Citation Nr: 21011676 Decision Date: 03/02/21 Archive Date: 03/02/21 DOCKET NO. 16-09 496 DATE: March 2, 2021 ORDER A compensable rating for bronchial asthma from June 30, 2010 to October 20, 2011, in excess of 10 percent from October 21, 2011 to February 24, 2015, in excess of 30 percent from February 25, 2015, to September 17, 2015, in excess of 60 percent from September 18, 2015, to September 17, 2017, and in excess of 30 percent thereafter, is denied. FINDINGS OF FACT 1. From June 30, 2010, to October 20, 2011, the Veteran’s respiratory disability initially diagnosed as the bronchitis and post inflammatory pulmonary fibrosis bilateral residuals had manifested as shortness of breath, with FEV-1 at 110 percent of predicted and FEV-1/FVC at 86 percent. 2. From October 21, 2011, to February 24, 2015, the Veteran was placed on an intermittent inhalational therapy for treatment of her respiratory symptomatology most closely resembling a bronchial asthma, a form of restrictive lung disease. 3. On February 25, 2015, the Veteran was placed on a daily inhalational therapy. 4. From January 13 to February 11, 2016, the Veteran was placed on a 28-day course of oral systemic corticosteroids for treatment of her respiratory disability, while continuing her daily inhalational therapy to the present day. CONCLUSION OF LAW The criteria for an increased rating for a respiratory disability, rated as noncompensable from June 30, 2010 to October 20, 2011, at 10 percent from October 21, 2011 to February 24, 2015, at 30 percent from February 25, 2015, to September 17, 2015, at 60 percent from September 18, 2015, to September 17, 2017, and at 30 percent thereafter, have not been met. 38 U.S.C. § 1155; 38 C.F.R. §§ 4.96, 4.97, DCs 6731-6602, 6845-6602. REASONS AND BASES FOR FINDINGS AND CONCLUSION The Veteran honorably served on active duty from July 2002 to June 2010. In a December 2011 rating decision, the Regional Office (RO) granted service connection for bronchitis (status post inflammatory pulmonary fibrosis with left ventricular strain pattern/hypertension) effectuated from June 30, 2010, the day after her separation from service, and initially evaluated as noncompensable. The Veteran appealed the assigned rating. In August 2018, the Veteran testified at a Board’s video conference hearing, a transcript of which is of record. In May 2019, the Board remanded the claim to obtain an updated medical assessment of the severity of her disability, which was provided in December 2019. In an April 2020 rating decision, the RO granted the staged evaluations awarding a noncompensable rating from June 30, 2010 to October 20, 2011; 10 percent from October 21, 2011 to February 24, 2015; 30 percent from February 25, 2015, to September 17, 2015; 60 percent from September 18, 2015, to September 17, 2017; and 30 percent thereafter. The Veteran again disagreed with the assigned ratings. In August 2020, the Board remanded the claim for a supplemental medical opinion. As reflected in an October 2012 Veteran’s notice of disagreement, she sought an initial rating for her respiratory disability at 40 to 50 percent. As further reflected in her substantive appeal (VA Form 9 received in February 2016), the Veteran expressed her strong feelings that she is entitled to the higher evaluation, contending that she has been suffering from various ailments ever since returning from the hostile environments of Haiti and Afghanistan. At the outset, the Board recognizes the Veteran’s honorable, selfless service as a medic for eight years, to include her combat service. Of note, however, in reviewing the increased rating claims with an already established service connection, the focus of the Board’s inquiry is placed on whichever schedular rating criteria most closely approximates the Veteran’s overall disability picture during the rating period on review, in this case, from June 30, 2010, to the present. Here, the Veteran has been assigned staged ratings (meaning different disability levels for different periods) throughout the course of her appeal. Fenderson v. West, 12 Vet. App. 119, 126 (1999). Upon considering all evidence of record viewed afresh and in light of pertinent laws, the Board has found that higher ratings are not warranted. All respiratory and pulmonary disabilities are evaluated under the schedule for ratings of respiratory system diseases. See 38 C.F.R. § 4.97. The rating schedule provides for the specific diagnostic codes largely based on the clinical diagnoses and lists the legal criteria for assigning a particular percentage based on whichever criteria most closely approximates the disability manifestations, to include the associated symptoms and the resulting functional impairments. See 38 C.F.R. § 4.7. Chronic pulmonary fibrosis is generally evaluated under the General Rating Formula for Restrictive Lung Diseases, Diagnostic Code (DC) 6845. See 38 C.F.R. § 4.97. Absent evidence of an active disease, any residuals thereof, depending on the specific findings, are rated as interstitial lung disease, restrictive lung disease, or chronic bronchitis. See 38 C.F.R. § 4.97, DC 6731. In this case, the residuals of the Veteran’s bronchitis and bilateral post inflammatory pulmonary fibrosis have been manifesting as a reactive/restrictive lung disease, most closely approximating asthma symptoms. Bronchial asthma is evaluated under the DC 6602, based on the following rating criteria. A 10 percent is assigned for FEV-1 (Forced Expiratory Volume in one second) of 71 to 80 percent predicted, or FEV-1/FVC (ratio of Forced Expiratory Volume in one second to Forced Vital Capacity) of 71 to 80 percent, as based on a pulmonary function testing (PFT), or based on intermittent inhalational or oral bronchodilator therapy. 38 C.F.R. § 4.97, DC 6602. For rating purposes based on the PFT results, the post-bronchodilator values are used, unless the pre-bronchodilator results are normal or greater than the post-bronchodilator results. 38 C.F.R. § 4.96(d)(4)-(5). In those cases, the pre-bronchodilator values are used for rating purposes. Id. In cases where the evaluation is based on the PFTs and there is a disparity between the different PFT data, the test result the examiner states most accurately reflects the disability level is to be used. See 38 C.F.R. § 4.96(d)(6). If the criteria for at least 10 percent is not met, a noncompensable rating is assigned. 38 C.F.R. § 4.31. A 30 percent is assigned for FEV-1 of 56 to 70 percent predicted, or FEV-1/FVC of 56 to 70 percent, or based on daily inhalational or oral bronchodilator therapy, or inhalational anti-inflammatory medication. Id. A 60 percent is assigned for FEV-1 of 40 to 55 percent predicted, or FEV-1/FVC of 40 to 55 percent, or based on 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. Id. For rating purposes under DC 6602 based on corticosteroid therapy, the regulations unequivocally distinguish “systemic (oral or parenteral) corticosteroids” that affect the body as a whole from the inhaled medications, such as budesonide inhaler, having a localized effect in the lungs. See Johnson v. Shulkin, 862 F.3d 1351, 1355 n.2 (Fed. Cir. 2017). A total rating is assigned for FEV-1 less than 40 percent predicted, or FEV-1/FVC less than 40 percent, or based on more than one attack per week with episodes of respiratory failure, or daily use of systemic high-dose corticosteroids (oral or parenteral) or immuno-suppressive medications. Id. Here, the Veteran was awarded service connection as of the day after separation. For the period from June 30, 2010, to October 20, 2011, pulmonary function testing showed the Veteran’s respiratory disability, diagnosed as the bronchitis and bilateral post inflammatory pulmonary fibrosis residuals, manifested as shortness of breath produced an FEV-1 at 110 percent of predicted and FEV-1/FVC at 86 percent of predicted. An August 2011 x-ray imaging report reflects the post-inflammatory pulmonary fibrosis and chronic bronchitis changes. At the time, as reflected in a June 2011 VA examination report, the Veteran complained of chronic shortness of breath, while denying any other signs, symptoms, diagnosis, medical treatment, or functional impairments. Under DC 6602, unless FEV-1 at 80 percent or less of the predicted value, or FEV-1/FVC at 80 percent or less, or intermittent inhalational or oral bronchodilator therapy is shown, a noncompensable rating is assigned. See 38 C.F.R. § 4.97, DC 6602. As noted, when the schedule does not specifically provide for a noncompensable rating and the disability manifestations as shown by the evidence of record do not meet the criteria for a compensable rating, such as in this case showing shortness of breath absent any ascertainable actual functional impairment, a noncompensable rating is assigned. See 38 C.F.R. § 4.31. As such, a compensable rating prior to October 21, 2011, is not warranted. The Veteran’s VA treatment records reflect that on October 21, 2011, the Veteran was placed on an intermittent use of an Albuterol inhaler. Under DC 6602, use of an intermittent inhalational therapy is rated at 10 percent, but not higher. The next higher evaluation at 30 percent may be assigned for daily rather than intermittent therapy, not shown here at any time prior to February 25, 2015. Otherwise, given that the Veteran’s PFT results in FEV-1 at 110 percent of predicted value and FEV-1/FVC at 86 percent do not meet a compensable rating that is assigned for 80 percent or less, while the rating criteria for assigning the higher percentages based on the PFT data is successive (meaning that the criteria for a lower rating must be met before a higher rating may be assigned), a rating in excess of 10 percent from October 21, 2011, to February 24, 2015, is not warranted. On February 25, 2015, as reflected in the Veteran’s VA treatment records, she was placed on a daily inhalational therapy. As discussed, a daily rather than intermittent inhalational therapy warrants a rating at 30 percent, but not higher. The next higher rating at 60 percent may be assigned based on at least monthly visits to a physician for required care of exacerbations. The August 2018 hearing transcript reflects the Veteran’s unequivocal statement that she sees her pulmonologist approximately once every six months rather than monthly as required for a rating at 60 percent. In the alternative, a 60 percent may be assigned based on the PFT results in the FEV-1 at 40 to 55 percent predicted or FEV-1/FEV at 40 to 55 percent, neither of which has been shown during the period from February 25, 2015, to September 17, 2015. For example, the April 2015 VA PFT is normal, reflecting the FEV-1 at 112 percent of the predicted value and FEV-1/FEV at 98 percent. Likewise, the May 2016 private PFTs (received from Dr. J.C., MD, in September 2018) were all normal, showing normalized flows and volumes. As such, a rating in excess of 30 percent based on the PFTs is not warranted from February 25, 2015, to September 17, 2015. Alternatively, a 60 percent may be assigned based on the intermittent (at least three per year) courses of systemic (oral or parenteral) corticosteroids. On February 25, 2015, the Veteran was placed on a daily budesonide inhaler, which contains corticosteroids. However, the regulatory language under DC 6602 unequivocally distinguishes systemic corticosteroids that affect the body as a whole from inhaled medications that have a localized effect in the lungs. Notwithstanding the regulatory language and according the Veteran the benefit of the doubt, the Board requested a supplemental medical opinion. In an October 2020 addendum opinion, the VA examiner confirms that budesonide inhaler, although containing corticosteroids, is considered a localized anti-inflammatory inhalational therapy and is not an oral or parenteral systemic therapy. Given this distinction outlined in the regulations and confirmed by the medical opinion, the Board has ultimately concluded that a rating in excess of 30 percent based on the use of budesonide inhaler is not warranted at any time. Further considering that a total rating may be assigned based on the manifestations that are more severe than those listed for 60 percent, the Board has further found that a rating for the Veteran’s respiratory disability in excess of 30 percent from February 25, 2015, to September 17, 2015, is not warranted. For the period from September 18, 2015, to September 17, 2017, the RO granted a 60-percent rating which appears to be based on a methylprednisolone prescription for treatment of the Veteran’s allergies associated with her service-connected allergic rhinitis that is rated separately and is not on review here; otherwise, the bases for this grant is not entirely clear. The Board is not going to disturb this RO’s favorable finding, but the evidence of record ultimately does not support rating the Veteran’s respiratory disability in excess of 30 percent from September 18, 2015, to September 17, 2017. On January 13, 2016, the Veteran in fact was placed on a course of prednisone, an oral systemic corticosteroid, for the treatment of her respiratory disability. Here, however, the Board reiterates that from September 2015 to July 2017, the Veteran was also placed on methylprednisolone, which is also an oral corticosteroid, but prescribed for her allergies rather than asthma. Meanwhile, on February 11, 2016, the Veteran’s pulmonologist had discontinued the prednisone prescription, having determined that prednisone has been ineffective for her increased dyspnea. This single 28-day course of oral systemic corticosteroids does not warrant a rating in excess of 30 percent, as the next higher rating at 60 percent unequivocally requires at least three such courses per year, while a total rating requires a continuous high dose of corticosteroids. This finding is wholly consistent with a January 2020 private disability benefits questionnaire (received in April 2020) reflecting a history of one course of oral or parenteral systemic corticosteroids and otherwise requiring a daily inhalational therapy. By implication, a rating in excess of 60 percent for this period, which the Veteran is seeking here, is not warranted. For the period from September 18, 2017, the Veteran has continued her daily inhalational therapy, which warrants a rating at 30 percent, but not higher. The record is devoid of any evidence showing or suggesting the FEV-1 40 to 55 percent of the predicted value, or FEV-1/FVC of 40 to 55 percent, or at least monthly visits to a physician for required care of exacerbations, or at least three per year courses of systemic oral or parenteral corticosteroids, or any episodes of respiratory failure, or daily use of systemic high-dose corticosteroids (oral or parenteral) or immuno-suppressive medications. As such, for the period from September 18, 2017, a rating in excess of 30 percent denied. In reaching this conclusion, the Board has considered all evidence of record favorably and sympathetically. None, however, warrants the higher evaluations. For example, a June 2015 VA examination report reflects a December 2014 CT (computed tomography) of the chest all normal without any pathology. Likewise, the April 2016 – September 2018 notes of the Veteran’s private pulmonologist, Dr. J.C., MD, (received in September 2018) do not suggest any more severe levels of the Veteran’s respiratory disability at any time. Of note here is a Dr. J.C.’s May 2016 evaluation report reflecting that the May 2016 PFTs were all normal showing normalized flows and volumes. At that time, Dr. J.C. further opined that the Veteran’s symptomatology is compatible with the diagnosis of mild intermittent asthma, uncomplicated. Of further note, Dr. J.C. observes that based on the May 2016 PFT results there does not appear to be a significant response to the one-time use of a bronchodilator. This observation resonates with the February 2016 VA pulmonologist’s opinion that the prednisone treatment was ineffective for relieving dyspnea symptoms. Both of these opinions are consistent with a more recent VA examination. In a December 2019 VA examination report, the VA examiner notes that bronchitis the Veteran had sustained in service was an acute episode, while there is no clinical evidence to support a chronic bronchitis diagnosis. The examiner explains that the Veteran’s most current x-rays are negative for any clinical evidence of the post inflammatory pulmonary fibrosis noted in 2011. The examiner further explains that the 2011 x-ray report that indicated bronchitis and status post inflammatory pulmonary fibrosis changes was based on the imaging taken with a plain x-ray film. A more up-to-date and more comprehensive imaging diagnostic tools such as a CT of the chest, which was performed in 2015, indicates no abnormal pathology in the Veteran’s lungs. The VA examiner then opines that the Veteran’s status post balloon sinuplasty, turbinate ablation surgery in January 2018, and associated allergic symptomatology is a sinus condition, not a pulmonary condition. Of further note is the January 2020 PFT results reflecting the FEV-1 at 101 percent of the predicted value and FEV-1/FEV at 100 percent, along with the examiner’s opinion that the current FEV-1 most accurately reflects the levels of the Veteran’s pulmonary function that is normal. An October 2020 addendum report reflects an opinion that the Veteran does have a history of asthma diagnosis and does use daily inhalers. As such, the Board finds that a rating at 30 percent should be continued. Of final note, however, consistent with the Dr. J.C.’s and VA pulmonologist’s opinions the Veteran appears to be unresponsive to treatments for asthma-like symptoms, the VA examiner notes that the January 2020 PTFs further indicate that Albuterol may be actually worsening the Veteran’s pulmonary functioning that otherwise is normal and has been normal since June 2011. Ultimately, the Board emphasizes that none of the RO’s favorable findings will be disturbed here. However, beyond asserting a legitimacy of her claim, neither has the Veteran nor her representative advanced any specific contention as to why she is entitled to the higher ratings for her respiratory disability. The Board has carefully considered the Veteran’s testimony and remanded her appeal for further development twice but eventually has found no legal basis to rate the Veteran’s respiratory disability any higher than the ratings that have been already assigned. Accordingly, the appeal is denied. MATTHEW W. BLACKWELDER Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board Alex Bardin, 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.