Citation Nr: 21065248
Decision Date: 10/25/21	Archive Date: 10/25/21

DOCKET NO. 17-48 163
DATE: October 25, 2021

REMANDED

Entitlement to an initial rating in excess of 30 percent for obstructive sleep apnea prior to June 9, 2017, is remanded.

Entitlement to a rating in excess of 50 percent for obstructive sleep apnea from June 9, 2017, is remanded.

Entitlement to an initial rating in excess of 10 percent for asthma, previously rated under obstructive sleep apnea, is remanded.

REASONS FOR REMAND

The Veteran served on active duty from May 2004 to July 2015.

These matters return to the Board of Veterans' Appeals (Board) following the issuance of a May 2019 Board remand which directed the Regional Office (RO) to undertake additional development. 

1. Entitlement to an initial rating in excess of 30 percent for obstructive sleep apnea prior to June 9, 2017, is remanded.

2. Entitlement to a rating in excess of 50 percent for obstructive sleep apnea from June 9, 2017, is remanded.

3. Entitlement to an initial rating in excess of 10 percent for asthma, previously rated under obstructive sleep apnea, is remanded.

The Veteran is seeking a higher rating specifically for sleep apnea during the periods prior to and following, June 9, 2017.  

Prior to June 9, 2017, the Veteran's sleep apnea was rated under Diagnostic Codes (DC) 6602-6847, addressing both asthma and obstructive sleep apnea.  The RO issued a statement of the case in July 2017 granting service connection for sleep apnea and an increased rating for asthma.  The RO stated that separate ratings for these disorders was not supported by VA regulations.  However, the RO misapplied 38 C.F.R. § 4.96 (a) which specifically states that ratings under diagnostic codes 6600 through 6817 and 6822 through 6847 will not be combined with each other.  See 38 C.F.R. § 4.96 (a).  The Veteran's asthma at the time was rated under DC 6602 and the Veteran's sleep apnea would have been rated by itself under DC 6847.  These DCs fall within the non-combination provision of 38 C.F.R. § 4.96 (a) and should not have been combined by the RO.  Id. This should be intuitive, as the symptoms discussed in each diagnostic code are separate and distinct from each other.  

Moreover, while the Veteran's asthma is no longer assigned a rating by the RO on the most recent codesheet, the evidence suggests that he still suffers from this disorder.  Additionally, more evidence has been added to the record since the July 2017 statement of the case and higher ratings may be warranted for the disorders on appeal before the Board.  Thus, a remand is necessary so that the Veteran's asthma may be again assigned a rating or a staged rating, and so that his sleep apnea may be properly assigned ratings.  

The matters are REMANDED for the following action:

1. Assign ratings appropriate with the medical evidence and rating criteria for the Veteran's sleep apnea and asthma.

2. After the completion of the above directives, the RO should issue to the Veteran and his representative a supplemental statement of the case and return all claims not granted in full to the Board for appellate review. 

 

 

B.T. KNOPE

Veterans Law Judge

Board of Veterans' Appeals

Attorney for the Board	Q. Hernan, Attorney Advisor