Citation Nr: 21072975 Decision Date: 12/07/21 Archive Date: 12/07/21 DOCKET NO. 17-20 049 DATE: December 7, 2021 ORDER Entitlement to service connection for obstructive sleep apnea (OSA) is dismissed. Entitlement to an initial rating in excess of 50 percent for OSA with asthma and pulmonary hypertension, is denied. FINDINGS OF FACT 1. In February 2020 the RO granted service connection for OSA. 2. The Veteran's OSA has required the use of a breathing assistance device; and his asthma has required the use of daily inhalational anti-inflammatory medication. However, it has not been manifested by FEV-1 and FEV-1/FVC below 40 percent, more than one attack per week with episodes of respiratory failure, required daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications, chronic respiratory failure with carbon dioxide retention or cor pulmonale, or a tracheostomy. CONCLUSIONS OF LAW 1. The appeal concerning entitlement to service connection for OSA is dismissed, as there remains no justiciable case or controversy with respect to this claim. 38 U.S.C. § 7105; 38 C.F.R. § 19.55. 2. The criteria for a rating in excess of 50 percent for OSA with asthma and pulmonary hypertension, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.96, 4.97, Diagnostic Code (DC)s 6602, 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 2008 to June 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a February 2015 and April 2017 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO). This matter was previously before the Board in May 2019. The claim was remanded for the RO to afford the Veteran VA examinations for each claim. The Veteran attended VA examinations in August 2020. Thus, the Board finds that the RO substantially complied with the May 2019 Board remand directive and that the matter has been properly returned to the Board for appellate consideration. Stegall v. West, 11 Vet. App. 268 (1998). In an October 2021 rating decision, the RO found that there was clear and unmistakable error in a February 2020 rating decision that assigned separate disability ratings for sleep apnea (50 percent) and asthma (30 percent) and combined the ratings into one 50 percent rating, as required under 38 C.F.R. § 4.96a. Entitlement to service connection for OSA. In February 2020 the RO granted service connection for OSA and assigned a 50 percent rating. As the benefit sought on appeal has previously been granted in full, the claim is dismissed as a matter of law. There remains no case or controversy, or dispute of fact or law, regarding these issues. 38 U.S.C. § 7105; see also Baughman v. Derwinski, 1 Vet. App. 563, 566 (1991). Entitlement to an initial rating in excess of 50 percent for OSA with asthma and pulmonary hypertension. The Veteran contends that his service-connected sleep apnea and asthma warrants an increased rating. Disability ratings are determined by evaluating the extent to which a veteran's service-connected disability adversely affects his or her ability to function under the ordinary conditions of daily life, including employment, by comparing his or her symptomatology with the criteria set forth in the Schedule for Rating Disabilities. See 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two ratings are potentially applicable, the higher rating will be assigned if the disability more nearly approximates the criteria required for that rating; otherwise, the lower rating will be assigned. See 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the veteran. See 38 C.F.R. § 4.3. A disability rating may require re-evaluation in accordance with changes in a veteran's condition. Thus, it is essential that the disability be considered in the context of the entire recorded history when determining the level of current impairment. See 38 C.F.R. § 4.1. See also Schafrath v. Derwinski, 1 Vet. App. 589 (1991). Nevertheless, where a veteran is appealing the rating for an already established service-connected condition, his present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55, 58 (1994). However, when an appeal is based on the assignment of an initial rating for a disability, following an initial award of service connection for this disability, the rule articulated in Francisco does not apply. Fenderson v. West, 12 Vet. App. 119 (1999). Instead, the evaluation must be based on the overall recorded history of a disability, giving equal weight to past and present medical reports. Id. Staged ratings are appropriate for an increased-rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007). Respiratory disorders are rated under Diagnostic Codes 6600 through 6817 and 6822 through 6847. Rather than separately rate the sleep apnea and asthma, the RO combined the disabilities and assigned an initial 50 percent rating, based on the more predominant symptoms of sleep apnea. Significantly, there are special provisions regarding the evaluation of co-existing respiratory conditions, as set forth under 38 C.F.R. § 4.96. Specifically, when there are two co-existing respiratory conditions (including for DCs 6602 and 6847), a single rating will be assigned under the DC that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such evaluation. 38 C.F.R. § 4.96 (a). This has been interpreted to mean that VA will evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability's DC. See Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). The Veteran's asthma including pulmonary hypertension is rated under DC 6817-6602. 38 C.F.R. § 4.97. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires the use of an additional diagnostic code to identify the basis for the evaluation assigned; the additional code is shown after the hyphen. Sleep apnea is rated under Diagnostic Code (DC) 6847. A 100 percent rating is warranted under this DC for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. 38 C.F.R. § 4.97. DC 6817 is used to rate pulmonary vascular disease. A noncompensable (0 percent) rating contemplates being asymptomatic, following resolution of pulmonary thromboembolism. A 30-percent rating is assigned for being symptomatic, following resolution of acute pulmonary embolism. A 60 percent rating contemplates chronic pulmonary thromboembolism requiring anticoagulant therapy, or; following inferior vena cava surgery without evidence of pulmonary hypertension or right ventricular dysfunction. A 100-percent rating contemplates primary pulmonary hypertension, or; chronic pulmonary thromboembolism with evidence of pulmonary hypertension, right ventricular hypertrophy, or cor pulmonale, or; pulmonary hypertension secondary to other obstructive disease of pulmonary arteries or veins with evidence of right ventricular hypertrophy or cor pulmonale. Under Diagnostic Code 6602, a rating of 10 percent is assigned for asthma with FEV-1 of 71- to 80-percent predicted, or; FEV-1/FVC of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A rating of 30 percent is assigned with 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 rating of 60 percent is assigned if FEV-1 is 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 rating of 100 percent if FEV-1 is 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. Note: In the absence of clinical findings of asthma at time of examination, a verified history of asthmatic attacks must be of record. 38 C.F.R. § 4.97, Diagnostic Code 6602. Upon reviewing the evidence of record, the Board finds the evidence is against a finding of a rating in excess of the currently assigned 50 percent rating for the Veteran's service connected OSA with asthma. Turning to the evidence, in July 2015 treatment records confirmed the Veteran used intravenous therapy/ Heparin lock, however a note for the same date indicated the Veteran was not using an intravenous therapy/Heparin lock. In September 2015 VA treatment records the Veteran's active medications consisted of albuterol, budesonide, diltiazem. The physician noted the plan was recommend the Veteran is retested by PFT for reactive airway disease and if bronchodilator change is less than 8 percent stop Symbicort and take albuterol when needed. A nursing note indicated there were no outpatient anticoagulants medications found. In October 2015 treatment records indicated the Veteran was not using intravenous therapy/Heparin lock. In January 2016 treatment records, the doctor noted the Veteran's pulmonary hypertension has been asymptomatic since treatment with Cardizem CD 240 mg daily. A June 2016 VA respiratory examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with asthma. Pulmonary function test revealed pre-bronchodilator FEV-1 at 88 percent predicted. Pre-bronchodilator FEV-1/FVC was 82 percent predicted. Post bronchodilator FEV-1 was 98 percent predicted. Post bronchodilator FEV-1/FVC was 85 percent predicted. In June 2016 treatment records indicated the Veteran's medications included diltiazem, naproxen, valacyclovir, and nitroglycerin. An August 2016 VA respiratory examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with asthma and pulmonary vascular disease. The current treatment included use of inhalational bronchodilator therapy and inhalational anti-inflammatory medication. Pulmonary function test revealed pre-bronchodilator FEV-1 at 88 percent predicted. Pre-bronchodilator FEV-1/FVC was 82 percent predicted. Post bronchodilator FEV-1 was 98 percent predicted. Post bronchodilator FEV-1/FVC was 85 percent predicted. An August 2016 VA heart conditions examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with coronary spasm, congestive heart failure, and pulmonary hypertension. The treatment for his conditions consisted of a prescription for diltiazem. In an April 2019 statement the Veteran's representative argued that a higher 60 percent rating is warranted under Diagnostic Code 6817 which rates pulmonary vascular disease because the Veteran requires anticoagulant therapy. During a December 2019 respiratory examination, the Veteran reported shortness of breath with exercise and doing too much. The current treatment required intermittent inhalational bronchodilator therapy, inhalational anti-inflammatory medication, and oral bronchodilators. His treatment did not require the use of oral or parenteral corticosteroid medications or outpatient oxygen therapy. The examiner noted that the Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months. He also has not had any physician visits for required care of exacerbations. Pulmonary function test revealed pre-bronchodilator FEV-1 at 90 percent predicted. Pre-bronchodilator FEV-1/FVC was 99 percent predicted. Post bronchodilator FEV-1 was 88 percent predicted. Post bronchodilator FEV-1/FVC was 99 percent predicted. In a December 2019 VA report addressing sleep apnea, the Veteran reported problems sleeping and tiredness throughout the day. The examiner noted that the Veteran had persistent daytime hypersomnolence, and that he required the use of a CPAP machine. However, the examiner noted the Veteran did not require continuous medication. An August 2020 VA respiratory examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with asthma and pulmonary hypertension. The current treatment included use of albuterol hydrofluoroalkane (HFA) and Symbicort inhalers. Pulmonary function test revealed pre-bronchodilator FEV-1 at 80 percent predicted. Pre-bronchodilator FEV-1/FVC was 97 percent predicted. Post bronchodilator FEV-1 was 81 percent predicted. Post bronchodilator FEV-1/FVC was 94 percent predicted. The examiner determined the FEV-1 most accurately reflects the Veteran's level of disability. An August 2020 VA heart conditions examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with coronary spasm, congestive heart failure, cardiomyopathy, and pulmonary hypertension. The treatment for his conditions consisted of prescriptions for diltazem, furosemide, and nitrogylcerin. An August 2020 VA sleep apnea examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. The current treatment required a CPAP machine, but did not require continuous medication. The examiner noted that the Veteran had persistent daytime hypersomnolence, but did not have carbon dioxide retention or cor pulmonale. In June 2021 VA treatment records the doctor indicated the Veteran does not take any anticoagulants. An October 2021 VA respiratory examination report indicated review of the Veteran's claims file, recounted the Veteran's history, and recited his complaints. He was diagnosed with asthma and pulmonary hypertension. The current treatment required intermittent inhalational bronchodilator therapy, inhalational anti-inflammatory medication, and oral bronchodilators. His treatment did not require the use of oral or parenteral corticosteroid medications or outpatient oxygen therapy. The examiner noted that the Veteran has not had any asthma attacks with episodes of respiratory failure in the past 12 months. He had less frequently than monthly visits to his physician for shortness of breath, chronic cough, and wheezing. Pulmonary function test revealed pre-bronchodilator FEV-1 at 80 percent predicted. Pre-bronchodilator FEV-1/FVC was 97 percent predicted. Post bronchodilator FEV-1 was 83 percent predicted. Post bronchodilator FEV-1/FVC was 98 percent predicted. As indicated earlier, the evidence demonstrates that a 100 percent rating has not been warranted under either diagnostic code at issue here. Sleep apnea has not caused chronic respiratory failure with carbon dioxide retention or cor pulmonale and has not required a tracheostomy; and asthma has not resulted in FEV-1 of less than 40-percent predicted, FEV-1/FVC less than 40 percent, more than 1 asthma attack per week with episodes of respiratory failure, or daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. The evidence also indicates that a 60 percent rating has not been warranted under DC 6602. Asthma treatment has consisted mainly of prescribed inhalational medications for daily treatment. The evidence does not show that he was prescribed "intermittent" courses of systemic (oral or parenteral) corticosteroids at least three times per year. Additionally, the evidence does not show there have been at least monthly visits to a physician for required care of exacerbations and has not been productive of FEV-1 of 40- to 55-percent predicted, or FEV-1/FVC of 40 to 55 percent. Accordingly, the criteria for a rating higher than 50 percent for asthma are not met. See 38 C.F.R. § 4.97, Diagnostic Code 6602. Accordingly, the Board concludes that the criteria for a rating in excess of 50 percent are not met. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, as the preponderance of the evidence is against the claim, that doctrine is not applicable. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53-56 (1990). Richard Kettler Acting Veterans Law Judge Board of Veterans' Appeals Attorney for the Board B. Jackman, 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.