Citation Nr: 21029303 Decision Date: 05/13/21 Archive Date: 05/13/21 DOCKET NO. 16-21 940 DATE: May 13, 2021 ORDER Entitlement to an initial 10 percent rating for hypertension, but no higher, is granted. FINDING OF FACT The Veteran's hypertension has been manifested by a history of diastolic pressure 100 or more and the need for continuous medication for control without diastolic pressure that was predominantly 110 or more or systolic pressure that was predominantly 200 or more. CONCLUSION OF LAW The criteria for entitlement to an initial 10 percent rating for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.14.14, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active duty service from September 1988 to December 1994. These matters come before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued January 2016. In March 2020, the Veteran testified before the undersigned Veterans Law Judge at a video conference hearing. A hearing transcript has been associated with the record. In April 2020, the Board remanded the instant appeal as well as a claim for service connection for a left knee disorder for additional development. Specifically, the Board instructed that updated VA treatment records and relevant private treatment records be obtained. Updated VA treatment records have been associated with the record and the Veteran was asked to complete an appropriate authorization form to allow VA to obtain treatment records on his behalf. The Veteran submitted additional private treatment records on his own behalf in February 2021. The Board therefore determines that there has been substantial compliance with its previous remand. A January 2021 rating decision granted the Veteran's claim for service connection for left knee chondromalacia of the patella and assigned an initial rating. As this decision represents a full grant of the benefits sought with respect to this claim for service connection, such issue is no longer before the Board for consideration. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1977). The Board notes that, subsequent to the January 2015 supplemental statement of the case, the Veteran submitted additional evidence in support of his appeals, to include private treatment records. As the Veteran's substantive appeal was received in May 2016 and Agency of Original Jurisdiction (AOJ) consideration of this evidence has not been explicitly requested, a waiver of AOJ consideration is not necessary. See Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Public Law (PL) 112-154, section 501. Therefore, the Board may properly consider such newly received evidence. 38 C.F.R. § 20.1304. Finally, the Board notes that the Veteran submitted a completed authorization form to allow VA to obtain treatment records from a private provider in February 2021. However, the listed dates for treatment from this private provider were from 1998 to 2004, a time frame which predates the instant appeal period by more than a decade. As a remand for such records would serve no purpose other than to delay adjudication of the Veteran's claim, the Board will proceed to adjudicating this matter. See Soyini v. Derwinski, 1 Vet. App. 540 (1991). 1. Entitlement to an initial 10 percent rating for hypertension is granted. The Veteran contends that he is entitled to an initial compensable rating for hypertension. In a January 2021 statement, the Veteran indicated that he had been prescribed two medications for his blood pressure by his private physician, that he was not able to get any recent VA appointments due to the pandemic and that his prescribed medications lowered his blood pressure. As detailed below, the Board finds that the preponderance of the evidence supports an initial 10 percent rating, but no higher. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered because of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 appellant working or seeking work. 38 C.F.R. § 4.2. Where entitlement to compensation has 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, 58 (1994). 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. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. § 4.3. 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. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Board shall resolve reasonable doubt in favor of the claimant. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. The Veteran's hypertension is rated as noncompensable under the Diagnostic Code 7101. Under Diagnostic Code 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, systolic pressure predominantly 160 or more, or for a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure that is predominantly 120 or more; and the highest rating of 60 percent rating is assigned where diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Although the schedular criteria do not specifically outline any criteria for a noncompensable (zero percent) rating, the Board notes that a zero percent rating is assigned when the requirements for a compensable rating are not met pursuant to 38 C.F.R. § 4.3. The Board notes that the use of medications is explicitly contemplated in Diagnostic Code 7101 and that the 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 Diagnostic Code 7101 contemplates the effects of medications. McCarroll v. McDonald, 28 Vet. App. 267, 272-73 (2016). The Board also emphasizes that more than one blood pressure reading is not required for evaluation purposes for rating hypertension under VA regulations. See Gill v. Shinseki, 26 Vet. App. 386, 391 (2013) (holding that the need for a specific number of blood pressure readings over multiple days is not required for determining disability evaluation, as the need for multiple blood pressure readings pertains only to the confirmation of the existence of hypertension). Turning to the evidence of record, the Veteran's service treatment records show treatment for elevated blood pressure. In a June 1993 note, the examiner reported a blood pressure reading of 150/102. The Veteran underwent a three-day blood pressure check showing readings of 146/102 on June 30, 1993, 150/106 in July 1, 1993, and 158/112 on July 3, 1993. In a November 1994 separation examination included a blood pressure reading of 164/96. A February 2011 private treatment note showed treatment for hypertension. The examiner noted that this hypertension is reasonably well controlled and he is in medication compliance with an active prescription for atenolol. His blood pressure readings from the last three encounters were reported as 128/89 in February 2011, 126/81 in March 2010, and 135/83 in early March 2010. The Veteran underwent a VA examination in October 2015 where he was noted to have a diagnosis of hypertension. He was taking medication to control his symptoms. Upon examination, his blood pressure was taken three times and measured at 136/88, 124/86, and 133/88. The examiner found that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. During a March 2020 Board hearing, the Veteran testified that his blood pressure is usually 130s over high 80s/low 90s. Post-service private treatment records reflect blood pressure readings of 116/88 in February 2016; 128/96 in July 2016; 128/76 in October 2016; 116/88 in November 2016; 118/80 in February 2017; 118/84 in April 2017; 124/76 in May 2017; 126/68 in August 2017; 128/84 in February 2018; 130/88 in May 2018; 128/72 in December 2018; 122/94 in January 2019; 132/84 in June 2019; 140/80 in February 2020; and 136/84 in August 2020. Given the above, the Board finds that the Veteran's hypertension has been manifested by a history of diastolic pressure 100 or more with continuous medication for control. Although the VA examiner found the Veteran did require medication for control of his hypertension, the examiner noted he did not have a history of diastolic blood pressure elevation to predominantly 100 or more. Nonetheless, the Veteran's service treatment records clearly show a history of three-day blood pressure check with diastolic pressures 100 or more. Furthermore, VA examination and private treatment records show that he currently requires continuous medication for control. Accordingly, the criteria for an initial 10 percent rating under Diagnostic Code 7101 are met. However, treatment records do not show any blood pressure readings where diastolic pressure was predominantly 110 or more or systolic pressure was predominantly 200 or more. Therefore, a rating in excess of 10 percent is not warranted. The Veteran has generally asserted that without continuous medication, his hypertension may elevate to higher levels. On this issue, the Board acknowledges the Court's holding that VA may not deny entitlement to a higher rating on the basis of relief provided by medication when those effects are not specifically contemplated by the rating criteria. Jones v. Shinseki, 26 Vet. App. 56, 62 (2012). However, the Court subsequently determined that for hypertension, the plain language of Diagnostic Code 7101 contemplates the effects of medication and, thus, the Jones case is not applicable to cases involving hypertension. McCarroll v. McDonald, supra. That is, the rating criteria for hypertension already take into account the ameliorative effects of medication. Id. As such, the Board is not required to discuss the ameliorative effects of medication when evaluating whether the Veteran is entitled to a rating over 10 percent for hypertension. In assessing the severity of the hypertension, the Board has considered the competent lay assertions regarding symptoms experienced and observed. See, e.g., Layno v. Brown, 6 Vet. App. 465, 470 (1994) and Grottveit v. Brown, 5 Vet. App. 91, 93 (1993). However, the criteria needed to support higher ratings as the required medical findings that are within the province of trained medical professionals. See Jones v. Brown, 7 Vet. App. 134, 137-138 (1994). As such, the lay assertions are not considered more persuasive than the objective medical findings which, as indicated above, do not support assignment of any higher rating pursuant to any applicable criteria at any point pertinent to this appeal. The Board has also considered whether a staged rating under Hart v. Mansfield, supra, is appropriate for the Veteran's service-connected residuals of hypertension; however, the Board finds that his symptomatology referable to such disability has been stable throughout the period on appeal. The Veteran has not raised any other issues, nor have any other issues been reasonably raised by the record in regard to the increased rating claim adjudicated herein. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As a final matter, the Board acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court held that a claim for a total disability rating based on individual unemployability (TDIU) is part of an increased rating claim when such claim is raised by the record. The Board notes that the Veteran reported working full-time as a dog handler in an October 2015 VA examination and that he worked a federal agency in a September 2020 VA treatment note. Moreover, the Veteran has not asserted that a TDIU is warranted as a result of his service connected hypertension. The Board accordingly finds that a claim for TDIU is not raised by the rating issue on appeal and no further action pursuant to Rice is necessary. In sum, the weight of the evidence supports an award of a 10 percent rating but preponderates against entitlement to a rating in excess of 10 percent for hypertension. To that extent, the appeal is granted. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, supra. KRISTY L. ZADORA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. M. Donahue Boushehri, 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.