Citation Nr: 21074451 Decision Date: 12/15/21 Archive Date: 12/15/21 DOCKET NO. 15-42 390 DATE: December 15, 2021 ORDER Entitlement to a rating in excess of 50 percent for service-connected sleep apnea with bronchial asthma is denied. FINDING OF FACT Throughout the period on appeal, the Veteran's asthma has required the use of daily inhalational anti-inflammatory medication; and his sleep apnea has required the use of medication and a breathing assistance device. It has not been manifested by FEV-1 and FEV-1/FVC below 40 percent, or with 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. CONCLUSION OF LAW The criteria for a rating in excess of 50 percent for sleep apnea to include bronchial asthma, have not been met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 3.102, 4.96, 4.97, Diagnostic Code (DC)s 6602, 6847 (2021). REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the U.S. Army from October 1987 to October 2010 with service in Southwest Asia and Kosovo. This matter comes before the Board of Veterans' Appeals (Board) from a June 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO) in which the RO granted service connection for sleep apnea with bronchial asthma and assigned a 50 percent rating, effective November 1, 2020. He expressed timely disagreement with the assigned rating in June 2013. Previously, the claim was before the Board in April 2021 and was remanded for additional development including a new sleep apnea examination. As discussed below, the Board's prior remand instructions have not been substantially complied with, and as such the case is again before the Board and additional development is warranted. See Stegall v. West, 11 Vet. App. 268, 271 (1998). Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for the higher evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability will be resolved in favor of the Veteran. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of the symptomatology of the other condition. 38 C.F.R. § 4.14; Esteban v. Brown, 6 Vet. App. 259, 262 (1994). In November 2010, the RO 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). Asthma rating criteria Bronchial asthma is rated under DC 6602. Under DC 6602, a 10 percent evaluation is warranted for an FEV-1 of 71 to 80 percent of predicted value, or, an FEV-1/FVC of 71 to 80 percent, or, intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is warranted for an FEV-1 of 56 to 70 percent of predicted value, or, an FEV-1/FVC of 56 to 70 percent, or, daily inhalational or oral bronchodilator therapy, or, inhalational anti-inflammatory medication. A 60 percent evaluation is warranted for an FEV-1 of 40 to 55 percent of predicted value, or, an 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 an FEV-1 less than 40 percent of the predicted value, 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 immune-suppressive medications. 38 C.F.R. § 4.97, DC 6602. Pulmonary Function Test (PFT) results are generally reported before and after the administration of bronchodilator therapy. VA regulations require the use of post-bronchodilator results in determining disability ratings for DC 6600, 6603, 6604, 6825-6833, and 6840-6845, unless post-bronchodilator results are poorer than pre-bronchodilator results. 38 C.F.R. § 4.96 (d)(4). There are no regulations specifying whether pre- or post-bronchodilator results should be used when determining disability ratings under DC 6602. As a matter of convenience, this decision relates pre- and post-bronchodilator scores alike in summarizing PFT studies. Sleep apnea rating criteria DC 6847 pertains to sleep apnea. Under the diagnostic criteria, a noncompensable rating is assigned for asymptomatic sleep apnea but with documented sleep disorder breathing. A 30 percent rating is warranted for sleep apnea manifested by persistent daytime hypersomnolence. A 50 percent evaluation is assigned for sleep apnea requiring the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent evaluation is assigned for sleep apnea with chronic respiratory failure with carbon dioxide retention or cor pulmonale or requiring a tracheostomy. 38 C.F.R. § 4.97, DC 6847. 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 sleep apnea with asthma. Sarcoidosis rating criteria DC 6846 pertains to sarcoidosis, Under this criteria, Cor pulmonale, or; cardiac involvement with congestive heart failure, or; progressive pulmonary disease with fever, night sweats, and weight loss despite treatment warrants a 100 percent rating. Pulmonary involvement requiring systemic high dose (therapeutic) corticosteroids for control warrants a 60 percent rating. Pulmonary involvement with persistent symptoms requiring chronic low dose (maintenance) or intermittent corticosteroids warrants a 30 percent rating. Chronic hilar adenopathy or stable lung infiltrates without symptoms or physiologic impairment warrants a noncompensable rating. Alternatively, a rating may be assigned for active disease or residuals as for chronic bronchitis (DC 6600) and extra-pulmonary involvement under specific body system involved 6847 Sleep Apnea Syndromes (Obstructive, Central, Mixed): Evidence In his November 2013 notice of disagreement, the Veteran contended that sleep apnea and asthma should be rated separately, notwithstanding the requirements of 38 C.F.R. § 4.96. In a December 2014 statement, he contended that the records showed treatment with oral corticosteroids more than three times per year, A record of private medical care dated in May 2011 shows treatment for both sleep apnea and asthma. Sleep apnea was treated with the use of a continuous positive air pressure (CPAP) device. Asthma was treated with anti-histamine, bronchodilators, and montelukast (an oral leukotriene inhibitor- not a steroid- also known as Singulair). In military clinic records in August 2012, a clinician noted that the Veteran denied any asthma symptoms and had stopped using the bronchodilator and montelukast. Records dated in November 2012 also do not show steroid medication. In a December 2014 statement, the Veteran reported that medical evidence showed that oral corticosteroids were administered more than three times a year. See December 2014 VA 21-4138 Statement In Support of Claim, p.2. In a May 2015 statement in support of claim, the Veteran stated that he had 50 percent for sleep apnea with bronchial asthma, but the rating was incorrect. The Veteran felt that he needed a separate rating for asthma. The Veteran stated the respiratory conditions each had the ability to impair his breathing, but each had distinct and separate symptomatology. The Veteran stated his sleep apnea was caused by obstructive factors that resulted in disruption of breathing while he was sleep and his asthma was caused by exposure to allergens contraction of the bronchi. See May 2015 VA 21-4138 Statement In Support of Claim. In a June 2015 VA treatment record, the Veteran had a diagnosis of sarcoidosis, which was asymptomatic. In addition, was taking medication for asthma, which was well controlled. See September 2015 Capri, p.50. In an August 2015 VA examination report for sleep apnea, the Veteran's respiratory condition did not impact his ability to work. The Veteran reported persistent daytime hypersomnolence and fatigue. The VA examiner stated that the Veteran had a diagnosis of bronchial asthma that was changed to an additional diagnosis of stable asthma and an additional diagnosis of sarcoidosis. The VA examiner noted that the Veteran's asthma required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids; 2 in the last 12 months. In addition, the Veteran's condition required daily use of inhalational bronchodilator therapy and inhalational anti-inflammatory medication and physician visits for required care of exacerbations were less frequently than monthly. The Veteran had symptoms of sarcoidosis including chronic hilar adenopathy. The examiner also noted the use of daily inhalation bronchodilatory therapy and oral bronchodilators on a daily basis. The examiner cited pulmonary function tests performed in August 2015. Pre-bronchodilator testing showed FEV-1 was 117 percent predicted and FEV-1/FVC was 97 percent. There were no post-bronchodilator testing results listed. There were no post results because the pre-bronchodilator results were normal. In a November 2015 form 9, the Veteran stated that his rating was incorrect and should had been 60 percent and not 50 percent. The Veteran stated that he took oral corticosteroids on a daily basis as well as anti-inflammatory medication. The Veteran stated his asthma is better controlled due to medication and his sleep apnea was better controlled by the APAP machine he used. See November 2015 form 9. In an October 2016 VA examination report for respiratory conditions, the examiner noted the Veteran had a diagnosis of asthma in 1988 and sarcoidosis in 2013. The Veteran reported he used medication for his asthma condition. The Veteran did not take any medication for sarcoidosis and did not have any surgeries for the condition. The condition required the use of oral or parenteral corticosteroid medication that required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids with 2 courses or bursts in those last 12 months. The Veteran also required use of daily inhalation bronchodilatory therapy and oral bronchodilators as well as inhalational anti-inflammatory medication on a daily basis. The examiner stated that asthma was the predominantly responsible for inhaled medications. The examiner cited pulmonary function tests performed in July 2016. Pre-bronchodilator testing showed FEV-1 was 119 percent predicted and FEV-1/FVC was 105 percent. Post-bronchodilator testing showed FEV-1 improved by 1 percent for a value of 124 percent and FEV-1/FVC was reported as improving by 4 percent for a total of 109 percent. The condition also impacted his ability to work, because restrictions included avoiding fumes, gases, dust, extreme temperatures, and any airway irritants. The examiner stated that mask and or respirators should be used when required. The examiner also stated the Veteran's asthma was also triggered by exertion. In June 2019, a VA clinician noted a progression of pulmonary disease and began a regimen with prednisone, tapering over several weeks. In a September 2020 outpatient note, a clinician noted following pulmonary disease and that the Veteran was tapering prednisone down from 15 mg to 10 mg daily. In a July 2021 VA examination for sleep apnea, the examiner noted the Veteran had a diagnosis of obstructive sleep apnea, diagnosed in 2010. The examiner noted that the Veteran did not require continuous medication for control of a sleep disorder condition. The Veteran required the use of a breathing assistance device and the Veteran did not have any signs or symptoms attributable to sleep apnea. The condition did not impact his ability to work. Here, although the pulmonary function testing does not reach the compensable degree of severity, the Veteran's asthma requires the use of inhalational anti-inflammatory medication, consistent with the 30-percent rating criteria. A 60 percent evaluation is not warranted as the Veteran's PFT results are not FEV-1 of 40 to 55 percent of predicted value, or an 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. Moreover a maximum 100 percent is not warrant as the Veteran's PFT results are not FEV-1 less than 40 percent of the predicted value, 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 immune-suppressive medications. The Board finds that even when considering the overall severity of the Veteran's disability, there is no evidence to warrant an increase to 60 percent or 100 percent under either diagnostic code. The Veteran's sleep apnea is primarily manifested by persistent daytime hypersomnolence and fatigue. The Veteran's asthma is primarily manifested by shortness of breath. However, even when considering the overall severity of these disabilities, there is no evidence that these symptoms are result in experiences chronic respiratory failure with carbon dioxide retention or cor pulmonale or requires a tracheostomy. Thus, a 100 percent rating under DC 6847 is not warranted. A rating for sarcoidosis is not warranted as it is not the primary disability picture and does not require high dose systemic corticosteroids for control of this disorder. Furthermore, considering the overall severity of these disabilities, there is no evidence that these symptoms result in PFT results of FEV-1 of 40 to 55 percent of predicted value, or, an 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; or PFT results are not FEV-1 less than 40 percent of the predicted value, 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 immune-suppressive medications. The Veteran's report of daily use of steroid medication is not confirmed in the record and has not be shown to be "high dose." Given such, a 60 percent or 100 percent rating is not warranted under DC 6602. The Board has also considered whether any other alternative diagnostic codes are applicable; however, because the Veteran was specifically diagnosed sleep apnea, sarcoidosis, and asthma, no other codes are applicable to the Veteran's appeal. Lastly, the Board acknowledges that the Veteran contends that he is entitled to a separate rating for his sleep apnea and asthma. However, as previously mentioned above, 38 C.F.R. § 4.96 (a) specifically prohibits the assignment of separate evaluations for asthma and obstructive sleep apnea and sarcoidosis. See 38 C.F.R. § 4.96. (Ratings under DC 6600 through 6817 (of which asthma is 6602) and 6822 through 6847 (of which sarcoidosis is 6846 and sleep apnea is 6847) cannot be combined with each other). Given such, the Board is legally barred from assigning separate ratings for sleep apnea and asthma. Accordingly, the Board finds the weight of competent and credible evidence is against the Veteran's claim for a higher rating for sleep apnea with asthma, currently rated as 50 percent disabling. While the Board has considered the applicability of the benefit-of-the-doubt doctrine, it is not applicable because the preponderance of the evidence is against the Veteran's claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. J.W. FRANCIS Veterans Law Judge Board of Veterans' Appeals Attorney for the Board E. Long-Ellis, 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.