Citation Nr: 25005673
Decision Date: 04/25/25	Archive Date: 04/25/25

DOCKET NO. 16-53 490A
DATE: April 25, 2025

ORDER

Entitlement to a 40 percent disability rating for hypertension from August 1, 2019 to September 18, 2019 is granted; however, a rating in excess of 10 percent at any other point during the appeal period is denied. 

FINDING OF FACT

From August 1, 2019 to September 18, 2019, the Veteran's hypertension manifested in diastolic pressure predominantly 120 or more, but not at any other point during the appeal period.

CONCLUSION OF LAW

From August 1, 2019 to September 18, 2019, the criteria for a disability rating of 40 percent for hypertension are met; however, the criteria are not met for a rating greater than 10 percent at any other point during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.104, Diagnostic Code 7101.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty in the United States Army from November 1989 to March 1991. 

This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2014 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO), also known as the Agency of Original Jurisdiction (AOJ). The Veteran filed a Notice of Disagreement in February 2015. The Veteran perfected his appeal to the Board in the November 2016 VA Form 9. This appeal was most recently remanded by the Board in November 2024. Subsequently, the AOJ issued the February 2025 Supplemental Statement of the Case (SSOC). 

Increased Ratings

Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3.

Separate ratings can be assigned for separate periods based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate whenever the factual findings show distinct periods where the service-connected disability exhibits symptoms that would warrant different ratings. Id.

Entitlement to a rating greater than 10 percent for hypertension prior to March 8, 2022. 

Legal Criteria

Hypertension is rated pursuant to 38?C.F.R. §?4.104, Diagnostic Code 7101, for hypertensive vascular disease (hypertension and isolated systolic hypertension).  Under Diagnostic Code 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. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more. A 40 percent rating is warranted for diastolic pressure predominantly 120 or more.

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.

Factual Background

As a preliminary matter and by way of history, this case began when the Veteran filed a claim for a higher disability rating for hypertension in September 2014. See September 2014 Application for Disability Compensation and Related Compensation Benefits. The Veteran was denied an increased rating in the December 2014 rating decision. Eventually, the Board also denied the increased rating claim in January 2020. The Veteran appealed the Board's decision to the Court of Appeals for Veterans Claims (CAVC), and the appeal was remanded back to the Board in June 2021. Subsequently, the AOJ granted a 40 percent rating effective March 8, 2022, but did not increase the rating prior to March 8, 2022. See March 2022 rating decision. The Board then denied a rating in excess of 10 percent prior to March 8, 2022, as well as a rating in excess of 40 percent from March 8, 2022. See December 2022 Board decision. The Veteran again appealed the Board's decision to CAVC, which remanded the issue of a rating in excess of 10 percent prior to March 8, 2022, while dismissing the appeal as to the 40 percent rating from March 8, 2022. See October 2023 CAVC Joint Motion for Partial Remand and Order. The basis for CAVC's remand was that the Board did not properly consider self-reported blood pressure logs that were submitted by the Veteran for August and September 2019, and whether the Veteran was entitled to a staged rating from August to September 2019. After the CAVC remand, the issue was remanded by the Board in March 2024, July 2024, and most recently in November 2024. The November 2024 Board decision remanded so that a VA examiner could properly compare the Veteran's August and September 2019 blood pressure reading logs to VA treatment record readings during that same period. The VA treatment record blood pressure readings from July, August, and September 2019 were significantly lower than the self-reported readings. 

The Board notes that the VA received an informal claim/intent to file on August 26, 2014, which was within one year of the September 18, 2014 claim. Therefore, given the one-year look-back period, the Board must consider whether the Veteran is entitled to a disability rating greater than 10 percent for hypertension from August 26, 2013 or at any point until March 7, 2022. See 38 C.F.R. § 3.400 (o); Gaston v. Shinseki, 605 F.3d 979 (Fed. Cir. 2010). As stated previously, the October 2023 CAVC Order dismissed the appeal as to the 40 percent rating from March 8, 2022. Additionally, the Board notes that the Veteran's hypertension rating was decreased to 10 percent effective July 1, 2024, in the April 2024 rating decision. However, the rating reduction is not on appeal in this case. 

The Veteran has been afforded multiple VA examinations during and approximate to the appeal period that are relevant to his increased rating claim. First, the Veteran was afforded a VA examination for hypertension in November 2014. The examiner explained that the Veteran was on two medications to control his blood pressure. During the examination, the Veteran's blood pressure was measured at 136/83, 138/84, and 140/87. The Veteran was also afforded a VA examination for his blood pressure in March 2022. The examiner reported blood pressure readings from October and November 2014, which were 179/103, 205/106, 210/104, 222/114, 198/111, and 181/105. During the examination, the Veteran's blood pressures were measured at 219/116, 220/130, and 240/140. However, a March 2022 VA addendum opinion stated that the readings from the March 2022 VA examination were isolated. Moreover, a March 2022 VA treatment stated that the Veteran was referred to the emergency room on the date of the examination and reported that he did not take his blood pressure medication on that day. 

Furthermore, the Veteran's VA treatment records are relevant to his increased rating claim. VA treatment records show blood pressure readings as follows: 126/73 on August 27, 2013; 178/110 on January 3, 2014; 204/133 on January 10, 2014; 158/89 on January 27, 2014; 126/75 on February 24, 2014; 101/66 on March 23, 2014; 168/98 on March 27, 2014; and 151/81 on August 22, 2014. See August 2013, January 2014, February 2014, March 2014, and August 2014 VA treatment records. 

Moreover, the Veteran was hospitalized for uncontrolled hypertension on October 14, 2014. At the time of his admission, his blood pressure was 222/102. His blood pressure medication was adjusted, and he was discharged the next day. On October 28, 2014, his blood pressure reading was 106/67. See October 2014 VA treatment records. 

Additionally, VA treatment records show a blood pressure reading on December 8, 2014, of 198/100. The Veteran reported that he took his morning blood pressure medication but did not eat anything. In a December 18, 2014 VA treatment record, the blood pressure reading was 96/65 and the Veteran was seen for medication reconciliation. See December 2014 VA treatment records. Additional blood pressure readings for the period from January 2015 to June 2019 show that on one occasion, on March 11, 2015, diastolic pressure reached 110; however, a subsequent reading on that day showed diastolic pressure of 98. There is no record of systolic pressure reaching 200. See March 2015 VA treatment record. 

Furthermore, VA treatment records from June 2019 to May 2021 reflect blood pressure readings of 132/63 on July 9, 2019, 124/72 on October 24, 2019, and 114/72 on November 18, 2019. The Veteran was treated in the emergency room on January 15, 2020, for twitching of his left eye and back pain, and his blood pressure at that time was 158/85. He was admitted, and blood pressure later that day was 144/68. The Veteran was diagnosed with Bell's palsy and was discharged on January 17, 2020. The Veteran returned to the emergency room on January 21, 2020, with complaints of lower back pain, bilateral leg, and feet pain, and his blood pressure reading was 194/88. He was seen again in the emergency room on January 24, 2020, for cough and congestion, his blood pressure was 197/90. He was admitted again on February 28, 2020, for complaints of dysphagia and his blood pressure reading was 132/76. Furthermore, VA treatment records reflect the following blood pressure readings: 157/75 on May 20, 2020; 217/112 and 202/91 on September 13, 2020; 108/71 on September 14, 2020; and 154/87 on September 15, 2020. The Veteran's average blood pressure reading from November 11, 2020 through November 25, 2020, was 143/84 with highest reading of 184/96 and lowest reading of 113/70. The Veteran's average blood pressure reading from November 22, 2020 through December 9, 2020, was 144/83 with highest reading of 184/98 and lowest reading of 105/66; he reported that his blood pressure had been high because he was having back pains. The Veteran's average blood pressure reading from December 7, 2020 through January 5, 2021, was 140/85 with highest reading of 173/98 and lowest reading of 106/63. The Veteran's average blood pressure reading from December 20, 2020 through January 27, 2021, was 142/87 with highest reading of 170/98 and lowest reading of 109/73. Blood pressure readings on February 18, 2021 were 148/85, 102/65 and 131/84. The Veteran's average blood pressure reading from February 1, 2021 through March 1, 2021, was 125/77 with highest reading of 148/86 and lowest reading of 94/61. The Veteran's average blood pressure reading from March 11, 2021, through March 24, 2021, was 119/76 with highest reading of 150/91 and lowest reading of 86/58. The Veteran's average blood pressure reading from March 20, 2021 through April 2, 2021, was 136/82 with highest reading of 195/108 and lowest reading of 86/58. The Veteran's average blood pressure reading from March 23, 2021 through April 21, 2021, was 129/79 with highest reading of 195/108 and lowest reading of 86/58. The Veteran's average blood pressure reading from April 20, 2021 through May 19, 2021, was 142/87 with highest reading of 190/99 and lowest reading of 94/66.

Additionally, VA treatment records from June 2021 through March 2022 include records of blood pressure readings. The Veteran's blood pressure readings from May 6, 2021 to June 4, 2021, averaged 143/88, with the highest reading of 188/101 and the low of 111/67. The Veteran's blood pressure readings from June 22, 2021 to July 12, 2021, averaged 132/85, with the highest reading of 160/101 and the low of 108/78. VA treatment records received in March 2022 show the following isolated elevated blood pressure readings: 211/99 on January 4, 2020; 179/84, 202/91, 197/90 on January 24, 2020; and 224/128, 239/124, 230/113, 207/86, 190/94, 186/87, 183/88, 181/64 on March 8, 2022. Notes from March 8, 2022, indicate the Veteran was in the neurology clinic and was sent to the emergency room for his elevated blood pressure. He reported that he did not take antihypertensive medication that morning, but that he did take it the day before.

Moreover, during the September 2019 Board hearing, the Veteran stated that his hypertension rating should be greater than 10 percent because he was hospitalized a couple times because of blood pressure, he was on three separate blood pressure medications, and he believed that his headaches were caused by his high blood pressure. 

Finally, the crux of this case and the reason for the multiple CAVC and Board remands was correspondence from the Veteran received on October 7, 2019. This correspondence included a list of the following self-reported blood pressure readings from August 1, 2019 to September 18, 2019: 162/132, 152/127, 164/124, 158/129, 164/128, 173/132, 169/144, 168/129, 152/132, 165/128, 162/129, 158/119, 158/138, 162/133, 165/144, 163/126, 166/131, 160/127, 144/129, 150/131, 155/132, 147/126, 146/133, 157/138, 153/129, 151/123, 152/128, 164/129, 166/122, 147/134, 162/132, 165/120, 152/127, 164/124, 165/128, 158/129, and 158/119. The issue was that during and around that same time, VA treatment records showed the following blood pressure readings that were significantly lower including 132/63 on July 9, 2019, 132/63 on August 2, 2019, 144/72 on September 7, 2019, 138/75 and 152/72 on September 12, 2019, and 117/73 on September 19, 2019. As such, the Board remanded multiple times for a VA examiner to opine on whether the Veteran's self-reported blood pressure values from August 2019 and/or September 2019 more reliably reflected his true blood pressure readings, as compared to the blood pressure values from the July, August, and September 2019 VA treatment records. See March 2024, July 2024, and November 2024 Board decisions. 

Two VA medical opinions were rendered in response to the Board remands. First, the August 2024 VA examiner stated that the Veteran's reported home and medical setting blood pressure readings are both taken into account for the determination of severity. The examiner also stated that home blood pressures are just as reliable as a medical setting unless there is a large discrepancy in the numbers obtained compared to the medical setting. The examiner further explained that the Veteran had to be put on additional blood pressure medications during 2019, and that his blood pressure was likely consistently elevated leading up to the additional medication. Second, the December 2024 VA examiner stated that the Veteran's blood pressure logs from 2019 more accurately reflected his blood pressure on an average basis. The examiner further explained that the blood pressure logs showed evidence of uncontrolled hypertension in the presence of multiple drug regimens, as well as up-titrations. Finally, the examiner stated that additional evidence of uncontrolled hypertension includes readings of 180/114 in July 2020 and 210/130 in April 2021. 

Analysis

As stated previously, the Veteran's hypertension is currently rated at 10 percent prior to March 8, 2022. A 20 percent rating requires diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more, a 40 percent rating requires diastolic pressure predominantly 120 or more, and a 60 percent rating requires diastolic pressure predominantly 130 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. 

The October 2023 CAVC decision requires that the Board specifically consider whether a staged rating is appropriate, considering the Veteran's August and September 2019 self-reported blood pressure logs. Given that the August 2024 and December 2024 VA examiners stated that those self-reported readings accurately reflected the Veteran's hypertension at that time, the Board finds that a 40 percent rating is appropriate from August 1, 2019 to September 18, 2019. Those logs show that the Veteran had 17 blood pressure readings in August that had diastolic values of 120 or more and 13 readings that had diastolic values of 130 or more. Furthermore, during September, the logs show that the Veteran had 1 diastolic reading of 110 or more, 5 diastolic readings of 120 or more, and 1 diastolic value of 130 or more. Additionally, the previously discussed July, August, and September 2019 VA treatment records did not have any diastolic values that were 110 or more. None of the systolic values from the self-reported logs or July, August, and September VA treatment records were 200 or more. 

Accordingly, given that over 50 percent of the diastolic values were between 120 and 129 in the August and September 2019 self-reported blood pressure logs, the Board finds that the Veteran had diastolic pressure predominantly 120 or more from the first date of the logs, August 1, 2019, to the last date of the logs, September 18, 2019. Therefore, a 40 percent rating for hypertension is granted from August 1, 2019 to September 18, 2019. The Board notes that August 1, 2019 and September 18, 2019 are the most appropriate factually ascertainable dates for the staged rating because the July 9, 2019 VA treatment record showed a blood pressure of 132/63 and the September 19, 2019 VA treatment record had a blood pressure of 117/73. Furthermore, as will be explained in more detail below, VA treatment records show that from August 26, 2013 to July 31, 2019 and from September 19, 2019 to March 7, 2022, the Veteran's diastolic pressure was not predominantly 110 or more and his systolic pressure was not predominantly 200 or more, as required for a 20 percent rating. See 38 C.F.R. § 4.104, Diagnostic Code 7101. 

A 60 percent rating is not warranted during that staged period. The Board acknowledges that the August and September 2019 self-reported blood pressure logs had some diastolic pressures that were 130 or more. However, the Veteran had 13 readings of 130 or more, as opposed to 17 readings of 120 to 129. Therefore, the Veteran did not have blood pressures that were predominantly 130 or more, as required for a 60 percent rating under Diagnostic Code 7101. See 38 C.F.R. § 4.104. 

The Board has also considered whether the Veteran is entitled to a disability rating greater than 10 percent for hypertension from August 26, 2013 to July 31, 2019, as well as from September 19, 2019 to March 7, 2022. As shown in the factual background section, the Veteran's blood pressure readings from August 26, 2013 to July 31, 2019 and from September 19, 2019 to March 7, 2022 do not show that the Veteran's diastolic pressure was predominantly 110 or more, and did not indicate his systolic pressure was predominantly 200 or more, as required for a 20 percent rating. See 38 C.F.R. § 4.104, Diagnostic Code 7101. Most of the blood pressure readings as shown in the VA treatment records and VA examinations discussed in the factual background were under 200 for systolic pressure and under 110 for diastolic pressure. Accordingly, the Veteran's hypertension was not characterized by diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more from August 26, 2013 to July 31, 2019 or from September 19, 2019 to March 7, 2022. Therefore, entitlement to a rating greater than 10 percent for those time periods is not warranted.  

 

Wendy Daknis

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Brodbeck, Douglas E.

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.