Citation Nr: 21067735 Decision Date: 11/05/21 Archive Date: 11/05/21 DOCKET NO. 15-22 002 DATE: November 5, 2021 ORDER Entitlement to a rating in excess of 60 percent prior to June 3, 2021 for asthma is denied. Entitlement to a rating of 100 percent as of June 3, 2021 for asthma is granted. REMANDED Entitlement to service connection for obstructive sleep apnea, to include secondary to service-connected asthma and/or sinusitis with rhinitis is remanded. FINDINGS OF FACT 1. Prior to June 3, 2021, the Veteran's asthma required at least three intermittent courses of systemic corticosteroids per year. 2. As of June 3, 2021, the Veteran's asthma manifested an FEV-1 less than 40 percent predicted. CONCLUSIONS OF LAW 1. The criteria for a rating in excess of 60 percent prior to June 3, 2021 for asthma are not met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.27, 4.96, 4.97, Diagnostic Code (DC) 6602. 2. The criteria for a 100 percent rating as of June 3, 2021 for asthma are met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.27, 4.96, 4.97, DC 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from May 1979 to July 1994. In February 2021, the Veteran testified at a Board hearing. The transcript is of record. In April 2021, the Board remanded the case for further development, which has been completed. Stegall v. West, 11 Vet. App. 268, 271 (1998). Entitlement to a rating in excess of 60 percent for asthma The Veteran filed a claim for an increased rating for asthma received September 9, 2013. An August 2021 rating decision increased the rating to 60 percent based on intermittent courses of at least three per year of systemic corticosteroids effective the date of claim. The Veteran contends his service-connected asthma warrants a 100 percent rating. Disability evaluations are determined by the application of the facts presented to VA's Schedule for Rating Disabilities (Rating Schedule) at 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 military service and the residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. §§ 3.321(a), 4.1. Where the question for consideration is the propriety of the initial evaluation assigned, consideration of the medical evidence since the effective date of the award of service connection and consideration of the appropriateness of a "staged" rating is required. See Fenderson v. West, 12 Vet. App. 119, 125-26 (1999). VA adjudicators must consider whether to assign different ratings at different times during the rating period to compensate the Veteran for times when the disability may have been more severe than at others. The Court since has extended this practice even to established ratings, not just initial ratings. See Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). The Veteran's asthma is rated at 60 percent under DC 6602, which provides a 60 percent rating where pulmonary function tests (PFTs) show any of the following: FEV-1 of 40 to 55 percent predicted, 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. 38 C.F.R. § 4.97, DC 6602. A 100 percent evaluation is warranted where PFTs show any of the following: 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 where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis. 38 C.F.R. § 4.97, DC 6602. The Board notes that 38 C.F.R. § 4.96(d), gives special provisions regarding evaluation of respiratory conditions, including that when evaluating pulmonary function tests, the test result that the examiner states most accurately reflects the level of disability should be used. However, DC 6602 is specifically excluded from 38 C.F.R. § 4.96(d); therefore, the Board may use the PFT result most favorable to the Veteran. The Veteran attended a VA examination in April 2015. The examiner reported use of inhalation bronchodilator therapy intermittently, anti-inflammatory medications and other inhaled medications daily. There were no asthma attacks with episodes of respiratory failure in the past 12 months or physician visits for required care of exacerbations. The March 2014 PFT post-bronchodilator results revealed an FEV-1 of 61.2 percent predicted and a FEV-1/FVC of 76 percent and the pre-bronchodilator results yielded results of an FEV-1 of 66.6 percent and FEV-1/FVC of 73 percent. The examiner reported that the FEV-1 was the most accurate reflection of the level of disability and found no functional impact on the ability to work. In December 2020 the Veteran underwent another VA examination and reported symptoms of shortness of breath, excessive coughing and difficulty breathing, which impacted his ability to sleep and be around fumes, smoke, dust particles and humid weather. The examiner reported use of oral or parenteral corticosteroids, prednisone, albuterol and Symbicort and daily inhalation bronchodilator therapy, anti-inflammatory medications, and nebulizer treatments but no oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran required treatment twice in the past 12 months for care of asthma exacerbations. The PFT from February 2020 revealed an FEV-1 of 71 percent predicted and a FEV-1/FVC of 104 percent pre-bronchodilator. The examiner reported that the FEV-1 percent was the most accurate reflection of the level of disability and the pre-bronchodilator results were normal; thus, there were no post-bronchodilator results. Functionally, the examiner noted a limitation of exposure to cold or heat for no more than 10 minutes at a time. The Veteran attended a VA examination in June 2021. The examiner reported required chronic low dose corticosteroids and daily inhalational bronchodilator therapy and anti-inflammatory medication but no oral bronchodilators, antibiotics, or outpatient oxygen therapy. There were no asthma attacks with episodes of respiratory failure in the past 12 months or physician visits for required care of exacerbations. The PFT from June 2021 revealed an FEV-1 of 29 percent predicted and a FEV-1/FVC of 89.8 percent post-bronchodilator. The pre-bronchodilator results revealed an FEV-1 of 56.9 percent predicted and a FEV-1/FVC of 93.9 percent. The examiner reported that the FEV-1/FVC was the most accurate reflection of the level of disability and functionally, the Veteran had shortness of breath with physical exertion. The VA examiner also provided an opinion clarifying that the Veteran's prescribed medication of prednisone, albuterol and/or Symbicort demonstrates treatment at least three times per year of courses of systemic corticosteroids. The post-service medical records reflect consistent complaints and treatment for asthma. The Veteran complained of increased breathing problems during winter but his asthma was reported as stable in September 2014. In January 2015 his asthma was still well controlled with medication and no acute asthma attacks. However, the Veteran was prescribed prednisone in March 2019. His asthma was described as mild and intermittent in September 2019. In February 2020 he reported being treated twice in the emergency room for asthma exacerbations. For the Veteran to warrant the next higher rating of 100 percent, the evidence must establish a 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 where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis. Throughout the appeal period, the medical evidence does not establish the use of systemic high dose corticosteroids or immuno-suppressive medications that are required on a daily basis or more than one attack per week with episodes of respiratory failure. However, the Veteran's June 2021 PFT results reveal a FEV-1 less than 40 percent predicted as his post-bronchodilator FEV-1 was 29 percent predicted, which is contemplated by the 100 percent rating. The Board notes that the June 2021 VA examiner reported that the FEV-1/FVC is the most accurate reflection of the level of disability and that his post-bronchodilator results were poorer than the pre-bronchodilator results. See 38 C.F.R. § 4.96(d)(5)(6). As the special provisions of 38 C.F.R. § 4.96(d) do not apply to DC 6602, the Board may use the PFT result most favorable to the Veteran, which in this case is the post-bronchodilator FEV-1 of 29 percent predicted. Therefore, a rating of 100 percent is effective June 3, 2021. A rating in excess of 60 percent is not warranted prior to June 3, 2021 as the PFT results reveal an FEV-1 of no less than 61.2 percent predicted and an FEV-1/FVC of 73 percent. Additionally, as previously stated the evidence does not establish the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis or more than one attack per week with episodes of respiratory failure. As such, a rating of 100 percent is warranted as of June 3, 2021. The claim is granted. REASONS FOR REMAND 1. Entitlement to service connection for obstructive sleep apnea, to include secondary to service-connected asthma and/or sinusitis with rhinitis Once VA undertakes the effort to provide an opinion, it must provide an adequate one. Barr v. Nicholson, 21 Vet. App. 303, 311 (2007). The Board remanded the issue of entitlement to service connection for obstructive sleep apnea to obtain a medical opinion addressing direct and secondary service connection. The Veteran underwent a VA examination for his sleep apnea in June 2021. The examiner opined that it is less likely as not that sleep apnea is proximately due to or the result of asthma and/or sinusitis with rhinitis or aggravated beyond its natural progression as there is no medical pathophysiologic relationship between asthma and sinusitis causing or leading to sleep apnea as they are anatomically and different physiological systems. The examiner also included that while the veteran's spouse stated that the Veteran would gasp for air or not breath during sleep, which began while on active duty, he did not test positive for sleep apnea via sleep study until 2014, many years after separation. The Board finds the opinion on secondary service connection is inadequate. The examiner stated that the service-connected conditions neither resulted in nor aggravated sleep apnea as asthma and sinusitis would not cause or lead to sleep apnea as there is no medical pathophysiologic relationship; however, this reasoning fails to address why sleep apnea is not aggravated by asthma and/or sinusitis. A medical examination report must contain not only clear conclusions with supporting data, but also a reasoned medical explanation connecting the two. See Nieves- Rodriguez v. Peake, 22 Vet. App. 295 (2008); Stefl v. Nicholson, 21 Vet. App. 120, 124 (2007). Furthermore, the Veteran submitted relevant articles suggesting a link between asthma and sleep apnea, which were not considered or discussed by the examiner. For direct service connection, the examiner opined that it is less likely than not that sleep apnea is due to military service as there are no medical records showing a diagnosis or treatment for sleep apnea during active duty. The examiner again noted that while the veteran's spouse stated that the Veteran would gasp for air or not breath during sleep, which began while on active duty, he did not test positive for sleep apnea via sleep study until 2014, many years after separation. Again, the Board finds the opinion inadequate for adjudication. The examiner relies on a lack of medical evidence in-service and the amount of time from separation to receiving a diagnosis. While evidence of a prolonged period without medical complaint and the amount of time that elapsed since service can be considered, the examiner failed to provide a reasoned medical explanation as to the significance of the length of time between separation and the complaints documented in the post-service medical records. Maxson v. Gober, 230 F.3d 1330, 1333 (Fed. Cir. 2000); See also Fountain v. McDonald, 27 Vet. App. 258, 272-75 (2015) (indicating that a VA examiner may not generally rely on the absence of evidence as negative evidence). The matters are REMANDED for the following action: 1. In remanding this case, the Board makes no credibility determination expressed or implied, at this juncture. 2. Obtain updated VA and/or private treatment records. If such records are unavailable, the Veteran's claim file must be clearly documented to that effect and the Veteran notified in accordance with 38 C.F.R. § 3.159(e). 3. Obtain an addendum medical opinion from a medical professional with appropriate expertise. The examiner should review the Veteran's claims file. If the examiner determines that an opinion cannot be provided without an examination, the Veteran should be scheduled for one. Based on a review of the record, and a new examination if necessary, the examiner must address the following: (a.) Is it at least as likely as not (a 50 percent or greater probability) that the Veteran's sleep apnea is related to active service or is caused by or aggravated by military service. (b.) Is it at least as likely as not (i.e., probability of 50 percent or higher) that sleep apnea is proximately due to or the result of the Veteran's service-connected bronchial asthma and/or rhinitis with sinusitis? (b.) If the answer to (a) is negative, is it at least as likely as not that the sleep apnea is aggravated (i.e., permanently, or temporarily worsened) by the bronchial asthma and/or rhinitis with sinusitis? (c.) If aggravation is found, the examiner should address the following medical issues: 1) the baseline manifestations of the disorder found prior to aggravation; and 2) the increased manifestations which, in the examiner's opinion, are proximately due to the service-connected disorder. The term "at least as likely as not" does not mean within the realm of medical possibility, but rather that the medical evidence both for and against a certain conclusion is so evenly divided that it is as medically sound to find in favor of such a conclusion as it is to find against it. In all opinions rendered, the examiner is advised that the Veteran is competent to report his symptoms and treatment history. The examiner must address the observations of the Veteran's spouse that he would fall asleep and being either gasping for air or not breathing which began while the Veteran was on active duty. The examiner must also address the following articles submitted by the Veteran: "Asthma: A Risk Factor for Sleep Apnea?" and "Researchers Identify a Potential New Risk for Sleep Apnea: Asthma" See Web/HTML Documents September 2013; and "Asthma and Obstructive Sleep Apnea: More than an Association!" See Appellate Brief October 2021. If a negative opinion is offered based primarily on the length of time between separation and the current diagnosis the examiner should explain the medical significance of this fact, i.e., why this is indicative that sleep apnea is not related to service. A complete rationale containing clear conclusions with supporting data and a reasoned medical explanation connecting the two is required for all medical opinions. The examiner should also identify and explain the relevance or significance, as appropriate, of any history, clinical findings, medical knowledge, or literature, etc., relied upon in reaching the conclusion(s). If the medical professional cannot provide an opinion without resorting to mere speculation, he or she shall provide a complete explanation for why an opinion cannot be rendered. In so doing, the medical professional shall explain whether the inability to provide a more definitive opinion is the result of a need for additional information, or that he or she has exhausted the limits of current medical knowledge in providing an answer to that particular question(s). G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board S. A. Prinsen 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.