Citation Nr: 22068613
Decision Date: 12/14/22 Archive Date: 12/14/22

DOCKET NO. 15-06 124A
DATE: December 14, 2022

ORDER

Entitlement to an initial compensable rating for hypertension is denied.

REMANDED

Entitlement to an effective date prior to November 28, 2014, for a grant of service connection for left knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

Entitlement to an effective date prior to November 28, 2014, for a grant of service connection for right knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

Entitlement to an initial rating in excess of 10 percent for left knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

Entitlement to an initial rating in excess of 10 percent for right knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

Entitlement to a rating in excess of 10 percent for degenerative disk and joint disease, thoracic and lumbar spine, is remanded.

Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded.

Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded.

Entitlement to a rating in excess of 10 percent for degenerative disk and joint disease, cervical spine, is remanded.

Entitlement to a rating in excess of 10 percent for left upper extremity radiculopathy is remanded.

Entitlement to a rating in excess of 10 percent for right upper extremity radiculopathy is remanded.

Entitlement to a rating in excess of 10 percent for hypothyroidism is remanded.

Entitlement to a compensable rating for paroxysmal supraventricular tachycardia (PSVT) is remanded.

FINDING OF FACT

The evidence is persuasively against a finding that the Veteran's service-connected hypertension presented at any time during the course of the appeal with diastolic pressure predominately 100 mm/Hg or more, systolic pressure predominately 160 mm/Hg or more, or a history of diastolic pressure predominately 100 mm/Hg or more requiring continuous medication for control.

CONCLUSION OF LAW

The criteria for an initial compensable rating for hypertension have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.104, Diagnostic Code 7101.

REASONS AND BASES FOR FINDING AND CONCLUSION

The Veteran served on active duty from June 1975 to June 1979, January to April 1991, and September 1992 to January 2011. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO).

In May 2018, the Veteran testified at a hearing before the undersigned regarding the issue of entitlement to an initial compensable rating for hypertension. That matter was previously remanded by the Board in July 2018. The case has been returned to the Board at this time for further appellate review.

As an initial matter, the Board finds that there may be some confusion as to what issues are on appeal. Specifically, it appears as though the Veteran has asserted that he properly filed a notice of disagreement regarding an April 2012 rating decision. Although the following procedural history is somewhat complicated, the Board finds that the issue of whether or not there was a timely notice of disagreement filed as to the April 2012 rating decision is not on appeal.

In August 2010 the Veteran applied for service connection for a back disability, acid reflux, flat feet, bunions, a neck disability, hypertension, PSVT, tinnitus, numbness of the right jawline, and hypothyroidism. In an April 2012 rating decision, all of the claimed conditions were service connected, except that the issues of entitlement to service connection for tinnitus, hypertension, and numbness of the right jawline were deferred. This rating decision was sent to the Veteran on April 27, 2012. A report of general information indicates that, on May 4, 2012, the Veteran spoke with someone at the RO and reported that he had not yet received the April 2012 rating decision. Therefore, the Veteran was informed of the status of his claims. Three days later, the Veteran asked for reconsideration of the ratings assigned pursuant to the April 2012 rating decision. In July 2012, the Veteran was sent a letter pursuant to The Veterans Claims Assistance Act of 2000 stating that the RO was working on his claims for a back disability, acid reflux, flat feet, bunions, a neck disability, hypertension, PSVT, tinnitus, numbness of the right jawline, and hypothyroidism.

In a November 2012 rating decision, service connection was granted for tinnitus, hypertension, and numbness of the right jawline. A copy of this rating decision was sent to the Veteran on November 26, 2012. In that same letter, the RO informed the Veteran that the record was unclear as to whether he was trying to file a claim for an increase in the ratings assigned to his service-connected conditions. Thus, the Veteran was told that, if he wanted to file such a claim, he had to inform VA which conditions he would like to file an increased rating claim for. On November 25, 2013, VA received a letter from the Veteran in which he stated that he received the disability claim decision, and that he vehemently disagreed. In this letter, the Veteran discusses his PSVT, hypertension, hypothyroidism, acid reflux, hemorrhoids, radiculopathy, flat feet, bunions, back disability, and knees.

In November 2014, the Veteran was sent two letters. The first asked him to clarify which issues he wished to appeal from the November 2012 rating decision. The second asked the Veteran if he was claiming entitlement to an increased rating for a back disability, radiculopathy, hypothyroidism, pes planus, bunions, a left foot disability, PSVT, and/or acid reflux, as well as if the Veteran was seeking service connection for a bilateral knee condition and/or hemorrhoids. The Veteran responded in November 2014 stating that he received the disability rating in April 2012, he sent a letter of disagreement, heard nothing until five days before the one year expiration date, and then he scrambled to file a new claim prior to the deadline of November 2013. The Veteran again stated that he disagreed with the rating he was given, and that he was providing information to substantiate higher ratings. The information submitted by the Veteran addressed the issues of acid reflux, bunions, flat feet, a neck disability, hypothyroidism, a back disability, hypertension, PSVT, and tinnitus.

In a February 2015 letter, the Veteran was informed that (1) the issues of entitlement to increased ratings for hypertension and tinnitus were considered on appeal, and (2) no timely notice of disagreement (NOD) was submitted as to the issues of entitlement to an increased rating for acid reflux, flat feet, bunions, a neck disability, a back disability, radiculopathy, PSVT, and hypothyroidism, and therefore, the Veteran's statements were being taken as increased rating claims. The Veteran was informed that, if he disagreed with this decision, he should file a notice of disagreement within one year of receiving the February 2015 letter. Later that month, the Veteran filed a Form 9 indicating the wished to appeal all the issues listed on the statement of the case the RO sent him. At that time, the only statement of the case sent to the Veteran was a January 2015 statement of the case regarding the issues of entitlement to increased ratings for hypertension and tinnitus. On the February 2015 Form 9, the Veteran states that he did not receive the April 2012 rating decision until July or August 2012. A March 2015 report of general information reflects that the Veteran reported he was appealing the decision regarding a back disability, acid reflux, pes planus, bunions, neck disability, hypertension, PSVT, tinnitus, numbness of the right jawline, and hypothyroidism, and that he never received his notification letter or rating of his contentions. However, the Veteran did not file a notice of disagreement as to the whether a timely NOD was filed regarding the issues of entitlement to an increased rating for acid reflux, flat feet, bunions, a neck disability, a back disability, radiculopathy, supraventricular tachycardia, and hypothyroidism. Therefore, based on these circumstances, the Board finds that the issue of whether or not a timely NOD was filed as to the April 2012 rating decision is not on appeal.

As to the issue of entitlement to an increased rating for hypertension, the Board notes that this matter was remanded in July 2018 to allow the Veteran to identify any missing private treatment records related to his service-connected hypertension and to provide the Veteran with a VA examination. In May 2019, VA sent the Veteran a letter requesting that he provide information regarding any private treatment he may have had for his service-connected hypertension that was not already of record. The record reflects that the Veteran failed to respond to this letter and that he has not otherwise provided the requested information. The Veteran must cooperate with VA in developing evidence. The duty to assist is not a one-way street. Wood v. Derwinski, 1 Vet. App. 190 (1991); Hayes v. Brown, 5 Vet. App. 60 (1993) (VA's duty to assist is not a one-way street; if a veteran wants help, he cannot passively wait for it in those circumstances where his own actions are essential in obtaining evidence). Accordingly, the Board must decide the Veteran's claim of entitlement to an increased rating for his service-connected hypertension based on the current evidence of record.

The Board also finds that the sending of the aforementioned letter to the Veteran, and the July 2022 VA examination provided regarding the Veteran's service-connected hypertension establish that there has been substantial compliance with its prior remand directives as to the claim of entitlement to an increased rating for service-connected hypertension. Stegall v. West, 11 Vet. App. 168 (1998).

Entitlement to an initial compensable rating for hypertension is denied.

Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant's ordinary activity. 38 C.F.R. § 4.10.

If there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id.

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(b); 38 C.F.R. § 4.3.

The Veteran's service-connected hypertension is currently rated as noncompensable under Diagnostic Code (DC) 7101. Under this rating criteria, a 10 percent rating is warranted when a Veteran's diastolic pressure is predominantly 100 mm/Hg or more, or systolic pressure is predominantly 160 mm/Hg or more, or, if the Veteran has a history of diastolic pressure predominantly 100 mm/Hg or more and requires continuous medication for control. A 20 percent rating is warranted when a Veteran's diastolic pressure is predominantly 110 mm/Hg or more, or systolic pressure is predominantly 200 mm/Hg or more. A 40 percent rating is warranted when a Veteran's diastolic pressure is predominantly 120 mm/Hg or more. A 60 percent rating is warranted when a Veteran's diastolic pressure is predominantly 130 mm/Hg or more. 38 C.F.R. § 4.104, DC 7101.

The Veteran's blood pressure was taken three times in conjunction with a VA examination in November 2017. These readings were noted as 167/93, 155/89, and 150/82. The examination report reflects that the Veteran's treatment plan includes taking continuous medication for hypertension or isolated systolic hypertension, however, the VA examination report also reflects that the Veteran does not have a history of a diastolic blood pressure elevation to predominantly 100 mm/Hg or more.

The Veteran had another VA examination in July 2022 which reflects the following. The blood pressure readings were noted as 131/88, 139/81, and 121/78. The examination report reflects that the Veteran's treatment plan includes taking continuous medication for hypertension or isolated systolic hypertension, however, the VA examination report also reflects that the Veteran does not have a history of a diastolic blood pressure elevation to predominantly 100 mm/Hg or more.

The evidence of record contains no other blood pressure readings during the appeal period. However, the Veteran's service treatment records reflect blood pressure readings that are generally consistent with those measured during the November 2017 and July 2022 VA examinations.

The Board notes the November 2017 VA examination reflects a blood pressure reading of 167/93, and that the Veteran testified during the May 2018 Board hearing that he had some blood pressure readings where the systolic blood pressure was over 170 mm/Hg. However, the Board finds that these isolated readings fail to establish systolic blood pressure predominantly 160 mm/Hg or more.

In sum, the Board finds an initial compensable rating is not warranted for the Veteran's hypertension because the evidence is persuasively against a finding that the Veteran's hypertension has resulted in diastolic blood pressure of predominately 100 mm/Hg or more, systolic blood pressure of predominately 160 mm/Hg or more, or a history of diastolic blood pressure of predominately 100 mm/Hg or more requiring continuous medication for control. Accordingly, entitlement to an initial compensable rating for hypertension must be denied. In denying the claim of entitlement to an increased rating for service-connected hypertension, the Board finds the benefit of the doubt doctrine is not applicable. 38 U.S.C. § 5107; 38 C.F.R. §§ 4.3.

REASONS FOR REMAND

1. Entitlement to an effective date prior to November 28, 2014, for a grant of service connection for left knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

2. Entitlement to an effective date prior to November 28, 2014, for a grant of service connection for right knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

The Veteran filed a timely NOD in November 2015 in response to the September 2015 rating decision in which service connection for the Veteran's knee disabilities was granted. In the November 2015 NOD, the Veteran disagreed with the date that service-connection was granted for his knee disabilities. The agency of original jurisdiction (AOJ) did not provide the Veteran with a statement of the case regarding entitlement to an earlier effective date for service connection of his knee disabilities.

When the Veteran filed a timely NOD to the September 2015 rating decision, the appellate process was triggered. Therefore, a remand is required to issue a statement of the case regarding entitlement to an earlier effective date for service connection of his knee disabilities. See Manlincon v. West, 12 Vet. App. 238 (1999).

3. Entitlement to an initial rating in excess of 10 percent for left knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

4. Entitlement to an initial rating in excess of 10 percent for right knee strain with genu valgum deformity, osteoarthritis and scar, is remanded.

5. Entitlement to a rating in excess of 10 percent for degenerative disk and joint disease, thoracic and lumbar spine, is remanded.

6. Entitlement to a rating in excess of 10 percent for left lower extremity radiculopathy is remanded.

7. Entitlement to a rating in excess of 10 percent for right lower extremity radiculopathy is remanded.

8. Entitlement to a rating in excess of 10 percent for degenerative disk and joint disease, cervical spine is remanded.

9. Entitlement to a rating in excess of 10 percent for left upper extremity radiculopathy is remanded.

10. Entitlement to a rating in excess of 10 percent for right upper extremity radiculopathy is remanded.

11. Entitlement to a rating in excess of 10 percent for hypothyroidism is remanded.

12. Entitlement to a compensable rating for PSVT is remanded.

In August 2019, the RO requested that the Veteran be scheduled for examinations for his PSVT, hypothyroidism, back disability, neck disability, radiculopathy, and knee disabilities. In September 2019, the examination requests were cancelled for the following reason: "unable to contact Veteran." However, it is unclear exactly what efforts were made to contact the Veteran to schedule him for examinations.

The Board notes that the Veteran has missed scheduled VA examinations in the past. However, throughout the claims process, the Veteran has stated that he works for long periods of time away from home. Therefore, while he can attend VA examinations, there need to be efforts made to ensure that they are scheduled in a way that fits the Veteran's unique work schedule. This is clearly possible as the Veteran was able to attend a VA examination in July 2022 as stated above. Because the Veteran has indicated that he has had good cause for missing the scheduled VA examinations, the Board finds that remand is warranted to schedule the Veteran for VA examinations regarding his claims of entitlement to increased ratings for his service-connected PSVT, hypothyroidism, back disability, neck disability, radiculopathy, and knee disabilities.

The matters are REMANDED for the following action:

1. Issue a statement of the case with respect to the September 2015 rating decision and corresponding November 2015 notice of disagreement regarding the issue of entitlement to an earlier effective date for service connection for the Veteran's knee disabilities.

2. Schedule the Veteran for a VA examination or examinations to determine the current nature and severity of his service-connected back disability, bilateral lower extremity radiculopathy, neck disability, bilateral upper extremity radiculopathy, left knee disability, and right knee disability. The efforts made to notify the Veteran of the scheduled examination or examinations must be clearly documented in the claims file.

After reviewing the entire claims file, the selected examiner should conduct all indicated tests and studies, to include range of motion testing. The joints involved should be tested in both active and passive motion, in weight-bearing and non-weight-bearing. If the examiner is unable to conduct the required testing or concludes that the required testing is not necessary in this case, he or she should clearly explain why that is so.

The examiner should describe any pain, weakened movement, excess fatigability, instability of station and incoordination present.

The examiner should also state whether the examination is taking place during a period of flare-up. If not, the examiner should ask the Veteran to describe the flare-ups he experiences, including: frequency, duration, characteristics, precipitating and alleviating factors, severity and/or extent of functional impairment he experiences during a flare-up of symptoms and/or after repeated use over time.

Based on the Veteran's lay statements and the other evidence of record, the examiner should provide an opinion estimating any additional degrees of limited motion caused by functional loss during a flare-up and after repeated use over time.

If the examiner cannot estimate the degrees of additional range of motion loss during flare-ups and/or after repetitive use without resorting to speculation, the examiner should state whether the need to speculate is caused by a deficiency in the state of general medical knowledge (i.e. no one could respond given medical science and the known facts) or by a deficiency in the record or the examiner (i.e. additional facts are required, or the examiner does not have the needed knowledge or training).

The examiner is advised that the Veteran is competent to report his symptoms and history, and such reports must be specifically acknowledged and considered in formulating any opinion. If the examiner rejects the Veteran's reports, he or she must provide a reason for doing so.

All findings must be reported in detail and all opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided.

3. Schedule the Veteran for a VA examination to determine the current nature and severity of his service-connected hypothyroidism and paroxysmal supraventricular tachycardia. The examiner should provide a full description of the Veteran's hypothyroidism and paroxysmal supraventricular tachycardia and report all signs and symptoms necessary for evaluating the Veteran's hypothyroidism and paroxysmal supraventricular tachycardia under the rating criteria. The efforts made to notify the Veteran of the scheduled examination must be clearly documented in the claims file.

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M. HYLAND

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board Elias, Mariana

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.