Citation Nr: 20008293 Decision Date: 01/31/20 Archive Date: 01/30/20 DOCKET NO. 18-10 501 DATE: January 31, 2020 ORDER A 60 percent rating, but no higher, for bronchial asthma with chronic obstructive pulmonary disorder (COPD) is granted, effective September 18, 2017. A rating in excess of 30 percent for bronchial asthma with COPD prior to September 18, 2017, is denied. An evaluation in excess of 10 percent for hypertension is denied. REMANDED Entitlement to a rating in excess of 30 percent for a right kidney disability (nephrectomy) is remanded. Entitlement to a total disability rating based on individual unemployability due to service connected disabilities (TDIU) is remanded. FINDINGS OF FACT 1. From September 18, 2017, the Veteran’s service connected bronchial asthma with COPD has been manifested by FEV-1 of between 40 to 55 percent; the November 2017 VA examination report reflects that the predominant respiratory disability is unable to be determined. 2. Prior to September 18, 2017, the Veteran’s service connected bronchial asthma with COPD was not manifested by pulmonary function test findings consistent with the schedular criteria for a 60 percent or higher rating for bronchial asthma or COPD. 3. The Veteran’s service connected hypertension has been manifested by no more than the requirement of continuous medication, with diastolic pressure predominantly less than 110 and systolic pressure predominantly less than 200 for the entire period on appeal. CONCLUSIONS OF LAW 1. The criteria for a rating of 60 percent, but no higher, for bronchial asthma with COPD from September 18, 2017, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97 Diagnostic Code 6604 6602. 2. The criteria for a rating in excess of 30 percent prior to September 18, 2017, for bronchial asthma with COPD are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97 Diagnostic Code 6604 6602 3. The criteria for a rating in excess of 10 percent for hypertension are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.104 Diagnostic Code 7101. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from July 1969 to July 1989. These matters come before the Board of Veterans’ Appeals (Board) on appeal from rating decisions issued by a Department of Veterans Affairs (VA) Regional Office (RO). Disability Evaluations Disability evaluations are determined by the application of the VA Schedule for Rating Disabilities (Rating Schedule). 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 their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. If two evaluations are potentially applicable, the higher evaluation 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. A disability may require re evaluation in accordance with changes in a veteran’s condition. It is thus essential, in determining the level of current impairment, that the disability be considered in the context of the entire recorded history. 38 C.F.R. § 4.1. The Board will consider entitlement to staged ratings to compensate for times since filing the claim when the disability may have been more severe than at other times during the course of the claim on appeal. Fenderson v. West, 12 Vet. App. 119 (1999). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided. Separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). 1. Entitlement to an increased rating in excess of 30 percent for bronchial asthma with COPD. The Veteran contends that his bronchial asthma with COPD is worse than currently evaluated and warrants a 60 percent rating. Specifically, he contends that the November 2017 VA contract examination for respiratory conditions was inadequate because the examiner did not provide a rationale for why the FEV 1/FVC score more accurately reflected his level of disability than the FEV 1 and DLCO (SB) scores. See February 2018 substantive appeal (Form 9). The Board concludes that an increased evaluation of 60 percent, but no higher, is warranted for bronchial asthma with COPD, effective September 18, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.3, 4.7, 4.96, 4.97 Diagnostic Code 6604 6602. By way of history, the Veteran initially was granted service connection for bronchial asthma, with a 30 percent evaluation assigned, effective July 26, 1993, the date of claim. A June 1994 VA examination report found the Veteran had reduced inspiratory vital capacity and a June 1994 pulmonary function test (PFT) showed a Forced Expiratory Volume in One Second (FEV-1) of 62 percent. The record reflected that the Veteran had moderate asthma with frequent attacks and moderate dyspnea on exertion between attacks, but that he did not have severe asthma with one or more attacks weekly or marked dyspnea on exertion between attacks with only temporary relief by medication to warrant a 60 percent evaluation. May 2011 private medical records show the Veteran was diagnosed with chronic dyspnea due to COPD. The condition was treated with inhaled corticosteroids and showed marked improvement. The Veteran filed a claim for an increased rating of his service connected asthma and a claim for service connection for COPD as secondary to his service connected asthma on October 21, 2011 by way of a statement in support of claim. A February 2012 VA contract examination report, translated from German, stated there was evidence of an obstructive pulmonary disorder “in the sense of bronchial asthma” and included a diagnosis of COPD. However, the Veteran’s treating physician did not provide PFT scores or follow VA examination protocol. VA made numerous attempts to have the Veteran’s treating physician provide additional evidence, including PFT scores, and made numerous recommendations to the Veteran to seek additional medical assistance with his claim. However, these attempts to assist the Veteran were futile. Therefore, because the available evidence did not show an increase in severity to warrant an increased evaluation, the 30 percent evaluation for bronchial asthma was continued in an August 2013 rating decision. A July 2017 rating decision granted service connection for COPD, combined it with the service connected bronchial asthma, but continued the 30 percent evaluation. The Veteran appealed from that decision. As stated above, the Veteran’s service connected respiratory disability, bronchial asthma with COPD, is evaluated under the hyphenated Diagnostic Code 6604 6602. Hyphenated Diagnostic Codes are used when a rating under one Diagnostic Code requires use of an additional Diagnostic Code to identify the basis for the rating. 38 C.F.R. § 4.27. 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 disabilities 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). Thus, before the Board can address whether the Veteran’s respiratory disabilities warrant an increased evaluation, the Board must determine which of the Veteran’s coexisting respiratory disabilities is the predominant disability. 38 C.F.R. § 4.96(a); Urban, supra, at 89 90. The criteria used for rating asthma disabilities are listed at 38 C.F.R. § 4.97 Diagnostic Code 6602. Under Diagnostic Code 6602, a 30 percent evaluation is warranted for FEV-1 of 56 to 70 percent; or Forced Expiratory Volume in One Second over Forced Vital Capacity (FEV 1/FVC) ratio of 56 to 70 percent; or daily inhalational or oral bronchodilator therapy or inhalational anti inflammatory medication. A 60 percent evaluation is warranted for 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 maximum 100 percent disability rating is assigned for FEV 1 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 immune suppressive medications. The criteria used for rating COPD are listed at 38 C.F.R. § 4.97 Diagnostic Code 6604. Under Diagnostic Code 6604, a 30 percent evaluation is assigned for FEV 1 of 56 to 70 percent predicted; or FEV 1/FVC ratio of 56 to 70 percent; or Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) of 56 to 65 percent predicted. A 60 percent disability rating is assigned for FEV 1 of 40 to 55 percent predicted; or FEV 1/FVC of 40 to 55 percent; or DLCO (SB) of 40 to 55 percent predicted; or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent disability rating is assigned for FEV 1 less than 40 percent of predicted value; or FEV 1/FVC ratio of less than 40 percent; or DLCO (SB) less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or episode(s) of acute respiratory failure; or the requirement of outpatient oxygen therapy. In evaluating the respiratory disabilities at issue, PFTs are required except: (i) when the results of a maximum exercise capacity test are of record and are 20 ml/kg/min or less; if a maximum exercise capacity test is not of record, evaluation is based on alternative criteria; (ii) when pulmonary hypertension (documented by an echocardiogram or cardiac catheterization), cor pulmonale, or right ventricular hypertrophy has been diagnosed; (iii) when there have been one or more episodes of acute respiratory failure; (iv) when outpatient oxygen therapy is required. 38 C.F.R. § 4.96(d)(1). 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 (asthma). As 38 C.F.R. § 4.96(d)(4) does not apply explicitly to Diagnostic Code 6602, the Board will use the PFT results that allow the most favorable disability rating to be granted to the Veteran. When there is a disparity between the results of different PFTs for Diagnostic Codes 6600, 6603, 6604, 6825 6833, and 6840 6845, so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is utilized. 38 C.F.R. § 4.96(d)(6). The Board notes that 38 C.F.R. § 4.96(d)(6) does not apply explicitly to Diagnostic Code 6602 (asthma), but does apply to Diagnostic Code 6604 (COPD). Both asthma and COPD are evaluated on the basis of findings from PFTs. Here, the first PFT of record since the Veteran was first granted service connection for asthma in 1993 is a September 18, 2017 PFT. The September 18, 2017 PFT showed the Veteran had pre bronchodilator FEV 1 of 55 percent predicted and post bronchodilator FEV 1 of 53 percent predicted; pre bronchodilator FEV 1/FVC ratio of 64 percent; post bronchodilator FEV 1/FVC ratio of 59 percent; and pre bronchodilator DLCO (SB) of 128 percent predicted. A November 2017 VA contract examination report for respiratory conditions showed the Veteran reported symptoms of recurrent episodes of dyspnea and wheezing; dyspnea with brisk walking; and flare ups with weather changes, upper respiratory infections, and exertion. Treatment required the use of inhalational bronchodilator therapy daily. Treatment also required intermittent courses of oral or parenteral corticosteroid medications one to two times per year. The examiner found there was a worsening of symptoms. However, the examiner also found the Veteran’s respiratory disability did not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. Further, the Veteran did not have episodes of respiratory failure, or required physician visits at least monthly for flare ups. The November 2017 VA examination report reflects that the predominant respiratory disability is unable to be determined. Therefore, to afford the Veteran the benefit of the more favorable Diagnostic Code, the Board will consider asthma as the predominant disability, as evaluations need not be predicated on posts bronchodilator findings under Diagnostic Code 6602 (asthma, bronchial). Therefore, because the September 18, 2017, PFT included post bronchodilator findings for an FEV 1 of 53 percent predicted, the Board concludes that the criteria for a 60 percent rating are met for the Veteran’s service-connected respiratory disability, bronchial asthma with COPD, under Diagnostic Code 6602. See Urban, supra; 38 C.F.R. §§ 4.96(a), 4.97 Diagnostic Code 6602. However, a rating higher than 60 percent is not warranted because there is not competent, credible evidence showing that the criteria for a 100 percent rating are met (1) under Diagnostic Code 6602 (FEV 1 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 immune suppressive medications); or (2) under Diagnostic Code 6604 (FEV 1 less than 40 percent of predicted value; or FEV 1/FVC ratio of less than 40 percent; or DLCO (SB) less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or episode(s) of acute respiratory failure; or the requirement of outpatient oxygen therapy). Furthermore, the Board finds that the single 60 percent rating assigned for the coexisting disabilities under Diagnostic Code 6602 is appropriate, and that the severity of the overall disability does not warrant an elevation to the next higher evaluation (100 percent). In so finding, the Board considered that there are not non overlapping symptoms of COPD which would support a higher evaluation when applied to the predominant disability (asthma) under Diagnostic Code 6602. See Urban, supra, at 89 (finding reasonable VA’s interpretation of § 4.96(a) as referring to the next higher evaluation level under the predominant disability Diagnostic Code and that the criteria in that evaluation level are key to assessing the severity of the overall disability from all respiratory conditions). Here, the non overlapping symptoms of COPD do not include DLCO (SB) less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or episode(s) of acute respiratory failure; or the requirement of outpatient oxygen therapy. In evaluating the overall disability of the asthma and COPD conditions together, the evidentiary record from September 18, 2017 to the present shows the symptoms do not more nearly approximate a 100 percent rating under Diagnostic Code 6602. There is no indication the overall disability picture more nearly approximates symptoms of DLCO (SB) less than 40 percent predicted; or maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); or cor pulmonale (right heart failure); or right ventricular hypertrophy; or pulmonary hypertension (shown by echo or cardiac catheterization); or episode(s) of acute respiratory failure; or the requirement of outpatient oxygen therapy. As such, even when considering the overall disability picture presented by the Veteran’s coexisting respiratory disabilities, elevation to the next higher rating criteria of 100 percent under Diagnostic Code 6602 is not warranted. Thus, a 60 percent rating, but no higher, is warranted for the Veteran’s asthma with COPD from September 18, 2017, which is the it is factually ascertainable the criteria for the higher rated were met. See 38 C.F.R. §§ 3.400(o)(2), 4.96, 4.97 Diagnostic Code 6604 6602. See Hart v. Mansfield, 21 Vet. App. 505 (2007) (staged ratings are appropriate when the factual findings show distinct period where the service-connected disability exhibits symptoms that would warrant different ratings); see also Fenderson v. West, 12 Vet. App. 119, 126 (2001). Accordingly, a 60 percent rating, but no higher, is granted for asthma with COPD, effective September 18, 2017. A rating in excess of 30 percent prior to September 18, 2017 is denied as competent, credible evidence has not been presented showing that the criteria for a schedular higher rating were met under either Diagnostic Code 6602 (bronchial asthma) or 6604 (COPD). There is no doubt to resolve. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. 2. A rating in excess of 10 percent for hypertension. The Veteran contends that his hypertension is worse than rated. The Board concludes that the preponderance of the evidence weighs against finding that the Veteran met the criteria for a rating in excess of 10 percent at any time during the appeal period. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.104, Diagnostic Code 7101. The Veteran’s service connected hypertension is rated under Diagnostic Code 7101, which provides for a 10 percent disability rating for diastolic pressure predominantly 100 or more or systolic pressure predominantly 160 or more; or for an individual who requires continuous medication for control. A 20 percent rating is warranted for diastolic pressure predominantly 110 or more or systolic pressure predominantly 200 or more. Higher evaluations are provided for greater diastolic and systolic blood pressure levels. 38 C.F.R. § 4.104, Diagnostic Code 7101. For the entire period on appeal, the evidence of record shows that the Veteran’s hypertension has been manifested by diastolic pressure predominantly less than 110 and systolic pressure predominantly less than 200 with the requirement of continuous medication. VA treatment records include numerous blood pressure readings for the Veteran during the pendency of the appeal. There are no blood pressure readings greater than 110 diastolic and/or 200 systolic. As noted above, to obtain the next higher rating of 20 percent, for hypertension, the evidence of record must indicate diastolic pressure readings predominantly 110 or more, or systolic pressure must be predominantly 200 or more. 38 C.F.R. § 4.104, Diagnostic Code 7101. The currently assigned 10 percent rating contemplates the use of continuous medication for control of hypertension. There are no separately ratable manifestations shown by the record or identified by the Veteran. There is no basis to stage the rating as the evidence shows no distinct period where the disability exhibited symptoms that would warrant a different rating. See Hart v. Mansfeld, 21 Vet. App. 505 (2007) On balance, the weight of the evidence is against the claim for an increased rating. Accordingly, the claim is denied. There is no doubt to resolve. 38 U.S.C. § 5107(b). REASONS FOR REMAND To ensure that VA has met its duty to assist, remand is necessary in the following matters. 38 C.F.R. § 3.159(c). 1. Entitlement to rating in excess of 30 percent for a right kidney disability (nephrectomy). The Veteran contends that his right kidney nephrectomy warrants a rating in excess of 30 percent. A February 2012 VA contract examination is the most recent examination to assess the severity and manifestations of the Veteran’s right kidney nephrectomy. However, the Veteran has provided lay statements that he has increased urinary frequency, every 45 minutes, and other residual symptoms. Therefore, a remand is necessary to schedule him for a contemporaneous VA examination in order to assess the current nature and severity of such service connected disability. See Snuffer v. Gober, 10 Vet. App. 400 (1997); Caffrey v. Brown, 6 Vet. App. 377 (1994). 2. Entitlement to a TDIU. The Veteran raised the issue of entitlment to a TDIU in his December 2018 VA substantive appeal (Form 9). Rice v. Shinseki, 22 Vet. App. 447 (2009) (A TDIU is part of a claim for increased compensation). However, this matter has not been developed or adjudicated in the first instance by the originating agency. Further, the matter of a TDIU is inextricably intertwined with claims for increased evaluations. Therefore, the Board must defer consideration of a TDIU at this time. See Harris v. Derwinski, 1 Vet. App. 181 (1991) (two or more issues are inextricably intertwined if one claim could have significant impact on the other). The matters are REMANDED for the following action: 1. Obtain the Veteran’s VA treatment records for the period from June 2018 to the present. 2. Ask the Veteran to complete a VA Form 21 4142 for all non VA medical providers seen for his kidney disability and related symptoms. Make two requests for the authorized records from all identified sources, unless it is clear after the first request that a second request would be futile. 3. Schedule the Veteran for an examination by an appropriate clinician to determine the current nature and severity of the Veteran’s service connected right kidney disability. The examiner should provide a full description of the disability and report all signs and symptoms necessary for evaluating the Veteran’s disability under the rating criteria for both renal dysfunction and voiding dysfunction (addressing urinary leakage, urinary frequency, and/or obstructed voiding). 4. Ask the Veteran to complete a TDIU application to capture relevant employment, education, and skills/training history. Then, schedule the Veteran for an examination(s) by an appropriate clinician(s) regarding the current severity of that (those) disability(ies) he reports causes unemployability. The examiner should elicit from the Veteran his complete educational, vocational, and employment history and should note his complaints regarding the impact of his disability on employment. The examiner should identify all limitations or functional impairment caused solely by the examined service connected disability(ies). C.A. SKOW Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G.A. Flynn, 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.