Citation Nr: 22010971 Decision Date: 02/25/22 Archive Date: 02/25/22 DOCKET NO. 16-19 118A DATE: February 25, 2022 ORDER Entitlement to a rating in excess of 10 percent for hypertension, to include on an extraschedular basis, is denied. FINDING OF FACT 1. The Veteran's service-connected hypertension requires continuous medication for control and has a history of diastolic pressure predominantly 100 or more. 2. During the appeal period, the Veteran's diastolic pressure has not been predominantly 110 or more and his systolic pressure has not been predominantly 200 or more. CONCLUSION OF LAW The criteria for a disability rating in excess of 10 percent for service-connected hypertension, to include on an extraschedular basis, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1971 to December 1982. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an August 2013 rating decision issued by the Department of Veterans Affairs (VA) regional office, which granted hypertension and assigned a noncompensable rating, effective May 24, 2012. In an October 2018 Decision, the Board granted a 10 percent disability rating for the Veteran's hypertension, effective May 24, 2012. In a January 2020 decision, the Court of Appeals for Veterans Claims (Court) vacated the denial of a rating in excess of 10 percent for hypertension and remanded the claims for proceedings consistent with the decision. In November 2020, the Board remanded the claim for additional development consistent with the Court's decision. The appeal is now before the Board again. Entitlement to a rating in excess of 10 percent for hypertension, to include on an extraschedular basis, is denied. The Veteran claims that he is entitled to an increased rating for his service-connected hypertension because his diastolic blood pressure is predominantly 110 or more; his hypertension causes episodes of lightheadedness and dizziness which render him unable to work or function normally "when [his] blood pressure elevates"; and he was treated in the emergency room in May 2014 for what he describes as lightheadedness and weakness. See, e.g., VA Form 9, Appeal to Board of Veterans' Appeals, received May 25, 2016. He also claims that side effects of his medication prevented him from working, and that his hypertension results in symptoms not contemplated by the rating schedule and which markedly interfere with his ability to work, warranting a rating in excess of 10 percent even if it must be accomplished under extra-schedular consideration. See Appellant's Post-Remand Brief received September 29, 2020. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule). Ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Pertinent regulations do not require that all cases show all findings specified by the Rating Schedule, but that findings sufficiently characteristic to identify the disease and the resulting disability and above all, coordination of rating with impairment of function will be expected in all cases. 38 C.F.R. § 4.21. Therefore, the Board has considered the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the veteran's disability in reaching its decision. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Where the appeal arises from the original assignment of a disability evaluation following an award of service connection, as is the case here, the severity of the disability at issue is to be considered during the entire period from the initial assignment of the disability rating to the present time. Where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibits symptoms that would warrant different evaluations during the course of the appeal, the assignment of staged ratings is appropriate. See Fenderson v. West, 12 Vet. App. 119 (1999). Although a rating specialist is directed to review the recorded history of a disability in order to make a more accurate evaluation, the regulations do not give past medical reports precedence over current findings. See Francisco v. Brown, 7 Vet. App. 55 (1994); 38 C.F.R. § 4.2. 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 required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Here, the Veteran's service-connected hypertension is currently rated 10 percent disabling under 38 C.F.R. § 4.104, Diagnostic Code 7101. Diagnostic Code 7101 provides a 10 percent rating for evidence showing diastolic pressure of predominately 100 or more; systolic pressure of predominately 160 or more; or as a minimum rating for an individual with a history of diastolic pressure of predominantly 100 or more who requires continuous medication for control. A 20 percent rating is provided for evidence of diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is provided for evidence of diastolic pressure of predominantly 120 or more. A 60 percent rating is provided for evidence of diastolic pressure of predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. 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. In exceptional cases, an extraschedular rating may be provided. 38 C.F.R. § 3.321. The Court has set out a three-part test, based on the language of 38 C.F.R. § 3.321(b)(1), for determining whether a veteran is entitled to an extraschedular rating, and that test is as follows: (1) the established schedular criteria must be inadequate to describe the severity and symptoms of the claimant's disability; (2) the case must present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization; and (3) the award of an extraschedular disability rating must be in the interest of justice. Thun v. Peake, 22 Vet. App. 111 (2008), aff'd, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). The term "marked" is not defined in the regulation. According to the Merriam-Webster dictionary, "marked" means "having a distinctive or emphasized character." See, e.g., "marked," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/marked. For the reasons that follow, the Board finds that the Veteran's hypertension symptomatology has not more nearly approximated the criteria corresponding to a rating in excess of 10 percent disabling, and it also finds that said symptomatology has not been exceptional or unusual such that the schedular evaluation is inadequate to rate the Veteran's hypertension. The Veteran has reported many high blood pressure readings, but they all were taken over 10 years before the period on appeal, and the vast majority of those readings had diastolic pressure below 110 and systolic pressure below 200; in fact, upon review of the claims file, the Board has counted roughly 20 different blood pressure readings that the Veteran has reported. Only 4 of them had diastolic pressure at 110 or more, none of them had systolic pressure at 200 or more, and all of the readings were taken before the period on appeal. See Letter Titled "Chronological History of Hypertension and Anemia," received July 26, 2012; VA Form 9, Appeal to Board of Veterans' Appeals, received May 25, 2016. Thus, the blood pressure readings reported by the Veteran do not evidence diastolic pressure of predominantly 110 or more or systolic pressure of predominantly 200 or more during the period on appeal. The Veteran has not submitted any medical records or other competent medical evidence showing diastolic pressure of predominantly 110 or more, or systolic pressure of predominantly 200 or more during the period on appeal. He did, however, submit a July 1999 letter from a private physician that discusses his fitness in connection with his work as a pilot. In that letter, the physician indicated that the Veteran was recently evaluated, at that time, for complaints of atypical chest pain and lightheadedness, and was found to have elevated blood pressure. On the May 2016 Form 9, the Veteran indicated that he was submitting paperwork for a May 2014 Emergency Room visit due to lightheadedness and weakness. The records submitted indicate that he visited the emergency room in May 2014, however, the documents do not contain any blood pressure readings or a discharge diagnosis. During a VA examination in July 2013, the Veteran was noted to take medication for his hypertension. His then-current blood pressure readings, taken on the day of the examination, were all below 110 diastolic pressure and 200 systolic pressure. During a VA examination in June 2021, the Veteran's then-current blood pressure readings taken the day of the examination were again all below 110 diastolic pressure and 200 systolic pressure. Both VA examiners indicated that there were no other pertinent physical findings, complications, conditions, signs, or symptoms related to the Veteran's hypertension. Regarding functional impairment, the July 2013 VA examiner indicated that there were no functional limitations. The June 2021 VA examiner indicated, however, that additional restrictions such as more frequent exams and more stringent blood pressure control requirements are placed on those with hypertension who wish to work as commercial truck drivers and pilots. The Board notes that the record reflects that the Veteran was employed as a pilot after his discharge from active duty. In the report of the June 2021 VA examination, the examiner also provided a medical history which included the following: Today the Veteran says that he went through several adjustments of blood pressure medications through the years which caused him to miss work time as a pilot because each change had to be reported to FAA, was followed by various tests, and required a mandatory no-fly period. If he had symptoms of lightheadedness, he also had to call in sick per FAA regulations (FAA letter 11/20/13). His last flight was in May 2018. He had to stop working as an airline pilot because he reached the age at which the FAA has required that all U.S. pilots stop flying commercial airplanes. He agrees that he did not leave his job because of hypertension. Current symptoms regarding the hypertension are lightheadedness when he stands up quickly and with rapid side to side actions that move his head fast. He also has fatigue that he describes as waking feeling tired on some days, drowsiness after eating, and decreased concentration. He has not been tested for sleep apnea. He sometimes feels flushed or hot and when he has checked blood pressure while experiencing such symptoms [sic] in the past it was elevated. He feels that he frequently has spikes of diastolic blood pressure over 110, though he sees his doctor every 6 months and blood pressure medication has not been changed. He says his doctor has been satisfied with his blood pressure, which is usually in high 130's/high 80's to 90. He says he had an FAA exam a month ago to work as a noncommercial pilot and the diastolic blood pressure was over 110. He says a second blood pressure determination was not taken for that exam and he was simply told to follow up with his doctor and return for the FAA exam when blood pressure was better controlled. He refers to this incident in his written material as "prohibited from occupation as a commercial pilot." He has a follow up appointment with his private doctor on 6/23/21. He says that he took the antihypertensive medication this AM. The Veteran has not submitted any records relating to this follow up appointment in June 2021, and he has not provided a signed release authorization for those records, which was provided to the Veteran. Considering all of the evidence of record, including but not limited to that discussed above, the Board finds that the Veteran is not entitled to an increased schedular rating in excess of 10 percent for his service-connected hypertension, as there is no medical evidence of diastolic pressure of predominantly 110 or more, or systolic pressure predominantly 200 or more, during the period on appeal. The Board has also considered whether the Veteran is entitled to an increased, extraschedular rating for his service-connected hypertension. After the Board's last remand of this appeal, in November 2020, the Veteran's case was sent to the Director of Compensation Service for consideration of an extraschedular rating under 38 C.F.R. § 3.321(b)(1). In November 2021, the Director issued an advisory opinion, stating "We have reviewed the evidence of record, including BVA remands of record. The Veteran is 10% SC for hypertension. Based on the evidence of record there is no impairment in/of earning capacity due to exceptional or unusual factors related to marked interference with employment or frequent periods of hospitalization." The decision stated: "There has been no factual demonstration of impairment to earning capacity based on exceptional or unusual factors for hypertension. Thus, entitlement to an extra-schedular rating for hypertension under provision 38 C.F.R. § 3.321(b)(1) is denied." The Board finds that the Director's opinion contains a statement of reasons or bases and is supported by the overall evidence. Kuppamala v. McDonald, 24 Vet. App. 447 (2016). The Director cited to the relevant regulatory provisions and explained the rationale for concluding that an extraschedular rating was not warranted. Therefore, that decision is reviewable by the Board de novo. The Board agrees with the Director and finds that an extraschedular rating is not warranted in the instant case. The Veteran has reported symptoms including being tired, lightheadedness, dizziness, and weakness, which render him unable to work or function normally "when [his] blood pressure elevates." The Veteran reported that he was treated in the emergency room in May 2014 for what he describes as lightheadedness and weakness, but the record does not contain any blood pressure readings or a discharge diagnosis. Most importantly, the record does not reflect frequent periods of hospitalization for hypertension. See 38 C.F.R. § 3.321(b)(1). Additionally, although the Veteran claims that his hypertension symptoms and the side effects of his medication rendered him unable to work or function normally, and that they markedly interfered with his ability to work, there is no competent evidence of any such marked interference with employment. Even the Veteran's own statements do not rise to the level of indicating a marked interference with employment, as the Veteran has not claimed nor provided any evidence of frequent absences from work or frequent inability to work. The record reflects that he worked as a pilot, and that as such, he was subject to Federal Aviation Administration (FAA) physical examination requirements, along with regulations prohibiting flying "at any time new symptoms or adverse changes occur or if [he] experience[d] side effects or require[d] a change in medication." The record also reflects that he was successfully able to continue working as a pilot until he reached the age that he was no longer able to pilot commercial airplanes. However, there is no indication that the Veteran's hypertension caused any marked interference with his ability to work as a pilot during the period on appeal, especially considering the fact that the Veteran has not stated nor provided any other evidence of how frequently he was unable to fly due to either his hypertension symptoms or the side effects of the medication that he has taken therefor. Additionally, at the June 2021 examination, the Veteran agreed that he did not leave his job because of hypertension. Thus, the Board finds that the Veteran is not entitled to an extraschedular rating for his service-connected hypertension, as the schedular rating criteria are adequate to rate the Veteran's hypertension. This case does not present other indicia of an exceptional or unusual disability picture, such as marked interference with employment or frequent periods of hospitalization. Thun, 22 Vet. App. 111. The Board further recognizes the Veteran's sincerely held belief that his hypertension impairment is more severe than as reflected by the currently assigned rating, and notes he is competent to describe his symptoms and their effects on his daily life and occupation. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 469 (1994); see also Buchanan v. Nicholson, 451 F.3d 1331 (Fed. Cir. 2006). The Board finds the medical evidence in which professionals with medical expertise examined the Veteran, completed necessary testing, acknowledged his reported symptoms, and described the manifestations of such disability in light of the rating criteria to be more persuasive than his own reports regarding the severity of such conditions. The Board has also considered whether staged ratings are appropriate for the Veteran's service-connected hypertension; however, the Board finds that such symptomatology has been stable throughout the period on appeal. Therefore, assigning staged ratings is not warranted. In conclusion, the Veteran's appeal for an increased rating in excess of 10 percent disabling for his service-connected hypertension is denied. In denying this claim, the Board finds that the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3, 4.7. A. J. Spector Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Banks, 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.