Citation Nr: 18149177 Decision Date: 11/08/18 Archive Date: 11/08/18 DOCKET NO. 16-37 370 DATE: November 8, 2018 ORDER Entitlement to an initial compensable rating for asthma is denied. Entitlement to an initial rating in excess of 10 percent for a chronic adjustment disorder is denied. FINDINGS OF FACT 1. The Veteran’s asthma manifested in Forced Expiratory Volume in one second (FEV-1) no worse than 102 percent and the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) no worse than 99 percent, nor did the Veteran use intermittent inhalational or oral bronchodilator therapy. 2. The Veteran’s chronic adjustment disorder was manifested by anxiety, intrusive memories, avoidance, middle insomnia, irritability, and hypervigilance; the disorder is not manifested by symptoms productive of occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. CONCLUSIONS OF LAW 1. The criteria for an initial compensable rating for asthma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.27, 4.96, 4.97, Diagnostic Code (DC) 6602. 2. An initial rating in excess of 10 percent for adjustment disorder is not warranted. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 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 November 2009 to November 2015. Increased Rating Disability evaluations are determined by the application of a schedule of ratings which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The Board should consider only those factors contained in the rating criteria. Massey v. Brown, 7 Vet. App. 204 (1994). Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. The Board will also consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). Where symptoms are capable of lay observation, a lay witness is competent to testify to a lack of symptoms prior to service, continuity of symptoms after in-service injury or disease, and receipt of medical treatment for such symptoms. Layno v. Brown, 6 Vet. App. 465, 469-71 (1994); see also 38 C.F.R. § 3.159(a)(2) (2018). The Board must also assess the credibility, and therefore the probative value, of the evidence of record in its whole. Owens v. Brown, 7 Vet. App. 429 (1995). In determining whether documents submitted by a Veteran are credible, the Board may consider internal consistency, facial plausibility, and consistency with other evidence submitted on behalf of the claimant. Caluza v. Brown, 7 Vet. App. 498 (1995). 1. Entitlement to an initial compensable rating for asthma. The Veteran is currently assigned a noncompensable rating for asthma. The Veteran asserts that her asthma is more severe than currently rated. Under Diagnostic Code 6602, bronchial asthma is rated 10 percent for FEV-1 of 71 to 80 percent of that predicted; or the ratio of FEV-1/FVC of 71 to 80 percent; or, intermittent inhalation or oral bronchodilator therapy. A 30 percent rating requires FEV-1 of 56 to 70 percent of that predicted; or the ratio FEV-1/FVC of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. For a 60 percent rating to be assigned, there must be 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 three per year) courses of systemic (oral or parenteral) corticosteroids. For a 100 percent rating, there must be FEV-1 less than 40 percent predicted; or FEV-1/FVC 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. 38 C.F.R. § 4.97, Diagnostic Code 6602. In service treatment records (STRs) dated from October 2014 through February 2015, medical providers described the Veteran’s asthma as mild, persistent, and exercise-induced. She was prescribed Advair, albuterol, and Claritin. On January 2016 VA examination, the examiner observed that the Veteran’s lungs and chest were normal and indicated that she had carried a diagnosis of asthma since 2010. The examiner noted that the Veteran was previously on inhalers including albuterol; however, she last used any medication for asthma in 2013. The Veteran stated that overall, she felt well except when exercising, when she experienced shortness of breath and coughing. She stated that she had not been exercising regularly. The examiner found that the Veteran’s asthma did not required the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. Also, the examiner found that the Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months. The examiner administered a PFT and indicated that pre-bronchodilator was FVC 105 percent; FEV-1 101 percent; FEV-1/FVC 96 percent; and DLCO 85 percent predicted. The post-bronchodilator was FVC 102 percent; FEV-1 102 percent; and FEV-1/FVC 99 percent predicted. The examiner indicated that the FEV-1 most accurately reflected the Veteran’s level of disability. On the July 2016 substantive appeal, the Veteran stated that at the time of her January 2016 VA examination, she was not experiencing asthma symptoms. She attached medical records dated in 2010 indicating that her FEV-1 was 75 percent. She further stated that although the examiner indicated that her asthma did not require medication, she believed that the examiner should have stated that she was not currently using any medication and that her symptoms were uncontrolled. Attached to the substantive appeal are STRs from July 2010 documenting results from a PFT. Based on the evidence of record, the Board finds that the Veteran is not entitled to a compensable rating for her asthma. The January 2016 PFT reflected a FEV-1 of 102 percent and FEV-1/FVC of 99 percent. This evidence is most consistent with a noncompensable rating under Diagnostic Code 6602. The evidence simply does not show that the Veteran experienced FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent predicted, or required treatment by intermittent inhalation or oral bronchodilator therapy. Thus, a compensable rating is not warranted. Although the Veteran was prescribed medication for inhalation or an oral bronchodilator as late as February 2015, the examiner indicated that the Veteran had not required treatment since 2013. Therefore, the Board finds that the Veteran did not require intermittent inhalation or oral bronchodilator therapy. The Veteran stated that her asthma required medication to be controlled and was manifested by FEV-1 of 75 percent. The medical evidence submitted by the Veteran were from 2010—more than five years prior to the current appeal period—and simply is not an indication of the current level of the Veteran’s disability. Therefore, the Board finds that these records are not probative to the Veteran’s claim for an increased rating. Accordingly, for the reasons discussed above, the Board finds that an initial compensable rating is not warranted for the Veteran’s asthma. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects that the Veteran’s symptomatology more closely approximates that contemplated by a noncompensable evaluation. Therefore, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim is denied. 2. Entitlement to an initial rating in excess of 10 percent for a chronic adjustment disorder. The Veteran’s chronic adjustment disorder is rated as 10 percent disabling pursuant to 38 C.F.R. § 4.130, DC 9440. The Veteran asserts that her chronic adjustment disorder is more severe than currently rated. The Veteran’s acquired psychiatric disorder is currently rated under the General Rating Formula for Mental Disorders. 38 C.F.R. § 4.130, DC 9440. Ratings are assigned according to the manifestation of particular symptoms. 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). Accordingly, the evidence considered in determining the level of impairment under § 4.130 is not restricted to the symptoms provided in the Diagnostic Code. VA must consider all symptoms of a claimant’s condition that affect the level of occupational and social impairment, including, if applicable, those identified in the American Psychiatric Association’s Diagnostic and Statistical Manual of Mental Disorders (DSM). When determining the appropriate disability evaluation to assign for psychiatric disabilities, however, the Board’s “primary consideration” is the Veteran’s symptoms. Vazquez-Claudio v. Shinseki, 713 F.3d 112, 118 (Fed. Cir. 2013). Under the General Rating Formula for Mental Disorders, a 10 percent rating is warranted for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress, or symptoms controlled by continuous medication. 38 C.F.R. § 4.130, DC 9440. A 30 percent rating is warranted for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily, with routine behavior, self-care, and conversation normal), due to such symptoms as: depressed mood, anxiety, suspiciousness, panic attacks (weekly or less often), chronic sleep impairment, mild memory loss (such as forgetting names, directions, recent events). Id. A 50 percent rating is warranted for occupational and social impairment with reduced reliability and productivity due to such symptoms as: flattened affect; circumstantial, circumlocutory or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short- and long-term memory (e.g. retention of only highly learned material, forgetting to complete tasks); impaired judgement; impaired abstract thinking; disturbances of motivation and mood; difficulty in establishing and maintaining effective work and social relationships. Id. A 70 percent rating is warranted for 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 work like setting); inability to establish and maintain effective relationships. Id. A 100 percent rating is warranted for 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 of names of close relatives, own occupation, or own name. Id. In December 2014, January 2015, and February 2015 service treatment records, the Veteran reported that she experienced intrusive nightmares, intrusive memories, avoidance, middle insomnia, irritability, and hypervigilance. The medical provider observed that the Veteran’s grooming was normal, and she displayed normal behavior; normal attitude; dysthymic, depressed, and anxious mood; affect congruent with mood; linear, logical, and goal directed thought processes; average insight and judgment; and normal impulse control. On a January 2016 VA examination, the examiner diagnosed the Veteran with adjustment disorder with anxious mood. The examiner concluded that the Veteran’s adjustment disorder is not severe enough either to interfere with occupational and social functioning or to require continuous medication. The examiner found that the Veteran experienced anxiety as well as recurrent, involuntary, and intrusive distressing memories of trauma; avoidance of or efforts to avoid external reminders that arouse distressing memories, thoughts, or feelings about or closely associated with traumatic events; and sleep disturbance. The examiner observed that the Veteran was alert. The Veteran reported that she experienced tearfulness, vigilance, sleep onset insomnia, and nightmares (not related to traumatic event). Based on all the evidence, the Board finds that the Veteran’s disability picture more nearly approximates the criteria for a disability rating of 10 percent. Thus, a rating in excess of 10 percent is not warranted. The symptoms exhibited by the Veteran include anxiety, intrusive nightmares, intrusive memories, avoidance, middle insomnia, irritability, and hypervigilance. The service treatment records and VA examination demonstrate that the Veteran was alert with normal behavior and attitude. Importantly, the January 2016 VA examiner specifically found the Veteran’s psychiatric symptomatology not to be sufficiently severe to interfere with her occupational and social functioning or to require continuous medication. The Board thus finds that the Veteran’s symptoms and their effects are contemplated within the criteria for a 10 percent rating. The Board does not find that the Veteran’s symptoms more nearly approximate a rating of 30 percent, as they have not been of such severity or frequency to result in occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks. The evidence of record shows that although the Veteran’s chronic adjustment disorder caused anxiety and depressed mood, she has an intact memory and does not experience suspiciousness or panic attacks. Further, as noted above, the January 2016 VA examiner specifically found the Veteran’s symptoms not to cause any interference with social or occupational functioning. Also, the Board does not find that the Veteran’s symptoms more nearly approximate a rating of 50 percent, as they have not been of such severity or frequency to result in occupational and social impairment with reduced reliability and productivity. The evidence of record show that the Veteran was alert with normal behavior and attitude. Further, the Board does not find that the Veteran’s symptoms more nearly approximate a rating of 70 percent, as they have not been of such severity or frequency to result in occupational and social impairment with deficiencies in most areas (such as work, family relations, judgment, thinking or mood). The evidence of record shows the Veteran was able to communicate effectively with treatment providers, had normal behavior, and was alert. In sum, there is insufficient evidence of such symptoms as flattened affect; circumstantial, circumlocutory, or stereotyped speech; panic attacks more than once a week; difficulty in understanding complex commands; impairment of short-and long-term memory; impaired judgement; impaired abstract thinking; obsessional rituals; speech intermittently illogical, obscure, or irrelevant; near-continuous panic or depression; impaired impulse control; spatial disorientation; neglect of personal appearance and hygiene; difficulty in adapting to stressful circumstances; or inability to establish and maintain effective relationships, nor are other psychiatric symptoms shown to have resulted in the required level of impairment. Vazquez-Claudio. Given the foregoing, the Board finds that the Veteran’s symptoms are not of such severity to approximate, or more nearly approximate, the criteria for a 50 or 70 percent evaluation and that the findings do not support a conclusion that her symptoms are productive of a “similar severity, frequency, and duration” as those required for a 50 or 70 percent evaluation. See 38 C.F.R. § 4.7; Vazquez-Claudio (38 C.F.R. § 4.130 requires not only the presence of certain symptoms but also that those symptoms have caused occupational and social impairment in most of the referenced areas). Finally, the Board finds that the Veteran’s disability picture does not approximate the criteria for a 100 percent rating because the Veteran does not exhibit total occupational and social impairment. As discussed above, the Veteran has consistently been found to exhibit alert and normal behavior, and the ability to perform self-care. Based on the evidence of record, the Board finds that the Veteran’s chronic adjustment disorder symptomatology most closely approximates the criteria for a 10 percent rating, and as such a rating in excess of 10 percent is not warranted. In reaching its decision, the Board has considered the benefit of the doubt rule. However, the preponderance of the evidence reflects that the Veteran’s symptomatology more closely approximates that contemplated by a 10 percent evaluation. Therefore, the benefit of the doubt rule does not apply. 38 U.S.C. § 5107(b) (2012); Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). The claim is denied. CAROLINE B. FLEMING Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD M. Thompson, Associate Counsel