Citation Nr: 21040357 Decision Date: 07/03/21 Archive Date: 07/03/21 DOCKET NO. 16-18 998A DATE: July 3, 2021 ORDER Entitlement to an evaluation in excess of 10 percent for hypertension is denied. FINDING OF FACT The Veteran's hypertension was manifested by a history of diastolic pressure predominantly 100 or more that requires continuous medication for control. CONCLUSION OF LAW The criteria for entitlement to an evaluation in excess of 10 percent for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.10, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served active duty in the United States Army from May 1992 to August 1999. This matter comes to the Board of Veterans' Appeals (Board) on appeal of a June 2014 rating decision of the Department of Veteran Affairs (VA) Regional Office (RO). In May 2019, the Board remanded the issue on appeal for additional development, and the case has since been returned for further appellate review. A remand by the Board confers on the claimant a legal right to substantial compliance with the remand order. Stegall v. West, 11 Vet. App. 268 (1998). The Board's remand directed the RO to obtain new copies of private treatment records previously submitted by the Veteran. In a January 2020 communication, the Veteran notified the RO the records were no longer available from the original source and to cease attempts to retrieve them. He notes the records were originally submitted to Alexandria, La VA and may be part of the existing claims file. The Board's remand also instructed the RO to provide the Veteran with an in-person examination to determine the severity of his hypertension, which was provided in March 2020. Accordingly, substantial compliance was achieved and the merits of the claim are discussed below. Id. at 271. Increased Ratings Disability ratings are determined by applying a schedule of ratings 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. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Importantly, the evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14. However, when it is not possible to separate the effects of the service-connected disability from a nonservice-connected condition, such signs and symptoms must be attributed to the service-connected disability. See Mittleider v. West, 11 Vet. App. 181, 182 (1998); 38 C.F.R. § 3.102. Hypertension is rated pursuant to 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension). Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; it is the 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. The term "predominantly" 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. 1. Entitlement to an evaluation in excess of 10 percent for hypertension The Veteran did not submit a claim for an increased rating; rather, he attended a routine future examination to determine whether the current rating was appropriate. The June 2014 rating decision continued the 10 percent rating. The Veteran appealed, contending that he is entitled to a higher rating due to increased blood pressure readings and an increase of medication necessary to control his condition. In determining the present level of a disability for any increased evaluation claim, the Board must consider the application of staged ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-510 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). The relevant focus for adjudicating an increased-rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart, 21 Vet. App. at 509. Upon review of the record, and with consideration of the Veteran's contentions, the Board finds an increased rating is not warranted at this time. The Veteran's hypertension manifested in diastolic pressure predominantly 100 or more, requiring continuous medication for control, and corresponding to the criteria for a 10 percent rating under DC 7101. There is no evidence the Veteran's systolic pressure reached 200 or his diastolic pressure predominantly resulted in higher than 110 during the period on appeal. At his March 2020 VA examination, the Veteran reported taking two continuous medications for his hypertension. Three blood pressure readings showed systolic pressure ranging from 157 to 169, and diastolic pressure from 102 to 106. VA treatment throughout 2019 show systolic pressure from 125 to 152, and diastolic pressure ranging from 75 to 95 (May 125/75; June 137/95; December 152/80). VA treatment blood pressure readings throughout 2015 to 2018 show systolic pressure between 110 and 143, and 62 to 95 for diastolic pressure. At a May 2014 VA examination, results show systolic pressure under 200 mmHg and diastolic pressure under 110 mmHg (160/103, 175/103, and 175/103). Following the Veteran's claim for an increased rating, blood pressure readings were taken in October 2011 revealing 110/63, 116/64, 104/58. The Veteran contends his blood pressure readings are higher than demonstrated by VA records. The Veteran submitted 2014 readings from an occupational health screening that he believes represents an increase in his condition. However, the Board determined a new copy of the results were needed as the October 2014 submission was illegible. In January 2020, the Veteran notified the RO the record is no longer available from the original source but that it may be included in his VA treatment records. Review of Alexandria, La VA records from 2014 indicates the Veteran was tested in relation to his employment on June 16, 2014, however the private results are not provided. Closer inspection of the original October 2014 document suggests a systolic result between 160 and 180; however, diastolic readings are illegible. While the June 2014 results are probative, they are not determinative since the majority Veteran's results throughout 2010 to 2020 remain below 200 systolic and 110 diastolic pressure. A June 2014 urgent care note indicates blood pressure reading as 144/91, with two additional readings of 160/120 for the right arm, 152/115 for left arm; and 140/98 of the right, 148/90 for the left. However, this represents the only instance the Veteran's blood pressure readings approximate a rating of 20 percent. One instance does not outweigh the predominance of readings described above. The Veteran also asserts the effects of his medication should not be considered when assessing the severity of his hypertension. Review of the record indicates the Veteran has been prescribed medication for his condition since 1998. However, the Board notes the rating criteria for DC 7101 is successive. Therefore, continuous use of medication is contemplated at higher ratings and the Board is not required to discount the ameliorative effects of the medication. See McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016). While the Veteran is competent to describe observable symptoms of his condition, blood pressure is measured by objective testing. The rating criteria require both documentation of this objective measure of the blood pressure and findings that it falls within a pre-established range to warrant the specified ratings. As such, the medical evidence is afforded significant probative value and weight. The vast majority of objective testing throughout the appeal period does not demonstrate the Veteran's increase in blood pressure warrants a higher rating at this time. A higher 20 percent rating under DC 7101 is not warranted unless diastolic pressure is predominantly 110 or more, or systolic pressure is predominantly 200 or more. 38 C.F.R. § 4.104. During the appeal period, the Veteran's hypertension has manifested in diastolic pressure predominantly 100 or more that requires continuous medication for control, corresponding to the criteria for a 10 percent rating under DC 7101. The Veteran has not raised, and the record does not reasonably raise, additional issues. See Doucette v. Shulkin, 28 Vet. App. 366, (2017). As the preponderance of the evidence is against a rating in excess of 10 percent for hypertension, the claim for an increased rating is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107 ; 38 C.F.R. § 3.102. Bethany L. Buck Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.N. Chapman, 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.