Citation Nr: 21030821 Decision Date: 05/19/21 Archive Date: 05/19/21 DOCKET NO. 11-32 290 DATE: May 19, 2021 ORDER Entitlement to a rating in excess of 10 percent for the period of September 1, 2008, to November 12, 2019, is denied. From November 13, 2019, entitlement to an evaluation of 20 percent, but no higher, for service-connected hypertension is granted, subject to the law and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. From September 1, 2008, to November 12, 2019, the Veteran's was manifested by a history of diastolic pressure predominantly 100 or more and required continuous medication for control. 2. From November 13, 2019, the Veteran's hypertension has been manifested by findings of diastolic pressure predominantly 110 or more. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 10 percent for the period of September 1, 2008, to November 12, 2019, for service-connected hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. 2. From November 13, 2019, the criteria for an evaluation of 20 percent, but no higher, for service-connected hypertension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active service from June 1987 to July 1987 and from March 1988 to August 2008. This matter comes before the Board of Veterans' Appeals (Board) from an April 2009 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Columbia, South Carolina. The claim was previously before the Board in June 2016 at which time it was remanded. This matter was again before the Board in December 2017 at which time the Board denied the claim. The Veteran appealed to the United States of Appeal for Veteran's Claims (Court) in September 2018. The Court issued an Order that granted the parties' Joint Motion for Partial Remand (JMPR). In the JMPR, the parties agreed that the Board erred in failing to obtain records scanned to VISTA imaging from October 30, 2013, and October 3, 2014. The parties stated that the duty to assist requires that the Secretary make reasonable efforts to obtain a claimant's records from a Federal department or agency unless it is reasonably certain that such records do not exist or that further efforts to obtain those record would be futile. 38 U.S.C. § 5103A(c); 38 C.F.R. § 3.159(c)(2). This matter was again before the Board in April 2019 at which time it was remanded. This matter was again before the Board in March 2021 at which time the Board remanded the issue of entitlement to a disability rating in excess of 10 percent for hypertension. Increased Rating Disability evaluations are based upon VA's Schedule for Rating Disabilities as set forth in 38 C.F.R. Part 4 (2017). The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. The disability must be viewed in relation to its history. 38 C.F.R. § 4.1. A higher evaluation shall be assigned where the disability picture more nearly approximates the criteria for the next higher evaluation. 38 C.F.R. § 4.7. In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, consideration also must be given as to whether staged ratings should be assigned to reflect entitlement to a higher rating at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). 1. Entitlement to a rating in excess of 10 percent for the period of September 1, 2008, to November 12, 2019 An April 2009 rating decision granted service connection for hypertension effective September 1, 2008 and assigned a 0 percent evaluation. Service treatment records indicated that the Veteran was diagnosed with essential hypertension and placed on medication while on active service. The Veteran did not report to a VA examination that was scheduled and provided good cause. However, he did not reschedule the examination despite being contacted. The RO noted that his failure to report to a VA examination resulted in an inability to determine the current level of disability. A November 2011 rating decision granted entitlement to an evaluation of 10 percent for service-connected hypertension effective September 1, 2008, based on diastolic pressure predominantly 100 or more; and a history of diastolic pressure predominantly 100 or more and there is a requirement for continuous medication for control. The Veteran first attended a VA examination for hypertension in February 2013. The Veteran is seeking an evaluation in excess of 10 percent for service-connected hypertension. Pursuant to Diagnostic Code 7101, a 10 percent rating is warranted 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 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 predominantly 120 or more, and the maximum schedular rating of 60 percent is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes that "predominantly" is not defined in the Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. A February 2013 VA examination noted the Veteran's blood pressure readings as 126/80; 138/80 and 130/80. VA treatment records document the following blood pressure readings (in mmHg): 141/94 (09/12/13); 136/88, 141/88(11/13/2013); 132/90 (03/06/2014); 110/69 (06/02/2014); 127/79 (06/09/14); 145/94 (07/14/2014); 113/71, 145/94; 102/58 (09/29/14); (10/03/14); 118/87 (11/17/2014); 137/79 (11/25/2014); 108/64 (04/29/15); 172/112, 166/106, 168/106 (03/20/17); 166/110, 178/110, 142/98, 178/126(04/12/2017); 159/107,164/109,151/91, 156/92(04/20/17); 139/87 (05/04/17); 130/87, 143/83(09/13/17); 136/88 (09/21/2017); 127/86 (10/04/17); 134/82 (06/19/18); 136/86 (10/16/18); 144/89 (01/14/19); 149/87 (07/01/19).. A March 2017 VA examination noted blood pressure readings of 172/112, 166/106, and 169/106. The examiner indicated the Veteran's treatment plan included taking continuous medication for hypertension. The evidence indicates that from September 1, 2008, to November 12, 2019, the Veteran had a history of diastolic pressure predominantly 100 or more and required continuous medication for control, meeting the criteria for a 10 percent evaluation. The Board finds that the evidence does not indicate blood pressure readings predominantly 110 or more to entitle the Veteran to a 20 percent rating for this time period. A 40 percent rating for service-connected hypertension is not warranted as the Veteran's diastolic pressure readings at no time during this time period have been predominantly 120 or more. A rating of 60 percent for service-connected hypertension is not warranted as the Veteran's diastolic pressure readings at no time during this time period have been predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. 2. Entitlement to an evaluation in excess of 10 percent for service-connected hypertension from November 13, 2019 The Veteran is seeking an evaluation in excess of 10 percent for service-connected hypertension. Pursuant to Diagnostic Code 7101, a 10 percent rating is warranted 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 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 predominantly 120 or more, and the maximum schedular rating of 60 percent is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes that "predominantly" is not defined in the Schedule for Rating Disabilities. Rather than applying a mechanical formula, the Board must evaluate all the evidence, to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. All evidence must be evaluated in arriving at a decision regarding an increased rating. 38 C.F.R. §§ 4.2, 4.6. The record contains numerous blood pressure readings over the appeal period in the Veteran's VA and private treatment records. The Veteran requires prescription medication for management of his blood pressure. The record reflects that the Veteran's hypertension is not well-controlled on medication. In its March 2021 remand decision, the Board found that treatment records document the following blood pressure readings (in mmHg): 141/94 (09/12/13); 136/88, 141/88(11/13/2013); 132/90 (03/06/2014); 110/69 (06/02/2014); 127/79 (06/09/14); 145/94 (07/14/2014); 113/71, 145/94; 102/58 (09/29/14); (10/03/14); 118/87 (11/17/2014); 137/79 (11/25/2014); 108/64 (04/29/15); 172/112, 166/106, 168/106 (03/20/17); 166/110, 178/110, 142/98, 178/126(04/12/2017); 159/107,164/109,151/91, 156/92(04/20/17); 139/87 (05/04/17); 130/87, 143/83(09/13/17); 136/88 (09/21/2017); 127/86 (10/04/17); 134/82 (06/19/18); 136/86 (10/16/18); 144/89 (01/14/19); 149/87 (07/01/19); 148/100 & 160/96(11/12/19); 150/90 (11/27/2019); 155/87 (12/10/19); 124/84 (12/23/19); 122/78 (02/25/20); and, 122/78 (03/23/20). The Board noted that during a March 2017 VA examination, the Veteran reported he was on several medications with fluctuating blood pressure readings. It was indicated that the Veteran takes continuous medication for hypertension. The examiner stated that the Veteran did not have a history of diastolic blood pressure readings predominantly 100 or more. Blood pressure readings during the March 2017 examination were 172/112, 166/106, and 168/106. The Board further noted that a May 2018 treatment record reflects a blood pressure reading of 158/108, and a February 2019 treatment record reflects a blood pressure reading of 128/88. In support of his claim, the Veteran submitted a blood pressure log from November 2019, which reflects diastolic pressure ranging from 111 to 127 and systolic pressure ranging from 174 to 207. The Board remanded, finding that in light of the Veteran's reported blood pressure readings, the Veteran was entitled to an examination to assess the severity of his hypertension. The Board directed that the examiner consider the Veteran's November 2019 blood pressure readings. The Veteran was afforded a VA examination in March 2021. The examiner noted that the onset of the Veteran's hypertension was approximately 1998. The Veteran reported that since the onset, the condition remains the same; the Veteran continues to struggle to get his hypertension under control despite treatment. He is prescribed Amlodipine Besylate 5 mg daily, Carvedilol 25 mg two tablets BID, Hydralazine HCL 10 mg daily, Losartan 100 mg daily. His blood pressure readings were recorded during the examination as follows: Reading #1 153/102 Reading #2 149/102 Reading #3 156/105 As required by the Board's remand, the examiner noted that the Veteran's November 2019 blood pressure readings as documented in the Veteran's log were considered. However, she did not include those readings in the examination report thus the Board includes them here for reference: November 13 176/111 November 14 183/116 November 15 186/123 November 16 191/133 November 17 207/126 November 18 183/114 November 20 178/118 November 21 174/122 November 22 176/112 November 23 179/116 November 24 182/127 November 25 182/127 An addendum was requested and submitted in April 2021 as the examiner did not comply with the remand instructions asking her to "indicate whether during any period since September 1, 2008, his diastolic pressure has been predominantly 110 or more, predominantly 120 or more, or predominantly 130 or more; and, whether systolic pressure has been predominantly 200 or more." In the addendum, the examiner found that "At no time between 2008 and the present have diastolic blood pressure readings been predominantly higher than 110 (or higher). There were episodic elevations > 110 however not predominantly. Predominantly is defined as "mainly; for the most part." Nothing in the record shows DBP greater than 110 more than 50% of the entire recorded BPs from 2008 to present." The Board finds that the examiner failed to adequately consider the Veteran's November 2019 blood pressure log as directed in the remand and therefore did not consider evidence that is favorable to the Veteran. Thompson v. Gober, 14 Vet. App. 187, 188 (2000). Further, in effect, the examiner defined the word "predominantly" whereas as previously stated, the word is not defined in the Schedule for Rating Disabilities and therefore, rather than applying a mechanical formula, the Board must evaluate all the evidence to the end that its decisions are equitable and just. 38 C.F.R. § 4.6. The Board notes that the Veteran was asked by his doctors to keep a log of his blood pressure readings at home. As these readings are used to assist medical personnel in treating the Veteran's hypertension, the Board finds that they constitute competent and credible evidence of his hypertension disability. The Board finds the November 2019 blood pressure log highly probative as it provides readings over the course of several days and was requested as part of the Veteran's medical care. No other readings of record were taken over the course of several days but were rather isolated. In addition, the record indicates that the Veteran's hypertension is not adequately controlled by medication and therefore readings fluctuate. The Board further notes that recent medical records dated March 31, 2021, and April 6, 2021, indicate that the Veteran has uncontrolled hypertension and that the medication the Veteran takes in order to control his blood pressure may be causing syncope episodes. Two episodes were reported to medical personnel, one in January 2021 and one in March 2021 that caused injury. This resulted in the Veteran's doctors changing the timing of the dosage of his blood pressure medication to attempt to gain more stable control of the Veteran's hypertension. The Veteran was also told to take daily blood pressure readings, record them, and message them to medical personnel every few days. The Veteran reported that his blood pressure readings were 183/130; 173/120; and 162/112 at the time of the March 2021 episode. The Board notes that Diagnostic Code 7101 contemplates the use of medication to control hypertension, therefore the schedular criteria is adequate to address the Veteran's hypertension and medication taken therefore. That said, the fact that the Veteran's blood pressure is described as uncontrolled with medication and therefore fluctuates must factor into the analysis to determine the appropriate schedular rating. The Veteran has had a multitude of blood pressure readings during the course of this appeal. The Board finds that applying a mechanical formula in this case would not result in an equitable and just decision, rather the Board has evaluated all the evidence. 38 C.F.R. § 4.6. While the RO attempted to quantify the Veteran's blood pressure readings and concluded that nothing in the record shows "diastolic blood pressure greater than 110 more than 50% of the entire recorded blood pressures from 2008 to the present," the RO apparently defined "predominantly" as "more than 50 percent." However, again, "predominantly" is not defined in the rating criteria and the Board is not bound by the "more than 50 percent" definition. In any event, not all of the readings were included in the RO's determination. While recognizing the impracticability of including every blood pressure reading since 2008 in the analysis, the Board notes that without doing so, it cannot be mechanically, or mathematically, determined whether the Veteran's blood pressure readings were predominantly 110 or higher or not. As such, in this case, a determination whether the Veteran's blood pressure readings were predominantly 110 or higher is a matter for the Board to decide based on all of the evidence of record. As the Veteran's blood pressure is described by medical personnel as uncontrolled with medication, and fluctuating, isolated readings are unreliable. In addition, the Veteran, per doctor's orders, kept a log of his blood pressure readings from November 13, 2019, to November 25, 2019 which constitutes competent and credible evidence that the Veteran's blood pressure readings since that date were predominantly higher than 110. Thus, a rating of 20 percent, but no higher, is warranted from November 13, 2019. 38 C.F.R. § 4.104, Diagnostic Code 7101. A 40 percent rating for service-connected hypertension is not warranted as the Veteran's diastolic pressure readings at no time since November 13, 2019, have been predominantly 120 or more. A rating of 60 percent for service-connected hypertension is not warranted as the Veteran's diastolic pressure readings at no time since November 13, 2019, have been predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. Michael J. Skaltsounis Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Debra B. McLoughlin, 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.