Citation Nr: 18143822 Decision Date: 10/22/18 Archive Date: 10/22/18 DOCKET NO. 16-33 122 DATE: October 22, 2018 ORDER Entitlement to a rating in excess of 30 percent for bronchitis is denied. Entitlement to a rating in excess of 70 percent for adjustment disorder with mixed anxiety and depressed mood is denied. FINDINGS OF FACT 1. The preponderance of the evidence shows that the Veteran’s bronchitis is not manifested by at least Forced Expiratory Volume at one second or a ration of Forced Expiratory Volume at one second to Forced Vital Capacity of between 40 and 55 percent of predicted value; a need for at least monthly visits to a physician for required care of exacerbations; or at least three courses of systemic corticosteroids per year at any time during the pendency of the appeal. 2. Throughout the appeal period, the Veteran’s adjustment disorder with mixed anxiety and depressed mood has not been productive of total occupational and social impairment. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 30 percent for bronchitis have not been met at any time during the pendency of the appeal. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6602. 2. The criteria for a rating in excess of 70 percent for adjustment disorder with mixed anxiety and depressed mood have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.7, 4.130, Diagnostic Code 9440. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from May 2000 to July 2008. These matters come before the Board of Veterans’ Appeals (Board) on appeal from a December 2015 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO). The Board notes that a June 2014 rating decision granted entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU), effective May 9, 2014. The Veteran has not expressed disagreement with the decision, and the matter is not before the Board. See Rice v. Shinseki, 22 Vet. App. 447 (2009). Increased Rating Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, “staged” ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). Here, the Veteran’s increased rating claim was filed on September 8, 2015. Thus, the appeal period is from that date, plus the one-year look-back period. 1. Entitlement to a rating in excess of 30 percent for bronchitis. The Veteran’s bronchitis is rated under 38 C.F.R. § 4.97, Diagnostic Code 6602 (for bronchial asthma), which provides for a 30 percent rating when the evidence shows Forced Expiratory Volume at one second (FEV-1) of 56 to 70 percent of predicated value; FEV-1/Forced Vital Capacity (FVC) of 56 to 70 percent of predicted value; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for FEV-1 of 40 to 55 percent of predicted value; FEV-1/FVC of 40 to 55 percent of predicted value; 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. The Board notes that 38 C.F.R. § 4.96 provides that when applying Diagnostic Codes 6600, 6603, 6604, 6825-6833 and 6840-6845, post-bronchodilator studies are required. It further provides circumstances where pre-bronchodilator values may be used, including when the results of pre-bronchodilator pulmonary function tests (PFT’s) are normal, when the examiner determines that post-bronchodilator studies should not be done and states why, or the post-bronchodilator results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96(d). The Board also notes that Veteran is not required to meet each of the stated criteria in order for an increased rating to be assigned. Rather, she need only meet one criterion because the criteria are listed in the alternative. See Johnson v. Brown, 7 Vet. App. 95 (1994). On February 2016 VA examination, pre-bronchodilator PFT’s showed FEV-1 of 66 percent of predicted value and FEV-1/FVC of 98 percent of predicted value. Post-bronchodilator PFT’s showed FEV-1 of 75 percent of predicted value and FEV-1/FVC of 98 percent of predicted value. The examiner noted that FEV-1 was the most accurate to reflect the Veteran’s level of disability. On September 2017 VA examination, pre-bronchodilator PFT’s showed FEV-1 of 87 percent of predicted value and FEV-1/FVC of 96 percent of predicted value; post-bronchodilator PFT’s were not performed because pre-bronchodilator results were normal. As these are the only PFT’s of record, the Board finds that the most probative evidence of record shows that the Veteran does not meet the criteria for a higher (60 percent) rating based on PFT’s because her FEV-1 and/or her FEV-1/FVC were at no point at least 55 percent or less of predicted value. 38 C.F.R. § 4.97. Moreover, the evidence of record does not show, and the Veteran does not otherwise assert, that her service-connected bronchitis causes a need for at least monthly visits to a physician for required care of exacerbations. See, e.g., February 2016 VA examination (noting less frequently than monthly physician visits). Hence, the criteria for an increased rating based on the frequency of physician treatment for exacerbations are not met. As to a higher rating due to intermittent courses of systemic corticosteroids, the Board finds that the preponderance of the evidence is against the claim. In this regard, the Board acknowledges that on February 2016 VA examination, the examiner opined the Veteran’s respiratory condition requires the use of oral or parenteral corticosteroid medications, requiring an oral inhaled steroid “probably” once per day. The examiner further indicated that the Veteran requires the use of intermittent oral bronchodilators, and her coughing symptoms are relieved using an albuterol inhaler. In contrast, September 2017 VA examiner noted the Veteran does not require the use of oral or parenteral corticosteroid medications, but does require intermittent use of inhaled medications. After a review of the evidence of record, the Board find the February 2016 VA examiner’s finding that the Veteran’s respiratory condition requires the use of oral or parenteral corticosteroid medications, requiring an oral inhaled steroid probably once per day, to have been in error, and that the preponderance of the evidence shows the Veteran’s service-connected bronchitis has at no point during the appeal period required the use of oral or parenteral corticosteroid medication. In this regard, post-service VA treatment records during the appeal period routinely note the Veteran’s active outpatient medications included an Albuterol inhaler on an as-needed basis. See, e.g., January 2017 VA treatment record; May 2017 VA treatment record; February 2018 VA treatment record. Notably, Albuterol belongs to a class of drugs known as bronchodilators, and does not qualify as a corticosteroid. See https://www.webmd.com (classifying Albuterol as a bronchodilator). The evidence of record does show treatment for intermittent exacerbations of respiratory symptomatology, but such has not required the usage of corticosteroids, much less three courses of corticosteroids over the course of a year. See, e.g., September 2016 VA treatment record (noting a complaint of an unproductive cough for seven days, wherein she was prescribed Tessalon Perle and Amoxicillin); January and February 2018 VA treatment records (noting a complaint of bronchitis-like symptoms for three weeks, including chest pain with coughing, and prescription of Benzonatate, Albuterol inhaler, and Cetirizine). For clarity Benzonatate is “a peripherally acting antitussive that reduces the cough reflex by anesthetizing the stretch receptors in the respiratory passages, lungs, and pleura.” DORLAND’S ILLUSTRATED MEDICAL DICTIONARY 209 (32nd ed. 2012). Tessalon Perle is a preparation of Benzonatate. Id. at 1884; see also https://www.webmd.com (showing the common brands of Benzonatate include Tessalon Perle). Amoxicillin is classified as an antibiotic. See https://www.webmd.com (defining amoxicillin as a penicillin-type antibiotic). Finally, Cetirizine is classified as an antihistamine. Id. Hence, based on the objective evidence of record, to include the September 2017 examination report, to the extent February 2016 VA examiner indicated the Veteran’s respiratory condition required the use of oral or parenteral corticosteroid medications, requiring an oral inhaled steroid probably once per day, such was erroneous, as at no point during the appeal period has the Veteran required corticosteroids for her service-connected bronchitis. Thus, to the extent the Veteran seeks an increased rating based on the use of intermittent courses of systemic corticosteroids, the Board finds that the preponderance of the evidence is against such criteria were met during the appeal period. Because the preponderance of the evidence is against a rating in excess of 30 percent at any time during the appeal period, the Board finds that there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). 2. Entitlement to a rating in excess of 70 percent for adjustment disorder with mixed anxiety and depressed mood. The Veteran’s adjustment disorder with mixed and anxiety and depressed mood is rated under 38 C.F.R. § 4.130, Diagnostic Code 9440 (the General Rating Formula for Mental Disorders (General Formula)), which provides for a 70 percent rating when the evidence shows occupational and social impairment with deficiencies in most areas, such as work, school, family relations, judgment, thinking, or mood, due to such symptoms as: suicidal ideation; obsessional rituals which interfere with routine activities; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression affecting the ability to function independently, appropriately and effectively; impaired impulse control (such as unprovoked irritability with periods of violence); spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances (including work or a worklike setting); and inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted when the evidence shows total occupational and social impairment, due to such symptoms as: gross impairment in thought processes or communication; persistent delusions or hallucinations; grossly inappropriate behavior; persistent danger of hurting self or others; intermittent inability to perform activities of daily living (including maintenance of minimal personal hygiene); disorientation to time or place; memory loss for names of close relatives, own occupation, or own name. Id. Ratings are assigned according to the manifestation of particular symptoms. However, the use of the term “such as” in 38 C.F.R. § 4.130 demonstrates that the symptoms after that phrase are not intended to constitute an exhaustive list, but rather are to serve as examples of the type and degree of the symptoms, or their effects, that would justify a particular rating. Mauerhan v. Principi, 16 Vet. App. 436 (2002). When determining the appropriate disability evaluation to assign, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). After a review of the evidence of record, the Board finds that the preponderance of the evidence is against a finding a higher rating of 100 percent is warranted at any point during the appeal period. The evidence of record does not show total social and occupational impairment. Gross impairment in thought processes or communication has not been shown on any mental status examination. See, e.g., February 2016 VA examination (showing thought processes were logical and linear throughout interview); September 2017 VA examination (showing her symptomatology does not include impaired judgment or abstract thinking, or gross impairment in thought processes or communication). There is no evidence of severe memory loss for names of close relatives, own occupation, or own name. See September 2017 VA examination (showing her symptoms did not include mild memory loss, or impairment of short or long-term memory, or memory loss for names of close relatives, own occupation, or own name). There is also no evidence of disorientation to time or place. There is no evidence of delusions or hallucinations. Grossly inappropriate behavior has not been shown. Additionally, there is no evidence of intermittent inability to perform activities of daily living. Id.; see also October 2016 VA treatment record (noting the Veteran was taking an online community college class in JAVA); September 2017 VA treatment record (noting the Veteran had started school at Cerritos College). While there is evidence of occasional thoughts of suicide supportive of a 70 percent rating, there is no evidence of a persistent danger of hurting self or others. See, e.g., February 2016 VA examination (denying current suicidal ideation and stating she is safe); August 2016 VA treatment record (denying suicidal or homicidal ideation currently or in recent months); May 2017 VA treatment record (denying suicidal or homicidal ideation); September 2017 VA examination (noting occasional thoughts of suicide, but denied having any plan or intent); February 2018 VA examination (denying suicidal or homicidal ideation). Accordingly, total occupational and social impairment has not been shown, and a 100 percent rating is not warranted for the Veteran’s adjustment disorder with mixed anxiety and depressed mood at any period during the appeal. Because the preponderance of the evidence is against a rating in excess of 70 percent at any time during the appeal period, the Board finds that there is no doubt to be resolved. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). S. BUSH Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J. Marley, Counsel