Citation Nr: 18145228 Decision Date: 10/30/18 Archive Date: 10/26/18 DOCKET NO. 09-36 623 DATE: October 30, 2018 ORDER Entitlement to an initial rating in excess of 10 percent disabling before March 30, 2007, and in excess of 30 percent disabling thereafter for asthma is denied. Entitlement to total disability based on individual unemployability (TDIU) is denied. FINDINGS OF FACT 1. Prior to March 7, 1996, the Veteran’s asthma symptoms were not moderate with asthmatic attacks rather frequent (separated by only 10-14 days intervals) with moderate dyspnea on exertion between attacks. 2. From October 7, 1996 to March 30, 2007, the Veteran’s asthma did not exhibit Forced Expiratory Volume in one second (FEV-1) at 56 to 70 percent of predicted or; FEV-1/Forced Vital Capacity (FVC) at 56 to 70 percent; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication was not required. 3. Following March 30, 2007, the Veteran’s asthma was not severe, with frequent attacks; marked dyspnea on exertion between attacks with only temporary relief by medication was not shown, nor was more than light manual labor precluded; FEV-1 at 40 to 55 percent of predicted was not shown, nor was FEV-1/FVC at 40 to 55 percent; at least monthly visits to a physician for required care of exacerbations was not necessary, nor was there intermittent (at least three per year) course of systemic (oral or parenteral) corticosteroids provided. 4. The Veteran’s service-connected disabilities are not shown to prevent him from obtaining or retaining substantially gainful employment because the Veteran is gainfully employed per his own admission. CONCLUSIONS OF LAW 1. The criteria for entitlement to an initial rating in excess of 10 percent disabling prior to March 30, 2007, and in excess of 30 percent disabling thereafter have not been met. 38 U.S.C. § 1155, 5107 (2012); 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602 (1995) & (2017). 2. The criteria for a TDIU are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (West 2012); 38 C.F.R. §§ 3.102, 3.340, 3.341, 4.16, 4.18 (2017). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS In July 2013, the Board remanded the Veteran’s claim for further development. The agency of original jurisdiction (AOJ) substantially complied with the July 2013 remand directives, and no further development is necessary. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to an initial rating in excess of 10 percent disabling prior to March 30, 2007, and in excess of 30 percent disabling thereafter The Veteran contends that his asthma warrants a higher disability rating for the entire appeal period. As an initial matter the Board notes that this claim for an increased rating arises from the initial grant of service connection, effective from November 1994. However, the rating criteria for asthma changed in October 1996, and as such, the prior criteria are considered for the entire appeal period and the newer criteria applied after October 1996. Prior to October 7, 1996, bronchial asthma was rated as follows: a 10 percent rating was warranted if symptoms were mild with paroxysms of asthmatic type breathing (high pitched expiratory wheezing and dyspnea) occurring several times a year with no clinical findings between attacks; a 30 percent rating was warranted if symptoms were moderate with asthmatic attacks rather frequent (separated by only 10-14 days intervals) with moderate dyspnea on exertion between attacks; a 60 percent rating was warranted if symptoms were severe with frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication; more than lightly manual labor precluded; a 100 percent rating was warranted when symptoms were pronounced with asthmatic attacks very frequently with severe dyspnea on slight exertion between attacks and with marked loss of weight or other evidence of severe impairment of health. 38 C.F.R. § 4.97, DC 6602 (1995) Under the current DC 6602, when forced expiratory volume after 1 second (FEV-1) is 71 to 80 percent of predicted or; FEV-1/FVC (forced vital capacity) is 71 to 80 percent, or; intermittent inhalation or oral bronchodilator therapy, a 10 percent evaluation is warranted. 38 C.F.R. § 4.97, DC 6602 (2017). When FEV-1 is 56 to 70 percent of predicted or; FEV-1/FVC is 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication, a 30 percent evaluation is warranted. Id. When FEV-1 is 40 to 55 percent of predicted, or; FEV-1/FVC is 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; intermittent (at least three per year) course of systemic (oral or parenteral) corticosteroids, a 60 percent evaluation is warranted. Id. When the FEV-1 is less than 40 percent predicted, or FEV-1/FVC is 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 a 100 percent evaluation is warranted. Id. VAMC treatment records indicate that the Veteran was treated with Albuterol as needed from 1994 until May 25, 2006 when Formoterol was added as needed. A November 2004 Pulmonary Function Test (PFT) indicated the Veteran had an FEV1 at 89 percent of predicted with a minimal obstructive lung defect. A March 2007 VA treatment note indicates that the Veteran’s asthma was uncontrolled and he was started on a daily Flunisolide inhaler. A subsequent September 2007 treatment note indicated the asthma was now under control. Further, it is noted he did not use Formoterol and Flunisolide inhalers, however the prescription was continued. In June 2008 Board hearing, the Veteran testified that he was on allergy medicine but could not use an inhaler because of his hypertension. During October and December 2008 Respiratory examinations, the Veteran indicated he suffered from breathing problems since smoke exposure during the Persian Gulf War. Further, he reported wheezing and chest lock-ups whenever he was around petroleum products, smoke, oil based paint, fresh asphalt, and welding fumes. He also indicated that he originally took Albuterol but it did not help his symptoms and made his blood pressure high. No oral or parenteral steroid usage was noted and an October 2008 associated PFT test indicated possible mild obstruction; FEV1/FVC was at 74 percent of predicted. In a November 2010 hearing, the Veteran indicated that his asthma had worsened to the point where he had to move to higher elevations in the summer time to control symptoms and that he was not able to take Albuterol so his asthma symptoms remained uncontrolled. Further, he indicated bedridden periods but these did not necessitate ER visits or physician guidance. A November 2010 PFT results showed a pre-bronchodilator FEV-1 of 83 percent predicted and FEV-1/FVC of 94 percent predicted. In March 2007 correspondence, a VA examiner indicated that the medications prescribed due to his intolerance of Albuterol have been daily oral or inhalant anti-inflammatories or bronchodilators. An additional November 2012 PFT results showed a pre-bronchodilator FEV-1 of 83 percent predicted. In April 2018, the Veteran attended a VA Respiratory Conditions Disability Benefits Questionnaire (DBQ). The Veteran indicated that he used daily inhalational bronchodilator and anti-inflammatory therapy. The examiner noted that oxygen therapy and systemic corticosteroids were not required. Post-bronchodilator testing was not conducted because pre-bronchodilator results were normal. FEV-1 of 90 percent predicted and FEV-1/FVC of 101 percent predicted. Based on the foregoing evidence of record, the Board finds that a higher rating is not warranted for the entire appeal period. For the period prior to March 30, 2007, the record is silent for any indication that the Veteran’s symptoms were moderate with asthmatic attacks rather frequent (separated by only 10-14 days intervals) with moderate dyspnea on exertion between attacks, indicative of a higher 30 percent rating. Indeed, while the main evidence of record during this period, namely VAMC treatment records, show Albuterol treatment, there is no evidence that the Veteran suffered from dyspnea or frequent asthmatic attacks. Therefore, he does not meet the criteria for a higher 30 percent rating under the old DC criteria. Further, from October 7, 1996 to March 30, 2007, under current DC 6602 rating requirements, the evidence of record does not show FEV-1 56 to 70 percent of predicted or; FEV-1/FVC 56 to 70 percent of predicted, or; that daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication was taken. Indeed, during this period, the only PFT indicated the Veteran had an FEV1 at 89 percent of predicted, well below the percentage needed for a higher rating. In addition, while the record during this period indicates inhalational therapy, it was not daily in nature nor was there inhalational anti-inflammatory medication provided during this period. Further, following March 30, 2007, the evidence of record is silent for symptoms considered severe with frequent attacks of asthma (one or more attacks weekly), marked dyspnea on exertion between attacks with only temporary relief by medication; or more than lightly manual labor precluded, as required for a higher 60 percent rating under the previous DC 6602 criteria. The evidence of record during this period is silent for any indication that the Veteran suffered from frequent attacks or marked dyspnea. In addition, following March 30, 2007, the evidence of record is silent for tests reflecting FEV-1 at 40 to 55 percent of predicted, or; FEV-1/FVC is 40 to 55 percent, or; at least monthly visits to a physician for required care of exacerbations, or; that intermittent (at least three per year) course of systemic (oral or parenteral) corticosteroids was provided, indicative of a higher 60 percent rating under the current DC 6602 criteria. The record is silent during this period for care of exacerbations nor is there any evidence that the Veteran used corticosteroids. While the Board notes various PTF’s during this period, none of these tests showed an FEV-1 or FEV-1/FVC levels required for a 60 percent rating. Entitlement to TDIU Total disability ratings for compensation based upon individual unemployability may be assigned where the schedular rating is less than total, when it is found that the disabled person is unable to secure or follow a substantially gainful occupation as a result of a single service-connected disability ratable at 60 percent or more, or as a result of two or more disabilities, provided that at least one disability is ratable at 40 percent or more and there is sufficient additional service-connected disability to bring the combined rating to 70 percent or more. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a) (2017). Consideration may be given to the Veteran’s education, special training, and previous work experience, but not to age or to impairment caused by non-service-connected disabilities. See 38 C.F.R. §§ 3.341, 4.16, 4.19 (2017). The Veteran contends that his service-connected disabilities, specifically his PTSD, prevent him from maintaining gainful employment. In May 2013, he submitted a formal claim for a TDIU, alleging that his service-connected PTSD affected his full-time employment starting in 2011. The Veteran is service-connected for PTSD, rated 70 percent disabling; degenerative disc disease, chronic lumbosacral strain, rated 40 percent disabling; asthma, rated 30 percent disabling; and erectile dysfunction, rated noncompensable. His overall combined disability rating is 90 percent. The Veteran meets the schedular criteria for TDIU. On his May 2013 Application for Increased Compensation based on Unemployability, the Veteran indicated that his service-connected PTSD prevented him from working and that he became too disabled to work in 2011. He further noted that he completed 1 year of college education and last earned $21,000 a year while working for the United States Forest Service. In a Vocational Rehabilitation and Employment record, received December 2017, and dated April 2012, the Veteran indicated he was not currently employed. The record further noted that in August 2005, the Veteran completed his vocational rehabilitation program. In an April 2018 Report of General Information, when contacted to determine his correct address, the Veteran confirmed that he was stationed in California while working for the United States Department of Agriculture (USDA). Since the Veteran is employed on a full-time basis with the USDA, and there is no indication in the record, and the Veteran has not asserted, that this position represents anything less than substantially gainful employment, it cannot be reasonably concluded an award of TDIU benefits is warranted. . M. E. KILCOYNE Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD R.A. Elliott II, Associate Counsel