HYPERTENSION

Summary

The veteran, who served from June 1964 to June 1968, appeals the denial of an initial compensable disability rating for service-connected hypertension prior to April 7, 2020, and the denial of TDIU related to this condition. The Board reviewed the period from December 3, 2018, to April 7, 2020. The veteran's hypertension was diagnosed as mild pulmonary hypertension in March 2015 and treated with medications such as lisinopril and Coreg. However, blood pressure readings during the appeal period, including those taken during VA examinations and for treatment, consistently showed systolic pressure below 131 and diastolic pressure below 81. The Board noted that while the veteran required continuous medication for hypertension, the evidence did not demonstrate a history of diastolic pressure predominantly 100 or more, which is a criterion for a 10 percent rating. The Board found that the evidence did not support a compensable rating for hypertension during the period under review. Regarding TDIU, the Board found no evidence in the record, including the veteran's own submissions and the February 2020 VA examiner's findings, to suggest that the hypertension impaired his employability or caused unemployability. Therefore, the Board denied both the initial compensable rating for hypertension and TDIU.

Rationale

Blood pressure readings did not meet criteria for 10% rating.; Hypertension did not manifest with diastolic pressure predominantly 100 or more.; Veteran requires continuous medication but lacks history of predominantly 100 diastolic pressure.

Full Decision Text

Citation Nr: A22014738
Decision Date: 08/01/22	Archive Date: 08/01/22

DOCKET NO. 200429-85384
DATE: August 1, 2022

ORDER

An initial compensable disability rating for service-connected hypertension prior to April 7, 2020, is denied.

Compensation for total disability based on individual unemployability (TDIU) as part of the claim for an initial compensable rating for service-connected hypertension prior to April 7, 2020, is denied.

FINDINGS OF FACT

1. During the appeal period, the Veteran's hypertension did not manifest in diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more, and the Veteran did not have both a history of diastolic pressure predominantly 100 or more and continuous medication required for control.

2. There is no evidence within the appeal record to suggest that the Veteran's hypertension prevented him from performing the physical and mental acts required for employment.

CONCLUSIONS OF LAW

1. The criteria for an initial compensable rating for service-connected hypertension prior to April 7, 2020, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1-4.7, 4.21, 4.31, 4.104, Diagnostic Code 7101.

2. The criteria for consideration of TDIU as part of the appeal for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.16, 4.19.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1964 to June 1968.

This case comes before the Board of Veterans' Appeals (Board) on appeal from an April 2020 Department of Veterans Affairs (VA) Regional Office (RO) rating decision. In that decision, the RO granted service connection for hypertension and assigned an initial noncompensable disability rating, effective December 3, 2018.

In April 2020, VA received the Veteran's 10182 Notice of Disagreement (NOD). The Veteran selected the Hearing docket. However, in January 2022, the Veteran, through his representative, withdrew his request for a hearing. Thereafter, the Veteran had 90 days from the Board's receipt of the withdrawal to submit additional evidence. The Board may only consider evidence of record at the time of the April 2020 rating decision as well as any evidence submitted within 90 days of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b).

The Board notes that in September 2021, the Board addressed a similar issue of entitlement to a compensable rating for service-connected hypertension, which was on appeal from a February 2021 rating decision and March 2021 NOD. In the September 2021 decision, the Board considered the time period initiated by the Veteran's May 2020 claim and ended by the February 2021 rating decision. Whereas the appeal currently before the Board deals with the initial rating period for hypertension that began with the December 2018 effective date for the grant of service connection and ended when the April 2020 decision was sent to the Veteran. Because the Veteran originally opted to have a hearing in the current appeal, this appeal remained pending longer than the one initiated with the March 2021 NOD. The Board will now address the rating period from December 3, 2018 to April 7, 2020. 

Increased Rating

1. An initial compensable disability rating for service-connected hypertension prior to April 7, 2020.

Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 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. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b).

Hypertension is rated pursuant to 38 C.F.R. §
 § 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. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. When the evidence is in relative equipoise, the veteran is accorded the benefit of the doubt. 38 U.S.C. § 5107(b).

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. Higher evaluations are available for higher diastolic or systolic pressures.

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 rating criteria for hypertension specifically contemplate the use of medication to ameliorate symptoms and that a higher rating may not be assigned based solely on the fact that the Veteran uses medication to treat his symptoms. 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."). In McCarroll v. McDonald, 28 Vet. App. 267, 276 (2016), the Court specifically held that the Board did not err in failing to discount the ameliorative effects of blood pressure medication, because the plain language of Diagnostic Code 7101 contemplates the effects of medications.

For the reasons that follow, the Veteran's hypertension has not more nearly approximated the criteria corresponding to a 10 percent rating at any time during the period on appeal.

VA treatment records note a diagnosis of mild pulmonary hypertension as early as March 2015. See VA addendum dated March 26, 2015. Medications taken for control of hypertension include lisinopril, Coreg, and Carvedilol. See February 2019 and 2020 VA examination reports. 

Blood pressure readings during the February 2020 examination were 110/73, 104/70, and 106/71. Blood pressure readings taken for treatment during the period on appeal include: 109/71 (February 2, 2019); 131/81 (February 12, 2019); 124/59 (August 23, 2019); 108/70 (October 2, 2019); 123/70 (November 20, 2019); 114/69 (February 20, 2020); and 119/77 (March 2, 2020). The pressures of record during the claim period do not evidence systolic pressure greater than 131 or diastolic pressure greater than 81. See VA emergency department E & M note dated February 12, 2019.

Furthermore, the numerous blood pressure readings of record dated prior to the appeal indicate that the Veteran does not have a history of diastolic pressure predominantly 100 with continuous medical required for control. Both the February 2019 and February 2020 examiners confirmed this finding. VA treatment records indicate that diastolic blood pressure was measured at 95 at the highest. See VA nuclear medicine procedure note dated September 6, 2016. However, other blood pressure readings dated prior to the period on appeal indicate that diastolic blood pressure readings were predominantly below 90. See, e.g. VA nuclear medicine procedure note dated July 5, 2011; VA eye clinic note dated April 17, 2013; VA primary care clinic note dated February 5, 2015; VA eye clinic note dated September 13, 2017.

In sum, the evidence persuasively shows the Veteran's service-connected hypertension has not been manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more at any time during the period
95 at the highest. See VA nuclear medicine procedure note dated September 6, 2016. However, other blood pressure readings dated prior to the period on appeal indicate that diastolic blood pressure readings were predominantly below 90. See, e.g. VA nuclear medicine procedure note dated July 5, 2011; VA eye clinic note dated April 17, 2013; VA primary care clinic note dated February 5, 2015; VA eye clinic note dated September 13, 2017.

In sum, the evidence persuasively shows the Veteran's service-connected hypertension has not been manifested by diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more at any time during the period on appeal. Although the evidence shows that the Veteran's hypertension requires continuous medication for control, the evidence does not show the Veteran has a history of diastolic pressure predominantly 100 or more. Again, the effects of hypertension medication cannot be considered in determining if the Veteran's blood pressure readings satisfy the rating criteria. See McCarroll, 28 Vet. App. at 276. The Veteran's hypertension does not more nearly approximate the criteria corresponding to a 10 percent rating, and an initial compensable rating for service-connected hypertension is not warranted at any time during the period on appeal.

2. Compensation for TDIU as part of the claim for an initial compensable rating for service-connected hypertension

A total disability rating may be granted where the schedular rating is less than 100 percent and the veteran is unable to secure or follow a substantially gainful occupation as a result of service-connected disabilities. 38 C.F.R. § 4.16.  

In the April 2022 brief, the Veteran's representative contended that the issue of entitlement to TDIU had been reasonably raised by the record as part and parcel of the claim for increased rating for hypertension, pursuant to Rice v. Shinseki, 22 Vet. App. 447 (2009). As noted above, however, the Board may only consider evidence of record at the time of the April 2020 rating decision as well as any evidence submitted within 90 days of the withdrawal of the hearing request. 38 C.F.R. § 20.302(b). While the April 2022 brief was within 90 days of the request to withdraw the hearing, it does not contain any evidence that the Veteran was unemployable due to his hypertension. No other documentation, such as a lay statement, containing evidence was submitted during the 90-day window after the hearing request was withdrawn. Interestingly, in asserting that the issue of TDIU was reasonably raised by the record as part of the hypertension claim, the April 2022 brief also does not identify any evidence of record at the time of the April 2020 rating decision that suggests the Veteran was unemployable due to his hypertension. 

After a review of the evidence of record at the time of the April 2020 decision, the Board has found no evidence suggesting the Veteran's hypertension impaired employment or caused unemployability. The only evidence relevant to the topic is the February 2020 examiner's finding that the Veteran's hypertension did not impact his ability to work. Again, neither the Veteran nor his attorney has identified evidence that the Veteran's hypertension impaired his employability in the record available for review in this appeal. Accordingly, the Board finds no evidence in the record available for review to even begin consideration of whether the Veteran's hypertension caused unemployability prior to April 7, 2020. The Board notes that the issue of TDIU was considered in the January 2021, May 2021, and September 2021 decisions, which were the subject of broader evidentiary periods. Compensation for TDIU as part of the appeal for an initial compensable rating for hypertension prior to April 7, 2020, cannot be granted.  

 

 

A.P. Armstrong

Acting Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	D. Small, Attorney Advisor

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.