Citation Nr: 18146576 Decision Date: 10/31/18 Archive Date: 10/31/18 DOCKET NO. 15-26 398 DATE: October 31, 2018 ORDER A Separate rating for service-connected obstructive sleep apnea and asthma is denied.   FINDING OF FACT The Veteran’s predominant respiratory condition is his obstructive sleep apnea, which has not caused respiratory failure with carbon dioxide retention or cor pulmonale, or led to a tracheotomy. CONCLUSION OF LAW Separate disability ratings for obstructive sleep apnea and asthma are not allowed. 38 U.S.C. § 1155, 5107; 38 C.F.R. §§ 3.102, 4.3, 4.7, 4.14, 4.96, 4.97, Diagnostic Codes (DCs) 6602 and 6847. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from March 1988 to July 1988, January 1989 to December 1991, October 1993 to March 1997, May 1997 to November 1997, and August 2002 to August 2014. The case is on appeal from a September 2014 rating decision. The Board has limited its discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008). A Separate rating for service-connected obstructive sleep apnea and asthma. The Veteran is currently assigned a singe 50 percent rating for obstructive sleep apnea with asthma. He contends that he is entitled to separate ratings for obstructive sleep apnea, as well as asthma. The Veteran’s disability has been rated under the provisions of DC 6847 for obstructive sleep apnea throughout the appeal period. Legal Criteria 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 that VA is to 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). Under the bronchial asthma provisions DC 6602, a 30 percent rating is warranted where forced expiratory volume in one second (FEV-1) is 56- to 70 percent of predicted value; or if the ratio of FEV-1 to forced vital capacity (FEV1/FVC) is 56 to 70 percent; or where there is daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. 38 C.F.R. § 4.97, DC 6602. A 60 percent rating is assigned when FEV-1 is 40 to 55 percent of predicted value; or where FEV1/FVC is 40 to 55 percent; or if there are at least monthly visits to a physician for required care of exacerbations; or where is intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The highest rating of 100 percent is not warranted unless FEV-1 is less than 40 percent predicted; or FEV-1/FVC is less than 40 percent; or there is more than one attack per week with episodes of respiratory failure; or there is a requirement for daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. Under DC 6847, which provides for evaluation of obstructive sleep apnea, a 50 percent rating contemplates sleep apnea that requires use of a breathing assistance device such as a CPAP machine; and the highest rating of 100 percent is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or where a tracheostomy (tracheotomy) is required. 38 C.F.R. § 4.97, DC 6847. Analysis Schedular Rating As noted, a single rating will be assigned under the DC which reflects the predominant disability and the Board finds that the predominant disability based on the evidence overall is obstructive sleep apnea. Although a lower rated disability can theoretically be the predominant disability, the Board does not find that this is the case here. See Urban, 29 Vet. App. at 90. A May 2010 service medical record showed the Veteran underwent a respiratory examination in which the examiner diagnosed the Veteran with dyspnea, including a history of bronchial asthma and mild restrictive lung disease. He indicated that a pulmonary function test (PFT) revealed FVC of 3.49 liters, which is 70 percent predicted, and FEV-1 of 2.87 liters which is 71 percent predicted. An October 2012 medical record indicated the Veteran’s asthma appeared to be “reasonably stable controlled.” The examiner indicated a PFT test revealed FVC of 3.17 liters or 76 percent predicted, as well as FEV-1 of 3.2 liters or 80 percent predicted value. With regard to sleep apnea, he noted the Veteran has a history of sleep apnea and required a CPAP machine for approximately one year. The Veteran was afforded a March 2013 VA examination in which the examiner diagnosed the Veteran with asthma which required Advair and Albuterol inhalers. She indicated his asthma causes clinical visits for exacerbations several times per year and acute asthma attacks less than once per year. She noted the May 2010 PFT with results of FVC of 70 percent and FEV-1 of 71 percent. She also stated the Veteran was diagnosed with obstructive sleep apnea, including ongoing use of a CPAP machine to assist sleep. The Board notes in a March 2013 psychiatric examination, the Veteran reported that he has woken up every night for years, including sometimes gasping for air. He stated he was prescribed a CPAP machine which tends to help. Near the end of the Veteran’s separation from service, a January 2014 VA medical record indicated the Veteran denied asthma symptoms or shortness of breath and continued to take Advair for his asthma. Additionally, in the January 2014 record, the Veteran reported difficulty sleeping and that most nights he wakes up once, attributing it to apneic events. Further, a December 2016 VA treatment record indicated the Veteran has required a CPAP machine since 2011. The Veteran reported problems with initiating and maintaining sleep, and that he sleeps approximately five hours per night. The Veteran asserts in the July 2015 substantive appeal that he should be awarded a 50 percent rating for sleep apnea and a separate 30 percent rating for asthma. He stated he experiences symptomology from his asthma that is not specifically listed in the criteria for sleep apnea. He noted DC 6847 does not adequately address his asthma symptoms, such as daytime breathing limitations and required breathing treatments. The Board finds that the predominant disability is obstructive sleep apnea. The Board acknowledges the Veteran’s contentions; however, it 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”). The Veteran has required a CPAP machine and has consistent difficulty sleeping with apneic events. His asthma symptoms are not as severe as his sleep apnea, and therefore, the predominant disability is determined to be obstructive sleep apnea. Asthma need not be examined further. As to the severity of the Veteran’s service-connected sleep apnea, the VA examination and other medical records show that a CPAP is required for breathing assistance. This level of severity is contemplated by the initially assigned 50 percent rating under DC 6847. The Veteran has 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 a disability rating higher than 50 percent have not been met. 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 for obstructive sleep apnea. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3. Extraschedular Consideration In the July 2015 substantive appeal, the Veteran indicated that he experiences symptomology from his asthma that is not specifically listed in the criteria for sleep apnea. He stated, therefore, that the sleep apnea DC is inadequate and an extraschedular rating applies based on the collective impact of the multiple disabilities. The Board has considered the representative’s statement regarding the possibility of an extra-schedular rating pursuant to Johnson v. McDonald, 762 F.3d 1362 (Fed. Cir. 2014), due to the combined effect of the Veteran’s service-connected disabilities. However, VA regulation no longer allows for extra-schedular consideration for combined effects of service-connected disabilities. See 82 Fed. Reg. 57830 (Dec. 8, 2017) (“An extra-schedular evaluation may not be based on the combined effect of more than one service-connected disability.”). (Continued on the next page)   Further, the December 2017 rule applies to all applications for benefits that are received by VA on or after January 8, 2018 or that were pending before VA, the United States Court of Appeals for Veterans Claims (Court), or the United States Court of Appeals for the Federal Circuit (Federal Circuit) on January 8, 2018. The Court recently held the revised 38 C.F.R. § 3.321(b), which eliminates the possibility of extraschedular consideration based on the collective impact of multiple service-connected disabilities, can be applied to claims that were pending before VA on January 8, 2018, because doing so does not have an impermissible retroactive effect. Thurlow v. Wilkie, No. 16-3633 (U.S. Vet. App. Sep. 12, 2018). Thus, an extraschedular rating is not warranted on this basis. RYAN T. KESSEL Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD B. Isaacs, Associate Counsel