Citation Nr: 21072500 Decision Date: 12/03/21 Archive Date: 12/03/21 DOCKET NO. 17-32 634 DATE: December 3, 2021 ORDER The discontinuance of a 30 percent rating for service-connected asthmatic bronchitis effective April 1, 2016 was proper due to clear and unmistakable error (CUE) in a June 2008 rating decision; restoration of the 30 percent rating is denied. Entitlement to a disability rating in excess of 50 percent for sleep apnea and asthmatic bronchitis is denied. FINDINGS OF FACT 1. The evidence establishes that statutory and regulatory provisions were incorrectly applied when separate compensable disability ratings for sleep apnea and asthmatic bronchitis were assigned by the June 2008 rating decision. 2. The Veteran's service-connected sleep apnea with asthmatic bronchitis is manifested by the use of a continuous positive airway pressure (CPAP) breathing assistance device; the condition is not productive of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or a tracheostomy. 3. The Veteran's asthmatic bronchitis has not been manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, has not resulted in at least monthly visits to a physician for required care of exacerbations, and does not require intermittent courses of systemic (oral or parenteral) corticosteroids. CONCLUSIONS OF LAW 1. The June 2008 rating decision granting a separate compensable evaluation for asthmatic bronchitis under Diagnostic Code 6602 contained CUE, and it was proper for a January 2016 rating decision to discontinue the separate disability rating for asthmatic bronchitis and combine it with the rating for sleep apnea. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.105, 4.14, 4.96 (a), 4.97, Diagnostic Codes (DCs) 6602, 6847. 2. The criteria for entitlement to a disability rating in excess of 50 percent for sleep apnea and asthmatic bronchitis have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.96, 4.97, Diagnostic Code (DC) 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from November 1983 to September 2006. This matter is on appeal from rating decisions issued in August 2015 and January 2016. 1. Whether discontinuance of a 30 percent rating for asthmatic bronchitis was proper The Veteran seeks a restoration of a separate 30 percent rating for asthmatic bronchitis. Service connection for sleep apnea with mild asthma was initially granted in a January 2007 rating decision, and a 50 percent rating was assigned under DC 6602-6847, effective October 1, 2006. Service connection for asthmatic bronchitis was granted in a June 2008 rating decision, and a separate 30 percent rating was assigned under DC 6602, effective March 15, 2007. An August 2015 rating decision found CUE in the June 2008 rating decision to the extent that it assigned a separate rating for asthmatic bronchitis under DC 6602 as well as a separate rating for sleep apnea under DC 6847 and proposed to discontinue the separate evaluation for asthmatic bronchitis and combine both disabilities under one evaluation. In a January 2016 rating decision, the Veteran's separate evaluation for asthmatic bronchitis was severed effective April 1, 2016. His sleep apnea disability was then recharacterized to include asthmatic bronchitis and assigned a 50 percent rating under DC 6847. At the time, the January 2016 rating decision discontinuing the separate disability rating for asthmatic bronchitis resulted in a reduction of the Veteran's combined evaluation from 100 percent to 90 percent disabling effective April 1, 2016. The Veteran contends that VA erred in combining his rating for asthmatic bronchitis with his rating for sleep apnea. Turning to the merits of the claim, evaluation of the propriety of the discontinuance of the 30 percent rating for asthmatic bronchitis in the June 2008 rating decision requires consideration of two separate standards, the standard relating to CUE and the standard governing reduction of benefits. If CUE was not present in the June 2008 rating decision which assigned a 30 percent rating for asthmatic bronchitis, then there is no basis for the reduction. If CUE was present in the June 2008 rating decision, the proper procedures governing reduction must be observed because the remedy used to correct the error was reduction. The Board is required to analyze both questions. A previous RO determination that is final and binding will be accepted as correct in the absence of CUE. Where evidence establishes CUE, the prior decision will be reversed or amended. 38 C.F.R. § 3.105 (a). For the purpose of authorizing benefits, the rating or other adjudicatory decision which constitutes a reversal of a prior decision on the grounds of CUE has the same effect as if the corrected decision had been made on the date of the reversed decision. Id. CUE is a very specific and rare kind of error. It is the kind of error, of fact or of law, that when called to the attention of later reviewers compels the conclusion, to which reasonable minds could not differ, that the result would have been manifestly different but for the error. CUE is established when the following conditions are met: (1) either the correct facts in the record were not before the adjudicator, or the statutory or regulatory provisions in existence at the time were incorrectly applied; (2) the alleged error must be undebatable, not merely a disagreement as to how the facts were weighed or evaluated; and (3) the commission of the alleged error must have manifestly changed the outcome of the decision being attacked on the basis of CUE at the time that decision was rendered. Evans v. McDonald, 27 Vet. App. 180, 185 (2014); Damrel v. Brown, 6 Vet. App. 242, 245 (1994); Russell v. Principi, 3 Vet. App. 310, 313-14 (1992). Here, the RO properly found CUE in the June 2008 rating decision to the extent that it assigned separate ratings for sleep apnea and asthmatic bronchitis, and properly assigned a 50 percent rating under the diagnostic criteria applicable to sleep apnea, DC 6847. Specifically, 38 C.F.R. § 4.96 (a) governs disability ratings for "coexisting respiratory conditions," and provides 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. Instead, 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. Thus, VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96 (a) under the criteria enumerated in the predominant disability's diagnostic code. See Urban v. Shulkin, 29 Vet. App. 82, 89, 90-91 (2017). The Veteran submitted a March 2016 Notice of Disagreement, asserting that separate ratings should be assigned for sleep apnea and asthmatic bronchitis and a restoration of the 30 percent rating for asthmatic bronchitis was warranted. To the extent that the Veteran has asserted that the assignment of separate disability ratings under DC 6602 and 6847 would not amount to impermissible pyramiding, such argument is unavailing. The Board recognizes the Veteran's argument that unlike asthmatic bronchitis, sleep apnea is a not a disability of the lung. That notwithstanding, the Board is bound by 38 C.F.R. § 4.96 (a), which specifically prohibits the assignment of separate evaluations for sleep apnea and asthma. Absent an expressly defined term within a statute, "a fundamental canon of statutory construction is that when interpreting a statute, the words of a statute are given "their ordinary, contemporary, common meaning." See Gordon v. Nicholson, 21 Vet. App. 270, 277 (2007). The canons of statutory construction apply to regulations as well as statutes. See Smith (William) v. Brown, 35 F.3d 1516, 1522 (Fed. Cir. 1994). Hence, a plain reading of the language under 38 C.F.R. § 4.96 (a) gives no indication of any alteration or limitation of the express language quoted above. The Board is sympathetic to the Veteran's assertions. Nonetheless, given the binding nature of the applicable statutory and regulatory provisions recited above, the Board has no option but to conclude that separate disability ratings for the Veteran's service-connected respiratory disabilities is not warranted. In this regard the Board does not have the authority to grant the Veteran's claim on an equitable basis, and instead is constrained to follow the specific provisions of the controlling law and regulations. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). The applicable regulations, in particular 38 C.F.R. § 4.96, have not changed since the June 2008 rating decision. Thus, the above analysis establishes without debate that the June 2008 rating decision incorrectly applied the applicable laws and regulations existing at the time, specifically 38 C.F.R. § 4.96, when it assigned separate disability ratings for sleep apnea and asthmatic bronchitis. As discussed above, 38 C.F.R. § 4.96 provides that 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. Here, the Veteran's sleep apnea, as the predominant disability, provides the proper rating. Given the binding nature of the applicable statutory and regulatory provisions recited above and the facts of this case, the Board finds the June 2008 rating decision incorrectly applied the applicable laws and regulations existing at the time, when it assigned separate disability ratings for sleep apnea and asthmatic bronchitis, and warrants a finding of CUE. The Board is constrained to follow the specific provisions of the law. See 38 U.S.C. § 7104; Taylor v. West, 11 Vet. App. 436, 440-41 (1998); Harvey v. Brown, 6 Vet. App. 416, 425 (1994). As the law is dispositive, the claim must be denied because of the lack of legal entitlement under the law. Sabonis v. Brown, 6 Vet. App. 426, 429-30 (1994). As noted above, the January 2016 rating decision which severed the separate evaluation for service-connected asthmatic bronchitis due to CUE resulted in a reduction of the Veteran's combined evaluation from 100 percent to 90 percent disabling effective April 1, 2016. As the reduction was proper based on CUE, the Board must next determine whether the reduction procedures were adequately followed. In rating reductions, when VA contemplates reducing an evaluation for a service-connected disability or disabilities, it must follow specific procedural steps prior to such discontinuance. 38 C.F.R. § 3.105 (e). As enumerated in 38 C.F.R. § 3.105 (e), where the reduction in evaluation of a service-connected disability or employability status is considered warranted and the lower evaluation would result in a reduction or discontinuance of compensation payments currently being made, a rating proposing the reduction or discontinuance will be prepared setting forth all material facts and reasons. In addition, the beneficiary will be notified at his or her latest address of record of the contemplated action and furnished detailed reasons therefore and will be given 60 days for the presentation of additional evidence to show that compensation payments should be continued at their present level. The beneficiary also will receive notification that he or she will have an opportunity for a pre-determination hearing. 38 C.F.R. § 3.105 (i). Thereafter, a final rating action will be taken, and the award will be reduced or discontinued effective the last day of the month in which a 60-day period from the date of notice to the beneficiary of the final rating action expires. 38 C.F.R. §§ 3.105 (e). Once the RO determined that there was CUE in the June 2008 rating decision, it issued a rating decision dated in August 2015 proposing to reduce the rating. VA correspondence dated August 18, 2015, provided the Veteran with a copy of the rating decision as well as with information regarding the error and the RO's intention to correct this error by discontinuing the separate evaluation. The letter afforded the Veteran 60 days to provide additional evidence contesting the RO's decision and provided the opportunity for a personal hearing. The Veteran did not provide additional evidence specific to the discontinuance of the 30 percent rating for asthmatic bronchitis or request a hearing in response to the August 18, 2015 correspondence. Thereafter, the RO issued a rating decision dated in January 2016 implementing the discontinuance of a 30 percent rating for service-connected asthmatic bronchitis effective April 1, 2016. Based on the foregoing, the Board finds that the procedural requirements of section § 3.105(e) were met. Accordingly, the discontinuance of a 30 percent rating for service-connected asthmatic bronchitis effective April 1, 2016 was proper due to CUE and the restoration of the 30 percent rating is denied. 2. Entitlement to a disability rating in excess of 50 percent for sleep apnea and asthmatic bronchitis The Veteran is requesting a higher disability rating for his service-connected sleep apnea and asthmatic bronchitis, which is currently rated as 50 percent disabling under DC 6847. For the reasons that follow, the Board finds that a higher rating is not warranted. Disability evaluations are determined by evaluating the extent to which a Veteran's service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Schedule for Rating Disabilities (Rating Schedule). 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. Separate diagnostic codes identify the various disabilities. VA should interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. All reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3. Where there is a question as to which of two evaluations apply, the higher of the two should be assigned where the disability picture more nearly approximates the criteria for the next higher rating. 38 C.F.R. § 4.7. However, the evaluation of the same disability under various diagnoses, known as pyramiding, is to be avoided. 38 C.F.R. § 4.14. Where service connection already has been established and an increase in the disability rating is at issue, it is the present level of disability that is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). Nevertheless, where the evidence contains factual findings showing a change in the severity of symptoms and consequent disability during the rating period on appeal, the Board will "stage" the rating to compensate the Veteran for this variance. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Facts and Analysis The Veteran's disability is rated under 38 C.F.R. § 4.97, DC 6847, which dictates that sleep apnea requiring use of a breathing assistance device such as a continuous airway pressure (CPAP) machine warrants a 50 percent disability rating. A 100 percent disability rating is warranted for sleep apnea which results in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or requires tracheostomy. The Board will determine the severity of both the Veteran's sleep apnea and asthmatic bronchitis to determine which disability should be considered the predominant disability. Bronchial asthma is rated under DC 6602. Under DC 6602, a 10-percent rating is assigned for asthma for Forced Expiratory Volume in one second (FEV-1) of 71- to 80-percent of predicted value, or the ratio of FEV-1 to Forced Vital Capacity (FVC) (FEV-1/FVC) of 71- to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30-percent rating is assigned for 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. A 60-percent rating is assigned for an 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100-percent rating is assigned for bronchial asthma with an FEV-1 of less than 40-percent predicted; or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Governing regulations require that post-bronchodilator test results are to be used for disability evaluation purposes except when the results of pre-bronchodilator pulmonary function tests are normal or when the examiner determines that post- bronchodilator studies should not be done and states why, or unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96. A review of the record demonstrates that the Veteran has been diagnosed with sleep apnea, and treatment with a CPAP machine was prescribed. VA treatment records reflect that he has been diagnosed with obstructive sleep apnea. There is no evidence in the medical records present in the Veteran's claims file that his diagnosed sleep apnea results in chronic respiratory failure with carbon dioxide retention or cor pulmonale; or requires tracheostomy. In October 2019, the Veteran underwent a VA examination to assess the severity of his sleep apnea. The examiner found that continuous medication was not required for control of a sleep disorder condition. The examiner further noted that the Veteran required the use of a breathing assistance device such as a continuous positive airway pressure (CPAP) machine. The Veteran was noted to have persistent daytime hypersomnolence. He did not have any scars (surgical or otherwise) related to his sleep apnea. The examiner found that the Veteran's sleep apnea impacted his ability to work, particularly, his concentration and comprehension. That same month, the Veteran underwent a VA examination to assess the severity of his asthmatic bronchitis. The examiner found that the Veteran's respiratory condition did not require the use of oral or parenteral corticosteroid medications. The Veteran did require the daily use of inhaled medication, namely, inhalational bronchodilator therapy and inhalational anti-inflammatory medication. The Veteran did not have any asthma attacks with episodes of respiratory failure in the past 12 months. The Veteran also did not have any physician visits for required care of exacerbations. Pulmonary function testing was performed. The Veteran was found to have a pre-bronchodilator FEV-1 of 99 percent predicted, and an FEV-1/FVC of 90 percent predicted. The examiner noted that post-bronchodilator testing was not completed because it was not indicated for the Veteran's condition. Considering the evidence, the Board finds that the Veteran's asthmatic bronchitis does not warrant a disability rating in excess of 50 percent under DC 6602. The medical evidence of record has not shown that his asthmatic bronchitis has ever manifested by FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, resulted in at least monthly visits to a physician for required care of exacerbations, or required intermittent courses of systemic (oral or parenteral) corticosteroids. As the Veteran's asthmatic bronchitis would not warrant a disability rating in excess of 50 percent, the Board concludes that the sleep apnea is the predominant disability. Considering the criteria in DC 6847, the Board finds that the maximum rating is not warranted as there is no evidence (and the Veteran does not assert) of chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a requirement of a tracheostomy. In sum, there is no basis for a higher evaluation for the Veteran's service-connected sleep apnea and asthmatic bronchitis. In reaching the above decision, the Board considered the doctrine of reasonable doubt; however, as the preponderance of the evidence is against the Veteran's increased rating claim, the doctrine is not for application. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). N. RIPPEL Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Komperda, 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.