Citation Nr: 21012089 Decision Date: 03/03/21 Archive Date: 03/03/21 DOCKET NO. 18-48 876 DATE: March 3, 2021 ORDER Entitlement to an initial evaluation in excess of 30 percent for asthma is denied. REMANDED Entitlement to service connection for a left knee disability is remanded. Entitlement to service connection for diverticulitis is remanded. Entitlement to service connection for a pulmonary disability, to include chronic obstructive pulmonary disease (COPD), is remanded. Entitlement to service connection for chronic kidney disease is remanded. FINDING OF FACT Throughout the period on appeal, the Veteran’s asthma symptoms have manifested in a low FEV-1 result of 58 percent, a low FEV-1/FVC of 71 percent, and require the use of an inhaled medication on a daily basis; these asthma symptoms have been more frequent and severe than symptoms related to bronchitis. CONCLUSION OF LAW The criteria for an initial evaluation in excess of 30 percent for asthma have not been met. 38 U.S.C. §§ 1155, 5107(b); 38 C.F.R. §§ 3.102, 4.1-4.10, 4.97, Diagnostic Code 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served on active duty with the United States Army from February 1967 to April 1972 and from October 1990 to June 1991. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a September 2016 rating decision issued by a Department of Veterans Affairs (VA) Regional Office (RO). The Veteran did not request a hearing in conjunction with this appeal. This case was previously before the Board in August 2020, when it was remanded for development. The case has been returned to the Board for further appellate review. Increased Rating Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. When there is a question as to which of two ratings apply, VA will assign the higher of the two where the disability picture more nearly approximates the criteria for the next higher rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. Disabilities must be viewed in relation to their entire history. 38 C.F.R. § 4.1. VA is required to interpret reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating may accurately reflect the elements of disability. 38 C.F.R. § 4.2. Any reasonable doubt regarding the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. VA is also required to evaluate functional impairment on the basis of lack of usefulness and the effects of the disabilities upon the claimant’s ordinary activity. 38 C.F.R. § 4.10; see generally Schafarth v. Derwinski, 1 Vet. App. 589 (1991). Entitlement to an initial evaluation in excess of 30 percent for asthma The Veteran’s asthma with bronchitis is rated under Diagnostic Code 6602, pertaining to bronchial asthma. 38 C.F.R. § 4.97, Diagnostic Code 6602. Pursuant to the regulations, ratings under Diagnostic Codes 6600 through 6817 and 6822 through 6847 will not be combined with each other. Rather, a single rating will be assigned under the diagnostic code which reflects the predominant disability, with increase to the next higher evaluation awarded only where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96(a). Diagnostic Code 6602 (bronchial asthma) provides for a 10 percent disability rating where pulmonary function tests (PFTs) show any of the following: FEV-1 of 71 to 80 percent predicted; FEV-1/FVC of 71 to 80 percent; or where intermittent inhalational or oral bronchodilator therapy is required. A 30 percent evaluation is warranted where PFTs show any of the following: 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. A 60 percent evaluation is assigned where PFTs show any of the following: 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 three per year) courses of systemic (oral or parenteral) corticosteroids. A 100 percent evaluation is warranted where PFTs show any of the following: FEV-1 less than 40 percent predicted; FEV-/FVC less than 40 percent; more than one attack per week with episodes of respiratory failure; where the use of systemic high dose corticosteroids or immuno-suppressive medications are required on a daily basis. The regulations provide that post-bronchodilator studies are required when pulmonary function test scores (PFTs) are done for disability evaluation purposes except when the results of pre-bronchodilator PFTs are normal or when the examiner determines that post-bronchodilator studies should not be done and states why. 38 C.F.R. § 4.96(d)(4). Moreover, VA has indicated that post-bronchodilator findings for PFTs are the standard in pulmonary assessment as they reflect the best possible functioning of an individual, and are the values reported in this decision unless otherwise noted. In an August 2011 rating decision, the RO granted entitlement to service connection for asthma effective February 28, 2007, at a 10 percent disability rating under Diagnostic Code 6602. The Veteran appealed this decision in a timely manner. In a July 2013 rating decision, the RO granted service connection for bronchitis, combining the rating with the rating for the Veteran’s service-connected asthma and increasing the disability rating to 30 percent as of February 28, 2007, rated under Diagnostic Code 6602. As the Veteran has completed many pulmonary function tests throughout the appeal period, the Board has consolidated the results of all the testing here: Date Record FEV-1 FEV-1/FVC July 2007 VA treatment note 132% predicted 112% March 2009 VA treatment note 119% predicted 112% January 2010 VA treatment note 107% predicted 112% January 2010 VA examination 102% predicted (not reported) December 2010 VA treatment note 102% predicted 94% June 2011 VA treatment note 99% predicted 97% June 2013 VA examination 58% predicted 91% August 2016 VA examination 93% predicted 115% September 2020 VA examination 82% predicted 71% At the June 2013 VA examination, the examiner opined that the asthma was predominantly responsible for the limitation in the Veteran’s pulmonary function. The Veteran’s VA treatment records reflect that, throughout the appeal period, he has been prescribed medications to treat his asthma. The specific medications have changed since February 2007, but they have all been prescribed for daily use by inhalation. The private treatment records that are associated with the claims file do not pertain to treatment for a respiratory disability, and the Veteran has not identified private treatment for asthma or bronchitis. The Board notes that, throughout the period on appeal, the Veteran was not noted to have reduced diffusion capacity for carbon monoxide, or reduced oxygen consumption. In January 2010, the diffusion capacity of the lung for carbon monoxide (DLCO) was measured to be 97 percent predicted, and in December 2010, it was measured at 98 percent predicted. No other DLCO results are present in the record, and it does not appear exercise testing for oxygen capacity was undertaken at any point during the appeal period. After review of the record, the Board finds an increased evaluation for the Veteran’s asthma with bronchitis is not warranted. First, the Veteran’s FEV-1 results were, at the lowest, 58 percent predicted, which corresponds to a 30 percent evaluation. The Veteran’s FEV-1/FVC results were, at the lowest, 71 percent, which corresponds with a 10 percent evaluation. The Veteran’s prescribed daily inhalational asthma medication also corresponds to a 30 percent evaluation, and not higher. The Veteran contends he is taking Symbicort for his asthma, which he believes satisfies the criteria for a 60 percent evaluation as it is an inhalational corticosteroid. However, that medication is an inhaled corticosteroid and not an oral or parenteral corticosteroid as required under the rating criteria. The language of Diagnostic Code 6602 indicates that bronchial asthma treated by inhalational therapy alone is rated differently than those requiring non-inhalational systemic therapy, and the code distinguishes between the use of systemic corticosteroids taken orally or parenterally and the use of inhaled corticosteroids. Therefore, the use of Symbicort does not warrant an increase to a 60 percent rating. The Veteran also contends that he would have a higher rating had the bronchitis been service-connected first. However, evaluations for most respiratory disabilities, including asthma and bronchitis, are not awarded separately, but instead rated together under a single rating corresponding with the symptoms of the predominant disability. 38 C.F.R. § 4.96(a). The Board has considered whether the Veteran’s bronchitis is the predominant disability and whether the Veteran’s symptoms are more favorably rated under Diagnostic Code 6600 for chronic bronchitis. However, the June 2013 VA examiner opined asthma was the predominant disability, and the Board notes the Veteran’s daily medications are for the treatment of asthma and not bronchitis. Therefore, the Board finds the asthma is the predominant disability. Further, the Board notes that rating the Veteran’s respiratory disabilities under Diagnostic Code 6600 does not garner a higher evaluation. The record does not indicate the Veteran’s respiratory disabilities manifest in reduced oxygen consumption or a significantly reduced capacity to diffuse carbon monoxide (DLCO results of 40 to 55 percent predicted), as described by Diagnostic Code 6600 for an evaluation in excess of 30 percent. Therefore, an increased evaluation for asthma with bronchitis is not warranted at any point during the period on appeal. REASONS FOR REMAND 1. Entitlement to service connection for a left knee disability is remanded. In September 2020, the Veteran was afforded a VA knee examination, at which the examiner identified a diagnosis of degenerative arthritis of both knees. The examiner opined that the left knee disability was less likely than not incurred in or caused by service because it was not diagnosed in service and the Veteran reported having no issues with his left knee in service. The examiner failed to address the March 1967 service treatment record showing treatment for a knee injury, and failed to offer an opinion regarding a nexus between service and the arthritis that manifested later. This opinion, which is the only one in the record regarding a nexus between the current left knee disability and the Veteran’s service, is inadequate. A remand is therefore necessary to obtain a new opinion. See Barr v. Nicholson, 21 Vet. App. 303, 311 (2007) (once VA undertakes to provide an examination, it must provide an adequate one). 2. Entitlement to service connection for diverticulitis is remanded. At a September 2020 VA examination, the examiner noted that a 2004 episode of diverticulitis had resolved and the Veteran has had no symptoms since that time. The examiner opined that the claimed diverticulitis is not related to service, as no diagnosis of diverticulitis was established while in service. The examiner failed to address an August 2013 colonoscopy identifying diverticulitis, which would establish a current diagnosis for the purposes of the Veteran’s service connection claim. See McClain v. Nicholson, 21 Vet. App. 319, 321 (2007). The examiner further failed to discuss service treatment records documenting gastrointestinal complaints. This examination is therefore inadequate; as there is no other medical opinion in the record regarding a nexus between diverticulitis and service, a remand is necessary to obtain an adequate opinion. See Barr, 21 Vet. App. at 311. 3. Entitlement to service connection for a pulmonary disability, to include COPD, is remanded. The Veteran attended a September 2020 VA respiratory conditions examination, at which the examiner did not identify a diagnosis of COPD. The examiner did not provide an opinion regarding whether COPD is related to service, as the examiner opined that COPD is not clearly established by the examination or medical records. The Veteran performed pulmonary function testing (PFT) in conjunction with this examination, and a handwritten note on the results report reads, “PFT – mild obstructive disease poor [illegible] effort.” The Board also notes a March 2001 x-ray indicated changes associated with COPD, with some flattening of the diaphragm and hyperinflation of the lungs. While this x-ray alone does not establish a current disability for the purposes of service connection, see McClain, 21 Vet. App. at 321, it is relevant to the discussion of a current pulmonary disability. The Veteran is not expected to possess the medical knowledge to describe the precise universe of his claim. See Clemons v. Shinseki, 23 Vet. App. 1, 5 (2009). As the examiner did not discuss whether any form of obstructive pulmonary disease was indicated by the examination and review of the record, particularly the September 2020 notation of mild obstructive disease and the March 2001 indication of changes associated with obstructive pulmonary disease, the opinion is inadequate. A remand is therefore necessary to obtain an adequate opinion addressing the full scope of the Veteran’s claim. 4. Entitlement to service connection for chronic kidney disease is remanded. The Veteran has asserted that his chronic kidney disease is caused by medications he takes for hypertension, and his private treatment records indicate a possible relationship between hypertension and the chronic kidney disease. The Veteran currently has a pending appeal for service connection for hypertension. As the chronic kidney disease claim is inextricably intertwined with the pending hypertension appeal, adjudicating it prior to a determination in the hypertension appeal would be a waste of judicial resources. The chronic kidney disease claim is therefore remanded until a determination is made regarding service connection for hypertension. The matters are REMANDED for the following action: 1. Forward the claims file to an appropriate clinician who has not yet given an opinion in this case to determine whether the current left knee disability is related to the Veteran’s military service. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the left knee disability began in or is otherwise caused by the Veteran’s active service. The examiner should specifically address the Veteran’s lay statements regarding onset of symptoms, as well as the March 1967 service treatment record showing treatment for a knee injury during service. The examiner may not dismiss the Veteran’s report of symptoms capable of lay observation solely on the basis that the symptoms are not recorded in contemporaneous treatment records. All opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 2. Forward the claims file to an appropriate clinician who has not yet given an opinion in this case to determine whether the diagnosis of diverticulitis is related to the Veteran’s military service. The examiner is advised that, if it is found the diverticulitis has resolved, it was noted during the pendency of this claim and is therefore considered a current disability for the purposes of service connection. Following review of the claims file, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the diverticulitis began in or is otherwise caused by the Veteran’s active service. The examiner should specifically address the Veteran’s lay statements regarding onset of symptoms, as well as the Veteran’s service treatment records indicating complaints of gastrointestinal symptoms. The examiner may not dismiss the Veteran’s report of symptoms capable of lay observation solely on the basis that the symptoms are not recorded in contemporaneous treatment records. All opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 3. Forward the claims file to an appropriate clinician who has not yet given an opinion in this case to determine whether any current pulmonary disability, other than asthma with bronchitis, is related to the Veteran’s military service. If the examiner determines that an in-person examination is necessary, one should be scheduled; if only an interview is deemed necessary, an alternative format such as telehealth is acceptable. Following review of the claims file, the examiner should identify all current pulmonary disabilities aside from asthma with bronchitis, which is already service-connected. In determining the current diagnoses of record, the examiner should specifically address the handwritten note on the September 2020 pulmonary function testing report indicating mild obstructive disease, as well as the March 2001 x-ray indicating changes associated with COPD. For each pulmonary disability identified, the examiner should opine whether it is at least as likely as not (50 percent or greater probability) that the disability began in or is otherwise caused by the Veteran’s active service. The examiner should also opine whether it is at least as likely as not (50 percent or greater probability) that each disability identified is (a) caused by; or (b) aggravated (i.e., worsened beyond the normal progression of the disease) by the Veteran’s service-connected asthma with bronchitis. If aggravation is found, the examiner must attempt to establish a baseline level of severity of the pulmonary disability prior to aggravation by the service-connected disability. Please note, causation and aggravation are separate concepts and MUST be addressed independently. All opinions must be accompanied by a clear rationale. If any of the above issues cannot be resolved without resorting to speculation, then a detailed medical explanation as to why this is so must be provided. 4. Take any steps deemed necessary to develop the Veteran’s claim for service connection for chronic kidney disease, to include as secondary to hypertension. M. HYLAND Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board K. Josey, 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.