 2019; and a rating higher than 10 percent thereafter, is denied. FINDINGS OF FACT 1. Prior to March 12, 2019, the weight of the evidence is against a finding that the Veteran had diastolic pressures predominantly 100 or more, or systolic pressures predominantly 160 or more. 2. The weight of the evidence supports that from March 13, 2019, the Veteran’s hypertension has manifested with systolic pressure predominantly 160 or more. His disability picture did not more closely approximate diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSION OF LAW Prior to March 13, 2019, the criteria for a compensable rating for service-connected hypertension have not been met; since March 13, 2019, the criteria for a rating higher than 10 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Air Force from June 1975 to March 1996. This appeal comes before the Board of Veterans’ Appeals (Board) from a January 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). The Board previously remanded the Veteran’s claim for an increased rating for hypertension in February 2015, December 2017, and January 2021. In the most recent remand in January 2021, the Board directed that VA obtain a medical opinion addressing etiologies for all the Veteran’s present heart diagnoses related to his hypertension. In February 2021, such opinions were rendered. By a February 2021 rating decision, the RO recharacterized the Veteran’s previously service-connected atrial fibrillation and included the additional heart diagnoses of hypertensive heart disease with heart failure, cardiac arrhythmia with a history of supraventricular tachycardia, paroxysmal atrial fibrillation, and coronary artery disease. The RO continued the 10 percent rating, which has been assigned since May 6, 2000. To date, the Veteran has not indicated any disagreement with the February 2021 rating decision. Although the rating decision states “this decision resolves your appeal for this specific issue,” the Veteran is advised that he may still file a Notice of Disagreement on an appropriate form prescribed by the Secretary within one year of the rating decision if he disagrees with the rating assigned. Because the issue before the Board was an increased rating for hypertension, and not the Veteran’s heart disability, the Board will not exercise jurisdiction over this issue. See January 2021 BVA Decision. Thus, the Board finds that its remand instructions were substantially complied with. Stegall v. West, 11 Vet. App. 268 (1998). The Veteran seeks an increased evaluation for his service-connected hypertension. The condition was initially rated at 0 percent disabling effective April 1, 1996, and then increased to 10 percent disabling effective March 13, 2019. The Board will address these two stages individually. 1. Entitlement to a compensable rating for hypertension prior to March 13, 2019. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities (rating schedule). See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. Where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1995). A veteran is presumed to be seeking the maximum possible evaluation. AB v. Brown, 6 Vet. App. 35 (1993). Separate ratings can be assigned for separate periods of time based on the facts found – a practice known as “staged” ratings. The Veteran’s hypertension is evaluated under 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101. Under DC 7101, a 10 percent evaluation is appropriate 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 evaluation is warranted for diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more; a 40 percent evaluation is appropriate for diastolic pressure predominantly 120 or more; and the maximum evaluation of 60 percent is warranted when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, DC 7101. Prior to March 13, 2019, the weight of the evidence is against a finding that the Veteran had diastolic pressures predominantly 100 or more, or systolic pressures predominantly 160 or more. On his NOD, the Veteran disagreed with the noncompensable rating assigned because of the medication he was taking for his hypertension. The Board does not discount or deny that the Veteran was taking medication for his hypertension at that time and throughout the appeal period. However, the Board notes that the use of medications is explicitly contemplated in Diagnostic Code 7101 and that the Court has held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of Diagnostic Code 7101 contemplates the effects of medications. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). Put differently, under the rating criteria, having to take medication alone does not warrant a compensable rating. Instead, the evidence as a whole must show that even when taking medication, the Veteran’s diastolic pressure was predominantly 100 or more or his systolic pressure was predominantly 160 or more. The rating criteria does also state the “minimum evaluation [is warranted] for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.” However, prior to March 13, 2019, this was not shown by the evidence of record. On VA examination in January 2008, the examiner confirmed the Veteran’s previous diagnosis of hypertension and observed that he took anti-hypertensive medications to control his condition. Blood pressure readings were all normal at that time, showing 129/87, 125/83, and 121/86. See January 2008 VA Examination. The Veteran’s medical treatment records during this stage on appeal, including his VA examinations for various other conditions, do not show any readings with diastolic pressures above 100, or systolic pressures over 160. A VA examination for the Veteran’s hand conditions in August 2008 showed a reading of 131/87 and an examination for the Veteran’s arrhythmias in January 2009 measured blood pressure at 123/89. In August 2007, the Veteran’s military physician at Eglin Air Force Base wrote a note summarizing that the Veteran’s blood pressure typically ranged from 120s to 150s systolic, and from 70s to 90s diastolic. Notably, in December 2011, the Veteran told his physician at Eglin that his systolic readings were typically in the 130s at home. Similarly, in November 2017, the Veteran reported to his treating physician that his blood pressure was usually in the 120s/ 70s. Other readings annotated throughout the hundreds of pages of medical records during this stage also do not show measurements above 100 for diastolic pressure, or above 160 for systolic pressure. Accordingly, the Board finds that the preponderance of evidence does not support a compensable rating for hypertension prior to March 13, 2019. Therefore, the claim must be denied. 2. Entitlement to a rating higher than 10 percent for hypertension from March 13, 2019. On March 13, 2019, the Veteran underwent another VA examination for his hypertension condition. The examiner indicated review of the Veteran’s claim file, and she confirmed the Veteran’s diagnosis of hypertension and his ongoing antihypertensive medication regimen. On that date, the Veteran’s blood pressure was recorded three times in succession, with readings of 158/91, 159/99, and 163/90. The average of these readings was annotated as 160/93. Following the above examination, the RO increased the Veteran’s hypertension disability rating to 10 percent, effective the date of the examination. The Veteran has argued that VA might not have his up-to-date blood pressure information, and therefore his disability rating may be incorrect. See March 2021 Correspondence. However, the record does not show any subsequent readings higher than those annotated in March 2019 at the VA examination, and the Veteran has not asserted that any such higher readings exist. In February 2021, the Veteran was provided with a supplemental statement of the case (SSOC) discussing his claim for an increased rating for hypertension. The SSOC included a notification that if the Veteran wished to provide additional information or evidence, he would be granted additional time upon request. The Veteran did not respond to the notification, and after 30 days elapsed, the claim was returned to the Board for adjudication. The Veteran is advised that VA’s duty to assist is not always a one-way street. If a veteran wishes help, he cannot passively wait for it in those circumstances where he may or should have information that is essential in obtaining putative evidence. See Wood v. Derwinski, 1 Vet. App. 190, 193 (1991). Here, as the Veteran was provided with proper notice of how to submit additional evidence, the Board concludes VA satisfied its duty to assist the Veteran in developing his claim. At no point during the appeal period has the evidence shown that the Veteran’s diastolic pressure was predominantly 1000 or more or his systolic pressure was predominantly 200 or more such that a higher, 20 percent rating, is warranted. For the entire appeal period, the Board acknowledges the Veteran’s lay statements and sincere belief that higher ratings are warranted. However, the Board is bound by the medical evidence before it. The Veteran’s own lay reports are consistent with the currently assigned ratings. In sum, the weight of the evidence does not support that the Veteran’s disability picture more closely approximated the criteria required for a higher 20 percent rating from March 13, 2019. The Board finds that the current 10 percent rating accurately reflects the Veteran’s hypertension disability picture. 38 C.F.R. § 4.104, DC 7101. Therefore, the claim for a higher rating must be denied. MARTHA R. LUBOCH Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Hermsdorfer, 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.