Citation Nr: 22013469 Decision Date: 03/09/22 Archive Date: 03/09/22 DOCKET NO. 19-04 022 DATE: March 9, 2022 ORDER From November 13, 2017, entitlement to an initial rating of 10 percent, but no higher, for hypertension is granted. REMANDED Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. Entitlement to an initial compensable rating for hearing loss is remanded. FINDING OF FACT The Veteran has a history of hypertension with diastolic pressure of 100 or more and requires continuous medication for control of his hypertension. CONCLUSION OF LAW The criteria for an initial 10 percent rating, but no higher, for hypertension are met throughout the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty in the United States Navy from February 1955 to April 1974. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2018 rating decision by an Agency of Original Jurisdiction (AOJ) of the Department of Veterans Affairs (VA). In January 2022, the Veteran withdrew his request for a Board hearing. 1. From November 13, 2017, entitlement to an initial rating of 10 percent, but no higher, for hypertension is granted. The Veteran asserts that he is entitled to a higher rating for his hypertension because he takes medication to keep his blood pressure normal. See, e.g., January 2019 VA Form 9. The Board agrees. Hypertension is evaluated under 38 C.F.R. § 4.104, Diagnostic Coe 7101. The Veteran is in receipt of an initial noncompensable (zero percent) disability rating. As the Veteran disagreed with his initial disability evaluation, the period on appeal is from November 13, 2017, the effective date of service connection. Under DC 7101, a 10 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or a history of diastolic pressure predominantly 100 or more that requires continuous medication for control. Id. A 20 percent rating is warranted for hypertensive vascular disease with diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. Id. Higher ratings are available for diastolic pressures predominantly 120 or more. Id. The Veteran presented for an examination in January 2018. The examiner indicated that the Veteran required continuous medication for control of his blood pressure and noted blood pressure of 126/52, 124/52, and 120/52 on the day of examination. The examiner noted that the Veteran's 1974 retirement physical examination noted labile hypertension and that the Veteran was started on hypertension medication in 1977, and thus it is at least as likely as not that the Veteran's hypertension started in the military. There are no recent readings showing diastolic blood pressure readings of predominately 100 or more. However, the law does not require that the "history" of readings predominately over 100 be taken during the period on appeal. See Wilson v. McDonough, No. 19-6020, 2021 U.S. App. Vet. Claims LEXIS 2208 (Dec. 20, 2021) (panel decision). The Veteran's retirement physical examination report noting labile hypertension also notes blood pressure of 150/102. This is the most probative evidence of record of the Veteran's blood pressure prior to his beginning hypertension medication in 1977. Thus, as the evidence shows a history of diastolic blood pressure predominately 100 or more, the criteria for an initial rating of 10 percent are met. A rating of in excess of 10 percent is not warranted, as the evidence does not show diastolic blood pressure readings of predominately 110 or more or systolic pressure predominately 200 or more at any time during the appeal period. REASONS FOR REMAND 2. Entitlement to an initial rating in excess of 10 percent for degenerative arthritis of the lumbar spine is remanded. Remand is necessary to correct a pre-decisional error. In this regard, the March 2018 examiner noted that the Veteran had flare-ups of back pain that significantly limited functional ability, but did not describe this functional loss in terms of lost range of motion. Notably, the Veteran described his flare-ups of consisting of "stiffness" and pain and the examiner indicated that the Veteran's reports were medically consistent with examination findings. On remand, an addendum opinion should be secured describing additional functional loss during flare-ups in terms of lost range of motion or an adequate rationale should be provided. Updated VA treatment records and outstanding relevant private treatment records, if any, should also be secured. 3. Entitlement to an initial compensable rating for hearing loss is remanded. Remand is necessary, as the January 2018 audiological examination report is inadequate. In this regard, the examiner noted that the Veteran did not report the presence of tinnitus. However, a May 2018 audiological assessment notes the Veteran's report of "spontaneous tonal tinnitus." See May 10, 2018 VA Audiology Note. Thus, the January 2018 examination was either insufficiently thorough or the Veteran's hearing loss, to include tinnitus, has worsened since then. On remand, the Veteran should be afforded another audiology examination and an opinion as to the etiology of his tinnitus should be secured. The matters are REMANDED for the following action: 1. Secure updated VA treatment records. 2. With any necessary assistance from the Veteran, secure relevant outstanding private treatment records, if any. Please advise the Veteran that the Board is only requesting new, non-VA records relating to his back disability and audiology reports, if any. 3. After completing #1 and #2, secure an addendum opinion as to the nature and severity of the Veteran's lumbar spine disability during a flare-up. The claims file should be available to the examiner. No additional examination of the Veteran is necessary unless the examiner determines otherwise. The examiner should opine as to the degree of functional impairment of the Veteran's lumbar spine disability due to flare-ups and after repetitive use over time, accounting for pain, incoordination, weakened movement, and excess fatigability on use, and, to the extent possible, report such impairment in terms of additional degrees of limitation of motion. If the examiner is unable to provide such an opinion without resort to speculation, the examiner must provide a rationale for this conclusion, with specific consideration of the instructions in the VA Clinician's Guide to estimate, "per [the] veteran," what extent, if any, flare-ups affect functional impairment. In addressing this question, the examiner should address the Veteran's report of "pain and stiffness" during a flare-up, as well as the examiner's notation that the Veteran's flare-ups are medically consistent with examination findings. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. 4. After completing #1 and #2, schedule the Veteran for an examination as to the nature and severity of his hearing loss, to include the nature and etiology of his tinnitus. The claims file should be made available to and should be reviewed by the examiner. All findings should be reported in detail and all necessary testing should be performed. The examiner should address the following: (a) Assess the current severity of the Veteran's hearing loss. (b) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus had its onset during or is otherwise etiologically related to his active duty service. (c) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus is proximately due to his service-connected hearing loss. (d) Opine as to whether it is at least as likely as not (50 percent or greater probability) that the Veteran's tinnitus has been aggravated (worsened beyond natural progression) by his service-connected hearing loss. In addressing this question, the examiner should address the May 10, 2018 VA Audiology Note showing the Veteran's report of spontaneous tonal tinnitus. A complete rationale for the examiner's opinion should be provided, citing to specific evidence of record, as necessary. If the examiner cannot provide an opinion without resort to speculation, the examiner must state whether the need to speculate is due to a deficiency in the state of general medical knowledge (no one could respond given medical science and the known facts), a deficiency in the record (additional facts are required), or the examiner (does not have the knowledge or training). If the inability to provide an opinion without resorting to speculation is due to a deficiency in the record (additional facts are required), the AOJ should develop the claim to the extent it is necessary to cure any such deficiency. If the inability to provide an opinion is due to the examiner's lack of requisite knowledge or training, then the AOJ should obtain an opinion from a medical professional who has the knowledge and training needed to render such an opinion. S. BUSH Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.M. Badaczewski, 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.