Citation Nr: 21030611 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 18-02 029 DATE: May 19, 2021 ORDER Entitlement to service connection for depression is dismissed. Entitlement to a 10 percent rating, but not higher, for hypertension, from March 14, 2013, but not earlier, is granted. REMANDED Entitlement to a compensable rating for bilateral pinguecula and right eye pterygium is remanded. FINDINGS OF FACT 1. In September 2020, prior to promulgation of a decision in the appeal, the Veteran, testified at the Board hearing that he wished to withdraw from appeal the issue of entitlement to service connection for depression. 2. From March 14, 2013, the evidence is at least in equipoise as to whether the Veteran has a history of diastolic blood pressure predominantly 100 or more and requires continuous medication for blood pressure control; he also had systolic pressure predominantly 160 or more on VA examination but did not have symptoms more nearly approximating diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. CONCLUSIONS OF LAW 1. The criteria for withdrawal of the issue of entitlement to service connection for depression have been met. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. From March 14, 2013, the criteria for a 10 percent rating, but not higher, for hypertension, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.10, 4.21, 4.56, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from December 1991 to February 1998. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a June 2014 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO). In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript is of record. Withdrawal of Appeal The Board may dismiss any appeal which does not allege specific error of fact or law in the determination being appealed. 38 U.S.C. § 7105. An appeal may be withdrawn as to any or all issues involved in the appeal and may be made by the appellant or the authorized representative. 38 C.F.R. § 19.55(a). Unlike 38 C.F.R. § 20.204, its predecessor regulation, 38 C.F.R. § 19.55 does not have a provision explicitly providing for withdrawal of an appeal on the record at a hearing. With regard to such oral withdrawals, "withdrawal of a claim is only effective where the withdrawal is explicit, unambiguous, and done with a full understanding of the consequences of such action on the part of the claimant." Delisio v. Shinseki, 25 Vet. App. 45, 57 (2011). A Board determination that a claimant withdrew his appeal must include a "finding regarding whether [the appellant] understood the consequences of withdrawing his claims," Acree v. O'Rourke, 891 F.3d 1009, 1015 (Fed. Cir. 2018). In this case, at the beginning of the September 2020 Board hearing, the undersigned asked the Veteran if he understood that he withdrew his appeal, he could change his mind and file a new claim but that he would have to start over from the beginning and if benefits were eventually awarded, they would not be awarded as far back as they would have had he not withdrawn the appeal. Hearing Transcript, at 3. The Veteran indicated that he understood. Id. Thus, the Veteran's withdrawal was explicit, unambiguous, and done with a full understanding of the consequences. Moreover, even in the absence of explicit language allowing for withdrawal of an appeal, there is no prohibition against such withdrawal and in this case the Veteran and his attorney expressed a desire to withdraw the appeal from the denial of the claim for service connection for depression. Dismissal of this appeal is therefore appropriate in these circumstances. Therefore, the Veteran has withdrawn his appeal from the denial of the claim for service connection for depression and there remain no allegations of errors of fact or law for appellate consideration with regard to this claim. Accordingly, the Board does not have jurisdiction to review the appeal of that claim, and the appeal is dismissed. Increased Rating Disability ratings are determined by the application of VA's Schedule for Rating Disabilities, which is based on average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran's entire history is to be considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A claimant may experience multiple distinct degrees of disability that may result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The following analysis is undertaken with consideration of the possibility that different ratings may be warranted for different time periods. The rating of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. That does not preclude the assignment of separate ratings for separate and distinct symptomatology where none of the symptomatology justifying a rating under one diagnostic code is duplicative of or overlapping with the symptomatology justifying a rating under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259 (1994). 1. Entitlement to an increased rating for hypertension The Veteran's hypertension was rated noncompensable prior to March 14, 2013, and 10 percent disabling as of March 14, 2013, under 38 C.F.R. § 4.104, Diagnostic Code 7101 as hypertensive vascular disease. Under Diagnostic Code 7101, the following ratings apply: a 10 percent rating is warranted when diastolic pressure is predominantly 100 or more or when systolic pressure is predominantly 160 or more, or 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 systolic pressure is predominantly 200 or more; a 40 percent rating is warranted when diastolic pressure is predominantly 120 or more; and a 60 percent rating is warranted when diastolic pressure is predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Predominantly means for the most part or mainly. See Merriam-Webster Dictionary, https://www.merriam-webster.com/dictionary/predominantly (2020). Considering the pertinent evidence in light of the applicable rating criteria and considerations, the Board finds, for the following reasons, that the evidence is at least in equipoise as to whether the Veteran's hypertension has more closely approximated the criteria for a 10 percent rating during the entire claim period. At the outset, the Board acknowledges that the Veteran was most recently afforded a VA examination to assess the severity of his hypertension in October 2017. The October 2017 examination provided the findings necessary to properly rate the Veteran's disability based upon an in-person examination, he has not reported any changes in his hypertension since that time, and the record does not otherwise suggest any changes. Palczewski v. Nicholson, 21 Vet. App. 174 (2007) (mere passage of time does not trigger need for a new VA examination, absent evidence of a change in the disability). Thus, a new VA examination for his hypertension need not be conducted merely due to the passage of time since the last examination. The Veteran's claim for an increased rating for hypertension was received on March 14, 2013. At the February 2014 VA examination, the Veteran reported that the condition has worsened since its onset in 1997, required increased medication, and that the condition was currently stable. On examination, blood pressure readings were 132/88, 128/88, and 130/86. His treatment plan for hypertension included taking continuous medication. The Veteran did not have any scars related to his hypertension and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The disability did not impact the Veteran's ability to work. At the October 2017 VA examination, the Veteran's treatment plan for hypertension included taking continuous medication. On examination, blood pressure readings were 160/100, 162/100, 158/100. The Veteran did not have any scars related to his hypertension and there were no other pertinent physical findings, complications, conditions, signs, or symptoms. The disability did not impact the Veteran's ability to work. At the September 2020 Board hearing, the Veteran testified that throughout the appeal his hypertension required medication, and manifested with fluctuating blood pressure, headaches, and chest pain. VA and private medical records show continuous use of lisinopril and metoprolol throughout the appeal period. Blood pressure readings predominantly showed systolic readings below 160 and diastolic readings below 100. The above evidence reflects that from March 14, 2013, the Veteran has required continuous medication for control of his blood pressure and the October 2017 VA examination report contains systolic blood pressure readings that are predominantly, i.e., two-thirds, 160 or more. Thus, the evidence reflects systolic pressure 160 or predominantly 160 or more as well as a history of diastolic pressure 100 or more requiring continuous medication for control. Moreover, there is no indication that the Veteran's blood pressure readings or hypertension symptoms suddenly got worse on a particular date during the appeal period. Swain v. McDonald, 27 Vet. App. 219, 224 (2015) (an "effective date should not be assigned mechanically based on the date of a diagnosis. Rather, all of the facts should be examined"). As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, a 10 percent rating for hypertension under Diagnostic Code 7101 is warranted from the March 14, 2013 date of claim. The Board also finds, however, that a rating higher than 10 percent is not warranted at any time during the appeal period. The Veteran's blood pressure readings have for the most part or mainly been well below diastolic pressure of 110 and well below systolic pressure of 200. Thus, the symptoms of the Veteran's hypertension do not meet or approximate the criteria for a rating in excess of 10 percent under Diagnostic Code 7101 at any time during the claim period. Therefore, a 10 percent rating, but not higher, for hypertension is warranted for the entire appeal period. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.7, 4.104, Diagnostic Code 7101. REASONS FOR REMAND 1. Entitlement to a compensable rating for bilateral pinguecula and right eye pterygium is remanded. The Veteran has attended two VA eye examinations. At the February 2014 VA and October 2017 VA eye examinations, the same examiner found that the Veteran had a visual field defect. While both eye charts indicated a partial loss of the visual field, the examination reports did not include any corresponding findings. The accompanying eye charts showed the Veteran's visual field, but did not identify any measurements or meridians. In addition, the examiner did not report the measurements in the examination reports. The Board also notes that the visual field exceeded the normal degree measurements on the February 2014 VA examination for the left eye at down nasally and nasally, and for the right eye at down nasally. The October 2017 VA examination eye charts also exceeded the normal degree measurements for the left eye at down nasally and nasally, and for the right eye at down nasally, nasally, up nasally, and up temporally. As such, the Board finds the report incomplete. On remand, a new examination should be obtained with the eye chart measurements to assess any loss of the visual field. At the September 2020 hearing, the Veteran contended that the examiner who conducted the February 2014 and October 2017 VA examinations did not address his concerns. Specifically, the examiner found that the Veteran's eyesight or visual acuity was not impaired. However, the Veteran asserts that the symptoms due to the service-connected eye disabilities interfere with his eyesight, including pain, irritation, blurry vision, dryness, itchy, and a foreign object feeling. The Board notes that the February 2014 and October 2017 VA examiner did not discuss the severity of these symptoms in the examination reports. The matters are REMANDED for the following action: 1. Obtain the Veteran's VA treatment records for the period from September 2019 to the present. 2. Schedule the Veteran for a VA eye examination with an examiner who has not previously examined him to determine the current severity of the Veteran's service-connected eye disabilities. The examiner must review the claims file and should note that review in the report. Any and all studies or tests deemed necessary should be performed. Visual field testing results must be included. The examiner should describe the nature and severity of all manifestations of the Veteran's eye disability, to specifically include symptoms of pain, irritation, blurry vision, dryness, itchy, and a foreign object feeling. The examiner should also comment on the functional impairment resulting from the Veteran's eye disability. If for any reason the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so. The examiner should provide information to allow application of all applicable rating criteria during the appeal period, including the versions of the eye rating criteria effective prior to and as of May 13, 2018. Jonathan Hager Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Kass, 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.