Citation Nr: 18157223 Decision Date: 12/12/18 Archive Date: 12/11/18 DOCKET NO. 11-05 309 DATE: December 12, 2018 ORDER Entitlement to an evaluation higher than 30 percent prior to September 19, 2000 and 50 percent thereafter for a respiratory disability (bronchial asthma with sleep apnea), with bronchial asthma considered the predominant disability, is denied. REMANDED Entitlement to service connection for temporomandibular joint disorder (TMJD), to include as secondary to service-connected diabetes mellitus, is remanded. FINDINGS OF FACT 1. During both periods on appeal, the Veteran’s respiratory disability has resulted in FEV-1 (Forced Expiratory Volume in one second) of greater than 55 percent predicted, FEV-1/FVC (Forced Expiratory Volume in one second to Forced Vital Capacity) of greater than 55 percent, without the need for monthly visits to a physician for required care, and has not required at least three courses of systemic (oral or parenteral) corticosteroids per year. 2. From September 19, 2000, the Veteran’s respiratory disability has required the use of a continuous positive airway pressure (CPAP) machine, but there is no chronic respiratory failure with carbon dioxide retention or cor pulmonale, or tracheostomy 3. Separate evaluations may not be awarded for disabilities rated under Diagnostic Code 6602 and Diagnostic Code 6847. CONCLUSIONS OF LAW 1. The criteria for an evaluation higher than 30 percent for a respiratory disability prior to September 19, 2000 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97, Diagnostic Code 6602. 2. The criteria for an evaluation higher than 50 percent for a respiratory disability from September 19, 2000 have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.3, 4.6, 4.7, 4.10, 4.97, Diagnostic Code 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1970 to June 1973. These matters come to the Board of Veterans’ Appeals (Board) on appeal from February 2009 and March 2009 rating decisions of the Department of Veterans Affairs (VA) Regional Office (RO). These matters were previously before the Board in July 2017 when they were remanded for further development. Higher Evaluations for Respiratory Disability Disability evaluations are determined by comparing a Veteran’s present symptomatology with criteria set forth in VA’s Schedule for Rating Disabilities (Rating Schedule), which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where a veteran appeals the initial rating assigned for a disability when a claim for service connection for that disability has been granted, evidence contemporaneous with the claim for service connection and with the rating decision granting service connection would be most probative of the degree of disability existing at the time that the initial rating was assigned and should be the evidence “used to decide whether an [initial] rating on appeal was erroneous . . .” Fenderson v. West, 12 Vet. App. 119, 126 (1999). If later evidence obtained during the appeal period indicates that the degree of disability increased or decreased following the assignment of the initial rating, “staged” ratings may be assigned for separate periods of time based on facts found. Id. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the appellant prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). In relevant part, 38 U.S.C. 1154(a) requires that VA give “due consideration” to “all pertinent medical and lay evidence” in evaluating a claim for disability or death benefits. Davidson v. Shinseki, 581 F.3d 1313 (Fed. Cir. 2009). “Lay evidence can be competent and sufficient to establish a diagnosis of a condition when (1) a layperson is competent to identify the medical condition, (2) the layperson is reporting a contemporaneous medical diagnosis, or (3) lay testimony describing symptoms at the time supports a later diagnosis by a medical professional.” Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); see also Buchanan v. Nicholson, 451 F.3d 1331, 1337 (Fed. Cir. 2006) (“[T]he Board cannot determine that lay evidence lacks credibility merely because it is unaccompanied by contemporaneous medical evidence”). The Veteran’s respiratory disability is rated 30 percent under Diagnostic Code 6602 prior to September 19, 2000 and 50 percent thereafter under Diagnostic Code 6847. 38 C.F.R. § 4.96(a) governs disability ratings for “coexisting respiratory conditions” and states, “Ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under diagnostic codes 6819 and 6820 will not be combined with each other or with diagnostic codes 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation.” 38 C.F.R. § 4.96(a). This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability’s Diagnostic Code. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). In the March 2009 rating decision, the RO determined that the Veteran’s asthma is the predominant disability, as that condition is due to service, under 38 C.F.R. § 4.96. Under Diagnostic Code 6602, a 60 percent evaluation is warranted for an FEV-1 of 40 to 55 percent of predicted value; or, an 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 maximum 100 percent disability rating is assigned for an FEV-1 less than 40 percent of the predicted value; or, an 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 immune-suppressive medications. 38 C.F.R. § 4.97, Diagnostic Code 6602. Under Diagnostic Code 6847, sleep apnea can be awarded a rating of 100 percent where manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. Pulmonary Function Test (PFT) results are generally reported before and after the administration of bronchodilator therapy. VA regulations require the use of post-bronchodilator results in determining disability ratings for Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, unless post-bronchodilator results are poorer than pre-bronchodilator results. 38 C.F.R. § 4.96(d)(4)(5). There are no regulations specifying whether pre- or post-bronchodilator results should be used when determining disability ratings under Diagnostic Code 6602. The Board has reviewed all the evidence in the Veteran’s claims file, with an emphasis on the medical evidence for the issues on appeal. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, the extensive evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000). Therefore, the Board will summarize the relevant evidence where appropriate, and the Board’s analysis below will focus specifically on what the evidence shows, or fails to show, as to the claims. Turning to the evidence, an October 2000 VA examination shows the Veteran reported he is able to control his asthma with inhalers and never had to go to the emergency room for the condition. He was diagnosed with bronchial asthma with severe obstructive and mild restrictive pulmonary impairment with significant response to bronchodilator administration and lung parenchyma disease consistent with emphysema. Sleep apnea was noted as improved on CPAP. A PFT showed an FEV-1 of 72 percent. A March 2002 VA examination shows the Veteran’s asthma was fairly well controlled with Advair, Singulair, and breathing treatments. He reported major attacks averaging twice a month that necessitated emergency room treatment, but for the previous two years he managed his attacks at home. He reported short courses of steroid use, on average, two to three times a year. In January and May 2004 letters, the Veteran’s private physician indicated the Veteran’s sleep apnea was worsened by his asthma. The physician also related that asthma exacerbations decrease tolerance to C-PAP or BI-PAP therapy. Private treatment records, dated August 2001 to May 2005, note the Veteran used Singulair, Advair, Pulmo-Aid, Albuterol, a nebulizer, montelukast, and/or a beta agonist, but no corticosteroids. During a June 2005 VA examination, the Veteran was noted as using Albuterol, Advair, Singulair, Flovent, and a nebulizer. The Veteran denied any hospitalizations, intubation, or respiratory failure, but reported four to five emergency room visits for bronchial asthma with treatment of steroid injection and oral steroids. He reported acute exacerbations of asthma two to three times a year and treatment with Prednisone bursts. He denied immunosuppressive treatment. He reported symptoms of asthma about three times a week. The Veteran was noted as having a past medical history for non-insulin dependent diabetes, hypertension, and sleep apnea. On physical examination, FEV-1 was moderately reduced to 44 percent with 45 percent increase after bronchodilator. FEV-1/FVC was reduced to 70.56 percent. The Veteran was diagnosed with chronic persistent bronchial asthma. A September 2006 private treatment note indicates the Veteran was diagnosed with morbid obesity with obstructive sleep apnea. He was continued on his nocturnal CPAP and (again) counseled on weight loss, regular diet, and exercise. He was diagnosed with severe asthma, which was partially exacerbated by “ongoing side stream smoke inhalation from his wife.” He was continued on Advair, Albuterol, and Singulair. FEV-1 was noted as 69 percent. A chest x-ray showed no active disease. In March 2008, the Veteran reported his asthma was “doing very well.” He reported losing weight, dietary changes, and stable breathing. In October 2008, the Veteran reported that he had been hospitalized for an asthma exacerbation and had upper respiratory infection symptoms for the past week. August 2009 private clinic notes indicate that the Veteran’s asthma with obstructive symptoms were “most likely from a large girth.” A chest x-ray showed no acute or active disease. A subsequent chest x-ray taken in January 2010 also showed no acute process for sleep apnea, COPD, or asthma. February 2010 private treatment records show that the Veteran had stopped using his CPAP, because it had broken. It was noted that he “was doing well with no issues or concerns” when he used his CPAP. The Veteran had gained nearly 30 pounds, which was noted as likely contributing to his worsening sleep disordered breathing. An April 2009 private medical note indicates that the Veteran reported his asthma was “well controlled.” He was diagnosed with likely sleep apnea and recommended to undergo a sleep study. A March 2011 note indicates that the Veteran reported his asthma was controlled on inhalers. He was on weight watchers and had lost 21 pounds in two months. In April 2011, he was noted as partially compliant with CPAP therapy by history and recommended to lose weight. March 2016 private treatment notes show the Veteran reported his asthma was stable with less than twice monthly use of rescue inhaler. In January 2017, the Veteran underwent a PFT that showed FEV-1 at 32 percent and FEV-1/FVC at 88 percent. After noting that the PFT showed obstructive disease, the physician stated that this “may be effort related.” It was reported that a stress test performed earlier that month was negative for reversible ischemia. A chest x-ray also showed mild hyperinflation but no acute appearing changes. The physician noted that these findings indicated that, clinically, the Veteran did not have “that severe of obstructive disease.” The Veteran was diagnosed with mild intermittent asthma, obstructive sleep apnea, and obesity. A March 2017 PFT showed FEV-1 at 56 percent and FEV-1/FVC at 58 percent. An October 2017 PFT showed FEV-1of 56 percent and FEV-1/FVC at 55 percent. In March 2018, the Veteran underwent a VA examination to assess the severity of his sleep apnea and asthma. He reported that he used inhalers and a nebulizer. He reported two to three emergency room visits for acute exacerbation of asthma requiring steroid bursts. The Veteran used no oral or corticosteroid medications, bronchodilators, or outpatient oxygen therapy. He used a CPAP machine nightly but had no tracheostomy, evidence of cor pulmonale, chronic respiratory failure, or retention of carbon dioxide. Medical records, dated March and April 2018, show the Veteran reported his breathing was stable, asthma was controlled, and continued nightly CPAP use. The Board finds that a rating in excess of 30 percent prior to or after September 19, 2000 is not warranted under Diagnostic Code 6602, because there is no evidence of post-bronchodilator readings of 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. The Board notes the Veteran reported twice-a-month asthma exacerbations in March 2002, but he also reported he was able to manage them at home. The medical evidence suggests that the Veteran’s weight and exposure to second hand smoke possibly contributed to his exacerbations. In addition, he only reported two to three yearly asthma exacerbations in June 2005 and March 2018. Although Veteran’s FEV-1 was below 55 percent predicted on two occasions in June 2005 and January 2017, the Veteran’s effort level was attributed as a cause to the low FEV-1 in January 2017. In addition, the physician noted that, clinically, the Veteran did not have “that severe of obstructive disease” despite the low FEV-1. Furthermore, the Veteran FEV-1 has not been shown to consistently be below 55 percent during either period on appeal. The Board finds that a rating of 100 percent is not warranted during either period of appeal under Diagnostic Code 6847, because there are no findings consistent with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring tracheostomy. The Board has considered whether a higher disability rating would be appropriate under alternative diagnostic code provisions. However, the evidence does not show that the Veteran had any other respiratory symptoms, such as pulmonary tuberculosis, pulmonary vascular disease, bacterial infection of the lung, interstitial lung disease, or mycotic lung disease. 38 C.F.R. § 4.97. The Board notes that the Veteran, in his notices of disagreement (NOD), has argued that separate ratings for sleep apnea and asthma are warranted. However, the Board is bound by 38 C.F.R. § 4.96, which specifically prohibits the assignment of separate evaluations for these co-existing respiratory conditions. To the extent any higher ratings are sought, the Board finds that a preponderance of the evidence is against the claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert, 1 Vet. App. at 53-56. REASONS FOR REMAND Service Connection for TMJD The Veteran asserts that his TMJD is related to his military service. He also alleges that the condition is a result of his exposure to Agent Orange and its sequential disease, diabetes mellitus (for which he is service connected), which caused oral infections and loss of teeth. In March 2018, the Veteran underwent a VA examination to determine the nature and etiology of his TMJD. The Veteran reported that his TMJD symptoms disappeared upon losing all his teeth, but his TMJD continued to occasionally click. The examiner indicated that the Veteran had never been diagnosed with TMJD and had no recorded history of trauma to the face or jaw. The examiner found that the Veteran did not currently have TMJD and that the condition is not caused by infection, diabetes, or any known sequelae of Agent Orange. Contrary to the March 2018 examiner’s findings, the Veteran was diagnosed with TMJ syndrome in December 2006. In October 2007, he was also diagnosed with TMJ syndrome by a VA dentist who attributed the condition to bruxism and daily stress. The March 2018 examiner’s opinion improperly relied on the false premise of a nonexistent medical diagnosis to determine that there was no current medical diagnosis. See Reonal v. Brown, 5 Vet. App. 458, 461 (1993) (A medical opinion is only as good and credible as the history on which it was based, and if based on an inaccurate factual premise it has no probative value.); see also Monzingo v. Shinseki, 26 Vet. App. 97, 107 (2012) (“If the opinion is based on an inaccurate factual premise, then it is correct to discount it entirely”) (citing Reonal)). D’Aries v. Peake, 22 Vet. App. 97, 104 (2008) (holding that an examination must be based on consideration of the claimant’s medical history and must describe the disability in sufficient detail so that the Board’s evaluation of the disability will be a fully informed one). As such, a new opinion must be provided. The Board notes that the October 2007 VA dentist essentially provided a negative nexus opinion; however, is inadequate, as there is no evidence that the dentist reviewed the Veteran’s claims file. In addition, the dentist did not specifically consider if TMJD was related to service-connected diabetes mellitus. The matter is REMANDED for the following action: 1. Schedule the Veteran for an appropriate VA examination to assess the nature and etiology of his temporomandibular joint disorder (TMJD). The VA medical examiner must review the claims file and opine on the following: (a) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s TMJD was caused by any service-connected disabilities (including, but not limited to diabetes)? (b) Is it at least as likely as not (a 50 percent or better probability) that the Veteran’s TMJD was aggravated by any service-connected disabilities (including, but not limited to diabetes)? A detailed rationale is requested for all opinions provided. This rationale should address the Veteran’s August 2008 written statement asserting that increased infections due to service-connected diabetes led to missing teeth, which affected his bite and precipitated his TMJD. The examiner should also discuss the December 2006 and October 2007 diagnoses of TMJ syndrome. Providing an opinion or conclusion without a thorough explanation will delay processing of the claim and may also result in a clarification being requested). M. H. HAWLEY Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD A. Norwood, Associate Counsel