McCarroll: Hypertension and the Use of Medications

McCarroll v. McDonald, Docket Number 2014-2345, decided November 17, 2016 is a decision involving a the proper rating for a veteran whose hypertension is treated by medications.  This was a decision by the full court with interesting concurring and dissenting opinions.

The veteran was service connected for hypertension, but the use of medications prevented his blood pressure readings from being so high as to warrant more than a 0% rating.  The veteran sought a higher rating and argued pursuant to the Court’s holding in Jones v Shinseki, 26 Vet. App. 56 (2012) the VA should discount the ameliorating effects of his blood pressure medicine and without his medication his blood pressure would meet the criteria for a higher disability rating or at a minimum more nearly approximate the criteria for a higher rating.  The Court rejected this argument. 

The Court explained that Jones stood for the proposition that the VA “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.  Thus, if DC 7101 does not specifically contemplate the effects of medication, the Board is required pursuant to Jones to discount the ameliorate 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 Court determined DC 7101 contemplates the effects of medication by noting a 10% rating is granted if a) the diastolic pressure is 100 or more, b) the systolic pressure is 160 or more, or c) an individual with a history of diastolic pressure of 100 or more who requires continuous medication for control.  The Court essentially determined the reference to continuous medication for control as to a 10% rating was enough to show the rating contemplated the effects of medication.

The veteran also argued for a 10% rating based on the fact he was continuously taking medication and had a history of diastolic pressure 100 or more.  The veteran pointed to 6 prior blood pressure readings of which one had diastolic pressure at 100 and another of 96.  The Court stated the “single reading does not demonstrate clear error in the Board’s finding that the appellant did not have a history of diastolic pressure predominately over 100 or more, as required by the rating criteria.”

Finally, the veteran also sought a referral for extraschedular considerations, but the Court found that argument was not reasonably raised below.

A concurring opinion by Judge Kasold and joined in by Judge Schoelen would go further.  They would argue that Jones should be overturned.  They explain the essence of the rating schedule is that veterans are compensated for their symptoms and how those symptoms would on average impair a person’s earnings capacity.  They also argue the medication did not taint the results and that instead the blood pressure readings were in fact accurate.  “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.’”

A dissenting opinion by Judge Hagel and joined in by Judge Greenberg argued that just because a portion of DC 7101 discussed medication does not explain how the entire prevision considered medication and would have found the Board erred.  The dissent also felt a medical opinion was required to discount the ameliorative effects of medication and the Board violated Colvin v. Derwinski, 1 Vet. App. 171 (1990), in effectively rendering a medical opinion itself.  Specifically, the Board stated the veteran’s “hypertension has not manifested with diastolic pressure predominately 100 or more, with or without medication; or systolic pressure predominately 160 or more throughout the initial rating period.”  The dissent explained the “Board made its own medical findings by considering the ameliorative effect of medication on [the veteran]’s diastolic and systolic pressure or, in other words, the first two alternatives of Diagnostic Code 7101.”

This is an interesting decision in that the Court is signaling an interest in more specifically looking at the ameliorative effects of medication and a willingness to err on the side of finding medications being contemplated by the rating. It is also interesting in that at least two judges would overturn Jones in its entirety.