Citation Nr: 21067663 Decision Date: 11/04/21 Archive Date: 11/04/21 DOCKET NO. 14-26 409 DATE: November 4, 2021 ORDER Entitlement to an initial rating greater than 30 percent, prior to July 2, 2021, and greater than 60 percent thereafter for service-connected asthma with chronic obstructive pulmonary disease (COPD), is denied. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is denied. FINDINGS OF FACT 1. Prior to July 2, 2021, the Veteran's asthma with COPD was not manifested by FEV-1 of 40 to 55 percent predicted; FEV-1/FVC of 40 to 55 percent; at least monthly visits to a physician for required care of exacerbations, or intermittent courses of systemic corticosteroids. 2. From July 2, 2021, the Veteran's asthma with COPD was not manifested by FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy. 3. The evidence of record demonstrates that the Veteran's service-connected disabilities do not render him unable to secure or follow a substantially gainful occupation. CONCLUSIONS OF LAW 1. The criteria for an initial rating greater than 30 percent, prior to July 2, 2021, and greater than 60 percent thereafter for service-connected asthma with chronic obstructive pulmonary disease (COPD), have not been met. 38 U.S.C. § 1155; 38 C.F.R. § 4.97, DC 6602. 2. The criteria for a TDIU have not been met. 38 U.S.C. § 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.321(b) (1), 4.16(a), (b). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from November 1975 to July 1978. This matter is before the Board of Veterans' Appeal (Board) on appeal from a September 2013 rating decision issued by the Department of Veteran Affairs (VA) Regional Office (RO). A virtual hearing was scheduled for October 2020 to address the service connection appeal. A transcript of the resulting proceeding is of record. In April 2018 and 2021, the Board remanded the increased rating appeal for further development, which (as reflected in the following discussion) has since been completed. See Stegall v. West, 11 Vet. App. 268, 271 (1998). In Rice v. Shinseki, 22 Vet. App. 447 (2009), the Court of Appeals for Veterans Claims (Court) held that a TDIU claim is part of a claim for a higher rating when such claim is raised by the record or asserted by the Veteran. The Court further held that when evidence of unemployability is submitted during the pendency of a claim for an increased evaluation, the claim for TDIU will be considered part and parcel of the claim for benefits for the underlying disability, when such evidence indicates that unemployability is due, at least in part, to the underlying disability on appeal. The record reflects that the Veteran reported issues with employability due to his service-connected disability. The issue of entitlement to TDIU is therefore found to have been raised in connection with the claims here on appeal, and it has been added to the above list of issues before the Board. 1. Entitlement to an initial rating greater than 30 percent, prior to July 2, 2021, and greater than 60 percent thereafter for service-connected asthma. The Veteran seeks increased ratings for his service-connected asthma with COPD. Disability ratings are determined by the applications of the VA's Schedule for Rating Disabilities. 38 C.F.R. Part 4. The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during service and their residual conditions in civil occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Here, the Veteran's respiratory disability has been rated under DC 6604-6602 as the Veteran suffers from both asthma and COPD. For evaluations based on pulmonary function testing (PFT), post-bronchodilator results should be used to apply evaluation criteria under the rating schedule, except when the results of post-bronchodilator PFT were poorer than pre-bronchodilator results. 38 C.F.R. § 4.97(d)(5). A. Prior to July 2, 2021. For this period, the Veteran is in receipt of a 30 percent rating for his service-connected respiratory disability. As such, for a 60 percent rating to be warranted under DC 6602, the evidence must show: 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. Upon review of the record, a rating greater than 30 percent is not warranted for the Veteran's bronchial asthma. During the August 2012 VA examination, pre-bronchodilator PFT resulted in an FEV-1 of 91 percent predicted and an FEV-1/FVC of 90 percent. Post-bronchodilator testing resulted in an FEV-1 of 105 percent predicted and an FEV-1/FVC of 97 percent. The VA examiner identified that FEV-1 as the test result that most accurately reflects the Veteran's pulmonary functioning. The Veteran was afforded the May 2013 VA examination to determine the severity of his service-connected respiratory disability. The pre-bronchodilator PFT resulted in an FEV-1 of 79 percent predicted, FVC of 84 percent, and an FEV-1/FVC of 74.3 percent. Post-bronchodilator testing resulted in an FEV-1 of 78 percent predicted, and FVC of 74 percent of predicated and an FEV-1/FVC of 83.6 percent. The VA examiner identified that FVC as the test result that most accurately reflects the Veteran's pulmonary functioning. The Veteran's asthma was noted to require the use of daily inhaled medications but did not required intermittent (at least three per year) courses of systematic corticosteroids. The October 2018 VA examination report indicates that the Veteran's asthma continued to require daily use of inhaled medications, but not the use of oral or parenteral corticosteroid medications. The VA examiner noted that the Veteran's pre-bronchodilator results were normal, but post-bronchodilator results were not recorded. Based on these results, the Board finds that a rating greater than 30 percent is not warranted. During this period, at worst the Veteran's respiratory disability resulted in post-bronchodilator testing of FEV-1 of 78 percent predicted, and FVC of 74 percent of predicated and an FEV-1/FVC of 83.6 percent predicated with the daily use of an inhaled medication. The Veteran's respiratory disability did not result in 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. As such, a 30 percent evaluation is the most appropriate rating to address the symptomology associated with the Veteran's respiratory disability. Absent objective findings of pulmonary function test results that meet the criteria for a 60 percent rating, the Board finds that such a rating is not warranted. B. From July 2, 2021. The Veteran is seeking a disability rating greater than 60 percent for his service-connected respiratory disability, from July 2, 2021. Under Diagnostic Code 6602, a 100 percent evaluation is warranted for FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy. Diagnostic Code 6604 states that a 100 percent evaluation is warranted for FEV-1 less than 40 percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40 percent predicted; maximum exercise capacity less than 15 ml/kg in oxygen consumption; cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension; acute respiratory failure; or outpatient oxygen therapy. 38 C.F.R. § 4.97. The Veteran was afforded the July 2021 VA examination to determine the current severity of the Veteran's service-connected respiratory disability. The Veteran's respiratory disability was noted to require three (3) intermittent courses or burst systemic corticosteroids, and daily use of inhaled medications. The pre-bronchodilator PFT resulted in an FEV-1 of 79 percent predicted, FVC of 87 percent, and an FEV-1/FVC of 70 percent. Post-bronchodilator testing resulted in an FEV-1 of 89 percent predicted, and FVC of 90 percent of predicated and an FEV-1/FVC of 76 percent. The VA examiner identified that FEV-1/FVC as the test result that most accurately reflects the Veteran's pulmonary functioning. The August 2021 VA examination report indicates that the Veteran's service-connected disability required daily use of inhaled medications but noted the Veteran did not require the use of oral or parenteral corticosteroid medications, or the use of oral bronchodilators. The pre-bronchodilator PFT resulted in an FEV-1 of 79 percent predicted, FVC of 87 percent, and an FEV-1/FVC of 70 percent. Post-bronchodilator testing resulted in an FEV-1 of 89 percent predicted, and FVC of 90 percent of predicated and an FEV-1/FVC of 76 percent. The VA examiner identified that FEV-1 as the test result that most accurately reflects the Veteran's pulmonary functioning. Based on these results, the Board finds that a rating greater than 60 percent is not warranted. During this period, at worst the Veteran's respiratory disability resulted in post-bronchodilator testing of FEV-1 of 79 percent predicted, FVC of 87 percent, and an FEV-1/FVC of 70 percent. Post-bronchodilator testing resulted in an FEV-1 of 89 percent predicted, and FVC of 90 percent of predicated and an FEV-1/FVC of 76 percent. The Veteran's respiratory disability requires three (3) intermittent courses or burst systemic corticosteroids. The Veteran's respiratory disability did not exhibit FEV-1 less than 40-percent predicted; FEV-1/FVC less than 40 percent; DLCO (SB) less than 40-percent predicted; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation); cor pulmonale (right heart failure); right ventricular hypertrophy; pulmonary hypertension (shown by Echo or cardiac catheterization); episode(s) of acute respiratory failure; or, the requirement of outpatient oxygen therapy, to warrant a 100 percent rating. As such, a 30 percent evaluation is the most appropriate rating to address the symptomology associated with the Veteran's respiratory disability, from July 2, 2021. In offering this conclusion, the Board has considered the Veteran's contention that a higher rating is warranted for his disability. While he is competent to report symptoms capable of lay observation, he is not competent to identify a specific level of disability according to the applicable DC. Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007); Layno v. Brown, 6 Vet. App. 465, 470 (1994). Instead, greater probative value is offered to the medical evidence in assessing the severity of the Veteran's disability, as the examiners possess the requisite expertise to render opinions regarding the degree of impairment caused by the Veteran's asthma with COPD and had sufficient facts and data on which to base their conclusions. In this respect, the Board finds that the medical evidence supports the determination offered above. Absent objective findings of pulmonary function test results that meet the criteria for a 100 percent rating, the Board finds that such a rating is not warranted, for the period after July 2, 2021. 2. Entitlement to a TDIU. To establish entitlement to a TDIU due to service-connected disabilities, there must be impairment so severe that it is impossible for the average person to follow a substantially gainful occupation. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.340, 3.341, 4.16. In reaching such a determination, the central inquiry is whether the Veteran's service-connected disabilities alone are of sufficient severity to produce unemployability. Hatlestad v. Brown, 5 Vet. App. 524 (1993). Consideration may be given to the Veteran's level of education, special training, and previous work experience in arriving at a conclusion, but not to his or her age or to the impairment caused by nonservice-connected disabilities. 38 C.F.R. §§ 3.341, 4.16, 4.19; Van Hoose v. Brown, 4 Vet. App. 361 (1993). "Substantially gainful employment" is that employment "which is ordinarily followed by the non-disabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides." Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). As further provided by 38 C.F.R. § 4.16(a), "Marginal employment shall not be considered substantially gainful employment." The regulatory scheme allows for an award of a TDIU when, due to service-connected disabilities, a veteran is unable to secure or follow a substantially gainful occupation, and has a single disability rated 60 percent or more, and that if there are two or more disabilities, at least one disability rated 40 percent or more with additional disability sufficient to bring the combined evaluation to 70 percent. It is also the policy of the VA, however, that all veterans who are unable to secure and follow a substantially gainful occupation by reason of service-connected disabilities shall be rated totally disabled. 38 C.F.R. § 4.16(b). Where the veteran does not to meet the applicable percentage, standards enunciated in 38 C.F.R. § 4.16(a), an extraschedular rating is for consideration where the veteran is unemployable due to service-connected disability. 38 C.F.R. § 4.16(b); see also Fanning v. Brown, 4 Vet. App. 225 (1993). In this case, the Veteran's total disability rating varied prior and after July 2, 2021. Prior to July 2, 2021, the Veteran was only service-connected for asthma with a 30 percent rating. Such a rating does not establish eligibility for a schedular TDIU. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). However, consideration must nevertheless be given as to whether a TDIU is warranted on an extraschedular basis under 38 C.F.R. § 4.16(b). From July 2, 2021, the Veteran again has only one service-connected disability rated at 60 percent, which does establish eligibility for a schedular TDIU rating. See 38 C.F.R. §§ 3.340, 3.341, 4.16(a). Thus, the question, for both time periods, for the Board is whether the Veteran's service-connected asthma prevents the Veteran from securing or following a substantially gainful occupation. The Veteran's VA Form 21-8940s (Veteran's Application for Increased Compensation based on Unemployability) provided that the Veteran was last employed full-time in August 2009 with Department of Defense Army Depot. The Veteran identified his asthma with COPD as the primary source of his inability from securing or following any substantially gainful occupation. The Veteran's highest level of education attained was one year of college. The Veteran's Social Security Administration (SSA) records indicate that the Veteran was awarded SSA disability benefits due to issues related to back pain and arthritis of the back. Moreover, the SSA records also indicate that the Veteran's asthma was found not to "cause more than minimal limitation in the claimant's ability to perform basic work activities. The claimant's asthma was being managed medically..." The VA examiners that conducted the Veteran's VA examinations related to his respiratory condition found that the Veteran's ability to work impacted due to shortness of breath and lack of stamina. The August 2021 VA individual unemployability statement found that the Veteran would be able to perform sedentary work with the limitations imposed by his service-connected respiratory disability. In light of the above, the Board finds that the Veteran's service-connected respiratory disability did not render him unable to secure and maintain substantial and gainful employment. While the Board acknowledges that the Veteran's asthma with COPD impacted his occupational functioning, there is not an indication that the Veteran was rendered unemployable due to his service-connected condition. However, the legal standard is not simply whether the Veteran's occupational capacity is impacted by his disabilities; a high rating is in and of itself a recognition of the fact that the Veteran's disability would impact his employability. Instead, the question in such cases is whether the Veteran retained the economic and noneconomic ability to secure or follow a substantially gainful occupation. See Ray v. Wilkie, 31 Vet. App. 58, 73 (2019). Here, the Board finds no evidence that the Veteran was unable to secure or follow an occupation that would have paid more than marginal income, and that the Veteran's work history and skills and training would have allowed him to secure or follow a substantially gainful occupation. (Continued on next page) As such, the Board must deny entitlement to a TDIU. Evan M. Deichert Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J.R. Higgins 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.