Citation Nr: 21010605 Decision Date: 02/25/21 Archive Date: 02/25/21 DOCKET NO. 15-44 226 DATE: February 25, 2021 ORDER Entitlement to an initial rating higher than 30 percent for asthma, for the period prior to January 3, 2019, is denied. Entitlement to an increased rating of 60 percent, but no more, for asthma, for the period from January 3, 2019, is granted FINDING OF FACT 1. For the period prior to January 3, 2019, the Veteran’s asthma has manifested by forced expiratory volume in one second (FEV-1) scores of in excess of 70 percent predicted and the use of inhalational anti-inflammatory medication. The Veteran’s asthma has not been manifested by 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. 2. For the period from January 3, 2019, the Veteran’s asthma disability has been manifested by FEV-1 of 53 percent predicted. CONCLUSION OF LAW 1. The criteria for an increased initial rating in excess of 30 percent, for asthma, for the period prior to January 3, 2019, are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.96, 4.97, Diagnostic Code (DC) 6602. 2. The criteria for a rating of 60 percent, but no more, for asthma for the period from January 3, 2019, are met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 4.1-4.7, 4.10, 4.21, 4.96, 4.97, DC 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty from February 2006 to August 2006, October 2009 to August 2010, and February 2013 to February 2014, with additional service in the National Guard. This matter is before the Board of Veterans’ Appeals (Board) on appeal from a December 2014 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in Houston, Texas. This appeal was previously before the Board in August 2018, July 2019 and most recently in July 2020 when it was remanded for compliance with the Board’s July 2019 Remand directives to obtain a medical opinion to address whether the medications taken during the appeal period show at any point that (a) the Veteran’s asthma required treatment with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; or (b) the Veteran’s asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications was not obtained. The record shows VA requested and subsequently obtained an August 2020 VA respiratory conditions examination and addendum medical opinion. The Board notes that, to the full extent possible, VA complied with the remand instruction requests, and there exist no deficiencies in VA’s duties to notify and assist in that regard. See Stegall v. West, 11 Vet. App. 268 (1998). The matter has returned to the Board for further appellate review. In December 2020, the Veteran submitted correspondence wherein he waived his right to a remand and requested a decision in this matter. The Board also notes that a claim for increased compensation can encompass a claim for total disability based on individual unemployability (TDIU). Rice v. Shinseki, 22 Vet. App. 447, 452-53 (2009). In this case, the Veteran’s combined disability rating is already 100 percent effective February 2014. The United States Court of Appeals for Veterans Claims (Court) has recognized that a 100 percent rating under the Schedule for Rating Disabilities means that a Veteran is totally disabled. Holland v. Brown, 6 Vet. App. 443, 446 (1994). This 100 percent combined evaluation is made up of multiple disabilities, with none rated at 100 percent individually. But see Bradley v. Peake, 22 Vet. App. 280, 294 (2008). Neither the Veteran nor his prior representative has raised any other issues, nor have any other issues been reasonably raised by the record. See Doucette v. Shulkin, 28 Vet. App. 366 (2017). 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. “Staged” ratings are appropriate for any rating claim when the factual findings show distinct time periods where the service-connected disability exhibits symptoms that would warrant different ratings. See Hart v. Mansfield, 21 Vet. App. 505 (2007). 1. Entitlement to an initial rating higher than 30 percent for asthma, for the period prior to January 3, 2019. The Veteran’s asthma is currently rated as 30 percent disabling under DC 6602 for bronchial asthma. The Veteran asserts his asthma is more severe than the currently assigned 30 percent rating. See April 2019 Correspondence from the Veteran. After a thorough review of the claims file, the Board finds a rating in excess of 30 percent is not warranted for the period prior to January 11, 2019. Under 38 C.F.R. § 4.97, DC 6602, a 30 percent rating is warranted for FEV-1 of 56 to 70 percent predicted, or; FEV-1/Forced Vital Capacity (FVC) of 56 to 70 percent, or; daily inhalation or oral bronchodilator therapy, or; inhalation anti-inflammatory medication. A 60 percent rating is provided where there is 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 per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent rating is warranted for FEV-1 of less than 40 percent predicted; or FEV-1/FVC of less than 40 percent; or more than one attack per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Pulmonary function test (PFT) results are generally reported before and after administration of bronchodilator therapy. VA regulations instruct that post-bronchodilator results be used when considering PFT criteria for ratings under DCs 6600, 6603, 6604, 6825-6833, and 6840-6845. See 38 C.F.R. § 4.96(d)(5). There are no regulations identifying whether pre- or post-bronchodilator results should be used when determining disability ratings under DC 6602. As 38 C.F.R. § 4.96(d) omits DC 6602, the Board will use the PFT results that allow the most favorable disability rating to the Veteran. The Veteran was afforded a June 2011 VA examination, wherein the examiner confirmed a diagnosis of reactive airway disease. In specific medical history reported of his breathing condition, the Veteran reported being diagnosed with a breathing condition, onset in October 2009. The Veteran also reported no episodes of respiratory failure requiring respiration assistance from a machine. He was not currently receiving any treatment for his condition, did not require the usage of outpatient oxygen therapy, and described the overall functional impairment as an inability to run because of breathing difficulties. PFT results showed pre-bronchodilator scores of: FEV-1 103% predicted, and FEV-1/FVC of 77%. Post-bronchodilator scores were: FEV-1 107% predicted and FEV-1/FVC of 78%. The examiner noted subjective factors included shortness of breath (SOB). Objective factors included the clinical exam revealing no findings or residuals with negative X-ray findings and normal PFT. The Veteran was not noted to have any complications such as cor pulmonale, right ventricular hypertrophy, pulmonary hypertension, or chronic respiratory failure with carbon dioxide retention. The claims file also includes a November 2014 VA respiratory conditions examination wherein the examiner confirmed a diagnosis of asthma from 2009. The report notes the Veteran’s respiratory condition required the use of oral or parenteral corticosteroid medications but notes only one intermittent course of bursts of systemic (oral or parenteral) corticosteroids within the previous 12 months. The report also notes the daily use of inhalational bronchodilator therapy. PFT results from November 2014 showed pre-bronchodilator scores of: FEV-1 92% predicted, and FEV-1/FVC of 100%. Post-bronchodilator scores were: FEV-1 92% predicted and FEV-1/FVC of 94%. The examiner noted the FEV-1 % result most accurately reflects the Veteran’s current pulmonary function. Physician visits less frequently than once per month and one episode of respiratory failure in the 12 months prior to the examination were noted. Post-service treatment records include a July 2013 Government facility treatment record confirming a diagnosis of reactive airway disease and noting the Veteran was released without limitations. A March 2015 private treatment record noting a complaint of allergic rhinitis and ear pain for which the Veteran was provided a corticosteroid shot. A December 2015 progress record that notes no PFTs spirometry tests have been done. The same record notes that the Veteran reported episodes of wheezing and SOB, and he was seen in an emergency room for a steroid shot. A separate December 2015 VA allergy consultation record notes the Veteran’s history suggests asthma is not well controlled. A December 2015 allergy test result includes a note that the allergist recommends compliance with Cetirizine and Flonase prescriptions. A September 2018 VA clinic treatment record notes that since 2013 the Veteran has had to use oral prednisone 3 times in the past; had no prior hospitalizations for asthma; used Albuterol about 3 times per week; and denies current upper respiratory congestion, cough, wheezing, SOB, fever or chills. Based upon the foregoing medical records, the Board finds that the Veteran’s asthma manifested itself through symptomatology including PFT FEV-1 predicted values of 92 percent at worst. There is simply no medical evidence to support a rating above 30 percent for the period prior to January 3, 2019. The examinations also do not show the Veteran made monthly visits to a physician for his asthma, had weekly attacks, or used corticosteroids or immune-suppressive medication. Id. The Veteran’s asthma most nearly approximated a rating of 30 percent, but no higher, under 38 C.F.R. § 4.97, DC 6602 during this time period. 38 C.F.R. § 4.7. The appeal to this extent is denied. 2. Entitlement to an increased rating of 60 percent, but no more, for asthma, for the period from January 3, 2019. The claims file also includes a January 11, 2019 VA respiratory conditions examination wherein the examiner confirmed a diagnosis of asthma. Intermittent inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication is noted. The report also notes the Veteran has visited a physician 4 times a year for required care during exacerbations. The report is negative for episodes of respiratory failure in the past 12 months. Results from a January 3, 2019 PFT test showed pre-bronchodilator scores of: FEV-1 53% predicted, and FEV-1/FVC of 65%. Post-bronchodilator scores were: FEV-1 56% predicted and FEV-1/FVC of 60%. The examiner noted the FEV-1/FVC result most accurately reflects the Veteran’s current pulmonary function. No impact to the Veteran’s ability to work was noted. An October 2019 addendum from the same examiner notes the Veteran’s asthma was of moderate severity. In a subsequent November 2019 addendum/clarification, the examiner opined that, after a review of the claims file, there was not enough medical evidence to address the nature and severity of the Veteran’s asthma as requested. As support for the opinion, the examiner noted no additional examination would provide the clarity sought. There is also no clear evidence to suggest burn pit exposure led to any breathing problems. Unless the Veteran was afforded frequent PFTs, the numbers requested in the request for clarification would not be available. Review of all available records could not produce the severity of the Veteran’s asthma during time period requested. Following the July 2020 Board remand, the Veteran was afforded an August 2020 VA respiratory conditions examination based on a review of the available medical records. The examiner confirmed a diagnosis of reactive airway disease/asthma. The examiner noted that treatment for the Veteran’s respiratory condition had required intermittent courses or bursts of systemic (oral or parenteral) corticosteroids medications 2 times during the previous 12 months. Inhalational bronchodilator therapy and inhalational anti-inflammatory medication were required daily. The report notes the Veteran had had two episodes of symptoms related to asthma exacerbations (congestion, cough, increased wheezing) as in medical history above in the past 12 months. For both episodes he was given a single injection of steroids or a short oral course of steroids. The frequency of physician visits for required care of exacerbations over the past 12 months was noted as less frequently than monthly. The January 3, 2019 PFT results showed pre-bronchodilator scores of: FEV-1 53% predicted, and FEV-1/FVC of 65%. Post-bronchodilator scores were: FEV-1 56% predicted and FEV-1/FVC of 60%. The examiner indicated the FEV-1 % result most accurately reflects the Veteran’s current pulmonary function. No impact to the Veteran’s ability to work was noted. In VA’s examination request, the examiner was asked to expressly address whether the Veteran’s asthma medications since August 2010 show at any point that (1) asthma required treatment with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids; or (2) asthma required daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. For any daily asthma medications, the examiner was asked to clearly identify the medication by name, when it was started (and ended), and whether it is (i) a systemic (oral or parenteral) corticosteroids or an immune-suppressive medication or neither; and (ii) if a high dose, when it was started (and ended). In the attached August 2020 medical opinion, the examiner addressed the previously outstanding questions concerning the nature and severity of the Veteran’s asthma for the entire appeal period. The examiner noted a careful review of the claims file and medical literature. As to the question regarding if treatment for the Veteran’s asthma required treatment with intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids, the examiner answered in the negative noting there were NO courses of corticosteroids that were prescribed at least three times per year during the period of time in question. A careful review of medical records showed asthma medications taken by the Veteran since August 2010 included treatment with short courses of systemic (oral or parenteral) corticosteroids up to two times a year including one time with a very short course of oral steroids (Prednisone 40mg a day for 5 days) and one time with a single intramuscular injection of steroids (dexamethasone 10mg intramuscular injection once in urgent care). While he had a few other documented times with single injections for an urgent care visit of dexamethasone 10mg, this did not occur in the same 12-month period of time. As to the question whether the Veteran’s asthma requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications, the examiner answered in the negative. In support of the negative response, the examiner noted the Veteran’s asthma medications since August 2010 did NOT include the daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. The examiner noted that “HIGH dose corticosteroids or Immune-suppressive medications” refers to medications that suppress the immune system in a palpable way most often leading to high risk of infections due to high dose of medications including steroids, monoclonal antibodies, anti-TNF drugs, methotrexate, and azathioprine to name a few. The category of immunosuppressive agents for asthma treatment do not in standard medical practice include such a medication as Singulair (montelukast) that can be listed as somewhat immunosuppressive, but in no way comparable to the immune system suppression that is clinically identified with these other agents that suppress the immune systems much more. While the treatment records indicate the Veteran was on Singulair (montelukast) for allergies, even before it was prescribed for asthma treatment, this agent is traditionally not included as similar to high-dose corticosteroids or other immunosuppressive agents; therefore it is NOT to be considered as daily medication used in the category of “high dose corticosteroids or immune-suppressive medications”. As to the final question, the examiner noted three daily asthma treatment medications to include Singulair 10mg, Albuterol 90mcg inhaler, and Asmanex (a steroid inhaler). The examiner noted that all three medications are current prescriptions, and none of them fit into the category of high dose corticosteroids or a significant immune-suppressive medication. Post-service treatment records for this period include an April 2018 private treatment record noting a complaint about sinus congestion, for which the Veteran received a corticosteroid shot. A March 2019 private treatment record for sinus congestion noted that the Veteran received a corticosteroid injection and prescription for 5 days of prednisone. An August 2019 private treatment record noted the Veteran complained about seasonal allergic rhinitis due to pollen and mild intermittent asthma with acute exacerbation and was prescribed prednisone. A separate August 2019 private treatment record noted the Veteran was seen for acute bronchospasm and given another corticosteroid shot. A March 2020 private treatment record that noted was seen for acute exacerbation of unspecified asthma and prescribed a five-day course of prednisone. The same treatment record notes the Veteran was given another corticosteroid shot. A September 2020 private treatment record notes complaints about allergic rhinitis and acute exacerbation of unspecified asthma. The Veteran was given a prescription for a five-day course of prednisone. An October 2020 private treatment record notes that the Veteran was being seen for allergy care and receiving allergy immunotherapy to treat his allergic asthma. The Veteran also submitted a December 2020 prescription for prednisone and epinephrin from his allergist. Based on the foregoing medical records, the Board finds that a rating of 60 percent, but no more, is warranted from January 3, 2019, the date of the most recent PFT. The January 3, 2019 PFT showed FEV-1 predicted value to be 53 percent, within the 40 to 55 percent predicted range, and the August 2020 VA examiner who also cited this PFT result noted that FEV-1% predicted test result was the result that most accurately reflects the Veteran’s level of disability. Thus, a 60 percent rating is warranted from January 3, 2019. The Board notes that there are no treatment records or examinations showing an FEV-1% predicted result of less than 40 percent; FEV-1/FVC of less than 40 percent; more than one attack per week with episodes of respiratory failure; or the requirement of daily use of systemic (oral or parenteral) high dose corticosteroids or immunosuppressive medications. Id. The Board finds the Veteran’s asthma most nearly approximates a rating of 60 percent, but no higher, under 38 C.F.R. § 4.97, DC 6602. 38 C.F.R. § 4.7. To this extent the appeal is granted. A. C. MACKENZIE Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board B. Banks, 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.