HYPERTENSION

Summary

The veteran, who served from November 1965 to November 1968, appeals the denial of an increased rating for hypertension secondary to diabetes mellitus type II and the remand of his claim for service connection for erectile dysfunction secondary to diabetes mellitus type II. The Board reviewed the evidence concerning the veteran's hypertension, noting that while he was diagnosed with hypertension and treated with medication, his blood pressure readings, including those from VA examinations and treatment records, consistently indicated well-controlled hypertension. The Board found that the veteran's own assertions lacked the necessary medical expertise to establish worsening symptoms or a need for a higher rating. Consequently, the Board determined that the preponderance of the evidence did not support an increased rating for hypertension, denying the claim. Regarding erectile dysfunction, the Board found the prior VA medical opinion inadequate because it failed to address aggravation as a basis for service connection and did not adequately connect potential causes to the veteran's specific medical history. The case was remanded for a new VA opinion to determine if the erectile dysfunction is at least as likely as not caused by or aggravated by the service-connected diabetes mellitus or hypertension.

Rationale

Hypertension rated at 0% noncompensable.; Blood pressure readings consistently showed well-controlled hypertension.; Veteran's assertions lacked medical expertise for higher rating.

Full Decision Text

Citation Nr: 20070222
Decision Date: 10/29/20	Archive Date: 10/29/20

DOCKET NO. 14-00 032
DATE: October 29, 2020

ORDER

Entitlement to a rating in excess of 0 percent for hypertension secondary to diabetes mellitus type II is denied.

REMANDED

Entitlement to service connection for an erectile dysfunction disability secondary to diabetes mellitus type II is remanded.

FINDINGS OF FACT

During the period on appeal, the Veteran's diastolic blood pressure has not been predominantly 100 or more, and his systolic blood pressure has not been predominantly 160 or more and there is no history of a diastolic blood pressure predominantly 100 or more.

CONCLUSION OF LAW

The criteria for an evaluation in excess of 0 percent for a hypertension disability have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.21, 4.104, Diagnostic Code (DC) 7101 (2018).

REASONS AND BASES FOR FINDINGS AND CONCLUSIONS

The Veteran served on active duty from November 1965 to November 1968. 

This matter comes before the Board of Veterans' Appeals (the Board) from a May 2010 rating decision denying service connection for erectile dysfunction and from a 2017 rating decision assigning a noncompensable rating for hypertension.  secondary to service-connected DM. The Veteran testified before the undersigned at a May 2017 hearing. The transcript is of record. In a September 2017 decision, the Board found the Veteran’s hypertension service-connected secondary to his DM, and remanded his erectile dysfunction claim for an additional medical opinion regarding nexus to his service-connected disabilities. 

The Veteran’s hypertension was rated at 0 percent (noncompensable) disabling in an October 2017 rating decision. In December 2017, the Veteran filed a Notice of Disagreement (NOD) requesting an increased rating for hypertension. The VA completed his medical opinion regarding nexus in May 2018. The RO issued a Statement of the Case (SOC) denying an increased rating for hypertension in October 2018, and a Supplemental Statement of the Case (SSOC) denying service connection for erectile dysfunction in January 2019. The case was recertified to the Board in June 2019. 

1. Entitlement to a rating in excess of 0 percent for hypertension secondary to DM

The Veteran contends that his hypertension disability warrants an increased rating.

Disability evaluations are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321, 4.1. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10.

In determining the severity of a disability, the Board is required to consider the potential application of various other provisions of the regulations governing VA benefits, whether or not they were raised by the Veteran, as well as the entire history of the Veteran's disability. 38 C.F.R. §§ 4.1, 4.2; Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991).

If the disability more closely approximates the criteria for the higher of two ratings, the higher rating will be assigned; otherwise, the lower rating is assigned. 38 C.F.R. § 4.7. It is not expected that all cases will show all the findings specified; however, findings sufficiently characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

Under Diagnostic Code (DC) 7101, a disability rating of 60 percent for hypertension requires diastolic blood pressure (bottom number on the reading) predominantly 
 characteristic to identify the disease and the disability therefrom and coordination of rating with impairment of function will be expected in all instances. 38 C.F.R. § 4.21.

In deciding this appeal, the Board has considered whether separate ratings for different periods of time, based on the facts found, are warranted, a practice of assigning ratings referred to as "staging the ratings." See Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2008).

Under Diagnostic Code (DC) 7101, a disability rating of 60 percent for hypertension requires diastolic blood pressure (bottom number on the reading) predominantly 130 or more. A rating of 40 percent requires diastolic blood pressure predominantly 120 or more. A rating of 20 percent requires diastolic blood pressure predominantly 110 or more or systolic blood pressure (top number on the reading) predominantly 200 or more. A rating of 10 percent requires diastolic blood pressure predominantly 100 or more, or systolic blood pressure predominantly 160 or more, or minimum evaluation for an individual with a history of diastolic blood pressure predominantly 100 or more who requires continuous medication for control. 38 C.F.R. § 4.104, DC 7101. 

The Veteran was granted service connection for hypertension in an October 2017 rating decision. The RO found the Veteran’s condition rated at 0 percent (noncompensable) because the Veteran’s blood pressures did not warrant a 10 percent rating. The Board find this conclusion supported by the medical record. At a VA examination in April 2010, the Veteran had systolic blood pressure readings averaging 140 and diastolic blood pressure readings averaging 91.3. The examiner noted three systolic and diastolic blood pressure readings. The first blood pressure reading was 130/84; the second reading was 145/94; and the third reading was 145/95. The Veteran's treatment plan was noted to include taking continuous medication for hypertension, and the examiner stated that the Veteran's hypertension did not impact his ability to work.

The VA examiner's findings described above are consistent with the other medical evidence of record from the period on appeal. The Veteran testified that he was diagnosed with hypertension in October 2009 after visiting a hospital while on vacation. An October 2009 treatment note from primary care provider Dr. A.J.G. diagnosed hypertension. That treatment note contained a blood pressure reading of 170/98 in a section discussing his hospitalization, but a reading of 130/90 at the time of his examination. In November 2009, Dr. A.J.G. recorded a blood pressure of 120/84. 

The following blood pressure readings were recorded in VA treatment notes: a 127/79 reading in January 2012; a 121/77 reading in January 2013; a 130/80 reading in February 2014; a 126/70 reading in August 2015; a 130/76 reading in April 2017; and a 133/76 January 2018 reading. Flagler Hospital treatment records show an August 2018 blood pressure of 116/73. A VA medical examiner recorded a 122/69 October 2019 reading as part of the Veteran’s cardiac examination. 

Based on the foregoing evidence, the Board finds that a higher evaluation for the Veteran's hypertension disability is not warranted at this time. The Veteran's hypertension is shown to be well-controlled by medication throughout the appeal period. The evidence reflects notably consistent blood pressure readings, with only a single episode of a heightened blood pressure reading. Moreover, the Veteran has not alleged or provided evidence of a history of diastolic blood pressure predominately 100 or greater at any time, treatment due to worsening symptoms, or any other evidence to suggest a higher disability rating is warranted. The Veteran's hypertension is not shown to have systolic pressure of predominantly 160 or more or diastolic pressure of predominantly 100 or more during the period on appeal. See 38 C.F.R. § 4.104, DC 7101.

The Board acknowledges the Veteran's assertions that his hypertension warrants an higher disability rating. However, the Veteran lacks the adequate medical expertise in this case to render a medical opinion as to the nature of his symptoms or his diagnosed disabilities. As such, the Veteran's assertions are not competent or probative evidence to determine whether the Veteran's disabilities have worsened enough to warrant a higher disability evaluation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Thus, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of
 See 38 C.F.R. § 4.104, DC 7101.

The Board acknowledges the Veteran's assertions that his hypertension warrants an higher disability rating. However, the Veteran lacks the adequate medical expertise in this case to render a medical opinion as to the nature of his symptoms or his diagnosed disabilities. As such, the Veteran's assertions are not competent or probative evidence to determine whether the Veteran's disabilities have worsened enough to warrant a higher disability evaluation. See Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007).

Thus, the Board finds that the preponderance of the evidence is against the assignment of an evaluation in excess of 0 percent for the Veteran's hypertension disability. 38 C.F.R. § 4.104, DC 7101. Therefore, the Veteran's claim of entitlement to an evaluation in excess of 0 percent for a hypertension disability must be denied.

In reaching the above conclusions, the Board has considered the applicability of the benefit of the doubt doctrine. However, as the preponderance of the evidence is against the Veteran's claim, that doctrine is not applicable in the instant appeal. See 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). 

REASONS FOR REMAND

1. Entitlement to service connection for an erectile dysfunction disability secondary to DM 

The Veteran contends that his erectile dysfunction is caused or aggravated by his service-connected DM. 

Service connection may be granted for a disability resulting from a disease or injury incurred in or aggravated by active service. See 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). "To establish a right to compensation for a present disability, a Veteran must show: '(1) the existence of a present disability; (2) in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship between the present disability and the disease or injury incurred or aggravated during service'- the so-called 'nexus' requirement." Holton v. Shinseki, 557 F.3d 1362, 1366 (Fed. Cir. 2010) (citing Shedden v. Principi, 381 F.3d 1163, 1167 (Fed. Cir. 2004)).

Service connection may also be granted on a secondary basis for a disability that is proximately due to, aggravated by, or otherwise the result of a service-connected disease or injury. 38C.F.R. § 3.310(a). Service connection on a secondary basis may not be granted without sufficient evidence of a current disability and sufficient evidence of a nexus between the current disability and a service-connected disability. See Wallin v. West, 11 Vet. App. 509, 512-514 (1998); see also Allen v. Brown, 7 Vet. App. 439, 488 (1995) (en banc).

The Veteran’s April 2010 VA genitourinary examination diagnosed an erectile dysfunction disability. The May 2018 addendum opinion confirmed that diagnosis. Therefore, the first element for service connection is met. 

The Veteran does not contend, and the record does not reflect, that his disability began in or was aggravated during service. Therefore, direct service connection is not for application. Service connection would need to be on a secondary basis.

Secondary service connection may be granted when a disability is proximately caused or aggravated by a service-connected condition. The May 2018 VA medical opinion required that the examiner review the entire record and then make a determination regarding secondary service connection. However, the medical opinion only concluded that the examiner could not state that the Veteran’s disability was caused by DM without resorting to mere speculation. In doing so, the examiner stated that the etiology of sexual dysfunction is complex, and then listed a number of factors and conditions that could cause or aggravate the condition.

The May 2018 VA medical opinion is inadequate. It fails to address aggravation as grounds for service connection, or to connect any of the factors that cause or aggravate erectile dysfunction to the Veteran’s own medical history, medications, or diagnosed conditions. The examiner does not state and there is nothing to suggest that the examiner reviewed the Veteran’s treatment records before completing his medical opinion. Moreover the examiner does not provide an adequate rationale for why the examiner could not state whether the Veteran’s disability was caused by DM without resorting to speculation.  A further opinion on secondary service connection is required.

The matter is REMANDED for the following action: 

1. Obtain an addendum opinion to determine the
 that could cause or aggravate the condition.

The May 2018 VA medical opinion is inadequate. It fails to address aggravation as grounds for service connection, or to connect any of the factors that cause or aggravate erectile dysfunction to the Veteran’s own medical history, medications, or diagnosed conditions. The examiner does not state and there is nothing to suggest that the examiner reviewed the Veteran’s treatment records before completing his medical opinion. Moreover the examiner does not provide an adequate rationale for why the examiner could not state whether the Veteran’s disability was caused by DM without resorting to speculation.  A further opinion on secondary service connection is required.

The matter is REMANDED for the following action: 

1. Obtain an addendum opinion to determine the nature and etiology of his claimed erectile dysfunction disability. The opinion must be completed by an examiner who has not previously opined on this claim. The entire file, including a copy of this remand, should be made available to and reviewed by the examiner. The examiner must address the following questions: 

A. Is it at least as likely as not that the Veteran’s erectile dysfunction is caused by the service-connected DM or hypertension conditions? Why or why not? 

B. Is it at least as likely as not that the Veteran’s erectile dysfunction is aggravated (i.e., worsened) by the service-connected DM or hypertension conditions? Why or why not? Please note that permanent worsening is not a requirement for secondary service connection of a non-service-connected injury or disease. 

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2. If an opinion cannot be provided without resorting to mere speculation, the clinician must provide a complete explanation for why an opinion cannot be rendered.  In so doing, the clinician must explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question. 

3. Thereafter, readjudicate the remanded claim.

 

 

JAMES G. REINHART

Veterans Law Judge

Board of Veterans’ Appeals

Attorney for the Board	W. Stearns, 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.