Citation Nr: 21061956 Decision Date: 10/05/21 Archive Date: 10/05/21 DOCKET NO. 19-11 733 DATE: October 5, 2021 ORDER The claim of entitlement to service connection for a sleep condition is denied. The claim of entitlement to a rating in excess of 60 percent for bronchial asthma is denied. The claim of entitlement to a special home adaptation grant is denied. FINDINGS OF FACT 1. The preponderance of the evidence is against finding that a claimed sleep condition began during active service or is otherwise related to an in-service injury or disease. 2. The Veteran's bronchial asthma has not increased in severity to show 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; requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications to warrant a 100 percent disability rating. 3. The Veteran does not have a permanent and total disability that includes the anatomical loss or loss of use of both hands; is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the truck; is due to full thickness or subdermal burns that have resulted in contracture(s) with limitation of motion of one or more extremities or the trunk; or, is due to residuals of an inhalation injury. The Veteran's disability is additionally not due to blindness in both eyes. CONCLUSIONS OF LAW 1. The criteria for service connection for a sleep condition are not met. 38 U.S.C. §§ 1110, 1131, 5107; 38 C.F.R. §§ 3.102, 3.303. 2. The criteria for a rating for bronchial asthma in excess of 60 percent have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1-4.7, 4.97, Diagnostic Code 6602. 3. The criteria for establishing eligibility for financial assistance for a special home adaptation are not met. 38 U.S.C. §§ 2101, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.809a. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had honorable active duty service with the United States Marine Corps from September 1976 to August 1977. The instant matter is on appeal from March 2016 and February 2018 rating decisions. The Board previously remanded these issues for additional evidentiary development in April 2020. Following this remand, the claims of entitlement to service connection for headaches, an acquired psychiatric disorder, and entitlement to a total disability rating based upon individual unemployability due to service-connected disabilities (TDIU) were granted. The TDIU was granted effective the date of the Veteran's claim related to his service-connected bronchial asthma. Thus, these grants constitute full grants of benefits sought on appeal, and these issues are no longer before the Board. 1. The claim of entitlement to service connection for a sleep condition The Veteran contends that he is entitled to service connection for a sleep condition. Generally, service connection will be granted for a disability resulting from an injury or disease caused or aggravated by service. 38 U.S.C. §§ 1110. A grant of service connection for a disability requires: (1) a present disability or persistent or recurrent symptoms of a disability; (2) an in-service incurrence or aggravation of a disease or injury; and (3) a causal relationship ("nexus") between the present disability and the in-service event, injury, or disease. 38 C.F.R. § 3.303; see Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). The Veteran's VA treatment records reflect a diagnosed sleep disorder and medication prescribed for sleep. He has reported disturbed sleep, particularly in nighttime maintenance of his sleep. In September 2019, he was given education regarding mental health treatment as his clinician determined his sleep complaints were related to his mental health concerns. Mental health treatment records similarly relate his sleep complaints to his mental health diagnoses and a specific trauma. In a February 2021 VA psychiatric examination, the Veteran was diagnosed with other specified trauma and stress-related disorder, which contributed to his disrupted sleep, which was "subsumed by this diagnosis". In the February 2021 VA examination assessing his sleep condition, the examiner noted a sleep impairment as part of the manifestations of his acquired psychiatric disorder. The Veteran was not diagnosed with another sleep-related disorder. Based upon a review of the record, the examiner concluded that the claimed condition was less likely than not related to his military service. Service treatment records failed to note signs or symptoms of another sleep condition, such as sleep apnea. Instead, his sleep impairment was subsumed by his diagnosed acquired psychiatric disorder, for which he is in receipt of service connection. In sum, the evidence of record reflects that the Veteran's service-connected acquired psychiatric disorder causes sleep impairments. He has not been diagnosed with a separate and distinct disability related to his sleep. The Veteran believes that he has a separately compensable sleep disorder related to his active duty service, but he is not competent to provide a medical opinion regarding this issue. The issue is medically complex, as it requires specialized medical training and experience. Therefore, it is outside the competence of the Veteran in this case because the record does not show that he has the medical training or credentials to make such a determination. Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007); see also Kahana v. Shinseki, 24. Vet. App. 428 (2011). Instead, VA treatment records and examination reports have determined that the Veteran's sleep-related complaints are part of his service-connected acquired psychiatric disorder. Consequently, the Board gives more probative weight to the competent, probative medical evidence of record that fails to establish a separately compensable disability in this case. Based on the foregoing, the claim of entitlement to service connection for a sleep condition is denied. The preponderance of the evidence is against the Veteran's claim; thus, the benefit-of-the-doubt rule is not for application. See 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102; Ortiz v. Principi, 274 F.3d 1361, 1365 (Fed. Cir. 2001). 2. The claim of entitlement to a rating in excess of 60 percent for bronchial asthma The Veteran contends that he is entitled to an increased rating for his bronchial asthma. The April 2021 rating decision granted a 60 percent rating for this disability effective the date of his claim. Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities. The percentage ratings are based on the average impairment of earning capacity and individual disabilities are assigned separate Diagnostic Codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. The Veteran's entire history is to be considered when making disability evaluations. See generally 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Staged ratings are appropriate for any initial rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119, 126 (1999). 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding a degree of disability will be resolved in favor of the veteran. 38 C.F.R. § 4.3. In rendering a decision on appeal, the Board must analyze the credibility and probative value of the evidence, account for the evidence which it finds to be persuasive or unpersuasive, and provide the reasons for its rejection of any material favorable to the claimant. Gabrielson v. Brown, 7 Vet. App. 36, 39-40 (1994); Gilbert v. Derwinski, 1 Vet. App. 49, 57 (1990). Competency of evidence differs from weight and credibility. Competency is a legal concept determining whether testimony may be heard and considered by the trier of fact, while credibility is a factual determination going to the probative value of the evidence to be made after the evidence has been admitted. Rucker v. Brown, 10 Vet. App. 67, 74 (1997); Layno v. Brown, 6 Vet. App. 465, 469 (1994). When considering whether lay evidence is competent, the Board must determine, on a case-by-case basis, whether a veteran's particular disability is the type of disability for which lay evidence may be competent. Kahana v. Shinseki, 24 Vet. App. 428 (2011); see also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). A veteran is competent to report symptoms because this requires only personal knowledge, not medical expertise, as it comes to her through her senses. See Layno, 6 Vet. App. 465, 469. Lay testimony is competent to establish the presence of observable symptomatology, where the determination is not medical in nature and is capable of lay observation. Barr v. Nicholson, 21 Vet. App. 303 (2007). Lay evidence may establish a diagnosis of a simple medical condition, a contemporaneous medical diagnosis, or symptoms that later support a diagnosis by a medical professional. Jandreau, 492 F.3d 1372, 1377. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with a veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. 38 U.S.C. § 5107(b); 38 C.F.R. § 3.102. The Veteran's bronchial asthma is evaluated under Diagnostic Code 6602. 38 C.F.R. § 4.97, Diagnostic Code 6602. Under this code, a Forced Expiratory Volume (FEV-1) of 40- to 55-percent predicted, or; FEV-1/FVC of 50 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 warrants a 60 percent disability. A higher 100 percent disability rating under Diagnostic Code 6602 is warranted where a 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. Id. None of the VA examinations of record show the criteria for a higher 100 percent rating. The Veteran's VA treatment records do not reflect 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. VA examinations were conducted in February 2016 and April 2021. The February 2016 VA examination failed to obtain complete pulmonary function test (PFT) results. The April 2021 examination noted that the Veteran intermittently used systemic corticosteroids, approximately three times in the previous 12 months. His condition did not require oral bronchodilators, antibiotics, or oxygen therapy. There was no acute cardiopulmonary abnormality upon chest x-ray. A PFT was performed. Pre-bronchodilator FVC was 92 percent predicted, FEV-1 was 64 percent predicted, and FEV-1/FVC was 53 percent. Post-bronchodilator FVC was 98 percent predicted, FEV-1 was 76 percent predicted, and FEV-1/FVC was 59 percent. FEV-1/FVC was deemed the most accurate representation of his disability. While the lay statements of record from the Veteran and his family members assert more severe symptoms, including "life support" years prior, these statements primary discuss the Veteran's reduced ability to engage in prior physical activities and his symptoms during asthma attacks. These statements do not indicate that the severity of his disability is more akin to a 100 percent rating. Similarly, his VA treatment records do not reflect PFT measurements or prescriptions that would rise to the level of a total disability rating for his asthma. It is noted that although the Veteran may use an inhaler on a daily basis, there is no medical evidence that such is systemic. In this regard, Diagnostic Code 6602 distinguishes between "inhalational" therapy and "systemic" therapy. Specifically, if no more than "inhalational" therapy is required, a 10 or 30 percent disability rating is assigned. If treatment requires "systemic" therapy, higher ratings are assigned depending on frequency of use. By its own language, Diagnostic Code 6602 indicates that bronchial asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational, systemic therapy. See LaPointe v. Nicholson, 21 Vet. App. 411 (Vet. App. 2006) (noting that Diagnostic Code 6602 "clearly makes a distinction between the intermittent or daily use of systemic corticosteroids and the intermittent or daily use of inhaled corticosteroids"). The Court in LaPointe affirmed the Board's previous finding that Diagnostic Code 6602 "requires, among other things, the systemic use of oral or parenteral, not inhaled, corticosteroids to qualify for a rating higher than 30[%]." See id. The Board acknowledges that LaPointe is a non-precedential decision but notes that a non-presidential decision may be cited "for any persuasiveness or reasoning it contains." See Bethea v. Derwinski, 252, 254 (1992). For these reasons, the inhaler treatment does not qualify as they type of therapy that could potentially warrant a 100 percent evaluation. In sum, the evidence of record does not support a higher evaluation than 60 percent, and the claim for an increased rating for asthma is denied. The evidence preponderates against the claim and there is no doubt to resolve. 38 C.F.R. § 3.102. 3. The claim of entitlement to a special home adaptation grant The Veteran asserts entitlement to a special home adaptation grant due to the severity of his service-connected disabilities. The Board previously denied entitlement to specialty home adaptation benefits, and that issue was not subsequently appealed. A veteran can qualify for a grant for special home adaptation if he has a service-connected disability that results in blindness in both eyes with 20/200 visual acuity or less in the better eye with the use of a standard correcting lens or a limitation in fields of vision such that the widest diameter of the visual field subtends an angle no greater than 20 degrees; such a disability need not be permanent and total in nature. Additionally, a special home adaptation grant is available for a veteran that has a permanent and total disability which: (1) includes the anatomical loss or loss of use of both hands; (2) is due to deep partial thickness burns that have resulted in contracture(s) with limitation of motion of two or more extremities or of at least one extremity and the trunk; (3) is due to full thickness or subdermal burns that have resulted in contracture(s) of one or more extremities or the truck; or, (4) is due to residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease). 38 C.F.R. § 3.809a(b). The Veteran is service connected for bronchial asthma, other specified trauma and stress-related disorder, onychodystrophy and skin condition, and migraine headaches. His combined evaluation is 70 percent with a grant of a TDIU effective July 6, 2015. The evidence of record does not establish that the Veteran has loss or loss of use of both hands, nor does he have burn injuries or blindness. While his application for a home adaptation grant did not provide specifics regarding his requested application, the Veteran's subsequent correspondences have focused primarily on the effects of his service-connected respiratory disorder. While inhalational injuries may meet the criteria under 38 C.F.R. § 3.809a, subject to the etiological constraints found in 74 Fed. Reg. 67145, 67148 (Dec. 18, 2009), in this case the Veteran does not meet the threshold issue of having a permanent and total disability for home adaptation grant purposes. The Veteran is in receipt of a 60 percent evaluation for his bronchial asthma and a TDIU due to both his asthma and acquired psychiatric disorder. 38 C.F.R. § 3.809a, however, requires that a disability be rated as permanently and totally disabling and that it originates from one of the specified areas listed in subparts (i-iv). The Veteran's bronchial asthma is not in receipt of a permanent and total disability evaluation, and his TDIU is premised on two separate disabilities of distinct bodily systems. See 38 C.F.R. § 4.16(b) (for purposes of a TDIU, disabilities affecting a single bodily system will be considered as one disability). Even if the Veteran reached this threshold issue, there is no indication from the record that his bronchial asthma is a residual of an inhalation injury. VA regulations allow for a grant of special home adaptation when a veteran has "residuals of an inhalation injury (including, but not limited to, pulmonary fibrosis, asthma, and chronic obstructive pulmonary disease)." 38 C.F.R. § 3.809a(b)(1)(iv). This regulation very clearly states that to meet this criterion for specially adapted housing, a veteran must have an inhalation injury, and the subsequent disorders listed are examples of possible residuals from that initial inhalation injury. In adding "inhalation injury" as a basis for entitlement to a grant of special home adaptation, VA intended to include injuries "from the same incidents that cause severe burns. Inhalation injury is due to breathing steam or toxic inhalants such as fumes, gases, and mists present in a fire environment." 74 Fed. Reg. 67145, 67148 (Dec. 18, 2009). VA, private, and service treatment records do not indicate that the appellant experienced any in-service inhalation injury caused by breathing steam, smoke, gas, or other toxic fume occurring in a fire environment at any time, nor has the Veteran indicated that he has. Service records, instead, reflect complaints related to an upper respiratory tract infection during service. He reported shortness of breath during boot camp, but such was not related to exposure to toxic inhalants. Accordingly, there is no evidence indicating that the Veteran ever suffered an inhalation injury caused by breathing steam, toxic fumes, gases, or mist present in a fire environment, and the Veteran has never asserted that he ever experienced an injury of this nature. The legal authorities differentiate between a disease and injury, and the nature of the Veteran's disability is that of a disease, not an inhalation injury. In the absence of evidence of an "inhalation injury," eligibility for special home adaptation is not warranted. 38 C.F.R. § 3.809a(b)(1)(iv). The Board has considered the lay statements of the Veteran regarding his problems with his respiratory condition. The Board does not doubt those assertions, as the Veteran is competent to report that he has difficulty breathing during physical actions and during attacks. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). Those statements are credible and consistent with the medical evidence of record. These statements, however, are insufficient to establish the requirement of a permanent and total disability for special home adaptation grants, and they do not outweigh the medical evidence that demonstrates that the claimant does not meet any of the required criteria under 38 C.F.R. § 3.809a. The Board acknowledges the Veteran's contentions regarding his need for adapted housing due to his disabilities. These assertions are likely true, but the Veteran does not qualify for a home adaptation grant under 38 C.F.R. § 3.809a, and grants for home alterations cannot be made under these VA regulatory provisions. The Board recommends that the Veteran discuss with his VA care providers whether he should apply for a Home Improvements and Structural Alterations (HISA) grant, which provides grants for medically necessary home improvements and structural alterations, including ramps to allow entrance into the home, allowing accessibility into the kitchen or bathroom, and creating an accessible bathroom and shower. The requirements for assistance in acquiring a special home adaptation grant and the HISA grant differ greatly, and the Veteran may be able to qualify for his requested assistance under this other program. The Board's identification of this benefit in no way endorses a decision one way or the other should such an application be submitted. In sum, the weight of the competent and probative medical evidence preponderates against finding that the Veteran's service-connected disabilities meet any of the criteria under 38 C.F.R. § 3.809a, and the claim is denied. B. MULLINS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Fisher, 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.