Citation Nr: A21017286 Decision Date: 10/26/21 Archive Date: 10/26/21 DOCKET NO. 210913-186622 DATE: October 26, 2021 ORDER An initial 100 percent evaluation for asthma is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disability (TDIU) is dismissed as moot. FINDINGS OF FACT 1. For the entire appellate period, the Veteran's asthma has been manifested by FEV-1 of less than 40 percent predicted. 2. The appeal for a TDIU has been rendered moot by the grant of a total schedular rating for the service-connected asthma. CONCLUSIONS OF LAW 1. The criteria for an initial rating of 100 percent for asthma have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.3, 4.7, 4.10, 4.96, 4.97, Diagnostic Code 6602. 2. The grant of a 100 percent initial rating for asthma renders the appeal for a TDIU moot. 38 U.S.C. §§ 7104, 7105; 38 C.F.R. § 20.104. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the U.S. Army from February 1959 to January 1961. These matters come before the Board of Veterans' Appeals (Board) on appeal of a June 2021 rating decision by a Regional Office (RO) of the United States Department of Veterans Affairs (VA), which implemented a June 2021 Board decision granting service connection for asthma, and which assigned a 60 percent evaluation effective from September 23, 2014. See June 2021 Rating Decision; June 2021 Board Decision. In September 2021, the Veteran appealed the decision to the Board by requesting the direct review docket pursuant to the Appeals Modernization Act. 38 C.F.R. § 19.2(d). See also September 2021 Decision Review Request: Board Appeal (Notice of Disagreement) (VA Form 10182). Under direct review, no development may be undertaken; the Board considers the same record as the RO in rendering a decision, and there is no evidence submission or a hearing request. The Board additionally notes that, although the Veteran filed a formal claim for a TDIU during the appellate period, which was denied by the Board in June 2021, a derivative TDIU claim also had been raised by the record as part and parcel of his increased rating claim. See Rice v. Shinseki, 22 Vet. App. 447 (2009). See also August 2020 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (reflecting the Veteran's assertion that he was unemployable as a result of his now-service-connected respiratory pathology). Accordingly, the Board has taken jurisdiction over the claim for a TDIU, and has included it as an issue on appeal, as reflected above. 1. An initial 100 percent evaluation for asthma is granted. The Veteran asserts that his service-connected asthma is more severely disabling than reflected by the 60 percent initial evaluation currently assigned. For the reasons that follow, the Board finds a 100 percent initial evaluation for the Veteran's asthma is warranted. VA has adopted a Schedule for Rating Disabilities to evaluate service-connected disabilities. See 38 U.S.C. § 1155; 38 C.F.R., Part IV. The basis of disability evaluations is the ability of the body as a whole, or of the psyche, or of a system or organ of the body to function under the ordinary conditions of daily life, including employment. 38 C.F.R. § 4.10. The percentage ratings in the Schedule for Rating Disabilities represent, as far as practicably can be determined, the average impairment in earning capacity resulting from service-connected diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Generally, the degree of disabilities specified are considered adequate to compensate for considerable loss of working time from exacerbation or illness proportionate to the severity of the several grades of disability. 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities and the criteria for specific ratings. If two disability evaluations are potentially applicable, the higher evaluation will be assigned to the disability picture that more nearly approximates the criteria required for that rating. 38 C.F.R. § 4.7. Otherwise, the lower rating will be assigned. Id. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The schedule recognizes that disability from distinct injuries or diseases may overlap. See 38 C.F.R. § 4.14. However, the evaluation of the same disability or its manifestation under various diagnoses, which is known as pyramiding, is to be avoided. Id. Because the level of disability may have varied over the course of the claim, the rating may be "staged" higher or lower for segments of time during the period under review in accordance with such variations, to the extent the evidence shows distinct time periods where the service-connected disability has exhibited signs or symptoms that would warrant different ratings under the rating criteria. Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007); Fenderson v. West, 12 Vet. App. 119, 126 (1999). In initial-rating cases, where the appeal stems from a granted claim of service connection with respect to the initial evaluation assigned, VA assesses the level of disability from the effective date of service connection. Fenderson v. West, 12 Vet. App. 119, 126 (1999). The Veteran's asthma is in receipt of a 60 percent initial evaluation under Diagnostic Code (DC) 6602, which pertains to bronchial asthma. 38 C.F.R. § 4.97. Evaluations under the Diagnostic Code at issue in this case utilize several different pulmonary function tests (PFT's) and metrics in evaluating disabilities of the respiratory system, including specifically Forced Expiratory Volume in one second (FEV-1) and the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC). See 38 C.F.R. § 4.97, DC 6602. Under DC 6602, as pertinent to the present appeal, a 60-percent evaluation is assigned for an FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or when there are at least monthly visits to a physician for required care of exacerbations, or when intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids are prescribed. See id. A 100-percent rating is assigned when PFT's show an FEV-1 less than 40 percent of predicted value, or FEV-1/FVC less than 40 percent, or when asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. PFT results are generally reported before and after the administration of bronchodilator therapy. VA regulations require the use of post-bronchodilator results in determining disability ratings for Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, unless post-bronchodilator results are poorer than pre-bronchodilator results. See 38 C.F.R. § 4.96(d)(4)(5). See also 38 C.F.R. § 4.96 (d)(6) (reflecting that, when there is a disparity between the results of different PFTs for Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is utilized). Notably, the regulations do not specify whether pre- or post-bronchodilator results should be used when determining disability ratings under Diagnostic Code 6602 (asthma). As 38 C.F.R. § 4.96(d)(4) does not apply explicitly to Diagnostic Code 6602, the Board will use the PFT results that allow the most favorable disability rating to be granted to the Veteran. See 38 C.F.R. §§ 4.3, 4.7. Turning to the evidence of record, the Veteran was afforded a VA respiratory examination in April 2015. See April 2015 VA Respiratory Conditions Disability Benefits Questionnaire (DBQ). The examining VA clinician diagnosed asthma, which required the use of chronic low dose corticosteroids, and the intermittent use of inhalational bronchodilator therapy and inhalational anti-inflammatory medication. Id. PFT results were as follows: pre-bronchodilator testing showed an FEV-1 of 39 percent predicted and an FEV-1/FVC of 50 percent; post-bronchodilator testing showed an FEV-1 of 50 percent predicted and an FEV-1/FVC of 47 percent. Id. The examiner found that FEV-1 results most accurately reflect the Veteran's level of disability resulting from his asthma. Id. No other respiratory conditions were identified. In September 2017, the Veteran submitted a DBQ completed by his private physician, Dr. G.L.M. See September 2017 Respiratory Conditions DBQ from G.L.M., M.D. The Veteran's physician noted respiratory diagnoses including asthma, chronic obstructive pulmonary disease (COPD), and chronic bronchitis, with asthma being the "predominating condition." Id. Dr. G.L.M. indicated that the Veteran's asthma required the use of medication for control, including the daily use of systemic high dose corticosteroids or immunosuppressive medications for control, intermittent use of inhalational bronchodilator therapy and inhalational anti-inflammatory medication, and intermittent oral bronchodilator use. Id. Additionally, Dr. G.L.M. noted the occurrence of two to three "extremely severe" asthma exacerbations in the past 12 months. Id. Pre-bronchodilator testing showed an FEV-1 of 33 percent predicted. Id. Dr. G.L.M. determined that post-bronchodilator testing was not conducted because the Veteran's FEV-1 "was too low to indicate" in the Veteran's particular case. Id. Finally, the physician noted that the Veteran's asthma impacted his functional ability in that "severe" attacks rendered him "unable to perform activities of daily living at times." Id. On VA examination in March 2021, the examining clinician continued the asthma diagnosis and noted that the Veteran's condition required the use of chronic low dose corticosteroids, daily inhalational bronchodilator therapy, and daily oral bronchodilators. See March 2021 VA Respiratory Conditions DBQ. The examiner additionally indicated that the Veteran had experienced one episode of respiratory failure in the past 12 months. Id. The examiner further noted that the Veteran's asthma impacted his occupational functioning, resulting in "decreased productivity and efficiency related to breathlessness[ and] easy fatigue with low endurance during all physical activity, which requires the [Veteran] to frequently take rest breaks to recover and take rescue medications." Id. PFT results were as follows: pre-bronchodilator testing showed an FEV-1 of 37 percent predicted and an FEV-1/FVC of 81 percent; post-bronchodilator testing showed an FEV-1 of 40 percent predicted and an and an FEV-1/FVC of 88 percent. Id. The examiner found that FEV-1 results most accurately reflect the Veteran's level of disability resulting from his asthma. Id. No other respiratory conditions were identified. Based on the foregoing, the Board finds that an initial 100 percent evaluation for the service-connected asthma is warranted. In this regard, the Veteran has consistently exhibited a pre-bronchodilator FEV-1 less than 40 percent predicted. See 38 C.F.R. § 4.97, DC 6602 (reflecting that a 100 percent rating is warranted for an FEV-1 less than 40 percent of predicted value). Accordingly, although the post-bronchodilator FEV-1 results reflected in the April 2015 and March 2021 VA examination reports do not rise to the level required for a rating higher than 60 percent under 38 C.F.R. § 4.97, DC 6602, affording the Veteran the benefit of the doubt, the Board will apply the test results most favorable to the Veteran for rating purposes. See 38 C.F.R. §§ 4.3, 4.7. See also 38 C.F.R. § 4.96(d) (explicitly excluding DC 6602 from the requirement that post-bronchodilator results be used in determining disability ratings for certain respiratory conditions). Accordingly, in light of the VA and private examination reports dated throughout the appellate period reflecting FEV-1 results less than 40 percent predicted, the Board finds that an initial 100 percent rating under Diagnostic Code 6602 is warranted for the Veteran's service-connected asthma. See 38 U.S.C. § 5107 (b); 38 C.F.R. §§ 3.102, 4.3, 4.7; Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1991). 2. Entitlement to a TDIU is dismissed as moot. As discussed above, the Veteran been awarded a total (100 percent) initial evaluation for his service-connected asthma. VA's duty to maximize a claimant's benefits includes potentially considering whether TDIU is warranted for a particular service-connected disability even when a schedular 100 percent rating is already in effect for other service-connected disabilities in order to determine the veteran's eligibility for special monthly compensation (SMC) under section 1114(s). See Buie v. Shinseki, 24 Vet. App. 242, 250 (2011); Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Specifically, SMC may be warranted if a veteran has a 100 percent disability rating for a single disability, and VA finds that TDIU is warranted based solely on a disability other than the disability that is rated at 100 percent. Bradley, 22 Vet. App. 280. Notably, the inferred TDIU claim before the Board is based upon the Veteran's assertion that his inability to secure or follow substantially gainful occupation is due to a combination of his service-connected asthma and frostbite. See August 2020 Veteran's Application for Increased Compensation Based on Unemployability (VA Form 21-8940) (reflecting the Veteran's assertion that he was unemployable as a result of his asthma, frostbite and lung disability). The evidence does not reflect, and the Veteran has not asserted, that he is unable to maintain employment due solely to one of his other service-connected disabilities (right third finger frostbite and osteoarthritis, currently evaluated as 30 percent disabling; tinnitus, currently evaluated as 10 percent disabling; and allergic rhinitis, currently evaluated as noncompensable). Accordingly, because the assignment of a TDIU based solely upon his service-connected asthma is a lesser benefit than the 100 percent schedular evaluation assigned herein for the asthma, the TDIU claim is moot. See Buie, 24 Vet. App. at 250; see also Bradley, 22 Vet. App. 280; Rice, 22 Vet. App. at 453-54. JENNIFER HWA Veterans Law Judge Board of Veterans' Appeals Attorney for the Board L. McCabe, 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.