12-27 947
12-27 947
Board of Vet. App.May 22, 2017Background
- Veteran served Aug 1983–May 2009; service connection for hypertension granted in Nov 2009 with an initial noncompensable rating effective May 28, 2009.
- Claim for increased rating adjudicated by RO/AMC; Board remanded in Feb 2015 for development and VA obtained updated records and a May 2015 VA examination.
- Pre-May 5, 2015: hypertension required continuous medication but medical records do not show diastolic pressure predominantly ≥100 mmHg or systolic ≥160 mmHg.
- May 5, 2015 onward: May 2015 VA exam recorded readings of 156/98, 169/98, 174/98; VA assigned a 10% rating effective May 5, 2015.
- No evidence showing diastolic pressure predominantly ≥110 mmHg or systolic predominantly ≥200 mmHg at any relevant time to support >10% rating.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the initial rating before May 5, 2015 should be compensable | Veteran: requires multiple/continuous meds; supports higher initial rating | VA: readings prior to May 5, 2015 were not predominantly ≥100 diastolic or ≥160 systolic; controlled with medication | Denied — noncompensable pre-May 5, 2015 |
| Whether rating from May 5, 2015 should exceed 10% | Veteran: May 2015 readings and medication warrant >10% | VA: May 2015 readings align with 10% criteria; no evidence of diastolic ≥110 or systolic ≥200 | Denied — remains 10% from May 5, 2015 |
| Whether VA satisfied duty to notify and assist and complied with remand | Veteran: implied contention that development/remand not completed | VA: obtained records and provided a VA exam consistent with remand instructions | Held: VA satisfied notice, duty to assist, and substantially complied with remand |
| Whether reasonable doubt favors the Veteran | Veteran: standard argument to resolve any doubt in his favor | VA: preponderance of evidence opposes increased rating | Held: reasonable doubt doctrine not applicable; preponderance against claim |
Key Cases Cited
- Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015) (VA must satisfy notice and duty-to-assist requirements)
- Schafrath v. Derwinski, 1 Vet. App. 589 (1991) (review of entire history when assigning disability ratings)
- Francisco v. Brown, 7 Vet. App. 55 (1994) (present level of disability is primary in increase claims)
- Fenderson v. West, 12 Vet. App. 119 (1999) (requirement to consider staged ratings and earlier evidence for initial rating)
- Jones v. Shinseki, 26 Vet. App. 56 (2012) (Diagnostic Code 7101 contemplates effects of hypertensive medication)