Citation Nr: 1604432 Decision Date: 02/08/16 Archive Date: 02/18/16 DOCKET NO. 09-37 027 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Phoenix, Arizona THE ISSUES 1. Entitlement to a compensable initial disability rating for bilateral hearing loss. 2. Entitlement to an increased disability rating for bronchial asthma prior to January 5, 2011, rated 30 percent disabling. 3. Entitlement to an increased disability rating for positional sleep apnea with bronchial asthma (previously bronchial asthma) from January 5, 2011, rated currently as 50 percent disabling. 4. Entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU). REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL The Veteran ATTORNEY FOR THE BOARD D.S. Lee, Counsel INTRODUCTION The Veteran served on active duty from March 1983 through July 1997. This matter comes before the Board of Veterans' Appeals (Board) on appeal from rating decisions issued in April 2007, in February 2009, and in June 2014 by the Department of Veterans Affairs (VA) Regional Office (RO) in Phoenix, Arizona. In the April 2007 rating decision, the RO granted service connection for bilateral hearing loss and assigned a noncompensable initial disability rating. In the February 2009 rating decision, the RO denied the Veteran's claim for an increased disability rating for bronchial asthma, rated at that time as 30 percent disabling. The Veteran perfected timely appeals of both decisions and asserted entitlement to a higher initial disability rating for bilateral hearing loss and an increased disability rating for bronchial asthma. During subsequent development of the appeal, the RO issued a May 2013 rating decision in which it recharacterized the Veteran's bronchial asthma disability as positional sleep apnea with bronchial asthma. After determining that predominant symptomatology associated with the disability was rated most appropriately in accordance with the rating criteria under 38 C.F.R. § 4.97, Diagnostic Code (DC) 6847, the RO granted a higher 50 percent disability rating in accordance with those criteria. In subsequent correspondence, the Veteran and his representative have indicated the intention to continue their appeal despite the partial grant awarded by the RO. As such, the Veteran is presumed to be seeking the maximum possible award in relation to his appeal; hence, his appeal as to the issue concerning the disability rating to be assigned for bronchial asthma/positional sleep apnea with bronchial asthma remains in an appellate status before the Board. AB v. Brown, 6 Vet. App. 35 (1993). Testimony was received from the Veteran during a September 2015 video conference hearing. A transcript of that testimony is associated with the claims file. The issues of the Veteran's entitlement to a compensable initial disability rating for bilateral hearing loss and a TDIU are addressed in the REMAND portion of the decision below and is REMANDED to the Agency of Original Jurisdiction (AOJ). FINDINGS OF FACT 1. Prior to October 9, 2009, the Veteran's bronchial asthma was manifested by diminished pulmonary function marked by FEV1 that was 40 percent of predicted values. 2. Since October 9, 2009, the Veteran's bronchial asthma has been treated with an essentially constant course of corticosteroid medications including Prednisone, Fluticasone Propionate, Symbicort, and Budesonide, as well as immunosuppressive therapy, including subcutaneous Xolair shots. CONCLUSIONS OF LAW 1. The criteria for a 60 percent disability rating, and no more, for bronchial asthma prior to October 9, 2009 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes 6602 and 6847 (2015). 2. The criteria for a 100 percent disability rating for positional sleep apnea with bronchial asthma from October 9, 2009 are met. 38 U.S.C.A. §§ 1155, 5103, 5103A, 5107 (West 2014); 38 C.F.R. §§ 3.159, 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Codes 6602 and 6847 (2015). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. Duties to Notify and Assist VA's duties to notify and assist claimants in substantiating a claim for VA benefits are found at 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2015) and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2015). Upon receipt of a complete or substantially complete application for benefits, VA is required to notify the claimant and his or her representative, if any, of any information, and any medical evidence or lay evidence that is necessary to substantiate the claim. 38 U.S.C.A. § 5103(a); 38 C.F.R. § 3.159(b); see also Quartuccio v. Principi, 16 Vet. App. 183 (2002). In accordance with 38 C.F.R. § 3.159(b)(1), proper notice must inform the claimant of any information and evidence not of record (1) that is necessary to substantiate the claim; (2) that VA will seek to provide; and (3) that the claimant is expected to provide. VA's notice requirements apply to all five elements of a service-connection claim: veteran status, existence of a disability, a connection between a veteran's service and the disability, degree of disability, and effective date of the disability. Dingess v. Nicholson, 19 Vet. App. 473 (2006). In cases that concern the assignment of a disability rating, a claimant must be provided with information pertaining to assignment of disability ratings (to include the rating criteria for all higher ratings for a disability), as well as information regarding the effective date that may be assigned. Id. Notice should be provided to a claimant before the initial unfavorable decision on a claim. Pelegrini v. Principi, 18 Vet. App. 112 (2004). In relation to the issues concerning the Veteran's entitlement to higher disability ratings for bronchial asthma, a pre-rating July 2008 letter notified the Veteran of the information and evidence needed to substantiate his claim for a higher disability rating for his service-connected bronchial asthma. Consistent with Dingess, the letter also notified the Veteran of the process by which VA assigns effective dates and disability ratings. After affording the Veteran reasonable opportunity to respond, his claim was adjudicated in the RO's February 2009 rating decision. Thus, because the VCAA notice was legally sufficient, VA's duty to notify has been satisfied. VA also fulfilled its duty to assist in obtaining identified and available evidence needed to substantiate the Veteran's claims. The Veteran's claims submissions, lay statements, VA treatment records, and Board hearing transcript have been associated with the claims file. The Veteran was afforded VA examinations of his asthma in July 2008, June 2009, November 2012, January 2014, and June 2014. Those examinations, considered along with the other evidence of record, are fully adequate for the purposes of determining the current symptoms and manifestations associated with the Veteran's asthma, and the severity thereof. See Barr v. Nicholson, 21 Vet. App. 303 (2007). Overall, there is no evidence of any VA error in notifying or assisting the Veteran that reasonably affects the fairness of this adjudication. II. Increased Disability Rating for Bronchial Asthma/Positional Sleep Apnea Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. Disability ratings are based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. See 38 U.S.C.A. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of two evaluations applies, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower disability rating will be assigned. 38 C.F.R. § 4.7. In order to evaluate the level of disability and any changes in severity, it is necessary to consider the complete medical history of the veteran's disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Where entitlement to compensation has been established already and an increase in the disability rating is at issue, the veteran's present level of disability is the question of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Staged disability ratings are appropriate in any increased disability rating claim where distinct time periods with different ratable symptoms can be identified in the evidence. The relevant focus for adjudicating an increased disability rating claim is on the evidence concerning the state of the disability from the time period one year before the claim was filed until VA makes a final decision on the claim. Hart v. Mansfield, 21 Vet. App. 505 (2007). When a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in the veteran's favor. 38 C.F.R. §§ 3.102, 4.3. Once the evidence is assembled, the Board is responsible for determining whether the preponderance of the evidence is against the claim. If so, the claim is denied; if the evidence is in support of the claim or is in equal balance, the claim is allowed. 38 U.S.C.A. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). Here, the Veteran's claim for an increased disability rating for bronchial asthma, rated at that time as 30 percent disabling pursuant to 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602), was received by VA in August 2007. Although that claim was denied initially, based on additional information received in the course of developing the Veteran's appeal, the RO awarded a higher 50 percent disability rating, effective January 5, 2011. In doing so, the RO recharacterized the Veteran's disability as positional sleep apnea with bronchial asthma and determined that the predominant symptomatology associated with the disability was rated most appropriately under 38 C.F.R. § 4.97, DC 6847. Ratings for coexisting respiratory conditions such as asthma (DC 6602) and sleep apnea (DC 6847) will not be combined with each other. Rather, a single disability rating will be assigned under the DC that reflects the predominant disability with elevation to the next higher rating where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96. Although the Veteran expressed some concern during his Board hearing as to the rating code selected by the RO, to the extent that the RO determined that the predominant symptomatology shown in the evidence was best rated under the rating criteria for sleep apnea (DC 6847), the RO's decision to apply DC 6847 in rating the Veteran's disability is not in and of itself erroneous. Nonetheless, the Board is not constrained here on de novo review to apply DC 6847, but rather, is compelled to consider all applicable rating codes based on the symptomatology shown in the evidence. Schafrath, 1 Vet. App. 589. Under DC 6602, bronchial asthma with FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent predicted, or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication warrants a 30 percent disability rating. Bronchial asthma with FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids warrants a 60 percent disability rating. Bronchial asthma with FEV-1 that is less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than one attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications warrants a maximum 100 percent disability rating. In applying the criteria under DC 6602, post-bronchodilator studies are required when pulmonary function testing (PFT) is conducted for disability rating purposes, except in instances where the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. When rating a restrictive lung disability based on PFT data, VA is to use the post-bronchodilator results in applying the rating criteria in the rating schedule unless the post-bronchodilator results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d)(5) (2015). In those cases, VA is to use the pre-bronchodilator values. Id. If the FEV-1 and FVC values are both greater than 100 percent, then VA may not assign a compensable disability rating based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96(d)(7). Under the criteria of DC 6847, sleep apnea that is manifested by persistent daytime hypersomnolence is assigned a 30 percent disability rating. A 50 percent disability rating is assigned for sleep apnea that requires the use of a breathing assistance device such as a CPAP machine. A 100 percent disability rating is warranted for sleep apnea that has resulted in chronic respiratory failure with carbon dioxide retention or cor pulmonae, or, where a tracheostomy is required. 38 C.F.R. § 4.97, DC 6847 (2015). Consistent with Schafrath, the Board has also considered the potential application of the other provisions of 38 C.F.R., Parts 3 and 4. Schafrath, 1 Vet. App. 589. In doing so, however, the Board sees no other applicable rating criteria. A. Prior to January 5, 2011 Turning to the evidence pertinent to the appeal period before January 5, 2011, the Veteran's September 2009 substantive appeal and various lay statements received from him from October 2009 through January 2011 express that the Veteran's asthma condition was being treated with various medications, including corticosteroids such as Prednisone, Fluticasone Propionate, Symbicort, and Budesonide. VA treatment records from August 2006 through January 2011 document recurring complaints of shortness of breath, cough, postnasal drip, rhinitis, wheezing, and hoarseness of voice. The records show also that the Veteran was admitted on an emergency basis frequently over that period for acute exacerbations of asthma. Pulmonary function tests conducted in December 2007 revealed FEV1 that was 40 percent of predicted values. Consistent with the Veteran's assertions, the VA treatment records reflect that the Veteran was prescribed frequent courses of Prednisone beginning in October 2009. In conjunction with those corticosteroid treatments, an October 2010 VA treatment record notes that the Veteran had also been undergoing immunosuppressant treatment since February 2010. Concurrent with the above VA treatment, the Veteran was afforded a VA examination in July 2008, during which he reported that he was using a daily bronchiodilator; however, denied using corticosteroids or immunosuppressives at that time. In general, he appeared to report that his asthma symptoms were being managed by bronchiodilators. He reported having acute asthma exacerbations at least monthly but less than weekly. A physical examination performed at that time was grossly normal. The aforementioned December 2007 PFT was reviewed by the examiner and noted for showing mild bronchiodilator response. In terms of function, the examiner opined that the Veteran was moderately impaired in exercise but was unimpaired in other activities of daily living, to include chores, shopping, sports, recreation, travel, feeding, bathing, dressing, toileting, and grooming. The examiner opined further that the Veteran's asthma had a significant effect on the Veteran's occupational functioning due to decreased mobility. During a June 2009 VA examination, the Veteran reported that he was experiencing an intermittent cough, near constant wheezing, and occasional dyspnea. He reported that he was having three or more acute asthma attacks per week. He stated that he had several clinical visits per year to treat acute asthma exacerbations. Again, the Veteran denied using any steroid or immunosuppressive medication at that time. Again, a physical examination was normal. A PFT revealed FEV1 that was 88 percent of predicted values before medication and 98 percent after medication. FEV1/FVC was 83 percent of predicted values. Overall, moderate restriction with good response to bronchiodilators was noted. Pulmonary function results were noted as showing a mild decline overall since 2007. The evidence outlined above shows that PFT conducted in December 2007 showed pulmonary function that included FEV1 of only 40 percent of predicted values. Although a subsequent PFT conducted during the January 2009 VA examination indicate improved pulmonary function, the record indicates that the Veteran was on an essentially constant course of corticosteroid and immunosuppressive treatment beginning from October 9, 2009. Overall, the Board is of the opinion that the Veteran's positional sleep apnea with bronchial asthma has been manifested predominantly by recurring asthma symptoms and acute exacerbations. Accordingly, the Veteran's positional sleep apnea with bronchial asthma disability is rated appropriately under DC 6602. Under those criteria, given the demonstrated pulmonary function shown by the Veteran during the December 2007 PFT, the Board concludes that the Veteran is entitled to a 60 percent disability rating pursuant to DC 6602 prior to October 9, 2009. In view of the Veteran's ongoing course of steroid and immunosuppressive treatment from October 9, 2009 through January 5, 2011, the Board concludes also that the Veteran is entitled to a 100 percent disability rating for that period pursuant to DC 6602. To that extent, this appeal is granted. B. From January 5, 2011 In multiple lay statements received by VA from February 2011 through the present, the Veteran asserts that he has continued to take various corticosteroid medications such as Prednisone and Advair Diskus, while also receiving ongoing immunosuppressive treatment in the form of injected Xolair. Consistent with the Veteran's assertions, VA treatment records from January 2011 through August 2015 document that the Veteran was receiving regular Xolair injections approximately one to three times per month. Notably, VA treatment records dated August through September of 2015 indicate that the Veteran's Xolair treatments were placed on hold following a suspected adverse reaction to it. Still, subsequent VA treatment records dated December 2015 show that the Veteran's Xolair was replaced with Budesonide, a drug classed as a corticosteroid. Where the documented medication history since January 5, 2011 shows that the Veteran has continued his regimen of corticosteroid and immunosuppressive treatment, the Board finds that the Veteran is also entitled to a 100 percent disability rating pursuant to DC 6022 for the period from January 5, 2011. To that extent also, this appeal is granted. ORDER A 60 percent disability rating, and no higher, for bronchial asthma prior to October 9, 2009 is granted subject to the laws and regulations governing the payment of monetary VA benefits. A 100 percent disability rating for positional sleep apnea with bronchial asthma from October 9, 2009 is granted subject to the laws and regulations governing the payment of monetary VA benefits. REMAND In relation to the Veteran's claim for a compensable initial disability rating for bilateral hearing loss, the Veteran was afforded VA audiological examinations in March 2007, May 2007, June 2009, November 2009, and January 2014. The opinions rendered in March 2007, May 2007, and June 2009 failed to comment upon the extent of the impact that the Veteran's hearing loss had on his daily and occupational functioning. In the November 2009 report, the VA examiner commented simply that the Veteran's hearing loss had a "significant effect" on his occupational functioning; however, did not offer any explanation as to how the Veteran's hearing loss was affecting his occupation at that time. Similarly, the examiner did not elaborate as to whether such "significant effects" caused outright inability to perform his occupational functions or prevented him from being able to maintain any employment at all. Similarly, the VA examiner did not provide any discussion of the extent to which the Veteran's hearing loss was affecting his other normal activities. In the absence of the foregoing explanation and discussion, the examiner's opinion as to the Veteran's occupational functioning is without adequate context and lacks sufficient rationale. In the January 2014 report, the Veteran reported that he was having difficulty hearing people on his left side and that he watched television with the volume turned up. Still, the VA examiner offered no opinion as to the extent that the Veteran's hearing loss was impairing his daily and occupational functioning. In the absence of opinions as to the degree of daily and occupational impairment caused by the Veteran's hearing loss, and, in the absence of adequate rationale in support of the November 2009 opinion, the previous examinations are incomplete. Accordingly, the Veteran should be afforded a new VA examination to determine the degree of his hearing loss, and, the degree to which such hearing loss impacts the Veteran's daily and occupational functioning. 38 C.F.R. § 3.159(c)(4). In regard to the issue of the Veteran's entitlement to a TDIU, the Board points out that this decision awards a 100 percent disability rating for the Veteran's positional sleep apnea with bronchial asthma, effective from October 9, 2009. Under the law, receipt of a 100 percent disability rating for a service-connected disability or disabilities does not necessarily moot the issue of entitlement to a TDIU, even for the period from October 9, 2009. Bradley v. Peake, 22 Vet. App. 280 (2008). Under the circumstances, the Veteran's claim for a TDIU remains pending. In instances where a decision on one issue would have a significant impact upon the outcome of another, and that impact in turn could render any review of the decision on the other claim meaningless and a waste of appellate resources, the two claims are inextricably intertwined. Henderson v. West, 12 Vet. App. 11, 20 (1998); Harris v. Derwinski, 1 Vet. App. 180 (1991); Parker v. Brown, 7 Vet. App. 116, 118 (1994). In this case, the additional development and ultimate outcome of the issue concerning the Veteran's claim for a compensable initial disability rating for hearing loss will impact the analysis of is TDIU claim; hence, those two issues are inextricably intertwined. As such, the issue of the Veteran's entitlement to a TDIU must also be remanded. Prior to obtaining the examination ordered above, and in order to ensure that the most complete and up-to-date evidence has been associated with the claims file, the Veteran should also be asked to identify any other treatment providers who have rendered treatment for his service-connected disabilities since December 2015. VA must then make efforts to obtain any treatment records that are identified by the Veteran. 38 C.F.R. § 3.159. Accordingly, the case is REMANDED for the following action: 1. A letter should be sent to the Veteran explaining, in terms of 38 U.S.C.A. §§ 5103 and 5103A, the need for additional evidence regarding his claim for a compensable initial disability rating for bilateral hearing loss and a TDIU. The letter must inform the Veteran about the information and evidence that is necessary to substantiate his claim, and also, must provide notification of both the type of evidence that VA will seek to obtain and the type of evidence that is expected to be furnished by the Veteran. The letter must also notify the Veteran that VA is undertaking efforts to arrange a new VA examination of his hearing loss. The Veteran should be advised that it remains his responsibility to report for any scheduled VA examinations and to cooperate with the development of his claim; failure to report without good cause may result in denial of his claim. The Veteran should also be provided a VA 21-4142 release form, and be requested to identify on the release the name(s) and address(es) of any private or VA medical providers who have provided treatment for his service-connected disabilities since December 2015. 2. Obtain records for any treatment identified by the Veteran. Any records obtained as a result of such efforts should be associated with the claims file. If such efforts yield negative results, a notation to that effect should be inserted in the file. The Veteran and his representative are to be notified of unsuccessful efforts in this regard, in order to allow the Veteran the opportunity to obtain and submit those records for VA review. 3. After the above development has been completed to the extent possible, the RO should arrange for the Veteran to undergo a VA audiological examination to determine the current severity of his hearing loss and the extent of any functional impairment resulting from his hearing loss. The entire claims file must be made available to the individual designated to examine the Veteran and the designated examiner must review the entire claims file in conjunction with the examination. All necessary tests and studies, to include an interview of the Veteran, audiometric testing, and word recognition testing via the Maryland CNC test, should be performed. The examiner should comment upon the reliability and validity of all test results. The examiner should comment upon any functional effects resulting from the Veteran's hearing loss, to include any impairment of activities of daily living and occupational function. Such discussion should include citation to any relevant facts or evidence, to include the findings from the examination, impairment or functional loss reported by the Veteran, objective and subjective findings noted in the previous VA examinations and VA and private treatment records, and any applicable medical principles. A typewritten report of the examination should be prepared and associated with the Veteran's VA claims file. A complete rationale which includes citation to any relevant facts, evidence, or medical principles must be provided for all opinions rendered. If the examiner cannot provide the requested opinions without resorting to speculation, he or she should expressly indicate this and provide an explanation as to what additional information is necessary and why the opinion sought cannot be given without resorting to speculation. 4. If the Veteran fails to report to the scheduled examination, the RO must obtain and associate with the claims file a copy of any notice(s) of the dates and times of the examinations sent to the Veteran by the pertinent VA medical facility. 5. After completion of the above development, the issues of entitlement to a compensable initial disability rating for bilateral hearing loss and a TDIU should be readjudicated. If the determination remains adverse to the Veteran, he and his representative should be furnished with a supplemental SOC and be given an opportunity to respond. The appellant has the right to submit additional evidence and argument on the matter or matters the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West 2014). ______________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs