Billy D. McCarroll v. Robert A. McDonald

28 Vet. App. 267, 2016 U.S. Vet. App. LEXIS 1719, 2016 WL 6575247
CourtUnited States Court of Appeals for Veterans Claims
DecidedNovember 7, 2016
DocketNO. 14-2345
StatusPublished
Cited by16 cases

This text of 28 Vet. App. 267 (Billy D. McCarroll v. Robert A. McDonald) is published on Counsel Stack Legal Research, covering United States Court of Appeals for Veterans Claims primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Billy D. McCarroll v. Robert A. McDonald, 28 Vet. App. 267, 2016 U.S. Vet. App. LEXIS 1719, 2016 WL 6575247 (Cal. 2016).

Opinions

LANCE, Judge:

The appellant, veteran Billy D. McCar-roll, appeals through counsel a June 4, 2014, decision of the Board of Veterans’ Appeals (Board) that, in part, denied entitlement to an initial compensable disability rating for hypertension.2 Record (R.) at 1-14. This case was submitted to a panel for decision on January 15, 2016, and a panel of the Court heard oral argument on April 12, 2016.3 On July 1, 2016, this case was submitted to the full Court for review pursuant to part VII of the Court’s Internal Operating Procedures.

For the reasons that follow, the Court will affirm that part of the Board’s June 2014 decision now on appeal. In addition, the Board dismissed the appellant’s claims for entitlement to service connection for a neck disorder, bilateral hearing loss, tinnitus, and sinusitis, as well as his claims for entitlement to increased initial disability ratings for left shoulder strain, right carpal tunnel syndrome, and choroidal nevus of the right eye. R. at 9. As the appellant presents no argument as to those determinations, the Court will deem those matters abandoned and will accordingly dismiss the [269]*269appeal as to those issues. See Pederson v. McDonald, 27 Vet.App. 276, 283 (2015) (en banc).

I. BACKGROUND

The appellant served in the U.S. Army from December 1983 to September 1992 and from January 1994 to August 2009. R. at 724-25. A September 14, 2008, service treatment record (STR) reflects blood pressure readings of 132/95 and 128/95. R. at 946. A March 2, 2009, STR noted a history of borderline hypertension. R. at 928. The examiner recorded blood pressure readings of 112/79,144/92, and 142/88, and recommended a five-day blood pressure check. R. at 928. Records dated between March 3, 2009, and March 5, 2009, note blood pressure readings of 128/88, 138/80, 156/100, 148/96, 120/92, and 126/90. R. at 761, 919. On March 5, 2009, the appellant filed a claim for entitlement to service connection for hypertension. R. at 786-96.

On April 1, 2009, a private cardiologist prescribed the appellant Lisinopril,4 10 mg. R. at 755-57. The following day, the appellant underwent a VA examination; the examiner observed that “[the appellant] has had occasional blood pressure elevations at routine physical examinations.” R. at 739. The examiner noted that the appellant had just been prescribed Lisinopril by his cardiologist and he diagnosed the appellant with essential hypertension. R. at 739, 741. That same day, the appellant’s blood pressure was measured as 141/94 in the right arm while sitting, 117/78 in the left arm while sitting, and 116/79 while standing. R. at 470.

In an October 2009 rating decision, the Salt Lake City, Utah, VA regional office (RO) granted service connection for hypertension and assigned a noncompensable rating. R. at 674-79, 683-705. The appellant filed a Notice of Disagreement in October 2009, R. at 673, and perfected his appeal in October 2010, R. a 613-15.

A private medical record from May 2010 reflects a blood pressure reading of 148/95. R. at 533. In November 2010, the appellant underwent another VA examination. R. at 584-89. The examiner noted that the appellant’s blood pressure “demonstrates good control with normal readings” and that the appellant’s Lisinopril dosage had increased to 20 mg. R. at 585. The appellant’s blood pressure was recorded as 133/86 on March 31, 2011, R. at 458, and as 127/84 on July 9, 2012, R. at 343. At a November 2012 Board hearing, the appellant testified that his diastolic blood pressure readings were over 100 “two or three times” before he began taking blood pressure medication. R. at 245-46. He also testified that he believed his blood pressure would be higher if he were not taking his medication. R. at 244-45.

In June 2014, the Board denied entitlement to an initial compensable rating for hypertension under 38 C.F.R. § 4.104, diagnostic code (DC) 7101 (hypertensive vascular disease). R. at 1-14. The Board found that “[the appellant’s] hypertension has not manifested with diastolic pressure predominantly 100 or more, with or without medication; or, systolic pressure predominantly 160 or more throughout the initial rating period.” R. at 4. The Board acknowledged the appellant’s argument that he would meet the criteria for a 10% disability rating if he were not using medication. R. at 8. The Board determined, however, that this assertion was “inaccurate,” as “prior to being placed on medi[270]*270cation, the [appellant] was diagnosed with occasional slightly elevated blood pressure readings” and “the preponderance of the evidence shows he does not have a history of diastolic pressure predominantly 100 or more.” R. at 8-9. This appeal followed.

II. THE PARTIES’ ARGUMENTS

The appellant argues that the Board erred when it denied entitlement to a com-pensable rating for hypertension on a schedular basis and when it determined that he was not entitled to referral for consideration of whether an extraschedular rating was warranted. Appellant’s Brief (Br.) at 4-19. With respect to his schedular evaluation, the appellant raises three contentions. First, he asserts that the Board “failed to properly address the effects of [his] need for continuous medications for control of his hypertension” and misinterpreted the rating criteria for hypertension under DC 7101. Id. at 5, 4-16. Specifically, he argues that the Board violated the Court’s holding in Jones v. Shinseki, 26 Vet.App. 56, 63 (2012), by failing to discount the ameliorative effects of his blood pressure medication. Id. at 10-11. The appellant contends that, without medication, his blood pressure would either meet the criteria for a higher disability rating or, at a minimum, more nearly approximate the criteria for a higher evaluation. Id. at 8-11 (citing 38 C.F.R. §§ 4.3 (2016), 4.7 (2016)). He further asserts that the issue of what his blood pressure would be without medication is a question requiring medical expertise and that the Board therefore violated Colvin v. Derwinski, 1 Vet.App. 171, 172 (1991), when it determined that he would not meet the criteria for a compen-sable rating were he not taking medication without citing any supporting medical evidence. Id. at 5-7, 9.

Second, and in the alternative, the appellant argues that, even assuming that the Board was permitted to consider the ameliorative effects of his medication, it erred by failing to discuss whether his disability picture more nearly approximated the criteria for a higher disability rating. Id. at 13 (citing 38 C.F.R. § 4.7). Finally, he asserts that the Board clearly erred when it determined that he did not have a history of diastolic pressure readings of 100 or more and, thus, that he did not satisfy the criteria for a 10% disability rating under DC 7101. Id. at 14-15 (citing R. at 919).

With respect to the issue of referral for extraschedular consideration, the appellant contends that the Board erred by failing to discuss whether referral was warranted. Id. at 16-19.

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Bluebook (online)
28 Vet. App. 267, 2016 U.S. Vet. App. LEXIS 1719, 2016 WL 6575247, Counsel Stack Legal Research, https://law.counselstack.com/opinion/billy-d-mccarroll-v-robert-a-mcdonald-cavc-2016.