Citation Nr: 20006791 Decision Date: 01/27/20 Archive Date: 01/27/20 DOCKET NO. 16-35 017 DATE: January 27, 2020 ORDER Entitlement to a 30 percent disability rating for service-connected asthma, beginning February 23, 2009, is granted. REMAND Entitlement to a disability rating in excess of 30 percent for service-connected asthma, beginning January 26, 2015, is remanded. Entitlement to total disability based on individual unemployability (TDIU) is remanded. FINDING OF FACT Beginning February 23, 2009, the Veteran’s service-connected asthma required daily inhalation or oral bronchodilator therapy; but did not require at least monthly visits to a physician for required care of exacerbations; intermittent course of systemic corticosteroids; more than one attack per week with episodes of respiratory failure; daily use of systemic high dose corticosteroids or immuno-suppressive medications; or manifest at least FEV-1 of 40–55 percent predicted or FEV-1/FVC 40–55 percent. CONCLUSION OF LAW The criteria for entitlement to a 30 percent disability rating for service-connected asthma, beginning February 23, 2009, have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Code (DC) 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from August 1998 to September 2000. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a January 2010 rating decision by the Department of Veterans Affairs (VA) Regional Office (RO) in Seattle, Washington. During the pendency of this appeal, the Veteran twice requested a hearing. See August 21, 2019, Request for Board of Veterans’ Appeals Videoconference Hearing; March 8, 2018, Response to February 13, 2018 Supplemental Statement of the Case (SSOC) and Request for Formal Hearing and that Regional Office not Bifurcate [the Veteran’s] Claims. In November 2019, however, the Veteran withdrew his request for a Board hearing. Thus, the Board will proceed with adjudication of the Veteran’s claim without affording him a hearing. See 38 C.F.R. § 20.603(e). In an attachment to his July 2016 VA Form 9, the Veteran listed that he was appealing the asthma issue contained herein, as well as the issues of entitlement to TDIU and to service connection for a bilateral knee condition. In June 2019, however, VA granted the latter claim. Thus, that issue no longer is before the Board, and it will not be discussed within this decision. See Grantham v. Brown, 114 F.3d 1156 (Fed. Cir. 1997) (noting that a grant of service connection extinguishes appeals before the Board). Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Generally, the degrees of disability specified are considered adequate to compensate for considerable loss of working time from exacerbations or illnesses proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. Where there is a question as to which of two separate evaluations shall be applied, the higher evaluation will be assigned if the disability more closely approximates the criteria required for that particular rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. While a veteran’s entire history is reviewed when assigning a disability rating, where service connection has already been established and an increase in the rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55 (1994). In determining the present level of a disability for any increased rating claim, the Board must consider the application of staged ratings. Hart v. Mansfield, 21 Vet. App. 505, 509 (2007). In other words, where the evidence contains factual findings that demonstrate distinct time periods in which the service-connected disability exhibited diverse symptoms meeting the criteria for different ratings during the course of the appeal, the assignment of staged ratings is necessary. When, after careful consideration of all procurable and assembled data, a reasonable doubt arises regarding the degree of disability, such doubt will be resolved in favor of the veteran. 38 C.F.R. § 4.3. Under 38 C.F.R. § 4.97 and DC 6602, a 100 percent disability rating for asthma requires FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; more than one attack per week with episodes of respiratory failure; or daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. A 60 percent disability rating requires FEV-1 of 40- to 55-percent predicted; 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. A 30 percent rating requires FEV-1 of 56- to 70-percent predicted; FEV-1/FVC of 56 to 70 percent; daily inhalational or oral bronchodilator therapy; or inhalational anti-inflammatory medication. The Veteran originally was awarded service connection for asthma via a November 2001 rating decision, which provided a noncompensable rating effective October 1, 2000. A July 2003 rating decision increased the Veteran’s asthma rating to 10 percent disabling effective October 1, 2000. The instant increased rating claim was filed on February 23, 2009, and the January 29, 2010, rating decision now on appeal continued the Veteran’s then-current 10 percent rating; the Veteran timely appealed via his January 26, 2011, Notice of Disagreement (NOD). During the pendency of this appeal, VA increased, via a May 2016 rating decision, the Veteran’s asthma rating to 30 percent disabling effective January 26, 2015. The evidence of record shows that, since the filing of his claim, the Veteran’s asthma has required the daily use of inhalation or oral bronchodilator therapy. A March 2009 VAMC note indicates that the Veteran has had asthma for over ten years and that he currently uses on a daily basis his prescribed metered dose inhaler. VAMC records throughout the years verify the Veteran’s continued use of his inhaler and eventually was prescribed Albuterol. In September 2015, the Veteran testified before a decision review officer, stating that, since December 2009, he has been using on average once–twice a day his prescribed inhaler; although, he testified that he sometimes used it up to six times per day. The Board finds that the VAMC records, along with the Veteran’s testimony, which the Board finds credible, show that he consistently and daily has used his prescribed inhaler over the course of the period on appeal. Thus, the Board finds that, beginning February 23, 2009, the Veteran is entitled to a 30 percent disability rating for his service-connected asthma. See 38 C.F.R. § 4.97, DC 6602. Until January 26, 2015, however, there is no evidence of record that the Veteran had monthly visits to a physician for required care of exacerbations, intermittent courses of systemic (oral or parenteral) corticosteroids, and there otherwise are no pulmonary function test (PFT) results for this time period. Thus, the evidence of record does not support an award higher than 30 percent for this time period. See 38 C.F.R. § 4.97, DC 6602. REASONS FOR REMAND 1. Entitlement to a disability rating in excess of 30 percent for service-connected asthma, beginning January 26, 2015, is remanded. Since January 26, 2015, VA has provided the Veteran with two examinations to assess the severity of his asthma condition. As will be discussed, these examinations are inadequate and greatly conflict with the other medical evidence of record. Thus, the Board cannot rely on them for rating purposes, and the Veteran must be scheduled for a new examination. An October 2015 VA examination report noted physical examination of the Veteran. The examiner indicated that the Veteran’s asthma required four or more times in the last twelve months intermittent courses or bursts of systemic corticosteroids. The Veteran also required daily use of an oral bronchodilator. There was no history of any asthmatic attacks. A PFT was performed. Pre-bronchodilator tests revealed an FEV-1 of 102 percent predicted and an FEV-1/FVC of 88.63 percent. The latter score was noted as most accurately reflecting the Veteran’s current pulmonary function. At the end of the report, the examiner stated that the Veteran’s “condition is in remission.” A February 2017 VA examination report, completed by the same examiner in October 2015, noted physical examination of the Veteran. This time, the examiner specifically stated that “No records were reviewed.” The examiner indicated that the Veteran’s asthma required daily use of systemic high dose corticosteroids and daily use of inhalation bronchodilator therapy and anti-inflammatory medication. The report further indicates four or more asthmatic attacks with episodes of respiratory failure in the past twelve months. A PFT was performed. Pre-bronchodilator tests revealed an FEV-1 of 99 percent predicted and an FEV-1/FVC of 85.80 percent. The latter score was noted as most accurately reflecting the Veteran’s current pulmonary function. At the end of the report, the examiner stated that the Veteran’s “condition is active.” The VA examiner did not indicate whether she reviewed the Veteran’s medical records during the October 2015 examination, and specifically noted that she did not review the records for the February 2017 examination. While that fact alone does not per se render a VA examination inadequate, the reports vastly diverge from the medical evidence of record. For instance, there is no indication in the records that the Veteran experienced an asthmatic attack requiring hospitalization four or more times between February of 2016 and 2017. The records show that the Veteran has been prescribed Albuterol and, at one point, Symbicort. There is no indication that the Veteran otherwise was prescribed corticosteroids for his asthma. The examination results further are called into question when viewing the PFT results. While PFT results always will not align with its analogous treatment in the rating criteria, the Board notes that, if it were to rate solely based on those results, the Veteran would not even be entitled to a compensable rating. It is hard to reconcile the PFT results with the examiner’s indications that the Veteran’s asthma required treatment indicative of total disability. Furthermore, the Board’s review is frustrated by the examiner’s indication that the Veteran’s asthma is “in remission.” If this were so, then the Board cannot reconcile the Veteran’s need for corticosteroid use. Nevertheless, because the Veteran’s entire medical history accurately was not reviewed, these examinations are inadequate, and the Board cannot rely on them for rating purposes. See Green v. Derwinski, 1 Vet. App. 121, 124 (1991) (“We believe that fulfillment of the statutory duty to assist here includes the conduct of a thorough and contemporaneous medical examination, one which takes into account the records of prior medical treatment, so that the evaluation of the claimed disability will be a fully informed one.”); 38 C.F.R. § 20.904(a). 2. Entitlement to TDIU is remanded. A claim for TDIU, either expressly raised by the Veteran or reasonably raised by the record in association with an increased rating, involves an attempt to obtain an appropriate rating for a disability and is part and parcel of the claim for the increased rating on appeal. Rice v. Shinseki, 22 Vet. App. 447, 454 (2009). Because a portion of the Veteran’s increased rating claim is remanded, the claim for entitlement to TDIU also must be remanded as it is an inextricably intertwined claim. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (the adjudication of claims that are inextricably intertwined is based upon the recognition that claims related to each other should not be subject to piecemeal decision-making or appellate litigation). The matters are REMANDED for the following action: 1. Obtain any ongoing VA treatment records, including a complete list of the medication prescribed to the Veteran for his service-connected asthma. Should they exist associate them with the claims file. 2. Afford the Veteran an opportunity to attend a VA examination to assess the severity of his service-connected asthma. The Veteran’s entire claims file must be made available to the examiner. With respect to any questions regarding prescribed treatment for the Veteran’s asthma, the examiner must indicate the dates of those prescriptions. The examiner also should discuss the findings of the October 2015 and February 2017 VA examiner. 3. Conduct any other development deemed necessary and then readjudicate the Veteran’s claims. If any of the claims are not granted in full, then issue to the Veteran a Supplemental Statement of the Case. After allowing an appropriate amount of time for response from the Veteran, return the claim(s) to the Board. (Continued on the next page)   The Veteran has the right to submit additional evidence and argument on the matter that the Board has remanded. See Kutscherousky v. West, 12 Vet. App. 369, 372 (1999). This claim must be afforded expeditious treatment. The law requires that all claims that are remanded for additional development or other appropriate action by the Board or United States Court of Appeals for Veterans Claims must be handled in an expeditious manner. 38 U.S.C. §§ 5109B, 7112. Rachel Erdheim Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Trevor T. Bernard, Associate 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.