Citation Nr: 21070332 Decision Date: 11/23/21 Archive Date: 11/23/21 DOCKET NO. 18-33 791 DATE: November 23, 2021 ORDER Entitlement to a 30 percent initial disability rating for asthma from December 17, 2016 is granted. FINDING OF FACT The evidence is in a state of relative equipoise regarding whether, since discharge from service in December 2016, the Veteran has used for her asthma a daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. CONCLUSION OF LAW The criteria for a 30 percent initial rating for asthma, from December 17, 2016, are met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 4.3, 4.97. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from December 2012 to December 2016. This matter comes before the Board of Veterans' Appeals (Board) on appeal of a rating decision by a U.S. Department of Veterans Affairs (VA) Regional Office (RO). The Board denied the claim on appeal in an April 2020 decision the Veteran appealed to the U.S. Court of Appeals for Veterans Claims (Court). In June 2021, pursuant to a joint motion for partial remand (JMPR), the Court vacated the decision and remanded the claim for further consideration. The case is again before the Board for appellate review. Increased Rating In the April 2020 decision, the Board found a 30 percent disability rating for asthma warranted from July 14, 2017. The Board also found a 10 percent rating warranted before then, from the day following discharge from active duty December 17, 2016. As noted in the JMPR, the Veteran maintains that the 30 percent rating should be effective since service. The Board agrees. Relevant legal authority Except as otherwise provided, the effective date of an evaluation and award of pension, compensation, or dependency and indemnity compensation based on an initial claim or supplemental claim will be the date of receipt of the claim or the date entitlement arose, whichever is later. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. An exception to this rule states that the effective date of disability compensation will be the day following separation from active service or the date entitlement arose if the claim is received within 1 year after separation from service. 38 C.F.R. § 3.400(b)(2). Disability ratings are determined by applying the criteria set forth in VA's Schedule for Rating Disabilities, which is based on the average impairment of earning capacity. Individual disabilities are assigned separate diagnostic codes. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Where there is a question as to which of 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 are appropriate for any rating claim 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); Fenderson v. West, 12 Vet. App. 119 (1999). Respiratory disability is rated under 38 C.F.R. § 4.97. The RO rated the Veteran's asthma under DC 6602 of this provision. 38 C.F.R. § 4.97. This DC authorizes compensable ratings of 10, 30, 60, and 100 percent. As the question before the Board concerns the 30 percent rating, the Board's inquiry will focus on whether the criteria for that rating have been approximated during the relevant time period between December 17, 2016 and July 14, 2017. 38 U.S.C. § 5110; 38 C.F.R. § 3.400. A 30 percent rating is warranted under DC 6602 for forced expiratory volume in one second (FEV-1) of 56- to 70-percent predicted, or; FEV-1/forced vital capacity (FVC) of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, the benefit of the doubt will be granted to the claimant. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on the merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). In rating disabilities, VA is precluded from differentiating between symptomatology attributed to a nonservice-connected disability and a service-connected disability in the absence of medical evidence that does so. Mittleider v. West, 11 Vet. App. 181, 182 (1998). In such cases, the reasonable doubt doctrine dictates that all symptoms be attributed to the service-connected disability. Id. Evidence and analysis The relevant evidence consists of lay assertions from the Veteran, service treatment records (STRs), VA treatment records, and a VA compensation examination report dated in March 2017. This evidence is in a state of relative equipoise regarding whether the criteria for a 30 percent rating under DC 6602 were met between December 17, 2016 and July 14, 2017. As noted by the Board in April 2020, it is not clear that an inhaler was used for asthma consistently prior to July 2017. Much of the evidence dated in 2016 and 2017 showed prescription of albuterol for use as needed. Further, the March 2017 VA report indicates no use of an inhaler. Nevertheless, a 2016 STR indicates prescription of "a 100mcg fluticasone inhaler" for use twice daily. The fact that the Veteran was prescribed fluticasone for inhalation use twice daily during service raises reasonable doubt regarding whether the criteria for a 30 percent rating were met prior to July 2017 i.e., whether the Veteran used daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication between December 17, 2016 and July 14, 2017. Based on the foregoing evidence, the Board cannot find that a preponderance of the evidence is against the claim of entitlement to an earlier effective for the increase in rating to 30 percent. As such, this is an appropriate case in which to invoke VA's doctrine of reasonable doubt, grant the Veteran the benefit of the doubt, and grant the claim. 38 U.S.C. § 5107(b); 38 C.F.R. § 4.3. G. A. WASIK Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Christopher McEntee 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.