Citation Nr: 21026044 Decision Date: 04/29/21 Archive Date: 04/29/21 DOCKET NO. 10-43 981A DATE: April 29, 2021 ORDER Entitlement to an initial compensable rating for hypertension prior to January 10, 2013, and in excess of 10 percent thereafter for service-connected hypertension is denied. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) prior to December 22, 2011, due to service-connected disabilities, to include on an extraschedular basis, is remanded. FINDINGS OF FACT 1. Prior to January 10, 2013, although the Veteran’s hypertension required the use of medication for control, it was not manifested by a history of diastolic pressure predominately 100 or more; diastolic pressure predominantly 100 or more; or by systolic pressure predominantly 160 or more. 2. Beginning January 10, 2013, the Veteran’s hypertension was not manifested by diastolic pressure predominantly 110 or more, or by systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for service-connected hypertension prior to January 10, 2013, are not met. 38 U.S.C. §§ 1155, 5107 (2018); 38 C.F.R. § 4.104, Diagnostic Code 7101 (2020). 2. Beginning January 10, 2013, the criteria for a disability rating in excess of 10 percent for service-connected hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 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 October 1970 to November 1971, with additional service in the United States Air Force Reserves from January 2002 to May 2002, January 2004 to January 2005 and September 2008 to February 2009. Increased Ratings Disability evaluations are determined by the application of 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 conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. 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. 38 C.F.R. § 4.7. The Veteran’s entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). The RO has evaluated the Veteran’s hypertension under 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or as a 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 when diastolic pressure is predominantly 110 or more, or when systolic pressure is predominantly 200 or more. Id. A 40 percent rating is warranted when diastolic pressure is predominantly 120 or more. Id. A 60 percent rating is warranted when diastolic pressure is predominantly 130 or more. Id. The term “hypertension” means that the diastolic blood pressure is predominantly 90 millimeters (mm) or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm or greater with a diastolic blood pressure of less than 90mm. Id. [Note 1]. In this case, the Veteran has been assigned an initial noncompensable rating for hypertension from February 21, 2007, the date of claim, to September 8, 2008, noncompensable from February 15, 2009 to January 10, 2013 and a 10 percent rating from January 10, 2013. During the entire appeal period, the Veteran has required medication to control her hypertension. Prior to January 10, 2013, the Veteran’s diastolic blood pressure was predominately below 100. The Veteran has taken medication to control her hypertension since May 2006. At that time, the Veteran’s blood pressure readings were 115/74 and 125/76. See Medical Treatment Record received May 2007. Although the Veteran’s service treatment records indicate high blood pressure, and she has had continuous use of medication throughout the appeal period to control her hypertension, the evidence of record does not include any diastolic blood pressure readings of 100 or more or any other evidence suggesting a compensable rating is warranted prior to January 2013. In January 2013, the Veteran’s VA examination resulted in readings of 177/106, 179/108, and 177/108. Based on this examination, the Veteran was assigned a 10% disability rating. The Veteran was afforded a VA examination in December 2019. The Veteran’s blood pressure readings were 141/97, 140/97 and 147/89. The examiner stated there is a worsening of the Veteran’s symptoms; however, there no change to the service-connected diagnosis. The Board finds that an initial compensable rating prior to January 10, 2013 and a staged rating in excess of 10 percent for hypertension is not warranted. At no point during the appeal period has the Veteran had a systolic blood pressure reading of 200 or more and, although she had one diastolic reading in excess of 110, her diastolic pressure was predominantly below 110 during the entire appeal period. The Board notes the Veteran and her representative contend that her readings would be higher without the use of continuous medication; however, a higher compensable rating cannot be granted on that basis, insofar as VA has included the effect of medication as a factor to be considered when rating hypertension. See McCarroll v. McDonald, 28 Vet. App. 267 (2016); Jones v. Shinseki, 26 Vet. App. 56 (2012). The Board is grateful for the Veteran’s military service. However, given the record before it, the evidence in this case does not reach the level of equipoise. See 38 U.S.C. § 5107(a) (“[A] claimant has the responsibility to present and support a claim for benefits....”); Fagan v. Shinseki, 573 F.3d 1282, 1286 (Fed. Cir. 2009) (stating that the claimant has the burden to “present and support a claim for benefits” and noting that the benefit of the doubt standard in section 5107(b) is not applicable based on pure speculation or remote possibility); Skoczen v. Shinseki, 564 F.3d 1319, 1323-29 (Fed. Cir. 2009) (interpreting section 5107(a) to obligate a claimant to provide an evidentiary basis for his or her benefits claim, consistent with VA’s duty to assist, and recognizing that “[w]hether submitted by the claimant or VA...the evidence must rise to the requisite level set forth in section 5107(b),” requiring an approximate balance of positive and negative evidence regarding any issue material to the determination). REASONS FOR REMAND The Board finds the claim of entitlement to an effective date prior to December 22, 2011, for the award of a TDIU, to include on an extraschedular basis, must be remanded. A TDIU may be assigned when the disabled person is, in the judgment of the rating agency, unable to secure and follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16(a). In such an instance, if there is only one disability, it must be rated at 60 percent or more; if there are two or more disabilities, at least one disability must be rated at 40 percent or more, with sufficient other disabilities to bring the combined rating to 70 percent or more. Id. The Veteran first raised the issue of TDIU during the appeal period in July 2015, when the Veteran’s medical provider states the Veteran cannot work due to her service connected disabilities including post-traumatic stress disorder (PTSD) and the issues on appeal at the time (back, left radiculopathy, and hypertension). In a December 2020 rating decision, entitlement to TDIU was granted. An effective date of December 22, 2011 was assigned. The RO indicated this date was assigned as it was the date the RO received her PTSD claim. However, as indicated in the 2015 statement, the Veteran contends multiple disabilities cause her unemployability. The Veteran met the threshold required for TDIU on a schedular basis from March 24, 2010 to July 6, 2011. However, she does not meet the threshold prior to March 24, 2010 or between July 6, 2011 and December 22, 2011. When these percentage standards are not met, consideration may be given to entitlement on an extraschedular basis, taking into account such factors as the extent of the service-connected disability, and employment and educational background. It must be shown that the service-connected disability produces unemployability without regard to advancing age. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 3.340, 3.341, 4.16, 4.19. The Board itself cannot assign an extraschedular rating in the first instance. Bagwell v. Brown, 9 Vet. App. 337, 338-9 (1996); Floyd v. Brown, 9 Vet. App. 88, 96 (1996). However, the Board can adjudicate whether to refer a case to the Director for an extraschedular evaluation when the issue is either raised by the claimant or is reasonably raised by the evidence of record. Thun v. Peake, 22 Vet. App. 111, 115 (2008); Barringer v. Peake, 22 Vet. App. 242 (2008). If, and only if, the Director determines that an extraschedular evaluation is not warranted, does the Board then have jurisdiction to decide the extraschedular claim on the merits. Anderson v. Shinseki, 22 Vet. App. 423, 427-8 (2009); see also Floyd, 9 Vet. App. at 96-97 (stating that once the Board properly refers an extraschedular rating issue to the Director for review, an appellant may “continue to appeal the extraschedular rating aspect of this claim”); see also 38 U.S.C. §§ 511 (a), 7104 (a) (2012) (“All questions in a matter... subject to decision by the Secretary shall be subject to one review on appeal to the... Board”). After a review of the record, the Board finds that referral for extraschedular TDIU is warranted. Specifically, the Board notes that in the July 2015 statement, the Veteran’s doctor stated that her back pain has prevented her from working, and the Veteran indicates she last worked in January 2010. Accordingly, in light of the aforementioned circumstances, a remand is necessary in order to complete this additional development. Furthermore, pursuant to her VA Form 21-8940, Application for Increased Compensation Based on Unemployability, the Veteran states she became too disabled to work on October 21, 2010, last working full time in January 2010. Unfortunately, it is unclear where she was employed in 2010. She indicated employment at a home retail store and some training in real estate. Her records also reflect time as a teacher and two associate degrees. See August 2020 CAPRI. To date, the RO has not undertaken any development to obtain information from the Veteran’s most recent employer, such as by sending the employer a VA Form 21-4192, Request for Employment Information. The Veteran has not otherwise provided this information or provided the exact dates of her most recent employment. Under the foregoing circumstances, the Board finds a remand is warranted to solicit a completed VA Form 21-4192 from the Veteran’s most recent employer. In addition, the Board will request an opinion from a qualified VA medical examiner regarding the combined effects of the Veteran’s service-connected disabilities on her employability for the period prior to December 22, 2011. In this regard, the Board notes that the ultimate question of whether a Veteran is capable of substantially gainful employment is an adjudicatory determination, not a medical one. See 38 C.F.R. § 3.303 (1988) (requiring “all pertinent medical and lay evidence” to be considered in rating determinations); See also Geib v. Shinseki, 733 F.3d 1350, 1354 (Fed. Cir. 2013) (“[A]pplicable regulations place responsibility for the ultimate TDIU determination on the VA, not a medical examiner”); Moore v. Nicholson, 21 Vet. App. 211, 218 (2007) (discussing 38 C.F.R. § 4.2 and stating that “[t]he medical examiner provides a disability evaluation and the rating specialist interprets medical reports in order to match the rating with the disability”). “[I]t is the responsibility of the rating specialist to... reconcil[e] the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability present.” See Moore v. Shinseki, 21 Vet. App. 211, 218 (2007) (quoting 38 C.F.R. § 4.2). This matter is REMANDED for the following action: 1. Solicit an updated VA Form 21-4192, Request for Employment Information, from her most recent employer, in addition to any other evidence relevant to the issue of entitlement to a TDIU prior to December 22, 2011, to include on an extra-schedular basis. 2. Forward the Veteran’s claims file to a qualified VA examiner for an opinion regarding the combined effects of the Veteran’s service-connected disabilities on her employability for the period prior to December 22, 2011. All pertinent evidence of record must be made available to and reviewed by the examiner. Following a review of the relevant records and lay statements, the examiner should provide a full description of the effects the Veteran’s service-connected disabilities had on her ordinary activities, to include her employability, for the period prior to December 22, 2011. 3. Refer the Veteran’s case to VA’s Director of Compensation Service for extraschedular consideration of the Veteran’s TDIU claim prior to March 24, 2010 and between July 6, 2011 and December 22, 2011, pursuant to 38 C.F.R. § 4.16 (b). 4. Then, readjudicate the issue on appeal. If the benefit sought on appeal is not granted to the Veteran’s satisfaction, the Veteran and her representative should be furnished an appropriate supplemental statement of the case and be afforded the requisite opportunity to respond. Thereafter, the case should be returned to the Board for further appellate consideration, as appropriate. James Springer Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Townsend, 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.