Citation Nr: 23044481
Decision Date: 08/09/23	Archive Date: 08/09/23

DOCKET NO. 19-36 570
DATE: August 9, 2023

ORDER

Entitlement to an initial 10 percent rating, but no higher, for hypertension is granted.

FINDING OF FACT

Throughout the period on appeal, the Veteran's hypertension has not been manifested by readings of diastolic blood pressure of predominantly 110 or more, or systolic blood pressure predominantly 200 or more.

CONCLUSION OF LAW

The criteria for an initial 10 percent rating, but no higher, for hypertension have been met.  38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.321, 4.7, 4.104, DC 7101.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from February 1981 to February 1984.

This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2018 rating decision by a Department of Veterans Affairs Regional Office (RO).

In November 2021, the Veteran testified at a Board hearing before the undersigned.  A copy of the transcript of that hearing has been associated with the claims file.

The Board observes that for the first time, during his hearing, the Veteran testified that he believed he had floaters in his eyes and headaches as a result of his hypertension.  He also asserted that due to drops in his blood pressure, he had fallen, and broken his foot.  The undersigned informed the Veteran that if he wanted to establish service connection for these conditions, he needed to file claims for them.

The Board further observes that Diagnostic Code 7101 does not contemplate headaches, floaters, or a broken foot in the rating criteria.  The RO has not addressed these assertions in the first instance.  Moreover, the evidence of record does not indicate that such conditions are related to the Veteran's hypertension.  Therefore, the Board does not have jurisdiction over these matters, and they are referred to the RO to address in the first instance.  

Entitlement to an initial compensable rating for hypertension.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity.  Individual disabilities are assigned separate diagnostic codes.  38 U.S.C. § 1155; 38 C.F.R. § 4.1.  The basis of disability ratings 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.

Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more nearly approximates the criteria required for that particular rating.  Otherwise, the lower rating will be assigned.  38 C.F.R. § 4.7.  When a reasonable doubt arises regarding the degree of disability, that reasonable doubt will be resolved in favor of the Veteran.  38 C.F.R. § 4.3.

Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings.  Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007).

During the period on appeal, a June 2018 rating decision granted service connection for hypertension and assigned a noncompensable rating effective August 16, 2017.

The Veteran's service-connected hypertension has been evaluated under DC 7101 for hypertension vascular disease (hypertension and isolated systolic hypertension).  Under DC 7101, a 10 percent rating is warranted for diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more, or where an individual with a history of diastolic pressure predominantly 100 or more requires continuous medication for control.  A 20 percent rating is assigned for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  A 40 percent rating is assigned for diastolic pressure predominantly 120 or more.  Lastly, a 60 percent rating is assigned for diastolic pressure predominantly 130 or more.  38 C.F.R. § 4.104, DC 7101.

Initially, because the evaluation criteria do not define the term "predominantly," the Board uses its plain meaning.  According to the Merriam-Webster Dictionary, the term "predominantly" is defined as "for the most part."  See Merriam-Webster Dictionary, <https://www.merriam-webster.com/dictionary/predominantly (last visited Aug. 3, 2023).

Per Wilson v. McDonough, 35 Vet. App. 75 (2021), when a Veteran is receiving a noncompensable rating for hypertension, under Diagnostic Code (DC) 7101, "a history of diastolic pressure predominantly 100 or more [that] requires continuous medication for control" refers to blood pressure readings taken before a veteran began medication to control hypertension, and therefore may require analyzing blood pressure readings prior to the period on appeal.

The evidence of record includes the Veteran's service treatment records (STRs).  A January 1981 enlistment report of medical examination contained blood pressure readings of 146/100, 140/80, 140/80.  A February 1982 STR contained an assessment of mild high blood pressure and the examiner indicated that the Veteran's blood pressure should be treated.  The plan was to begin medication.  

STRs reflect the Veteran's blood pressure readings during service as: 124/84 (April 1983), 142/92 (August 1982), 132/100 (March 1982), 130/70 (March 1982), 130/84 (March 1982), 126/90, 120/84, 144/98, 138/92 (January 1982), 120/90 (February 1982), 140/100 (January 1982), 132/92 (January 1982), 140/90 (January 1982), 138/82, 128/78, 132/100 (January 1982).

The January 1984 report of medical examination at separation includes a blood pressure reading of 136/98 and the physician's note, which states that the Veteran was treated for hypertension by internal medicine and that he had been on medication for two years.  The physician noted that the Veteran had not taken his medication that morning but that he monitors it closely and the blood pressure is controlled the majority of the time.  

Post-service medical records include an April 2018 VA treatment record documenting the Veteran's blood pressure reading as 111/78.  See May 2018 CAPRI.  Subsequent April 2018 blood pressure readings were 108/69 and 112/72.  See id.  

Separate May 2018 VA treatment records documented the Veteran's blood pressure readings as 106/71 and 123/75.  See June 2018 CAPRI.  A June 2018 VA treatment record documents that the Veteran was instructed to log his blood pressure readings on his calendar and to bring the calendar to his healthcare provider.  He was also instructed to take the blood pressure reading at the same time and on the same arm each day.  See id.  A subsequent June 2018 VA treatment record documented the Veteran's blood pressure reading as 101/68.  See id. 

The Veteran was afforded a VA examination for hypertension in June 2018.  The examiner noted that the Veteran had been diagnosed with hypertension, which required continuous medication.  The examiner noted that the Veteran had a history of a diastolic blood pressure elevation to predominantly be 100 or more.  The examiner cited blood pressure readings were 140/100 on January 17, 1982, 132/100 on January 19, 1982, and 132/100 on March 1, 1982.  The examiner noted the Veteran's current blood pressure readings as 130/80, 135/80, and 132/80, all of which were recorded on the same day.  The examiner noted that the Veteran's blood pressure did not impact his ability to work.  See June 2018 C&P Exam.  

In a July 2018 NOD, the Veteran stated that he was entitled to a higher rating for hypertension because the medications he took kept his systolic and diastolic blood pressure below the VA parameters for a higher rating.  See July 2018 NOD.  

VA treatment records from June 2018 and July 2018 document the Veteran's blood pressure readings as 114/73, 115/72 (multiple readings), 93/56, and 115/82.  See July 2018 CAPRI.  

VA treatment records received in August 2018 document the Veteran's blood pressure readings as: 157/97 (September 2016), 129/71 (September 2016), 163/98 (September 2016), 146/96 (September 2016), 148/106 (September 2016), 107/77 (September 2016), 124/85 (July 2016), 141/98 (July 2016), 170/100 (July 2016), 158/108 (July 2016), 169/108 (July 2016), 160/100 (July 2016), 162/100 (July 2016), 141/90 (July 2016), 165/95 (May 2016), 165/111 (May 2016), 163/105 (May 2016), 129/84 (April 2016), 177/116 (April 2016), 178/106 (April 2016), 177/116 (April 2016), 165/114 (April 2016), 150/98 (April 2016), 148/96 (April 2016), 147/97 (April 2016), 149/98 (April 2016), 131/77 (April 2016), 140/90 (April 2016), 157/107 (March 2016), 123/74 (February 2016), 149/92 (February 2016), 127/72 (February 2016), and 181/115 (January 2016).  See August 2018 CAPRI.  

The April 2016 blood pressure readings were recorded during an emergency room visit, where the Veteran was treated for an open wound to his right lateral aspect and anterior to the malleoli.  The May 2016 blood pressure readings were recorded during another emergency room visit, where the Veteran requested treatment for alcohol abuse.

VA treatment records received in June 2019 document the Veteran's blood pressure readings as 130/84 (May 2019), 128/92 (May 2019), 131/87 (May 2019), 104/68 (May 2019), 159/101 (May 2019), 105/69 (March 2019), 146/81 (October 2018), 142/90 (October 2018), 138/91 (October 2018), 161/90 (October 2018), 173/89 (October 2018), and 177/97 (October 2018).  See June 2019 CAPRI.

VA treatment records received in September 2019 document the Veteran's blood pressure readings as 111/76 (August 2019).  See September 2019 CAPRI.

VA treatment records received in November 2019 document the Veteran's blood pressure readings as 122/80 (November 2019).  See November 2019 CAPRI.

A January 2020 VA treatment record documents that the Veteran was scheduled for a right ankle surgery, but the Veteran had persistently elevated blood pressure after not taking his medication (clonidine) that morning and discontinuing naltrexone three days earlier.  The Veteran blood pressure reading was noted as 172/104.  See February 2020 CAPRI. 

VA treatment records received in September 2020 document the Veteran's blood pressure readings as 108/73 (June 2020), 91/65 (March 2020), 136/84 (January 2020).  See September 2020 CAPRI.

The Veteran was afforded another VA examination for hypertension in September 2020.  The examiner noted that the Veteran had been diagnosed with hypertension, which required continuous medication.  The examiner noted that blood pressure readings were not performed.  The examiner concluded that the Veteran did not have a history of a diastolic blood pressure elevation to predominately 100 or more.

VA treatment records received in September 2021 document the Veteran's blood pressure readings as 120/65 (July 2021), 107/65 (July 2021), 105/55 (July 2021), 146/72 (April 2021), and 120/78 (June 2021).  See September 2021 CAPRI. 

A May 2021 VA treatment record documented that the Veteran's blood pressure had been elevated on the current regimen, but the physician did not adjust or change the Veteran's medication due to the Veteran's preference to stay on clonidine due to anxiolytic effects.  See September 2021 CAPRI. 

During the November 2021 Board hearing, the Veteran testified that he was under very strong medication for his hypertension, which would fluctuate his blood pressure.  He further testified that when he does not take medication, his blood pressure skyrockets and that it results in physical manifestations of him getting headaches, floaters, and other problems.  He also testified that when he would measure his blood pressure without medication, his blood pressure would be around 180/108 and that with medication, it generally came down to around 120/70.  See November 2021 Hearing Transcript.

After a review of the evidence of record, the Board finds that, after resolving reasonable doubt and considering Wilson v. McDonough, 35 Vet. App. 75 (2021), the criteria for an initial 10 percent rating, but no higher, have been met.  

The Board recognizes the June 2018 examiner's assessment that the Veteran had a history of diastolic pressure predominantly 100 or more requiring continuous medication for control.  Although the Board does not necessarily agree with the examiner's characterization of three in-service readings as reflecting "predominantly" diastolic pressure readings of 100 or more, the Board will resolve doubt in the Veteran's favor and grant a 10 percent rating.

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However, the criteria for a higher 20 percent rating have not been met as the Veteran's diastolic pressure has not been predominantly 110 or more or systolic pressure predominantly 200 or more.  

As reflected above, the Veteran did have isolated blood pressure readings with diastolic pressure readings of 110 or higher in April and May 2016.  However, the Board finds it significant that these readings were taken during emergency room visits where it stands to reason that blood pressure readings would be higher than typical for the Veteran.  When considered in connection with the other blood pressure readings taken during the appeal period, the evidence of record does not more nearly approximate diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more.  Therefore, the criteria for a 10 percent rating, but no higher, for hypertension have been met.  38 C.F.R. §§ 4.7, 4.104, DC 7101.

 

 

S. HENEKS

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	H. Rasul, 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.