Citation Nr: 18156987 Decision Date: 12/11/18 Archive Date: 12/11/18 DOCKET NO. 16-50 473 DATE: December 11, 2018 ORDER Entitlement to an initial compensable disability rating for the service-connected chronic bronchitis is denied. Entitlement to an initial 10 percent disability rating for migraines is granted, subject to the laws and regulations governing the payment of monetary benefits. FINDINGS OF FACT 1. For the entire rating period, the Veteran’s service-connected chronic bronchitis has been manifested by Forced Expiatory Volume in one second (FEV-1) no worse than 89 percent predicted and FEV-1 over Forced Vital Capacity (FVC) ratio (FEV-1/FVC) no worse than 92 percent; while he recently demonstrated Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method DLCO (SB) of 64 percent, the VA examiner concluded that the result did not most accurately reflect the current level of disability from bronchitis. 2. For the entire rating period, the Veteran has experienced headaches that more nearly approximate characteristic prostrating attacks occurring on an average of once in two months over the last several months. CONCLUSIONS OF LAW 1. The criteria for an initial compensable disability rating for the service-connected chronic bronchitis are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97, Diagnostic Code (DC) 6600. 2. The criteria for an initial 10 percent disability rating, but no higher, for service-connected migraines are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.124a, DC 8100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty with the United States Air Force from January 2004 to January 2006, from April 2010 to September 2010, and from February 2013 to October 2013. This matter comes before the Board of Veterans’ Appeals (Board) on appeal of a March 2015 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO) located in Columbia, South Carolina. The Veteran seeks compensable disability ratings for his service-connected chronic bronchitis and migraine headaches.Disability ratings are determined by comparing a veteran’s present symptomatology with the criteria set forth in the VA Schedule for Rating Disabilities, which is based upon average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt is resolved in favor of the Veteran. 38 C.F.R. § 4.3. The Veteran’s entire history is considered when assigning disability ratings. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). A review of the recorded history of a disability is necessary in order to make an accurate rating. 38 C.F.R. §§ 4.2, 4.41. The regulations do not give past medical reports precedence over current findings where such current findings are adequate and relevant to the rating issue. Francisco v. Brown, 7 Vet. App. 55 (1994); Powell v. West, 13 Vet. App. 31 (1999). The Board will 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); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Chronic Bronchitis The Veteran’s service-connected chronic bronchitis is currently assigned a noncompensable (0) percent disability rating under DC 6600. Under this diagnostic code, bronchitis is rated 10 percent disabling for FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71- to 80 percent, or; DLCO (SB) 66- to 80-percent predicted. 38 C.F.R. § 4.97. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56- to 70- percent or; DLCO (SB) of 56- to 65-percent predicted, is rated 30 percent disabling. Id. FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit), is rated 60 percent disabling. Id. FEV-1 less than 40 percent of predicted value, or; FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy, is rated 100 percent disabling. Id. VA is required to rate a disability under DC 6600 using PFTs except in certain circumstances. 38 C.F.R. § 4.96(d)(1). If DLCO (SB) results are not of record, such conditions are evaluated based on alternative criteria as long as the examiner states why the test would not be useful of valid in a particular case. 38 C.F.R. § 4.96(d)(2). When PFTs are not consistent with clinical findings, conditions are evaluated based on the PFTs unless the examiner states why they are not a valid indication or respiratory functional impairment in a particular case. 38 C.F.R. § 4.96(d)(3). Post-bronchodilator studies are required when PFTs are done for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). However, if the post-bronchodilator results are poorer than the pre-bronchodilator results, then the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96(d)(5). When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(6). In every instance where the schedule does not provide a zero percent evaluation for a diagnostic code, a zero percent evaluation shall be assigned when the requirements for a compensable evaluation are not met. 38 C.F.R. § 4.31. When examined by VA in January 2015, the Veteran reported that a complete pulmonary work-up at Shaw AFB in December 2013, was negative for asthma, but did show he had chronic bronchitis from exposure to burn pits in Iraq. His current symptoms were constant coughing after exercising lasting about 15 minutes. His respiratory condition required intermittent inhalational and oral bronchodilator therapy. He did not require the use of antibiotics, or outpatient oxygen therapy and there were no diagnoses of any other pulmonary conditions. Chest X-rays were negative. Pulmonary function testing (PFT) revealed pre-bronchodilator findings of FEV-1 of 89 percent of the predicted value, and the ratio of FEV-1/ FVC of as 118 percent. The examiner stated the FEV-1 test result most accurately reflected the Veteran’s current level of disability. Post-bronchodilator testing was not performed because of severe bronchospasm and DLCO testing was not completed as it was not indicated for the Veteran’s condition. The Veteran was employed as a deputy in a sheriff’s office, and the chronic bronchitis did not impact his ability to work. See January 2015 Respiratory Conditions Disability Benefits Questionnaire (DBQ). A September 2016 VA DBQ report shows the Veteran reported that his respiratory condition now requires daily inhalational bronchodilator therapy, but no longer required oral bronchodilator therapy oral/parenteral corticosteroid medications antibiotics, or outpatient oxygen therapy. There were also no diagnoses of any other pulmonary conditions. The Veteran reported that the bronchitis affects his ability to work due to difficulty breathing and chronic cough. Referring to the results from a June 2016 PFT, the examiner reported pre-bronchodilator FEV-1 of 91.5 percent predicted value and FEV-1/ FVC of 92 percent. The examiner also reported DLCO of 20 percent predicted, which he stated most accurately reflected the Veteran’s current level of disability, but then went on to describe the level of disability as mild to moderate. To address the inconsistency between the DLCO of 20 percent and the examiner’s description of the Veteran’s bronchitis as mild to moderate, the Veteran underwent additional examination in October 2016. He reported a chronic cough that is worse at night and disturbs his sleep as well as shortness of breath with exertion. He stated that it impacts his work as a law enforcement officer in that he would have coughing fits lasting 15-20 minutes after exertion and that this would often occur when making an arrest. He described the cough as dry with occasional production of sputum. Medication included Singulair, formoterol/budesonide and albuterol MDI as needed. He did not require systemic (oral or parenteral) corticosteroids, antibiotics, or outpatient oxygen therapy but used daily inhalational bronchodilator therapy, inhalational anti-inflammatory medication, and an oral bronchodilator. There were no diagnoses of any other pulmonary conditions. The examiner clarified the results from the 2016 PFT, noting pre-bronchodilator FEV- 1 of 92 percent predicted, FEV-1/ FVC of 92 percent, and DLCO of 64 percent predicted. He explained that he corrected the DLCO measurement from the previous examination report, which had been as entered as an actual value and not as a percentage of the predicted value. The examiner then indicated that the FEV-1/FVC of 92 percent predicted was the most accurate reflection of the level of disability caused by bronchitis. He also explained that post-bronchodilator testing was not completed as the Veteran’s results only indicated a mild restrictive defect and post-bronchodilator is indicated when an obstructive pattern is present. The remaining records show continued periodic evaluation and treatment of the Veteran’s bronchitis symptoms from June 2016 to February 2018, but do not otherwise indicate findings that differ from those reported on during prior outpatient visits or evaluations. Based upon a review of the evidence of record, the Board finds that the criteria for a compensable evaluation for the Veteran’s bronchitis are not met under DC 6600. The PFT results currently of record do not show FEV-1 levels at 71-80 percent predicted or FEV-1/FVC at 71-80 percent. While the Veteran demonstrated DLCO (SB) of 64 percent predicted on his most recent PFT, the VA examiner concluded that the result did not most accurately reflect the current level of disability from bronchitis. Accordingly, the Veteran’s PFT results do not warrant an increased disability rating under DC 6600. The Board has considered the applicability of alternative diagnostic codes for rating this service-connected disability. Although VA regulations allow for ratings by analogy, see 38 C.F.R. § 4.20, the United States Court of Appeals for Veterans Claims (Court) recently held that when a condition is specifically listed in VA’s schedule for rating disabilities, it may not be rated by analogy; in other words, an analogous rating may be assigned only where the service-connected condition is unlisted in VA’s schedule for rating disabilities. Because bronchitis has its own code, DC 6600, rating it by analogy under other codes is not permissible. See Copeland v. McDonald, 27 Vet. App. 333, 336-337 (2015) (quoting Suttman v. Brown, 5 Vet. App. 127, 134 (1993). Accordingly, the Board finds that the level of disability necessary to support the assignment of a compensable evaluation is absent. A preponderance of the evidence is against the claim, and there is no reasonable doubt to be resolved. 38 U.S.C. § 5107(b). 2. Migraines The Veteran’s migraine disability is currently assigned a noncompensable (0) percent rating under DC 8100 for less frequent headache attacks. A 10 percent disability rating is warranted for characteristic prostrating attacks averaging one in 2 months over last several months. A 30 percent disability rating is warranted for characteristic prostrating attacks occurring on an average of once a month over the last several months. Very frequent, completely prostrating and prolonged attacks (of migraine headaches) productive of severe economic inadaptability warrant a 50 percent disability rating. 38 C.F.R. § 4.124a. Although the rating criteria do not define “prostrating,” according to Dorland’s Illustrated Medical Dictionary, 31st Edition (2007), p.1554, “prostration” is defined as “extreme exhaustion or powerlessness.” A similar definition is found in Merriam-Webster’s Collegiate Dictionary, Eleventh Edition (2003), p.999, “prostration” is defined as “complete mental or physical exhaustion or collapse.” The rating criteria also do not define “severe economic inadaptability”; however, nothing in DC 8100 requires the claimant to be completely unable to work in order to qualify for a 50 percent rating. See Pierce v. Principi, 18 Vet. App. 440 (2004). A review of the applicable rating criteria shows that, for the most part, ratings for headache disabilities are largely dependent on subjective reports of frequency and severity of headaches. The frequency and severity of the headaches is rarely observed by a clinician, and the determination of a disability rating turns on the reports by the Veteran as well as the supporting evidence he has submitted. The evidence relevant to the severity of the Veteran’s migraines includes a January 2015 VA DBQ report. He reported a history of severe headaches with nausea, vomiting, photophobia, and dizziness. His migraines occur 3-4 times a week lasting less than a day for which he takes Maxalt, Motrin, and Zofran. He described constant, pulsating, throbbing pain on the right side of his head, the neck, and in both eyes and reported difficulty working/concentrating. The examiner indicated characteristic prostrating attacks of migraine head pain less than once every 2 months. The diagnosis was migraine including migraine variants. Subsequently dated VA treatment records show that in April 2016, during an annual follow-up visit the Veteran reported that he sometimes awakens with a migraine, which can last 2 to 4 days. He was considering retiring as he could not put up with the migraines and trying to work. When examined by VA in September 2016, the Veteran reported headache pain localized to one side of the head with nausea, sensitivity to light and sound, lasting less than a day for which he takes Imitrex and Motrin. The Veteran indicated that his headaches have impacted his employment in that he has difficulty focusing at work. The examiner indicated that there were no characteristic prostrating attacks of migraine/non-migraine headache pain and described the current level of severity from migraines as moderate. The remaining records show continued periodic evaluation and treatment of the Veteran’s migraines from June 2016 to February 2018, but do not otherwise indicate that they are more severe than those recorded in the previous VA examinations. In fact, an entry dated in April 2017 shows the Veteran had been on Sumatriptan nasal spray for about 6 months, which helped reduce his headache episodes from 4-5 times a week to 3 per week. Based upon the preceding evidence, the Board finds that a 10 percent evaluation is warranted for the Veteran’s migraines under DC 8100 as such rating affords a better approximation of the disability picture presented. While the evidence does not establish that he is incapacitated by migraines, he has consistently reported headaches that occur up to several times a week associated with nausea, vomiting, photophobia, dizziness and trouble concentrating when severe. These are observations that the Veteran is competent to make and, in the Board’s view, when the benefit of the doubt rule is applied are comparable to the criteria for a 10 percent rating. Washington v. Nicholson, 19 Vet. App. 362, 368 (2005); Layno v. Brown, 6 Vet. App. 465, 469 (1994). The evidence does not otherwise show that the headaches are prostrating at least once a month as contemplated for a 30 percent rating during this timeframe. (CONTINUED ON NEXT PAGE) Accordingly, the Board finds that the Veteran’s impairment due to migraine is more consistent with a 10 percent rating and that the level of disability contemplated under DC 8100 to support the assignment of the next higher evaluation of 30 percent is absent. Gilbert v. Derwinski, 1 Vet. App. 49 (1990); 38 U.S.C. § 5107; 38 C.F.R. § 3.102. THERESA M. CATINO Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD J.R. Bryant