Billy D. McCarroll v. Robert A. McDonald
2016 U.S. Vet. App. LEXIS 1719
| Vet. App. | 2016Background
- Veteran Billy D. McCarroll filed for service connection for hypertension after in-service and post-service elevated blood-pressure readings and was prescribed lisinopril in April 2009.
- VA granted service connection in Oct. 2009 and assigned a noncompensable rating; the veteran appealed seeking a compensable rating (10%+).
- Relevant medical evidence includes multiple BP readings before and after medication was prescribed; some pre-medication readings show one diastolic reading of 100 but most readings were lower.
- DC 7101 (38 C.F.R. § 4.104) provides tiered ratings based on predominant systolic/diastolic levels and a 10% minimum where there is a history of diastolic ≥100 and continuous medication for control.
- The Board denied a compensable rating in June 2014, finding readings were not predominantly high (diastolic ≥100 or systolic ≥160) and that the veteran did not have a history of diastolic pressure predominantly ≥100.
- McCarroll argued the Board improperly considered the ameliorative effects of medication (invoking Jones v. Shinseki), failed to apply §4.7 (more nearly approximates), and should have referred the claim for extraschedular consideration.
Issues
| Issue | McCarroll's Argument | Secretary's Argument | Held |
|---|---|---|---|
| Whether DC 7101 contemplates ameliorative effects of medication (so Jones does or does not apply) | Jones requires discounting medication effects; Board must consider what BP would be without meds and may need a medical opinion | DC 7101 explicitly contemplates medication (10% minimum where history of diastolic ≥100 with continuous medication), so Jones is inapplicable | DC 7101 contemplates medication effects; Jones does not apply; Board may consider medication control under DC 7101 |
| Whether McCarroll has history of diastolic BP ‘‘predominantly’’ ≥100 (entitling 10%) | Pre-med records show some elevated readings (cites several March 2009 readings including one diastolic 100) and thus Board clearly erred | Pre-med evidence does not show diastolic readings predominantly ≥100; single or isolated high readings do not meet ‘‘predominantly’’ standard | Board did not clearly err; evidence does not show diastolic BP predominantly ≥100; no compensable schedular rating warranted |
| Whether the disability picture more nearly approximates a 10% rating under §4.7 | Even if currently controlled by meds, the picture more nearly approximates 10% and Board should have discussed §4.7 | §4.7 inapplicable because no question which evaluation applies; lower rating fits the record | §4.7 inapplicable; Board permissibly assigned noncompensable rating after finding criteria for higher rating unmet |
| Whether Board should have referred claim for extraschedular consideration | The record raises an unresolved medical question about BP without medication, suggesting an unusual disability picture warranting referral | DC 7101 contemplates medication, so medication use does not make the case exceptional; referral not reasonably raised | Referral not required: extraschedular not argued below nor reasonably raised by the record; Board did not err |
Key Cases Cited
- Jones v. Shinseki, 26 Vet.App. 56 (2012) (held Board may not deny higher rating based on medication relief when rating criteria do not contemplate medication)
- Colvin v. Derwinski, 1 Vet.App. 171 (1991) (Board may not substitute its own medical judgment; must rely on independent medical evidence for medical findings)
- Middleton v. Shinseki, 727 F.3d 1172 (Fed. Cir. 2013) (clarifies application of §4.7 when determining which evaluation applies)
- Yancy v. McDonald, 27 Vet.App. 484 (2016) (extraschedular referral must be argued by claimant or reasonably raised by the record)