Citation Nr: 1805982 Decision Date: 01/30/18 Archive Date: 02/07/18 DOCKET NO. 12-12 970 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Portland, Oregon THE ISSUES 1. Entitlement to a rating in excess of 60 percent prior to June 23, 2008, for service-connected asthma. 2. Entitlement to a rating in excess of 30 percent from June 23, 2008 forward, for service-connected asthma. REPRESENTATION Appellant represented by: Oregon Department of Veterans' Affairs ATTORNEY FOR THE BOARD T. Fitzgerald, Associate Counsel INTRODUCTION The Veteran served on active duty from June 1974 to June 1977. These matters are before the Board of Veterans' Appeals (Board) on appeal from a September 2008 rating decision of the Portland, Oregon Department of Veteran Affairs (VA) Regional Office (RO). In April 2017, these issues were remanded to the Agency of Original Jurisdiction (AOJ). There has been substantial compliance with the remand instructions and this matter is again before the Board. See Stegall v. West, 11 Vet. App. 268, 271 (1998). These appeals were processed using the VBMS paperless claims processing system. Accordingly, any future consideration of this Veteran's case should take into consideration the existence of this electronic record, in addition to the Veteran's Virtual VA paperless claims file. FINDINGS OF FACT 1. Prior to June 23, 2008, the Veteran's asthma was not manifested by FEV-1 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. 2. From June 23, 2008 forward, the Veteran's asthma was not manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or at least 3 courses of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. Prior to June 23, 2008, the criteria for a rating greater than 60 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6602 (2017). 2. From June 23, 2008 forward, the criteria for a rating greater than 30 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.7, 4.10, 4.97, DC 6602 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSION I. Compliance with Stegall As noted in the Introduction, the Board previously remanded these matters in April 2017. With respect to the issues decided, the Board instructed the RO to obtain any outstanding treatment records, schedule the Veteran for a VA examination, and readjudicate the claim. The claims file contains the requested outstanding evidence and the Veteran was scheduled for and attended an appropriate September 2017 VA examination. The RO readjudicated the claim most recently in a November 2017 Supplemental Statement of the Case (SSOC). As a result of these steps taken, the Board finds that there has been substantial compliance with its previous remand instructions. Stegall v. West, 11 Vet. App. 268, 271 (1998). II. Duties to Notify and Assist VA has a duty to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (2014); 38 C.F.R. §§ 3.102, 3.156(a), 3.159 and 3.326(a) (2017). The Veteran has not raised any issues with the duty to notify or duty to assist. See Scott v McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that "the Board's obligation to read filings in a liberal manner does not require the Board . . . to search the record and address procedural arguments when the veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). III. Disability Evaluations Disability evaluations are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. The percentage ratings represent as far as can practicably be determined the average impairment in earning capacity resulting from such diseases and injuries and the residual conditions in civilian occupations. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2017). Separate diagnostic codes (DCs) identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7 (2017). Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3 (2017). The Veteran's entire history is reviewed when making a disability determination. See 38 C.F.R. § 4.1 (2017). VA must consider whether the Veteran is entitled to "staged" ratings to compensate when his or her disability may have been more severe than at other times during the course of his or her appeal. The Veteran's service-connected asthma is rated under Diagnostic Code (DC) 6602. 38 C.F.R. § 4.97, DC 6602. DC 6602 provides ratings for asthma, in part using the results of pulmonary function tests (FFTs). Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy, is rated 10 percent disabling. 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, is rated 30 percent disabling. 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, is rated 60 percent disabling. FEV-1 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, is rated 100 percent disabling. A Note to DC 6602 provides that, in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97. In addition, the Board notes that, when evaluating based on PFTs, VA is to use post-bronchodilator results unless the post-bronchodilator results were poorer than pre-bronchodilator results, in which case the latter should be used instead. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs (e.g., FEV-1, FVC, or FEV-1/FVC) such that the evaluation would be different depending on which test was used, the Board must use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). The Board finds that the rating criteria do contemplate the use of medications as they are cited in the regulations and recognize the effects of bronchodilators and inhalational therapy. The Veteran's service-connected asthma has been evaluated in two separate rating periods. Because the Veteran is currently assigned staged ratings of 60 percent prior to June 23, 2008 and 30 percent from that date, the Board will discuss each period separately. A. Prior to June 23, 2008 The RO has evaluated the Veteran's service-connected asthma to be 60 percent disabling from September 28, 2001 to June 23, 2008. An August 2005 examination report noted that the Veteran used four oral inhalers (Flunisolide, Formoterol, Cromolyn, and Albuterol) to control his asthma. He felt he would be unable to do anything without all four medications, alleging that he would be "nearly completely incapacitated and would have to stay in the house fairly sedentary all the time just to control his breathing." He reported an occasional cough without sputum or hemoptysis. He reported he could not walk more than 200 yards without stopping for shortness of breath if he did not use inhalers. He also said he cannot carry anything, and could "hardly be active at all." He had no memory of going to the hospital for asthma attacks or having such severe shortness of breath that he needed assistance of that type. The examiner noted that May 2005 pre-bronchodilator PFTs showed FVC at 94 percent of predicted values, FEV-1 at 73 percent, and a FEV-1/FVC ratio of 57 percent. However, post-bronchodilator PFTs showed FVC at 97 percent, FEV-1 at 95 percent, and a FEV-1/FVC ratio of 72 percent. The Veteran's VA treatment records show he was prescribed Flunisolide for both nasal allergies and asthma until at least June 2006. However, during the July 2006 VA examination, the examiner noted the Veteran's active outpatient medications for breathing problems included Mometasone (which replaced Flunisolide in this capacity), Cromolyn, Levalbuterol, and Formoterol. Although it appears Flunisolide was still being used, the prescription specifically notes that it was used to treat nasal allergies rather than breathing difficulties. The Veteran said if he left the house without one of the two inhalers that he took for "rescue during the day" he has to limit his activity while he is out to prevent himself from needing one of those inhalers. This caused him to be anxious and he said he "nearly panics if he does not have rescue inhaler with him at all times." He denied being hospitalized for shortness of breath or having any asthma attacks. However, he did report chronic shortness of breath and tightness in the chest. He said he had been using inhaled steroids for about ten years without side effects. Pre-bronchodilator PFTs showed FVC at 105 percent of predicted values, FEV-1 at 98 percent, and a FEV-1/FVC ratio of 68 percent. Post-bronchodilator PFTs found FVC at 103 percent of predicted values, FEV-1 at 102 percent, and a FEV-1/FVC ratio of 73 percent. On April 2008 VA examination, the Veteran said he could walk one block without stopping to use his inhaler. He could also walk up the five steps of his front porch without stopping due to shortness of breath. He doubted he could walk a full flight of stairs without stopping due to shortness of breath, and had not walked up a flight of stairs in years. He denied any asthma attacks at the time, but said he doesn't go anywhere or do much because of his shortness of breath. He continued to use the same four inhalers (Cromolyn, Mometasone, Formoterol, and Albuterol). He denied taking any steroids other than inhaled steroids in over ten years. He also denied taking any antibiotics for upper respiratory infections in over ten years or any emergency room or primary care visits in the prior three years for upper respiratory infection symptoms. The examiner noted no episodes of incapacitation in the prior year. The Veteran said he had to schedule his life around his breathing ability and perform tasks in short bursts. He said he would do things more in the morning because he became fatigued in the afternoons due to sleep apnea. He could not go anywhere without at least one inhaler because he would develop panic and possible panic attacks. He said his breathing and finances severely limited his activities. On examination, he had to stop twice for coughing while walking 250 yards. He also had to use his inhaler once. Pre-bronchodilator PFTs found FVC at 99 percent of predicted values, FEV-1 at 92 percent, and a FEV-1/FVC ratio of 68 percent. Post-bronchodilator PFTs found FVC at 103 percent of predicted values, FEV-1 at 102 percent, and a FEV-1/FVC ratio of 72 percent. A June 2008 addendum opinion clarified that the Veteran did take corticosteroids (specifically, Mometasone), but that such was inhaled and not systemic. The examiner further explained that the Veteran was "steroid-dependent," but did not risk adrenal insufficiency with withdrawal of his inhaled steroids as he would with systemic steroids. The examiner also noted that the Veteran visited his primary care physician annually to keep his inhaler prescriptions active, but had not had to seek medical care for acute events in the prior few years. The evidence shows that the Veteran has not had PFT results consistent with a rating in excess of 60 percent (i.e., FEV-1 and FEV-1/FVC values were all greater than 55 percent), that his asthma did not require at least monthly visits to a physician for required care of exacerbations, that he did not experience more than one attack per week with episodes of respiratory failure, or required daily use of systemic high dose corticosteroids or immuno-suppressive medications. VA treatment records show the Veteran continued to use Flunisolide through June 2006. An active VA outpatient medication list dated June 22, 2006 specifically notes that Flunisolide was to be taken for asthma as well as for nasal allergies. By the July 2006 VA examination, his active VA outpatient medication noted that Flunisolide was only prescribed for nasal allergies, and Mometasone was prescribed to replace Flunisolide to treat breathing difficulties. Additionally Flunisolide is an inhaled corticosteroid. The April 2008 VA examination report (with June 2008 addendum) clearly indicates that the four medications the Veteran was taking at that time (Mometasone, Cromolyn, Formoterol, and Levalbuterol) are not systemic steroids, but inhaled corticosteroids. Therefore, the Veteran did not require intermittent use of systemic corticosteroids to treat his asthma in July 2006. Based on the preponderance of the evidence, the Board finds that the criteria are not met to assign a rating in excess of 60 percent for the Veteran's service-connected asthma. As the preponderance of the evidence is against this claim, the benefit-of-the-doubt rule is inapplicable, and the claim for an initial rating in excess of 60 percent for asthma must be denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App 49, 55-57 (1990). B. From June 23, 2008 Forward On November 2009 VA examination, the Veteran said he experienced dyspnea on exertion and felt he would be short of breath at rest without using his inhalers. The examiner noted four oral inhalers were prescribed for asthma at the time (Albuterol, Cromolyn, Formoterol, and Mometasone). He reported asthmatic attacks two to four times a month, despite regular inhaler use. However, he did not require intermittent courses of systemic (oral or parenteral) corticosteroids or at least monthly visits to a physician for required care of exacerbations of asthma. The examiner noted that the Veteran was "very compliant with his medication regimen, and is thus able to control exacerbations to some extent." He apparently visited his primary care physician annually to keep his inhaler prescriptions active. The examiner noted no episodes of incapacitation in the prior year. Pre-bronchodilator PFTs found FVC at 98 percent; FEV-1 at 94 percent; and a FEV-1/FVC ratio of 69 percent. Post-bronchodilator PFTs found FVC at 100 percent; FEV-1 at 99 percent; and a FEV-1/FVC ratio of 71 percent. March 2010 VA treatment records show the Veteran reported lifelong dyspnea and exercise intolerance. Specifically, he reported dyspnea whenever he would sweat, which the provider noted suggested it occurred with exertion. However, the provider noted that multiple prior PFTs had been normal, except for some small airway disease without progression. A PFT at that time showed pre-bronchodilator FVC at 94 percent of predicted values; FEV-1 at 80 percent of predicted values; and a FEV-1/FVC ratio of 77 percent. Post-bronchodilator testing showed FVC at 99 percent of predicted values; FEV-1 at 98 percent of predicted values; and a FEV-1/FVC ratio of 72 percent. On his April 2010 VA Form-9, the Veteran stated that he believed he was entitled to a 60 percent evaluation for his service-connected asthma because he was taking four different inhalers daily. In April 2014, VA active outpatient medication lists indicate the Veteran ceased the previous four inhalers (Mometasone, Cromolyn, Formoterol, and Levalbuterol) and began using just two inhalers (Budesonide and Albuterol). Records indicate he used those through least April 2017. During an October 2015 VA examination, the examiner noted his asthma required daily use of inhalational bronchodilators, but did not require the use of oral or parenteral steroids or oral bronchodilators. He also denied requiring the use of an emergency room or urgent care for his asthma in the prior year. He did not cough up sputum or wake up with dyspnea during the night. His dyspnea was worse during allergy season and when there is smoke in the air from regional fires. The Veteran denied requiring oral bronchodilators, antibiotics, or outpatient oxygen therapy to treat his asthma. He had not had any asthma attacks with episodes of respiratory failure in the prior 12 months or visited the doctor for required care of exacerbations. There were no scars related to his asthma and the examiner noted no other pertinent physical findings. Post-bronchodilator PFTs showed FVC at 96 percent of predicted values, FEV-1 at 92 percent of predicted values, and a FEV-1/FVC ratio of 100 percent. Pre-bronchodilator PFTs showed FVC at 91 percent of predicted values, FEV-1 at 82 percent of predicted values, a FEV-1/FVC ratio of 90 percent. The examiner felt the FEV-1 tests most accurately reflected the Veteran's level of disability. The October 2015 examiner indicated that the Veteran did not require oral or parenteral steroids at that time. Pursuant to the April 2017 remand directives, the Veteran was afforded an additional VA examination in September 2017. The examiner noted that the Veteran's asthma remained consistent. The Veteran reported symptoms of shortness of breath with exertion and coughing. He reported using Symbicort and Albuterol inhalers to treat his symptoms. The examiner reported that the Veteran's asthma did not require the use of oral or parenteral corticosteroid medications. Inhalational bronchodilator therapy and inhalational anti-inflammatory medication was reportedly used daily. The use of oral bronchodilators, antibiotics, and outpatient oxygen therapy was not required to treat the Veteran's asthma. The Veteran did not have any asthma attacks with episodes of respiratory failure in the past twelve months. The Veteran reported experiencing two to three asthma attacks weekly, which did not require physician visits, systemic steroids, or immunosuppressive medications. Post-bronchodilator PFTs showed FVC at 86 percent of predicted values, FEV-1 at 87 percent of predicted values, and a FEV-1/FVC ratio of 101 percent. Pre-bronchodilator PFTs showed FVC at 82 percent of predicted values, FEV-1 at 80 percent of predicted values, a FEV-1/FVC ratio of 97 percent. Chest X-rays revealed that the Veteran's heart was normal size, and the pulmonary vascularity was also normal. There were no acute infiltrated. The examiner felt the FEV-1 tests most accurately reflected the Veteran's level of disability. The examiner also determined that the Veteran's asthma did not impact his ability to work. Based on the medical evidence above, the Board finds that the criteria for a rating in excess of 30 percent are not met for the period of June 23, 2008 forward. As noted, the Veteran's documented FEV-1 and FEV-1/FVC results during this period do not warrant a rating greater than 30 percent under the criteria for DC 6602. The Board acknowledges the Veteran's arguments in his substantive appeal that at that time (April 2010) he was prescribed and taking four different inhalers. The Board appreciates the Veteran's argument, but finds that this treatment did not meet the requirements for a higher rating for the period from June 23, 2008 forward. There is no evidence or contention that the Veteran's asthma required the use of systemic corticosteroids. Additionally, VA records show the Veteran continued to use the same four non-systemic medications (Mometasone, Cromolyn, Formoterol, and Levalbuterol) until late March 2014 and thereafter used two inhalers, Albuterol and Budesonide, until at least April 2017. In conclusion, the Board finds that the Veteran's disability picture regarding his service-connected asthma does not more nearly approximate a rating in excess of 30 percent for any period from June 23, 2008 forward. Consequently, the Board finds that the 30 percent disability rating assigned for the Veteran's service-connected asthma from June 23, 2008 forward, appropriately reflects the clinically established impairment. Neither the Veteran nor his representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017) (confirming that the Board is not required to address issues unless they are specifically raised by the claimant or reasonably raised by the evidence of record). ORDER Entitlement to a rating in excess of 60 percent prior to June 23, 2008, for service-connected asthma is denied. Entitlement to a rating in excess of 30 percent from June 23, 2008 forward, for service-connected asthma is denied. ____________________________________________ J. W. FRANCIS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs