Citation Nr: 21063831 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 10-36 540A DATE: October 18, 2021 REMAND Entitlement to a rating higher than 60 percent for reactive airway disease from March 23, 2010 to September 1, 2010 is remanded. Entitlement to a rating higher than 30 percent for reactive airway disease from September 1, 2010 to May 7, 2013 is remanded. Entitlement to a rating higher than 50 percent for sleep apnea with reactive airway disease from May 7, 2013 to March 5, 2019 is remanded. Entitlement to a rating higher than 60 percent for sleep apnea with reactive airway disease from March 5, 2019 is remanded. REASONS FOR REMAND The Veteran served on active duty in the United States Marine Corps from September 1982 to September 2002. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a July 2011 rating decision of the Department of Veterans' Affairs (VA) Regional Office (RO) in Huntington, West Virginia. In October 2016, the Veteran testified at a Travel Board hearing before the undersigned Veterans Law Judge. A transcript of the hearing has been associated with the claims file. In a July 2018 decision, the Board denied the Veteran's claim for an increased rating for his service-connected asthma. The Veteran appealed the Board decision to the Court of Appeals for Veterans' Claims (the Court). In August 2019, the parties to the appeal filed a Joint Motion for Remand of the Board's decision (JMR). In a September 2019 Memorandum, the Court agreed with the parties to set aside the July 2018 Board decision and ordered further consideration and development of the claim, as appropriate. In February 2020 and February 2021, the claim was remanded for further development. In May 2021, the Board granted the Veteran's claim for service connection for sleep apnea. In a May 2021 rating decision, the RO implemented the Board's grant of service connection for sleep apnea. At that time, the RO combined the Veteran's service-connected sleep apnea with his service-connected reactive airway disease and assigned a rating of 50 percent, effective May 7, 2013. The Board regrets any further delay, but it must remand this case on due process grounds. Prior to May 7, 2013, the Veteran's disability is rated under Diagnostic Code 6602 which evaluates bronchial asthma. As of May 7, 2013, the Veteran's disability is rated under Diagnostic Code 6602-6847. Diagnostic Code 6847 addresses sleep apnea. Under DC 6602, bronchial asthma warrants a 10 percent rating for FEV-1 of 71-to-80 percent predicted, or FEV-1/FVC of 71-to-80 percent, or intermittent inhalation or oral bronchodilator therapy. A 30 percent rating is warranted for FEV-1 of 56-to-70 percent predicted, or FEV-1/FVC of 56-to-70 percent, or daily inhalation or oral bronchodilator therapy, or inhalation antiinflammatory medication. A 60 percent rating 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 parental) corticosteroids. A maximum 100 percent rating is assigned for an FEV-1 of less than 40 percent predicted or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requiring daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Diagnostic Code 6847 addresses sleep apnea syndrome. Under this diagnostic code, a 50 percent rating is assigned when the disability requires use of breathing assistance device such as continuous airway pressure (CPAP) machine. A maximum 100 percent rating is available under this diagnostic code when there is chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires tracheostomy. The rule for "rating coexisting respiratory conditions" states "ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other." 38 C.F.R. § 4.96(a). The Board must ultimately determine one rating based on the predominant disability under either Diagnostic Code 6602 or 6847. The Veteran argues that asthma and sleep apnea have distinct symptoms which should be separately rated. However, the prohibition in 38 C.F.R. § 4.96(a) from assigning separate ratings for asthma and sleep apnea is clear and must be observed by the Board. See Urban v. Shulkin, 29 Vet. App. 82, 90-91 (2017) (holding that the Court had no authority to address the argument that obstructive sleep apnea and asthma are so dissimilar to override the prohibition of 38 C.F.R. § 4.96(a) from assigning separate ratings). Thus, the effective date of award for obstructive sleep apnea is a factor in determining the appropriate disability rating for the entire appeal period. By letter dated June 1, 2021, the Veteran was notified of the May 2021 rating decision and his appellate rights. In June 2021, the Veteran submitted VA Form 20-0996 requesting Higher Level Review (HLR) arguing for an earlier effective date for the award of service connection for sleep apnea (among other issues). In July 2021, the RO responded by stating that the Veteran's HLR request was premature as a decision had not been made on his claim. However, the effective date of award of service connection had been made and is an appealable issue. The Board cannot fully address the merits of this claim as the appeal with the effective date of award for service connection for obstructive sleep apnea is inextricably intertwined with the appeal for an increased rating for asthma. Thus, the Board must remand this case for adjudication of his HLR claim for an effective date earlier than May 7, 2013 for the award of service connection for obstructive sleep apnea. This, this matter is REMANDED for the following: 1. Adjudicate the Veteran's VA Form 20-0996 requesting Higher Level Review (HLR) on the issue of entitlement to an effective date earlier than May 7, 2013 for the award of service connection for obstructive sleep apnea. 2. Readjudicate the issue of entitlement to an increased rating for asthma. The RO should revise the coding sheet to accurately reflect the effective date of award assigned for the award of service connection for obstructive sleep apnea (currently coded as sleep apnea with reactive airway disease since October 1, 2002). T. MAINELLI Veterans Law Judge Board of Veterans' Appeals Attorney for the Board T.S. Willie 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.