CAVC Precedential Decisions

CAVC Precedential Decisions

A recent decision by the Court of Appeals of Veteran Claims (“CAVC”) has been selected to have a precedential effect on other cases moving forward. The Court of Appeals of Veteran Claims is the Federal Review Court for decisions by the Board of Veteran Appeals (the Board). Some of the decisions this court makes have precedential effects on other cases—meaning the decisions, in that case, affect future VA cases. The case Leon Wilson v. Denis McDounough No. 19-6020 is one of those cases.

Facts and procedural history:

            This decision came from an appeal from a 2019 Board decision that denied a compensable rating for hypertension. Initially, the claimant or Veteran, in this case, applied for and was granted service connection for his hypertension in 2003. The VA assigned a noncompensable rating meaning his hypertension was rated at 0% for VA disability purposes. That decision was not appealed within one year and became final.

In 2008, the Veteran, in this case, submitted a claim for an increased rating for his hypertension. The VA denied this decision. The Veteran appealed this decision all the way to the Board. Initially, the Board remanded the decision for additional development. This means the claim was sent back to the regional office (“RO”) for additional development. The regional office, again, denied the Veteran a compensable rating. The RO’s decision was, again, referred to the Board for adjudication—or to allow the Board to make a decision.

The Board denied the Veteran’s request for a compensable rating for hypertension. Under VA regulations, in order to have compensable hypertension, the Veteran’s symptoms must meet the general schedule of ratings for hypertension. The relevant general schedule of ratings for hypertension are rated under Diagnostic code 7101 and are as follows:

10% rating: Diastolic pressure predominantly 100 or more, or; systolic pressure predominantly 160 or more, or; minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medication for control.

20% rating: Diastolic pressure predominantly 110 or more, or; systolic pressure predominantly 200 or more.

40% rating: Diastolic pressure predominantly 120 or more.

60% rating: Diastolic pressure predominantly 130 or more.

The Board found that the Veteran did not meet the 10% rating criteria because his diastolic blood pressure was not predominantly 100 or greater during the period on appeal. An important factor in the Board denying this claim was because the Board did not consider Veteran’s blood pressure readings taken before he began his medication. The Board did not consider this because it was prior to Veteran’s claim for an increased rating.

CAVC analysis:

The Court remanded the Board’s decision. The Court explained that the issue turns on the proper interpretation of the phrase “history of diastolic pressure over 100” for the 10 percent rating criteria under DC 7101. The Court’s first step begins with the plain language of the regulation. The Board and the Secretary contend that since Veteran sought an increased rating for his hypertension, his diastolic pressure readings that were taken during the appeal period meet the framework for historical blood pressure. The Court does not find the Secretary’s position persuasive based on the text and structure of DC 7101.

            The Court explains that because of the word “or” within DC 7101, it provides three avenues for a Veteran to establish to receive a 10 percent rating:

  • Diastolic pressure predominantly 100 or more, or;
  • Systolic pressure predominantly 160 or more, or;
  • Minimum evaluation for an individual with a history of diastolic pressure predominantly 100 or more who requires continuous medical for control.

The Court found that if it relied on the Board and the Secretary’s interpretation of DC 7101, it would limit Veteran’s avenues from three to only two, “as the historical reading becomes functionally meaningless towards establishing eligibility.” This interpretation would only provide Veterans with two avenues to establish a compensable rating:

  • Systolic readings predominantly over 160 during the appeal period, or
  • Diastolic readings predominantly over 100 during the appeal period.  

The Board explained that such an interpretation ignores the third avenue that veterans can establish a current compensable rating by submitting past blood pressure readings before their blood pressure was controlled by medication. The Court concluded that the Board’s rationale amounts to legal error because it did not consider the plain language of DC 7101.

The Court also found that the structure of DC 7101 clearly signals that “VA intended to compensate veterans who do not have current readings establishing entitlement to a 10% rating if those veterans are using medication to control their blood pressure.” The Court references in McCarroll v. McDonald, it previously noted that DC 7101 contemplates the ameliorative effects of medications and that veterans can establish a compensable rating for blood pressure readings even if there are not current blood pressure readings that meet the statutory threshold. 28 Vet.App. 267, 273 (2016). The Court noted that since DC 7101 acknowledges the effects of medication in the ratings, the most natural reading of the phrase refers to blood pressure readings taken before readings were depleted from medication.

The Court then turns to the M21-1 to confirm its interpretation of DC 7101. The Court summarizes that the M21-1 explains the general rule of establishing a compensable rating for hypertension is demonstrating either diastolic blood pressure over 100 or systolic blood pressure over 160. However, the M21-1 carves out an explicit exception, reading: “[c]urrent readings meeting the regulatory standards for [hypertension] are not required if the competent evidence shows a diagnosis of hypertension . . . currently controlled by (or asymptomatic with) medication, and a past competent diagnosis was made in service.” M21-1,pt. V, sbpt. iii, ch. 5 sec. 3.e. Therefore, the Court reasoned that the M21-1 states that pre-medicated blood pressure readings are appropriate to meet the 10 percent statutory threshold under DC 7101. This is the same interpretation of incorporating pre-medicated blood pressure readings under the DC 7101.

However, the Court agreed with the Board’s discussion of effective dates. Essentially, the Board found that the effective date for the increased evaluation for the Veteran’s claim for an increased rating for his hypertension would be for the period beginning in September 2007. This effective date properly takes into account the one-year look-back period veterans are afforded for when they apply for increased ratings. But the Court found that the Board erred when it failed to consider the pre-medicated blood pressure readings Veteran submitted in determining whether Veteran has a history of diastolic pressure at 100 or above.

Next, the Court determined whether the Board provided adequate reasons and bases for declining to follow the procedures set forth by the M21-1. In a previous Court remand order in 2018, the Court instructed the Board to discuss the relevance of the M21-1 provision. The Court explained that the Board addressed the M21-1, however, the Board did not explain a proper rationale for departing from the rule set forth in the M21-1. The Court references its holdings in Healey v. McDonough, 33 Vet.App. 312 (2021) and Overton v. Wilkie, 30 Vet.App. 257, 264 (2018) to come to its conclusion that the Board cannot just simply invoke or ignore a relevant guidance provision to support its determination and must provide an independent rationale. This independent rationale must relate to its decision to the relevant document.

The Court ultimately finds that the Board failed to provide adequate reasons and bases for its conclusion that the M21-1 did not provide guidance for assigning an increased rating. The Court explains that the Board’s decision contradicted the text of DC 7101 and thus, the Board’s decision to depart from applying the M21-1 is not supported by reasoned basis. Therefore, the Court remands this case since the Board erroneously misinterpreted DC 7101 by failing to consider the 1991 blood pressure readings from before Veteran began taking his medication.

Case implications and how Berry Law can help you with your hypertension evaluation:

This favorable and binding legal precedent ensures that the VA regional level and the Board are appropriately reviewing veterans’ pre-medicated blood pressure readings. Are you service-connected or applying for disability benefits for hypertension? If so, this case is important for ensuring that your hypertension is rated appropriately. If you currently have a finalized 0 percent rating for your service-connected hypertension, Berry Law Firm can help you get an increased rating for your hypertension if:

  • You are presently service connected for hypertension,
  • You take continuous medication to control your hypertension, and
  • You have documented diastolic blood pressure readings predominantly 100 or more.  

If your 0 percent hypertension is a final decision, Berry Law can help ensure that you are also provided the proper effective date of a year prior to you submitting your claim to increase. Additionally, if you have recently been granted service connection for hypertension with a 0 percent rating, please call Berry Law today if you take medication to control your hypertension and you have documented diastolic blood pressure readings predominantly 100 pre more. If your 0 percent rating is not final, Berry Law will ensure that you are adequately provided the appropriate hypertension rating and the appropriate effective date to when service connection has been established, if continuously pursued.

If you have a present diagnosis of hypertension that you believe is related to your military service or a service-connected condition or medication, Berry Law can help get you service-connected for your hypertension and ensure your ratings and effective dates are appropriate. Veterans can establish service connection for hypertension on a presumptive, direct, or secondary causative theory. Your diagnosis of hypertension must be supported by evidence showing two or more blood pressure readings were performed on three different days. Please call Berry Law today to help with your service connection, effective dates, or evaluation of your hypertension.

Berry Law

The attorneys at Berry Law Firm are dedicated to helping injured Veterans. With extensive experience working with VA disability claims, Berry Law can help you with your disability appeals.

This material is for informational purposes only. It does not create an attorney-client relationship between the Firm and the reader, and does not constitute legal advice. Legal advice must be tailored to the specific circumstances of each case, and the contents of this blog are not a substitute for legal counsel.

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