Billy D. McCarroll v. Robert A. McDonald

UNITED STATES COURT OF APPEALS FOR VETERANS CLAIMS

NO. 14-2345

BILLY D. MCCARROLL, APPELLANT,

V.

ROBERT A. MCDONALD,

SECRETARY OF VETERANS AFFAIRS, APPELLEE.

On Appeal from the Board of Veterans' Appeals

(Decided November 7, 2016)

Matthew J. Ilacqua, of Providence, Rhode Island, was on the brief for the appellant.

Leigh A. Bradley, General Counsel; Mary Ann Flynn, Assistant General Counsel; Thomas

E. Sullivan, Deputy Assistant General Counsel; and Rudrendu Sinhamahapatra, all of Washington,

D.C., were on the brief for the appellee.

Before DAVIS, Chief Judge; KASOLD, LANCE, SCHOELEN, PIETSCH, BARTLEY, and

GREENBERG, Judges; and HAGEL, Senior Judge.1

LANCE, Judge, filed the opinion of the Court. KASOLD, Judge, filed an opinion

concurring in part in which SCHOELEN, Judge, joined. HAGEL, Senior Judge, filed a dissenting

opinion in which GREENBERG, Judge, joined.

LANCE, Judge: The appellant, veteran Billy D. McCarroll, 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

1

Judge Davis became Chief Judge on October 10, 2016. Judge Hagel is a recall-eligible judge who has been

recalled to further service by the Chief Judge. 38 U.S.C. § 7257(b)(1); U.S. Vet. App. Misc. No. 09-16 (Oct. 13, 2016).

2

The Court lacks jurisdiction over the appellant's claim for entitlement to service connection for liver disease,

which the Board remanded, and it will not be addressed further. See 38 U.S.C. §§ 7252(a), 7266(a); Howard v. Gober,

220 F.3d 1341, 1344 (Fed. Cir. 2000).

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 appeal 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.

3

Matthew J. Ilacqua, of Providence, Rhode Island, argued for the appellant. Nicolas R. Esterman, of

Washington, D.C., argued for the Secretary.

4

Lisinopril is a medication prescribed for hypertension. DORLAND'S ILLUSTRATED MEDICAL DICTIONARY 1065

(32d ed. 2012).

2

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 medication, 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 compensable 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

3

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 compensable 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. In particular,

he argues that "the rating criteria, as interpreted by the Board, do not address [his] specific disability

picture," as there is "a medical question as to whether, but for his use of medication, he would have

compensable blood pressure readings." Id. at 18. He asks the Court to vacate and remand the

Board's decision. Id. at 19.

The Secretary responds that the Board did not err in denying entitlement to a compensable

disability for hypertension on either a schedular or extraschedular basis. Secretary's Br. at 7-28.

With respect to the effects of the appellant's blood pressure medication, the Secretary contends that

DC 7101 contemplates "a need for continuous medication to control the hypertension" and, thus, that

Jones is inapplicable. Id. at 15-17. He argues that the Board did not clearly err when it determined

that the appellant did not have diastolic blood pressure readings that were predominantly 100 or

higher, systolic blood pressure readings that were predominantly 160 or higher, or a history of

diastolic blood pressure predominantly 100 or more. Id. at 20; see 38 C.F.R. § 4.104, DC 7101

4

(2016). Moreover, the Secretary asserts that § 4.7 is inapplicable in this case, as "'there is no

question as to which evaluation shall be applied when a veteran does not satisfy all of the required

criteria of the higher rating but does satisfy all of the criteria of the lower rating.'" Secretary's Br.

at 21, 18-21 (quoting Middleton v. Shinseki, 727 F.3d 1172, 1178 (Fed. Cir. 2013)). Finally, the

Secretary argues that the Board was not required to discuss the issue of entitlement to referral for

extraschedular consideration, contending that the issue was neither raised by the appellant nor

reasonably raised by the record. Id. at 23-28. He asks the Court to affirm the Board's decision. Id.

at 28.

III. ANALYSIS

A. Schedular Evaluation

The appellant's arguments regarding the proper schedular evaluation for his hypertension

turn, in large part, on two related issues: first, whether the criteria in DC 7101 contemplate the

effects of medication, including whether Jones prohibits the Board from considering those effects

when evaluating hypertension; and, second, whether his disability picture, with or without

medication, "more nearly approximates" the criteria for a 10% disability rating than his current

noncompensable evaluation.

1. DC 7101, Jones, and the Effects of Medication

The Court will first turn to the issue of whether DC 7101 contemplates the effects of

medication. As the Court explained in Jones, "the Board may not deny entitlement to a higher

rating on the basis of relief provided by medication when those effects are not specifically

contemplated by the rating criteria." 26 Vet.App. at 63; see Massey v. Brown, 7 Vet.App. 204, 208

(1994) ("The Board's consideration of factors which are wholly outside the rating criteria provided

by the regulations is error as a matter of law."). Thus, if DC 7101 does not specifically contemplate

the effects of medication, the Board is required pursuant to Jones to discount the ameliorative effects

of medication when evaluating hypertension. Conversely, if DC 7101 does specifically contemplate

the effects of medication, then Jones is inapplicable. The Court holds that DC 7101 contemplates

the effects of medication and, therefore, that Jones does not apply.

"The starting point in interpreting a statute [or regulation] is its language." Good Samaritan

Hosp. v. Shalala, 508 U.S. 402, 409 (1993); see Smith v. Brown, 35 F.3d 1516, 1523 (Fed. Cir. 1994)

5

("The canons of construction of course apply equally to any legal text and not merely to statutes.").

"Where a statute's language is plain, and its meaning clear, no room exists for construction."

Gardner v. Derwinski, 1 Vet.App. 584, 587-88 (1991), aff'd sub nom. Brown v. Gardner, 513 U.S.

115 (1994). Statutes and regulations "must be considered as a whole and in the context of the

surrounding statutory [and regulatory] scheme." Gazelle v. McDonald, 27 Vet.App. 461, 464 (2016)

(citing King v. St. Vincent's Hosp., 502 U.S. 215, 221 (1991)).

Pursuant to DC 7101, a 60% disability rating is warranted for hypertension with "[d]iastolic

pressure predominantly 130 or more." 38 C.F.R. § 4.104, DC 7101. A 40% evaluation is warranted

for "[d]iastolic pressure predominantly 120 or more," and a 20% disability rating is warranted for

"[d]iastolic pressure predominantly 110 or more, or systolic pressure predominantly 200 or more."

Id. A 10% evaluation is warranted in three circumstances: first, diastolic pressure predominantly

100 or more; second, systolic pressure predominantly 160 or more; or third, as a "minimum

evaluation for an individual with a history of diastolic pressure predominantly 100 or more who

requires continuous medication for control." Id. Note (1) to DC 7101 states, in part, that "the term

hypertension means that the diastolic blood pressure is predominantly 90mm. or greater." Id.

The criteria for compensable evaluations under DC 7101 thus contemplate two factual

alternatives. First, a veteran whose blood pressure is currently controlled by medication—i.e.,

whose blood pressure does not otherwise meet the criteria for a compensable evaluation—but who

has a history of diastolic pressure predominantly 100 or more is entitled to receive the minimum

compensable evaluation of 10%. Id. Second, a veteran whose blood pressure is currently elevated

to varying degrees is entitled to evaluations ranging from 10% to 60%. Id. Read together,

see Gazelle, 27 Vet.App. at 464, these two scenarios clearly contemplate the effects of medication:

either a veteran's blood pressure is controlled by medication, warranting a 10% evaluation if there

is a history of elevated systolic pressure, or it is not, in which case the actual blood pressure level

determines the disability rating.

The Court's analysis in Jones supports this reading of DC 7101. In that case, the Court held

that 38 C.F.R. § 4.114, DC 7319, which sets forth the rating criteria for irritable bowel syndrome,

did not contemplate the effects of medication. 26 Vet.App. at 63. The Court explained that "[t]he

Secretary has demonstrated . . . that he is aware of how to include the effect of medication as a factor

to be considered when rating a particular disability" and cited 38 C.F.R. § 4.71a, DC 5025

6

("Fibromyalgia"), as an example of a DC that does contemplate the effects of medication. Id. at 62.

DC 5025, like DC 7101, only explicitly references medication in its criteria for a 10% evaluation.

38 C.F.R. § 4.71a, DC 5025 (2016).

Although the appellant contends that the regulation, its implementing comments in the

Federal Register, and VA's M21-1 Adjudication Procedures Manual (M21-1) "show[] that the

Secretary intends to compensate veterans whose condition is 'brought under control' by medications

such that the condition no longer reaches blood pressure readings the rating criteria recognize as

compensable," Appellant's Br. at 12, his arguments are not persuasive. First, as discussed above,

the plain language of the rating criteria listed under DC 7101 demonstrates that this diagnostic code,

read as a whole, contemplates the effects of medication in assigning a disability rating for

hypertension. See Gazelle, 27 Vet.App. at 464; Gardner, 1 Vet.App. at 587-88.

Second, the sections of the Federal Register cited by the appellant5 do not alter the Court's

analysis. In 1997, the Secretary amended DC 7101. 62 Fed. Reg. 65,207, 65,215 (Dec. 11, 1997).

In doing so, he shifted the language providing a 10% evaluation on the basis of continuous

medication with a history of diastolic pressure predominantly 100 or more from a separate note into

the criteria for a 10% evaluation, as it "represents part of the evaluation criteria." Id. He explained

that "the evaluation for hypertension is based not on the amount of medication required to control

it, but on the level of control that can be achieved." Id. This explanation makes clear that the use

of medication is directly addressed and contemplated by the evaluation criteria under DC 7101.

5

To support his argument that the Board misinterpreted the criteria for a 10% disability rating under DC 7101

by failing to discount the ameliorative effects of his medication, the appellant quotes the Secretary's comment in the

Federal Register that "[w]hether a ten-percent evaluation is warranted when continuous medication is required is based

on a case-by-case assessment of each condition and the usual effects of treatment." Appellant's Br. at 12 (quoting

62 Fed. Reg. 65,207, 65,215 (Dec. 11, 1997)). The appellant thus creates the impression that the Secretary's

consideration of the need for continuous medication under DC 7101 may vary from case to case depending upon the

circumstances of a particular claimant's condition. However, when read in context, it is clear that the Secretary is instead

explaining why he chose to include a minimum rating based on continuous medication only for certain DCs, including

DC 7101. See 62 Fed. Reg. at 65,215.

To the extent that the appellant also cites the Federal Register to support his contention that DC 7101 does not

simultaneously require both the use of medication and current diastolic blood pressure readings of predominantly 100

or more, see Appellant's Br. at 12, there is no dispute over this issue, as the Secretary acknowledges that the minimum

compensable rating for hypertension requires only a history of elevated diastolic pressure, as opposed to currently

elevated diastolic pressure, see Secretary's Br. at 9.

7

Third, although the appellant cites the predecessor to the M21-1 as requiring VA adjudicators

to "'start with . . . the readings taken as part of a . . . diagnostic workup period leading to the

prescription of medication'" as evidence that DC 7101 does not contemplate the effects of

medication, Appellant's Br. at 12 (quoting VA Adjudication Procedures Manual Rewrite (M21-

1MR) pt. III, subpt. iv, ch. 4, § E.20.e) (emphasis removed), it is not clear whether that provision

relates to DC 7101 as a whole or merely to whether a veteran whose blood pressure is controlled by

medication satisfies the criteria for a 10% evaluation. The current M21-1, however, includes the

cited language as part of its instructions on how to evaluate whether a veteran's "past diastolic

pressure (before medication was prescribed) was predominantly 100 or greater" when "current

predominant blood pressure readings are non-compensable." M21-1, pt. III, subpt. iv, ch. 4, § E.1.e.

In any event, the appellant fails to explain how his citation to the M21-1's predecessor, which

focuses upon the relevant period for determining whether a claimant has a history of blood pressure

readings, supports his broader argument that the Secretary intended to compensate all veterans

whose blood pressure readings are controlled by medication. See Locklear v. Nicholson, 20

Vet.App. 410, 416 (2006) (holding that the Court will not entertain underdeveloped arguments).

In sum, as the plain language of DC 7101 contemplates the effects of medication, and

because the Secretary's comments in the Federal Register at the time of its 1997 amendment support

this reading, the Court holds that DC 7101 contemplates the effects of medication and, thus, that

Jones is not applicable. Accordingly, the Court rejects the appellant's arguments that the Board

erred when it failed to consider whether he would be entitled to a compensable rating if he were not

taking medication. See Appellant's Br. at 8-11. As the appellant's contentions that a medical

opinion was required to properly discount the effects of his medication and that the Board violated

Colvin when it relied on its own medical judgment are premised on his erroneous reading of DC

7101, id. at 5-7, 9, the Court rejects those arguments, as well.

2. The Appellant's Remaining Arguments

Having determined that Jones does not apply and that the Board did not err by considering

the ameliorative effects of the appellant's medication, the Court will address the appellant's

remaining arguments that the Board erred when it found that he did not more nearly approximate

the criteria for a 10% evaluation and did not have a history of diastolic pressure predominantly 100

or more. See Appellant's Br. at 13-15.

8

Turning first to the appellant's contention that he does, in fact, have a history of diastolic

pressure predominantly 100 or more, id. at 15, the Court holds that the Board did not clearly err

when it determined that he did not, R. at 8; see Hood v. Shinseki, 23 Vet.App. 295, 299 (2009) ("The

Court reviews factual findings under the 'clearly erroneous' standard such that it will not disturb a

Board finding unless, based on the record as a whole, the Court is convinced that the finding is

incorrect."). In support of his argument, the appellant cites medical records documenting six blood

pressure readings prior to when he began taking medication. Appellant's Br. at 15 (citing R. at 919).

Those readings, all dated March 2, 2009, are 144/92, 142/86, 128/88, 138/80, 156/100, and 148/96.

R. at 919. Although there is one reading demonstrating diastolic pressure of 100, that single reading

does not demonstrate clear error in the Board's finding that the appellant did not have a history of

diastolic pressure predominantly 100 or more, as required by the rating criteria. See 38 C.F.R.

§ 4.104, DC 7101. Rather, to accept the appellant's argument would be to omit the key word

"predominantly" from the rating criteria, which the Court cannot do. See 38 U.S.C. § 7252(b) ("The

Court may not review the schedule of ratings for disabilities . . . or any action of the Secretary in

adopting or revising that schedule."); Moskal v. United States, 498 U.S. 103, 109 (1990) (reiterating

"the established principle that a court should 'give effect, if possible, to every clause and word of a

statute'" (quoting United States v. Menasche, 348 U.S. 528, 538-39 (1955))); see Wingard v.

McDonald, 779 F.3d 1354, 1356–57 (Fed. Cir. 2015) (discussing the Court's inability to review the

schedule of ratings for disabilities).

Similarly, although the appellant contends that the Board erred by failing to consider whether

he more nearly approximated the criteria for a 10% evaluation, Appellant's Br. at 13-16, the Court

is not persuaded. See Hilkert v. West, 12 Vet.App. 145, 151 (1999) (en banc) ("An appellant bears

the burden of persuasion on appeals to this Court."), aff'd per curiam, 232 F.3d 908 (Fed. Cir. 2000)

(table). To qualify for a 10% evaluation under DC 7101, a veteran must satisfy one of three

alternatives: first, current diastolic pressure predominantly 100 or more; second, current systolic

pressure predominantly 160 or more; or third, a history of diastolic pressure predominantly 100 or

more with blood pressure controlled by continuous medication. 38 C.F.R. § 4.104, DC 7101.

"Where there is a question as to which of two evaluations shall be applied, the higher evaluation will

be assigned if the disability picture more nearly approximates the criteria required for that rating.

Otherwise, the lower rating will be assigned." 38 C.F.R. § 4.7.

9

In its decision, the Board did not specifically discuss whether the appellant satisfied either

the first or second alternative for a 10% evaluation, but it determined that he had "diastolic pressure

predominantly less than 100, and systolic pressure predominantly less than 150." R. at 8. With

respect to the third alternative, the Board acknowledged that the appellant "clearly requires

continuous medication" but found that "the preponderance of the evidence shows he does not have

a history of diastolic pressure predominantly 100 or more," and thus that he "more nearly

approximated the assigned noncompensable rating."6 R. at 9 (citing, inter alia, 38 C.F.R. § 4.7).

Although the appellant argues that he may satisfy the first or second alternatives were the

Board to discount the effects of his medication, Appellant's Br. at 15-16, the Court has already

considered and rejected that argument above. With respect to the third alternative, the Court is not

persuaded that the Board erred when it determined that his diastolic pressure history more nearly

approximated the noncompensable level. As noted above, the Board specifically determined that

the appellant did not satisfy the criteria for a 10% evaluation. R. at 9. Moreover, the Court is not

convinced that the blood pressure readings cited by the appellant "more closely approximate"

diastolic pressure of pressure 100 or more, as opposed to diastolic pressure predominantly 90 or

more as required by a noncompensable evaluation. See 38 C.F.R. § 4.104, DC 7101, Note (1)

(defining hypertension for VA purposes as "diastolic blood pressure [that] is predominantly 90 mm.

or greater"). In short, the Board properly determined that there was no question as to which

evaluation applied, and § 4.7 therefore was not for application. See 38 C.F.R. § 4.7.

Ultimately, the Court is not persuaded that the Board clearly erred when it determined that

the appellant was not entitled to a compensable evaluation for hypertension under DC 7101. See

Johnston v. Brown, 10 Vet.App. 80, 84 (1997) (the Board's assignment of a disability rating is a

6

The M21-1 specifically prohibits adjudicators from assigning a 10% evaluation if a veteran meets only one

of the two criteria for the third alternative:

Do not assign a 10[%] evaluation based upon a showing of one of the two conjunctive criteria above

by invoking the benefit of the doubt rule. . . . When either criterion is simply not shown (for example,

the claimant is using prescribed anti-hypertensive medication but diastolic pressure has never been

predominantly 100 or greater) the evidence is not in relative equipoise on whether a 10-percent

evaluation is appropriate and the disability picture does not more nearly approximate the 10-percent

criteria.

M21-1, pt. III, subpt. iv, ch. 4, § E.1.e. The M21-1 acknowledges, however, that § 4.7 "may be applicable to whether

the evidence supports each criterion." Id.

10

question of fact, which the Court reviews under the "clearly erroneous" standard). Further, as the

Board's decision regarding the proper schedular evaluation is understandable and facilitates judicial

review, the Court holds that the Board provided an adequate statement of reasons or bases to support

that determination. See 38 U.S.C. § 7104(d)(1); Allday v. Brown, 7 Vet.App. 517, 527 (1995).

B. Extraschedular Referral

As a final matter, the Court rejects the appellant's contention that the Board erred by failing

to address whether referral for extraschedular consideration was warranted. Appellant's Br. at 16-19.

"[T[he issue of whether referral for extraschedular consideration is warranted must be argued by the

claimant or reasonably raised by the record." Yancy v. McDonald, 27 Vet.App. 484, 495 (2016); see

Robinson v. Peake, 21 Vet.App. 545, 552 (2008) (the Board is required to consider all issues raised

by a claimant or reasonably raised by the evidence of record), aff'd sub nom. Robinson v. Shinseki

557 F.3d 1355 (Fed. Cir. 2009). The Board is required to discuss referral "[w]here there is evidence

in the record that shows exceptional or unusual circumstances," Colayong v. West, 12 Vet.App. 524,

536 (1999), or where "the evidence of record suggests that a schedular rating may be inadequate,"

Thun v. Peake, 22 Vet.App. 111, 115 (2008), aff'd sub nom. Thun v. Shinseki, 572 F.3d 1366 (Fed.

Cir. 2009). "Where, however, [38 C.F.R.] '§ 3.321(b)(1) [is] neither specifically sought by [the

claimant] nor reasonably raised by the facts found by the Board,' the Board is not required to discuss

whether referral is warranted." Yancy, 27 Vet.App. at 494 (quoting Dingess v. Nicholson,

19 Vet.App. 473, 499 (2006), aff'd, 226 F. App'x 1004 (Fed. Cir. 2007)).

The appellant does not contend that he specifically raised this issue below. Accordingly, for

the Board to have erred by failing to discuss referral for extraschedular consideration, that issue must

have been reasonably raised by the record. It was not. Although the appellant asserts that "the

rating criteria, as interpreted by the Board, do not address [his] specific disability picture," as there

is "a medical question as to whether, but for his use of medication, he would have compensable

blood pressure readings," Appellant's Br. at 18, the Court is not persuaded. Rather, as DC 7101

explicitly contemplates the effects of medication, the use of medication cannot constitute an unusual

disability picture, and the question of what the appellant's current disability would be absent his

medication is not relevant. See 62 Fed. Reg. at 65,215 ("[T]he evaluation for hypertension is based

not on the amount of medication required to control it, but on the level of control that can be

achieved.").

11

As referral for extraschedular consideration was neither argued by the appellant nor

reasonably raised by the record, the Court holds that the Board did not err in failing to discuss that

issue. See Yancy, 27 Vet.App. at 494. Accordingly, the Court will affirm that part of the Board's

decision denying entitlement to a compensable disability evaluation for hypertension.

IV. CONCLUSION

As DC 7101 explicitly contemplates the ameliorative effects of medication, the Board did

not err when it considered the effects of the appellant's medication when evaluating his

hypertension. Moreover, the Board did not clearly err when it determined that the appellant did not

have a history of diastolic pressure predominantly 100 or more or when it determined that his

hypertension did not more nearly approximate the criteria for a 10% evaluation. Finally, as referral

for extraschedular consideration was not raised by the appellant below or reasonably raised by the

record, the Board did not err by failing to discuss that issue.

Therefore, upon consideration of the foregoing analysis, the record on appeal, and the parties'

briefs, that part of the Board's June 4, 2014, decision denying entitlement to an initial compensable

disability rating for hypertension is AFFIRMED. The appeal is DISMISSED as to the issues of

entitlement to service connection for a neck disorder, bilateral hearing loss, tinnitus, and sinusitis,

and entitlement to increased initial disability ratings for left shoulder strain, right carpal tunnel

syndrome, and choroidal nevus of the right eye.

KASOLD, Judge, with whom SCHOELEN, Judge, joins, concurring in part: I agree with the

result reached in today's decision. The Board's analysis and application of diagnostic code (DC)

7101 was proper, and the Board decision on appeal should be affirmed. I write separately, however,

because Mr. McCarroll's argument that Jones v. Shinseki requires remand on the facts in his case

illustrates that the Jones holding–i.e., that "the Board may not deny entitlement to a higher rating

on the basis of relief provided by medication when those effects are not specifically contemplated

by the rating criteria," Jones v. Shinseki, 26 Vet.App. 56, 63 (2012)–is erroneous and should now

12

be overturned. See Bethea v. Derwinski, 2 Vet.App. 252, 254 (1992) ("Only the en banc Court may

overturn a panel decision.").

Jones is fairly cited by Mr. McCarroll for the proposition that it is impermissible to deny a

compensable rating when the veteran raises the possibility that his symptoms would rise to a

compensable level if he were not taking his required medication. See Appellant's Brief (Br.) at 10

("[I]f the only reason Mr. McCarroll's blood pressure readings were noncompensable was because

of the therapeutic effects of his medication[], it would be impermissible to deny him a compensable

rating based on those therapeutic effects."); see Jones, supra. Although Jones has been artfully

distinguished by the majority opinion being issued today, the better course is to recognize that the

Jones holding is predicated on a misunderstanding of the rating schedule and a failure to appreciate

the ramifications of that holding and is therefore wrongly decided. It should be overturned.

The Rating Schedule

The essence of the rating schedule is that veterans are compensated for their symptoms and,

specifically, how those symptoms would, on average, impair a person's earning capacity. 38 U.S.C.

§ 1155 ("The Secretary shall adopt and apply a schedule of ratings of reductions in earning capacity

from specific injuries or combination of injuries. The ratings shall be based, as far as practicable,

upon the average impairments of earning capacity resulting from such injuries in civil

occupations."); 38 C.F.R. § 4.2 (2016) (noting that it is crucial for the rating to "accurately reflect

the elements of disability present"); 38 C.F.R. § 4.10 (2016) ("The basis of disability evaluations

is the ability of . . . [an] organ of the body to function under the ordinary conditions of daily life

including employment."); 38 C.F.R. § 3.321(b)(1) (2016) ("Ratings shall be based as far as

practicable[] upon the average impairments of earning capacity[.]").

To accomplish the task of compensating a veteran based on the average impairment in

earning capacity, the diagnostic codes in the disability rating schedule ask what the veteran's

symptoms are, compared to a list of symptoms of ascending severity in the rating schedule, which

this Court is without authority to second-guess. See 38 U.S.C. § 7252(b) ("The Court may not

review the schedule of ratings for disabilities adopted under section 1155 of this title or any action

of the Secretary in adopting or revising that schedule."); Wanner v. Principi, 370 F.3d 1124, 1130-31

(Fed. Cir. 2004) ("The Secretary's discretion over the [rating] schedule, including procedures

followed and content selected, is insulated from judicial review with one recognized exception

13

limited to constitutional challenges."). The rating schedule does not ask what the symptoms could

be, if not for various positive influences in a veteran's life, including medication.

Mr. McCarroll’s arguments amply illustrate the distortion of the rating schedule created by

Jones. He argues that his blood pressure readings were "skewed" by the ameliorative effects of his

medication. Appellant's Br. at 11. But, the readings were not skewed. The introduction of

medication did not "taint" the results or render them inaccurate or misleading. The readings reflect

the actual level of Mr. McCarroll's blood pressure at the times the readings were taken, and they

therefore reflect "the elements of disability present" at those times. 38 C.F.R. § 4.2. Because taking

blood pressure medication is not an unusual phenomenon for people with high blood pressure, the

readings also reflect the condition of Mr. McCarroll's body under "the ordinary conditions of life."

38 C.F.R. § 4.10. Otherwise stated, nothing in the rating schedule warrants subtracting whatever

positive influences medication has on Mr. McCarroll's blood pressure.

Flaw in Jones

A review of Jones reflects that its holding was predicated on an inaccurate premise.

Specifically, the Court stated in Jones that the Secretary "demonstrated in other DCs that he is aware

of how to include the effect of medication as a factor to be considered when rating a particular

disability." 26 Vet.App. at 62. The Court then pointed to two other DCs (5026 and 6602) that the

Court stated require VA adjudicators to expressly consider the ameliorative effects of medication.

Id. However, neither of the two "other DCs" cited by the panel in Jones requires the Board to

consider the "ameliorative effects" of medication. In DC 5025, a 10% disability rating is provided

for fibromyalgia where symptoms "require continuous medication for control." 38 C.F.R. § 4.71a,

DC 5025 (2016). In DC 6602, a 10% disability rating is provided for bronchial asthma if the record

shows, inter alia, "intermittent inhalational or oral bronchodilator therapy." 38 C.F.R. § 4.97, DC

6602 (2016). These diagnostic codes require only that the Board consider the fact of medication

usage, as a proxy for the seriousness of the condition; they do not require that the Board consider

any "ameliorative effect."

Indeed, although some diagnostic codes mention the fact of medication usage as a rating

criterion, none require the Board to make any affirmative use of information about the "ameliorative

effects" of the medication. See, e.g., 38 C.F.R. § 4.79, DC 6012 (2016) (DC for angle-closure

glaucoma establishes a 10% rating "if continuous medication is required"); 38 C.F.R. § 4.88b, DC

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6351 (2016) (DC for HIV-related illness allows a 30% rating with certain symptoms if the veteran

is "on approved medication(s)"); 38 C.F.R. § 4.118, DC 7806 (2016) (DC for dermatitis or eczema

provides ratings based, in part, on the type of medication used, including a 60% rating when there

is "constant or near-constant systemic therapy such as corticosteroids or other immunosuppressive

drugs required during the past 12-month period").7

In sum, nothing about the rating schedule supports the Jones conclusion that the Board must

affirmatively rule out any ameliorative effects of medication when assessing a veteran's disability

picture.

Unacceptable Ramifications

That the Jones holding should be overturned becomes even clearer when one considers the

unacceptable consequences that flow inexorably from it. Cf. United States v. Dixon, 509 U.S. 688,

709-10 (1993) (noting that an earlier decision of the Court should be overturned because it was

"wrong in principle," had "proved unstable in application," and was "a continuing source of

confusion"). The requirement that the Secretary "may not consider the relief afforded by [a

veteran's] medication when" applying the rating schedule, as Jones demands, See Jones, 26 Vet.App.

at 63, invites medical speculation in trying to guess what a veteran's symptoms might be without the

medication, or medical malpractice in the cessation of medication so that the veteran's symptoms

without medication might be recorded. The former invites non-helpful guesswork by medical

practitioners, see Hood v. Shinseki, 23 Vet.App. 295, 298-99 (2005) (medical opinions that are

speculative have "little probative value"), and the latter raises, at a minimum, serious ethical

concerns that no court should encourage. That Jones essentially requires the Board to consider

7

Similar to the DC in Jones, DC 7101 does not require the Board to take into account any ameliorative effects

of medications; the Board is to consider only the fact that the veteran may have particular blood pressure readings while

taking "continuous medication for control." 38 C.F.R. § 4.104, DC 7101 (2016). Therefore, although I agree with

today's ultimate decision, I disagree with the statement that DC 7101 asks the Board to consider the "effects" of

medication. Ante at 6. The Board acted properly in denying a compensable rating because the DC does not contemplate

the effects of medication and the Board did not take any such effects into account. Mr. McCarroll's diastolic pressure

readings are not predominantly 100 or more, his systolic pressure readings are not predominantly 160 or more, and he

has never had a history of diastolic pressure predominantly 100 or more. Therefore, under the plain language of the

regulation, whether he "requires continuous medication for control" or not, he does not meet the requirements for a 10%

rating. See § 4.104, DC 7101; see also Tropf v. Nicholson, 20 Vet.App. 317, 320 (2006) ("On review, if the meaning

of the regulation is clear from its language, then that is 'the end of the matter.'" (quoting Brown v. Gardner, 513 U.S. 115,

120 (1994))). This was precisely the finding reached by the Board in this case. See Record at 4 (Board finding that

"[t]he Veteran'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").

15

whether a medical examination is required to determine how serious a veteran's symptoms would

have been in an alternate reality in which he or she was not taking his or her required medication

should alone demonstrate the fallacy of the Jones holding.

Closing

I concur that there was no clear error in the Board's analysis for the reasons stated in today's

controlling opinion, but, for the reasons stated above, the Court, now sitting en banc, should declare

the Jones holding wrongly decided and overrule it. See Bethea, supra.

HAGEL, Senior Judge, with whom GREENBERG, Judge, joins, dissenting: I disagree with

the majority's view that the Board did not err when it considered the ameliorative effects of Mr.

McCarroll's medication by reading 38 C.F.R. § 4.104, Diagnostic Code 7101, as a whole, to

determine that the diagnostic code contemplates the ameliorative effects of medication. The

majority does not explain how it arrives at the conclusion that, because one part of the rating criteria

under Diagnostic Code 7101 contemplates the ameliorative effects of medication, it necessarily

follows that the entire diagnostic code contemplates the ameliorative effects of medication. Ante

at 7.

The majority cites Jones v. Shinseki, 26 Vet.App. 56, 60 (2012), in which the Court held that

the Board erred when it considered the effects of medication that were not adequately contemplated

by the rating criteria for irritable bowel syndrome. The Court in Jones cited the language of the

rating criterion for a 10% disability rating under § 4.71a, Diagnostic Code 5025 (fibromyalgia), as

an example of how the Secretary considers the ameliorative effects of medication. Id. at 63. The

entirety of that rating criterion, which remains unchanged since Jones, for a 10% disability rating

for fibromyalgia is for symptoms "[t]hat require medication for control." 38 C.F.R. § 4.71a,

Diagnostic Code 5025 (2016). In this case, the plain language of Diagnostic Code 7101

demonstrates that the Secretary included three alternatives to obtain a 10% disability rating, and

only one contemplates the ameliorative effects of medication. 38 C.F.R. § 4.104, Diagnostic Code

7101 (2016) (10% disability rating requires "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

16

control.") (emphasis added); see Tropf v. Nicholson, 20 Vet.App. 317, 322 n.1 (2006) ( "[A]

functioning system of laws must give primacy to the plain language of authorities."). Therefore, it

is unclear how the majority can arrive at the conclusion that, given the plain language of Diagnostic

Code 7101, the ameliorative effects of medication can be considered for all three alternatives to

obtain a 10% disability rating. Accordingly, I believe that Jones applies to this case, and the Board

erred when it considered the ameliorative effects of Mr. McCarroll's medication under the first two

alternatives of the rating criteria for a 10% disability rating under Diagnostic Code 7101.

The majority also cites to the Federal Register where the Secretary amended Diagnostic

Code 7101. Ante at 7. The majority quoted the Secretary where he moved the rating criteria, "a

history of diastolic pressure predominantly 100 or more and continuous medication is required,"

from a separate note in Diagnostic Code 7101 to the rating criteria for a 10% disability rating. Id.

citing 62 Fed. Reg. 65, 207, 65, 215 (Dec. 11, 1997). The majority concludes that the Secretary's

explanation "makes clear that the use of medication is directly addressed and contemplated by the

evaluation criteria under DC 7101." Ante at 7. However, the Secretary's final rule only discusses

the third alternative for a 10% disability rating under Diagnostic Code 7101 and does not discuss

the other two alternatives, which do not consider the ameliorative effects of medication. See 62 Fed.

Reg. at 65,215. Therefore, I believe that the ameliorative effects of medication should only be

considered under the third alternative under Diagnostic Code 7101, that is, whether a veteran has

a history of diastolic pressure predominantly 100 or more, who requires continuous medication for

control.

The majority also rejects Mr. McCarroll's contention, without any explanation, that a medical

opinion was required to discount the ameliorative effects of medication and the Board violated

Colvin v. Derwinski, 1 Vet.App. 171, 172 (1990) (holding that the Board "must consider only

independent medical evidence to support [its] findings rather than provide [its] own medical

judgment in the guise of a Board opinion"). Ante at 8. Here, the Board found that Mr. McCarroll'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 (emphasis added). The Board made its own medical finding by considering the ameliorative

effect of medication on Mr. McCarrolls's current diastolic and systolic pressure or, in other words,

the first two alternatives of Diagnostic Code 7101. See Jones, 26 Vet.App. at 63; Colvin, 1 Vet.App.

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at 172. Mr. McCarroll was prescribed medication for his hypertension while in service, R. at 757

(April 2009 prescription), he filed his claim for benefits for hypertension while in service, and a VA

regional office granted his claim and assigned a noncompensable rating on September 1, 2009, the

date after his separation from service, R. at 683-84 (October 2009 rating decision). Further, at the

November 2010 VA medical examination in which the examiner took Mr. McCarroll's blood

pressure readings, the examiner noted that Mr. McCarroll's medication dosage had been increased

from his last prescription. R. at 585. Clearly, the Board should have considered that medication was

at least a factor affecting Mr. McCarroll's blood pressure readings.

The Board, however, considered Mr. McCarroll's blood pressure readings from the

November 2010 VA medical examination while he was on medication when it denied a compensable

disability rating. R. at 8. In doing so, I believe the Board improperly considered the ameliorative

effects of medication when evaluating Mr. McCarroll's hypertension under the first two alternatives

of the rating criteria for a 10% disability rating. Because Mr. McCarroll was under medication at

the time of the examination, I also believe that the Board should have discussed whether a medical

opinion is required to address the question of what Mr. McCarroll's diastolic and systolic pressure

would be, but for the use of medication. In my judgment, a medical examiner would be in the best

position to review Mr. McCarroll's medical record to make some determination as to his diastolic

and systolic blood pressure without medication.

This case presented the issue where a veteran is prescribed medication for a disability and

the diagnostic code for that disability requires specifically measured medical readings to determine

compensability. In this case, the Board found McCarroll's disability noncompensable and clearly

did not consider that he was on medication since service when it used his blood pressure readings

to support its finding. Therefore, for the reasons stated above, I would vacate the June 4, 2014,

Board decision and remand the matter for the Board to provide adequate reasons or bases for its

decision, which would limit its consideration of the ameliorative effects of Mr. McCarroll's

medication only to the third alternative for a 10% disability rating under Diagnostic Code 7101 and,

at the very least, to discuss whether a medical opinion is required to determine Mr. McCarroll's

diastolic and systolic pressure absent his use of medication.

18