Citation Nr: A20007355 Decision Date: 04/30/20 Archive Date: 04/30/20 DOCKET NO. 190812-19461 DATE: April 30, 2020 ORDER Entitlement to a rating in excess of 10 percent for asthmatic bronchitis is denied. REMANDED Entitlement to service connection for sleep apnea, to include on a secondary basis, is remanded. FINDING OF FACT Throughout the appeal period, the Veteran’s FEV-1 and FEV-1/FVC results were greater than 70 percent of the predicted value and his asthma only required intermittent use of inhalational bronchodilator therapy. CONCLUSION OF LAW The criteria for a rating in excess of 10 percent for asthmatic bronchitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 1973 to March 1978. These matters come before the Board of Veterans’ Appeals (Board) from a March 2019 rating decision by a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was initiated under the Legacy system with October 2018 notice of disagreements (NOD) following July and September 2018 rating decisions. However, in February 2019, the Veteran elected to participate in the Rapid Appeals Modernization Program (RAMP), a pilot program to test the new appellate framework for veterans dissatisfied with VA’s decision under the Appeals Modernization Act (AMA), which became effective February 19, 2019. The Veteran elected the higher-level review, which involved withdrawing his pending Legacy appeal and returning to the RO for further consideration. A March 2019 RAMP rating decision then again denied the Veteran’s claims. The Veteran timely appealed this RAMP rating decision to the Board in August 2019 and requested direct review of the evidence considered by the Agency of Original Jurisdiction (AOJ). For direct review appeals, the record on appeal that can be considered by the Board herein consists solely of the record before the AOJ at the time of the March 2019 decision on appeal. Entitlement to a rating in excess of 10 percent for asthmatic bronchitis. The Veteran’s asthma is rated as 10 percent disabling pursuant to Diagnostic Code 6602. 38 C.F.R. § 4.97. Bronchial asthma is rated under 38 C.F.R. § 4.97, Diagnostic Code 6602. For evaluations based on pulmonary function testing (PFT), post-bronchodilator results should be used to apply evaluation criteria under the rating schedule, except when the results of post-bronchodilator PFT were poorer than pre-bronchodilator results. 38 C.F.R. § 4.97(d)(5). Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy, is rated 10 percent disabling. 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, is rated 30 percent disabling. 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, is rated 60 percent disabling. 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, is rated 100 percent disabling. A Note to Diagnostic Code 6602 provides that, in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97. The Veteran filed his claim for an increased rating in April 2018. In June 2018, the Veteran was afforded a VA respiratory conditions examination. See June 2018 C&P Exam. The VA examiner diagnosed asthmatic bronchitis. The Veteran’s asthmatic bronchitis was treated with the intermittent use of inhalational bronchodilator therapy. The examiner noted the Veteran’s respiratory condition did not require the use of oral or parenteral corticosteroid medications, did not require the use of oral bronchodilators, did not require the use of antibiotics, and did not require outpatient oxygen therapy. The examiner noted the Veteran had not had any asthma attacks over the past 12-month period and did not have any physician visits for required care of exacerbations. The examiner noted that the Veteran’s respiratory condition did not impact his ability to work. The examiner noted that a PFT had been requested and would be provided soon and completed and reported. A July 2018 VA treatment record noted a pulmonary function pre-assessment in which the Veteran stated he had not begun any new medication since the date of the June 2018 order. It was noted that he was taking albuterol. See September 2018 CAPRI. A July 2018 PFT report noted post-bronchodilator FEV-1 results were 91 percent of the predicted value and the FEV-1/FVC value was 96.9 percent. See September 2018 CAPRI. A September 2018 VA treatment record noted the Veteran had been experiencing a tightness in the left side of his chest and that he was back up to smoking 12 cigarettes a day. See March 2019 CAPRI. He had previously gotten it down to eight a day. The provider noted the Veteran’s EKG did not show any abnormalities. VA treatment records from 2018 to 2019 noted active medications included use of albuterol by oral inhalation on an as needed basis. See September 2018 CAPRI and March 2019 CAPRI. The Board finds that the evidence is against a higher 30 percent evaluation for the Veteran’s disorder. The Veteran’s FEV-1 and FEV-1/FVC results were greater than 70 percent of the predicted value. See September 2018 CAPRI. The Veteran is not shown to have required daily inhalational therapy for his asthmatic bronchitis. In this regard, the June 2018 VA examiner specifically found that the Veteran required intermittent bronchodilator therapy for his asthmatic bronchitis, not daily therapy. Also, although the Veteran was prescribed albuterol, which could be taken daily if needed, the evidence does not show that the Veteran took albuterol daily, nor has the Veteran specifically alleged such a regimen. Additionally, there is no indication or assertion that the Veteran was receiving inhaled anti-inflammatory therapy during this period. Thus, the Board finds that the preponderance of the evidence is against the assignment of a rating in excess of 10 percent for the Veteran’s service-connected asthmatic bronchitis, and the claim must be denied. 38 U.S.C. § 1155(b); 38 C.F.R. § 4.97, Diagnostic Code 6602. REASONS FOR REMAND Entitlement to service connection for sleep apnea, to include on a secondary basis, is remanded. The Veteran contends that his sleep apnea is secondary to his service-connected asthmatic bronchitis. The Veteran was provided a VA examination in June 2018. See June 2018 C&P Exam. The VA examiner found that it was less likely as not that the Veteran’s sleep apnea was proximately due to or related to his service-connected asthmatic bronchitis. The examiner noted the initial diagnosis of sleep apnea was in the 1990s and referenced a 1990 sleep study performed at a facility on Leesburg Road in Columbia, South Carolina. The Board notes, however, that the examiner did not address the question of aggravation. The Board finds that a supplemental VA medical opinion is required as the June 2018 VA medical opinion is inadequate. The VA examiner failed to address whether the Veteran’s sleep apnea was worsened or aggravated by his service-connected asthmatic bronchitis as required under 38 C.F.R. § 3.310. See El-Amin v. Shinseki, 26 Vet. App. 136, 140 (2013) (a medical opinion is inadequate when it fails to adequately address the question of aggravation). Accordingly, the Veteran has not been provided an adequate VA examination. See Barr v. Nicholson, 21 Vet. App. 303, 311-12 (2007) (holding that once VA undertakes the effort to provide an examination when developing a claim, even if not statutorily obligated to do so, VA must ensure that the examination provided is adequate). Additionally, as highlighted in the April 2020 appellate brief, the June 2018 VA examiner referenced a 1990 sleep study and was able to provide the location of the facility where the sleep study was performed. However, it does not appear that the treatment record has been associated with the claims file and the claims file does not reflect that VA has attempted to obtain such record. See April 2020 Appellate Brief. As such, the Board finds that a remand is also warranted to obtain the aforementioned record that is pertinent to this issue. VA has an affirmative duty to assist claimants obtain relevant records. See 38 U.S.C. § 5103A(b)(1). The Board notes that the above errors are pre-decisional duty to assist errors and remand is therefore appropriate under the AMA. 38 C.F.R. § 20.802(a). The matter is REMANDED for the following action: 1. Contact the Veteran and afford him the opportunity to identify by name, address and dates of treatment or examination of any relevant VA medical records. A specific request should be made for outstanding VA and treatment records from 1978 to 2007, to include the referenced 1990 sleep study conducted at a facility on Leesburg Road in Columbia, South Carolina. All applicable archived records should be obtained. All information obtained must be made part of the file. All attempts to secure this evidence must be documented in the claims file, and if, after making reasonable efforts to obtain named records, they are not able to be secured, provide the required notice and opportunity to respond to the Veteran and his representative. 2. After development in #1 is completed, send the Veteran’s claims file to an appropriate medical professional to obtain an addendum to the June 2018 VA opinion regarding the nature and etiology of the sleep apnea. The Veteran’s claims file must be made accessible to the designated professional for review. A complete rationale for any opinion expressed should be provided. Following review of the claims file, the examiner is then requested to respond to the following: (a) Is it at least as likely as not (50 percent probability or greater) that his sleep apnea had its onset in, or is otherwise related to, active military service? Why or why not? (b) Is it at least as likely as not (50 percent probability or greater) that his sleep apnea is proximately due to the Veteran’s service-connected asthmatic bronchitis? Why or why not? (c) Is it at least as likely as not (50 percent probability or greater) that his sleep apnea is aggravated by the Veteran’s service-connected asthmatic bronchitis? Why or why not? S. HENEKS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board J. Cheng, 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.