Citation Nr: 21040647 Decision Date: 07/06/21 Archive Date: 07/06/21 DOCKET NO. 15-28 143 DATE: July 6, 2021 ORDER A rating higher than 20 percent for hypertension with cardiomegaly is denied. Entitlement to a separate, 30 percent rating for hypertensive heart disease is granted. FINDINGS OF FACT 1. The Veteran's diastolic pressure is not predominantly 120 or more. 2. The Veteran's heart disability is manifested by evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. CONCLUSIONS OF LAW 1. The criteria for a rating higher than 20 percent for hypertension with cardiomegaly have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code (Code) 7101. 2. The criteria for a separate, 30 percent rating for hypertensive heart disease have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104, Code 7007. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1979 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued by the Department of Veterans Affairs (VA) agency of original jurisdiction (AOJ); it is currently before the Board on remand from the United States Court of Appeals for Veterans Claims (Court). In November 2018, the Veteran testified before the undersigned at a Board hearing held via videoconference. This matter was remanded in November 2018 for a contemporaneous VA examination. The matter returned to the Board in September 2020, when it was denied. The Veteran timely appealed that decision to the Court, and an April 2021 order granted a Joint Motion for Remand (JMR), vacated the Board's decision, and remanded the matter for compliance with the instructions in the JMR. Indeed, the parties agree that vacatur and remand are warranted because the Board erred by failing to provide an adequate statement of reasons or bases to support its finding that no Code other than Code 7101 would potentially allow for the assignment of a higher evaluation or a separate evaluation for the Veteran's disability. Increased Rating Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 1. A rating higher than 20 percent for hypertension with cardiomegaly The Veteran asserts that his hypertension warrants a higher disability rating. The Veteran is currently rated 20 percent for hypertension with cardiomegaly. The Board observes that the 20 percent rating has been in effect since 1997. A disability rating that has been continuously rated at or above a certain percentage for at least 20 years is a protected rating. A protected rating cannot be reduced, let alone eliminated, absent a showing of fraud. 38 C.F.R. § 3.951. Because the Veteran received the rating for his hypertension with cardiomegaly over 20 years ago, this rating is protected. Under Code 7101, hypertension is rated at 20 percent when diastolic pressure is predominantly 110 or more, or systolic pressure is 200 or more. A 40 percent rating requires diastolic pressure of predominantly 120 or more, and a 60 percent rating requires diastolic pressure of predominantly 130 or more. Id. 38 C.F.R. § 4.104. The pertinent evidence consists of the January 2011, December 2018, and September 2019 VA examinations. The Veteran is on continuous medications for his hypertension. Blood pressure readings in January 2011 were 142/100; 132/74; and 178/88. Blood pressure readings in December 2018 were 141/94, 141/82; 149/103, 131/95; 149/103, and 138/103. During a September 2019 VA examination report, the examiner indicated that the Veteran's current hypertension with cardiomegaly has stayed the same and that the diastolic blood pressure reading exceeds 100 once a week. As stated previously, to warrant the next higher rating of 40 percent, the Veteran requires diastolic pressure of predominantly 120 or more. 38 C.F.R. § 4.104, Code 7101. In this case, there is no evidence of blood pressure readings at those levels. Although the Veteran is on medication and testified there has been some trouble in adjusting the dosage, at no time was the Veteran's diastolic pressure predominately 120 or more. As such, the Board finds that the Veteran's current rating of 20 percent appropriately compensates him for the severity of his hypertension. The Board notes that the Veteran is competent to give evidence about what he experiences; for example, he is competent to discuss current pain and other experienced symptoms. See Layno v. Brown, 6 Vet. App. 465 (1994). Furthermore, the Board finds the Veteran's statements to be credible. See Barr v. Nicholson, 21 Vet. App. 303, 307-08 (2007); Washington v. Nicholson, 19 Vet. App. 362, 368-69 (2005). Unfortunately, there is simply no evidence of record that would entitle the Veteran to the next higher rating of 40 percent, as there is no evidence of blood pressure readings with a diastolic level predominately 120 or more. 2. Entitlement to a separate, 30 percent rating for hypertensive heart disease Under Code 7007, a 30 percent rating is assigned if the hypertensive heart disease is manifested by a workload of greater than 5 METs but not greater than 7 METs resulting in dyspnea, fatigue, angina, dizziness, or syncope, or; evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray. A rating of 60 percent is assigned for more than one episode of congestive heart failure within the past year, or where a workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of 30 to 50 percent. A rating of 100 percent is assigned for chronic congestive heart failure, or where a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or where there is left ventricular dysfunction with an ejection fraction of less than 30 percent. 38 C.F.R. § 4.104. In the April 2021 JMR, the parties note that under Code 7007, a 30 percent rating is warranted if there is evidence of cardiac hypertrophy or dilation on electrocardiogram, echocardiogram, or X-ray, and the parties agreed that the Board erred by failing to address whether the Veteran could be assigned a higher evaluation or a separate evaluation under Code 7007. A January 2011 echocardiogram diagnostic report reveals normal left ventricle thickness and mild dilation of the aortic root. During the September 2019 VA examination, the examiner noted an echocardiogram showed mild concentric left ventricle hypertrophy, mild right ventricle hypertrophy, and mild dilation of the aortic root. The examiner indicated that the Veteran had cardiac hypertrophy due to hypertension. Based on the findings, the Board will resolve all reasonable doubt in favor of the Veteran. Therefore, a separate 30 percent rating for the heart disability under Code 7007 is warranted and is granted. The Board will allow the AOJ to assign the effective date. H.M. WALKER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. McPhaull, 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.