Citation Nr: 18148834 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-45 878 DATE: November 8, 2018 ORDER An initial 60 percent evaluation for asthma with sarcoidosis is granted, subject to the law and regulations governing payment of VA compensation benefits. FINDING OF FACT The Veteran’s asthma with sarcoidosis requires daily inhalational corticosteroid therapy for control of symptoms. CONCLUSION OF LAW The criteria for an initial 60 percent disability rating for asthma with sarcoidosis have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107(b) (2012); 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.96, 4.97 (2018) REASONS AND BASES FOR FINDING AND CONCLUSION VA’s duty to notify was satisfied by a September 2010 letter. 38 U.S.C. §§ 5102, 5103, 5103A (2012); 38 C.F.R. § 3.159 (2017); Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). With regard to the duty to assist, the Veteran’s service treatment records were obtained. The Veteran was afforded VA examinations in November 2011 and December 2014 to evaluate the severity of his respiratory disability. The VA examinations are adequate because they were based upon consideration of the Veteran’s pertinent medical history, his lay assertions and current complaints, and because they described his respiratory disability in detail sufficient to allow the Board to make a fully informed determination. Ardison v. Brown, 6 Vet. App. 405 (1994). Pulmonary function tests were conducted in conjunction with the examinations. The purpose behind the notice requirement has been satisfied because the Veteran has been afforded a meaningful opportunity to participate effectively in the processing of his claims, to include the opportunity to present pertinent evidence. 1. Entitlement to an increased evaluation for asthma with sarcoidosis, currently rated at 30 percent disabling. Disability evaluations are determined by the application of a schedule of ratings which is based, as far as can practically be determined, on the average impairment of earning capacity. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.1 (2018). Each service-connected disability is rated on the basis of specific criteria identified by diagnostic codes. Where there is a question as to which of two evaluations shall be applied, the higher evaluations will be assigned if the disability more closely approximates the criteria required for that rating. 38 C.F.R. § 4.7. Respiratory disorders are evaluated under Diagnostic Codes 6600 through 6817, and 6822 through 6847. Pursuant to 38 C.F.R. § 4.96(a), ratings under these Diagnostic Codes will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a) (2018). The Regional Office (RO) has rated the Veteran’s respiratory disorder at the 30 percent disability level under 38 C.F.R. § 4.97, Diagnostic Code 6602-6846, which corresponds to asthma, rated on the basis of sarcoidosis. Under Diagnostic Code 6602 for bronchial asthma, the VA rating schedule provides the following. A 10 percent evaluation is warranted for asthma for Forced Expiratory Volume in one second (FEV-1) of 71 to 80 percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A rating of 30 percent is warranted for asthma for 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. A 60 percent rating is warranted for an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating may be assigned for bronchial asthma with an FEV-1 of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97. Post-bronchodilator studies are required when pulmonary function tests (PFTs) are used for rating purposes, except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be performed and explains why. 38 C.F.R. § 4.96. When evaluating a disability based upon PFT results, post-bronchodilator results are used unless they are poorer than the pre-bronchodilator results. In those cases, the pre-bronchodilator results are used. Id. Under Diagnostic Code 6846, which contemplates sarcoidosis, a noncompensable rating (0 percent) will be assigned when the evidence of record shows sarcoidosis with chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment. A 30 percent rating will be assigned upon a showing of sarcoidosis with pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids. A 60 percent rating will be assigned when the evidence of record shows sarcoidosis with pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control. Finally, a 100 percent rating will be assigned when the evidence of record shows sarcoidosis with cor pulmonale or cardiac involvement with congestive heart failure, or progressive pulmonary disease with fever, night sweats, and weight loss despite treatment. See 38 C.F.R. § 4.97, Diagnostic Code 6846. Sarcoidosis may be rated based upon further, the active disease or residuals of chronic bronchitis as set forth in Diagnostic Code 6600, or as extra-pulmonary involvement under the specific body system involved. See 38 C.F.R. § 4.97, Diagnostic Code 6846. At the very outset, the Board addresses the legal argument advanced by the Veteran, stating that his understanding upon reading through the VA regulations was that VA had incorrectly combined the disability evaluation of service-connected asthma with sarcoidosis, in rating these respiratory conditions as a single service-connected disability. He maintained therefore that there should have been two separate 30 percent evaluations awarded, respectively, regarding each condition. The RO applied the law correctly here in that, when section 4.96 states that disability ratings under certain specific diagnostic codes (Diagnostic Codes 6819 and 6820; 6680 through 6817; or 6822 through 6847) “will not be combined with each other” this would indicate that under VA’s combined rating table (at 38 C.F.R. § 4.25) there cannot be two service-connected disabilities between the two conditions, and then later combined to represent a single rating. Instead according to the regulation, the predominant disability shown must be used for rating purposes. Based on the regulation that is applicable, it follows that the Board would have to choose one service-connected disability for VA disability rating purposes, while it is very much worth pointing out the actual medical findings on record do not outright clarify if there is one predominant disability. The 2011 VA examination stated that sarcoidosis and asthma were the disabilities present at the ratio of 60/40. The 2014 VA examination appeared to show a worsening of the asthma based on respiratory studies done. To accord consideration of the maximum potential benefit, the Board will consider whatever condition provides the opportunity for the highest applicable schedular rating. Turning to the evidence it consists of two VA examinations the first in 2011, the next in 2014. On examination November 2011, the medical history indicated that the Veteran was diagnosed with sarcoidosis in 1994 following bronchitis that did not resolve. He was then placed on steroids for one year, and now used inhaled steroids and long acting bronchodilator (Advair) and albuterol inhaler as needed. He also needed to take Allegra and Singular to reduce allergic exacerbation to lung disease. The Veteran related no involvement of other organ systems. The Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medications. Inhaled medications were required consisting of inhalational bronchodilator therapy and inhalational anti-inflammatory medication. There was no required the use of antibiotics. The Veteran did not require the use of outpatient oxygen therapy. There was a history of asthma attacks, with an attack or exacerbation in the previous 12 months. Physician visits for required care of exacerbations was less frequently than monthly. There were no episodes of respiratory failure. As for sarcoidosis there were persistent symptoms. These consisted of wheezing and air trapping. Shortness of breath with activities. Inability to walk more than two flights of stairs. Limited to walking for exercise and could not walk hills. Productive phlegm in the morning and exacerbation with temperature changes. The further notated symptoms and findings were chronic hilar adenopathy, stable lung infiltrates, pulmonary involvement. X-ray findings denotated bilateral pulmonary infiltrates. There was no ophthalmologic, renal, cardiac, neurologic or other organ system involvement due to sarcoidosis. A CT scan of the chest indicated the impression of: (1) evidence of prior granulomatous disease within the chest/lung most consistent with clinical history of sarcoidosis; there were many more nonspecific nodules seen on current examination; there was a small area of possible dilated bronchial/trapped secretions within the right lower lobe; there were no CT findings to suggest current interstitial disease of any significant emphysematous changes. (2) mild fatty infiltration of the liver. A pulmonary function test (PFT) had been done which demonstrated results of FEV-1 (Forced Expiratory Capacity) at 49 percent predicted pre-bronchodilator, 55 percent predicted post-bronchodilator; FVC (Forced Vital Capacity) at 73 percent predicted pre-bronchodilator, 75 percent predicted post-bronchodilator; FEV-1 / FVC at 53 percent, 57 percent respectively; DLCO (Diminished Lung Capacity Output) at 78 percent pre- and post-test. If the FEV-1 result were used to rate the disability, the 60 percent criteria would be met. However, the VA examiner specifically found that the FEV-1/FVC ratio most accurately reflected the Veteran’s current pulmonary function. When there is a disparity between the results of different PFTs such that the level of evaluation would differ depending on which test result was used, the Board will “…use the test result that the examiner states most accurately reflects the level of disability.” 38 C.F.R. § 4.96(d)(6). Therefore, the FEV-1/FVC result will be used to rate the disability. Based on the post-bronchodilator FEV-1/FVC ratio, the 30 percent criteria were met. On VA examination again in September 2014, the diagnoses again were sarcoidosis and asthma. The finding stated was that these two conditions were not etiologically linked. With regard to medical history, the Veteran’s condition had remained stable since the diagnosis and he continued to have annual pulmonary check-ups. He had been seen recently for exacerbation and follow up of asthma. He was on Advair, Allegra, Singulair, and albuterol. The Veteran used inhalational bronchodilator therapy daily. He had recently been prescribed the use of antibiotics, having used in July 2014 a “z pack” prescription for an exacerbation. The Veteran’s respiratory condition did not request the use of oral bronchodilators. The Veteran did not require outpatient oxygen therapy for his respiratory condition. The Veteran had not had any asthma attacks with episodes of respiratory failure in the previous 12 months. The frequency of physician visits for required care of exacerbations over the past 12 months was at least monthly. Regarding sarcoidosis, the findings and symptoms attributable to it were chronic hilar adenopathy, stable lung infiltrates, and pulmonary involvement. The stage as diagnosed by x-ray findings was Stage 3 – bilateral pulmonary infiltrates. The Veteran did not have any ophthalmologic, renal, cardiac, neurologic or other organ system involvement due to sarcoidosis. The Veteran’s respiratory condition impacted his ability to work, in the sense that there was some shortness of breath on minimum exertion, mostly a desk job but exacerbations had led missing days at work. A PFT report indicated that on testing and with adequate loops and effort, the test results were indicated as FEV-1 42 percent of predicted, FVC 70 percent predicted, FEV-1 / FVC 59 percent. This was defined as severe obstructive ventilatory impairment. If the FEV-1 result were used, the 60 percent criteria would be met. However, the VA examiner specifically found that the FEV-1/FVC result most accurately represented the severity of the disability. Therefore, it will be used to rate the disability. 38 C.F.R. § 4.96(d)(6). The FEV-1/FVC ratio of 59 percent falls within the 30 percent criteria. A rating higher than 30 percent cannot be granted based on PFT results listed in Diagnostic Code 6600, 6602, or 6846. The Veteran’s respiratory disability, when rated using the FEV-1/FVC ratio, does not fall within the 60 or 100 percent criteria. As noted above, the VA examiners specifically found that the FEV-1/FVC ratio most accurately reflected his disability. Were the condition to be rated on the basis of sarcoidosis, incidentally, that would result in the same 30 percent rating because Diagnostic Code 6846 includes by incorporation the rating criteria for bronchitis under Diagnostic Code 6600, which rating formula itself is substantially similar to the above formula for asthma, specifically for the numerical portion. Specifically, in regard to asthma, there were no incidents of respiratory failure, or requirement of taking systemic high dose corticosteroids or immunosuppressive medications via oral or parenteral administration. Also, with reference to sarcoidosis under Diagnostic Code 6846, the September 2014 examiner found that there was pulmonary involvement. The examiner noted that the Veteran used inhalational Advair daily. Advair is a combination of two medications: fluticasone and salmeterol. Fluticasone is a corticosteroid. Using Advair daily approximates needing systemic high dose corticosteroids for control. Therefore, a 60 percent rating under Diagnostic Code 6846 is granted. “[I]t is the information in a medical opinion, and not the date the medical opinion [that] was provided that is relevant when assigning an effective date.” Tatum v. Shinseki, 24 Vet. App. 139, 145 (2010). In this case, the Board will not stage the rating and make the 60 percent rating effective on the date of the September 2014 VA examination because there is evidence in the Veteran’s service treatment records that he took Advair daily. A 100 percent rating is not warranted under Diagnostic Code 6846 because there is no evidence of cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats and weight loss despite treatment. Additionally, a 100 percent rating is not warranted under Diagnostic Code 6602 for asthma because the criteria requires “daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications.” 38 C.F.R. § 4.97. As noted by the VA examiner, Advair is administered via inhalation. It is not administered orally or parenterally. “Parenteral” is defined as “not through the alimentary canal, but rather by injection through some other route, such as subcutaneous, intramuscular, intraorbital, intracapsular, intraspinal, intrasternal, or intravenous.” Dorland’s Illustrated Medical Dictionary, 1382 (32nd ed. 2012). Medication administered orally means taken via mouth. Lastly, a 100 percent rating is not warranted under Diagnostic Code 6600 because the record does not show an FEV-1 less than 40 percent predicted, or; FEV-1/FVC less than 40 percent, or; DLCO(SB) less than 40 percent predicted, or; maximum exercise capacity less than 15mg/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale, or; right ventricular hypertrophy, or; pulmonary hypertension, or; episodes of acute respiratory failure, or ; requires constant outpatient oxygen therapy. Accordingly, an initial 60 percent disability evaluation is granted. D. Martz Ames Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Jason A. Lyons