Citation Nr: A25035962 Decision Date: 04/18/25 Archive Date: 04/18/25 DOCKET NO. 240424-434946 DATE: April 18, 2025 ORDER A rating of 10 percent, but no greater, for hypertension is granted, subject to the regulations governing the payment of monetary awards. REMANDED Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy, left lower extremity is remanded. Entitlement to an initial rating in excess of 10 percent for diabetic peripheral neuropathy, right lower extremity is remanded. FINDING OF FACT The Veteran takes continuous medication for his hypertension, but it has not manifested with a diastolic pressure predominately 110 or more or a systolic pressure predominately 200 or more. CONCLUSION OF LAW The criteria for entitlement to rating of 10 percent, but no greater, for hypertension have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.104, Diagnostic Code 7101. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had active service from January 1970 to September 1971. The rating decision on appeal was issued in September 2023 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 Hearing docket. In November 2024, the Veteran was notified by letter that he had been scheduled for a hearing to be held in December 2024. However, on November 22, 2024, the Veteran, through his representative, withdrew the hearing request. Therefore, the Board may only consider the evidence of record at the time of the September 2023 agency of original jurisdiction (AOJ) decision on appeal, as well as any evidence submitted by the Veteran or his representative within 90 days following receipt of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). If evidence was submitted either (1) during the period after the AOJ issued the decision on appeal and prior to receipt of the withdrawal, or (2) more than 90 days following receipt of the withdrawal, the Board did not consider it in its decision. 38 C.F.R. §§ 20.300, 20.302(b), 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. However, because the Board is remanding the claims of initial ratings in excess of 10 percent for right and left lower extremity diabetic neuropathy, any evidence the Board could not consider will be considered by the AOJ in the adjudication of those claims. 38 C.F.R. § 3.103(c)(2)(ii). 1. Entitlement to a compensable rating for hypertension The Veteran contends he is entitled to a compensable rating for his hypertension. Specifically, his representative has argued that his blood pressure readings prior to taking medication should be considered. See February 2025 Attorney Brief. The Veteran currently has a noncompensable rating for his hypertension, effective August 10, 2022, under Diagnostic Code 7101. 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 predominately 120 or more. A 60 percent rating is warranted for diastolic pressure predominately 130 or more. The term "predominant" is not defined in the rating criteria. Merriam-Webster defines predominant to mean "being most frequent or common." See "predominant," Merriam-Webster.com Online Dictionary, https://www.merriam-webster.com/dictionary/predominant. In rating hypertension under Diagnostic Code 7101, the Board may consider blood pressure readings taken while a veteran is using medication. McCarroll v. McDonald, 28 Vet. App. 267, 271 (2016) (holding that Diagnostic Code 7101 contemplates the effects of medication and therefore Jones v. Shinseki, 26 Vet. App. 56 (2012) does not apply). Additionally, 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, 79 (2021). The record reflects that the Veteran has been on various medications to treat hypertension for many years. Records suggest multiple changes and additions to his medication over the years as well as varying compliance. A December 2007 VA treatment record indicates that the Veteran reported taking blood pressure readings in the morning prior to daily medication that were 168/110, 167/104, 151/104, and 154/102. His medication was changed at that time. In December 2009, a VA treatment record notes blood pressure readings of 150/100, 158/97, and 155/95. The Veteran's medication was again changed. Additional blood pressure readings periodically show diastolic pressure of 100 or more throughout the many years the Veteran has been on medication for control. The Board finds that giving the Veteran the benefit of the doubt, the evidence supports that the Veteran has a history of diastolic pressure predominantly 100 or more and requires continuous medication for control. Thus, a 10 percent rating is warranted. As for whether a rating in excess of 10 percent is warranted, although some elevated readings are shown throughout the years, the record does not reflect readings predominantly with a diastolic pressure 110 or more or a systolic pressure 200 or more. Thus, the Board finds that the criteria for a rating in excess of 10 percent are not met or more closely approximated. Based on the forgoing, the Board finds that the evidence is persuasive that a rating of 10 percent, but no greater, is warranted for the Veteran's hypertesnion. See Lynch v. McDonough, 21 F.4th 776, 781-82 (2021). REASONS FOR REMAND 1. Entitlement to initial ratings in excess of 10 percent for diabetic peripheral neuropathy, left lower extremity and right lower extremity, is remanded. The Veteran was afforded a diabetic sensory-motor peripheral neuropathy VA examination in August 2023; however, the Board finds that the examination is internally inconsistent and thus inadequate for rating purposes. Specifically, in Section III, the VA examiner checked that the Veteran had symptoms attributable to diabetic peripheral neuropathy. But then, the examiner checked "None" for the listed symptoms of constant pain, intermittent pain, paresthesias and/or dysesthesias, and numbness and left blank the section for other symptoms. The internally inconsistent answers leave it unclear whether the Veteran does or does not have any of the listed, or other, symptoms. The failure to obtain an adequate VA examination is a pre-decisional duty to assist error. The matters are REMANDED for the following action: Arrange for the Veteran to undergo a VA examination of his bilateral lower extremity peripheral neuropathy. The examiner should assess the current nature and severity of the condition as well as offer an opinion as to the symptomatology present throughout the period on appeal. A. ISHIZAWAR Veterans Law Judge Board of Veterans' Appeals Attorney for the Board A. Christensen 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.