Citation Nr: 21074378 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 16-45 131 DATE: December 15, 2021 ORDER Entitlement to a higher evaluation in excess of 60 percent for asthma from December 15, 2012 is denied. FINDING OF FACT The most probative evidence of record reflects that the Veteran requires intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. CONCLUSION OF LAW The criteria for a rating in excess of 60 percent for asthma have not been met. 38 U.S.C. § 1155, 5107 (West 2014); 38 C.F.R. § 4.14, 4.96, 4.97, Diagnostic Code (Code) 6602 (2016). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from January 5, 2003, to January 17, 2003, and again from May 2009 to September 2011. The Veteran's records indicate he was given a 30 percent rating for asthma from October 1, 2011 to December 14, 2012, and then 60 percent from December 15, 2012 onward. This matter is before the Board of Veterans' Appeals (Board) on appeal from a June 2013 rating decision from a Department of Veterans Affairs (VA) Regional Office (RO). This appeal was first remanded by the Board in November 2018 for additional development. It was again remanded in June 2021 to provide the Veteran with an adequate VA examination. The matter is now before the Board again. Legal Criteria Disability evaluations are determined by the application of a schedule of ratings, which is based on the average impairment of earning capacity caused by the given disability. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. When a question arises as to which of two ratings applies under a particular code, the higher rating is assigned if the disability more closely approximates the criteria for the higher rating. 38 C.F.R. § 4.7. After careful consideration of the evidence, any reasonable doubt remaining, including the degree of disability, is to be resolved in favor of the Veteran. 38 U.S.C. § 5107; 38 C.F.R. §§ 3.102, 4.3. When all of the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a fair preponderance of the evidence is against the claim, in which case the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49, 55 (1990). In any claim for an increased rating, "staged" ratings may be warranted where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. Hart v. Mansfield, 21 Vet. App. 505 (2007); Fenderson v. West, 12 Vet. App, 119 (1999) Asthma is rated under 38 C.F.R. § § 4.97, Diagnostic Code (DC) 6602. A 100 percent rating is warranted when a Veteran has an 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. A 60 percent rating is warranted when a Veteran has 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 three per year) courses of systemic (oral or parenteral) corticosteroids. Factual Background The Veteran asserts that he meets the criteria to receive an increased evaluation of 100 percent for his service-connected asthma as of December 15, 2012. The Veteran stated that since that date he had been prescribed a high dose of Prednisone, (a corticosteroid) which he further stated he takes daily. A June 20, 2013, private medical record showed that from January 2013 to June 20, 2013, the Veteran reported that he needed a total of "6 Prednisone tapers for the year." See also a VA treatment note from June 10, 2013, showing that the Veteran stated that he needed Prednisone a total of four different times to treat his asthma during the wintertime. The same June 10, 2013 record shows that the Veteran last took Prednisone two weeks ago. A July 2013 VA medical record showed that "over the last year the Veteran cycled repeatedly though Prednisone, and that he was about 2-weeks away from his last therapy." Importantly, during the July 2013 VA examination, the Veteran's doctor stated that he has "encouraged the Veteran to avoid "Prednisone and use a "peak flow meter as an objective tool in determining the Veteran's need for prednisone." An October 26 2015, VA medical record shows the Veteran took Prednisone during asthma flares and that he has been large doses of it for "several months." Five months later however in a March 7, 2016 VA medical record, the Veteran stated that "he had a few bouts of bad bronchitis due to his asthma." The Veteran went on to state that his past allergist at a VA facility gave him a prescription for 20mg of Prednisone. The Veteran stated he would take the drug for periods of 3-5 days as needed. The Veteran further stated that during a one-year period he might take 20 Prednisone tablets a year. During an October 2016 VA medical appoitment , the Veteran reported taking less prednisone in a given year than he said he said took in March 2016. Specifically, in October 2016, the Veteran told a VA examiner that he only takes Prednisone once or twice a year. See also a September 2016, VA exmination note where the Veteran stated that while he takes "Prednisone sparingly," he would like a prescription for the drug that he could take "during bouts." Discussing the Veteran's Prednisone use in more detail, a January 2021 VA examination note stated "The veteran incidentally asked if PCP would be willing to provide some "Prednisone tablets." The patient states he "used to take 20/10/10 dosing for acute flairs of bronchitis or back pain in the past, but recently used his last few tablets." The examiner then noted that the Veteran stated his "last Prednisone refill lasted him about 2 years." See also a March 2021 VA medical report, where the Veteran stated that he has a high pain tolerance, but that sometimes he "takes Prednisone for a 4-5 day period" to help with his pain. During a routine VA examination in June 2021, the Veteran's doctor made the following notation about the Veteran's prednisone use: the Veteran said he "used to" keep prednisone on hand, prescribed by providers in the past. The examiner stated that the Veteran said "he would take prednisone whenever he had an episode of "bronchitis" or he also would take it if he had back pain." The examiner also stated that the Veteran is requesting to have a prescription of prednisone "always on hand for when he needed it." Ultimately, the Veteran's doctor stated it was not medically advisable for him to have such a prescription on hand. As a result, the Veteran is planning to seek a new provider. The Veteran underwent a VA disability benefits examination in November 2019. While it was invalid as to his PFT analysis, it was valid to show that the Veteran required the use of corticosteroids on an intermediate basis. The Veteran's September 2021 VA compensation examination also showed that his use of corticosteroids was intermittent. In fact, it showed the Veteran only used corticosteroid two times over the last 12 months. Analysis The Board has considered the Veteran's statements, to include his assertions that since December 15, 2012, he has been prescribed and has taken high doses of Prednisone daily. However, these statements are inconsistent with the other statements that the Veteran reported to medical providers. In a VA treatment note from June 10, 2013, the Veteran stated that he needed Prednisone a total of four different times to treat his asthma during the wintertime. This shows that the Veteran did not need daily Predisone, but rather used it primarily in the winter or during exacerbations. Next, a July 2013 VA medical record showed that "over the last year the Veteran cycled repeatedly though Prednisone, and that he was about 2-weeks away from his last therapy." Importantly, during the July 2013 VA examination, the Veteran's doctor stated that he has "encouraged the Veteran to avoid Prednisone and use a peak flow meter as an objective tool in determining the Veteran's need for prednisone." Based on the July 2013 record the Veteran was being taken off Predisone and put on a peak flow meter. The record also stated that the Veteran was about 2-weeks away from his last Predisone treatment The above shows that the Veteran would be on Prednisone for a period of time and then taken off it. During a March 2016 VA medical examination the Veteran stated that he maybe uses 20 Prednisone tablets per year, but would like a prescription to have on hand, so he could take the tablets as needed.See also a September 2016, VA examination note where the Veteran stated that while he takes "Prednisone sparingly," he would like a prescription for the drug that he could take "during bouts." Moreover, during an October 2016 VA medical appointment, the Veteran reported taking less prednisone in a given year than he said he said took in March 2016. Specifically, in October 2016, the Veteran told a VA examiner that he only took Prednisone once or twice a year. The Veteran's own reports to his doctors show that at most he took about Prednisone about 20 times during a one-year period. Another VA medical record January 2021 shows that the Veteran stated that he used to take Prednisone not only for his asthma but also his back pain. Moreover, when the Veteran made his most recent request for Prednisone in January 2021, he specifically stated that it has been "about two years since he last filled a prescription for Prednisone." Similarly, during a March 2021 medical appointment, the Veteran stated that he has a high pain tolerance but, sometimes he would take Prednisone tablets for four-day periods to treat pain as needed. He told his doctor that he "used to take" Predisone and would like to be able to take it again. He also stated that the last time he filled a script for prednisone was two years ago. In fact, the Veteran went as far as to say that he wants Predisone not to take on a daily basis, but rather to have on hand when his asthma gets particularly bad. While the Veteran's statements do show Prednisone use, none of the statements show that he has used Prednisone daily since December 2012. In fact, they show that between December 2012 to the present he would take Prednisone 2 to 20 times a year at most. In addition to the Veteran's statements to his doctors showing intermittent use of Prednisone, the Veteran's November 2019 VA examination also show intermittent corticosteroid use. While the Board cannot use the November 2019 VA examination as to the Veteran's PFT analysis, the Board may cite to the fact that the Veteran used corticosteroids intermittently. The Veteran's most recent compensation examination from September 2021 also shows intermittent corticosteroid use. In fact, an examination note showed intermittent corticosteroid use of only two times in a 12-month period. These inconsistencies compel the Board to find that the Veteran's statements concerning daily use of Prednisone are not credible. See Caluza v. Brown, 7 Vet. App. 498, 510-11 (1995) (Board must evaluate the credibility of all evidence; lay statements may be evaluated based on, inter alia, inconsistent statements, facial plausibility, and consistency with other evidence of record). See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign these statements significant probative weight. Id. The Veteran is attempting to recollect events that transpired a long time ago and the passage of time, along with the inconsistencies noted above, compels the conclusion that the Veteran is not an accurate historian as to these particular statements. See Caluza, 7 Vet. App. at 510-11. Therefore, the Board cannot assign them significant probative weight. Id. Accordingly, the preponderance of the evidence is against the claim, and the benefit-of-the-doubt standard does not apply. 38 U.S.C. § 5107 (b). David Gratz Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Mintz, Allison 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.