Citation Nr: 22019901 Decision Date: 04/03/22 Archive Date: 04/03/22 DOCKET NO. 17-08 680 DATE: April 3, 2022 ORDER An initial disability rating in excess of 10 percent for service-connected hypertension is denied. FINDING OF FACT The Veteran's service-connected hypertension has not been productive of diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 10 percent for service-connected hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from August 1981 to April 2002. This matter comes to the Board of Veterans' Appeals (Board) on appeal from a January 2015 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Augusta, Maine. Jurisdiction is currently with the RO in Montgomery, Alabama. Service connection for a left elbow condition was granted in a January 2022 rating decision. The Board finds that this grant represents a complete grant of the benefits sought on appeal; thus, the aforementioned issue is no longer before the Board. See Grantham v. Brown, 114 F.3d 1156, 1158-59 (Fed. Cir. 1997) (holding that where an appealed claim for service connection is granted during the pendency of the appeal, a second notice of disagreement must thereafter be timely filed to initiate appellate review of the claim concerning "downstream" issues, such as the compensation level assigned for the disability and the effective date); see also 38 C.F.R. § 20.200. Entitlement to an initial disability rating in excess of 10 percent for service-connected hypertension Disability ratings are determined by applying the rating criteria set forth in VA's Schedule for Rating Disabilities (Rating Schedule) and represent the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life including employment. 38 C.F.R. § 4.10. In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA compensation as well as the whole recorded history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; see generally Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating is assigned. Id. Additionally, while it is not expected that all cases will show all the findings specified, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21. The degree of impairment resulting from a disability is a factual determination and generally the Board's primary focus in such cases is upon the current severity of the disability. Francisco v. Brown, 7 Vet. App. 55, 57-58 (1994). However, the Board has considered whether separate ratings for different periods of time are warranted based on the facts, which is a practice of assigning ratings that is referred to as "staging the ratings." Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran's hypertension is currently rated 10 percent under 38 C.F.R. § 4.104, Diagnostic Code 7101 throughout the period on appeal. Diagnostic Code 7101 provides for a 10 percent evaluation when diastolic pressure is predominantly 100 or more, or when systolic pressure is predominantly 160 or more, or as a minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. A 20 percent evaluation is provided if diastolic pressure is predominantly 110 or more, or if systolic pressure is predominantly 200 or more. A 40 percent evaluation is provided if diastolic pressure is predominantly 120 or more. A 60 percent evaluation is provided if diastolic pressure is predominantly 130 or more. See 38 C.F.R. § 4.104, Diagnostic Code 7101. The question for the Board is whether the Veteran's diastolic pressure was predominantly 110 or more, or systolic pressure predominantly 200 or more. The evidence shows that it did not meet these levels. The Veteran contends that his service-connected hypertension is more severe than as reflected by the rating currently assigned. Specifically, the Veteran contends that his rating should be greater as he is on continuous medication. A January 2015 VA Hypertension examination documented blood pressure readings of 149/94, 136/93, and 136/92. The examiner also indicated that the Veteran did not have a history of a diastolic blood pressure elevation to predominantly 100 or more. A December 2019 VA Hypertension examination documented blood pressure readings of 171/94, 169/102, and 148/96. The Veteran's private and VA treatment records are void of any indication that the Veteran's service-connected hypertension should be rated in excess of 10 percent. Based on the above, the evidence of record does not support a finding that: (1) the Veteran's diastolic pressure was predominantly 110 or more; or (2) the Veteran's systolic pressure was predominantly 200 or more. The Board may not award an initial disability rating in excess of 10 percent as the medical evidence of record does not show that the severity of the Veteran's condition met the criteria for a higher evaluation under the binding and applicable legal criteria. In making its determinations in this case, the Board has carefully considered the Veteran's contentions with respect to the nature of his service-connected hypertension and notes that he is competent to describe observable symptoms. The Veteran's history and symptom reports have been considered, including his contentions regarding continuous medication, and have been contemplated by the disability rating that has been assigned. The Board notes that the rating criteria for hypertension specifically contemplates the use of medication to ameliorate symptoms, a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat his symptoms. Cf. Jones v. Shinseki, 26 Vet. App. 56, 63 (2012), ("[a]bsent a clear statement [in the diagnostic code] setting out whether or how the Board should address the effects of medication...the Board may not deny entitlement to a higher disability rating on the basis of relief provided by medication."); McCarroll v. McDonald, 28 Vet. App. 267 (2016) (the Board did not err in failing to discount the ameliorative effects of blood pressure medication as the plain language of DC 7101 contemplates the effects of medications). The Board has also considered whether staged ratings under Fenderson, supra, are appropriate for the Veteran's service-connected hypertension; however, the Board finds that his symptomatology has been stable throughout the appeal period. Therefore, assigning staged ratings for such disability is not warranted. In sum, the Board finds that the Veteran is not entitled to a disability rating in excess of 10 percent for his service-connected hypertension. In denying such claim, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence is against a higher initial rating, (that is to say, the weight of the evidence is neither in approximate balance nor nearly equal), that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 4.3, 4.7. See Lynch v. McDonough, 21 F.4th 776, 781-82 (Fed. Cir. 2021). Elena Skiouris Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Smith-Jennings, 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.