Citation Nr: 21004315 Decision Date: 01/26/21 Archive Date: 01/26/21 DOCKET NO. 14-19 039 DATE: January 26, 2021 ORDER From February 26, 2010 to October 28, 2017, an initial rating of 60 percent rating for asthma with moderate obstructive lung disease and obstructive sleep apnea (hereinafter asthma) is granted. From October 28, 2017, an initial total rating for asthma is granted. Entitlement to service connection for headaches secondary to asthma is granted. Entitlement to special monthly compensation (SMC) at the housebound rate is granted from April 8, 2018. Entitlement to an initial compensable rating for bilateral hearing loss is denied. REFERRED The issue of entitlement to service connection for a dental disability for treatment purposes only has been raised by the record. See March 2010 VA Form 21-526. The Board once more requests the RO to refer the Veteran’s claim for dental treatment to the appropriate VA Medical Center. FINDINGS OF FACT 1. From February 26, 2010 to October 28, 2017, the Veteran’s asthma was manifested by FEV-1 of 40- to 55-percent predicted, monthly visits to a physician for exacerbations, and intermittent (at least three courses) of systemic oral corticosteroids per year but was not manifested by an FEV-1 of 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. 2. From October 28, 2017, the Veteran’s asthma was more closely manifested by prescribed daily oral corticosteroids and parenteral immunosuppressive medications. 3. The Veteran’s headaches are proximately due to his service-connected asthma disorder. 4. Beginning April 8, 2018, the Veteran has a single service-connected disability rated as total (asthma) and additional service-connected disabilities ratable at 60 percent or more (PTSD and tinnitus). 5. Throughout the appeal period, the Veteran has not had hearing acuity worse than Level I in either ear. CONCLUSIONS OF LAW 1. From February 26, 2010 to October 28, 2017, the criteria for an initial 60 percent rating for asthma, but no higher, are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.10, 4.21, 4.96, 4.97, Diagnostic Code (DC) 6602. 2. The criteria for a 100 percent rating for asthma are met from October 28, 2017. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.1, 4.10, 4.21, 4.96, 4.97, DC 6602. 3. The criteria for entitlement to service connection for headaches are met. 38 U.S.C. §§ 1110, 1111, 5107; 38 C.F.R. §§ 3.102, 3.310. 4. The criteria for SMC at the housebound rate are met from April 8, 2018. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350. 5. The criteria for an initial compensable rating for bilateral hearing loss are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.10, 4.85, 4.86, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from March 2009 to February 2010, including service in Southwest Asia. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from an August 2010 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified before the undersigned. In January 2019, the Board remanded the appeal for further development. 1. From February 26, 2010 to October 28, 2017, entitlement to an initial rating of 60 percent and a 100 percent rating thereafter for asthma is granted. The Veteran is currently in receipt of a 30 percent rating prior to September 26, 2013, a 60 percent rating from September 26, 2013 to October 23, 2018, and a 100 percent rating thereafter for his service-connected asthma. He asserts that he is entitled to a higher rating throughout the appeal period. See August 2011 Notice of Disagreement (NOD). The Board agrees. Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA’s Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Initially, the Board notes that the Veteran is service-connected for obstructive sleep apnea rated as 50 percent disabling under DC 6847 for requiring a continuous airway pressure (CPAP) machine, effective July 25, 2018. See May 2019 Rating Decision. Obstructive sleep apnea (DC 6847) but may not be “combined” or rated separately from the other respiratory disorders delineated in 38 C.F.R. § 4.96(a), including asthma (DC 6602). A 100 percent rating under DC 6847 requires chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. The Board notes that the Veteran has not met, at any time, any of the criteria set forth under a 100 percent rating for obstructive sleep apnea. See April 2019 VA examination report, VA treatment records. Thus, as he currently is in receipt of at least a 60 percent rating pursuant to DC 6602, no further discussion of DC 6847 is warranted. 38 C.F.R. § 4.6, 4.7. The Veteran’s asthma is currently rated pursuant to 38 C.F.R. § 4.97, DC 6602. Under DC 6602, a 60 percent rating is warranted where FEV-1, or the ratio of FEV-1 to FVC, is 40 to 55 percent of predicted; or at least monthly visit to a physician for required care of exacerbations; or intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are required. A total rating under DC 6602 is warranted where FEV-1, or the ratio of FEV-1 to FVC, or DLCO (SB) is less than 40 percent of predicted; or there is more than one attack per week with episodes of respiratory failure; or where daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications is required. The Board notes that asthma, rated under DC 6602, is excluded from the special provisions of 38 C.F.R. § 4.96(d), that among other requirements, directs the rating officer, when reviewing pulmonary function test results, to “use the test result that the examiner states most accurately reflects the level of disability.” As asthma is specifically excluded from this directive, the Board may use the result most favorable to the Veteran, as is required by 38 C.F.R. § 4.7. The Board notes the rating criteria in DC 6602 are constructed of pulmonary function tests, required prescriptive medications, and medical interventions by physicians as required by exacerbations. Thus, while the Veteran is competent to report symptoms of his asthma, such as trouble breathing, the Board finds the Veteran does not have the medical expertise needed to perform these complex medical tests or examinations and cannot provide a nexus between symptoms and his service-connected disorders. These issues are medically complex, as they require knowledge of interpretation of complicated diagnostic medical testing and advanced medical training. Jandreau v. Nicholson, 492 F.3d 1372, 1377, 1377 n.4 (Fed. Cir. 2007). In this regard, the Board has considered the lay statements of record that generally describe the Veteran’s difficulty breathing. See April 2010 Veteran lay statement, March 2011 lay statements from Z.A. and D.A., February 2012 lay statement from A.N., October 2013 Veteran lay statement, April 2014 VA Form 9, November 2017 Notice of Disagreement, and July 2020 Veteran lay statement. The Veteran submitted to VA examinations in April 2010, November 2016, and December 2019. In this regard, the Board notes that just prior to the Veteran’s discharge from active duty in February 2010, he was prescribed prednisone, 50 milligram tabs, in June 2009, November 2009, and January 2010. The Veteran submitted to pulmonary function testing on February 5, 2010 demonstrating a pre-bronchodilator forced expiratory volume in one second (FEV-1) of 74 percent predicted and a FEV-1/FVC (forced vital capacity) of 54%. Post-bronchodilator FEV-1 was 85 and FEV-1/FVC measured 62%. In conjunction with his original claim for service-connection, the Veteran submitted to a VA examination in April 2010. The VA examiner noted the Veteran’s asthma required twice a month visits to a physician to control exacerbations, that he required periodic antibiotics for control of respiratory infections and utilized Albuterol (and inhalational bronchodilator) 6 times per day and Symbicort (a, inhalational combination of a steroid and a long-acting bronchodilator) 4 times per day. The Veteran reported daily shortness of breath, coughing, and soreness of muscles from coughing, though no other complications (cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, chronic respiratory failure) were noted and the Veteran denied any side-effects of his medication. Pulmonary function tests (PFTs) completed by the VA examiner reflected a FEV-1 pre-bronchodilator volume of 64% and a post-bronchodilator volume of 63%. The FEV-1/FVC ratio resulted in a pre-bronchodilator volume of 63% pre-bronchodilator and 61% post-bronchodilator. The VA examiner concluded the Veteran’s diagnosis was asthma with moderate obstructive lung disease. Thus, the Board finds that the Veteran’s asthma more closely manifested a 60 percent rating at the time of his discharge from active duty for 3 courses of oral corticosteroids within one year, at least monthly visits to a physician for the required care of exacerbations, and the February 2010 PFT FEV-1/FVC pre-bronchodilator volume of 54 percent predicted. 38 C.F.R. § 4.7. The Veteran’s asthma was noted to result in expiratory wheeze, requiring the use of approximately 20 Albuterol puffs per day, and elevated asthma Immunoglobulin E levels. See May 2011 VA treatment records. He was prescribed Foradil and Symbicort at that time. In June 2011, the Veteran was examined by a VA allergy and immunology fellow, who concluded the Veteran’s asthma was resulting in weekly headaches lasting 1 to hours at a time only relieved by sleep. In December 2012, the Veteran’s pulmonary functioning was tested regarding employment as a contractor in Iraq. The private PFTs reflected a FEV-1 pre-bronchodilator volume of 53% and a post-bronchodilator volume of 46%. The FEV-1/FVC ratio resulted in a pre-bronchodilator volume of 80% pre-bronchodilator and 76% post-bronchodilator. These results continue to demonstrate the Veteran’s asthma more closely approximating a 60 percent rating for a FEV-1 of 40- to 55-percent predicted. 38 C.F.R. § 4.7, 4.97, DC 6602. In March 2014, the Veteran’s FEV-1 was noted by a VA treatment provider to be “around 66 percent.” The Board finds “around” without the additional PFT testing results available for examination to be overly broad and inadequate for rating purposes. See Bostain v. West, 11 Vet. App. 124, 127-28, quoting Obert v. Brown, 5 Vet. App. 30, 33 (1993) (a medical opinion expressed in terms of “may” also implies “may or may not” and is too speculative to establish a causal relationship); see also Warren v. Brown, 6 Vet. App. 4, 6 (1993) (a doctor’s statement framed in terms such as “could have been” is not probative). The Veteran was examined in August 2014 by a VA treatment provider who noted the Veteran’s FEV-1 was 58 percent and imaging revealed postinflammatory nodular densities throughout the lung parenchyma. In August 2015, the Veteran was started on Spiriva, provided steroids, and recommended for omalizumab. The Veteran presented to a private emergency room in December 2015 and was treated for an acute exacerbation of his asthma. In January 2016, he presented at an urgent care facility and was treated for respiratory inflammation and prescribed naproxen, azithromycin, and Spiriva. In February 2016, the Veteran was treated by a VA pulmonologist who categorized his asthma as severe and persistent. The VA pulmonologist continued the Veteran’s prescriptions for Spiriva and Symbicort, requested that he begin receiving Xolair and considered bronchothermoplasty, a surgical intervention for asthma. In June 2016, a VA treatment provider reviewed October 2015 PFT results reflecting a FEV-1 pre-bronchodilator volume of 49% and a post-bronchodilator volume of 61%. The FEV-1/FVC ratio resulted in a reported volume of 54%. These results continue to demonstrate a 60 percent rating is appropriate. DC 6602. In November 2016, the Veteran submitted to the second VA examination completed during the appeal period. The VA examiner noted the Veteran’s asthma requires intermittent courses or bursts of corticosteroids but that he had not received any in the last 12 months, and that the Veteran was utilizing daily inhalational bronchodilator therapy and anti-inflammatory medications. The examiner stated that the Veteran’s asthma had not required physician visits for exacerbations. The Board notes that this is inaccurate as, is noted above, the Veteran had recently sought emergency room treatment and urgent care treatment for respiratory symptoms and treated specifically for acute exacerbations of his asthma. See December 2015 and January 2016 private treatment records. PFT testing reflected a FEV-1 pre-bronchodilator volume of 58% and a post-bronchodilator volume of 71%. The FEV-1/FVC ratio resulted in a pre-bronchodilator volume of 55% pre-bronchodilator and 64% post-bronchodilator. Thus, under DC 6602, a 60 percent rating continues to be warranted for FEV-1/FVC of 40 to 55 percent. 38 C.F.R. § 4.7. In August 2017, the Veteran began receiving Xolair (omalizumab) cutaneous injections administered by VA medical providers. In September 2017, the Veteran was seen by VA treatment providers for a post-operative regarding his Xolair injection and was prescribed a prednisone burst. In October 2017, the Veteran was admitted to the emergency department of a VA hospital from triage for having trouble breathing and was administered Medrol intravenously. During an urgent care visit on October 17, 2017, the Veteran was prescribed a tapering dose of Medrol by a private treatment provider. On October 28. 2017 the Veteran’s active prescription list with his VA provider indicated he should take 20 milligrams of prednisone three times daily. His Xolair (omalizumab) subcutaneous injection prescription was renewed and administered monthly along with daily prednisone until March 2018 at which time the Veteran began to transition to Nucala (mepolizumab) due to muscle fatigue attributed to Xolair. Notably, in November 2018, the Veteran began receiving monthly injections of Nucala that continue to the present. See October 2020 VA treatment records. In June 2018, VA treatment providers completed pulmonary function testing demonstrating a FEV-1 pre-bronchodilator volume of 41% and a post-bronchodilator volume of 68%. The FEV-1/FVC ratio resulted in a pre-bronchodilator volume of 48% pre-bronchodilator and 62% post-bronchodilator. July 2018 PFTs demonstrated FEV-1 pre-bronchodilator volume of 49% and a post-bronchodilator volume of 57%. The FEV-1/FVC ratio resulted in a pre-bronchodilator volume of 55% pre-bronchodilator and 62% post-bronchodilator. See July 2018 private treatment records. The Veteran submitted to the last VA examination of the appeal period in December 2019. The VA examiner noted the Veteran was receiving monthly Nucala injections, daily oral bronchodilators, and daily inhalational bronchodilators and anti-inflammatory medications. The examiner did not find the use of oxygen or oral/parenteral corticosteroids were required. The examiner reviewed the Veteran’s hospitalizations and concluded that the Veteran most recently required intervention for exacerbations in June 2018. PFTs, performed in November 2019, resulted in an FEV-1 pre-bronchodilator volume of 51% and a post-bronchodilator volume of 64%. His FEV-1/FVC pre-bronchodilator volume was 80% and post was 86%. The examiner noted the Veteran’s symptoms have improved since beginning Nucala injections. The examiner explained in his July 2020 addendum opinion that Nucala (mepolizumab) is considered a systemic Biologic (IM) consisting of antibodies that limits exacerbations of the asthma. The examiner explained it would be considered an immune modifier and concluded that while not generally considered immunosuppressive, it may have some increased risk of certain infections or re-activations of old infections. Thus, for rating purposes, monthly Nucala injections are considered daily high dose parenteral immunosuppressives. 38 C.F.R. §§ 3.102, 4.6, 4.7. Given the evidence noted above, the Board finds that a 60 percent rating is warranted from February 26, 2010 for intermittent courses of systemic (oral or parenteral) corticosteroids coupled with pulmonary function testing limited between 40 and 55 percent predicted for either FEV-1 or FEV-1/FVC. A 100 percent rating is warranted from October 28, 2017, the date the Veteran was first prescribed daily oral corticosteroids that eventually transitioned into monthly immunosuppressive injections. 38 C.F.R. §§ 3.102, 4.6, 4.67, 4.97, DC 6602. 2. Entitlement to a service connection for a headache disability, secondary to asthma, is granted. The Veteran reported that he is experiencing headaches and asserts they are due to his service-connected asthma and the medication prescribed to treat it. See Board Hearing Transcript at 12. The Board agrees. Disability which is proximately due to or the result of a service-connected disease or injury shall be service connected. 38 C.F.R. § 3.310. Here, the Veteran is service-connected for asthma and was diagnosed with headaches associated with his asthma by a VA immunologist. See June 2, 2011 VA treatment records. The Board notes the December 2019 VA examiner concluded that as headaches had their onset prior to the Veteran being prescribed Nucala, that they could not be due to the same. The Board finds this opinion inadequate, as the Veteran has been service-connected for asthma since February 2010 and prescribed various medications throughout that period. Thus, the only probative evidence is the June 2011 VA treatment records in favor of the claim, all three elements of service connection are met, and service connection for headaches is granted as secondary to the Veteran’s service-connected asthma. To the extent the Veteran also asserted at his hearing that dry mouth, fatigue, insomnia, mood swings, sore throat, muscle and bone pain, upset stomach, allergies to include atopic skin disorders, tooth decay, and tongue bacteria are related to his asthma and its prescribed medications, the Board notes all of these symptoms have been previously claimed, denied, and either not appealed or were not perfected. See December 2013 Rating Decision, December 2016 Rating Decision, August 2018 Rating Decision, October 2018 Rating Decision, September 2019 Statement of the Case. See also 38 U.S.C. § 7105; 38 C.F.R. § 20.1103. 3. Entitlement to SMC at the housebound rate is granted from April 8, 2018 is granted. VA has a well-established duty to maximize a claimant’s benefits. See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); see also Bradley v. Peake, 22 Vet. App. 280 (2008). The Veteran is currently in receipt of a 100 percent rating for his asthma effective October 28, 2017. The Veteran is also service connected for tinnitus at 10 percent effective February 26, 2010 and PTSD rated as 50 percent disabling effective April 8, 2018. Thus, he has additional service-connected disabilities independently ratable at 60 percent from April 8, 2018 and SMC at the housebound rate is warranted from that date. 38 U.S.C. § 1114(s); 38 C.F.R. § 3.350(i). 4. Entitlement to an initial compensable rating for bilateral hearing loss is denied. The Veteran is currently service-connected for bilateral hearing loss rated as non-compensable from February 26, 2010 and asserts that he is entitled to a higher rating. See August 2011 NOD. The period on appeal before the Board is from February 26, 2010, the effective date of service connection for bilateral hearing loss. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R., Part 4. The percentage ratings represent, as far as can practicably be determined, the average impairment in earning capacity in civil occupations. 38 U.S.C. § 1155. Ratings for hearing impairment are derived from a mechanical application of the Rating Schedule, using numeric designations based upon the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. 38 C.F.R. § 4.85; see also Lendenmann v. Principi, 3 Vet. App. 345, 349 (1992). By applying the tables in the Rating Schedule to the Veteran’s test results, a Roman numeral designation is assigned, ranging from Level I for essentially normal acuity to Level XI for profound deafness. See 38 C.F.R. § 4.85, DC 6100, Table VI. These Roman numeral designations are then used to determine the percentage evaluation for hearing impairment by applying Table VII. Id. Table VII reflects the disability rating based on the relationship between the values for each ear derived from Table VI. Id. Where there is an exceptional pattern of hearing impairment as defined in 38 C.F.R. § 4.86, the rating may be based solely on puretone threshold testing. An exceptional pattern of hearing impairment occurs when the puretone thresholds in each of the four frequencies 1000, 2000, 3000, and 4000 Hertz are 55 decibels or greater, or when the puretone threshold at 1000 Hertz is 30 decibels or less and the threshold at 2000 Hertz is 70 decibels or more. 38 C.F.R. § 4.86(a), (b). Table VIa, “Numeric Designation of Hearing Impairment Based Only on Puretone Threshold Average,” is used to determine a Roman numeral designation (I through XI) for hearing impairment based only on the puretone threshold average. Table VIa is used when the examiner certifies that use of the speech discrimination test is not appropriate because of language difficulties, inconsistent speech discrimination scores, etc., or when indicated under the provisions of Section 4.86. 38 C.F.R. § 4.85(c). Initially, the Board notes the Veteran submitted audiograms dated December 2012. These audiograms do not contain speech discrimination scores consistent with the Maryland consonant-vowel nucleus-consonant (CNC) Test and are accordingly not adequate for rating purposes. See 38 C.F.R. § 4.85(a). Throughout the appeal period, the Veteran submitted to VA examinations in April 2010 and December 2019. The April 2010 examiner conducted controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing. Testing found an average sensitivity threshold of 14 decibels in the left ear and 16 decibels in the right ear, with 92 percent speech discrimination in the left ear and 92 percent speech discrimination in the right ear. The Veteran did not meet the criteria for an exceptional pattern of hearing impairment in either ear, as none of his pure tone thresholds were greater than 20. See April 2010 VA Audiology Examination Report. The Veteran’s left ear hearing loss measured in April 2010 corresponds to Level I hearing acuity on Table VI and his right ear hearing loss corresponds to Level I hearing acuity on Table VI. Application of these levels of acuity to Table VII prescribes a zero percent rating. See 38 C.F.R. § 4.85, Table VII (DC 6100). The Veteran reported that he hearing loss caused him no functional impairment. The December 2019 examiner conducted controlled speech discrimination testing (Maryland CNC) and pure tone audiometry testing. Testing found an average sensitivity threshold of 11 decibels in the left ear and 14 decibels in the right ear, with 96 percent speech discrimination in the left ear and 100 percent speech discrimination in the right ear. The results from this audiogram indicate the Veteran does not have hearing loss for VA purposes. See 38 C.F.R. § 3.385. The Veteran reported that he has trouble hearing people on the phone or conversations from those on his right. The Veteran’s left ear hearing loss measured in December 2019 corresponds to Level I hearing acuity on Table VI and his right ear hearing loss corresponds to Level I hearing acuity on Table VI. Application of these levels of acuity to Table VII prescribes a zero percent rating. See 38 C.F.R. § 4.85, Table VII (DC 6100). Accordingly, the Veteran’s bilateral hearing loss has been manifested by no greater than Level I hearing impairment throughout the appeal period which corresponds to a non-compensable rating. Thus, as the Veteran is already in receipt of a noncompensable initial rating, entitlement to a compensable rating for bilateral hearing loss must be denied. S. BUSH Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. Rouse, 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.