Citation Nr: 21075877 Decision Date: 12/21/21 Archive Date: 12/21/21 DOCKET NO. 15-35 248A DATE: December 21, 2021 ORDER A compensable rating for asthma prior to August 13, 2015 is denied. A 30 percent, but no higher, rating for asthma from August 13, 2015 to September 27, 2015 is granted, subject to regulations governing the payment of monetary awards. REMANDED Entitlement to a rating in excess of 10 percent for lumbar spine degenerative disc disease prior to March 31, 2015 is remanded. Entitlement to a compensable rating for right lower extremity radiculopathy prior to March 31, 2015 is remanded. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) prior to March 31, 2015 is remanded. FINDINGS OF FACT 1. Prior to August 13, 2015, the Veteran's asthma was not manifested by FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. 2. From August 13, 2015 to September 27, 2015, the Veteran's asthma required daily oral bronchodilator therapy. CONCLUSIONS OF LAW 1. Prior to August 13, 2015, the criteria for a compensable rating for asthma are not met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1 4.7, 4.21, 4.97, Diagnostic Code 6602 (2021). 2. From August 13, 2015 to September 27, 2015, the criteria for a 30 percent, but no higher, rating for asthma are met. 38 U.S.C. §§ 1155, 5107 (2012); 38 C.F.R. §§ 4.1 4.7, 4.21, 4.97, Diagnostic Code 6602 (2021). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty from June 1997 to November 2000. This matter is before the Board of Veterans' Appeals (Board) on appeal from October 2012, October 2014, and September 2015 rating decisions of a Department of Veterans Affairs (VA) Regional Office (RO). In September 2018, a hearing was held before the undersigned. A transcript of the hearing is of record. The case was previously before the Board in October 2019 when it was remanded for further development. Pursuant to the October 2019 remand, the RO made efforts to obtain a March 2014 VA respiratory examination report which was referred to in the August 2015 VA examination report. The record reflects that the RO contacted the Kansas City VA Medical Center in August 2020 requesting a copy of the report. The RO was notified in August 2020 that there was no record, and to contact the Columbia VA Medical Center. The Cheyenne VA Medical Center was contacted in March 2021 and the RO was notified in April 2021 that they were unable to locate a respiratory examination report. The Columbia VA Medical Center indicated in May 2021 that the Veteran did not have archived records and all records are available digitally. The RO notified the Veteran of its numerous efforts in January 2021 and July 2021, and determined that all efforts to obtain this record had been exhausted, and that further attempts to obtain them would be futile. The Board notes that there is also no report of scheduling of a VA respiratory examination during this time in the record. Based on the foregoing, the Board finds that all attempts have been exhausted to obtain a March 2014 VA examination report. As such, VA has fulfilled its duty to assist the Veteran in obtaining this record. Increased Rating-Asthma prior to September 28, 2015 The Veteran is seeking a compensable rating for asthma prior to August 13, 2015 and a rating in excess of 10 percent from August 13, 2015 to September 27, 2015. The Veteran's asthma is rated under 38 C.F.R. § 4.97, Diagnostic Code 6602, which contemplates bronchial asthma. Under that code, a noncompensable rating is assigned if the criteria for at least 10 percent is not met. 38 C.F.R. § 4.31. A 10 percent rating is assigned for an FEV-1 of 71 to 80 percent predicted, or FEV-1/FVC of 71 to 90 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 rating 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 rating is assigned for an FEV-1 less than 40 percent of the predicted value, or, FEV-1/FVC less than 40 percent, or, demonstrates 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. For rating purposes, post-bronchodilator findings are the standard in pulmonary assessment. 61 Fed. Reg. 46,723. Post-bronchodilator studies are required, and will be used for rating purposes, unless the post-bronchodilator results were poorer than the pre-bronchodilator results, or when the examiner determines that post-bronchodilator results should not be used and states why. 38 C.F.R. §§ 4.96(d)(4), (5). In addition, "[w]hen there is a disparity between the results of different PFT so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability." 38 C.F.R. § 4.96(d)(6). In this case, the appeal period before the Board begins on May 10, 2013, the date VA received the Veteran's claim for special monthly compensation, plus the one-year look-back period. Gaston v. Shinseki, 605 F.3d 979, 982 (Fed. Cir. 2010). VA treatment records, including from September 2012, October 2013, May 2014, and April 2015, all indicate that the Veteran had deep respirations that were regular and easy, equal expansion, good air entry, and expiratory wheezing. A March 2014 VA aid and attendance examination notes that the Veteran had asthma in service and had intermittent difficulties breathing since service. A May 2013 private hospital record noted non-tender chest, clear lungs, normal breath sounds. An October 2014 private hospital treatment record following a fall noted non-tender chest, clear lungs, normal breath sounds, and negative respiratory distress. An August 2015 VA respiratory conditions examination report indicates that the Veteran stated that he rarely gets dyspnea since his orthopedic problems hamper his activity. His condition did not require the use of oral or parenteral corticosteroid medications, inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. He did not have any asthma attacks with episodes of respiratory failure in the past 12 months and no physician visits for required care of exacerbations. Aside from wheezing in the chest, congestion was detected, and the Veteran seemed unable to take a deep breath. An August 2015 chest x-ray showed no focal consolidation, effusion, or pneumothorax. There was minimal blunting in the left CP angle, likely atelectasis, improved. PFT testing showed pre-bronchodilator: FVC, 67% predicted; FEV-1, 59% predicted; FEV-1/FVC, 71% predicted; DLCO, 57% predicted. Post-bronchodilator: FVC, 81% predicted; FEV-1, 76% predicted; FEV-1/FVC, 75%; DLCO, not available. According to the examiner, DLCO most accurately reflected the Veteran's level of disability. The Veteran had asthma and since 2009, a non-specific ventilatory defect with significant air trapping and decreased diffusion capacity. The Veteran's respiratory condition impacted his ability to work in that it would preclude vigorous physical work but not sedentary. At the September 2018 hearing, the Veteran testified that he began taking daily oral medication for asthma on the date he was awarded a 10 percent rating for asthma. After a review of the evidence of record, the Board finds the preponderance of the evidence is against a compensable rating for the Veteran's service-connected asthma prior to August 13, 2015. There is no medical evidence that the Veteran's asthma required the use of oral or parenteral corticosteroid medications, the use of inhaled medications, the use of oral bronchodilators, the use of antibiotics, or outpatient oxygen therapy during this time. There was also no evidence that the Veteran had asthma attacks with episodes of respiratory failure in the past 12 months, or physician visits for required care of exacerbations. There was also no evidence of FEV-1 or FEV-1/FVC of 71 to 80 percent predicted. Such findings, along with the Veteran's reported symptomatology during this time, are consistent with the currently assigned noncompensable (0 percent) rating. From August 13, 2015 to September 27, 2015, the Board finds the evidence more nearly approximates that the Veteran is entitled to a higher 30 percent rating for service-connected asthma, as the Veteran testified that on the same date he was awarded the 10 percent rating he began taking daily oral therapy for his asthma. As a higher 30 percent rating is warranted for daily oral bronchodilator therapy, the Board finds the evidence more nearly approximates that the disability met the criteria for a higher 30 percent rating from August 13, 2015 to September 27, 2015. The weight of the evidence is against a finding that the Veteran is entitled to a higher 60 percent rating during this time. The August 2015 VA examiner noted pulmonary function test results of post-bronchodilator FEV-1, 76% predicted and FEV-1/FVC, 75%, which do not meet the criteria for a higher 60 percent rating, as a 60 percent rating requires FEV-1 or FEV-1/FVC of 40 to 55 percent predicted. In addition, there is no evidence of 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, which would warrant a higher 60 percent rating. Thus, a rating in excess of 30 percent from August 13, 2015 to September 27, 2015 is not warranted. The Board has considered whether a higher rating may be assigned under another Diagnostic Code, but notes that under Copeland v. McDonald, 27 Vet. App. 333, 338 (2017), where there is a diagnostic code that addresses the particular service-connected disability, to evaluate that disability under another code would constitute impermissible rating by analogy. Thus, rating the Veteran under a Diagnostic Code other than Diagnostic Code 6602 (bronchial asthma) is simply not permitted. In reaching this conclusion, the Board acknowledges that the Veteran, in advancing this appeal, believed that the disability on appeal was more severe than the currently assigned disability rating reflects. Although the Veteran is competent to report observable symptoms, the competent medical evidence offering detailed, specific, specialized determinations pertinent to the rating criteria are the most probative evidence with regard to evaluating the pertinent symptoms for the disability on appeal. As the preponderance of the evidence is against the claim, the benefit-of-the-doubt doctrine does not apply, and the claim for a compensable rating for asthma prior to August 13, 2015 is denied. The evidence is at least in equipoise to conclude that a 30 percent, but no higher, rating is warranted from August 13, 2015 to September 27, 2015. 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 55-57 (1990). REASONS FOR REMAND Entitlement to a rating in excess of 10 percent for lumbar spine degenerative disc disease and a compensable rating for right lower extremity radiculopathy prior to March 31, 2015 Subsequent to the October 2019 remand, additional VA treatment records that were previously missing were added to the record. These records include several September 2014, October 2014, and December 2014 records which indicate that records from Camdenton Sport and Spine Rehab were scanned into the VA treatment records. However, these records are not viewable and not associated with the Veteran's claims file. A remand is necessary to obtain these records and associate them with the Veteran's claims file. Entitlement to TDIU prior to March 31, 2015 Remand is required because adjudication of this claim for TDIU prior to March 31, 2015 is inextricably intertwined with the resolution of the issues of increased ratings for the lumbar spine degenerative disc disease and right lower extremity radiculopathy prior to March 31, 2015, as the schedular requirements for TDIU are not met. See Harris v. Derwinski, 1 Vet. App. 180, 183 (1991) (holding that issues are inextricably intertwined and must be considered together when a decision concerning one could have a significant impact on the other). The matters are REMANDED for the following action: Associate with the claims file copies of records from Camdenton Sport and Spine Rehab, scanned into the VA treatment records (Vista Imaging) from September 15, 2014, September 19, 2014, September 29, 2014, October 3, 2014, October 13, 2014, October 17, 2014, October 24, 2014, October 27, 2014, and December 17, 2014. All efforts to obtain such records must be fully documented and VA facilities must provide negative responses if no records are found. M. SORISIO Veterans Law Judge Board of Veterans' Appeals Attorney for the Board Bonnie Yoon, 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.