Citation Nr: 1802537 Decision Date: 01/11/18 Archive Date: 01/23/18 DOCKET NO. 14-20 327 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Boise, Idaho THE ISSUE Entitlement to an initial rating in excess of 30 percent from March 24, 2008, for a respiratory disorder, diagnosed as asthma. REPRESENTATION Appellant represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD G. Morales, Associate Counsel INTRODUCTION The Veteran served on active duty from October 2000 to March 2001 and from January 2002 to July 2002. This matter is before the Board of Veterans' Appeals (Board) on appeal from a January 2012 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). A prior hearing was held in July 2011 before another Veterans Law Judge (VLJ), which pertained to different issues on appeal, and those issues were addressed in a separate decision. Another hearing was held in November 2015 before a VLJ who is no longer employed by the Board, and a copy of the hearing transcript has been added to the record. In June 2017, VA notified the Veteran that the Board no longer employed the VLJ who had conducted that hearing. See C.F.R. § 20.707 (2017). The Veteran, through his representative, indicated that he did not wish another Board hearing. See 6/16/2017, Hearing Request, at p. 2. Therefore, an additional Board hearing is not required. In April 2013, and May 2016, the Board remanded the Veteran's claim for additional development. It has now returned to the Board for appellate consideration. The Board finds there has been substantial compliance with its prior remand directives. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall violation when the examiner made the ultimate determination required by the Board's remand). Specifically, a statement of the case (SOC) was issued in respect to the Board's April 2013 remand, additional medical records from the Veteran's private physician have been obtained, and the Veteran was given new VA examinations in August 2016 and February 2017, which substantially addressed the Board's May 2016 remand directives. FINDINGS OF FACT 1. The competent and probative evidence weighs against finding a rating in excess of 30 percent disabling for the Veteran's respiratory disorder, diagnosed as asthma, prior to May 15, 2013. 2. The competent and probative evidence is at least in equipoise as to whether the Veteran's pulmonary function testing (PFT) results were FEV-1/FVC 55 percent or less from May 15, 2013 to May 31, 2016. 3. The competent and probative evidence is at least in equipoise as to whether from May 31, 2016, to October 31, 2016, the Veteran's asthma required daily high dose corticosteroids. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent prior to May 15, 2013, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code (DC) 6602 (2017). 2. The criteria for a rating of 60 percent, but no higher, between May 15, 2013, and May 31, 2016, has been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, DC 6602. 3. The criteria for a rating of 100 percent from May 31, 2016 to October 31, 2016, and 60 percent thereafter, have been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97, DC 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran contends that he is entitled to an increased initial rating for his respiratory disorder, diagnosed as asthma. The Veteran's respiratory disorder has been evaluated as 30 percent disabling under DC 6602 since the grant of service connection was made effective, March 24, 2008. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentages are based on the average impairment of earning capacity as a result of service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, the Board must also consider staged ratings. Staged ratings are appropriate in this matter as the evidence establishes that the Veteran's asthma manifested symptoms or required treatment that would warrant different ratings for distinct time periods during the course of the appeal. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other. Esteban v. Brown, 6 Vet. App. 259, 262 (1994); 38 C.F.R. § 4.14. The Veteran is competent to report symptoms and experiences observable by his senses. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); 38 C.F.R. § 3.159(a). Under Diagnostic Code 6602, pertaining to bronchial asthma, a 30 percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 56 to 70 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. 38 C.F.R. § 4.97, DC 6602. A 60 percent rating is assigned for an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. Id. A maximum 100 percent rating is assigned for an FEV-1 of less than 40 percent predicted or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Id. Prior to May 15, 2013 After reviewing the competent and probative evidence, the Board finds that the preponderance of the evidence is against a disability rating in excess of 30 percent for a respiratory disorder, diagnosed as asthma, prior to February 16, 2011. Prior to February 16, 2011, the Veteran's medical records described treatment for his asthma. His private physician, in a letter dated December 3, 2010, indicated that the Veteran regularly used an Albuterol inhaler. 02/25/2011, Medical Treatment Record (MTR), at p. 3. Additionally, the Veteran took Fluticasone Propionate 100 mcg. 09/06/2011, MTR, at p 1. In May 2013, the private physician also indicated that the Veteran's asthma had some worsening, but noted that the severity was "mild persistent." 11/16/2016, MTR, at p. 14. The Board finds that after reviewing the competent and probative evidence, the preponderance of the evidence is against a rating in excess of 30 percent prior to May 15, 2013. During this time, the Veteran did not have a FEV-1 or a FEV-1/FVC between 40 to 55 percent. Nor did his asthma require monthly visits to his physician, rather, his private physician has treatment records only from a visit in October and December 2010, and two records from May 2013, with a follow-up visit noted for three months later. 11/16/2016, MTR, at p. 14-17, 19. Additionally, the Veteran did not undergo intermittent courses of systemic corticosteroids. See 11/24/2015, Hearing Testimony, at p. at 7. Additionally, the Board notes that the Veteran submitted a pharmacy receipt, dated in February 2011, that showed he has been prescribed Flovent (with dosage of 2 puffs, twice daily). 02/14/2012 Medical Receipts. The Board notes that the receipt shows that Flovent is a corticosteroid. However, as explained by a 2013 VA examiner it is not systemic (oral or parenteral). On this topic, the examiner stated: Parenteral by definition means per Dorland's Medical Dictionary: parenteral /parenteral/ (pah-ren'ter-al.) not through the alimentary canal, but rather by injection through some other route, as subcutaneous, intramuscular, etc. As such, an inhaled steroid enters the body thru the lungs not the gut. However, it is not injector or oral i.e. a pill or liquid taken by mouth. The usage that I am most familiar with thru [my] medical career would NOT include inhaled steroids as parenteral administration of a drug i.e. by intramuscular or intravenous etc. routes or oral i.e. a pill or liquid taken by mouth. The Board finds that the above definition and explanation by a competent medical professional weigh against a finding that the Veteran's use of Flovent in 2011 fits the regulatory definition of "intermittent (at least 3 times per year) use of systemic (oral or parenteral) corticosteroids." As such a higher evaluation has not been more nearly approximated prior to May 15, 20013. However, as of that date and explained next, the Board finds that a 60 percent rating is warranted. May 15, 2013 to May 31, 2016 After reviewing the competent and probative evidence, the Board finds that a disability rating of 60 percent, but no higher, for a respiratory disorder, diagnosed as asthma, is warranted between May 15, 2013, and May 31, 2016. The Veteran underwent a PFT on May 15, 2013. His private physician found the FEV-1/FVC test resulted in 51% - post bronchodilator. 11/16/2016, MTR, at p. 19. Peak flow was 550 with the bronchodilator and 400 without. Id. The Board finds this test to be competent, credible, and probative. In the August 6, 2013, VA examination, the examiner noted that he had received a fax from the Veteran's private physician, wherein, the Veteran had a FEV-1/FVC value of 51%. 04/06/2013, VA Examination, at p. 3. The Veteran underwent a PFT. The PFT resulted in a pre-bronchodilator FEV-1 value of 65%, a post-bronchodilator test could not be completed because the Veteran was coughing too much, and the examiner determined that the test that would most accurately reflect the Veteran's level of disability was the FEV-1/FVC. Id. at p. 1, 9, 10. The Board finds this examination and test to be competent, credible, and probative. The Board finds that the competent and probative medical evidence is in at least relative equipoise as to whether the Veteran's asthma warrants a 60 percent rating. The Veteran has a FEV-1/FVC test result of 51% dated May 15, 2013. However, the Veteran's FEV-1 value from August 6, 2013, was 65%. The VA examiner did note that because of the Veteran's difficulty in completing the PFT that the most accurate test would be the FEV-1/FVC. In light of the Veteran's FEV-1/FVC of 51% in May 2013, and the incomplete value for FEV-1 of 65%, the Board finds that between May 15, 2013, and May 31, 2016, the Veteran's asthma worsened to a compensable degree of 60 percent. However, the competent evidence did not reveal lower PFT results 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. In this regard, the August 2013 VA examination report reflects the Veteran did not require the use of oral or parenteral corticosteroid medications. Instead, his respiratory treatment consisted of inhalational bronchodilator therapy and inhaled steroids-Flovent and Advair. The examination report does not reflect antibiotics, oxygen therapy, or respiratory failure. May 31, 2016 to October 31, 2016 After reviewing the competent and probative evidence, the Board finds that a disability rating of 100 percent from May 31, 2016 to October 31, 2016, is warranted. The Veteran submitted a treatment letter, as well as prescription receipts that show that he was taking a daily corticosteroid, Prednisone 40-50mg, from May 31, 2016 to October 31, 2016. In July 2016, his prescriber submitted a letter that stated he was taking 50mg of a systemic high dose corticosteroid daily. See 7/12/2016, MTR, at p. 2. The Veteran also submitted testimony that he was taking a corticosteroid steroid daily between May 2016 and October 2016. See 6/1/2017, Correspondence, at p. 1. The Board finds this evidence to be consistent, competent, and probative. The Veteran underwent a VA examination in August 2016. The examiner indicated that the Veteran required intermittent courses or bursts of corticosteroids in the past year; systemic high dose corticosteroids for control; and daily use of systemic corticosteroids. See 8/5/2016, C&P Exam, at p. 3. The examiner also specified that the prescription the Veteran was taking would be sufficient for full months treatment with refills and that for "this exam the veterans [sic] condition is 'requiring' the daily use of systemic high dose corticosteroids as prescribed." Id. at 6, 7. However, the examiner spoke with the Veteran's prescriber regarding the Veteran's corticosteroid prescription, and she appeared surprised that the Veteran had remained on the high dosage corticosteroids and was using them daily. Id. at 7. Additionally, in a February 2017 VA examination, the same examiner noted that after speaking with the Veteran's prescriber again, that the corticosteroid was prescribed for an "as needed basis," not for daily use. 2/24/2017, VA Examination, at p. 3. The Board finds these examinations to be competent, credible, and probative. In light of the competent and probative evidence above, the Board finds that the evidence is in relative equipoise as to whether the Veteran's corticosteroid prescription was prescribed on a daily basis instead of intermittent usage only. The Veteran has submitted his prescription receipts detailing Prednisone dosage from May 31 to October 31, in addition to the letter submitted from his private provider detailing the dosage and that he was taking the prescription daily. The VA examiner in August 2016 noted that for the purpose of that examination, the Veteran was taking high dosage corticosteroids. While the Veteran's prescriber initially was surprised, and later clarified that the Veteran's prescription was for as needed basis, the Board finds that a rating of 100 percent between May 31, 2016, and October 31, 2016 is warranted, and a rating of 60 percent thereafter as the competent evidence of record weighs against daily systemic corticosteroids and show the use of such drugs to be intermittent or on an "as needed basis." The Board finds no other potentially applicable diagnostic codes as the Veteran's service-connected disability, asthma, is specifically provided for in the Schedule. See Copeland v. McDonald, 27 Vet. App. 333, 337 (2015) ("[W]hen a condition is specifically listed in the Schedule, it may not be rated by analogy."). Additionally, the evidence shows staged ratings are appropriate and have been assigned. Hart, 21 Vet. App. at 509-10. (CONTINUED ON NEXT PAGE) ORDER An initial rating in excess of 30 percent prior to May 15, 2013, is denied. A rating of 60 percent, but no higher, between May 15, 2013, and May 31, 2016, is granted. A rating of 100 percent from May 31, 2016 to October 31, 2016, and 60 percent thereafter, is granted. ____________________________________________ Paul Sorisio Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs