Citation Nr: 21069556 Decision Date: 11/18/21 Archive Date: 11/18/21 DOCKET NO. 17-47 253 DATE: November 18, 2021 ORDER Entitlement to a rating in excess of 60 percent for bronchial asthma with obstructive sleep apnea is denied. Service connection for lumbar disc disease is granted. FINDINGS OF FACT 1. The Veteran's bronchial asthma with obstructive sleep apnea is not shown to be manifested by pulmonary function testing showing forced expiratory volume in one second (FEV-1) of less than 40 of predicted value, by a ratio of FEV-1 to forced vital capacity (FVC) of less than 40 percent, daily use of systemic high dose corticosteroids or immuno-suppressive medications, chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires a tracheostomy. 2. Lumbar disc disease is attributable to service. CONCLUSIONS OF LAW 1. The criteria for a disability rating in excess of 60 percent for bronchial asthma with obstructive sleep apnea have not been met and separate evaluations are not warranted. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1-4.7, 4.96, 4.97, Diagnostic Codes 6602-6847. 2. Lumbar disc disease was incurred in service. 38 U.S.C. § 1131. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty for training from June 1979 to August 1979 and from July 1980 to August 1980 and active duty from October 1980 to October 1984. Ratings Principles Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Rating Schedule), found in 38 C.F.R., Part 4. The ratings are intended to compensate impairment in earning capacity due to a service-connected disease or injury. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If the evidence for and against a claim is an equipoise, the claim will be granted. A claim will be denied only if the preponderance of the evidence is against the claim. See 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinksi, 1 Vet. App. 49, 56 (1990). Any reasonable doubt regarding the degree of disability is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Where there is question as to which of the two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Staged ratings, however, are appropriate when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). The determination of whether an increased evaluation is warranted is based on review of the entire evidence of record and the application of all pertinent regulations. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows or fails to show. The Veteran should not assume that the Board has overlooked pieces of evidence that are not specifically discussed herein. See Timberlake v. Gober, 14 Vet. App. 122 (2000). Bronchial Asthma with Obstructive Sleep Apnea The Veteran has reported that he seeks separate evaluations for asthma and sleep apnea, as they are two separate diagnoses. The Veteran is rated under diagnostic code 6847-6602 for bronchial asthma with obstructive sleep apnea. Diagnostic Code 6602 provides ratings for bronchial asthma. Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent predicted value, or; the ratio of Forced Expiratory Volume in one second to Forced Vital Capacity (FEV-1/FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy, is rated 10 percent disabling. FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication, is rated 30 percent disabling. 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, is rated 60 percent disabling. 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, is rated 100 percent disabling. A Note to Diagnostic Code 6602 provides that, in the absence of clinical findings of asthma at the time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97. Diagnostic Code 6847 provides ratings for sleep apnea syndromes (obstructive, central, and mixed). Sleep apnea that is asymptomatic but with documented sleep disorder breathing is rated noncompensably (0 percent) disabling. Sleep apnea that persistent, with daytime hypersomnolence, is rated 30 percent disabling. Sleep apnea that requires the use of a breathing assistance device such as continuous airway pressure (CPAP) machine is rated 50 percent disabling. Sleep apnea that manifests chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy, is rated 100 percent disabling. 38 C.F.R. § 4.97. In May 2018, the Veteran filed a claim for sleep apnea from severe asthma. The Veteran's current rating was established by a rating decision in January 2012. VA treatment records show that the Veteran received ongoing treatment for asthma, with daily inhalational medication and also receiving ongoing treatment with a continuous positive airway pressure machine for obstructive sleep apnea. A March 2016 private treatment records show that oral steroids were prescribed for treatment of asthma. A VA contract examination report was completed in June 2018. The examiner noted that the Veteran had current diagnosis of obstructive sleep apnea with chronic obstructive pulmonary disease and asthma. A continuous positive airway pressure machine is prescribed for treatment. The Veteran continued to have symptoms of persistent daytime hypersomnolence. A VA examination completed by a contractor in November 2018 also shows a diagnosis of asthma. The Veteran reported continuing to have symptoms of increasing shortness of breath, wheezing, and a non-productive cough. He also reported that he has been prescribed pulses of oral steroids that are used for a week at a time several times a year. He is currently prescribed Symbicort two puffs twice daily, Singulair 10mg tablet once daily, and a Combivent inhaler which he uses 4-5 times daily. He has been prescribed DuoNeb treatments to use as needed, but he has not been issued the nebulizer yet. The examiner noted oral steroids have been prescribed for a week at a time for treatment of this condition, and daily inhalational medications have been prescribed. The examiner noted intermittent courses or bursts of systemic (oral or parenteral) corticosteroids four or more times a year. Treatment was daily inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The Veteran reported that four or more courses of systemic corticosteroids have been prescribed within the last twelve months. Pulmonary function tests revealed the following post bronchodilator results: forced vital capacity (FVC) was 88 percent of the predicted value; forced expiratory volume in one second (FEV-1) was 83 percent of the predicted value, and the ration of forced expiratory volume in one second to forced vital capacity (FEV-1/FVC) was 94. The examiner noted that the forced expiratory volume in one second most accurately reflects current respiratory function. VA regulations do not permit the assignment of separate evaluations for respiratory disabilities affecting the lungs and pleura. When there is more than one disability affecting the lungs and pleura, a single rating will be assigned under the diagnostic code which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. The Board acknowledges that the Veteran feels that he is entitled to separate evaluations for his bronchial asthma and obstructive sleep apnea. However, Special Provisions Regarding Evaluation of Respiratory Conditions, 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 two diseases are contemplated by the Diagnostic Codes 6847, Sleep Apnea Syndromes (Obstructive, Central, Mixed), and 6602, Asthma, Bronchial. Therefore, a single evaluation for the combined effects of service-connected bronchial asthma and obstructive sleep apnea is appropriate and separate ratings are not permitted under VA regulation. A higher evaluation of 100 percent is not warranted unless FEV-1 is less than 40-percent predicted, or; FEV-1/FVC is less than 40 percent, or; there is 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. A 100 percent evaluation may also be assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; which requires a tracheostomy. During the period on appeal, VA and private treatment records dated up to 2020 contain medication lists for the Veteran and do not show prescriptions for daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. The VA examiner confirmed this. Further, a VA examination found that the Veteran's results on testing were not 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. The Veteran has not alleged such is the case. A higher rating is therefore not warranted for Diagnostic Code 6602, rating for bronchial asthma. Further, a higher rating is also not warranted under Diagnostic Code 6847. The record has not established the Veteran suffered from chronic respiratory failure nor similar symptomatology at any time. Given the above, a higher rating is not warranted. In conclusion, the Board finds that the preponderance of the evidence is against a rating in excess of 60 percent. In denying such a rating, the Board finds the benefit of the doubt doctrine is not applicable. LUMBAR SPINE The Veteran was treated in service for low back pain and back muscle spasm starting in December 1982 and continuing. X-ray showed Schmorl node documented in March 1984 as well as lumber scoliosis. The Board remanded the issue in September 2019. The remand directive states a VA opinion was to be obtained and that the examiner must address the Veteran's contentions of continuing symptomology since service, the March 1984 treatment record documenting a Schmorl node, and medical literature cited in a July 2019 appellate brief indicating that Schmorl nodes can cause back pain. The Informal Hearing Presentation notes studies do support cases of Schmorl node causing severe back pain with additional radiating pain to the extremities (https://www.ncbi.nlm.nih.gov/pmc/articles/PMC3669699/). According to In-Sook Lee, MD, in Minimally Invasive Percutaneous Spinal Techniques (2010): Superior and inferior prolapse of disc material results in abnormalities at the disco vertebral junction and causes defects termed cartilaginous (Schmorl) nodes within the vertebral body nodes; Schmorl himself defined these defects as intraosseous herniations of the intervertebral disc. Schmorl nodes are generally held to be asymptomatic and are often regarded as a normal variant. However, intraosseous disc herniation is on occasion a painful process and the presence of multiple Schmorl nodes is not a normal variation. Schmorl nodes are the most common nonintervertebral disc abnormalities seen on MRI in persons without back pain, being found in 19 percent of the population. Schmorl nodes are frequently encountered in young adolescents, before growth has ended, and in patients older than 50 years, in whom osteopenia increases in frequency. Schmorl nodes may occur spontaneously or may result from stress due to axial loading, especially in young athletes or in cases of trauma. A VA contractor examination report dated in October 2019 provided an opinion that back disorder(s) was less likely than not incurred in or caused by the claimed in-service injury, event, or illness. The VA examiner found that the Veteran had degenerative disc disease of the lumbar spine and bilateral sciatica. The examiner noted that the Veteran was treated several times in 1983 and 1984 for back pain, and an X-ray in 1984 showed two small Schmorl's nodes at L4 and S1. Schmorl's nodes are protrusions of disc material into the surface of the vertebral body, which may contact the marrow of the vertebra and lead to inflammation. They are also associated with necrosis of the vertebral body, and they may or may not be symptomatic. While the Schmorl's nodes were present in 1984, they were small and of uncertain significance. The Veteran was not seen for many years after he left the military for back pain. Since the examiner did not consider the Veteran's report of symptoms of back pain since service in her opinion, additional clarification of her opinion was requested. In an examination addendum dated in May 2020, the VA contract examiner clarified that although there were reported symptoms of back pain since service, there is no objective evidence of back symptoms for many years following service. Without some objective evidence at some point, it is not possible to say that subjective symptoms of continued back pain are related to the back pain shown in service. The examiner in this case reported the following: Schmorl's nodes are protrusions of disc material into the surface of the vertebral body. (Literature has described this as herniation.) In essence, there was abnormality of disc material during service manifested by the Schmorl's node. Since service, the examiner has established that there is disc disease. We have not been presented with an adequate or logical explanation as to why the current disc disease is unrelated to the disc material abnormality identified during service. We shall not remand for another opinion. Whether the Veteran had continued pain is not controlling. The issue is whether the current disc disease is related to the disc herniation during service. We are left with an impression that current lumbar disc disease is related to the in-service disc material abnormality identified during service. Intercurrent cause is not shown and service connection is warranted. H. N. SCHWARTZ Veterans Law Judge Board of Veterans' Appeals Attorney for the Board P. Yoffe, 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.