Citation Nr: 21070444 Decision Date: 11/24/21 Archive Date: 11/24/21 DOCKET NO. 17-23 842 DATE: November 24, 2021 ORDER A rating in excess of 50 percent for obstructive sleep apnea (OSA), with asthma is denied. FINDINGS OF FACT 1. The Veteran's OSA requires the use of a breathing assistance device (CPAP), but there is no evidence of chronic respiratory failure, carbon dioxide retention, cor pulmonale, or requirement for tracheostomy. 2. The Veteran's asthma does not result in 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 (at least three per year) courses of systemic (oral or parenteral) corticosteroids, or worse. 3. The severity of the overall respiratory disability is not shown to be warranted. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for OSA with asthma have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.7, 4.96, 4.97, Diagnostic Codes 6602-6847. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from February 1983 to January 1986, from February 2003 to August 2003, from June 2006 to June 2007, and from March 2011 to December 2012. The Veteran provided testimony at a March 2020 videoconference Board hearing before the undersigned Veterans Law Judge (VLJ). A complete transcript is of record. This appeal was previously before the Board in December 2020. The Board noted that 38 C.F.R. § 4.96 (a) precluded separate ratings for both OSA and asthma. The Board explained that by law the Veteran was only entitled to one disability rating for either OSA or asthma, whichever rating is higher. Given that 38 C.F.R. § 4.96 (a) is dispositive and the Board is without discretion to assign separate ratings for OSA and asthma, the Board remanded the issues to obtain outstanding VA treatment records and for new VA examinations to determine whether OSA or asthma was the predominant respiratory disability. The Veteran's updated VA treatment records was associated with the claims file in September 2021. He was also afforded VA examinations for both OSA and asthma in August 2021. As such, the Board finds that there has been substantial compliance with the December 2020 Board remand directives. See Stegall v. West, 11 Vet. App. 268, 271 (1998). A rating in excess of 50 percent for OSA, with asthma is denied. The Veteran asserts that he should be entitled to separate disability ratings for his OSA and asthma. The Veteran has been assigned a 50 percent rating for OSA, under Diagnostic Code 6847, effective January 1, 2013. He has also been assigned a 30 percent rating for asthma, under Diagnostic Code 6602, effective January 1, 2013. However, an August 2014 rating decision informed the Veteran that it was against VA regulations to assign separate ratings for respiratory conditions, such as OSA and asthma. 38 C.F.R. § 4.96 (a). Of note, VA regulations clearly state that ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under Diagnostic Codes 6819 and 6820 will not be combined with each other or with Diagnostic Codes 6600 through 6817 or 6822 through 6847. 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. 38 C.F.R. § 4.96. As such, the Veteran is precluded from two separate ratings for both OSA and asthma. Diagnostic Code 6847 provides a 50 percent rating for required use of a breathing assistance device, such as a CPAP machine. A 100 percent rating is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale; or a required tracheostomy. 38 C.F.R. § 4.97. Under Diagnostic Code 6602, a 60 percent evaluation 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. A maximum 100 percent disability rating is assigned for FEV-1 of less than 40 percent; or more than one attack per week with episodes of respiratory failure; or required daily use of systemic (oral or parenteral) high dose corticosteroids or immune suppressive medications. The Veteran was afforded a VA examination for OSA in February 2014. His diagnosis for OSA was confirmed. The examiner indicated that the Veteran was currently on CPAP, but did not require continuous medication. There was no evidence of chronic respiratory failure, carbon dioxide retention, cor pulmonale, or requirement for tracheostomy. The Veteran was afforded a VA examination for asthma in February 2014. His diagnosis for asthma was confirmed. The examiner reported that there were no episodes of respiratory failure in the past 12 months. However, the examiner reported that the Veteran experienced approximately one asthma exacerbation that required a physician visit during the previous year. The asthma did not require the use of oral or parenteral corticosteroid medications. Diagnostic testing revealed a normal chest x-ray and pre-bronchodilator results as follows: FEV-1 93 percent predicted and FEV-1/FVC 71 percent predicted. Post- bronchodilator testing showed: FEV-1 105 percent predicted and FEV-1/FVC 79 percent predicted. The Veteran testified at the March 2020 Board hearing that he was dissatisfied that he was not able to receive separate ratings for OSA and asthma. The VLJ explained that VA regulations did not allow for separate ratings for these respiratory disabilities. In explaining how 38 C.F.R. § 4.96 (a) affected the Veteran's claim, the VLJ asked whether the Veteran would be willing to attend a new VA examination for asthma, to ascertain whether he would be entitled to a higher rating. The Veteran testified that he would be willing to attend a VA examination. Accordingly, the Board decision remanded the claim for the agreed upon development. A careful review of the Veteran's post-service treatment records does not reveal any findings that would warrant higher ratings for either OSA or asthma. For example, there was no indication of chronic respiratory failure, carbon dioxide retention, cor pulmonale, or requirement for tracheostomy; nor were there any pulmonary function testing (PFT), any suggestion of systemic corticosteroid use, or at least monthly visits to a physician for required care of exacerbations. The Veteran was afforded a VA examination for OSA in August 2021. His diagnosis for OSA was confirmed. The examiner indicated that the Veteran was currently on CPAP, but did not require continuous medication. There was no evidence of chronic respiratory failure, carbon dioxide retention, cor pulmonale, or requirement for tracheostomy. The Veteran was afforded a VA examination for asthma in August 2021. The examiner indicated that the Veteran did not require the use of corticosteroid medications. The examiner reported that there were no episodes of respiratory failure in the past 12 months and no exacerbations in the past year. Diagnostic testing revealed a normal chest x-ray and pre-bronchodilator results as follows: FEV-1 81 percent predicted and FEV-1/FVC 95 percent predicted. Post- bronchodilator testing showed: FEV-1 88 percent predicted and FEV-1/FVC 101 percent predicted. Here, the Board finds that the 50 percent rating for OSA is the most beneficial disability rating, given 38 C.F.R. § 4.97. The manifestations of OSA do not meet or approximate the criteria for an evaluation in excess of 50 percent under Diagnostic Code 6847 because there was no evidence to show chronic respiratory failure, carbon dioxide retention, cor pulmonale or tracheostomy. Regarding whether asthma could be considered the predominant respiratory disability, at worst, his PFT testing has showed his FEV-1 was 81 percent and at worst, his FEV-1/FVC was 71. Both of those results are well in excess of FEV-1 of 40 to 55 percent predicted; or FEV-1/FVC of 40 to 55 percent, the diagnostic criteria required for a 60 percent rating. Further, both respiratory VA examiners of record reported that the Veteran does not use corticosteroids at all in the treatment for his asthma. The Board acknowledges the February 2014 VA examiner who reported that the Veteran had one asthma exacerbation that required a physician visit in the past year. However, a review of the Veteran's post-service treatment records does not show at least monthly visits to a physician for required care of exacerbations. The Board is sympathetic to the Veteran's claim, that he should be allowed to have separate disability ratings for his OSA and asthma. The Board has carefully reviewed this case and remanded to allow for new VA examinations, to ascertain whether higher ratings were warranted for either OSA or asthma. However, the findings of the August 2021 VA examinations did not reveal any evidence that would warrant higher ratings for either OSA or asthma. Here, the Board is bound by the statutes enacted by Congress and VA regulations, and as a result of their application, the Board must find that a rating in excess of 50 percent for obstructive sleep apnea with asthma is not warranted. In certain instances, 38 C.F.R. § 4.96 allows that when two respiratory disabilities are service connected, but only one rating can be assigned, elevation to the next higher evaluation is permissible where the severity of the overall disability warrants such elevation. This specific situation was addressed by the Court of Appeals for Veterans Claims (CAVC) in Urban v. Shulkin. See 29 Vet. App. 82 (2017). In that case, VA contended that, after determining which disability is predominant, VA was then required to apply the predominant disability DC, "considering all of the signs and symptoms attributable to either one or both of those disabilities." VA clarified that "all of the claimant's symptoms attributed to the coexisting respiratory conditions being rated will be considered in assigning the rating, but that the criteria under the applicable [predominant disability] DC... will determine the appropriate rating to be assigned." The Court found VA's approach to be reasonable, and thus applicable given the ambiguity of the regulation. This is the case here, where OSA is the predominant disability. There is no suggestion that the OSA and asthma have combined to cause the problems consistent with a 100 percent rating for OSA. Likewise, the pulmonary function testing during the course of the appeal did not show results that in any way even approached the criteria for a 60 percent rating, and the Veteran is not shown to be prescribed medication for his asthma that is so invasive or debilitating that it should be taken to support elevation of the rating for the predominant disability to 100 percent, or even to the 60 percent available for asthma. Accordingly, a rating in excess of 50 percent for OSA, with asthma, is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Fu, Associate 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.