Citation Nr: 21063925 Decision Date: 10/18/21 Archive Date: 10/18/21 DOCKET NO. 17-42 775 DATE: October 18, 2021 ORDER A 30 percent rating for allergic rhinitis for the entire appeal period is granted. A rating in excess of 10 percent for the Veteran's asthma prior to May 31, 2011 is denied. A 30 percent rating for the Veteran's asthma from May 31, 2011 to October 26, 2016 is granted. A rating in excess of 30 percent for the Veteran's asthma from October 26, 2016 is denied. FINDINGS OF FACT 1. For the entire period on appeal, the Veteran was noted to have allergic rhinitis with nasal polyps. 2. Prior to May 31, 2011, the Veteran's asthma was not characterized by an FEV-1 of 70-percent predicted or less, an FEV-1/FVC of 70 percent or less, daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. 3. From May 31, 2011, the Veteran's asthma is manifested by daily inhalational or oral bronchodilator therapy and/or inhalational anti-inflammatory medication but not an FEV-1 of 55-percent predicted or less; an FEV-1/FVC of 55 percent or less; 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. CONCLUSIONS OF LAW 1. The criteria for a 30 percent rating for allergic rhinitis have been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.10, 4.20, 4.21, 4.40, 4.45, 4.59, 4.97, Diagnostic Code (DC) 6522. 2. The criteria for a rating in excess of 10 percent for the Veteran's asthma prior to May 31, 2011 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96(a), 4.97, DC 6602 3. The criteria for a 30 percent rating, but no higher, for the Veteran's asthma from May 31, 2011 to October 26, 2016 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96(a), 4.97, DC 6602. 4. The criteria for a rating in excess of 30 percent for the Veteran's asthma from October 26, 2016 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96(a), 4.97, DC 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from September 1989 to August 2010. This matter was previously before the Board in June 2019 and was remanded for further development. As remand directives, have been substantially complied with, the Board will proceed with adjudication of the claims. See Stegall v. West, 11 Vet. App. 268 (1998). In an April 2020 rating decision, the RO increased the evaluation of the Veteran's service-connected asthma from 10 percent to 30 percent disabling, effective October 26, 2016. As this does not represent the full grant of benefits sought on appeal, the Veteran's increased rating claim for asthma remains active. Increased Rating The Veteran's entire history is reviewed when making disability evaluations. 38 C.F.R. § 4.1; Schafrath v. Derwinski, 1 Vet. App. 589 (1995). At the time of an initial rating, consideration of the appropriateness of a staged rating is also required. Fenderson v. West, 12 Vet. App. 119 (1999). Disability evaluations are determined by comparing a Veteran's symptoms with criteria set forth in VA's Schedule for Rating Disabilities, which are based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular diagnostic code, the higher of the two evaluations is assigned if the disability more closely approximates the criteria for the higher rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Pyramiding, that is the evaluation of the same disability, or the same manifestation of a disability, under different diagnostic codes, is to be avoided when evaluating a Veteran's service-connected disability. 38 C.F.R. § 4.14 (2017); see Esteban v. Brown, 6 Vet. App. 259, 261-62 (1994). When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the Secretary shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). Staged ratings have been considered for the Veteran's allergic rhinitis and asthma. The Board finds that staged ratings are not appropriate for the Veteran's allergic rhinitis as this condition has been consistent throughout the appeal period. However, as the Veteran's asthma has varied over time, the Board finds that staged ratings are appropriate for the Veteran's asthma. 1. A 30 percent rating for allergic rhinitis is granted for the entire appeal period. The Veteran contends that her allergic rhinitis is more disabling than currently rated. She asserts that she has polyps and is thus entitled to a 30 percent disability rating. The Veteran is in receipt of a noncompensable rating for allergic rhinitis (also claimed as upper respiratory infection and nasal polyps) under DC 6522. Under DC 6522 for allergic or vasomotor rhinitis, a 10 percent rating is warranted for allergic rhinitis without polyps, but with greater than 50-percent obstruction of nasal passage on both sides or complete obstruction on one side. A 30 percent rating is warranted for allergic rhinitis with polyps. The Board notes that other DCs are not applicable to the Veteran's case because DC 6522 addresses allergic or vasomotor rhinitis specifically and to rate her rhinitis under another DC would constitute an impermissible rating by analogy. Copeland v. McDonald, 27 Vet. App. 333, 338 (2015). Turning to the relevant evidence, VA and private treatment records indicate ongoing treatment and complaints of allergic rhinitis. Consistently since July 2010, the Veteran was noted to have allergic rhinitis with nasal polyps. See, e.g., July 2010, May 2017, and June 2018 appointments at Brooke AMC Allergy Clinic. In July 2017, the Veteran underwent a VA examination where her diagnosis of allergic rhinitis was noted. The examiner noted that there is not greater than 50% obstruction of the nasal passage on both sides due to rhinitis, complete obstruction on the left or right side due to rhinitis, or permanent hypertrophy of the nasal turbinates. The examiner also noted that the Veteran had no nasal polyps. As the evidence above indicates that the Veteran has had allergic rhinitis with polyps for the entire period on appeal, the Board finds that a 30 percent rating is warranted for the Veteran's allergic rhinitis for the entire period on appeal. The Board acknowledges that the July 2017 VA examination noted that the Veteran had no nasal polyps. However, this examination's findings are outweighed by the Veteran's private treatment records which have indicated that the Veteran has nasal polyps along with allergic rhinitis, which is what is what is required for a 30 percent rating under DC 6522. The Board notes that 30 percent is the maximum available rating under DC 6522. 2. A rating in excess of 10 percent for the Veteran's asthma prior to May 31, 2011 is denied; a 30 percent rating for the Veteran's asthma from May 31, 2011 to October 26, 2016 is granted; a rating in excess of 30 percent for the Veteran's asthma from October 26, 2016 is denied. The Veteran contends that her asthma is more disabling than currently rated. She suggests her asthma should be rated 60 percent disabling, due to her use of corticosteroids at least intermittently during the appellate period. The Veteran is in receipt of a 10 percent rating prior to October 26, 2016 and a 30 percent rating thereafter under DC 6602. Under DC 6602, a 10 percent rating is warranted for an FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent rating is warranted for an 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. A 60 percent rating is warranted for an 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 rating is warranted for an 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. Turning to the relevant evidence, VA and private treatment records indicate ongoing treatment and complaints of asthma. In a May 2011 private emergency department note, the instructions for Advair noted that the Veteran was to take 1 puff two times per day. The Veteran was also instructed to take prednisone daily for 5 days. In a May 2012 private emergency department note, the Veteran was noted to have an asthma attack at her home. In a November 2012 private visit, the provider noted that the Veteran's pulmonary function test (PFT) was normal. Specifically, FVC was 82 percent predicted. FEV-1 was 81-percent predicted. FEV-1/FVC was 98 percent. According to the test results, the Veteran's FEV-1 was 81-percent predicted, and post-test FEV-1 was 82-percent predicted. In a November 2012 private note, the provider noted that the Veteran has been diagnosed with asthma since 2005. For her asthma, the provider noted that she is on the following medication: Singular 10 mg once per day, Flonase NS (one spray in each nostril each day), one puff of Advair twice daily, and one inhalation of Pro-air HFA every four to six hours. The provider noted that she did not have any limitations due to her condition and/or medication. In a February 2014 private PFT test, FVC was 89 percent predicted. FEV1 was 84 percent predicted. FEV1/FVC was 94 percent predicted. According to the test results, the Veteran's FEV1 was 84 percent predicted, and post-test FEV1 was 88 percent predicted. In October 2016, the Veteran's private records note that she was prescribed daily treatment of Mometasone/Formoterol. According to a February 2017 VA progress note, the Veteran takes Singulair, Dulera, and albuterol for her asthma. In July 2017, the Veteran underwent a VA examination for her respiratory condition, where a diagnosis of asthma was noted. The examiner noted that the Veteran's asthma did not require the use of oral or parenteral corticosteroid medications, oral bronchodilators, or antibiotics. The Veteran does not require outpatient oxygen therapy for her asthma. However, the Veteran's asthma did require use of intermittent inhalational bronchodilator therapy and intermittent inhalational anti-inflammatory medication. The Veteran was not noted to have any asthma attacks with episodes of respiratory failure in the past 12 months. In the July 2017 PFT test, with regard to pre-bronchodilator, FVC was 102-percent predicted; FEV-1 was 102-percent predicted; and FEV-1/FVC was 77 percent. Post bronchodilator, FVC was 106-percent predicted; FEV-1 was 103-percent predicted, and FEV-1/FVC was 75 percent. In a May 2018 private PFT test, post-test FVC was 81 percent. In a June 2018 private PFT test, post-test FVC was 81 percent. In a March 2019 private PFT test, the Veteran's FVC was 77 percent; FEV-1 was 59-percent predicted. Moderate obstruction was noted. In an April 2019 VA annual exam, the provider noted that the Veteran was not wheezing, but she is on a regimen that requires multiple prescriptions. However, the provider asked the Veteran to follow up with a pulmonologist as she continues to use her rescue inhaler frequently. In a May 2019 PFT test, the Veteran's FVC was 68 percent; FEV-1 was 58-percent predicted. The provider noted that the FEV-1 was low. Moderate obstruction was noted. In September 2019, the Veteran was admitted to Kessler Medical Center for severe acute asthma exacerbation. The Veteran was discharged six days later. Analysis Based on the evidence above, the Board finds that a rating in excess of 10 percent for the Veteran's asthma is not warranted prior to May 31, 2011. However, a 30 percent rating for her asthma is warranted beginning May 31, 2011. At no point during the appeal period is a rating in excess of 30 percent warranted for the Veteran's asthma. Prior to May 31, 2011, the Board finds that a rating in excess of 10 percent is not warranted for the Veteran's asthma. As there are no PFT results in the evidence of record prior to May 31, 2011, the Veteran did not have an FEV-1 of 70-percent predicted or less or FEV-1/FVC of 70 percent or less. In addition, the evidence does not show that the Veteran had daily inhalational or oral bronchodilator therapy or inhalational anti-inflammatory medication, which is what is required for a higher, 30 percent rating. However, from May 31, 2011, following an emergency department visit, the evidence shows that the Veteran was prescribed daily inhalational or oral bronchodilator therapy, which warrants a 30 percent rating under DC 6602. When the Veteran was discharged from her emergency department visit on May 31, 2011, the Veteran was instructed to take one puff of Advair daily. The evidence shows that the Veteran has continued to take Advair daily. In November 2012, the provider noted that she is on the following medication for her asthma: Singular 10 mg once per day, Flonase NS (one spray in each nostril each day), one puff of Advair twice daily, and one inhalation of Pro-air HFA every four to six hours. Given the daily inhalational or oral bronchodilator therapy and inhalational anti-inflammatory medication, the Board finds that a 30 percent rating for her asthma, but no higher, is warranted from May 31, 2011. However, at no point during the appeal period is a 60 percent rating warranted for the Veteran's asthma. None of the Veteran's PFT results revealed an FEV-1 of 55-percent predicted or less, or an FEV-1/FVC of 55 percent or less. At worst, the Veteran's March 2019 PFT revealed an FEV1 of 59 percent. Moreover, the evidence does not show that the Veteran requires 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. The evidence notes that the Veteran was most recently admitted to Keesler Medical Center in September 2019 due to severe acute asthma exacerbation. However, there is no indication that the Veteran required monthly visits to a physician for required care of exacerbations. Thus, a 60 percent rating is not warranted. The Veteran is also not entitled to a 100 percent rating under DC 6602. At no point in time does the Veteran's PFT results indicate a value of 40 percent for less for FEV-1 or FEV-1/FVC. None of the medical records or lay statements indicate a weekly incidence of attacks with respiratory failure or daily use of systemic corticosteroids or immuno-suppressive medications. For these reasons, the preponderance of the evidence is against a rating of 100 percent. Given the above, a rating in excess of 10 percent is not warranted for the Veteran's asthma prior to May 31, 2011. A 30 percent rating, but no higher, is warranted for the Veteran's asthma is warranted from May 31, 2011 to October 26, 2016. A rating in excess of 30 percent is not warranted for the Veteran's asthma at any point during the appeal period, including from October 26, 2016. GAYLE STROMMEN Veterans Law Judge Board of Veterans' Appeals Attorney for the Board C. E. Grossman, 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.