Citation Nr: 1805777 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 14-04 265 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Saint Paul, Minneapolis THE ISSUES 1. Entitlement to separate disability ratings for service-connected obstructive sleep apnea and asthma. 2. Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea. REPRESENTATION Appellant represented by: Jon Brown, Agent ATTORNEY FOR THE BOARD G. Lilly, Associate Counsel INTRODUCTION The Veteran served on active duty from July 1986 to September 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a December 2010 rating decision of the Department of Veterans Affairs (VA) Regional Office in Winston-Salem, North Carolina, which granted service connection for sleep apnea and asthma, but assigned a single 50-percent disability rating including the newly service-connected asthma with the previously service-connected obstructive sleep apnea. The Veteran filed a Notice of Disagreement (NOD) in November 2011, disagreeing with the single disability rating. The Board also construes the NOD as a claim for an initial rating in excess of 50-percent as reflected on the title page. Jurisdiction has since been transferred to Saint Paul, Minneapolis. FINDINGS OF FACT 1. The Veteran is service-connected for obstructive sleep apnea and asthma. 2. Disabilities due to obstructive sleep apnea are rated in accordance with the criteria in 38 C.F.R. § 4.97 under Diagnostic Code 6847 and disabilities due to asthma are rated under Diagnostic Code 6602. 3. The Veteran's obstructive sleep apnea and asthma are rated under a single 50-percent disability rating that is assigned pursuant to the criteria under DC 6602-6847. 4. The controlling laws and regulations do not permit the assignment of separate disability ratings, for disabilities that are rated under DC 6602 and DC 6847. 5. The Veteran's obstructive sleep apnea is the prominent disability and requires the use of a breathing device. 6. For the entire rating period on appeal, the Veteran's sleep apnea did not manifest as chronic respiratory failure with carbon dioxide retention or cor pulmonale, and did not require a tracheostomy. 7. For the entire rating period on appeal, the Veteran's asthma did not manifest in findings of 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. CONCLUSIONS OF LAW 1. Separate disability ratings for obstructive sleep apnea and asthma are not allowed. 38 U.S.C. §§ 1155, 5103, 5103A (2012); 38 C.F.R. §§ 4.14, 4.96, 4.97, Diagnostic Code 6602 and 6847 (2017). 2. The criteria for an initial rating in excess of 50 percent for obstructive sleep apnea are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.321, 4.1, 4.3, 4.7, 4.96, 4.97, Diagnostic Code 6602 and 6847 (2017). 3. The criteria for an initial rating in excess of 30 percent for asthma have not been met. 38 U.S.C.§§ 5107, 1155 (2012); 38 C.F.R. § 4.97, Diagnostic Code 6602 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS I. VA's Duty to Notify and Assist The Veteran's Claims Assistance Act describes the VA's duties to notify and assist claimants in substantiating a claim for VA benefits. See 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2012); Pelegrini v. Principi, 18 Vet. App. 112 (2004); Quartuccio v. Principi, 16 Vet. App. 183 (2002); Mayfield v. Nicholson, 444 F. 3d 1328 (Fed. Cir. 2006); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The Board finds that the VA's duty to notify has been satisfied. The Board notes that in the April 2009 and October 2010 letters, the VA notified the Veteran of the evidence necessary to substantiate his claims, and informed him of the steps VA had taken. Regarding the Veteran's claim for an initial increased rating for obstructive sleep apnea and asthma, VA has satisfied its duty to notify because an appeal for an initial increased rating following a grant of service connection requires no additional VCAA notice with respect to the downstream issue of the initial rating assigned to the now service-connected disability. See Hartman v. Nicholson, 483 F.3d 1311 (Fed. Cir. 2006). The duty to assist has also been met in this case. The service treatment records, VA and private treatment records and lay statements submitted by the Veteran and his representative have been associated with the file. The Veteran has not stated, and the record does not indicate that there are any outstanding relevant treatment records regarding the Veteran's claim at issue. Finally, the Veteran was provided two VA examinations in June 2009 and November 2010 to assess the severity and manifestations of his service-connected obstructive sleep apnea and asthma. The examiners noted a review of the claims file, documented the Veteran's reported subjective symptoms, and performed a physical examination. The Board finds the examinations are adequate because the examiners were apprised of the Veteran's medical history, conducted an appropriate evaluation, and rendered diagnoses consistent with the remainder of the evidence of record. The VA examination reports are therefore adequate for the purpose of rendering a decision on appeal. Barr v. Nicholson, 21 Vet. App. 303 (2007); 38 C.F.R. § 4.2 (2017). Moreover, the Board notes that the United States Court of Appeals for Veterans' Claims (Court) has held that the statutory and regulatory provisions pertaining to VA's duty to notify and to assist do not apply to a claim if resolution of that claim is based on statutory interpretation, rather than consideration of the factual evidence. See Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001). II. Legal Criteria and Analysis The Veteran is currently assigned a single 50-percent disability rating for his obstructive sleep apnea and asthma. The Veteran contends that he is entitled to separate evaluations for obstructive sleep apnea and asthma. A. Applicable Laws and Regulations Disability ratings are determined by applying the criteria set forth in the VA's Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The rating schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to active service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 4.7. Pursuant to 38 C.F.R. § 4.96, Diagnostic Code (DC) 6847 provides ratings for sleep apnea syndromes (obstructive, central, and mixed). Sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine is rated 50 percent disabling. Obstructive sleep apnea that manifests in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, is rated 100 percent disabling. 38 C.F.R. § 4.97. Under DC 6602, pertaining to asthma, bronchial, a 10-percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71- to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30-percent rating is assigned for FEV-1 of 56- to 70-percent predicted, or FEV-1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication. 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. A maximum 100-percent rating is assigned for bronchial asthma with 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 requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. 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. When there are two co-existing respiratory conditions (including for DCs 6602 and 6847), a single rating will be assigned under the DC that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96(a). This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability's DC. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). Rating coexisting respiratory conditions is governed by 38 C.F.R. § 4.96(a). In this case, the Veteran is assigned a single disability rating for his coexisting respiratory conditions of obstructive sleep apnea and asthma. Section 4.96(a) states that ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. 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 evaluation. B. Factual Background The Veteran was treated for respiratory conditions including bronchitis and chest congestion during active service. See Service Treatment Records (STRs). In June 2009, the Veteran underwent a VA examination. The examiner diagnosed the Veteran with obstructive sleep apnea, and noted that sleep studies confirmed the Veteran's need to use a CPAP machine. The Veteran reported that he had sleep apnea for 10 years, which required the use of a continuous positive airway pressure (CPAP) machine. See June 2009 VA Compensation and Pension (C&P) Examination in Legacy Content Manager (LCM) documents. The physical examination showed that the Veteran had normal lungs, and a normal chest X-ray. In a letter submitted by the Veteran submitted from his physician Dr. N.H. dated July 23, 2010, Dr. N.H. stated that he treated the Veteran for mild persistent asthma since November 2009 with Albuterol as needed and that "he may require more aggressive treatments several times a year if he develops upper respiratory symptoms." See Correspondence dated August 12, 2010 in LCM. The Veteran also reported his symptoms were "under good control at this time." In November 2010, the Veteran underwent a second VA examination related to his claim for asthma. See November 2010 VA C&P Examination Respiratory System found in LCM dated December 4, 2010. The examiner diagnosed the Veteran with "COPD [n]ot a clear reversibility with bronchodilator associated with classic asthma." The Veteran reported that he was prescribed Allegra and Albuterol, and that the CPAP machine was helpful. The physical examination revealed no abnormal breath sounds, and a chest X-ray showed the Veteran's lungs were clear. The Pulmonary Function Testing (PFT) revealed FVC of 67% and FEV1 of 66%. The examiner further stated that the Veteran "had asthma attacks with exposure to allergens" which would render the Veteran "unable to go out and do physical activities during season when he is bothered." C. Analysis The Veteran contends that he is entitled to separate evaluations for obstructive sleep apnea and asthma because "[s]leep apnea is a soft palate issue and the [a]sthma is a lung condition. Treatment is completely different and unrelated." See November 2011, Notice of Disagreement in LCM. The Veteran's representative argued in its December 2014 brief that "under 38 C.F.R. § 4.96, a separate rating can be assigned when the Veteran is receiving compensation for sleep apnea." 1. Separate Evaluations The Veteran's representative argued in December 2014 that although obstructive sleep apnea and asthma conditions impair the Veteran's ability to breathe, each condition has different symptoms and treatment. See December 2014 Representative Brief. He maintains that "sleep apnea is caused by obstructive factors and results in disruption of breathing during sleep; the condition is alleviated by the use of CPAP" and that "asthma is caused by exposure to allergens and irritant particles and results in recurrent attacks of spasmodic contraction of the bronchi; the condition is alleviated by the use of bronchodilators." The Board construes this to mean that the Veteran is arguing that the assignment of separate ratings under DC 6602 and 6847 would not amount to impermissible pyramiding, as the disabilities present with distinct manifestations (i.e., symptoms). However, these disabilities are overlapping. Notably, the Veteran is focusing on the causes of and treatments for the disorders, rather than the manifestations (i.e., his symptoms) of the disorders. The Board notes that the evidence of record supports a finding that the disabilities at issue in this case present with duplicative and overlapping manifestations, namely difficulty with breathing. Section 4.14 clearly contemplates that several separately diagnosed disorders may have a single manifestation, and it clearly prohibits the VA from rating that manifestation for each disorder. See Amberman v. Shinseki, 570 F.3d 1377, 1381 (Fed. Cir. 2009); 38 C.F.R. § 4.14. Moreover, the Board is bound by 38 C.F.R. § 4.96(a), which specifically prohibits the assignment of separate evaluations for asthma and obstructive sleep apnea. See 38 C.F.R. § 4.96(a); Urban, 29 Vet. App. at 97, 106 (declining to consider non-dominant disability and stating "[g]iven that the regulation prescribes that to avoid pyramiding VA must not separately evaluate the listed respiratory conditions and combine them under 38 C.F.R. § 4.25, as would occur in a conventional evaluation, the Secretary's decision to adhere to the criteria in the predominant DC makes sense.") Given the binding nature of the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds that separate evaluations for asthma and obstructive sleep apnea are not permitted. The Board notes that it is without authority to grant the Veteran's claim on an equitable basis, and instead is constrained to follow the specific provisions of the law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). 2. Increased Rating As acknowledged previously, the Veteran has asserted that he is entitled to an initial rating in excess of 50-percent. In June 2009, the Veteran was diagnosed with obstructive sleep apnea, which required use of a CPAP machine. A 50-percent disability is warranted under DC 6847 for sleep apnea that requires the use of CPAP machine. The Veteran's current 50-percent rating for sleep apnea contemplates a more severe level of disability than asthma, which is currently assigned a 30-percent disability rating. Based on the evidence of record, the Board finds that an initial rating in excess of 50-percent for sleep apnea is not warranted. As to the severity of the Veteran's sleep apnea, the VA examination shows that a CPAP is required for breathing assistance. As noted above, this level of severity is contemplated by the initially assigned 50-percent rating under DC 6847. The Veteran has also not been found to have chronic respiratory failure with carbon dioxide retention or cor pulmonale at any time during the appeal, and there is no record of a tracheotomy. Accordingly, the criteria for an initial disability rating higher than 50-percent are not met because the criteria for a 100-percent rating are not more closely approximated. See 38 C.F.R. § 4.7. As the preponderance of the evidence is against the claim, the benefit-of-the doubt doctrine is not applicable, and a higher initial rating is not warranted. See 38 U.S.C § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Turning to the Veteran's asthma, the C&P examination in November 2010 showed normal clinical findings and history of asthma. See C&P Examination dated November 12, 2010 in LCM documents received December 4, 2010. The PFTs indicate spirometry test results showing FEV1 of 56- to 70 percent; or FEV-1/FVC of 56 to 70 percent, which warrants a 30-percent disability rating. The Board also finds that an initial rating in excess of 30-percent for asthma is not warranted. As noted above, the Veteran's spirometry test results showed FEV-1 of 56- to 70 percent; or FEV-1 of 56 to 70 percent, are contemplated by the 30-percent disability rating assigned. Moreover, the evidence throughout the appeal period has not shown that the Veteran had 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. Additionally, the Veteran reported that his asthma was controlled with the current medications. The Veteran's physician noted that the Veteran may require aggressive treatment, but the record contains no such evidence of monthly or intermittent visits to the doctor for exacerbations. Accordingly, the criteria for an initial disability rating higher than 30 percent for the Veteran's asthma are not met. (CONTINUED ON NEXT PAGE) ORDER Entitlement to separate disability ratings for service-connected obstructive sleep apnea and asthma is denied. Entitlement to an initial rating in excess of 50 percent is denied. ____________________________________________ YVETTE R. WHITE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs