Citation Nr: 21068321 Decision Date: 11/10/21 Archive Date: 11/10/21 DOCKET NO. 17-22 573 DATE: November 10, 2021 ORDER Entitlement to an increased rating of 100 percent for sleep apnea with asthma and allergic bronchitis is granted throughout the appeal period. FINDING OF FACT Resolving reasonable doubt in the Veteran's favor, the Board finds that his sleep apnea with asthma and allergic bronchitis has manifested in a forced expiratory volume in 1 second (FEV1) of less than 40 percent of predicted value (contemplated by a 100 percent rating under DC 6600) throughout the appeal period; although the Veteran has coexisting respiratory conditions, some of which are not service connected, it is not possible to separate the service-connected respiratory symptomatology from the nonservice-connected respiratory symptomatology. CONCLUSION OF LAW The criteria for entitlement to an increased rating of 100 percent for sleep apnea with asthma and allergic bronchitis have been met throughout the appeal period. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1, 4.3, 4.10, 4.21, 4.97, Diagnostic Codes (DC's) 6600-6847 (2018). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran had qualifying service from July 1972 to May 1976 and January 1978 to July 1978. This matter comes before the Board on appeal from a June 2016 Rating Decision by the Agency of Original Jurisdiction (AOJ). In a February 2019 Decision, the Board, in pertinent part, remanded: (a) entitlement to service connection for sleep apnea; and (b) entitlement to an increased rating above 30 percent for bronchitis. Specifically, the Board found that the May 2016 VA examiner did not conduct pulmonary function tests (PFT's), which were needed to determine the appropriate rating for bronchitis. In a September 2019 Rating Decision, the AOJ did not decide the claim for entitlement to service connection for asthma, stating that it was intertwined with the appeal for an increased rating for bronchitis. In an April 2020 Rating Decision, the AOJ granted entitlement to service connection for sleep apnea. In a July 2020 Decision, the Board remanded entitlement to an increased rating above 30 percent for bronchitis. Specifically, the Board found that the September 2019 VA examiner documented the results of PFT's conducted in June 2019 but failed to perform exercise capacity testing. In an August 2020 Rating Decision, the AOJ granted entitlement to service connection for asthma. In an April 2021 Decision, the Board remanded entitlement to an increased rating above 50 percent for sleep apnea with asthma and allergic bronchitis. Specifically, the Board found that the October 2020 VA examiner documented the results of PFT's conducted that same month but failed to perform exercise capacity testing. In a July 2021 Decision, the Board remanded entitlement to an increased rating above 50 percent for sleep apnea with asthma and allergic bronchitis. Specifically, the Board found that the May 2021 VA examiner failed to perform exercise capacity testing and PFT's, instead merely noting the PFT findings from a June 2019 VA treatment visit and from the October 2020 examination. 1. Entitlement to an increased rating above 50 percent for sleep apnea with asthma and allergic bronchitis The Veteran's sleep apnea with asthma and allergic bronchitis has been rated under diagnostic codes (DC's) 6600-6847 at: (a) 30 percent from October 7, 1996, through April 4, 2016; and (b) 50 percent since April 5, 2016. See August 2020 Codesheet; 38 C.F.R. §§ 4.96, 4.97. The Veteran generally contends that his symptoms warrant a higher rating. In determining the severity of a disability, the Board applies the criteria set forth in the Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the disability more closely approximates the criteria for the higher of two ratings, the higher rating is assigned. 38 C.F.R. § 4.7. Under DC 6600 (chronic bronchitis), a higher rating of 100 percent is warranted for: FEV-1 less than 40 percent of predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) less than 40 percent, or; Diffusion Capacity of the Lung for Carbon Monoxide by the Single Breath Method (DLCO (SB)) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, DC 6600. Under DC 6600, a higher rating of 60 percent is warranted for: FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). Id. Under DC 6847 (sleep apnea syndromes), a higher rating of 100 percent is warranted for: chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. 38 C.F.R. § 4.97, DC 6847. Under DC 6602 (bronchial asthma), a higher rating of 100 percent is warranted for: 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. 38 C.F.R. § 4.97, DC 6602. Under DC 6602, a higher rating of 60 percent is warranted for: 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. Id. Additionally, 38 C.F.R. § 4.96 details special provisions regarding evaluation of respiratory conditions. When rating coexisting respiratory conditions, VA must assign a single rating under the DC which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation (as such, ratings under DC's 6600 through 6817 and 6822 through 6847 will not be combined with each other; further, where there is lung or pleural involvement, ratings under DC's 6819 and 6820 will not be combined with each other or with DC's 6600 through 6817 or 6822 through 6847). 38 C.F.R. § 4.96(a). Additionally, PFT's are generally required to evaluate conditions under DC's 6600, 6603, 6604, 6825 through 6833, and 6840 through 6845. 38 C.F.R. § 4.96(d). In this case, the Veteran's bronchitis (contemplated by DC 6600), asthma (contemplated by DC 6602), and sleep apnea syndrome (contemplated by DC 6847) are coexisting respiratory conditions. Additionally, the Veteran also has other nonservice-connected respiratory conditions, including chronic obstructive pulmonary disease (COPD). See August 2021 VA respiratory conditions examination with August 2021 addendum opinion (multiple respiratory conditions, diagnosed as: asthma; sleep apnea; COPD; allergic bronchitis; atelectasis; chronic sinusitis; and allergic rhinitis). The August 2021 VA examiner opined that the COPD was not an extension of the service-connected diagnoses (explaining that it has a separate pathophysiology than the service-connected diagnoses); however, the examiner, without providing rationale, further opined that the COPD was predominantly responsible for the limitation in pulmonary function. Notably, the schedular criteria for rating COPD (contemplated by DC 6604) and bronchitis (contemplated by DC 6600) are identical for higher ratings of 60 percent and 100 percent. 38 C.F.R. § 4.97, DC 6602, DC 6604. Thus, because the August 2021 VA examiner did not provide rationale for the opinion that the COPD was predominantly responsible for the limitation in pulmonary function and did not specify which service-connected respiratory diagnosis (sleep apnea, asthma, or allergic bronchitis) is predominantly responsible for the limitation in pulmonary function, the Board finds that remanding for such a determination would be futile because it does not seem possible to separate the service-connected respiratory symptomatology from the nonservice-connected respiratory symptomatology (given that the nonservice-connected symptoms of the Veteran's COPD are nearly identical to the service-connected symptoms from his sleep apnea with asthma and allergic bronchitis). (Continued on the next page) Turning to the pulmonary function testing, the August 2021 VA examiner measured the Veteran's post-bronchodilator FEV-1 at 39 percent predicted (less than 40 percent is contemplated by a 100 percent rating under DC 6600). Although previous testing revealed better results (September 2020 VA examiner measured post-bronchodilator FEV-1 at 86 percent predicted and September 2019 VA examiner measured post-bronchodilator FEV-1 at 95 percent predicted), the Board defers to the most favorable findings in the August 2021 VA examination and applies them retroactively throughout the appeal period because the Board is unable to determine whether the September 2020 and September 2019 VA examiners' measurements were negatively impacted by their unsupported assertion that the COPD symptomatology can somehow be separated from the sleep apnea with asthma and allergic bronchitis symptomatology; as such, the Board finds it best to resolve this reasonable doubt in the Veteran's favor and grant the increased rating to 100 percent under DC 6600 throughout the appeal period. Finally, although it is clear that this 100 percent rating contemplates at least some of the symptomatology from the nonservice-connected respiratory disorders, the Board finds that the rating is still appropriate given that the criteria for higher ratings for COPD and bronchitis are identical and because, as discussed above, the service-connected respiratory symptomatology and the nonservice-connected respiratory symptomatology are indistinguishable. Thus, the Board grants the claim. R. FEINBERG Veterans Law Judge Board of Veterans' Appeals Attorney for the Board H. Daus, 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.