Citation Nr: 21009570 Decision Date: 02/22/21 Archive Date: 02/22/21 DOCKET NO. 09-46 932A DATE: February 22, 2021 ORDER An increased rating for bronchial asthma, rated 60 percent disabling from March 12, 2014 to December 28, 2016, is denied. FINDING OF FACT For the period from March 12, 2014 to December 28, 2016, the Veteran’s bronchial asthma required the use of intermittent courses of systemic corticosteroids but not daily use of such corticosteroids. CONCLUSION OF LAW For the period from March 12, 2014 to December 28, 2016, the criteria for a schedular rating in excess of 60 percent for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.7, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from June 1987 to January 1992. This matter came to the Board of Veterans’ Appeals (Board) from a July 2009 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In April 2012, the Veteran testified at a hearing before an Acting Veterans Law Judge (AVLJ); this AVLJ is no longer with the Board. In March 2013, the Veteran elected to have another hearing before the Board. The hearing was scheduled in May 2013; however, he failed to appear, and his hearing request was deemed withdrawn. 38 C.F.R. § 20.704. This matter was remanded in October 2013 and August 2014. Then, in September 2015, the Board denied entitlement to an increased rating for bronchial asthma. The Veteran filed a timely appeal with the United States Court of Appeals for Veterans Claims (Court). Pursuant to a July 2016 Joint Motion for Partial Remand (JMPR) and Court Order, the Board’s decision was vacated and remanded for action consistent with the JMPR. In December 2016, the issue of entitlement to an increased rating for bronchial asthma for the period from March 12, 2014, was remanded to the RO. In September 2017, the Board denied entitlement to a disability rating in excess of 60 percent from March 12, 2014 to December 28, 2016 for bronchial asthma, and granted a 100 percent rating, effective December 29, 2016. The Veteran filed a timely appeal with the Court. Pursuant to an August 2018 JMPR, the Board’s portion of the decision which denied a rating in excess of 60 percent was vacated and remanded for action consistent with the JMPR. In March 2019, this matter was remanded. Increased Rating Disability evaluations are determined by the application of the Schedule for Rating Disabilities, which assigns ratings based on the average impairment of earning capacity resulting from a service-connected disability. 38 U.S.C. § 1155; 38 C.F.R. Part 4. 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 order to evaluate the level of disability and any changes in condition, it is necessary to consider the complete medical history of the veteran’s condition. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991). As an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Francisco v. Brown, 7 Vet. App. 55 (1994). Nevertheless, the Board acknowledges that a claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Hart v. Mansfield, 21 Vet. App. 505 (2007). The analysis in the following decision is therefore undertaken with consideration of the possibility that different ratings may be warranted for different time periods. In view of the number of atypical instances it is not expected, especially with the more fully described grades of disabilities, that all cases will show all the findings specified. Findings sufficiently characteristic to identify the disease and the disability therefrom, and above all, coordination of rating with impairment of function will, however, be expected in all instances. 38 C.F.R. § 4.21. In evaluating a disability, the Board considers the current examination reports in light of the whole recorded history to ensure that the current rating accurately reflects the severity of the condition. The Board has a duty to acknowledge and consider all regulations that are potentially applicable. Schafrath v. Derwinski, 1 Vet. App. 589 (1991). The medical as well as industrial history is to be considered, and a full description of the effects of the disability upon ordinary activity is also required. 38 C.F.R. §§ 4.1, 4.2, 4.10. Bronchial asthma is evaluated, in part, based upon the results of pulmonary function tests (PFTs), specified in terms of forced expiratory volume in one second (FEV-1) and forced vital capacity (FVC). 38 C.F.R. §§ 4.96, 4.97. When evaluating asthma based on PFTs, the post-bronchodilator results are used unless the post-bronchodilator results were poorer than the pre-bronchodilator results. 38 C.F.R. § 4.96 (d)(5). In such cases the pre-bronchodilator results are to be used. Id. The Veteran’s bronchial asthma is rated 60 percent disabling pursuant to 38 C.F.R. § 4.97, Diagnostic Code (DC) 6602 for asthma, bronchial. Under DC 6602, 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 DC 6602 for bronchial asthma with an FEV-1 of 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, DC 6602. The Veteran asserts that his bronchial asthma warrants a rating in excess of 60 percent for the period from March 12, 2014 to December 28, 2016. On testing on March 12, 2014, the FEV-1 pre-bronchodilator result was 63 percent and 62 percent post-bronchodilator, and the FEV-1/FVC was 60 percent pre-bronchodilator and 63 percent post-bronchodilator. On testing in March 2015, FEV-1 pre-bronchodilator result was 64 percent and 66 percent post-bronchodilator, and the FEV-1/FVC was 69 percent pre-bronchodilator and 76 percent post-bronchodilator. 07/11/2015 Medical Treatment Record-Government Facility at 1-4. In September 2016, FEV-1 and FEV-1/FVC testing was administered with the following results - FEV-1/FVC: Trial 1/78.2; Trial 2/78.5; Trial 3/79.3. FEV-1 - 73 percent predicted. 10/17/2016 Medical Treatment Record-Non-Government Facility at 4. These results are better than the December 2013 score that met VA’s requirement for a 100 percent disability rating. Therefore, for the period in question the Veteran has not met the PFT thresholds needed to meet a 60 or 100 percent disability rating pursuant to this part of DC 6602. An alternative means of receiving 100 percent disability pursuant to DC 6602 is if the Veteran has more than one asthma attack per week with respiratory failure. A 60 percent disability rating requires at least monthly visits to a physician for required care of exacerbations. Here, the claims file does not show evidence that the Veteran was experiencing one or more attack per week, along with respiratory failure. Rather, the record only shows monthly visits for asthma care from the period of March 12, 2014. 10/17/2016, Medical Treatment Record-Non-Government Facility at 2, 4, 10; 01/03/2017 Medical Treatment Record-Non-Government Facility at 2. A March 2015 VA ambulatory care visit consisting of a computed tomography angiography (CTA) and a trachea midline examination. The physician found no crackles, no wheezes, and even and easy respirations. Severe asthma was confirmed, but the Veteran reported feeling that his asthma was stable. 05/17/2017 CAPRI at 67, 71. Finally, the Veteran could also reach a 100 percent disability rating under DC 6602 if there is evidence of daily systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. See 38 C.F.R. § 4.97, DC 6602. In order to meet a 60 percent disability rating, the Veteran is required to have undergone intermittent courses or bursts of systemic (oral or parenteral) corticosteroids. In September 2016, Dr. H.B., a private provider with Village Medical Center, noted that the Veteran had been taking 20 mg of Prednisone, (a corticosteroid), daily since September 2014 and assessed that the dosage should be lowered. 10/17/2016 Medical Treatment Record-Non-Government Facility. During this visit, Dr. H.B. continued to prescribe the Veteran 20 mg of Prednisone. On December 29, 2016, the Veteran sought treatment with Dr. H.B. wherein the physician diagnosed severe persistent asthma noting that he had been quite symptomatic with shortness of breath and dry cough. It was noted that he had been on Prednisone for the past two years at 10 mgp and was now doing a little better with Prednisone to 10 qam and 5 qam. He was to continue Singulair and Symbicort, pt Eosin at 200, will try Nucala. 01/03/2017 Medical Treatment Record-Non-Government Facility. In October 2019, a nurse practitioner reviewed the claims folder and acknowledged a September 16, 2016 note which indicated Prednisone daily since September 2014 with a note to taper Prednisone. The nurse practitioner found systemic steroid use from September 1, 2014 to September 16, 2016. In September 2020, a physician reviewed the claims folder and found no objective medical record evidence to indicate that the Veteran was on chronic systemic corticosteroids or immunosuppressive medications for the period from March 12, 2014 to December 28, 2016. While it is clear that the Veteran was prescribed corticosteroids for the period from March 12, 2014 to December 28, 2016, based on the opinion of the September 2020 physician, the medical evidence of record does not support a finding that “daily use” of systemic corticosteroids or immunosuppressive medications was required. (Continued on the next page)   Give the above, this evidence does not satisfy the requirements for a 100 percent rating for the period of March 12, 2014 to December 28, 2016. Eric S. Leboff Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M.W. Kreindler, 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.