Citation Nr: A25025167 Decision Date: 03/19/25 Archive Date: 03/19/25 DOCKET NO. 240425-434572 DATE: March 19, 2025 ORDER Entitlement to an initial 10 percent rating for service-connected hypertension is granted. FINDING OF FACT The most persuasive evidence reflects the Veteran had a history of elevated blood pressure which required continuous medication for control; his hypertension was not shown to be manifested by diastolic pressure predominantly at 110 or more or systolic pressure predominantly at 200 or more. CONCLUSION OF LAW The criteria for entitlement to an initial 10 percent rating for service-connected hypertension have 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 served on active duty from August 1989 to October 1996. He is in receipt of a Southwest Asia Service Medal with 3 Bronze Service Stars. The rating decision on appeal was issued in March 2024 and constitutes an initial decision; therefore, the modernized review system, also known as the Appeals Modernization Act (AMA), applies. In the April 2024 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 March 2024 agency of original jurisdiction (AOJ) decision on appeal. 38 C.F.R. § 20.301. If evidence was submitted after the AOJ issued the decision on appeal, the Board did not consider it in its decision. 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 claims, considering the new evidence in addition to the evidence previously considered. Id. Specific instructions for filing a Supplemental Claim are included with this decision. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of, or incident to, military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The veteran's entire history is to be considered when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Where, as here, the question for consideration is the propriety of the initial rating assigned, evaluation of the medical evidence since the effective date of the grant of service connection and consideration of the appropriateness of the assignment of different ratings for distinct periods of time, based on the facts found is required. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Where there is a question as to which of two evaluations shall be applied, 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. When all the evidence is assembled, VA is responsible for determining whether the weight of the evidence is in approximate balance. If the positive and negative evidence is evenly or approximately balanced, the claimant receives the benefit of the doubt. Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (en banc) (only when the evidence persuasively favors one side or another is the benefit of the doubt doctrine not for application). Entitlement to an initial 10 percent rating, but no higher, for service-connected hypertension is granted. Throughout the period on appeal, the Veteran's hypertension has been currently evaluated as noncompensable, effective September 11, 2022, under 38 C.F.R. § 4.104, Diagnostic Code 7101. The Board notes that VA has amended the rating criteria for cardiovascular system disabilities effective from November 14, 2021. These new regulations apply to all applications for benefits received by VA or that are pending before the agency of original jurisdiction on or after November 14, 2021. Claims pending prior to the effective date will be considered under both old and new rating criteria, and whatever criteria is more favorable to the veteran will be applied. The Board may not apply a current regulation prior to its effective date, unless the regulation explicitly provides otherwise. Kuzma v. Principi, 341 F.3d 1327 (Fed. Cir. 2003). However, the Board is not precluded from applying prior versions of the applicable regulation to the period on or after the effective dates of the new regulation if the prior version was in effect during the pendency of the appeal. Diagnostic Code 7101 was not changed by the November 14, 2021 amendments. Under Diagnostic Code 7101, a minimum 10 percent rating is assigned for diastolic pressure (the lower number in a blood pressure reading) predominantly 100mm or more, or the systolic pressure (the higher number) is predominantly 160mm or more, or; a minimum 10 percent rating is assigned for an individual with a history of diastolic pressure predominantly 100mm or more who requires continuous medication for control. A 20 percent rating is assigned for diastolic pressure predominantly 110mm or more or when systolic pressure is predominantly 200mm or more. A 40 percent rating is assigned for diastolic pressure predominately 120mm or more. A maximum 60 percent rating is assigned for diastolic pressure predominantly 130mm or more. Note 1 provides that hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. For purposes of this section, the term hypertension means that the diastolic blood pressure is predominantly 90mm. or greater, and isolated systolic hypertension means that the systolic blood pressure is predominantly 160mm. or greater with a diastolic blood pressure of less than 90mm. Note 2 directs to evaluate hypertension due to aortic insufficiency or hyperthyroidism, which is usually the isolated systolic type, as part of the condition causing it rather than by a separate evaluation. Note 3 directs to evaluate hypertension separately from hypertensive heart disease and other types of heart disease. In every instance, as in this case, where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. Where, as here, the diagnostic code contemplates the effect of the medication, the disability is to be rated as the symptoms are with the medication. McCarroll v. McDonald, 28 Vet. App. 267 (2016). In a recent U.S. Court of Appeals for Veterans Claims (Court) decision, Wilson v. McDonough, 35 Vet. App. 75 (2021), the Court held that under Diagnostic Code 7101, the 10 percent rating criteria language, "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 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. The Veteran was afforded a VA examination in October 2023. The Veteran reported that that he was diagnosed with hypertension in 1994 after his blood pressures did not stabilize to normotensive range. After trial of lifestyle modifications, the Veteran's primary care provider recommended to begin oral hypotensive. The examiner noted that the Veteran's hypertension requires continuous medication, including Lisinopril and HCTZ/Triamterene. The VA examiner found that the Veteran did not have a history of a diastolic BP elevation to predominantly 100mm or more. During an objective evaluation, the Veteran's current blood pressure readings were recorded as follows: 148/95; 144/91; and 140/90. The October 2023 VA examiner determined that the Veteran's hypertension impacted his ability to work, in that the Veteran must avoid occupational tasks which require full, part time or per diem employment without breaks to take medication to prevent complications of hypertensive disease mainly cerebral vascular accident. The Veteran underwent another VA examination in November 2023. During an objective evaluation, the Veteran's current blood pressure readings were recorded as follows: 96/68; 119/81; 120/83. The examiner noted that the Veteran does not have a history of diastolic blood pressure elevation to predominately 100 or more. The examiner noted that the Veteran's symptoms are controlled with medications. There was no functional impact. In his 10182, the Veteran expressed disagreement with his noncompensable rating noting that he has been on blood pressure medication for more than 15 years. The Veteran has not specifically contended that there is a blood pressure reading that warrants a compensable rating. According to available VA and private treatment records, the Veteran started receiving medication to treat his hypertension in approximately March 2004. Thus, prior to the Veteran taking medication to control his hypertension, VA treatment records from November 1999 to February 2004, include blood pressure (BP) readings, which were recorded as follows: December 20, 1996 (general VA examination) - 140/70 (recumbent); 145/75 (sitting); 140/70 (standing); September 3, 1999 - 145/100; September 8, 1999 - 155/94; November 2, 1999 - 139/88; May 9, 2000 - 147/77; November 7, 2000 - 148/83; March 9, 2001 - 143/86; and March 7, 2003 - 149/94. Post-medication readings include: June 3, 2005 - 145/100; July 26, 2006 - 154/92; October 11, 2007 - 138/95; April 28, 2008 - 120/70; January 23, 2009 - 127/93; October 1, 2010 - 120/76; January 8, 2012 - 122/84; June 24, 2013 - 149/105; June 22, 2015 - 123/88; November 9, 2015 - 124/80; April 4, 2017 - 161/110; April 20, 2017 - 124/82; January 17, 2019 - 115/78; July 1, 2020 - 124/87; November 23, 2020 - 159/106; January 14, 2021 - 117/70; April 13, 2022 - 114/80; June 24, 2022 - 137/93; and April 4, 2023 - 133/89. Based on the above, the Board resolves any doubt in the Veteran's favor in finding that the Veteran has likely had at least a brief history of elevated blood pressure levels which are sufficient to warrant a compensable rating. The Board recognizes the October and November 2023 VA examinations did not show a history of systolic pressure predominantly 160 or more or diastolic pressure predominantly 100 or more. Even so, the Veteran has clearly needed continuous medication for control of his hypertension for many years, and there is an instance of systolic pressure at 161 and diastolic pressure at 110. Accordingly, when considering both the medical evidence of record and the holding in Wilson v. McDonough, the Board finds the Veteran's hypertension warrants an initial 10 percent rating under DC 7101. The Board further finds entitlement to an initial rating in excess of 10 percent for hypertension is not warranted. The medical evidence of record reflects that throughout the appeal period the Veteran's blood pressure readings were consistently below the systolic and diastolic pressure readings contemplated by the 20 percent criteria, under DC 7101. More specifically, none of the medical records reflect evidence of blood pressure readings with diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. This is supported by blood pressure readings contained in the VA and private treatment records, as well as the readings recorded at the October and November 2023 VA examiners, which all show diastolic pressure below 110 and systolic pressure below 200. In sum, because the medical evidence does not support a finding that the Veteran's diastolic pressure was predominantly 110 or more or his systolic pressure was predominantly 200 or more, the criteria for a higher, 20 percent rating were not met. 38 C.F.R. § 4.104, DC 7101. The Veteran has not asserted the specific criteria for a 20 rating were met at any point during the appeal period. While the medical evidence shows the Veteran's hypertension required treatment with continuous medication, this finding is contemplated by the currently assigned 10 percent rating. Id. For these reasons, the Board finds the evidence supports an initial 10 percent rating but persuasively weighs against finding that an initial rating in excess of 10 percent is warranted. In making this finding, the Board has resolved all reasonable doubt in the Veteran's favor. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Lynch, 21 F.4th at 776. LESLEY A. REIN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. Gates 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.