Citation Nr: 21006105 Decision Date: 02/03/21 Archive Date: 02/03/21 DOCKET NO. 15-00 443A DATE: February 3, 2021 ORDER The appeal as to the claim of entitlement to an evaluation of 30 percent, but no higher, for service-connected bronchial asthma is granted. FINDING OF FACT Throughout the rating period, the Veteran's bronchial asthma disability is treated with inhalational bronchodilator therapy and inhalational anti-inflammatory medication; the Veteran’s pulmonary function tests do not demonstrate an FEV-1 of 40- to 55-percent of predicted value, or; a FEV-1/FVC ratio 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. CONCLUSION OF LAW The criteria for a disability rating for bronchial asthma for 30 percent, but no higher, have been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.3, 4.7, 4.97, Diagnostic Code 6602 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran had active service in the United States Army from January 1975 to December 1976. His service was under honorable conditions. The matter is on appeal from a June 2013 rating decision. In his January 2015 substantive appeal, the Veteran requested a hearing at his local regional office (RO) before a Veterans Law Judge. In a February 2017 written request, the Veteran requested adjudication of his claim without a hearing. As such, the Board may proceed to adjudicate this claim. See 38 C.F.R. § 20.704(e) (2019). In a February 2019 decision, the Board in denied the claim of entitlement to an increased rating in excess of 20 percent for the Veteran’s service-connected asthma disability. The Veteran appealed the Board's February 2019 decision to the U.S. Court of Appeals for Veterans Claims (Court). In a March 2020 Joint Motion for Remand (JMR), the parties stipulated that the February 2019 Board decision should be vacated, and in March 2020, the Court granted the JMR. In September 2020, the Board remanded the case for additional development; specifically, to obtain VA outpatient treatment records and associate them with the record. The matter has since been returned to the Board. The Board has limited the discussion below to the relevant evidence required to support its finding of fact and conclusion of law, as well as to the specific contentions regarding the case as raised directly by the Veteran and those reasonably raised by the record. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015); Robinson v. Peake, 21 Vet. App. 545, 552 (2008); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016). Increased Rating – Legal Criteria Disability evaluations are determined by the application of the VA's Schedule for Rating Disabilities (Rating Schedule), 38 C.F.R. Part 4 (2019). The percentage ratings contained in the Rating Schedule represent, as far as can be practicably determined, the average impairment in earning capacity resulting from diseases and injuries incurred or aggravated during military service and their residual conditions in civil occupations. 38 U.S.C. § 1155 (2012); 38 C.F.R. §§ 3.321 (a), 4.1 (2019). Where there is a question as to which of two evaluations shall be applied, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. In accordance with 38 C.F.R. §§ 4.1, 4.2 (2019) and Schafrath v. Derwinski, 1 Vet. App. 589 (1991), the Board has reviewed all evidence of record pertaining to the history of the service-connected disabilities at issue. The Board has found nothing in the historical record which would lead to the conclusion that the current evidence of record is not adequate for rating purposes. Moreover, the Board is of the opinion that this case presents no evidentiary considerations which would warrant an exposition of remote clinical histories and findings pertaining to the disability. In both initial rating claims and normal increased rating claims, the Board must discuss whether "staged ratings" are warranted, and if not, why not. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). Entitlement to an evaluation in excess of 20 percent for service-connected bronchial asthma. The Veteran currently has a net disability rating of 20 percent for his bronchial asthma, based on having met the rating criteria for 30 percent, with a 10 percent reduction based on a pre-existing condition that was found to have been aggravated by service. See, generally, February 1977, January 1979, and June 2013 rating decisions. The Veteran contends that his service-connected asthma warrants an increased rating. Specifically, in an August 2013 statement, he asserts that he has been taking Symbicort for his asthma disorder throughout the appeal period. The Veteran’s asthma is currently rated as 20 percent disabling pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6602. Under Diagnostic Code 6602, a 30 percent rating is warranted for FEV-1 of 56- to 70-percent of predicted value, or; a FEV-1/FVC ratio of 56 to 70 percent, or; daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication; A 60 percent rating is warranted for FEV-1 of 40- to 55-percent of predicted value, or; a FEV-1/FVC ratio 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 100 percent rating is warranted for FEV-1 less than 40-percent of predicted value, or; a FEV-1/FVC ratio of 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 January 2010 private treatment record shows the Veteran takes Symbicort to treat his asthma disorder. An April 2011 private treatment record demonstrates the Veteran takes Symbicort, two puffs, twice a day. The Veteran underwent a VA examination in September 2012. Pulmonary function test results showed FEV-1 of 85% of predicted (pre-bronchodilator) and 93% of predicted (post-bronchodilator), and a FEV-1/FVC ratio of 74% (pre-bronchodilator) and 75% (post-bronchodilator). The examiner indicated that the FEV-1 percentage most accurately reflects the Veteran's level of disability. Upon examination and review of the record, the examiner found the Veteran’s asthma was treated with inhalational bronchodilator therapy and inhalational anti-inflammatory medication, and not with oral or parenteral corticosteroids. The examiner noted that the Veteran required physician visits for required care of exacerbations over the preceding 12 months occurred less frequently than monthly. The examiner noted the Veteran’s assertion, that he was treated once in the preceding 12 months for moderate exacerbation of asthma, and was given oral steroids, which the examiner was unable to verify from the medical records. The examiner further found the Veteran did not have any asthma attacks with episodes of respiratory failure in the preceding 12 months. A May 2012 VA outpatient treatment record shows the Veteran is taking Symbicort and albuterol for his asthma. A September 2012 VA outpatient treatment record demonstrates that the Veteran’s prescribed medication to treat his asthma includes albuterol sulfate. An October 2012 private treatment record shows the Veteran took another albuterol formulation called ProAir HFA. The Veteran’s records are negative for treatment of his asthma with systemic (oral or parenteral) corticosteroids. An October 2014 VA record shows the Veteran utilizes inhalation medication to treat his chronic asthma. A September 2016 VA outpatient treatment record shows the Veteran continues to take Symbicort to treat his asthma. A January 2020 private treatment record demonstrates the ongoing use of multiple inhalation medications to treat asthma. Upon review of the record, the Board finds that the preponderance of the evidence supports a 30 percent rating, but no higher, for the entire appeal period as the Veteran’s asthma requires the use of daily inhalational, oral bronchodilator therapy, as well as inhalational anti-inflammatory medication. In this regard, the Veteran's assertion that he was taking Symbicort (an inhalation corticosteroid) for his asthma disorder consistently throughout the appeal period, is corroborated by the aforementioned VA and private treatment records dated from January 2010 to January 2020. The Veteran’s service-connected asthma disorder does not meet the criteria for a 60 percent rating, as his pulmonary function tests do not demonstrate an FEV-1 of 40- to 55-percent of predicted value, or; a FEV-1/FVC ratio 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. The record does not contain any evidence that the Veteran has undergone at least monthly visits to a physician for required care of exacerbations of his condition or had any asthma attacks with episodes of respiratory failure. The record does not contain any evidence that he has had undergone intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids or taken any immuno-suppressive medications for his asthma. Further, as noted above, his September 2012 VA examination pulmonary function test results do not support a higher rating, and the Veteran has neither provided nor asserted there is other, more recent evidence that shows his pulmonary function test results have since worsened to levels that would warrant a higher rating. Accordingly, he does not meet the criteria for the next higher 60 percent rating. The Board acknowledges the Veteran's statements describing his asthma symptoms and their impact on his daily living and employment. Although the Veteran is competent to report symptoms he can observe, such as difficulty breathing, he is not competent to report that asthma warrants a higher evaluation under VA's criteria for rating bronchial asthma disabilities. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). However, even affording the lay statements full competence and credibility, the evidence simply does not show entitlement to a higher evaluation under any applicable diagnostic code. Consideration has been given to assigning a staged rating; however, at no time during the period in question has the disability warranted more than a 30 percent disability evaluation. See Hart v. Mansfield, 21 Vet. App. 505 (2007). Accordingly, a 30 percent rating, but no higher, is warranted for the service-connected asthma disability. B. MULLINS Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Sara Schinnerer, 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.