Citation Nr: 1753069 Decision Date: 11/17/17 Archive Date: 11/22/17 DOCKET NO. 11-02 685A ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Houston, Texas THE ISSUE Entitlement to an initial rating in excess of 50 percent for a chronic sleep disorder, upper airway respiratory syndrome with bronchitis (respiratory condition). REPRESENTATION Veteran represented by: Disabled American Veterans ATTORNEY FOR THE BOARD R. Brunot, Associate Counsel INTRODUCTION The Veteran served in the United States Army from August 1996 to November 2001 and a period of Active Duty for Training from October 2002 to February 2003. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an April 2009 rating decision from the Department of Veterans Affairs (VA) Regional Office (RO) in Muskogee, Oklahoma. The jurisdiction of this case subsequently transferred to the RO in Houston, Texas. This matter was remanded by the Board in August 2015 and January 2017 for additional development. FINDING OF FACT The Veteran requires the use of a continuous airway pressure (CPAP) machine, but does not have chronic respiratory failure with carbon dioxide retention or cor pulmonale, or require tracheostomy. CONCLUSION OF LAW The criteria for an initial disability rating in excess of 50 percent for a chronic respiratory disability have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1-4.14, 4.96, 4.97, Diagnostic Code 6847 (2017). REASONS AND BASES FOR FINDING AND CONCLUSION VA's duty to notify was satisfied by a letter sent in February 2009. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran's service treatment records (STRs), and VA medical treatment records have been obtained. The Board remanded the case in August 2015 and January 2017 to obtain additional VA treatment records and private treatment records. Applicable law mandates that there must be substantial compliance with the Board's remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). The Board notes the Veteran's VA treatment records were added to the file. In an attempted to obtain the Veteran's private treatment records, VA send a March 2017 letter requesting the Veteran indicate all the places he received treatment. However, the Veteran did not respond to this letter. Thus, all relevant, identified, and available evidence has been obtained. The Board notes the Veteran received VA examinations in October 2010, August 2014, October 2014, and April 2016. The Board notes the April 2016 examination was conducted specifically pursuant to the Board's August 2015 remand directives. The remand directed the RO to attempt to schedule the examination during a flareup of bronchitis. In January 2016, the RO asked the Veteran to complete a VA Form 21-4138 informing VA of a timeframe when he usually experienced flare-ups and he did not reply. The Board concludes these examinations were adequate as they each considered the Veteran's complete medical history and his lay statements. The examiners provided the necessary information for the Board to render an informed decision in the case. Therefore, VA has complied with its duty to assist. Disability ratings are determined by applying the criteria established in VA's Schedule for Rating Disabilities, which is based upon the average impairment of earning capacity. Individual disabilities are assigned separate Diagnostic Codes. 38 U.S.A. § 1155 (2012); 38 C.F.R. §§ 4.1, 4.20 (2017). When a question arises as to which of two ratings applies under a particular Diagnostic Code, the higher evaluation is assigned if the disability more nearly approximates the criteria for the higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Consideration must be given to increased evaluations under other potentially applicable Diagnostic Codes. Schafrath v. Derwinski, 1 Vet. App. 589, 595 (1991). Staged ratings are appropriate for an increased rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Given the nature of the present claim for a higher initial evaluation, the Board has considered all evidence of severity since the effective date for the award of service connection in March 2010. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of evidence generally involves a three-step inquiry. First, the Board must determine whether the evidence comes from a competent source. Second, the board must determine if the evidence is credible. Third, the Board must weigh the probative value of evidence in light of the entirety of the record The Veteran's chronic respiratory disability is rated under Diagnostic Code 6847. Under this diagnostic code, a 50 percent rating is warranted when a Veteran requires use of breathing assistance device such as continuous airway pressure (CPAP) machine. 38 C.F.R. § 4.97, Diagnostic Code 6847 (2017). A 100 percent rating is warranted when a Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. Id. The Veteran's VA treatment records and private treatment records document the Veteran's sleep complaints. The Veteran complained that he had issues with snoring and would wake up gasping for air. In 2009, the Veteran participated in a private sleep study where the doctor determined the Veteran had snoring and increased arousals consistent with upper airway resistance syndrome. The private doctor noted the Veteran should use a CPAP machine. In October 2010, the Veteran had a VA examination. He complained of congestion, difficulty sleeping, coughing, and shortness of breath when he had bronchitis. The Veteran stated he had bronchitis about twice a year, would last for about ten to twelve weeks, and would produce a severe cough with mild sputum. The Veteran had no deformity in his chest wall and good breath sounds in his lung fields. The examiner noted the Veteran had daytime hypersomnolence and continued to have difficulty sleeping and a history of breath cessation when sleeping. The Veteran continued to use his CPAP machine. Further, the examiner noted dust from the Veteran's job working with concrete triggered coughing spells. The examiner specifically found that the Veteran did not have respiratory failure or cor pulmonale. At the August 2014 sleep apnea VA examination, the examiner noted the Veteran was not on continuous medication, but still used his CPAP machine. The VA examiner also noted the Veteran had daytime hypersomnolence. The VA examiner opined the Veteran's disability did not impact his ability to work. The Veteran also received a VA examination in October 2014. The October 2014 VA examiner noted the Veteran's bronchitis flare-ups that occurred about twice a year, though the Veteran was not experiencing a flareup at the time of the examination. The VA examiner noted the Veteran's lung examination was normal and he was not on any corticosteroid medication The Veteran's most recent VA examinations were in April 2016. The examiner noted he was still on the CPAP machine for treatment. The examiner noted the Veteran's chronic sleep disorder upper airway resistant syndrome and bronchitis involved 2 different medical conditions that should be addressed separately. The examiner noted the Veteran's suffered from about 2 episodes of bronchitis a year and he would use his inhaler, take anti-inflammatory meds, and take antibiotics. The examiner noted the Veteran's lungs were clear, and the Veteran had no respiratory distress. The examiner noted the Veteran's disabilities had no functional impact on his ability to work. Furthermore, though noted as a separate condition, the examiner stated the Veteran did not meet the medical requirements for chronic bronchitis, but instead had acute bronchitis by medical history. In considering all the evidence of record the Board finds an increase in excess of 50 percent for the Veteran's respiratory condition is not warranted. The Board notes a rating higher than 50 percent is warranted when a Veteran has chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. There is no indication in the evidence of record the Veteran has either of these. Significantly, a VA examiner specifically found that the Veteran did not have chronic respiratory failure or cor pulmonale, and there is no competent evidence of record contradicting this fining. The Veteran has a continual requirement for the use of a CPAP machine, which is contemplated by the currently assigned 50 percent criteria. The Board also considers the Veteran's representative's arguments concerning the Veteran's bronchitis. The Board notes the April 2016 VA examiner found that his bronchitis was a separate condition. Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. 38 C.F.R. § 4.96. Instead, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. Id. Thus, as chronic bronchitis is rated under Diagnostic Code 6600 and sleep apnea is rated under Diagnostic Code 6847, the Veteran is not entitled to 2 separate ratings. Consequently, the Board considers the impact of the Veteran's bronchitis on his sleep apnea but finds the impact insufficient to warrant an increased rating, as it is not the predominant . As noted by the April 2016 VA examiner, while the Veteran has episodes of bronchitis, the severity does not meet the definition of chronic bronchitis. Furthermore, though the Board concedes the Veteran's acute bronchitis may impact the Veteran's respiratory condition, this impact has not caused the Veteran to have chronic respiratory failure or need a tracheostomy. Additionally, rating his disability under Diagnostic Code 6600, which contemplates bronchitis, would be less favorable to the Veteran. The rating criteria under Diagnostic Code 6600 are based upon results of pulmonary function tests (PFTs). Under Diagnostic Code 6600, a 10 percent rating is warranted when there is an FEV-1 of 71 to 80 percent predicted, or; an FEV-1/FVC of 71 to 80 percent, or; a DLCO(SB) of 66 to 80 percent predicted. The Veteran underwent PFTs in October 2010 and October 2014. In October 2010, the Veteran's FEV-1 was 95 percent predicted and his FEV-1/FVC was 88 percent. His DLCO(SB) was 94 percent. In October 2014, his FEV-1 was 86 percent predicted and his FEV-1/FVC was 90 percent. His DLCO(SB) was 100 percent. These results do not meet even the criteria for a 10 percent rating. Bronchitis is not the predominant disability. Accordingly, the Board finds the preponderance of the evidence is against the Veteran's claim for an initial rating in excess of 50 percent. Finally, a total disability rating based on individual unemployability (TDIU) is not for consideration because the Veteran does not contend, and the evidence does not show, that his upper respiratory condition renders him unemployable. Rice v. Shinseki, 22 Vet. App. 447 (2009); see also Jackson v. Shinseki, 587 F.3d 1106 (Fed. Cir. 2009). ORDER Entitlement to an initial rating in excess of 50 percent for a chronic sleep disorder, upper airway respiratory syndrome with bronchitis is denied. ____________________________________________ D. Martz Ames Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs