Citation Nr: 18149792 Decision Date: 11/13/18 Archive Date: 11/13/18 DOCKET NO. 16-20 978 DATE: November 13, 2018 ORDER The application to reopen the previously denied claim for service connection for tinnitus is denied. Entitlement to service connection for unspecified anxiety disorder is granted. Entitlement to service connection for migraine headaches is granted. Entitlement to a compensable rating for service-connected hypertension is denied. Entitlement to an increased rating of 60 percent, but no higher, for service-connected asthma is granted, subject to controlling regulations governing the payment of monetary awards. REMANDED Entitlement to a total disability rating based on individual unemployability (TDIU) due to service-connected disabilities on an extraschedular basis, pursuant to 38 C.F.R. § 4.16(b). FINDINGS OF FACT 1. In a February 2005 rating decision, the RO denied the Veteran’s claim for entitlement to service connection for tinnitus. The Veteran neither appealed this decision nor submitted new and material evidence within the one-year appeal period. 2. Evidence received since the February 2005 rating decision is cumulative and does not raise a reasonable possibility of substantiating the claim of service connection for tinnitus. 3. The evidence is at least evenly balanced as to whether the Veteran’s unspecified anxiety disorder is related to his active military service. 4. The evidence is at least evenly balanced as to whether the Veteran’s migraine headaches are related to his active military service. 5. The Veteran’s service-connected hypertension requires the regular use of prescribed medication with a history of increased blood pressure readings; however, symptoms have not more nearly approximated predominant diastolic blood pressure of 100 or more, or a predominant systolic blood pressure of 160 or more. 6. The Veteran’s forced expiratory volume (FEV-1)/forced vital capacity (FVC) measurement was not 55 percent or less of predicted value and did not result in at least monthly visits to a physician for required care of exacerbations, or more than one asthma attach with respiratory failure; however, his asthma was treated with three intermittent courses of systemic corticosteroids or immunosuppressive medications in a twelve-month period. CONCLUSIONS OF LAW 1. The February 2005 rating decision that denied the claim for entitlement to service connection for tinnitus is final. 38 U.S.C. § 7105(c) (2012); 38 C.F.R. §§ 3.156(b), 20.1103 (2018). 2. The additional evidence received since the February 2005 decision is not new and material, and the claim of service connection for tinnitus is not reopened. 38 U.S.C. § 5108; 38 C.F.R. § 3.156. 3. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for unspecified anxiety disorder are met. 38 U.S.C. §§ 1110, 1111, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 4. With reasonable doubt resolved in favor of the Veteran, the criteria for entitlement to service connection for migraine headaches are met. 38 U.S.C. §§ 1110, 1111, 1154, 5107 (2012); 38 C.F.R. §§ 3.102, 3.303, 3.304 (2018). 5. The criteria for a compensable rating for service-connected hypertension have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.104, Diagnostic Code (DC) 7101 (2018). 6. The criteria for an increased rating of 60 percent, but no higher, for service-connected asthma have been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.97, DC 6602 (2018). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from May 2000 to January 2004. This appeal comes before the Board of Veterans’ Appeals (Board) on appeal from July 2009 and June 2015 rating decisions by the Los Angeles, California Regional Office (RO) of the Department of Veterans Affairs (VA). The July 2009 rating decision denied an increased rating for service-connected asthma and denied service connection for migraine headaches due to jet fuel exposure. The June 2015 rating decision denied an application to reopen the previously denied claim for service connection for tinnitus, denied service connection for depression, and continued a noncompensable evaluation for service-connected hypertension. The Veteran timely filed a notice of disagreement (NOD) and substantive appeal via a VA Form 9, respectively. Service Connection Service connection will be granted if the evidence demonstrates that current disability resulted from a disease or injury incurred in active military service. 38 U.S.C. § 1110, 1131; 38 C.F.R. § 3.303(a). Establishing service connection generally requires competent evidence of three things: (1) current disability; (2) in-service incurrence of a disease or injury; and (3) a causal relationship between the current disability and the in-service disease or injury. Saunders v. Wilkie, 886 F.3d 1356, 1361 (Fed. Cir. 2018). Consistent with this framework, service connection is warranted for a disease first diagnosed after discharge when all the evidence, including that pertinent to service, establishes that the disease was incurred in service. 38 C.F.R. § 3.303(d). 1. Whether new and material evidence has been submitted to reopen a claim of entitlement to service connection for tinnitus Generally, a claim that has been denied in an unappealed RO decision may not thereafter be reopened and allowed. 38 U.S.C. § 7105 (c). The exception to this rule is 38 U.S.C. § 5108, which provides that if new and material evidence is presented or secured with respect to a claim that has been disallowed, the Secretary shall reopen the claim and review the former disposition of the claim. New evidence is defined as existing evidence not previously submitted to agency decision makers. Material evidence means evidence that, by itself or when considered with previous evidence of record, relates to an unestablished fact necessary to substantiate the claim. New and material evidence can be neither cumulative nor redundant of the evidence previously of record, and must raise a reasonable possibility of substantiating the claim. 38 C.F.R. § 3.156 (a). There is a low threshold for determining whether evidence raises a reasonable possibility of substantiating a claim. Shade v. Shinseki, 24 Vet. App. 110, 117 (2010). For the purpose of establishing whether new and material evidence has been submitted, the credibility of the evidence is presumed unless the evidence is inherently incredible or consists of statements that are beyond the competence of the person or persons making them. See Justus v. Principi, 3 Vet. App. 510, 513 (1992). The Veteran’s claim for entitlement to service connection for tinnitus was previously denied in a February 2005 rating decision. The pertinent evidence then of record consisted of service treatment records (STRs), military personnel records, and VA treatment records through 2004. Additionally, an October 2004 general medical VA examination noted the Veteran’s reports of occasional tinnitus about every month and a half lasting for about 10 seconds. The examiner indicated it was “certainly not very significant.” Somewhat inconsistent with that report, the Veteran told a VA audiologist the following month that he had tinnitus for a few minutes every other week. The examiner found that the reported tinnitus was likely a variant of normal and not likely related to service. Service connection was denied on the basis that there was no medical evidence showing a current disability. Additional STRs were subsequently received and the RO reconsidered the claim, but confirmed and continued the denial of service connection for tinnitus in a December 2007 rating decision. Although notified of the December 2007 denial in a December 2007 notification letter, the Veteran did not appeal that decision, nor did he submit new and material evidence within the remaining appeal period. Accordingly, the February 2005 and December 2007 denials are final as to the evidence then of record, and are not subject to revision the same factual basis. See 38 U.S.C. § 7105(c); Bond v. Shinseki, 659 F.3d 1362 (Fed. Cir. 2011); 38 C.F.R. §§ 3.104, 3.156(a)-(b), 20.302, 20.1103. Relevant evidence received more than one year since the December 2007 rating decision includes VA treatment records. Unfortunately, this new evidence is cumulative of evidence of record at the time of the December 2007 rating decision. The VA treatment records do not relate to an unestablished fact necessary to substantiate the merits of the claims. To the contrary, the VA treatment records prior to and since the December 2007 rating decision do not reflect consistent tinnitus. There is no new and material evidence, such as a medical diagnosis of noise-induced tinnitus related to service, which would either relate to the basis for the prior denial or that could reasonably substantiate the claim were the claim to be reopened. Moreover, although the Veteran’s attorney submitted a notice of disagreement and a substantive appeal with respect to this claim, he identified no error of law or fact in the determination being appealed nor did he offer any substantive argument on behalf of the appellant or present or identify any evidence which would tend to satisfy the new and material element. Absent any specific argument from the Veteran's attorney, the Board is unable to discern the basis for his appeal of this issue. Moreover, counsel are expected to present those arguments they deem material and relevant to their clients' cases. See Barela v. Peake, 22 Vet. App. 155, 159 (2008) (noting that an attorney has the ethical duty to educate himself about the relevant law, analyze the factual and legal elements of a case, adequately prepare, and zealously represent his client's interest) Mr. Woods is reminded of his ethical obligations as an attorney, to include not bringing or defending a proceeding unless there is a basis in law and fact for doing so that is not frivolous, which includes a good faith argument for an extension, modification, or reversal of existing law. See e.g. MODEL RULES OF PROF'L CONDUCT R. 1.1. Thus, the application to reopen the previously denied claim for entitlement to service connection for tinnitus remains denied. 2. Entitlement to service connection for unspecified anxiety disorder STRs reflect that in January 2001, a Health Enrollment Assessment Review questionnaire notes that the Veteran reported anxiety symptoms and familial/marital problems. In an April 2002 health questionnaire, the Veteran marked “yes” to the question of whether or not he had a high stress job or lifestyle. In an April 2002 treatment note, a medical professional noted that the Veteran’s job stress was manageable and no referral was needed. The enlistment and separation examination reports reflect a normal psychiatric clinical evaluation. Post-service, VA treatment records from 2009 and 2010 reflect that the Veteran had depression/anxiety. In an April 2017 statement, the Veteran’s friend reported that they met in service when the Veteran began to have asthma-related issues. He reported that the Veteran was extremely active and outgoing prior to these issues but became withdrawn, sad, and depressed when he could not do the things that he once was able to. He reported that the Veteran’s mental health issues continued following separation from service. An April 2017 statement from the Veteran’s wife indicated that the Veteran began to exhibit mental health issues in service. She reported that prior to service, he was energetic, vibrant, and active. She reported that the Veteran developed asthma and as a result, he began to display mental health symptoms such as anxiety, depression, and difficulty sleeping. A November 2017 Disability Benefits Questionnaire (DBQ) report reflects that the Veteran has a diagnosis of unspecified anxiety disorder. The psychologist opined that the Veteran suffers from unspecified anxiety disorder that more likely than not began in military service, continuous uninterrupted to the present, and is aggravated by his asthma, rhinitis, and hypertension. She reported that in fact, some of the complaints seen in the military STRs could be attributed as a manifestation of the unspecified anxiety disorder. The psychologist included a wealth of medical studies and articles regarding depression and its association with the military as well as depression and anxiety, generally. Upon review of the evidence of record, the Board finds that service connection for unspecified anxiety disorder is warranted. Initially, the Board finds that the Veteran has a current diagnosis of unspecified anxiety disorder as noted on the November 2017 DBQ report. The only medical opinion of record establishes a nexus between the Veteran’s unspecified anxiety disorder and his active military service. Moreover, the psychologist who provided this opinion explained the reasons for the opinion based on an accurate characterization of the evidence. The opinion is therefore entitled to substantial probative weight. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning). Moreover, the statements from the Veteran’s friend and wife support the psychologist’s opinion as they both knew the Veteran prior to his asthma-related issues and saw the mental health changes in him following his asthma diagnosis. Additionally, there are no contrary medical opinions of record as to the etiology of the Veteran’s unspecified anxiety disorder. Finally, the medical journal articles submitted by the Veteran’s psychologist supports the Veteran’s theory of entitlement. See Sacks v. West, 11 Vet. App. 314, 317 (1998) (medical article and treatise evidence “can provide important support when combined with an opinion of a medical professional”). For the above reasons, the evidence is at least evenly balanced as to whether the Veteran’s unspecified anxiety disorder is related to his active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for unspecified anxiety disorder is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. 3. Entitlement to service connection for migraine headaches STRs reflect that the Veteran reported complaints of headaches from 2001 to 2003. Post-service, an October 2004 general VA examination report notes that the Veteran would occasionally take Tylenol for his headaches. In 2009, numerous statements were submitted from friends and family on behalf of the Veteran where they reported that the Veteran had headaches. Additionally, the Veteran reported that he had headaches that began in service which he believed were a result of jet fuel exposure. He submitted an article linking jet fuel exposure and headaches. An October 2014 VA examination report notes that the Veteran was diagnosed with migraine with migraine variants in 2009. During the examination, the Veteran reported that he started having headaches in late 2003, which he thought were just consistent headaches. He reported that he was under a lot of stress and he thought they were just tension and stress headaches. He denied a history of headaches prior to 2003. The examiner opined that the condition claimed was less likely than not (less than 50 percent probability) incurred in or caused by the claimed in-service injury, event, or illness. As rationale, the examiner reported that medical literature review did not show long-term neurological effects, namely headaches, as sequelae of jet fuel exposure. Additionally, the examiner reported that evidence of record does not establish that the Veteran’s current headaches started in the military. She also opined that the claimed condition which clearly and unmistakably existed prior to service, was aggravated beyond its natural progression by an in-service event, injury, or illness. As rationale, she reported that there were no reports of worsening of the Veteran’s headaches in the STRs. She reported that the Veteran’s VA treatment records were absent for post-military treatment of headaches from 2004-2009. Additionally, she reported that his history of headaches was not worsened by his military exposure to jet fuel. She stated that medical research only showed headaches as possible acute/short-term effects of jet fuel exposure. She concluded that the Veteran’s STRs were also absent for complaints of headaches due to jet fuel exposure. An October 2017 Disability Benefits Questionnaire (DBQ) report reflects a diagnosis of migraine with migraine variants. During the examination, the Veteran reported having headaches for decades, stating they began during military service and have continued from his time in service to the present. She reported that military treatment records are positive for numerous mentions of headaches. She opined that his migraine headaches as likely as not began during his military enlistment and have continued uninterrupted to present. She also reported that it is also more likely than not that his service connected asthma and hypertension have contributed materially and substantially to the regular onset and permanent aggravation of his migraines, which significantly hinders the Veteran’s ability to maintain gainful work in any employment endeavors. As part of her rationale, she included medical research and treatises indicating a connection with headaches and jet fuel exposure, headaches and asthma, and headaches and hypertension. VA treatment records reflect continued treatment for migraine headaches. Upon review of the evidence of record, the Board finds that service connection for migraines is warranted. Initially, the Board finds that the Veteran has a current diagnosis of migraine with migraine variants as indicated in the October 2014 and October 2017 examination reports. The October 2014 VA medical opinion reflects a lack of a relationship between the Veteran’s current migraines and service. However, it appears that the examiner did not take into consideration the Veteran’s statements; specifically, that he was experienced headaches in service. Moreover, the examiner did not conduct a proper review of the claims file as STRs reflect complaint of headaches and 2004 October VA examination report notes that the Veteran took Tylenol for his headaches. Finally, she opined that the Veteran’s migraines preexisted service and were aggravated by service; however, her rationale did not support this opinion. Thus, the opinion is inadequate. Buchanan v. Nicholson, 451 F.3d 1331, 1336 (Fed Cir 2006) (noting that VA’s examiner’s opinion, which relied on the absence of contemporaneous medical evidence, “failed to consider whether the lay statements presented sufficient evidence of the etiology of [the veteran’s] disability such that his claim for service connection could be proven without contemporaneous medical evidence”). In contrast to the above opinion, the October 2017 positive medical opinion was based on the Veteran’s statements, examinations, and medical treatise—an entire review of the Veteran’s medical history. See Nieves-Rodriguez v. Peake, 22 Vet. App. 295, 304 (2008) (most of the probative value of a medical opinion comes from its reasoning; threshold considerations are whether the person opining is suitably qualified and sufficiently informed). To be adequate, an examination must take into account an accurate history. Nieves-Rodriguez v. Nicholson, 22 Vet. App. 295 (2008). The Board notes that, to the extent that the opinion relied, in part, on the service history provided by the veteran, such reliance only warrants the discounting of a medical opinion in certain circumstances, such as when the opinion is contradicted by other evidence in the record or when the Board rejects the statements of the veteran. See Coburn v. Nicholson, 19 Vet. App. 427, 432-433 (2006); Kowalski v. Nicholson, 19 Vet. App. 171, 179 (2006). Here, the Board has found the Veteran’s statements to be credible. Thus, the Board finds this opinion to be probative. Given the adequate positive medical nexus opinion and competent, credible lay statements of the Veteran, the evidence is at least evenly balanced as to whether the Veteran’s migraines are related to his active military service. As the reasonable doubt created by this relative equipoise in the evidence must be resolved in favor of the Veteran, entitlement to service connection for migraines is warranted. 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Increased Rating Disability evaluations are determined by the application of VA’s Schedule for Rating Disabilities, which is based on average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two evaluations 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. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is reviewed when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1991). In general, when an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, staged ratings are also appropriate in any increased rating claim in which distinct time periods with different ratable symptoms can be identified. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in this decision is, therefore, undertaken with consideration of the possibility that different ratings may be warranted for different time periods. 4. Entitlement to an increased rating for service-connected hypertension The Veteran’s hypertension has been assigned a noncompensable evaluation under 38 C.F.R. § 4.104, DC 7101. Under that DC, a 10 percent evaluation is warranted where diastolic blood pressure is predominantly 100 or more, or systolic blood pressure is predominantly 160 or more, or when an individual with a history of diastolic blood pressure predominantly 100 or more requires continuous medication for control. A 20 percent evaluation is warranted where diastolic blood pressure is predominantly 110 or more, or systolic blood pressure is predominantly 200 or more. A 40 percent evaluation is warranted where diastolic pressure is predominantly 120 or more, and a 60 percent evaluation is warranted where diastolic blood pressure is predominantly 130 or more. 38 C.F.R. § 4.104. The Veteran contends that he is entitled to a compensable rating for his service-connected hypertension. A May 2015 DBQ report reflects that the Veteran’s treatment plan included taking medication for his hypertension. However, the examiner reported that the Veteran did not have a history of a diastolic blood pressure evaluation to predominantly 100 or more. At the time of the evaluation, the Veteran’s blood pressure reading was recorded as 129/77, 120/76, and 121/79. VA treatment records submitted in connection with this claim did not have any blood pressure readings recorded; however, they note that the Veteran is receipt of medication for his hypertension. VA outpatient treatment notes reflect that the Veteran’s hypertension was in “good control.” Upon review of the evidence of record, the Board finds that a compensable rating is not warranted. While the Veteran is on continuous medication to control his hypertension, the evidence of record does not demonstrate any findings of a history of diastolic pressure of 100 or more, or systolic pressure of 160 or more. See McCarroll v. McDonald, 28 Vet. App. 276-77 (2016) (Board may properly consider ameliorative effects of blood pressure medication). Additionally, an October 2004 VA general medical examination report, an October 2004 VA outpatient treatment record, and a February 2010 VA neurology follow-up show a history of diastolic pressure of predominantly less than 100. Finally, the October 2004 VA examination report noted that the Veteran was not on antihypertensive medication at that time, and, as noted above, his diastolic pressure was predominantly less than 100. As such, the criteria for a 10 percent, or higher, evaluation are not met at any time during the appeal period. As to consideration of referral for an extraschedular rating, the Veteran has not contended, and the evidence does not reflect, that he has experienced symptoms outside of those listed in the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366, 369-70 (2017) (the Board is not obligated to analyze whether remand for referral for extraschedular consideration is warranted if “§ 3.321(b)(1) [is] neither specifically sought by [the claimant] nor reasonably raised by the facts found by the Board” (quoting Dingess v. Nicholson, 19 Vet. App. 473, 499 (2006), aff'd, 226 Fed. Appx. 1004 (Fed. Cir. 2007)). Thus, for the reasons stated above, the criteria for a compensable disability rating for the Veteran’s service-connected hypertension have not been met or approximated. As the preponderance of the evidence is against a higher rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b). 5. Entitlement to a rating in excess of 30 percent for service-connected asthma The Veteran’s service-connected asthma is evaluated as 30 percent disabling under 38 C.F.R. § 4.97, DC 6602. Under Diagnostic Code 6602, a 30 percent evaluation is warranted for bronchial asthma for the following: forced expiratory volume (FEV-1) of 56 to 70 percent predicted, or; FEV-1/ forced vital capacity (FVC) of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent evaluation requires 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. A 100 percent rating is assigned for 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, DC 6602. 38 C.F.R. § 4.96 (d), titled “Special provisions for the application of evaluation criteria for diagnostic codes 6600, 6603, 6604, 6825-6833, and 6840-6845” has seven provisions. Pulmonary function testing (PFTs) are required to rate respiratory conditions except in certain situations. If a DLCO (SB) test is not of record, rating should be based on alternative criteria as long as the examiner states why the DLCO (SB) test would not be useful or valid in a particular case. When the PFTs are not consistent with clinical findings, rating should generally be based on the PFTs. Post-bronchodilator studies are required when PFTs are done for rating purposes with some exceptions. When rating based on PFTs, post- bronchodilator results are to be used unless they are poorer than the pre-bronchodilator results, then the pre-bronchodilator values should be used for rating purposes. When the results of different PFTs (FEV-1, FVC, etc.) are disparate, the test result that the examiner states most accurately indicates the level of disability should be used for rating, and if the FEV-1 and the FVC are both greater than 100 percent, a compensable rating based on a decreased FEV-1/FVC ratio should not be assigned. 38 C.F.R. § 4.96 (d). In April 2009, the Veteran was seen in the emergency room for dyspnea and asthma. He had trouble breathing, was wheezing, and was coughing. He reported that his asthma had been worse in the past eight weeks. His lung sounds improved and he was released with written instructions to take medication. During a May 2009 VA examination, the Veteran reported that in the last two months, his asthma attacks have been daily and he has now been needing to use his nebulizer instead of the inhaler to stop the wheezes. His medications included Foradil Aerolizer, Asmanex twist inhaler, Singulair, and Albuterol inhaler as a rescue. The examiner indicated that PFT indicated no evidence of airway obstruction. He noted that the best FEV-1/FVC was 82 percent, prebronchodilator. In a July 2009 VA addendum, the examiner clarified that the PFTs conducted in May 2009 were normal. He reported that in this setting, postbronchodilator testing is not performed, since no abnormality was identified on the pre-testing and there would be no change/improvement in the results following administration of the bronchodilator. He stated that post bronchodilator testing is not indicated if the prebronchodilator testing is normal. A September 2014 VA examination report reflects that the examiner noted that the Veteran has had multiple asthma exacerbations but has only been hospitalized once in 2009 in South Dakota for two weeks. He stated that he was not intubated during that admission and he has never subsequently required intubation. The most recent time he went to the emergency department was six months ago. The examiner reported that he was given breathing treatments, started on prednisone, and ultimately sent home. He reported that typically, he has gone to the emergency department two to three times per year specifically for his asthma. He stated that he is treated with loratadine, montelukast, albuterol inhalers, nebulizer treatments with albuterol, Symbicort. On examination, the Veteran was alert, oriented, was not in distress, and his lungs were clear. The examiner noted that the Veteran’s respiratory condition requires the use of oral or parenteral corticosteroid medications. He noted intermittent courses or bursts of systemic (oral or parenteral) corticosteroids. The Veteran had three courses or bursts in the past 12 months. He noted that the Veteran’s respiratory condition requires the use of inhalational bronchodilator therapy daily and inhalational anti-inflammatory medication daily. He noted that the Veteran’s respiratory condition does not require the use of oral bronchodilators, antibiotics, and outpatient oxygen therapy. The Veteran has not had asthma attacks with episodes of respiratory failure in the past 12 months. The Veteran has had physician visits for required care of exacerbations; less frequently than monthly. PFT testing results revealed, prebronchodilator, FVC of 72 percent predicated; FEV-1 of 70 percent predicted; FEV-1/FVC of 79 percent; DLCO of 59 percent predicated. Postbronchodilator, the Veteran had FVC of 75 percent; FEV-1 of 78 predicated; and FEV-1/FVC of 86 percent. In 2017, the Veteran submitted numerous statements from friends and family who have witnessed his asthma attacks. His wife reported that the Veteran had an increase use of nebulizers and the simple things will cause him to get short of breath and cause wheezing. The Veteran kept a diary of his asthma symptoms and use of his inhaler. Private and VA treatment records reflect numerous PFT testing results. None of these PFT testing records indicated FEV-1 less than 56 percent or FEV-1/FVC less than 71 percent. Additionally, medical treatment records reflect continued treatment for the Veteran’s asthma. These treatment records have not shown that the Veteran had more than one asthma attack per week with episodes of respiratory failure or the requirement of daily use of a systemic high doses corticosteroid or immuno-suppressive medication. Furthermore, the medical treatment notes reflect that Veteran’s asthma has not required monthly visits to a physician for required care of exacerbations. Upon review of the evidence of record, the Board finds that the symptoms of the Veteran’s asthma more closely approximate the criteria for a rating of 60 percent. Although the Veteran’s FEV-1 has never been less than 56 percent and his FEV-1/FVC has never been less than 56 percent, the September 2014 VA examination report reflects that the Veteran required intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The Board, however, does not find that a rating in excess of 60 percent is warranted for service-connected asthma. The September 2014 VA examiner, who reviewed the Veteran’s file, stated that the Veteran was not prescribed oxygen for his asthma, and that the Veteran’s asthma did not require the daily use of systemic high dose corticosteroids or immuno-suppressive medications. Additionally, while the Veteran had multiple asthma exacerbations, he did not have more than one attack per week with episodes of respiratory failure. Furthermore, the Veteran’s treatment records throughout the appeal period do not indicate that he is prescribed oral corticosteroids for daily use to treat his service-connected asthma. Thus, a rating in excess of 60 percent for asthma is not warranted. For the reasons above, the criteria for an increased rating of 60 percent, but not higher, is warranted. As the preponderance of the evidence is against any higher schedular rating, the benefit of the doubt doctrine is not for application. 38 U.S.C. § 5107 (b); 38 C.F.R. § 4.3. REASONS FOR REMAND The Veteran contends that his service-connected disabilities preclude him from securing and following substantially gainful employment. Thus, the issue of entitlement to TDIU has been raised as part and parcel of the claim for a higher disability rating for his service-connected asthma and hypertension. See Rice v. Shinseki, 22 Vet. App. 447, 453 (2009). The evidence of record reflects that the Veteran’s service-connected disabilities, mainly asthma and migraines, preclude him from securing and following substantially gainful employment taking into consideration his employment history, education, and training. The Board notes that without a rating for service-connected migraines or the specified anxiety disorder, the Veteran does not meet the minimum percentage requirements for a TDIU set forth in 38 C.F.R. § 4.16(a) (2018). Service connection has been established for asthma, rhinitis, hypertension, and now migraines and an unspecified anxiety disorder. Upon assignment of a disability rating for migraines and unspecified anxiety disorder, the AOJ should conduct any appropriate development and adjudicate the issue of entitlement to a TDIU in the first instance. Following the assignment of a disability rating for migraines and unspecified anxiety disorder, the RO should recognize that even when the percentage requirements of 38 C.F.R. § 4.16 (a) are not met, however, a TDIU may be granted on an extraschedular basis in exceptional cases when the Veteran is unable to secure and follow a substantially gainful occupation by reason of service connected disability. 38 C.F.R. § 4.16(b) (2017). The Board cannot award TDIU on this basis in the first instance because 38 C.F.R. § 4.16 (b) requires that the RO first submit the claim to the Director, Compensation Service for consideration of a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b). See Bowling v. Principi, 15 Vet. App. 1, 10 (2001), Wages v. McDonald, 27 Vet. App. 233, 236 (2015). As the record includes evidence of unemployability due to service connected disabilities prior to June 30, 2016, the issue of entitlement to a TDIU on an extraschedular basis pursuant to 38 C.F.R. § 4.16(b) should be referred to the Director, Compensation Service for consideration of a TDIU. The matters are REMANDED for the following action: 1. Adjudicate the issue of entitlement to a TDIU 2. If after assigning disability ratings for migraines and unspecified anxiety disorder, the Veteran’s combined rating does not meet the schedular requirements, refer the claim of entitlement to a TDIU to the Director, Compensation Service for consideration of assignment of a TDIU on an extraschedular basis pursuant to 38 C.F.R. §4.16(b) L. B. CRYAN Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Laroche, Natalie