Citation Nr: A25035002 Decision Date: 04/16/25 Archive Date: 04/16/25 DOCKET NO. 230629-357954 DATE: April 16, 2025 ORDER Entitlement to a compensable evaluation for hypertension is denied. FINDINGS OF FACT 1. The Veteran has required medication for control of his hypertension, but he has not been shown to have a history of diastolic pressure predominantly 100 or more. 2. During the appeal period, the Veteran's diastolic pressure has not been predominantly 100 or more, and his systolic pressure has not been predominantly 160 or more. CONCLUSION OF LAW The criteria for a compensable evaluation for hypertension have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.102, 4.1-4.14, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from July 1978 to August 1992 and from March 2003 to March 2004. In February 2023, the Veteran submitted a VA Form 20-0996, requesting higher level review (HLR) of an August 2022 rating decision. In May 2023, the agency of original jurisdiction (AOJ) issued the HLR decision on appeal, which considered the evidence of record at the time of the prior August 2022 decision. The Veteran submitted a VA Form 10182 in June 2023 and elected the direct review docket. Therefore, the Board may only consider the evidence of record at the time of the August 2022 agency of original jurisdiction (AOJ) decision, which was subsequently subject to higher-level review. 38 C.F.R. § 20.301. If evidence was submitted during the period after the AOJ issued the decision, which was subsequently subject to higher-level review, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.301, 20.801. Moreover, the Board sent a letter to the Veteran and his representative in January 2025 to notify him that it could not consider any evidence submitted with the June 2023 VA 10182 in the absence of an approved docket switch request. The Board explained that requests to change AMA (modernized review system) dockets must be filed at the Board within 60 days of the date the Board received the already submitted VA Form 10182 or within one year of the VA decision being appealed, whichever date is later, but that the Veteran could request an extension of time to submit a docket switch request if he had good cause. See also Edwards v. McDonough, 36 Vet. App. 56 (2023). The Veteran and his representative did not respond to that letter. Therefore, the Board will proceed with adjudication of the appeal on the direct review docket. If the Veteran would like VA to consider any evidence that was submitted that the Board could not consider, he 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. Law and Analysis Neither the Veteran nor his representative has raised any issues with the pre-decisional duty to notify or duty to assist with regard to the issue decided herein. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 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. 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. 38 C.F.R. § 4.7. In considering the severity of a disability, it is essential to trace the medical history of the veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). While the regulations require review of the recorded history of a disability by the adjudicator to ensure a more accurate evaluation, the regulations do not give past medical reports precedence over the current medical findings. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, where the question for consideration is the propriety of the initial ratings assigned, evaluation of the evidence since the effective date of the grant of service connection is required. Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). Where VA's adjudication of the claim for increase is lengthy and factual findings show distinct time periods where the service-connected disability exhibits symptoms which would warrant different ratings, different or "staged" ratings may be assigned for such different periods of time. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson, 12 Vet. App. at 126-27. Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Lynch v. McDonough, 21 F.4th 776 (Fed. Cir. 2021) (benefit-of-the-doubt rule not for application when evidence persuasively favors one side or the other). The Veteran's service-connected hypertension is currently assigned a noncompensable evaluation, pursuant to 38 C.F.R. § 4.104, Diagnostic Code 7101. Under that diagnostic code, a 10 percent evaluation is assigned for diastolic pressure predominantly 100 or more; systolic pressure predominantly 160 or more; or, 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 warranted for diastolic pressure predominantly 110 or more; or, systolic pressure predominantly 200 or more. A 40 percent evaluation is assigned for diastolic pressure predominantly 120 or more, and a 60 percent rating is warranted for diastolic pressure predominantly 130 or more. There are three notes to 38 C.F.R. § 4.104, Diagnostic Code 7101. 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 (i.e., bottom number) is predominantly 90 mm or greater, and isolated systolic hypertension means the systolic blood pressure (i.e., top number) is predominantly 160 mm or greater with a diastolic blood pressure of less than 90 mm. Note (2) requires the evaluation of 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) states that hypertension should be evaluated separately from hypertensive heart disease and other types of heart disease. Under Diagnostic Code 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. Wilson v. McDonough, 35 Vet. App. 75 (2021). In considering the evidence of record under the laws and regulations as set forth above, the Board finds that the Veteran is not entitled to a compensable evaluation for his service-connected hypertension. The Board acknowledges that the Veteran has been prescribed medication for control of his hypertension. However, the evidence does not show that he has a history of diastolic pressure predominantly 100 or more. Moreover, the evidence does not show that his diastolic pressure has been predominantly 100 or more or that his systolic pressure has been predominantly 160 or more during the appeal period. Historically, the record indicates that the Veteran was diagnosed with hypertension in 2003 following complaints of a headache. It was noted at that time that he was incidentally discovered to have hypertension in the high 140s/90s range. He was started on Norvasc, and his blood pressure lowered to the 130s/70s-80s. See, e.g., October 2003 service treatment records; February 2022 VA examination report. The Veteran's service treatment records did not document diastolic blood pressure readings predominantly 100 or more. Nor are there any other treatment records documenting blood pressure readings predominantly 100 or more prior to the appeal period. Moreover, the post-service treatment records do not show that the Veteran's diastolic pressure has been predominantly 100 or more or that his systolic pressure has been predominantly 160 or more during the appeal period. Indeed, the medical records document his systolic pressure as being under 160 and his diastolic pressure under 100 on numerous occasions. See e.g., July 2021, August 2021, September 2021, November 2021, January 2022, March 2022, September 2022, and November 2022 VA treatment records. The Board does acknowledge that the Veteran's blood pressure was recorded as 169/96 on one occasion in an October 2022 VA treatment record. However, one isolated reading does not demonstrate that his blood pressure has been predominantly 160 or more when viewed in context of the other numerous readings showing that it has been less than 160. In addition, the February 2022 VA examiner documented blood pressure readings of 152/88, 142/86, and 140/88 and found that the Veteran does not have a history of diastolic blood pressure elevated to predominantly 100 or more. It was noted that he takes hydrochlorothiazide, Lisinopril and Metoprolol for control. There were no other pertinent physical findings, complications, conditions, signs, or symptoms and the examiner found no functional impact due to his hypertension. See also April 2022 private disability benefits questionnaire (DBQ) from P.K. (initials used to protect privacy) (noting that the Veteran's hypertension does not affect his ability to work and is well-controlled with medications; listed blood pressure readings of 136/76 in March 2022, 132/68 in January 2022, and 134/74 in November 2021). Based on the foregoing, evidence does not persuasively show that the Veteran has a history of diastolic pressure predominantly 100 or more or that his diastolic pressure has been predominantly 100 or more or that his systolic pressure has been predominantly 160 or more during the appeal period. The Board again acknowledges that the Veteran takes medication to control his blood pressure and that the April 2022 DBQ from P.K. indicates that his blood pressure would be greater than 160/100 without the use of medication. See also May 2022 statement; August 2023 appellate brief. However, the rating criteria for hypertension specifically contemplate the use of medication to ameliorate symptoms, and a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat the disorder. 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."). Indeed, in McCarroll v. McDonald, 28 Vet. App. 267 (2016), the Court specifically held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication, as the plain language of Diagnostic Code 7101 contemplates the effects of medications. For these reasons, the Board finds that the evidence persuasively weighs against the claim. Accordingly, the Board concludes that a compensable evaluation is not warranted for hypertension, and the appeal is denied. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366, 368 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). J.W. ZISSIMOS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board D.S. Chilcote 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.