Citation Nr: 18158248 Decision Date: 12/14/18 Archive Date: 12/14/18 DOCKET NO. 17-06 883 DATE: December 14, 2018 ORDER Entitlement to a disability rating in excess of 30 percent for bronchial asthma is denied. FINDING OF FACT The Veteran’s asthma is manifested by measurements of forced expiratory volume in one second (FEV-1) of 95 percent predicted and FEV-1 / forced vital capacity (FVC) of 83 percent and use of inhalational therapy; the evidence does not show that the Veteran’s asthma manifests in FEV-1 measurements of less than 56 percent of predicted value, or FEV-1 / FVC of less than 56 percent; or require at least monthly visits to a physician for required care of exacerbations; or result in more than one attack per week with episodes of respiratory failure; or require use of systemic (oral or parenteral) corticosteroids or immuno-suppressive medications. CONCLUSION OF LAW The criteria for a disability evaluation in excess of 30 percent for asthma have not been met or approximated. 38 U.S.C. §§ 1155; 38 C.F.R. §§ 4.1, 4.14, 4.96, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty in the Army from November 1990 to April 1992, and from July 2000 to April 2001. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a July 2015 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). VA’s Duty to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) and implementing regulations impose obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). The Veteran in this case has not referred to any deficiencies in either the duties to notify or assist; therefore, the Board may proceed to the merits of the claim. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015, cert. denied, U.S.C. Oct.3, 2016) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board….to search the record and address procedural arguments when the [appellant] fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to an appellant’s failure to raise a duty to assist argument before the Board). The Board has reviewed all of the evidence in the Veteran’s claims file. Although the Board has an obligation to provide adequate reasons and bases supporting this decision, there is no requirement that the evidence submitted by the Veteran or obtained on his behalf be discussed in detail. Rather, the Board’s analysis below will focus specifically on what evidence is needed to substantiate the claim and what the evidence in the claims file shows, or fails to show, with respect to the claim. See Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) and Timberlake v. Gober, 14 Vet. App. 122, 128-130 (2000). In sum, the Board is satisfied that the originating agency properly processed the Veteran’s claim after providing the required notice and that any procedural errors in the development and consideration of the claims by the originating agency were insignificant and non-prejudicial to the Veteran. See Bernard v. Brown, 4 Vet. App. 384 (1993). Increased Rating Claims The grant of an increased rating during the course of an appeal does not affect the pendency of that appeal. AB v. Brown, 6 Vet. App. 35 (1993). As the Veteran is presumed to be seeking the maximum allowable benefit and the maximum benefit has not yet been awarded for the entire period on appeal, the claim is still in controversy and on appeal. Id. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and the residual conditions in civilian occupations. 38 C.F.R. §§ 3.321(a), 4.1. In evaluating the severity of a particular disability, it is essential to consider its history. 38 C.F.R. § 4.1; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Where entitlement to compensation has already been established and an increase in the disability rating is at issue, the present level of disability is of primary importance. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). That said, higher evaluations may be assigned for separate periods based on the facts found during the appeal period. See Fenderson v. West, 12 Vet. App. 119, 126 (1999). This practice is known as staged ratings. Id. VA is required to give due consideration to all pertinent medical and lay evidence in evaluating a claim for disability benefits. 38 U.S.C. § 1154(a). After the evidence is assembled, it is the Board’s responsibility to evaluate the entire record. See 38 U.S.C. § 7104(a) (2012). When there is an approximate balance of evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each issue shall be given to the claimant. See 38 U.S.C. § 5107 (2012); 38 C.F.R. §§ 3.102, 4.3 (2017). If the evidence for and against a claim is in equipoise, the claim will be granted. 38 C.F.R. § 4.3. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. 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 evaluation. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Entitlement to an increased rating for bronchial asthma in excess of 30 percent. In pertinent part, bronchial asthma is evaluated under the following rating criteria: 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 (30 percent); 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 (60 percent); 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 immune-suppressive medications (100 percent). 38 C.F.R. § 4.97, Diagnostic Code 6602. Post-bronchodilator studies are required when PFT is conducted for disability evaluation purposes, except when the results of pre-bronchodilator PFT are normal or when the examiner determines that post-bronchodilator studies should not be done and states the reasons why. 38 C.F.R. § 4.96. When evaluating a restrictive lung disability based on PFT, VA is to use the post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results are poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96 (d)(5). In those cases, VA is to use the pre-bronchodilator values for rating purposes. Id. If the FEV-1 and FVC values are both greater than 100 percent, then VA may not assign a compensable evaluation based on a decreased FEV-1/FVC ratio. 38 C.F.R. § 4.96 (d)(7). Crucially, Diagnostic Code 6602 distinguishes between “inhalational” therapy and “systemic” therapy. Specifically, if no more than “inhalational” therapy is required, a 10 or 30 percent disability rating is assigned. If treatment requires “systemic” corticosteroid therapy, higher ratings are assigned depending on frequency of use. By its own language, Diagnostic Code 6602 indicates that asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. See LaPointe v. Nicholson, 21 Vet. App. 411, 2006 WL 2797153 (Vet. App. 2006) (noting “DC 6602 clearly makes a distinction between the intermittent or daily use of systemic corticosteroids and the intermittent or daily use of inhaled corticosteroids.”). Indeed, in LaPointe, the Court affirmed the Board’s previous finding that Diagnostic Code 6602 “requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30[%].” See id. The Board acknowledges that LaPointe is a non-precedential decision, but notes that a non-precedential decision may be cited “for any persuasiveness or reasoning it contains.” See Bethea v. Derwinski, 2 Vet. App. 252, 254 (1992). Turning to the case at hand, the Veteran is seeking an increased rating for her bronchial asthma (diagnostic code 6602), currently rated at 30 percent. By way of background, the Veteran was given a VA examination to assess her respiratory conditions in June 2015. After reviewing the Veteran’s claims file, the examiner found that the Veteran’s respiratory condition previously required the use of corticosteroid medications at 2 bursts over the past 12 months. The Veteran had not had any asthma attacks with episodes of respiratory failure over the past 12 months, nor had she had any physician visits for exacerbations. The VA examiner used pulmonary function testing, indicating FVC at 67 percent predicted, FEV-1 at 67 percent predicted, and FEB-1/FVC 99 percent for pre-bronchodilator testing. For post-bronchodilator testing, FVC results were 75 percent predicted, FEV-1 was 82 percent predicted, and FEV-1/FVC was 108 percent. The VA examiner opined that increased frequency of attacks affected the Veteran’s daily activity. More recently, the Veteran received a VA examination in March 2017 for her respiratory conditions, where the Veterans claims file was again consulted. The examiner found that the Veteran had no asthma attacks with episodes of respiratory failure in the past 12 months, nor any physician visits for exacerbations. Pulmonary function testing was again performed, which indicated FVC at 87 percent predicted, FEV-1 at 95 percent predicted, and FEV-1/FVC at 83 percent for pre-bronchodilator testing. Post-bronchodilator testing was not performed, because according to the examiner, pre-bronchodilator results were normal. Importantly, the examiner only noted that inhalation therapy was needed, not systemic corticosteroids. The VA examiner opined that the Veteran’s respiratory condition reduced her ability to tolerate physically demanding labor, yet had no impact on her sedentary labor. There is no evidence that either the VA examiners were not competent or credible, and as the reports were based on accurate facts and objective examinations, the Board finds they are entitled to significant probative weight as to the severity of the Veteran’s disability. Nieves-Rodriguez, 22 Vet. App. 295. In consideration of the evidence of record, the Veteran’s appeal for an increased rating for her bronchial asthma in excess of 30 percent is denied, yet continued at 30 percent. This is the case for a few reasons, notably that her most recent FEV-1/FVC rating of 83 percent, was well beyond the 40-50 percent required to establish a disability rating of 60 percent. During the most recent exam, post-bronchodilator was not tested, because pre-bronchodilator results were normal. Furthermore, according to the relevant diagnostic code, if no more than “inhalational” therapy is required, a 10 or 30 percent disability rating is assigned. Diagnostic Code 6602. That is the case here, as the VA examiner noted that only inhalation therapy was needed, not systemic corticosteroids. Even had the FEV-1/FVC percentage been low enough to warrant the increased disability rating, the fact that the Veteran’s bronchial asthma is controlled with only inhalation therapy, a 30 percent disability rating is highest rating possible. Quickly turning to the lay evidence offered by the Veteran, she contends that she only requested a 40-50 percent disability rating, so rejecting her from the 60 percent evaluation would be incorrect because it is not the evaluation that she originally sought. While it is true that her Notice of Disagreement specifically requests between 40 to 50 percent, the Rating Decision failed to inform her that a 40-50 percent evaluation of bronchial asthma is simply not possible. Under the applicable diagnostic code, the disability is limited to the following specific percentages: 10, 30, 60, 100. So, while the Board is sympathetic that the Veteran contends that her bronchial asthma is worse than the 30 percent disability rating, the 40-50 percent rating that she requested simply does not exist under the regulations. As such, based on the Veteran’s overall symptomatology and the resulting impairment occupational and social impairment stemming therefrom, and affording the Veteran the benefit of all reasonable doubt in our assessment, the Board finds that the evidence shows her disability picture more nearly approximates the level of severity contemplated by the current 30 percent rating for bronchial asthma. 38 C.F.R. §§ 4.7, Diagnostic Code 6602. In reaching these conclusions, the Board has also considered extraschedular evaluations under 38 C.F.R. § 3.321 (b)(1). The threshold factor for extraschedular consideration is a finding that the evidence presents such an exceptional disability picture that the available schedular evaluations for the service-connected disability at issue are inadequate. Thun v. Peake, 22 Vet. App. 111 (2008), aff’d, Thun v. Shinseki, 572 F.3d 1366 (Fed. Cir. 2009). In this case, the Veteran has not asserted, and the evidence does not show, that her service-connected bronchial asthma is not adequately contemplated by the schedular rating criteria. In this regard, the Board notes that while her lay statements indicate that she believes a 40-50 percent disability evaluation is applicable, the medical record reflects that the Veteran has bronchial asthma symptomatology more nearly approximating a 30 percent disability rating. See 38 C.F.R. § 4.14. Therefore, discussion of whether an extraschedular rating must be considered is not necessary. Doucette v. Shulkin, 28 Vet. App. 366 (2017). As such, the board finds that an increased rating beyond 30 percent for bronchial asthma is not warranted. Since the preponderance of the evidence is against the claim, the benefit of the doubt rule is not applicable, and entitlement to an increased rating for bronchial asthma is denied. 38 U.S.C. § 5107, Gilbert v. Derwinski, Vet. App. 49, 55-57. Michael Pappas Veterans Law Judge Board of Veterans’ Appeals ATTORNEY FOR THE BOARD Garrett H. Mulrain, Associate Counsel