Citation Nr: 21032079 Decision Date: 05/25/21 Archive Date: 05/25/21 DOCKET NO. 18-19 986 DATE: May 25, 2021 ORDER Entitlement to a compensable initial rating for hypertension is denied. REMANDED Entitlement to service connection for a right shoulder disability is remanded. Entitlement to service connection for a left shoulder disability is remanded. Entitlement to service connection for a sinus disability is remanded. Entitlement to service connection for sleep apnea is remanded. Entitlement to service connection for sleep disturbances associated with sleep apnea is remanded. FINDING OF FACT During the appeal period, the Veteran's hypertension did not manifest in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Additionally, the Veteran did not both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. . CONCLUSION OF LAW The criteria for entitlement to a compensable initial rating for hypertension have not been met. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from October 1985 to October 1988, from July 2003 to January 2004, and from January 2008 to January 2011. In September 2020, the Veteran testified at a hearing before the undersigned Veterans Law Judge. A transcript of the hearing is associated with the record. Following issuance of the statement of the case in April 2018, additional relevant evidence, to include VA treatment records, was associated with the record. In a May 2021 statement, the Veteran's representative waived initial consideration of the evidence by the agency of original jurisdiction. Accordingly, the Board may proceed with appellate consideration and accepts the additional evidence for inclusion in the record on appeal. See 38 C.F.R. § 20.1305(c). Neither the Veteran nor his representative has raised any issues with regard to the duty to notify or duty to assist as they pertain to the issues denied in this decision. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). The analysis in this decision focuses on the most relevant evidence and on what the evidence shows or does not show with respect to the issues denied in this decision. The Veteran should not assume that evidence that is not explicitly discussed in the decision has been overlooked. See Timberlake v. Gober, 14 Vet. App. 122 (2000) (noting that the law requires only that reasons for rejecting evidence favorable to the claimant be addressed). Entitlement to a compensable initial rating for hypertension The Veteran seeks a compensable initial rating for hypertension. The applicable rating period is from September 28, 2014, the effective date for the award of service connection for that disability, through the present. See 38 C.F.R. § 3.400. The Veteran asserted at the September 2020 Board hearing that a compensable rating is warranted because his blood pressure is controlled by medications, and if he were to stop taking his medications his blood pressure readings would be higher. However, he has been advised by his doctor not to stop taking his medications. He stated, "It's under control. But we ... basically we can't show the VA that your blood pressure can be higher than over 100". Disability ratings are determined by the application of VA's Schedule for Rating Disabilities (Schedule), which is based on the average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Pertinent regulations do not require that all cases show all findings specified by the Schedule, but that findings sufficient to identify the disease and the resulting disability and, above all, coordination of the rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21; see also Mauerhan v. Principi, 16 Vet. App. 436 (2002). When after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability such doubt will be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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. The Board will consider whether separate ratings may be assigned for separate periods of time based on facts found, a practice known as "staged ratings," in all claims for increased ratings. Fenderson v. West, 12 Vet. App. 119, 126-27 (1999). Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). 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 a history of diastolic pressure predominantly 100 or more and requiring continuous medication for control. Higher ratings are warranted for higher predominant diastolic and/or systolic pressure readings. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. The Board concludes that a compensable initial rating is not warranted for the Veteran's hypertension because although he requires continuous medication for control of his blood pressure, he has not had blood pressure predominantly in the ranges required for a compensable rating and the record does not show that he has a history of diastolic pressure predominantly 100 or more. Specifically, there are many blood pressure readings of records, both during and prior to the relevant rating period. Among the blood pressure readings of record, none include a systolic pressure of 160 or more. In addition, there are many readings with a diastolic pressure in the 80s or 90s, including a reading of 150/99 in March 2009, but only one reading with a diastolic pressure of 100 or greater. That reading was 136/102 and was taken in May 2009. The single diastolic reading of 100 or greater among the long recorded history of blood pressure readings does not establish that the Veteran has a history in which diastolic pressure readings of 100 or greater are most frequent or common. Therefore, the record does not show that the Veteran has a history of diastolic pressure predominantly 100 or more that, in combination with his required continuous use of medications for control, would warrant a 10 percent rating under Diagnostic Code 7101. The Board has considered the Veteran's assertions that his medications keep his blood pressure ratings within the noncompensable ranges and that he would have blood pressure readings that meet the criteria for a compensable initial rating if he were to stop using his medications. However, Diagnostic Code 7101 contemplates the ameliorative effects of medications. As such, those effects may be considered in rating a veteran's hypertension. Jones v. Shinseki, 26 Vet. App. 56 (2012). Therefore, in rating hypertension under Diagnostic Code 7101, the Board may consider blood pressure readings taken while a veteran is using medications. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). Under Diagnostic Code 7101, hypertension is rated based on actual blood pressure readings. The diagnostic code does not include any criteria, mechanism, or method for rating hypertension based on blood pressure readings that would be expected if a veteran were to stop taking medications. Accordingly, Board has based its decision on the blood pressure readings of record. The Board therefore finds that the criteria for entitlement to a compensable initial rating for hypertension have not been met at any time during the rating period. Accordingly, there is no basis for staged rating of the Veteran's hypertension pursuant to Fenderson, 12 Vet. App. at 126-27. As the preponderance of the evidence is against the assignment of a compensable initial rating, the doctrine of reasonable doubt is not for application, and the appeal must be denied. 38 U.S.C. § 5107(b); see also Gilbert v. Derwinski, 1 Vet. App. 49 (1990). REASONS FOR REMAND 1. Entitlement to service connection for a right shoulder disability is remanded. 2. Entitlement to service connection for a left shoulder disability is remanded. The Veteran seeks entitlement to service connection for right and left shoulder disabilities, which he contends are due to in-service parachute jumps and other strenuous activities, including carrying heavy packs on long marches and performing heavy lifting. In March 2018, a VA examiner opined that the Veteran's right and left shoulder disabilities were less likely than not incurred in or caused by an in-service injury, event, or illness because the findings on X-ray are consistent process over time. The examiner acknowledged the Veteran's receipt of the parachutist badge, but stated, "There is no mention of the number of jumps he actually participated in." The examiner further stated that he did not find any mention of shoulder complaints in the service treatment records or medical treatment records dating during the Veteran's periods of active service. The Board finds the March 2018 VA opinion to be inadequate for decision-making purposes because the examiner relied heavily on a lack of in-service treatment and complaints, did not discuss the possibility that the current right and left shoulder disabilities may be the delayed result of the in-service parachute jumps and other strenuous activities, and did not discuss the Veteran's in-service strenuous activities other than parachute jumps. In addition, a parachute jump record documenting the Veteran's in-service parachute jumps was received subsequent to the March 2018 VA opinion. The March 2018 VA opinion suggests that the number and frequency of in-service parachute jumps is a relevant factor in determining whether the current right and left shoulder disabilities may be related to those jumps. Therefore, the Board finds that the issues must be remanded for an addendum opinion that considers all theories of entitlement and the additional evidence added to the record since the March 2018 VA opinion. Barr v. Nicholson, 21 Vet. App. 303, 312 (2007). 3. Entitlement to service connection for a sinus disability is remanded. The Veteran seeks entitlement to service connection for a sinus disability, which he contends is related to in-service exposure exhaust, fumes, and sand or dust or was caused by having his wisdom teeth removed during his first period of active service. The record shows that the Veteran reported a history of allergies to a private physician in October 2000. In March 2001, he reported increased allergy symptoms due to recently bringing a cat into his home and performing spring cleaning. In October 2002, he underwent a submucosal resection to address his sinus symptoms. The Veteran noted his history of rhinoplasty on a medical review form he completed in June 2003. On a January 2004 post-deployment health assessment, the Veteran indicated he was exposed to exhaust fumes, tent heater smoke, JP8 or other fuels, industrial pollution, and sand/dust during his deployment to Uzbekistan, but he denied cough, runny nose, or other sinus symptoms. He testified at the September 2020 Board hearing that he did not begin having sinus problems until after he had his wisdom teeth removed during his first period of active service, and that he had read that removal of the wisdom teeth can cause sinus issues if there is an injury to the membrane during the procedure. The Veteran was afforded a VA examination in April 2016 to address his claim. He told the examiner that he began having trouble breathing through his nostrils in 2000, that he had surgery to address a deviated nasal septum, and that his nasal symptoms have progressed over time. The VA examiner opined that the diagnosed sinus disability was less likely than not incurred in or caused by an in-service injury, event, or illness. However, the only rationale she provided for that opinion was, "The veteran does not have any complaint of sinusitis at all, and his complaints of rhinitis do not have any evidence in the records that I could find." The opinion does not address whether the Veteran's diagnosed sinus disability may be related to the in-service procedure to remove the Veteran's wisdom teeth, or whether the disability may have been caused by exposures the Veteran had while deployed to Egypt during his first period of active service or aggravated by exposures he had while deployed to Uzbekistan during his second period of active service. Therefore, the opinion is inadequate for decision-making purposes, and the issue must be remanded for an addendum opinion. Barr, 21 Vet. App. at 312. 4. Entitlement to service connection for sleep apnea is remanded. 5. Entitlement to service connection for sleep disturbances associated with sleep apnea is remanded. The record shows that the Veteran presented with complaints of snoring, apneas, and daytime sleepiness in June 2018 and was diagnosed with obstructive sleep apnea through a sleep study conducted in July 2018. At the September 2020 Board hearing, the Veteran testified that he was diagnosed with sleep apnea "within the last year" but that he believed his hypertension was caused by his sleep apnea and, therefore, that his sleep apnea may have been present much earlier when he was first diagnosed with hypertension. In December 2020, the Veteran submitted an opinion from M. M., D.O., stating that it is at least as likely as not that the Veteran developed obstructive sleep apnea long before he underwent a submucosal resection of the turbinates in 2002, "extending back to periods of active service between 1985 an[d] 1988 and subsequently between 2003 and 2004, periods of time when exposure to environmental irritants as a result of Army deployments was likely." As a rationale for that opinion, Dr. M. noted the Veteran's report that his wife noticed he snored significantly and had apneic episodes soon after they married in 2008. In addition, the Veteran had "deployments to austere settings in Egypt, Central America (1985-1988) and Uzbekistan (2003-2004) where there was exposure to fumes emitted by electrical generators, aircraft and other sources." Dr. M also noted the Veteran's history of chronic upper airway congestion dating prior to 2002 and stated, "It is plausible that environmental exposures encountered while on active duty at least contributed to this condition" and that "there exists a consideration" that the Veteran's hypertension diagnosed in 2011 "could be essential hypertension, based on his family history of hypertension, or secondary hypertension, as a complication of long standing" obstructive sleep apnea. The Board concludes that Dr. M.'s December 2020 opinion is not probative because it is speculative, equivocal, and based on information inconsistent with the evidence of record. Specifically, Dr. M. states only that it is "plausible" that environmental exposures during the Veteran's first two periods of active service "at least contributed" to his obstructive sleep apnea. In addition, he states that the Veteran had service in Central America during his first period of active service, but the Veteran's service personnel records show that his overseas service during that period of active service was only on the Sinai peninsula of Egypt. Finally, Dr. M. references the Veteran's wife noticing symptoms of obstructive sleep apnea shortly after their marriage in 2008. However, the Veteran has reported to VA that he married in December 1999, divorced in August 2009, and remarried in March 2013. The Board notes also that, although Dr. M references reviewing the Veteran's medical history including some records dating during his periods of active service, it is unclear whether Dr. M reviewed the full record before rendering his opinion. As such, the Board cannot rely on Dr. M.'s opinion to make a decision as to this issue. However, Dr. M.'s opinion does provide an indication that the Veteran's obstructive sleep apnea may be etiologically related to his active service, to include exposures to fumes and environmental substances while deployed to Egypt and Uzbekistan or that the diagnosis of hypertension may indicate that the Veteran had sleep apnea during his active service. Therefore, the issue must be remanded so that the Veteran may be provided a VA examination. See 38 U.S.C. § 5103A(d)(2); 38 C.F.R. § 3.159(c)(4)(i); McLendon v. Nicholson, 20 Vet. App. 79, 81 (2006). The matters are REMANDED for the following action: 1. Obtain an addendum opinion from an appropriate clinician regarding whether the Veteran's right and left shoulder disabilities are at least as likely as not (50 percent probability or greater) related to his in-service parachute jumps and other strenuous activities, including carrying heavy packs on long marches and performing heavy lifting. The opinion must reflect consideration of the parachute jump record that documents the number and frequency of jumps the Veteran performed during his first period of active service. The examiner must discuss whether the current right and left shoulder disabilities may be the delayed result of the in-service parachute jumps and other strenuous activities as opposed to other factors, such as the Veteran's history of employment as a corrections officer. In considering those assertions, the clinician must note that a lack of contemporaneous medical evidence does not, in and of itself, render lay evidence not credible, but may be considered in conjunction with other factors in determining the credibility of lay evidence. See Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006). 2. Obtain an addendum opinion from an appropriate clinician regarding whether any diagnosed sinus disability is at least as likely as not (50 percent probability or greater) related to the in-service procedure to remove the Veteran's wisdom teeth, or whether it is at least as likely as not that the disability may have been caused by exposures the Veteran had while deployed to Egypt during his first period of active service or aggravated by exposures he had while deployed to Uzbekistan during his second period of active service. 3. Schedule the Veteran for a VA examination for his claimed sleep apnea with associated sleep disturbances. The examiner must review the claims file. The examiner is asked to provide a response to the following: Is it at least as likely as not (50 percent probability or greater) that the Veteran's sleep apnea with associated sleep disturbances is related to his active service, including exposures the Veteran had while deployed to Egypt during his first period of active service and while deployed to Uzbekistan during his second period of active service? The opinion must address the December 2020 opinion from M. M., D.O., including Dr. M.'s suggestion that the Veteran's hypertension diagnosed in 2011 was caused by his sleep apnea, which suggests that the sleep apnea was present during the Veteran's third period of active service. MICHAEL MARTIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T. J. Anthony, 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.