Citation Nr: 21008310 Decision Date: 02/16/21 Archive Date: 02/16/21 DOCKET NO. 13-13 455 DATE: February 16, 2021 ORDER Entitlement to an increased disability evaluation for bronchial asthma, currently rated as 60 percent disabling, is denied. Entitlement to an initial 30 percent disability rating for headaches, residual of a traumatic brain injury (TBI), is granted. Entitlement to a total disability rating based on individual unemployability due to service-connected disabilities (TDIU) is granted. FINDINGS OF FACT 1. The Veteran’s service-connected bronchial asthma is manifested by no worse than FEV-1 of 52 percent, with daily oral bronchodilator therapy and anti-inflammatory medication; the Veteran does not use of corticosteroids or other immune-suppressive medications. 2. The Veteran’s headaches, residual of a TBI, most closely approximate prostrating attacks occurring at least once a month over the last several months. 3. The Veteran’s service-connected disabilities render him unable to engage and retain substantially gainful employment. CONCLUSIONS OF LAW 1. The criteria for a disability rating greater than 60 percent for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1, 4.2, 4.7, 4.97, Diagnostic Code 6602 (2019). 2. The criteria for a 30 percent disability rating, but no higher, for headaches, residual of a TBI, have been met. 38 U.S.C. §§ 1155, 5103A, 5107(b); 38 C.F.R. §§ 3.159, 3.321, 4.124a, Diagnostic Codes 8045 – 8100 (2019). 3. The criteria for TDIU have been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.340, 3.341, 4.15, 4.16, 4.18 (2019). REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served on active duty in the United States Navy from December 1980 to August 1985. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from May 2012 and September 2015 rating decisions from the Department of Veterans Affairs (VA) Regional Office (RO) in Pittsburgh, Pennsylvania. The Veteran testified before a Veterans Law Judge at a September 2013 Board hearing at the RO and before a different Veterans Law Judge at a November 2018 Board videoconference hearing. Transcripts of the hearings have been associated with the record. The Veterans Law Judges who conducted the hearings have since retired. The Veteran waived his right to a hearing by the third judge in July 2019 and again in August 2019 response. Thus, a single judge decision is appropriate in this case. See Arneson v. Shinseki, 24 Vet. App. 379 (2011). The Veteran’s claims were previously before the Board in August 2015 and November 2019. A supplemental statement of the case was most recently issued in April 2020. The case was returned to the Board for appellate consideration. The Board notes that service connection for headaches was granted in an August 2015 Board decision and effectuated in a September 2015rating decision. In a January 2016 rating decision, the Veteran’s headaches were recharacterized as headaches, residual of a TBI; the assigned disability evaluation remained unchanged. In a January 2013 rating decision, the Veteran was granted an increased, 60 percent disability rating for his service-connected bronchial asthma, effective July 19, 2010. As the Veteran has not been granted the maximum benefit allowed for his service-connected bronchial asthma, the claim for an increased disability rating remains on appeal. See AB v. Brown, 6 Vet. App. 35, 38 (1993). Duties to Notify and Assist The Veterans Claims Assistance Act of 2000 (VCAA) imposes obligations on VA to provide claimants with notice and assistance. 38 U.S.C. §§ 5102, 5103, 5103A, 5107, 5126; Honoring America's Veterans and Caring for Camp Lejeune Families Act of 2012, Pub. L. No. 112-154, §§ 504, 505, 126 Stat. 1165, 1191-93; 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2017). The VCAA requires VA to assist a claimant at the time that he or she files a claim for benefits. As part of this assistance, VA is required to notify claimants of the evidence that is necessary in substantiating their claims, and provide notice that a disability rating and an effective date for the award of benefits will be assigned if service connection is awarded. 38 U.S.C. § 5103(a); 38 C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App. 183, 187 (2002); Dingess v. Nicholson, 19 Vet. App. 473, 486 (2006). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board.”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). Increased Rating Disability evaluations are determined by application of the criteria set forth in the VA’s Schedule for Rating Disabilities, which is based on average impairment in earning capacity. 38 U.S.C. § 1155; 38 C.F.R. Part 4. An evaluation of the level of disability present must also include consideration of the functional impairment of the Veteran's ability to engage in ordinary activities, including employment. 38 C.F.R. § 4.10. After careful consideration of the evidence, any reasonable doubt remaining is resolved in favor of the Veteran. 38 C.F.R. § 4.3. Separate evaluations may be assigned for separate periods of time based on the facts found. In other words, the evaluations may be staged. Staged ratings are appropriate for any rating claim when the factual findings show distinct time periods during the appeal period where the service-connected disability exhibits symptoms that would warrant different ratings. Fenderson v. West, 12 Vet. App. 119 (1999); Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an increased disability evaluation for bronchial asthma, currently rated as 60 percent disabling. The Veteran’s bronchial asthma currently is rated as 60 percent disabling pursuant to 38 C.F.R. § 4.97, Diagnostic Code 6602. Diagnostic Code 6602 rates the severity of pulmonary disorders based primarily on objective numerical results of pulmonary function testing (PFT). Asthma is evaluated using the following tests: (1) Forced Expiratory Volume in one second (FEV-1) and (2) the ratio of FEV-1 to Forced Vital Capacity (FEV-1/FVC). See 38 C.F.R. § 4.97. Under Diagnostic Code 6602, a 10 percent evaluation is warranted for FEV-1 of 71 to 80 percent predicted, FEV-1/FVC of 71 to 80 percent, or intermittent inhalational or oral bronchodilator therapy. A 30 percent disability evaluation is assigned where there is FEV-1 of 56 to 70 percent predicted, FEV-1/FVC of 56 to 70 percent, or daily inhalational or oral bronchodilator therapy. 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 3 times per year) course of systemic (oral or parenteral) corticosteroids. A maximum 100 percent rating is assigned under Diagnostic Code 6602 for bronchial asthma with an FEV-1of less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or more than 1 attack per week with episodes of respiratory failure, or requires daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97, Diagnostic Code 6602 (2019). The Board notes that 38 C.F.R. § 4.96 provides that when applying Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845, pulmonary function tests are required except in certain circumstances specified in 38 C.F.R. § 4.96(d). Pulmonary function test results are generally reported before and after the administration of bronchodilator therapy. VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under Diagnostic Codes 6600, 6603, 6604, 6825-6833, and 6840-6845. See 38 C.F.R. § 4.96(d)(4). There are no regulations identifying whether pre- or post-bronchodilator results should be used when determining disability ratings under Diagnostic Code 6602. As 38 C.F.R. § 4.96(d)(4) does not explicitly apply to Diagnostic Code 6602, the Board will use the pulmonary function test results that allow the most favorable disability rating to the Veteran. After a review of all the evidence, the Board finds that the Veteran’s disability picture is most consistent with the currently assigned 60 percent disability evaluation. The clinical evidence of record, including the January 2011, October 2015, and April 2020 VA examination reports, as well as VA and private treatment records, demonstrates that the Veteran reported the use of an inhaled bronchodilator and an anti-inflammatory medication daily; he denied the use of oral/parenteral corticosteroids at the April 2020 VA examination. The Veteran denied antibiotic use, outpatient oxygen therapy, and use of other immunosuppressives. The Veteran denied a history of physician’s visits for exacerbations, respiratory failure, and incapacitating episodes. There was also no evidence of cardiopulmonary complications. Most recent pulmonary function testing, in April 2020, showed pre-bronchodilator FVC at 51 percent predicted, FEV-1 at 52 percent predicted, and FEV-1/FVC was 71 percent predicted; post-bronchodilator, he had FVC at 58 percent predicted, FEV-1 at 63 percent predicted, and FEV-1/FVC at 77 percent predicted. Therefore, the Board finds that the Veteran's symptomatology fits most closely within the criteria for the currently assigned 60 percent disability evaluation. The Board acknowledges that, according to the Veteran’s various statements and those of his representative, his service-connected bronchial asthma is not adequately compensated by the 60 percent disability rating, and that he should be granted a 100 percent disability rating. However, the VA examiners found that the Veteran’s service-connected bronchial asthma was as previously characterized. Although the Veteran is competent to report his symptoms, he is not, however, competent to identify a specific level of disability according to the appropriate diagnostic code. More competent evidence concerning the nature and extent of the Veteran’s service-connected bronchial asthma was provided by the medical personnel who have examined him during the current appeal and who have rendered pertinent opinions in conjunction with his evaluations; the Board notes that the VA and private treatment reports do not show that the Veteran’s symptoms were worse than at the VA examinations, and the Veteran has not made any such allegation. Likewise, the Board again points out that the Veteran has not asserted that his symptoms are worsening, just that he feels that the level of compensation for his service-connected bronchial asthma is inadequate. The medical findings (as provided in the examination report and clinical findings) directly address the criteria under which the disability is evaluated. As such, the Board finds these records to be probative. The Board must follow the rating schedule which evaluates asthma on the results of pulmonary function tests (or other criteria as described above). As such, the Board finds that the Veteran is not entitled to a disability rating in excess of 60 percent for service-connected bronchial asthma at any time during the rating period. 2. Entitlement to an increased disability rating for headaches, residual of a traumatic brain injury (TBI), initially rated as noncompensable. The Veteran was initially assigned a noncompensable disability rating for his headaches, residual of a TBI, pursuant to 38 C.F.R. § 4.124a, Diagnostic Codes 8045 – 8100. Hyphenated diagnostic codes are used when a rating under one diagnostic code requires use of an additional diagnostic code to identify the basis for the evaluation assigned. 38 C.F.R. § 4.27. If the rating is determined on the basis of residual conditions, the number appropriate to the residual condition will be added, preceded by a hyphen (that is, basis first, the residual always come second). Id. Under Diagnostic Code 8045, neurological conditions, except as otherwise provided, are rated in accordance with a schedule of ratings set out at 38 C.F.R. § 4.124(a), which provides that, with the exceptions noted, disability from the following diseases and their residuals may be rated from 10 percent to 100 percent in proportion to the impairment of motor, sensory, or mental function. Consideration is to be given to psychotic manifestations, complete or partial loss of use of one or more extremities, speech disturbances, impairment of vision, disturbances of gait, tremors, visceral manifestations, etc., referring to the appropriate bodily system of the schedule. With partial loss of use of one or more extremities from neurological lesions, rating shall be by comparison with the mild, moderate, severe, or complete paralysis of peripheral nerves. Id. Under Diagnostic Code 8100, a noncompensable disability rating is assigned where there are characteristic prostrating attacks due to migraines that occur less frequently than once every two months, lasting over several months. A 10 percent rating is in order where there is evidence of characteristic prostrating attacks due to migraines that average one every two months lasting over several months. A 30 percent disability evaluation is assigned where there are characteristic prostrating attacks occurring on average once a month over the last several months. For a higher, 50 percent disability evaluation to be warranted, there must be migraines with very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability. 38 C.F.R. § 4.124a, Diagnostic Code 8100. Neither the rating criteria nor the Court has defined the term “prostrating.” According to Webster’s New World Dictionary of American English, Third College Edition 1080 (1986), “prostration” is defined as “utter physical exhaustion or helplessness.” A very similar definition is found in Dorland’s Illustrated Medical Dictionary 1367 (28th ed. 1994), in which “prostration” is defined as “extreme exhaustion or powerlessness.” The term “productive of severe economic inadaptability” is not defined by VA regulations. The Court, however, has stated that this term is not synonymous with being completely unable to work and that the phrase “productive of” could be read to mean either “producing” or “capable of producing” economic inadaptability. See Pierce v. Principi, 18 Vet. App. 440, 446-47 (2004). After a review of the evidence, the Board finds that the Veteran’s headaches most closely approximate the criteria for an initial 30 percent disability evaluation for the entire rating period on appeal (since July 19, 2010). The Board finds that the Veteran’s symptoms due to his headaches have been relatively consistent and that the 30 percent evaluation takes into account the frequency and severity of the Veteran’s headaches for the entire rating period on appeal. The Veteran’s headaches have been characterized by headaches occurring nearly daily; daily headaches were noted as a 4 on a scale of 1 to 10, and the Veteran reported that severe headaches occurred approximately 8 times per month. (see September 2016 letter from Dr. K). Upon evaluation in October 2015 and April 2020, the VA examiners noted that the Veteran’s headaches are accompanied by nausea, sensitivity to light, and changes in vision, and occur on both sides of the head; at the April 2020 VA examination, the Veteran reported that his headaches lasted approximately 2 days. The Board acknowledges that the Veteran requires medication to alleviate his symptoms. Nonetheless, the Board points out that the medical evidence does not show that the Veteran experiences very frequent completely prostrating and prolonged attacks productive of severe economic inadaptability; rather, the VA examination reports and treatment records indicate that the Veteran experiences prostrating headaches approximately once a month. The Board acknowledges that the April 2020 VA examiner indicated that the Veteran’s prostrating headaches were unrelated to the Veteran’s TBI. However, the Veteran provided a consistent report of related symptomatology during the rating period. The Veteran reported that his headaches are throbbing and that his headaches improved with medication and that his headaches occasionally required him to lay down in a dark room in order to alleviate his symptoms. In conclusion, the evidence of record reveals manifestations consistent with a 30 percent evaluation, but no more, for the entire rating period on appeal for headaches, residual of a TBI. See 38 U.S.C. § 5107(b); Gilbert v. Derwinski, 1 Vet. App. 49, 54-56 (1990).   TDIU 3. Entitlement to TDIU. VA will grant a total rating for compensation purposes based on unemployability when the evidence shows that a veteran is precluded, by reason of his service- connected disabilities, from obtaining and maintaining any form of gainful employment consistent with his education and occupational experience. 38 C.F.R. §§ 3.340, 3.341, 4.16. A TDIU may be granted only when it is established that the service-connected disabilities are so severe, standing alone, as to prevent the retaining or obtaining of substantially gainful employment. If there is only one service-connected disability, it must be ratable at 60 percent or more to qualify for benefits based on individual unemployability. If there are two or more such disabilities, there must be at least one disability ratable at 40 percent or more, and sufficient additional disability to bring the combined rating to 70 percent or more. 38 C.F.R. § 4.16(a). For purposes of this section, disabilities of both upper or lower extremities will be considered a single disability. 38 C.F.R. § 4.16(a)(1). Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. Unemployability is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). “Substantially gainful employment” is that employment “which is ordinarily followed by the nondisabled to earn their livelihood with earnings common to the particular occupation in the community where the veteran resides.” Moore v. Derwinski, 1 Vet. App. 356, 358 (1991). “Marginal employment shall not be considered substantially gainful employment.’ 38 C.F.R. § 4.16(a) (2017). The Veteran seeks entitlement to TDIU based on his service-connected disabilities. As discussed above, the Veteran is currently assigned a 60 percent disability evaluation for his service-connected bronchial asthma and a 30 percent disability evaluation for his service-connected headaches, residual of a TBI. As such, the Veteran currently meets the schedular criteria for TDIU. VA’s General Counsel has concluded that the controlling VA regulations generally provide that Veterans who, in light of their individual circumstances, but without regard to age, are unable to secure and follow a substantially gainful occupation as the result of service-connected disability shall be rated totally disabled, without regard to whether an average person would be rendered unemployable by the circumstances. Thus, the criteria include a subjective standard. It was also determined that “unemployability” is synonymous with inability to secure and follow a substantially gainful occupation. VAOPGCPREC 75-91; 57 Fed. Reg. 2,317 (1992). For a Veteran to prevail on a claim based on unemployability, it is necessary that the record reflect some factor which places the claimant in a different position than other Veterans with the same disability rating. The sole fact that a claimant is unemployed or has difficulty obtaining employment is not enough. A high rating in itself is a recognition that the impairment makes it difficult to obtain and keep employment. The question is whether the particular Veteran is capable of performing the physical and mental acts required by employment, not whether that Veteran can find employment. See Van Hoose v. Brown, 4 Vet. App. 361, 363 (1993). Based on the evidence of record, the Board finds that the Veteran’s service-connected disabilities render the Veteran unable to obtain or sustain substantially gainful employment for the rating period on appeal. The Board observes that the VA examiners found that the Veteran’s individual disabilities, standing alone, did not render him unable to obtain and maintain gainful employment. Nevertheless, a review of the medical evidence of record reflects that, the Veteran’s service-connected disabilities, in combination, are productive of symptomatology that contribute to his difficulty performing occupational tasks. VA and private treatment records, as well as VA examination reports, indicate that the Veteran experiences dyspnea, chest tightness, and fatigue at rest and with minimal physical exertion as a result of his bronchial asthma; the Veteran also reports that he has to limit his exposure to environmental irritants in order to mitigate the symptoms of his bronchial asthma. Likewise, the Veteran’s headaches, residual of a TBI, are productive of changes in vision, sensitivity to light, and nausea. The Board acknowledges that the Veteran’s headaches are only productive of prostrating attacks approximately once a month, but notes that the Veteran reports experiencing mild headaches on a daily basis, and that the Veteran reports that his headaches occasionally result in decreased concentration and episodes of dizziness. As such, the Board finds that the evidence of record reflects symptomatology that supports the Veteran’s contentions that he is unable to perform the physical and mental acts required to be employable. See Van Hoose, supra. As a result, the Veteran’s service-connected disabilities prevent him from obtaining and maintaining substantial gainful employment. Therefore, given the overall evidence, the Board finds that the Veteran is entitled to TDIU. GAYLE STROMMEN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Hallie E. Brokowsky, 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.