Citation Nr: 20006765 Decision Date: 01/28/20 Archive Date: 01/27/20 DOCKET NO. 14-12 237A DATE: January 28, 2020 ORDER An initial rating in excess of 30 percent for asthma is denied. An initial rating in excess of 50 percent for sleep apnea is denied. An initial increased (compensable) rating for allergic rhinitis is denied. An initial rating in excess of 60 percent for pseudofolliculitis, tinea pedis & onychomycosis (skin disorder) is denied. FINDINGS OF FACT 1. The Veteran’s asthma is not manifested by FEV-1 of 40 to 55 percent predicted, or an FEV-1/FVC ratio of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids. 2. The Veteran's sleep apnea requires use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. There is no indication or suggestion of chronic respiratory failure, or need for a tracheostomy. 3. The Veteran's rhinitis is manifested by greater than 50 percent nasal obstruction on only one side, without polyps, or objective evidence of incapacitating episodes of sinusitis. 4. The Veteran's skin disorder is rated at the maximum schedular rate. 38 C.F.R. § 4.118. CONCLUSIONS OF LAW 1. The criteria for an initial rating in excess of 30 percent for asthma have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6602 (2018). 2. The criteria for an initial rating in excess of 50 percent for sleep apnea have not been met. 38 U.S.C. § 1155 (2012); 38 C.F.R. § 4.7, 4.97, Diagnostic Code 6847. 3. The criteria for an initial increased (compensable) rating for allergic rhinitis have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6522 (2018). 4. The criteria for an initial schedular rating in excess of 60 percent for a skin disorder have not been met. 38 U.S.C. §§ 1155 (2012); 38 C.F.R. §§ 4.7, 4.118, Diagnostic Codes 7806. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from April 2005 to November 2011. In April 2018, the Board remanded the case for further development. The case has been returned to the Board for further appellate action The Board notes that the Veteran’s representative listed the issues on appeal as: (1) entitlement to a separate increased evaluation for asthma, instead of the currently combined 50% evaluation for sleep apnea with asthma and allergic rhinitis; (2) entitlement to an increased evaluation in excess of 30% for tension headaches; and (3) entitlement to an increased evaluation in excess of 10% for tinea pedis and onychomycosis. However, the Board notes that the service-connected asthma, sleep apnea and allergic rhinitis are all currently assigned separate ratings under different diagnostic codes. See April 2018 Board decision and July 2019 rating decision. Furthermore, the service-connected skin disorder is currently assigned a 60 percent rating under Diagnostic Code 7806, effective November 2, 2011. See July 2019 rating decision. In addition, as noted in the April 2018 Board decision, in his April 2014 VA Form 9, the Veteran expressly limited his appeal to the issues of entitlement to increased ratings for sleep apnea, asthma with rhinitis, and a skin condition. Accordingly, the Board lacks jurisdiction over the increased rating claim for tension headaches and will not adjudicate that issue at this time. As such, the issues on appeal are as noted above. The Veteran has not filed a new claim for an increased rating for tension headaches. However, to the extent that he wishes to file a new claim, that matter is referred back to the RO for clarification, and for any appropriate action. General Legal Criteria for Increased Ratings Disability evaluations are determined by the application of VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2018). 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 active military service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1 (2018). Each disability must be considered from the point of view of the veteran who is working or seeking work. 38 C.F.R. § 4.2. Where there is a question as to which of two evaluations shall be applied, the higher evaluation 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. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21 (2018). The evaluation of the same disability under various diagnoses is to be avoided. 38 C.F.R. § 4.14 (2018). However, § 4.14 does not preclude the assignment of separate evaluations for separate and distinct symptomatology where none of the symptomatology justifying an evaluation under one diagnostic code is duplicative of or overlapping with the symptomatology justifying an evaluation under another diagnostic code. Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107 (b). 1. An initial rating in excess of 30 percent for asthma Under Diagnostic Code 6602, a 10 percent rating is warranted if pulmonary function tests (PFTs) reveal an FEV-1 of 71 to 80 percent predicted, or; an FEV-1/FVC ratio of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for an FEV-1 of 56 to 70 percent predicted, or; an FEV-1/FVC ratio of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is warranted for an FEV-1 of 40 to 55 percent predicted, or; an FEV-1/FVC ratio 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 warranted for an FEV-1 of less than 40 percent predicted, or; an FEV-1/FVC ratio of less than 40 percent, or; more than one attack per week with episodes of respiratory failure, or; required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. On VA examination in April 2012, PFTs showed FVC of 83 percent predicted before bronchodilator and 87 percent predicted after bronchodilator; FEV1 of 77 percent before bronchodilator and 82 percent predicted after bronchodilator; FEV1/FVC of 79.1 percent after bronchodilator. The examiner noted that a DLCO was not done because it was not indicated in the Veteran’s case. The examiner stated the result for the FEV1/FVC test more accurately reflected the Veteran’s pulmonary function. On VA examination in May 2019, PFTs showed FVC of 77 percent predicted before bronchodilator and 79 percent predicted after bronchodilator; FEV1 of 75 percent before bronchodilator and 82 percent predicted after bronchodilator; FEV1/FVC of 82 percent after bronchodilator. The examiner noted that a DLCO was not done because it was not indicated in the Veteran’s case. The examiner stated the result for the FEV1/FVC test more accurately reflected the Veteran’s level of disability. As there is no medical evidence of FEV-1 of 40 to 55 percent predicted, or; an FEV-1/FVC ratio of 40 to 55 percent, a rating in excess of 30 percent is not warranted under Diagnostic Code 6602. Given the absence of PFT results which meet the criteria for an increased rating, the Board must turn to other criteria under the current rating schedule to determine if a higher rating is warranted. A review of the medical records shows does not show that the Veteran has required monthly visits to a physician for required care of exacerbations, or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids for his asthma. Based on such findings, the Board concludes that the criteria for a rating in excess of 30 percent are not met or approximated under the current regulations at any time during the appeal. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 2. An initial rating in excess of 50 percent for sleep apnea Under 38 C.F.R. § 4.100, Diagnostic Code 6847, sleep apnea that requires use of a breathing assistance device such as a continuous airway pressure (CPAP) machine, warrants a 50 percent rating. To receive the next higher rating of 100 percent, the evidence must show symptoms of or symptoms which equate in severity with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. The evidence does not show that a 100 percent rating is warranted for sleep apnea. The Veteran has described fatigue, drowsiness, rapid onset of sleep during normal daily activities, and not breathing while asleep without a CPAP. However, he does not assert, and the evidence does not show, symptoms which warrant the higher, 100 percent, disability rating. In this regard, VA and private treatment records and VA examinations (see April 2012 and May 2019 VA examinations) do not reflect that the Veteran has been treated for respiratory failure, carbon dioxide retention, or cor pulmonale at any point during the appeal period. Similarly, treatment records and VA examinations do not document, and the Veteran does not claim, that he has undergone a tracheostomy to treat his sleep apnea at any point during the appeal period. Simply put, there are no symptoms of record to support a finding that the Veteran has met the criteria for a 100 percent disability rating for his service-connected sleep apnea at any point during the appeal period. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 3. An initial increased (compensable) rating for allergic rhinitis Allergic or vasomotor rhinitis is rated under Diagnostic Code 6522. Under DC 6522, allergic rhinitis warrants a 10 percent rating when there are no nasal polyps but there is greater than 50 percent obstruction of nasal passages on both sides or complete obstruction on one side. A maximum rating of 30 percent is warranted when polyps are present. 38 C.F.R. § 4.97, Diagnostic Code 6522. None of the evidence of record, which includes VA and private treatment records and VA examinations in April 2012 and May 2019, shows greater than 50 percent obstruction of the nasal passage on both sides or complete obstruction on one side due to rhinitis. There is also no evidence during the appeal period of nasal polyps. As such, a compensable rating is not warranted under Diagnostic Code 6522 at any time during the appeal period. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). 4. An initial rating in excess of 60 percent for a skin disorder The Veteran's skin disorder is rated 60 percent disabling under Diagnostic Code 7806 for the entire period on appeal. Under both previous DC 7806 criteria, and the new General Rating Formula for Skin, a 60 percent rating is the maximum rating assignable under DC 7806. As such, a rating in excess of 60 percent is not permitted under the General Rating Formula. DC 7820 also permits the disability to be rated as disfigurement of the head, face or neck or as scars. The Veteran's skin disorder does not cause any disfigurement to the head, face or neck to warrant a rating based on such symptomatology. Scars are also not identified. As a result, an increased rating in excess of 60 percent for the service-connected skin disorder is denied. Consideration under 38 C.F.R. § 3.321 (b)(1) has not been specifically sought by the Veteran or reasonably raised by the facts found by the Board. As such, there is no basis for extraschedular discussion in this case. See Yancy v. McDonald, 27 Vet. App. 484, 494 (2016). KELLI A. KORDICH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board F. Yankey, Counsel The Board’s decision in this case is binding only with respect to the instant matter decided. This decision is not precedential, and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.