Citation Nr: 21027423 Decision Date: 05/05/21 Archive Date: 05/05/21 DOCKET NO. 16-37 543 DATE: May 5, 2021 ORDER A compensable rating for hypertension is denied. REMANDED Entitlement to service connection for a low back disorder, to include as secondary to a left ankle disability, is remanded. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertension, is denied. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus, type II, and/or a low back disorder, is remanded. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus, type II, and/or a low back disorder, is remanded. FINDING OF FACT For the entire appeal period, the Veteran's hypertension requires continuous medication for control, but has not been manifested by diastolic pressure predominantly 100 or more, or a history thereof, or systolic pressure predominantly160 or more. CONCLUSION OF LAW The criteria for a compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDING AND CONCLUSIONS The Veteran served on active duty from November 1974 to November 1978 and from December 1978 to December 1987. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in March 2013, February 2015, and September 2015 by a Regional Office (RO) of the Department of Veterans Affairs (VA). In January 2016, the Veteran and his spouse testified at an RO hearing before a Decision Review Officer and, in April 2021, he testified at a Board hearing before the undersigned Veterans Law Judge. Transcripts of both hearings are associated with the record. 1. Entitlement to a compensable rating for hypertension. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Part 4. Each disability must be viewed in relation to its history and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id. The appeal period before the Board stems from the Veteran's December 12, 2014, claim for an increased rating for his hypertension, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). For the entire appeal period, such disability has been rated as noncompensably disabling pursuant to DC 7101. 38 C.F.R. § 4.104. Such DC provides that a 10 percent rating is warranted where hypertension is manifested by diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or when an individual with a history of diastolic pressure of predominantly 100 or more requires continuous medication for control. A 20 percent is warranted where hypertension is manifested by diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. 40 and 60 percent ratings are assigned where hypertension is manifested by diastolic pressure predominately 120 or more, or 130 or more, respectively. The Veteran asserts that he is entitled to an increased rating of 10 percent for his service-connected hypertension based on his reported history of having diastolic blood pressure readings of predominantly 100 or more prior to being prescribed medications for such disability, and as a result of his symptoms of headaches and dizziness. Further, with regard to the Veteran's contention that his hypertension has historically produced diastolic pressure readings of 100 or more prior to the prescription for medication, the Board acknowledges that the Veteran submitted a VA Hypertension Disability Benefits Questionnaire (DBQ) completed by his private treatment provider, Dr. D.H., in January 2016 reiterating this history. However, as reflected in the DBQ form, if a clinician completing this form affirms that a claimant has a history of diastolic pressure readings of 100 or more, the clinician is then asked to describe the frequency and severity of such readings, which the Veteran's treating physician failed to do. Moreover, when reviewing the Veteran's private treatment of record from the same physician spanning from 2002 to 2014, which includes approximately 75 blood pressure readings, the treatment only reflects three diastolic pressure readings of 100 or greater, with approximately 17 readings in the 90's, 38 readings in the 80's, 17 readings in the 70's, 2 readings in the 60's, and one reading in the 50's. Moreover, no systolic pressure readings recorded in these treatment records were 160 or greater. Likewise, none of the systolic or diastolic pressure readings recorded in the Veteran's VA treatment of record were 160 or 100 or higher, respectively. Further, the Board notes that the Veteran was assigned an initial noncompensable rating upon discharge from service after the RO reviewed his service treatment records and determined that his in-service blood pressure readings failed to reflect a basis for a compensable award. In that regard, the Veteran's service treatment records, which reflect his initial diagnosis of hypertension, include approximately 40 elevated diastolic blood pressures recorded, 14 of which were 100 or higher, and 26 of which were 90 or higher. Given that only 14 of the 40 elevated diastolic pressure readings were 100 or higher, equating to approximately 35 percent, such a percentage does not equate to a finding that the Veteran has a history of diastolic pressure predominantly 100 or higher. Moreover, while current treatment records and a January 2016 VA examination reflect that the Veteran has been prescribed medication for his hypertension, such likewise fail to reflect diastolic pressure predominantly 100 or more, or a history thereof, or systolic pressure predominantly160 or more. In this regard, at such VA examination, the Veteran's blood pressure was measured at 150/88 three times and the examiner found no history of a diastolic blood pressure elevation to predominately 100 or more. Based on the foregoing, the Board finds that a compensable rating for the Veteran's hypertension is not warranted as the evidence shows that, while he requires continuous medication for control, such has not been manifested by diastolic pressure predominantly 100 or more, or a history thereof, or systolic pressure predominantly160 or more. In reaching such decision, the Board acknowledges that the Veteran takes medications for his hypertension, which assists in controlling such disability. However, the use of medications is explicitly contemplated in DC 7107. In this regard, the U.S. Court of Appeals for Veterans Claims (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 DC 7101 contemplates the effects of medications. McCarroll v. McDonald, 28 Vet. App. 267, 272-73 (2016). Consequently, a compensable rating for hypertension under DC 7101 is not warranted. As to the Veteran's contention that he experiences headaches and dizziness as a result of his hypertension, the Board acknowledges that, while he is competent to report experiencing such symptoms, he is not competent to relate them to his service-connected hypertension. In this regard, the etiology of such symptoms involves a medical subject concerning an internal physical process extending beyond an immediately observable cause-and-effect relationship and, thus, may not be competently addressed by lay statements. Woehlaert v. Nicholson, 21 Vet. App. 456, 462 (2007) (explaining that while the claimant is competent in certain situations to provide a diagnosis of a simple condition such as a broken leg or varicose veins, the claimant is not competent to provide evidence as to more complex medical questions). Furthermore, in the January 2016 DBQ, Dr. D.H. attributed to the Veteran's dizziness to his peripheral neuropathy and stated that he could not relate his headaches to hypertension without resorting to mere speculation and, at the January 2016 VA examination, the examiner noted the Veteran's complaint of headaches, which the Veteran indicated he was unsure were related to his hypertension, but found that, other than elevated blood pressure readings, he had no other pertinent physical findings, complications, complications, conditions, signs, or symptoms related to such disability. Thus, the Board affords greater probative weight to medical evidence of record, to specifically include Dr. D.H.'s and the January 2016 VA examiner's opinions than his generalized statements regarding the presence of such impairment. Waters v. Shinseki, 601 F.3d 1274, 1278 (2010). Furthermore, a December 2015 rating decision previously denied service connection for headaches and the Veteran did not appeal such decision. Based on the foregoing, the Board finds that a compensable rating for hypertension is not warranted. In reaching this decision, the Board has considered the applicability of the benefit of the doubt doctrine. However, the preponderance of the evidence is against the Veteran's increased rating claim. As such, that doctrine is not applicable in the instant appeal, and his claim must be denied. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. REASONS FOR REMAND 2. Entitlement to service connection for a low back disorder, to include as secondary to a left ankle disability. The Veteran contends that his current low back disorder is related to the cumulative impact of the strain from his in-service duties, which required him to regularly engage in heavy lifting, or, in the alternative, is caused or aggravated by his service-connected left ankle disability, to include as a result of an altered gait. While the Veteran has submitted a March 2019 medical opinion in support of his theory of direct service connection, such is legally inadequate and, thus, insufficient to award service connection. Specifically, while such opinion, which is authored by Dr. D.H., states that the Veteran's back disorder is related to service, the physician did not provide any supporting rationale for this conclusion. Nieves-Rodriguez v. Peake, 22 Vet. App. 295 (2008) (it is the factually accurate, fully articulated, sound reasoning for the conclusion that contributes to the probative value of a medical opinion); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007) ("[A]medical opinion... must support its conclusion with an analysis that the Board can consider and weigh against contrary opinions"). Furthermore, while a VA examiner opined in February 2017 that it was less likely than not that the Veteran's low back disorder was incurred in or caused by his military service, he relied solely on the lack of documented in-service symptoms, treatment, and diagnoses referable to such disorder and did not consider the Veteran's report that his back pain started during service. Further, to date, no examiner has addressed whether the Veteran's low back disorder is related to his in-service duties. As to the Veteran's other claimed theory of service connection, namely that his back disorder is caused or aggravated by his service-connected left ankle disability, the record likewise fails to contain legally adequate opinions addressing such theory of entitlement. In this regard, the VA medical opinions rendered in November 2016 and February 2017 conclude that it is less likely than not that the Veteran's low back disorder is related to his left ankle disability because there is no documented evidence of such disorder being caused or aggravated by his service-connected left ankle disability. The Board finds that the amorphous nature of this rationale frustrates appellate review and, thus, such opinion is not legally adequate. See Barr v. Nicholson, 21 Vet. App. 303, 312 (2007) (holding that when VA undertakes to provide a VA examination or obtain a VA opinion, it must ensure that the examination or opinion is adequate). Furthermore, to date, no examiner has addressed whether the Veteran's service-connected left ankle disability results in an antalgic gait, or other disturbance in weight bearing, that caused or aggravated his low back disorder. Therefore, in light of the foregoing, as well as the conflicting evidence of record as to the nature of the Veteran's low back disorder, the Board finds that a remand is necessary to afford him a new VA examination so as to determine the nature and etiology of such claimed disorder. 3. Entitlement to service connection for diabetes mellitus, type II, to include as secondary to service-connected hypertension. The Veteran contends that his current diabetes mellitus, type II, had its onset in service, or, in the alternative, is caused or aggravated by his service-connected hypertension. With respect to the Veteran's theory of direct service connection, the Board notes that, while Dr. D.H. opined that the Veteran's diabetes mellitus, type II, is related to service in March 2019, he did not provide any supporting rationale for this conclusion. Consequently, it is legally inadequate and, thus, insufficient to establish service connection. Nieves-Rodriguez, supra; Stefl, supra. Furthermore, despite his allegation that he had undiagnosed symptoms of diabetes in service, the Veteran's service treatment records are negative for any complaints, treatment, or diagnosis referable to diabetes mellitus, type II, and urinalysis was consistently negative for albumin and sugar. Furthermore, such disease was not diagnosed for numerous years after service, i.e., the mid-1990's at the earliest. Thus, the Board finds that VA's duty to assist by obtaining an opinion addressing such theory of entitlement is not triggered. McLendon v. Nicholson, 20 Vet. App. 79 (2006); Bardwell v. Shinseki, 24 Vet. App. 36 (2010); Waters, supra. With respect to the Veteran's theory of secondary service connection, the Board notes that, in January 2016, Dr. D.H. opined that it was at least as likely as not that his diabetes is aggravated by his service-connected hypertension. In support thereof, he noted that hypertension increases the risk from diabetes, i.e., increases the risk for chronic kidney disease and heart disease. However, an increased risk does not equate to aggravation and, further, such statement is general in nature, rather than specific to the Veteran. Thus, it is legally inadequate and, therefore, the Board cannot rely on it to award service connection. Furthermore, while a July 2016 VA examiner offered an adequate opinion that the Veteran's diabetes mellitus, type II, was less likely than not proximately due to or the result of his hypertension, he appears to have inverted the standard for aggravation, i.e., finding that hypertension had aggravated by diabetes mellitus, type II, but then addressed whether hypertension had increased in severity beyond its baseline. Accordingly, a new VA medical opinion addressing whether there is evidence of aggravation is required. Barr, supra. 4. Entitlement to service connection for peripheral neuropathy of the left lower extremity, claimed as secondary to diabetes mellitus, type II, and/or a low back disorder. 5. Entitlement to service connection for peripheral neuropathy of the right lower extremity, claimed as secondary to diabetes mellitus, type II, and/or a low back disorder As the Veteran asserts that his peripheral neuropathy of the bilateral lower extremities is secondary to his diabetes mellitus, type II, and/or low back disorder, and the claims for service connection for such disorders are remanded herein, adjudication of the former claims must be deferred pending resolution of the latter matters. See Tyrues v. Shinseki, 23 Vet. App. 166, 177 (2009) (en banc) (explaining that claims are inextricably intertwined where the adjudication of one claim could have a significant impact on the adjudication of another claim); Harris v. Derwinski, 1 Vet. App. 180, 183 (1991). The matters are REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination so as to determine the nature and etiology of his claimed low back disorder. Following a review of the record, to include this remand, and after conducting a relevant clinical examination of the Veteran, the examiner should address the following inquiries: (A) Clarify the nature of the Veteran's low back disorder in light of the conflicting diagnoses of record. (B) Indicate whether, on examination, the Veteran demonstrates an altered gait, or other disturbance in weight bearing, as a result of his service-connected left ankle disorder. (C) For each diagnosed low back disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such had its onset in, or is otherwise related to, the Veteran's military service, to include the cumulative strain resulting from his approximate 13 years of active duty, during which his duties required repetitive heavy lifting. (D) For each diagnosed low back disorder, offer an opinion as to whether it is at least as likely as not (i.e., a 50 percent or greater probability) that such is caused or aggravated by the Veteran's service-connected left ankle disability, including as a result of any an altered gait, or other disturbance in weight bearing, found on examination. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. 2. Forward the record, to include a copy of this remand, to an appropriate VA examiner for an addendum opinion addressing the etiology of the Veteran's diabetes mellitus, type II. Following a review of the record, the examiner should offer an opinion as to whether the Veteran's diabetes mellitus, type II, is aggravated by his service-connected hypertension. For any aggravation found, the examiner should state, to the best of their ability, the baseline of symptomatology and the amount, quantified if possible, of aggravation beyond the baseline symptomatology. A rationale for any opinion offered should be provided. A. JAEGER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board N. Northcutt, 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.