Citation Nr: 18143819 Decision Date: 10/23/18 Archive Date: 10/22/18 DOCKET NO. 16-10 619 DATE: October 23, 2018 ORDER A disability rating in excess of 40 percent for chronic lumbosacral strain (“back disability” is denied. A disability rating in excess of 30 percent for asthma is denied. FINDINGS OF FACT 1. Throughout the increased rating period on appeal, the Veteran’s back disability has not manifested ankylosis of any type of the thoracolumbar spine, and he has not had any incapacitating episodes. 2. Throughout the increased rating period on appeal, the Veteran’s asthma has manifested an FEV-1 no less than 87 percent of predicted value, and an FEV-1/FVC no less than 79 percent of predicted value, nor has his condition required at least monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic corticosteroids. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 40 percent for chronic lumbosacral strain have not been met for any part of the rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.40, 4.45, 4.59, 4.71a, Diagnostic Code (DC) 5237. 2. The criteria for a disability rating in excess of 30 percent for asthma have not been met for any part of the rating period on appeal. 38 U.S.C. §§ 1155, 5103(a), 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321, 4.1, 4.2, 4.3, 4.7, 4.10, 4.97, Diagnostic Code (DC) 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran, who is the Appellant in this case, had active service from December 1981 to January 2003. This matter comes before the Board of Veterans’ Appeals (BVA or Board) from an October 2014 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Oakland, California. At the outset, the Board notes that the Veteran is in receipt of a combined 100 percent schedular rating, a total rating based on individual unemployability due to service-connected disabilities (TDIU), and special monthly compensation under 38 U.S.C. § 1114(s) and 38 C.F.R. § 3.350(i), effective from June 25, 2013. He also has service connection for radiculopathy of the lower extremities associated with his back disability, with a 40 percent disability rating in effect for each leg. Increased Rating The Veteran contends that he is entitled to higher disability ratings for his service-connected back disability and asthma. Disability evaluations (ratings) are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing the symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Reasonable doubt regarding the degree of disability will be resolved in the veteran’s favor. 38 C.F.R. § 4.3. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. As is the case here, where entitlement to compensation has already been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings that show a change in the severity of symptoms during the course of the rating period on appeal, assignment of staged ratings would be permissible. Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to a disability rating in excess of 40 percent for chronic lumbosacral strain The Veteran is in receipt of a 40 percent disability rating for his back disability throughout the increased rating period on appeal. He contends that he is entitled to a higher rating, as he has constant back pain, aggravated by walking, standing, and prolonged sitting, which severely limits his functional abilities. He uses a cane for ambulation and takes a number of medications for pain management. For the reasons discussed below, the Board finds that the weight of the evidence is against a disability rating in excess of 40 percent for the back disability. Disabilities of the spine are rated under the General Rating Formula for Diseases and Injuries of the Spine (for Diagnostic Codes 5235 to 5243, unless 5243 is evaluated under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes). Ratings under the General Rating Formula for Diseases and Injuries of the Spine are made with or without symptoms such as pain (whether or not it radiates), stiffness, or aching in the area of the spine affected by residuals of injury or disease. The General Rating Formula for Diseases and Injuries of the Spine provides a 10 percent disability rating for forward flexion of the thoracolumbar spine greater than 60 degrees but not greater than 85 degrees; or, combined range-of-motion of the thoracolumbar spine greater than 120 degrees but not greater than 235 degrees; or, muscle spasm, guarding, or localized tenderness not resulting in abnormal gait or abnormal spinal contour; or, vertebral body fracture with loss of 50 percent or more of the height. A 20 percent rating is provided for forward flexion of the thoracolumbar spine greater than 30 degrees but not greater than 60 degrees; or, the combined range-of-motion of the thoracolumbar spine not greater than 120 degrees; or, muscle spasm or guarding severe enough to result in an abnormal gait or abnormal spinal contour such as scoliosis, reversed lordosis, or abnormal kyphosis. A 40 percent disability rating is provided for forward flexion of the thoracolumbar spine 30 degrees or less, or favorable ankylosis of the entire thoracolumbar spine. A 50 percent disability rating is assigned for unfavorable ankylosis of the entire thoracolumbar spine. A 100 percent disability rating is assigned for unfavorable ankylosis of entire spine. 38 C.F.R. § 4.71a. Note (1) to the rating formula specifies that any associated objective neurologic abnormalities, including, but not limited to, bowel or bladder impairment, should be separately evaluated under an appropriate diagnostic code. Note (2) (See also Plate V) provides that, for VA compensation purposes, normal forward flexion of the thoracolumbar spine is zero to 90 degrees, extension is zero to 30 degrees, left and right lateral flexion are zero to 30 degrees, and left and right lateral rotation are zero to 30 degrees. The combined range-of-motion refers to the sum of the range of forward flexion, extension, left and right lateral flexion, and left and right rotation. The normal combined range-of-motion of the thoracolumbar spine is 240 degrees. The normal ranges of motion for each component of spinal motion provided in this note are the maximum that can be used for calculation of the combined range-of-motion. Note (3) provides that, in exceptional cases, an examiner may state that because of age, body habitus, neurologic disease, or other factors not the result of disease or injury of the spine, the range-of-motion of the spine in a particular individual should be considered normal for that individual, even though it does not conform to the normal range-of-motion stated in Note (2). Provided that the examiner supplies an explanation, the examiner’s assessment that the range-of-motion is normal for that individual will be accepted. Note (4) instructs to round each range-of-motion measurement to the nearest five degrees. Note (5) provides that, for VA compensation purposes, unfavorable ankylosis is a condition in which the entire thoracolumbar spine, or the entire spine is fixed in flexion or extension, and the ankylosis results in one or more of the following: difficulty walking because of a limited line of vision; restricted opening of the mouth and chewing; breathing limited to diaphragmatic respiration; gastrointestinal symptoms due to pressure of the costal margin on the abdomen; dyspnea or dysphagia; atlantoaxial or cervical subluxation or dislocation; or neurologic symptoms due to nerve root stretching. Fixation of a spinal segment in neutral position (zero degrees) always represents favorable ankylosis. 38 C.F.R. § 4.71a. The Diagnostic Codes for the spine are as follows: 5235 Vertebral fracture or dislocation; 5236 Sacroiliac injury and weakness; 5237 Lumbosacral or cervical strain; 5238 Spinal stenosis; 5239 Spondylolisthesis or segmental instability; 5240 Ankylosing spondylitis; 5241 Spinal fusion; 5242 Degenerative arthritis of the spine (see also DC 5003); 5243 Intervertebral disc syndrome. Intervertebral disc syndrome (preoperatively or postoperatively) may be evaluated either under the General Rating Formula for Diseases and Injuries of the Spine or under the Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes, whichever method results in the higher evaluation when all disabilities are combined. See 38 C.F.R. § 4.25 (combined ratings table). The Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes provides a 10 percent disability rating for IVDS with incapacitating episodes having a total duration of at least one week but less than 2 weeks during the past 12 months; a 20 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 2 weeks but less than 4 weeks during the past 12 months; a 40 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 4 weeks but less than 6 weeks during the past 12 months; and a 60 percent disability rating for IVDS with incapacitating episodes having a total duration of at least 6 weeks during the past 12 months. An incapacitating episode is defined as a period of acute signs and symptoms due to IVDS that required bed rest prescribed by a physician and treatment by a physician. 38 C.F.R. § 4.71a. When evaluating musculoskeletal disabilities based on limitation of motion, 38 C.F.R. § 4.40 requires consideration of functional loss caused by pain or other factors listed in that section that could occur during flare-ups or after repeated use and, therefore, not be reflected on range-of-motion testing. 38 C.F.R. § 4.45 requires consideration also be given to less movement than normal, more movement than normal, weakened movement, excess fatigability, incoordination, and pain on movement. See DeLuca v. Brown, 8 Vet. App. 202 (1995); see also Mitchell v. Shinseki, 25 Vet. App. 32, 44 (2011). Nonetheless, even when the background factors listed in § 4.40 or 4.45 are relevant when evaluating a disability, the rating is assigned based on the extent to which motion is limited, pursuant to 38 C.F.R. § 4.71a (musculoskeletal system) or § 4.73 (muscle injury); a separate or higher rating under § 4.40 or 4.45 itself is not appropriate. See Thompson v. McDonald, 815 F.3d 781, 785 (Fed. Cir. 2016) (“[I]t is clear that the guidance of § 4.40 is intended to be used in understanding the nature of the veteran’s disability, after which a rating is determined based on the § 4.71a [or 4.73] criteria.”). Painful motion is considered limited motion at the point that the pain actually sets in. See VAOPGCPREC 9-98. With any form of arthritis, painful motion is an important factor of disability, the facial expression, wincing, etc., on pressure or manipulation, should be carefully noted and definitely related to the affected joints. The intent of the rating schedule is to recognize painful motion with joint or periarticular pathology as productive of disability. It is the intention to recognize actually painful, unstable, or malaligned joints, due to healed injury, as entitled to at least the minimum compensable rating for the joint. Crepitation either in the soft tissues such as the tendons or ligaments, or crepitation within the joint structures should be noted carefully as points of contact which are diseased. Flexion elicits such manifestations. 38 C.F.R. § 4.59. Reviewing the evidence most relevant to the rating period on appeal, in January 2014, the Veteran attended a follow-up chiropractic consultation at which he reported lumbosacral pain, left greater than right. He stated he had been going to gym three times per week, using a stationary bike for 40 minutes and taking a spin class on occasion, and that he used heat and inversion traction at home. He rated his back pain at a level of 6 out of 10 at rest, progressing to an 8 out of 10 at worst when performing activities of daily living. In February 2014, the Veteran reported that he managed his back pain with a Lidoderm patch, Tylenol, and Celebrex as needed. He had not gone to physical therapy for core strengthening or back work. The diagnosis was lumbago; chronic, stable. He was re-referred for physical therapy. Later that month, a cane was issued. It was noted that the Veteran was unable to stand up straight, and had an antalgic gait pattern without the cane. The Veteran was afforded a VA back examination in March 2014. The examiner diagnosed a chronic lumbosacral strain, mild degenerative disc disease with radiculopathy, and lumbar radiculopathy. The Veteran reported that since the last evaluation, he had been in physical therapy and chiropractic care. He stated he used ice packs, lidocaine patches, and heat applications to treat his pain. He also reported a lot of spasms with pain and numbness into both legs and a feeling of heaviness in the legs. He had been offered an injection to the spine but has refused as he is scared of needles. He stated that he had pain every day. He experienced relief with stretches and movement, but the pain returned with rest. He also reported weakness in his back. He stated that he woke up in pain several times per night. Since his last evaluation he states that his level of pain is increased to 7 out of 10. He reported daily flare-ups, with spasms of both legs, and a cramping pulsating pain. He had to lie down until the spasm passed, about an hour. On physical examination, flexion was to 0 degrees with objective evidence of painful motion at 0 degrees. Extension was to 0 degrees with pain at 0 degrees. Bilateral lateral flexion was to 5 degrees with pain at 5 degrees. Bilateral lateral rotation was to 5 degrees with pain at 5 degrees. The Veteran was unable to perform any movements of the back due to pain. Functional loss included less movement than normal, pain on movement, disturbance of locomotion, and interference with sitting, standing, and weightbearing. There was tenderness to palpation and guarding of the lumbar paraspinous muscles. Muscle spasm and guarding of the thoracolumbar spine resulted in abnormal gait or abnormal spinal contour. There was no muscle atrophy or ankylosis of the spine, and no IVDS. The Veteran used a cane constantly and used a leather weight-lifting belt or abdominal binder for back pain on a regular basis. He had a very slow, antalgic gait. He grimaced with pain during all movements and when sitting. A June 2011 MRI showed mild degenerative disc disease at the L4-L5 and L5-S1 levels. The Veteran was able to walk up to a quarter mile but with pain, and was able to drive. He was able to sit for periods of 15 minutes or so, but could not sit for prolonged periods due to back pain. The examiner noted that he was able to do some sedentary tasks at home, but his back pain and stiffness rendered him unable to secure or maintain any employment that required standing, walking, or sitting for long periods. The examiner noted that the Veteran’s history and physical findings were out of proportion to the MRI findings of mild degenerative disc disease in June 2011. At a March 2014 physical therapy evaluation, the Veteran reported back pain worsening over the last three years. He stated that since his initial injury in 1984, he had experienced intermittent low back pain. Currently, he had low back pain with bilateral lower extremity right greater than left “sharp” pain and numbness and tingling on anterior and posterior thigh that occasionally provides a “hot” sensation. The right leg felt like it was lagging behind. These particular symptoms had been occurring for two years. His current pain was at a 7 out of 10; at best it was 6 out of 10, and at worst it was 9 out of 10. Driving, sitting for first 30 seconds, walking immediately, running, and lifting aggravated his back. He had difficulty bending forward into flexion as well. The clinician noted severe limitation of flexion, with the distal third phalange reaching to the mid-thigh, with an increase in pain and distal lower extremity symptoms. He had moderate limitation of extension with an increase in pain. In April 2014, the Veteran reported a significant reduction in his back pain, with no current distal lower extremity symptoms. A May 2014 physical therapy note indicates that lumbar flexion was at 25 percent motion with reproduction of pain, and extension was at 75 percent motion. The physical therapist noted that the Veteran’s quality of movement has improved and he was having greater ease with ambulating and therapeutic exercises. Goals were progressing but he continued to have decrease in lumbar mobility, stability, and lower extremity strength. In June 2014, the Veteran reported that his back pain in the last week averaged a 4 out 10. He was experiencing less frequency of sensations of vibration, hot, and lagging of the right leg. Sitting for periods of greater than two minutes produced sharp pain. Walking no longer produced his symptoms. He had slight improvement in lumbar flexion with 25 percent motion, and extension was at 25 percent motion. He entered the clinic with improved posture and was more upright. The therapist noted overall improvement of distal symptoms and severity of pain. Further, he had slowly made progress towards goals, but continued to benefit from a lumbar stabilization program. The therapist discharged him with a home exercise program. A July 2014 VA treatment note indicates that the Veteran continued to receive chiropractic treatment every 4 to 6 weeks. His low back pain radiated to both legs. At an August 2014 chiropractic consultation, the Veteran reported an exacerbation of back pain after long distance travel to the Philippines. He rated his back pain at a 6 out of 10 at rest, progressing to a 7 out of 10 at worst when performing activities of daily living. In September 2014, his pain had decreased to a 5 out of 10 at rest, progressing to a 6 out of 10 at worst when performing activities of daily living. However, in November 2014, it had increased to a 7 out of 10 at rest, progressing to an 8 out of 10 at worst when performing activities of daily living. Chiropractic notes from May 2015 indicate back pain rated at 7 out of 10 at rest, and 9 out of 10 at worst. The Veteran’s Functional Rating Index was 77.5 percent. The Veteran evaluated his pain as moderate in severity, with mildly disturbed sleep and a moderate need to go slow. He stated his pain was moderate on short driving trips, that he could perform 25 percent of his occupational activities, and was able to perform a few recreational activities. His pain was constant and increased with light weight, and any walking and standing. He demonstrated pain behavior with transfers and ambulation. The Veteran was afforded another VA back examination in July 2015. The examiner diagnosed degenerative disc disease, intervertebral disc syndrome, and radiculopathy. The Veteran reported chronic back pain associated with shooting pain, tingling, and numbness in bilateral lower extremities. He had been receiving physiotherapy and chiropractic management, and stated that it only helped him temporarily. He frequently used a cane for ambulation. He had frequent flare-ups with prolonged bending, standing, sitting, lifting, or carrying heavy objects. Flexion was to 40 degrees and extension to 15 degrees; bilateral lateral flexion was to 15 degrees, and bilateral lateral rotation was to 20 degrees. The Veteran declined to perform repetitive-use testing, stating that repetitive movements of his back aggravated his pain. There was no guarding or muscle spasm. He had an antalgic gait. Spinal contour was normal. Functional loss included less movement than normal, weakened movement, pain on movement, disturbance of locomotion, interference with sitting, and interference with standing. Pain, weakness, fatigability, and incoordination significantly limited functional ability during flare-ups or after repetitive use; the VA examiner stated there was an additional 5 degrees loss in flexion, extension, bilateral lateral flexion, and bilateral lateral rotation. There was no muscle atrophy or ankylosis. Straight leg raising test was positive bilaterally. The Veteran had IVDS but had not had any incapacitating episodes in the last year. A September 2015 VA treatment note indicates that the Veteran’s back pain used to be infrequent but seemed to be more frequent over the past few years. He had pain every day that waxed and waned. It was currently at a severity level of 6 out of 10. His medications included Celebrex, Flexeril, and lidocaine. In December 2015, the Veteran rated his back pain at a 7 out of 10. It was aggravated by cold weather, walking, and prolonged sitting. The clinician noted no red flag symptoms aside from duration, and that the Veteran had tried multiple medications, physical therapy, stretching, and chiropractor modalities with minimal improvement. The clinician prescribed a muscle relaxant, ordered an MRI, and referred the Veteran to pain management. The MRI revealed mild degenerative changes at L4-5 and L5-S1, stable, without nerve root impingement. Based upon these findings and the lay evidence of record, the Board finds that the weight of the evidence is against the assignment of a disability rating in excess of 40 percent for the back disability throughout the rating period on appeal. As noted above, in order to be eligible for the next higher 40 percent disability rating, the evidence must demonstrate unfavorable ankylosis of the thoracolumbar spine, or incapacitating episodes of intervertebral disc syndrome of at least 6 weeks in duration. 38 C.F.R. § 4.71a, Diagnostic Codes 5235-5243. Here, ankylosis of any type is absent, and the Veteran has not had any incapacitating episodes. The current 40 percent disability rating adequately compensates the Veteran for his pain and functional limitations. The Board has considered whether any alternate diagnostic codes might serve as a basis for an increased rating. In this regard, DC 5003 addresses degenerative arthritis. However, in this case, the maximum evaluation possible under Diagnostic Code 5003 is 10 percent, as only one major joint or group of minor joints is involved in this claim. Therefore, it does not allow for a higher evaluation. There are no other applicable codes available for consideration. In denying a disability rating in excess of 40 percent, the Board has considered the Veteran’s statements that his back disability is worse, as well as his reports of pain and functional limitations. While he is competent to provide evidence regarding matters that can be perceived by the senses, he is not shown to be competent to render medical opinions regarding whether his symptoms meet the next higher rating criteria under VA regulations. Such competent evidence concerning the nature and extent of the Veteran’s back disability has been provided by the medical personnel who have examined him during the current appeal. The medical findings (as provided in the examination reports and clinical records) directly address the criteria under which this disability is evaluated. The specific clinical measures of ranges of motion, including examiners’ findings and opinions regarding additional limitations of motion due to such factors, have been weighed and considered by the Board. Such specific measures and findings are of more probative value in determining specific ranges of motion than are general histories or general descriptions of symptoms of pain or limitations, such as this Veteran’s report of pain. Thus, the overall evidence does not show that pain or other factors have resulted in additional functional limitation or limitation of motion (unfavorable ankylosis of the thoracolumbar spine, or incapacitating episode of at least 6 weeks, etc.) such as to enable a finding that the disability picture more nearly approximates disability rating in excess of 40 percent under the General Rating Formula for Diseases and Injuries of the Spine or Formula for Rating Intervertebral Disc Syndrome Based on Incapacitating Episodes for the any part of the increased rating period on appeal. Despite the Veteran’s contention of a debilitating back disability, the 40 percent disability rating for the back disability indicates a significant impact on his functional ability. Such a disability evaluation assigned by VA recognizes his painful motion and functional limitations, indicating very generally a 40 percent reduction in his ability to function due to his back disability. The critical question in this case, however, is whether the problems he has cited meet an even higher level under the rating criteria. For reasons cited above, the Board finds they do not. The Board has also contemplated whether any separate evaluations are applicable here for neurological impairment associated with the service-connected back disability. As noted above, the Veteran already has service connection for radiculopathy of the lower extremities associated with his back disability. The evidence does not demonstrate any other conditions associated with the back disability. For these reasons, the Board finds that the weight of the evidence is against a disability rating in excess of 40 percent for the service-connected back disability throughout the increased rating period on appeal. The preponderance of the evidence is against this claim, and hence the benefit-of-the-doubt doctrine does not apply. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. 2. Entitlement to a disability rating in excess of 30 percent for asthma Next, the Veteran is in receipt of a 30 percent disability rating for his service-connected asthma throughout the increased rating period on appeal. He contends that he is entitled to a higher disability rating because he requires more medication to control his symptoms than in the past, including occasional steroids, has to see the doctor more often, and has had to go to the emergency room for difficulty breathing. The Veteran’s asthma was evaluated under DC 6602, which contemplates bronchial asthma. Under that code, a 10 percent evaluation is warranted for an FEV-1 of 71 to 80 percent of predicted value, or, an FEV-1/FVC of 71 to 80 percent, or, intermittent inhalation or oral bronchodilator therapy. A 30 percent evaluation is warranted for an FEV-1 of 56 to 70 percent of predicted value, or, an FEV-1/FVC of 56 to 70 percent, or, daily inhalational or oral bronchodilator therapy, or, inhalational anti-inflammatory medication. A 60 percent evaluation is warranted for an FEV-1 of 40 to 55 percent of predicted value, or, an 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. A maximum 100 percent disability rating is assigned for an FEV-1 less than 40 percent of the predicted value, or, FEV-1/FVC less than 40 percent, or, demonstrates more than one attack per week with episodes of respiratory failure, or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. 38 C.F.R. § 4.97. For rating purposes, post-bronchodilator findings are the standard in pulmonary assessment. 61 Fed. Reg. 46,723 (1996) (VA assesses pulmonary function after bronchodilation). Post-bronchodilator studies are required, and will be used for rating purposes, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or when the examiner determines that post-bronchodilator results should not be used and states why. 38 C.F.R. §§ 4.96(d)(4), (5). In addition, “[w]hen there is a disparity between the results of different PFT…so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability.” 38 C.F.R. § 4.96(d)(6). Turning to the evidence, a January 2014 VA treatment note indicates persistent asthma of moderate severity. It was noted that the Veteran took Advair (inhaled corticosteroid and bronchodilator) every night and Xopenex (inhaled bronchodilator). The clinician noted that his symptoms required daily albuterol x 1 (inhaled bronchodilator) for shortness of breath, but was otherwise well-controlled. In February 2014, the Veteran reported almost daily nighttime cough, but noted that on nights he took Zantac it was better. He used albuterol almost every day, usually once he had been outside for a while. Recent pulmonary function tests (the results of which are not of record) showed no improvement with albuterol administration and suggested workup for restrictive pattern if clinically indicated. The Veteran reported that his symptoms were markedly improved from before, and he thought he was doing well. The clinician continued the assessment of moderate persistent asthma, noting that PFTs and the Veteran’s report were indicative of good control of symptoms. Further, peak flows being within goal were also supportive. The clinician noted that he suspected that the etiology of the nighttime cough was more a reflux symptom than asthma. Asthma medications were continued. The Veteran was afforded a VA asthma examination in March 2014. The examiner noted that his condition required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids. Specifically, in the last year, he required inhalational bronchodilator therapy on a daily basis. He did not require an oral bronchodilator, antibiotics, or outpatient oxygen therapy. He had no asthma attacks with episodes of respiratory failure in the past 12 months. He was seen in Urgent Care for exacerbations about once a year, with the last exacerbation occurring in June 2013, for which he was given a course of oral steroids. The frequency of physician visits for required care of exacerbations over the past 12 months was less frequently than monthly. A February 2012 chest x-ray was normal. PFT testing from March 2014 revealed the following: FEV-1 was 98 percent of predicted, and FEV-1/FVC was 101 percent of predicted. The examiner stated that the FEV-1 percent predicted most accurately reflected the Veteran’s level of disability. Further, the examiner stated that the Veteran’s asthma symptoms of coughing and wheezing interfered with his ability to perform the functions of his prior work in real estate. The Veteran was sought emergency room treatment for an asthma exacerbation in August 2015. He had used his inhaler eight times that day with no relief and had a continuous cough. He began having difficulty breathing six days prior when he was exposed to smoke from a wild fire. A September 2015 VA treatment note indicates that the Veteran’s asthma symptoms were generally well-controlled, but he had an exacerbation starting in July, likely secondary to all the fires in the area. It was noted that he initially presented for treatment in mid-July and was given prednisone for 10 days and benzoate for his cough. His symptoms did not improve, so he presented to the emergency room on in August 2015, and was admitted for asthma exacerbation. His current medications included Advair 250/50 twice daily, albuterol 3-4 times per day, Zyrtec, Singulair, and Flonase. Today, his symptoms were better, but still with residual cough, largely non-productive. The diagnosis was asthma - severe persistent with exacerbation; chronic and stable. The clinician noted he was on a robust asthma medication regimen and still needed albuterol several times per day. The clinician continued the medication regimen, referred the Veteran to pulmonology, and ordered PFTs. The September 2015 PFT results are difficult to decipher, but it appears that the FEV-1 was 87 percent of predicted, and the FEV-1/FVC was 79 percent of predicted. At a follow up appointment in September 2015, it was noted that the Veteran’s asthma symptoms were not well-controlled. His Advair dosage was increased from 250/50, 2 puffs twice daily, to 500/50 1 puff twice daily. Spiriva (inhaled bronchodilator) was added to his regimen. The clinician stated that if his symptoms did not improve with time, other causes for his shortness of breath would need to be considered. A December 2015 VA treatment note indicates that since his hospitalization for asthma in August, the Veteran had been slightly better, but continued to have mild to moderate degree of shortness of breath and cough without sputum production. He reported that he did not feel limited by dyspnea. The clinician assessed moderate persistent asthma. The Veteran was not interested in starting new medications, and was told to continue to follow up every 3 to 4 months. In his March 2016 VA Form 9, the Veteran discussed his August 2015 emergency room treatment, but did not mention any further hospitalizations for exacerbations. After a review of all of the evidence, lay and medical, the Board finds that the weight of the evidence is against a rating in excess of 30 percent for asthma for the entire increased rating period on appeal. Throughout the increased rating period on appeal, the evidence does not demonstrate an FEV-1 of 40 to 55 percent of predicted value, an FEV-1/FVC of 40 to 55 percent, 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. Throughout the rating period on appeal, FEV-1 has been no less than 87 percent of predicted value, which does not even meet the criteria for a 10 percent disability rating under DC 6602. FEV-1/FVC has been no less than 79 percent of predicted value, which falls into the range of criteria for a 10 percent disability rating. Next, while the Veteran sought treatment for an exacerbation and was prescribed a corticosteroid in August 2015, the medical records do not document any other similar incidents. In addition, at the March 2014 VA examination, the Veteran reported that he was seen in urgent care for exacerbations about once a year, with the last exacerbation occurring in June 2013, for which he was given a course of oral steroids. Thus, the evidence does not demonstrate at least monthly doctor visits for exacerbations, or the use of systemic corticosteroids at least three times per year, as required for the next higher 60 percent disability rating. The Board notes that the March 2014 VA examiner indicated that the Veteran’s condition required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids. However, when asked for further clarification, the examiner explained that the condition required daily use of inhalational bronchodilator therapy. The Board thus finds that the VA examiner’s characterization of inhalational corticosteroid medication as systemic was in error. Although the evidence reflects that the Veteran has used inhaled corticosteroid medication, such as Advair, the use of this medication does not constitute systemic corticosteroid use as described in DC 6602. To the extent that the Veteran’s inhaled medication is considered steroidal, such treatment does not qualify as “systemic,” as “systemic” is defined as “pertaining to or affecting the body as a whole.” See DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 1888 (31st Ed. 2007). In light of this, systemic use requires the use of medications, in this case corticosteroids or immuno-suppressive drugs, taken orally (as a pill or tab) or parenterally (via route other than mouth, such as an injection) that treat the body as a whole, rather than administered via inhaler so as to target the respiratory tract. The Veteran’s use of inhaler treatments is not systemic as they target and treat the respiratory system only. [CONTINUED ON NEXT PAGE] For the foregoing reasons, the weight of the evidence is against the assignment of a disability rating in excess of 30 percent for the entire increased rating period on appeal. In reaching its conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 4.3, 4.7. JONATHAN B. KRAMER Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD T. Sherrard, Counsel