Citation Nr: 21007792 Decision Date: 02/10/21 Archive Date: 02/10/21 DOCKET NO. 15-10 292A DATE: February 10, 2021 ORDER Entitlement to a rating in excess of 30 percent for bronchial asthma prior to May 2, 2013 is denied. Entitlement to a rating in excess of 50 percent for sleep apnea and bronchial asthma from May 2, 2013 to December 9, 2019 is denied. Entitlement to a 60 percent rating for bronchial asthma and sleep apnea from December 9, 2019, is granted. FINDINGS OF FACT 1. For the period prior to May 2, 2013, the Veteran’s bronchial asthma was not characterized by an FEV-1 of 55 percent or less predicted, FEV-1/FVC of 55 percent or less, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. 2. For the period from May 2, 2013 to December 9, 2019, the Veteran’s predominant respiratory condition was his obstructive sleep apnea, which requires the use of a CPAP device; even when considering symptoms of the coexisting respiratory condition of bronchial asthma, the disability did not more nearly approximate chronic respiratory failure with carbon dioxide retention or cor pulmonale, and has not require a tracheostomy. 3. From December 9, 2019, the Veteran’s predominant respiratory condition has been his bronchial asthma manifested by an FEV-1 of 52 percent predicted, but not FEV-1 of less than 40 percent predicted, FEV-1/FVC less than 40 percent, more than 1 attack per week with episodes of respiratory failure, or daily use of systemic (oral or parenteral) high-dose corticosteroids or immunosuppressive medications or for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or the requirement of a tracheotomy. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating in excess of 30 percent for bronchial asthma prior to May 2, 2013 have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96(a), 4.97, Diagnostic Code (DC) 6602. 2. The criteria for entitlement to a rating in excess of 50 percent for sleep apnea and bronchial asthma from May 2, 2013 to December 9, 2019, have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96(a), 4.97, DCs 6602, 6847. 3. The criteria for entitlement to a 60 percent rating for bronchial asthma and sleep apnea from December 9, 2019 have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 3.102, 3.321, 4.1, 4.3, 4.7, 4.96(a), 4.97, DCs 6602, 6847. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Army from August 1989 to May 1997. This matter comes before the Board of Veterans’ Appeals (Board) on an appeal from a May 2011 rating decision issued by the Agency of Original Jurisdiction (AOJ). The Veteran testified before the undersigned Veteran’s Law Judge at a June 2018 videoconference hearing. A copy of the transcript is of record. The appeal was previously remanded by the Board in March 2019 to obtain a VA examination assessing the current severity of the Veteran’s respiratory conditions. The Veteran was afforded new VA examinations for respiratory conditions in December 2019 and July 2020. Therefore, the Board finds there has been substantial compliance with the March 2019 remand directives, and further remand of the increased rating claim is not required. See Stegall v. West, 11 Vet. App. 268 (1998). Entitlement to an increased rating for various respiratory conditions The Veteran contends that his respiratory symptoms are worse than what is represented by his previously assigned 30 percent rating and his currently assigned 50 percent rating. Disability evaluations are determined by the application of the facts presented to VA’s Schedule for Rating Disabilities (Rating Schedule) at 38 C.F.R. Part 4. Disability ratings are determined by evaluating the extent to which a veteran’s service-connected disability adversely affects his ability to function under the ordinary conditions of daily life, including employment, by comparing his symptomatology with the criteria set forth in the Rating Schedule. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.1, 4.2, 4.10. If two evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria required for that evaluation; otherwise, the lower evaluation will be assigned. 38 C.F.R. § 4.7. Any reasonable doubt regarding the degree of disability should be resolved in favor of the claimant. 38 C.F.R. § 4.3; see Gilbert v. Derwinski, 1 Vet. App. 49, 57-58 (1990). To evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the Veteran’s disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). Staged ratings are appropriate when the evidence establishes that the claimed disability manifested symptoms that would warrant different ratings for distinct time periods during the course of the appeal. Id. at 126-27; Hart v. Mansfield, 21 Vet. App. 505, 509-10 (2007). Initially, the Board notes that the Veteran’s service-connected bronchial asthma was rated as 30 percent disabling under DC 6602 until September 1, 2015. The Veteran was granted service connection for obstructive sleep apnea on May 2, 2013. From May 2, 2013 to September 1, 2015, the Veteran was erroneously assigned a separate 50 percent disability rating for sleep apnea under DC 6847. Under DC 6600 through 6817 and 6822 through 6847 may not be combined together. A single rating will be assigned under the DC which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96 (a); Urban v. Shulkin, 29 Vet. App. 82, 95 (2017). Therefore, from September 1, 2015, the Veteran has been assigned a 50 percent disability rating under DC 6602-6847 for bronchitis with constrictive bronchiolitis and sleep apnea. Pursuant to 38 C.F.R. § 4.97, DC 6847 provides ratings for sleep apnea syndromes (obstructive, central, and mixed). The Veteran is currently in receipt of a 50 percent rating under these criteria based on his use of a continuous airway pressure (CPAP) machine. A higher 100 percent rating under these criteria requires sleep apnea that manifests in chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requires tracheostomy. 38 C.F.R. § 4.97. Diagnostic Code 6602 provides compensation for bronchial asthma. 38 C.F.R. § 4.97. A 30 percent rating is assigned for FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. Id. A 60 percent rating is assigned for an FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent, at least monthly visits to a physician for required care of exacerbations, or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids. Id. A maximum 100 percent rating is assigned under Diagnostic Code 6602 for bronchial asthma with an FEV-1 of less than 40 percent predicted, FEV-1/FVC less than 40 percent, more than 1 attack per week with episodes of respiratory failure, or daily use of systemic (oral or parenteral) high-dose corticosteroids or immunosuppressive medications. Id. These calculations are collectively known as pulmonary function tests (PFTs). In the absence of clinical findings of asthma at the time of an examination, a verified history of asthmatic attacks must be of record. Id. at Note (1). When evaluating based on PFTs, post-bronchodilator results are to be used unless the post-bronchodilator results were poorer than the pre-bronchodilator results, in which case, the pre-bronchodilator results are used for rating purposes. 38 C.F.R. § 4.96 (d)(5). When there is a disparity between the results of different PFTs, so that the level of evaluation would differ depending on which test result is used, the test result that the examiner states most accurately reflects the level of disability is utilized. 38 C.F.R. § 4.96 (d)(6). Period prior to May 2, 2013 The evidence does not support a rating in excess of 30 percent for the period prior to May 2, 2013. The Veteran’s private and VA treatment records for the relevant period indicate a persistent productive cough and use of inhalers. December 2010 private PFTs reveal a post-bronchodilator FEV-1 of 92 percent and a FEV-1/FVC of 89 percent. In April 2012, the Veteran reported increased use of his inhaler. He also admitted feeling no improvement with additional inhalational anti-inflammatory medication. In May 2012, the Veteran underwent private PFTs which showed and FEV-1 of 91 percent and an FEV-1/FVC 88 percent post-bronchodilator. The preponderance of the evidence is against a rating in excess of 30 percent. At no point in time did the Veteran’s PFT results indicate a value of 55 percent or less for FEV-1 or FEV-1/FVC. PFTs show, at worst, FEV-1/FVC at 88 percent. For these reasons, the preponderance of the evidence is against a rating in excess of 30 percent under DC 6602. In fact, the Veteran’s PFT results more nearly approximate the criteria for a 10 percent rating using that criteria. However, the medical evidence of record also shows that the Veteran uses daily inhalational bronchodilator therapy multiple times a day and inhalational anti-inflammatory medication during the pendency of the appeal, that would warrant a 30 percent rating, but not higher, under DC 6602. In reaching these conclusions, the Board has considered the Veteran’s lay statements. The Veteran is competent to report symptoms because this requires only personal knowledge as it comes to him through his senses. Layno v. Brown, 6 Vet. App. 465 (1994). He is not, however, competent to identify a specific level of disability according to the appropriate diagnostic codes. Such competent evidence concerning the nature and extent of the Veteran’s disability have been provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with the evaluations. The medical findings (as provided in the examination reports and the clinical records) directly address the criteria under which the disability is evaluated, and the Veteran’s assertions regarding the severity of his disability are consistent with the schedular rating assigned. The medical and lay evidence has been assessed by the Board in determining the overall disability rating. Accordingly, prior to May 2, 2013, the Veteran’s bronchial asthma symptoms are most with consistent with a 30 percent rating based on daily inhalational bronchodilator therapy and inhalational anti-inflammatory medication. For this time period, the preponderance of the evidence is against a rating in excess of 30 percent. Period from May 2, 2013 to December 9, 2019 As noted above, the Veteran has been assigned a 50 percent rating under DC 6847 based on use of a CPAP machine since May 2, 2013. The next higher rating, 100 percent, is warranted for chronic respiratory failure with carbon dioxide retention or cor pulmonale, or the requirement of a tracheotomy. The evidence of record does not show chronic respiratory failure with carbon dioxide retention or cor pulmonale, or the requirement of a tracheotomy. A higher rating of 100 percent is not warranted under DC 6847. As to DC 6602, the Veteran’s treatment records do no indicate the Veteran experienced monthly exacerbations requiring physician visits or intermittent (at least 3 times per year) course of systemic (oral or parenteral) corticosteroids as required for a 60 percent rating. The Board acknowledges an October 2018 VA treatment record notes the Veteran’s PFT results had decreased significantly since 2000. However, for the period between May 2, 2013 and December 9, 2019, the Veteran’s PFT results do not show that he had an FEV-1 of 40 to 55 percent predicted, FEV-1/FVC of 40 to 55 percent. Moreover, a possible exacerbation was noted in November 2017, yet there is also no indication that the Veteran required monthly visits to a physician for required care of exacerbations. Thus, a higher rating under DC 6602 was not warranted for this period. Although the Board is very sympathetic to the Veteran’s contentions regarding the symptoms of his respiratory conditions and the treatment required for each and has carefully considered those contentions, the rating criteria are clear and do not allow the Board to provide a higher rating as requested. There is no indication the overall disability picture more nearly approximates symptoms of chronic respiratory failure with carbon dioxide retention, cor pulmonale, or requirement of a tracheostomy. Even when considering the overall disability picture presented by the Veteran’s co-existing respiratory disabilities, elevation to the next higher rating criteria, 100 percent, under DC 6847 is not warranted. As such, the Board concludes that a preponderance of the evidence is against a finding that a rating in excess of 50 percent is warranted for the Veteran’s co-existing respiratory conditions prior to December 9, 2019. In making this determination, the Board has considered the provisions of 38 U.S.C. § 5107 (b), but there is not such a state of approximate balance of the positive evidence with the negative evidence to otherwise warrant a more favorable decision than set forth herein. Period from December 9, 2019 The Veteran was afforded a VA examination on December 9, 2019. He reported general worsening of his condition characterized by an increased daily baseline shortness of breath with milder levels of exertion and intermittent wheezing. He also reported using his rescue inhaler multiple times a day. The Veteran did not report a history of hospitalization for pulmonary problems. Post-bronchodilator PFT results indicate an FEV-1 of 52 percent and an FEV-1/FVC of 67 percent. The Veteran indicated that the FEV-1 test result most accurately reflects the Veteran’s level of disability. A July 2020 VA asthma examination indicates moderate-severe asthma and severe obstructive sleep apnea. The examiner did not conduct new PFTs but noted that the Veteran may benefit from addition of a biologic requiring monthly at home treatment or twice monthly clinic visits. The Veteran’s PFT results are consistent with a 60 percent rating under Diagnostic Code 6602 from December 9, 2019. The Veteran is not entitled to a 100 percent rating under Diagnostic Code 6602. At no point in time does the Veteran’s PFT results indicate a value of 40 percent for less for FEV-1 or FEV-1/FVC. None of the medical records or lay statements indicate a weekly incidence of attacks with respiratory failure or daily use of systemic corticosteroids or immuno-suppressive medications. For these reasons, the preponderance of the evidence is against a rating of 100 percent. The Veteran is also not entitled to a 100 percent rating under Diagnostic Code 6847 on the basis of sleep apnea symptoms. The evidence of record does not indicate the existence at this time of chronic respiratory failure with carbon dioxide retention or cor pulmonale, and neither indicates that the Veteran has received a tracheostomy. Given the lack of evidence of chronic respiratory failure or tracheostomy, the preponderance of the evidence is against a rating of 100 percent under Diagnostic Code 6847. The evidence does not support additional staged ratings for any time period on appeal. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Sherman 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.