Franklin Gill v. Eric K. Shinseki, Opinion Number 12-3428,
decided October 28, 2013 concerns interpretation of a VA regulation governing
the rating for hypertension.
The veteran was service connected for hypertension by the
Board and the Board remanded for an “appropriate” examination and rating. The VA conducted a C&P examination which
took his blood pressure 3 times and the VARO granted him 10%.
The veteran appealed arguing the VA should have taken two
blood pressure measurements on different days in order to determine what rating
was appropriate, rather than three on the same day. The Board rejected this argument and noted
the veteran had numerous blood pressure readings throughout the rating period
and none of them warranted a higher rating.
The veteran appealed to the Court arguing DC 7101 Note (1)
requires two or readings before a rating can be assigned. The Secretary argued the plain language of
Note (1) applies only to the initial confirmation of the diagnosis of
hypertension, not the assignment of a rating.
The Court noted it will defer to the Secretary’s
interpretation if a regulation is unclear from its language as long as that interpretation
is not inconsistent with the language of the regulation or plainly
erroneous. The Court found the Secretary’s
interpretation was consistent with an explanation at the time of Note (1)’s
modification and reflected “his considered judgment as to the need for a
specified number of blood pressure readings over multiple days to confirm hypertension. Id. at *7.
The Court also considered if the medical examination
substantially complied with the earlier remand order. The Court noted the Board decision did not
rely only on the three ratings from the C&P examination but also numerous
readings over multiple years, none of which supported a higher rating.
Decided by Chief Judge Kasold and Judges Davis and Pietsch.
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