Citation Nr: 21077299 Decision Date: 12/29/21 Archive Date: 12/29/21 DOCKET NO. 17-04 704A DATE: December 29, 2021 ORDER Entitlement to a compensable rating for asthma prior to August 24, 2021 and in excess of 10 percent thereafter is denied. FINDINGS OF FACT 1. Prior to August 24, 2021, 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. Since August 24, 2021, the Veteran's asthma has not manifested with FEV-1 of 56 to 70 percent predicated or FEV-1/FVC of 56 to 70 percent, or daily inhalation or oral bronchodilator therapy or inhalation anti-inflammatory medication during the period on appeal. CONCLUSION OF LAW The criteria for a compensable rating for asthma prior to August 24, 2021 and in excess of 10 percent, thereafter, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 4.96, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran served on active duty from August 2006 to November 2009. This matter comes before the Board of Veterans' Appeals (Board) on appeal from an October 2016 rating decision issued by the Department of Veterans Affairs (VA) Regional Office (RO). The Board remanded this matter for further evidentiary development in May 2016 and August 2021. The case has returned to the Board for appellate review. While on remand status, the RO increased the disability rating for the Veteran's asthma from noncompensable to 10 percent in an October 2021 rating decision, effective August 24, 2021. The Board notes that this grant constitutes a partial grant of the full benefits sought on appeal, and therefore, the issue is still pending on appeal as to whether the Veteran's service-connected asthma warrants a compensable disability rating prior to August 24, 2021, and a disability rating in excess of 10 percent thereafter. A.B. v. Brown, 6 Vet. App. 35, 38 (1993). Entitlement to a compensable rating for asthma prior to August 24, 2021 and in excess of 10 percent thereafter Disability evaluations are determined by the application of a schedule of ratings, which is based on average impairment of earning capacity. Separate diagnostic codes identify the various disabilities. 38 U.S.C. § 1155; 38 C.F.R. Part 4. The percentage ratings in VA's Schedule for Rating Disabilities (Rating Schedule) represent as far as can practicably be determined the average impairment in earning capacity resulting from such disabilities and their residual conditions in civil occupations. 38 C.F.R. § 4.1. Where there is a question as to which of two ratings shall be applied, the higher rating will be assigned if the disability more closely approximates the criteria for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When there is an approximate balance of positive and negative evidence regarding the merits of an issue material to the determination of the matter, the benefit of the doubt in resolving each such issue shall be given to the claimant. 38 U.S.C. § 5107(b); 38 C.F.R. §§ 3.102, 4.3. Where entitlement to compensation has already been established and increase in disability is at issue, the present level of disability is of primary concern. See Francisco v. Brown, 7 Vet. App. 55 (1994). However, "staged" ratings are appropriate where the factual findings show distinct time periods when the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007); see also Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran seeks entitlement to a higher disability rating for his service-connected asthma disability. The Veteran has contended that he was seeking a 10 percent disability rating for his service-connected asthma because he suffered from intermittent asthma attacks when exposed to specific triggers, such as smoke, particulates, and other irritants. See November 2016 Notice of Disagreement (NOD). He contended that his asthma was becoming more frequent because his allergies also cause asthma attacks, and his May 2016 VA examination was inadequate because his asthma disability was not evaluated during a flare-up or when he was exposed to a trigger. Id. The Veteran further asserted that he uses an albuterol inhaler intermittently, he was prescribed one during his military service and still keeps it on hand. See January 2017 VA Form 9. The Veteran's asthma is rated under Diagnostic Code 6602 which provides for a 10 percent rating when the evidence shows Forced Expiratory Volume at one second (FEV-1) of 71 to 80 percent predicted, or; FEV-1/Forced Vital Capacity (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 three times per year) course of systemic (oral or parenteral) corticosteroids. A 100 percent rating is assigned when pulmonary function tests (PFT's) show an FEV-1 (Forced Expiratory Volume in one second) less than 40 percent of predicted value, or FEV-1/FVC (Forced Vital Capacity) less than 40 percent, or when asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immuno-suppressive medications. When there is more than one service-connected respiratory disability, VA is to evaluate coexisting service-connected respiratory conditions covered by § 4.96(a) under the criteria enumerated in the predominant disability's DC. Urban v. Shulkin, 29 Vet. App. 82 (2017). After a review of the evidence of record, the Board finds the preponderance of the evidence is against a compensable rating for asthma prior to August 24, 2019, and in excess of 10 percent thereafter. Turning to the record, the Veteran was afforded a VA examination in May 2016. At the May 2016 examination, the Veteran reported dyspnea with prolong exertional activities, as well as with exposures to certain allergens. He reported previously using an albuterol inhaler as needed but not at the time of the examination. He denied systemic treatment and no emergency room (ER) visit or hospitalization. The examiner noted that the Veteran's asthma did not require the use of oral or parenteral corticosteroid or inhaled medications, oral bronchodilators, antibiotics, or outpatient oxygen therapy. The Veteran had not had any asthma attack with episodes of respiratory failure in the past 12 months. At the May 2016 VA examination, pulmonary function testing (PFT) was performed, and the Veteran's results revealed pre-bronchodilator an FVC of 92.5% predicted, FEV-1 of 94.1% predicated, FEV-1/FVC of 85%, and DLCO of 82.9% predicted. Post-bronchodilator revealed an FVC of 92.9% predicted, FEV-1 of 97.7% predicted, and FEV-1/FVC of 88%. The examiner noted that the FEV-1 % predicted test most accurately reflected the Veteran's level of disability. The examiner noted that the Veteran's asthma does not impact his ability to work. The Board notes that these findings are indicative of a noncompensable rating under Diagnostic Code 6602 because there is no indication that the Veteran intermittently used inhalational or oral bronchodilator therapy; and his PFT did not reveal results that warrants a compensable disability rating at this time. As previously mentioned, the Board remanded this matter in January 2019, finding that remand was warranted to obtain medical treatment records documenting the Veteran's history of asthma. Pursuant to the January 2019 Board remand, the Veteran's private treatment records were obtained, and a December 2019 private record reveals a December 2019 prescription for an inhaler. There is no further indication in his treatment records of the frequency with which the Veteran required the inhaler; the prescription stated "PRN S.O.B." which means as needed if he was short of breath. The Board remanded this matter again in July 2021, finding remand warranted to afford the Veteran a new VA examination as there was evidence of worsening of his asthma disability since the May 2016 VA examination. Pursuant to the Board remand, the Veteran was afforded a VA examination in August 2021. At the August 2021 examination, the Veteran reported using an albuterol inhaler more frequently and shortness of breath with exertional activities. He still engages in physical exercises. He reported triggers by smoke, pollens, mold and mildew, usually once a week on average. However, none of these triggers resulted in ER visit or hospitalization. He denied ER visit or hospitalization over the past 12 months. The Veteran denied systemic steroid treatment and he is not on treatment with steroid inhalers. The examiner noted that the Veteran's asthma does not require the use of oral or parenteral corticosteroid medications but does require intermittent inhalational bronchodilator therapy. The Veteran's asthma does not require the use of oral bronchodilators, antibiotics, or outpatient oxygen therapy. PFT was performed, and the Veteran's results revealed pre-bronchodilator as FVC of 83% predicted, FEV-1 of 86% predicated, FEV-1/FVC of 86%, DLCO of 83.9% predicted. Post-bronchodilator was FVC of 90% predicted, FEV-1 of 92% predicted, and FEV-1/FVC of 85%. The examiner noted that the FEV-1 % predicted test most accurately reflected the Veteran's level of disability. The examiner noted that the Veteran's asthma does not impact his ability to work. The Board notes that these findings are indicative of a 10 percent disability rating, but no higher, under Diagnostic Code 6602 because the Veteran utilizes intermittent inhalation therapy. Prior to August 24, 2021, the findings, along with the Veteran's reported symptomatology, are consistent with the assigned noncompensable (0 percent) rating. Accordingly, the claim is denied. Since August 24, 2021, the findings, along with the Veteran's reported symptomatology, are consistent with the currently assigned 10 percent disability rating. Accordingly, the claim is denied. The Board also reviewed and carefully considered the Veteran's lay statements that the severity of his service-connected asthma warrants a higher disability rating. Lay people are competent to report on matters observed or within their personal knowledge. See Layno v. Brown, 6 Vet. App. 465, 470 (1994). Therefore, the Veteran is competent to provide statements of symptoms which are observable to their senses. However, the Board must emphasize that the Veteran is not competent to interpret accurately clinical findings pertaining to the Veteran's asthma symptoms as this requires highly specialized knowledge and training. 38 C.F.R. § 3.159 (a)(1). See also Jandreau v. Nicholson, 492 F.3d 1372, 1376-77 (Fed. Cir. 2007). Additionally, the statements provided do not contemplate a higher rating based on the Veteran's service-connected asthma disability. In conclusion, the Board finds that the preponderance of the evidence is against a compensable disability rating prior to August 24, 2021 and against an increase in the Veteran's disability rating for asthma in excess of 10 percent thereafter. 38 C.F.R. § 4.97, DC 6602. In reaching this conclusion, the Board has considered the applicability of the benefit-of-the-doubt doctrine. However, the evidence is against the claim. See 38 U.S.C. § 5107 (b); 38 C.F.R. § 3.102. Emily Tamlyn Veterans Law Judge Board of Veterans' Appeals Attorney for the Board J. Frazier, Associate Attorney 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.