Citation Nr: 1808331 Decision Date: 02/08/18 Archive Date: 02/20/18 DOCKET NO. 10-21 458 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in Philadelphia, Pennsylvania THE ISSUE Entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea with asthma prior to December 4, 2015. REPRESENTATION Veteran represented by: Disabled American Veterans WITNESS AT HEARING ON APPEAL Veteran ATTORNEY FOR THE BOARD D. Cherry, Counsel INTRODUCTION The Veteran served on active duty from April 1986 through June 2009. This case comes before the Board of Veterans' Appeals (Board) on appeal from a rating decision issued in November 2009 by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran testified at a July 2014 videoconference hearing before the undersigned Veterans Law Judge. A transcript of that testimony is associated with the electronic record. In a November 2014 decision, the Board declined to assign separate disability ratings for the Veteran's service-connected obstructive sleep apnea and asthma. To the extent that the Veteran's claim appears to include a claim for an increased disability rating for obstructive sleep apnea and asthma, rated as 50 percent disabling, the Board also declined to award a higher disability rating. The Veteran subsequently appealed the adverse November 2014 Board decision to the United States Court of Appeals for Veterans Claims (Court). In May 2016, counsel for the Veteran and the VA Secretary (the parties) filed a joint motion for remand in which they argued that the November 2014 Board decision should be set aside. The parties agreed that 38 C.F.R. § 4.96 (2017) precludes VA from awarding separate disability ratings for asthma and obstructive sleep apnea. The parties asserted, however, that the Board misapplied that regulation because it failed to identify the predominant disability and also because it failed to consider whether both disabilities, when considered together, presented such a disability picture so to warrant an increased rating under the rating criteria of the disability determined to be the predominant one. The Court granted the parties' motion in a May 2016 order and set aside the November 2014 Board decision. In an August 2016 decision, the Board denied separate ratings for obstructive sleep apnea and asthma. The Board also denied an initial disability rating in excess of 50 percent for obstructive sleep apnea with asthma prior to December 5, 2015, and assigned a 60 percent disability rating for asthma with obstructive sleep apnea effective December 5, 2015. The Veteran appealed to the Court. In an April 2017 joint motion for partial remand, the parties requested that the Court not disturb the assignment of the initial 60 percent disability rating effective December 5, 2015, for asthma with obstructive sleep apnea. The parties indicated that the Veteran was not appealing the denial of separate ratings for obstructive sleep apnea and asthma. The parties requested that the Court vacate the part of the August 2016 Board decision that denied entitlement to a disability rating in excess of 50 percent prior to December 5, 2015, for obstructive sleep apnea with asthma and remand for readjudication. Later in April 2017, the Court issued an order granting the motion for partial remand. In August 2017, the Board remanded the issue of entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea with asthma prior to December 5, 2015, for further development. In August 2016, the Board also remanded the issue of entitlement to an initial rating in excess of 10 percent for positional vertigo for substantive development and the issue of entitlement to an initial compensable rating for sinusitis for the issuance of a statement of the case. In December 2016, the RO issued a statement of the case on the issue of entitlement to a compensable rating for sinusitis prior to August 7, 2014. The Veteran did file a substantive appeal on that issue. In a December 2016 rating decision, the RO assigned a 30 percent disability rating for positional vertigo effective July 1, 2009, under Diagnostic Code 6204. A 30 percent rating is the maximum schedular rating under Diagnostic Code 6204. 38 C.F.R. § 4.87, Diagnostic Code 6204. The RO also granted service connection for tinnitus and assigned a 10 percent disability rating effective July 1, 2009. This grant is considered a full grant of benefits. AB v. Brown, 6 Vet. App. 35 (1993). Therefore, the only issue before the Board is entitlement to an initial rating in excess of 50 percent for obstructive sleep apnea with asthma prior to December 5, 2015. FINDINGS OF FACT 1. The weight of evidence is against a finding that prior to December 4, 2014, the service-connected obstructive sleep apnea was manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring a tracheostomy. 2. The weight of evidence is against a finding that prior to December 4, 2014, the service-connected asthma was manifested by Forced Expiratory Volume in one second (FEV-1) of 40- to-55- percent predicted value, Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 40 to 55 percent, 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. 3. The weight of evidence shows that prior to December 4, 2014, the service-connected obstructive sleep apnea was the predominant disability. 4. The weight of evidence is against a finding that an elevation to a 100 percent disability rating under the diagnostic code for sleep apnea syndromes. 5. The weight of evidence is against a finding that from December 5, 2014, to December 4, 2015, the service-connected obstructive sleep apnea was manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring a tracheostomy. 6. The weight of evidence shows that from December 5, 2014, to December 4, 2015, the service-connected asthma was manifested by pre-bronchodilator results showing FEV-1 of 52 percent predicted and the need for intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. 7. The weight of evidence shows that from December 5, 2014, to December 4, 2015, the service-connected asthma was the predominant disability. 8. The weight of evidence is against a finding that an elevation to a 100 percent disability rating under the diagnostic code for bronchial asthma. CONCLUSIONS OF LAW 1. Prior to December 4, 2014, obstructive sleep apnea with asthma did not meet the criteria for a disability rating in excess of 50 percent. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110 (2012); 38 C.F.R. §§ 3.102, 4.7, 4.96, 4.97, Diagnostic Codes 6602, 6847 (2017). 2. From December 5, 2014, to December 4, 2015, obstructive sleep apnea with asthma met the criteria for a 60 percent disability rating. 38 U.S.C. §§ 1155, 5103, 5103A, 5107, 5110; 38 C.F.R. §§ 3.102, 4.7, 4.96, 4.97, Diagnostic Codes 6602, 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS VA's duties to notify and assist claimants in substantiating a claim for VA benefits in general are found at 38 U.S.C. §§ 5100, 5102, 5103, 5103A, 5107, 5126 and 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a). VA's duty to notify was satisfied by letters dated in February 2009 and September 2017. See 38 U.S.C. §§ 5102, 5103, 5103A; 38 C.F.R. § 3.159; see also Scott v. McDonald, 789 F.3d 1375 (Fed. Cir. 2015). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist except for the representative stating in a June 2016 written argument that an October 2009 VA examination report is inadequate because the exam did not include a test for Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)). See Scott, 789 F.3d at 1381 (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 veteran fails to raise them before the Board."); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to duty to assist argument). The Board notes that Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB) is not part of the rating criteria for either bronchial asthma or sleep apnea syndromes. Therefore, VA did not have to administer that test and the October 2009 VA examination report is adequate for rating purposes. The Board finds there has been substantial compliance with the directives of its August 2017 remand. See D'Aries v. Peake, 22 Vet. App. 97, 105 (2008); see also Dyment v. West, 13 Vet. App. 141, 146-47 (1999) (holding that there was no Stegall (Stegall v. West, 11 Vet. App. 268 (1998)) violation when the examiner made the ultimate determination required by the Board's remand.) Governing law and regulations 38 C.F.R. § 4.96 instructs that, although separate disability ratings are forbidden for disabilities rated under Diagnostic Code 6602 (bronchial asthma) and 6847 (sleep apnea syndromes), VA must assign a single disability rating under the diagnostic code that reflects the predominant disability with elevation to the next higher evaluation where the severity of the disability warrants such an evaluation. Under Diagnostic Code 6602, bronchial asthma is assigned a 30 percent rating with the following pulmonary function test results: 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. A 60 percent rating is available for the following: 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 requires the following: 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. Certain diagnostic codes require the use of post-bronchodilator studies 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. See 38 C.F.R. § 4.96(d) (2017). However, the diagnostic codes enumerated under that section (6600, 6603, 6604, 6825-6833, and 6840-6845) do not include Diagnostic Code 6602 (asthma). Accordingly, that section is not applicable to the claim and both pre- and post-bronchodilator results must be considered. Id. Under Diagnostic Code 6847, a 50 percent disability rating is warranted for sleep apnea requiring use of a breathing assistance device such as continuous airway pressure (CPAP) machine. A higher 100 percent rating for sleep apnea is warranted when there is chronic respiratory failure with carbon dioxide retention, cor pulmonale, or when the condition requires a tracheostomy. 38 C.F.R. § 4.97, Diagnostic Code 6847. Analysis In a May 2009 rating decision, the RO granted service connection for obstructive sleep apnea effective July 2, 2009, and assigned a 50 percent disability rating. In the November 2009 rating decision, the RO granted service connection for asthma; assigned an effective date of July 1, 2009, for the grants of service connection for asthma and obstructive sleep apnea; and continued the 50 percent rating for obstructive sleep apnea with asthma. In an August 2016 decision, the Board denied separate ratings for obstructive sleep apnea and asthma. The Board also denied an initial disability rating in excess of 50 percent for obstructive sleep apnea with asthma prior to December 5, 2015, and assigned a 60 percent disability rating for asthma with obstructive sleep apnea effective December 5, 2015. An August 2015 private pulmonary functioning test shows that the pre-bronchodilator FEV-1 was 52 percent of predicted. A December 5, 2015, disability benefits questionnaire completed by Dr. M.A. reflects that the Veteran was being treated with intermittent courses of systemic corticosteroids and stated that overall the Veteran had undergone three such courses of treatment over the previous 12 months. Therefore, the medical evidence shows that the Veteran is entitled to at least a 60 percent disability rating effective December 5, 2014, under Diagnostic Code 6602. As such, the Board will separately address the period prior to December 5, 2014. Private treatment records reflect that the Veteran underwent pulmonary function testing in March 2009. While the precise results were not reported, the results were described as unremarkable. It was recommended that the Veteran take a Medrol Dose Pak. Though the medical evidence shows that the Veteran had a course of systemic (oral or parenteral) corticosteroids in March 2009, the Board notes that this treatment predated the effective date of the grant of service connection for asthma. An April 2009 VA examination report shows that the Veteran had not had a tracheostomy or that he used oxygen. The report notes that the Veteran had been using a CPAP machine with good results. Private treatment records reveal that the Veteran began immunotherapy in June 2009 but these records do not indicate that the immunotherapy included a course of systemic (oral or parenteral) corticosteroids or daily use of immune-suppressive medications. In September 2009, a private doctor added Asmanex, a corticosteroid, in a dose of one spray per day. The medical evidence does not show that this corticosteroid course was systemic in nature because the corticosteroid was inhaled instead being taken orally or by a parenteral injection. An October 2009 VA examination report reveals that the Veteran was medicating with an Asmanex inhaler every morning and an Albuterol inhaler taken twice per day. He denied ever requiring oxygen. Pulmonary function tests were performed and revealed FEV-1 that was 88 percent of predicted value prior to medication, and 91 percent of predicted value after taking Albuterol. FEV-1/FVC was 83 percent of predicted value prior to medication, and 85 percent of predicted value after Albuterol. Overall, the examiner characterized the Veteran's asthma as being "mild." Private treatment records reveal that the Veteran resumed immunotherapy in December 2010, but these records do not indicate that the immunotherapy included a course of systemic (oral or parenteral) corticosteroids or daily use of immune-suppressive medications. An August 2014 VA examination report shows that the Veteran had not had a permanent tracheostomy. The weight of evidence is against a finding that prior to December 4, 2014, the service-connected obstructive sleep apnea was manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring a tracheostomy. The weight of evidence is against a finding that prior to December 4, 2014, the service-connected asthma was manifested by FEV-1 of 40- to-55- percent predicted value, FEV-1/FVC of 40 to 55 percent, 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. Although the Veteran was taking a course of systemic (oral or parenteral) corticosteroids in March 2009 before the effective date of the grant of service connection for asthma, the Board places great weight on the medical evidence between July 1, 2009, and December 4, 2014, showing that the Veteran only had a course of a nasal corticosteroid in September 2009 and that he had no courses of systemic (oral or parenteral) corticosteroids. Although an August 2015 private pulmonary function test shows that pre-bronchodilator FEV-1 was 52 percent of predicted, the only pulmonary function test during the period between July 1, 2009, and December 4, 2014, was done at the October 2009 VA examination. Therefore, the Board places great weight on the October 2009 VA pulmonary function tests in determining respiratory functional impairment during the period from July 1, 2009, to December 4, 2014. The medical evidence shows that between July 1, 2009, and December 4, 2014, the Veteran was using CPAP machine for his obstructive sleep apnea, which warrants a 50 percent disability rating. The medical evidence shows that between July 1, 2009, and December 4, 2014, the asthma only required daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication, which would warrant a 30 percent disability rating. Thus, the weight of evidence shows that prior to December 4, 2014, the service-connected obstructive sleep apnea was the predominant disability. As for whether an elevation to a higher rating under the diagnostic code for sleep apnea syndromes, the medical evidence does not show that prior to December 4, 2014, the service-connected obstructive sleep apnea was manifested by chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring a tracheostomy. Again, the medical evidence does not show that prior to December 4, 2014, the service-connected asthma was manifested by FEV-1 of 40- to-55- percent predicted value, FEV-1/FVC of 40 to 55 percent, 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. In the absence of medical evidence showing that the Veteran's sleep apnea approximates the criteria for a 100 percent disability rating or that his asthma approximates the criteria for a 60 percent disability rating, the weight of evidence is against a finding that an elevation to a 100 percent disability rating under the diagnostic code for sleep apnea syndromes. Therefore, the preponderance of the evidence is against the claim, and it is denied. From December 5, 2014, to December 4, 2014, the Veteran required three intermittent courses of systemic (oral or parenteral) corticosteroids. Moreover, August 2015 private pulmonary functioning test shows that the pre-bronchodilator FEV-1 was 52 percent of predicted. Therefore, the weight of evidence shows that from December 5, 2014, to December 4, 2015, the service-connected asthma was manifested by pre-bronchodilator results showing FEV-1 of 52 percent predicted and the need for intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. As for whether a 100 percent disability rating is warranted based on asthma alone, the August 2015 private pulmonary function tests revealed FEV-1/FVC performance that was 81 percent of predicted value prior to bronchodilation and 108 percent of predicted value after bronchodilation. FEV-1 performance was 52 percent of predicted value prior to bronchodilation and 95 percent of predicted value after bronchodilation. The December 5, 2015, disability benefits questionnaire report shows that the Veteran did not require daily use of systemic (oral or parenteral) high-dose corticosteroids or immuno-suppressive medications. The doctor noted that the Veteran did not have any asthmatic attacks with periods of respiratory failure in the past twelve months. Therefore, a 100 percent disability rating based on asthma alone is not warranted. As for sleep apnea, the December 5, 2015, disability benefits questionnaire report shows that the examiner did not indicate that the Veteran had been diagnosed with cor pulmonale. A December 15, 2015, disability benefits questionnaire report reveals that the Veteran had not had a permanent tracheostomy. Accordingly, a 100 percent disability rating based on sleep apnea alone is not warranted. The medical evidence shows that from December 5, 2014, to December 4, 2015, the service-connected asthma was manifested by pre-bronchodilator results showing FEV-1 of 52 percent predicted and the need for intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. The medical evidence shows that from December 5, 2014, to December 4, 2015, the Veteran was using CPAP machine for his obstructive sleep apnea. Hence, the weight of evidence shows that from December 5, 2014, to December 4, 2015, the service-connected asthma was the predominant disability. In the absence of medical evidence showing that the Veteran's sleep apnea approximates the criteria for a 100 percent disability rating or that his asthma approximates the criteria for a 100 percent disability rating, the weight of evidence is against a finding that an elevation to a 100 percent disability rating under diagnostic code for bronchial asthma. The Board also acknowledges that in Rice v. Shinseki, 22 Vet. App. 447 (2009) the Court held that a claim for a total disability rating based on individual unemployability (TDIU), either expressly raised by the Veteran or reasonably raised by the record, involves an attempt to obtain an appropriate rating for a disability and is therefore part of the claim for an increased rating. Nonetheless, the evidence in this case does not raise a TDIU claim, either expressly or implicitly. Indeed, the evidence shows that the Veteran has remained employed. Under the circumstances, the Board will not endeavor to consider entitlement to TDIU in connection with this appeal. In sum, the Board finds that the Veteran is not entitled to an initial disability rating higher than 50 percent for obstructive sleep apnea with asthma prior to December 4, 2014. The Veteran, however, is entitled to a 60 percent disability rating, and no greater, from December 5, 2014, to December 4, 2015. To that extent, this appeal is granted. ORDER An initial disability rating in excess of 50 percent for obstructive sleep apnea with asthma prior to December 5, 2014 is denied. An increased disability rating of 60 percent, and no higher, for obstructive sleep apnea with asthma from December 5, 2014, to December 4, 2015, is granted, subject to the laws and regulations governing the payment of VA monetary benefits. ____________________________________________ MICHAEL LANE Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs