Citation Nr: A24029770 Decision Date: 06/06/24 Archive Date: 06/06/24 DOCKET NO. 230908-376070 DATE: June 6, 2024 ORDER Entitlement to an initial compensable disability rating for hypertension is denied. FINDING OF FACT The Veteran's hypertension has not manifested in diastolic pressure predominantly 100 or more, or systolic pressure predominantly 160 or more. Nor did the Veteran both have a history of diastolic pressure predominantly 100 or more and require continuous medication for control. CONCLUSION OF LAW The criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code (DC) 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service in the Navy from September 1963 to September 1967. This matter comes before the Board of Veterans' Appeals (Board) from an August 2023 rating decision by the agency of original jurisdiction (AOJ). The modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the September 2023 VA Form 10182, Decision Review Request: Board Appeal (Notice of Disagreement), the Veteran elected the Direct Review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2023 AOJ decision on appeal. 38 C.F.R. § 20.301. Any evidence submitted after the AOJ decision on appeal cannot be considered by the Board. 38 C.F.R. §§ 20.300, 20.301, 20.801. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, the Veteran may file a Supplemental Claim (VA Form 20-0995) and submit or identify this evidence. 38 C.F.R. § 3.2501. If the evidence is new and relevant, VA will issue another decision on the claim, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. This matter has come before the Board previously. In September 2023, the Board denied the Veteran's claim for an initial compensable disability rating for hypertension. The Veteran appealed to the Court of Appeals for Veterans Claims (Court). In February 2024, the Court granted the parties' Joint Motion for Remand (JMR), the substance of which is discussed below. The matter now returns to the Board. On remand from the Court, the Veteran has asked that the Board also adjudicate his entitlement to a total disability rating based on individual unemployability (TDIU). However, in a January 2024 decision on a separate appeal, the Board remanded entitlement to a TDIU, to include on an extraschedular basis, for referral to the Director of Compensation Service. That remand remains pending at the AOJ. Thus, the Board will not address entitlement to a TDIU in this appeal. This appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.902(c), 38 U.S.C. § 7107(b). Entitlement to an initial compensable disability rating for hypertension In granting service connection, the AOJ assigned an initial non-compensable disability rating for the Veteran's hypertension. The Veteran contends that he is entitled to a compensable rating based, in part, on a 1985 blood pressure reading of 230/130. Disability ratings are determined by applying a schedule of ratings that is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R., Pt. 4. Each disability must be viewed in relation to its history, and the limitation of activity imposed by the disabling condition should be emphasized. 38 C.F.R. § 4.1. Examination reports are to be interpreted in light of the whole recorded history, and each disability must be considered from the point of view of the veteran working or seeking work. 38 C.F.R. § 4.2. All reasonable doubt will be resolved in the claimant's favor. 38 C.F.R. § 4.3. Where there is a question as to which of two disability evaluations shall be applied, the higher evaluation is to be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating is to be assigned. 38 C.F.R. § 4.7. Hypertension is rated pursuant to 38?C.F.R. §?4.104, DC 7101, for hypertensive 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 it is the minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control. The term "predominant" is not defined in the rating criteria. However, reputable dictionaries define predominant to mean "being most frequent or common," "most frequent, noticeable, etc. prevailing; preponderant," and "more noticeable or important, or larger in number, than others." See, e.g., "predominant," Merriam-Webster.com Online Dictionary, available at https://www.merriam-webster.com/dictionary/predominant (retrieved May 31, 2024); "predominant," Webster's New World College Dictionary, 4th ed., available at https://www.collinsdictionary.com/us/dictionary/english/predominant (retrieved May 31, 2024); "predominant," Cambridge Advanced Learner's Dictionary and Thesaurus, available at https://dictionary.cambridge.org/dictionary/english/predominant (retrieved May 31, 2024). Similarly, VA's Adjudication Procedures Manual (M21-1) defines predominant in DC 7101 to mean "most common or prevailing." V.iii.5.3.e. Although the Board is not bound by the M-21-1, it is "required to discuss any relevant provisions as part of the duty to provide adequate reasons or bases if the Board chooses to rely on an M21-1 provision as a factor to support its decision." Overton v. Wilkie, 30 Vet. App. 257, 264 (2018). In this case, the Board finds the M21-1's guidance helpful insofar as it is consistent with the dictionary definitions discussed above. For the reasons that follow, the Veteran's hypertension has not more nearly approximated the criteria corresponding to a 10 percent rating. The Veteran appeared for a VA hypertension examination in August 2023. At that time, the examiner noted that the Veteran's treatment plan included taking continuous medication for hypertension. The VA examiner documented blood pressure readings taken over the course of three days, as follows:152/77 and 154/82 on day one, 153/79 and 162/68 on day two, and 152/83 and 156/79 on day three. The examiner indicated that the Veteran did not have a history of diastolic blood pressure elevation to predominantly 100 or more. The examiner also documented three additional blood pressure readings, as follows: 158/86, 156/76, and 158/73. A May 2023 VA treatment record documents a January 2023 blood pressure reading of 176/81, and a May 2023 emergency department triage note documents a blood pressure reading of 183/81. Another measurement taken the same day documents a blood pressure reading of 153/71. A May 2023 VA heart conditions examination documents pressure readings of 130/78, 136/82, and 132/80. The Board acknowledges that, in 1985, the Veteran had a blood pressure reading of 230/130. The Veteran asserts that this reading, on its own, entitles him to an initial compensable disability rating for hypertension, as it includes a diastolic pressure of 100 or greater and a systolic pressure of 160 or greater. And in addition to the 1985 reading, the Board acknowledges, some of the readings discussed above - the May 2023 VA treatment record and emergency department triage note, and one of the measurements on day two of the August 2023 VA examination - also document a systolic blood pressure of 160 or greater. These readings nonetheless do not warrant a compensable rating. As discussed above, DC 7101 directs attention to a claimant's "predominant" blood pressure readings - that is, the most common or frequent readings. In this case, the Veteran's most common readings - five of the six at the August 2023 VA examination, three others documented by that examiner, and four other measurements from May 2023 - document a diastolic pressure of less than 100 and a systolic blood pressure of less than 160. These more numerous findings thus reflect that the Veteran's predominant medical history is consistent with his current, noncompensable disability rating. The analysis above is consistent with the Court's order. In the JMR, the parties agreed that the Board erred by declining to consider a 1985 blood pressure reading of 230/130 because, in part, this reading was "well outside the period of appeal." This reasoning, the parties agreed, was inconsistent with the Court's holding in Wilson v. McDonough, 35 Vet. App. 75, 76 (2021), that DC 7101 directs VA to consider historical, rather than current, blood pressure readings, and that the Board errs when it declines to assess a Veteran's blood pressure readings prior to the rating period. Thus, the parties agreed, remand was required for the Board to "substantively address the 1985 blood pressure reading in compliance with Wilson." The Court in Wilson addressed what blood pressure readings are chronologically relevant to DC 7101. At no point did the Court address the definition of "predominantly" in the DC. As discussed above, reputable dictionaries and the M21-1 (on which the Court partially relied in Wilson, 35 Bet. App. at 79-80) define this term to mean most common or prevailing. Although relevant under DC 7101, the 1985 reading is not the Veteran's most common or prevailing blood pressure, which has generally reflected a diastolic pressure of less than 100 and a systolic pressure of less than 160. Thus, addressing the 1985 blood pressure substantively, the Board finds that it does not warrant a compensable rating. Accordingly, the Board finds that the claim of entitlement to a compensable disability rating for hypertension must be denied. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the evidence persuasively weighs against the Veteran's claim of entitlement to an increased rating, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) D. SMART Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D. Mansfield, 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.