Citation Nr: 22012109 Decision Date: 03/02/22 Archive Date: 03/02/22 DOCKET NO. 19-13 493 DATE: March 2, 2022 ORDER Entitlement to an initial evaluation of 10 percent for hypertension is granted. REMANDED The appeal regarding entitlement to an effective date earlier than June 6, 2018 for the grant of service connection for hypertension is remanded. FINDING OF FACT The Veteran had a history of diastolic pressure predominately 100 or more requiring continuous medication to control. CONCLUSION OF LAW The criteria for an increased disability rating of 10 percent, but no higher, for hypertension are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from July 1978 to May 1981 and from December 1985 to November 2007. This matter comes before the Board of Veterans' Appeals (Board) from a December 2018 rating decision that granted service connection for hypertension and assigned a noncompensable evaluation. In January 2020, the Board denied a compensable evaluation for the Veteran's hypertension. He appealed the Board's decision to the United States Court of Appeals for Veterans Claims (Court). In September 2021, the Court granted the parties' September 2021 Joint Motion for Remand (JMR), vacating the Board's decision and remanding the matter for readjudication consistent with the terms of the JMR. Disability evaluations are determined by the application of a schedule of ratings based on average impairment in earning capacity. 38 U.S.C. § 1155. Percentage evaluations are determined by comparing the manifestations of a particular disorder with the requirements contained in the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can practically be determined, the average impairment in earning capacity resulting from such disease or injury and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. VA has a duty to acknowledge and consider all regulations which are potentially applicable through the assertions and issues raised in the record, and to explain the reasons and bases for its conclusion. If there is a question as to which evaluation to apply to the Veteran's disability, 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. In cases where the original rating assigned is appealed, as with the evaluation of the Veteran's psychiatric disorder, consideration must be given to whether a higher rating is warranted at any point during the pendency of the claim. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's hypertension is evaluated pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. Under Diagnostic Code 7101, hypertensive vascular disease (hypertension and isolated systolic hypertension) warrants a 10 percent rating with diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum rating 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 with 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. A maximum of a 60 percent rating is warranted for diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. In rating hypertension under Diagnostic Code 7101, the Board may consider blood pressure readings taken while a veteran is using medication. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (holding that Diagnostic Code 7101 contemplates the effects of medication and, therefore, Jones v. Shinseki, 26 Vet. App. 56 (2012), does not apply). 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. Blood pressure readings are recorded in the format of the systolic blood pressure listed first, followed by a slash, and the diastolic blood pressure listed last, e.g., ###/###, and the medical evidence for this issue will be reported accordingly. The parties to the JMR agreed that the Board provided an inadequate statement of reasons or bases for determining that the Veteran did not have a history of diastolic pressure predominantly 100 or more because it did not determine the date that the Veteran was diagnosed with hypertension and did not address whether the medical records pertaining to the Veteran's diagnostic workup reflected a history of diastolic pressure of 100 or more. In that regard, available service treatment records include a medication profile that indicates that 30 hydrochlorothiazide were prescribed in April 2006, with no refills. An associated April 2006 physical therapy record notes systemic hypertension. Subsequent service treatment records do not reflect that this medication was continually prescribed. This comports with the Veteran's report during a June 2009 VA examination that he had been diagnosed with hypertension in 2006, and was provided medication. At that time, he reported that he had last taken medication for hypertension in August 2007. Service treatment records additionally reflect that during an emergency department visit in March 2006, the Veteran's blood pressure was 132/98. In October 2007, a blood pressure reading of 124/80 was noted. In November 2007, blood pressure readings of 150/100 and 170/102 were recorded. At each of these encounters, the medication list did not include antihypertensives. While record is not clear as to when the Veteran was prescribed continuous medication for the control of his hypertension, the evidence does indicate that he is currently prescribed continuous medication for its control, and that he had a history of diastolic pressures predominantly 100 or more during service prior to the prescription of continuous medication. The record does not indicate, at any time, that the Veteran has had diastolic pressure predominately 110 or more or systolic pressure predominately 200 or more, and he does not contend otherwise. See November 2021 attorney brief at 18. Accordingly, a disability rating of 20 percent is not for application. Thus, resolving reasonable doubt in the Veteran's favor, the Board concludes that the disability picture more nearly approximates a history of diastolic pressure predominantly 100 or more, and requiring continuous medication for control. Accordingly, a rating of 10 percent, but no higher, for hypertension is warranted. REASONS FOR REMAND In the September 2021 JMR, the parties agreed that the Veteran had submitted a timely notice of disagreement (NOD) as to the effective date assigned for service connection for hypertension in the December 2018 rating decision. The filing of a NOD places a claim in appellate status. Therefore, a statement of the case regarding this issue must be provided to the appellant. As such, this issue must be remanded. Manlincon v. West, 12 Vet. App. 239, 240-41 (1999). The matter is REMANDED for the following action: Issue the Veteran a statement of the case on the issue of entitlement to an effective date earlier than June 6, 2018 for the award of service connection for hypertension, pursuant to 38 C.F.R. § 19.26. If the appellant perfects his appeal by submitting a timely and adequate substantive appeal, then the AOJ should return the claim or claims to the Board for appellate disposition. DONNIE R. HACHEY Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Barone, 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.