Citation Nr: 21012407 Decision Date: 03/04/21 Archive Date: 03/04/21 DOCKET NO. 15-44 012 DATE: March 4, 2021 ORDER Entitlement to a rating more than 60 percent for bronchial asthma with obstructive sleep apnea (OSA), to include entitlement to separate ratings is denied. Entitlement to service connection for high blood pressure is denied. Entitlement to service connection for left shoulder disorder is denied. Entitlement to service connection for right shoulder disorder is denied. Entitlement to service connection for left knee disorder is denied. Entitlement to service connection for right knee disorder is denied. FINDINGS OF FACT 1. The Veteran’s bronchial asthma with OSA is not shown to be manifested by pulmonary function testing showing forced expiratory volume in one second (FEV-1) of less than 40 of predicted value, by a ratio of FEV-1 to forced vital capacity (FVC) of less than 40 percent, requires daily use of systemic high dose corticosteroids or immuno-suppressive medications, chronic respiratory failure with carbon dioxide retention or cor pulmonale, or requires a tracheostomy. 2. Separate evaluations may not be awarded for disabilities rated under Diagnostic Code 6602 and Diagnostic Code 6847. 3. The preponderance of the evidence of record does not show that the Veteran has chronic, clinically diagnosed hypertension. 4. The preponderance of the evidence of record does not show that the Veteran’s left shoulder disorder is related to service. 5. The preponderance of the evidence of record does not show that the Veteran’s right shoulder disorder is related to service. 6. The preponderance of the evidence of record does not show that the Veteran’s left knee disorder is related to service. 7. The preponderance of the evidence of record does not show that the Veteran’s right knee disorder is related to service. CONCLUSIONS OF LAW 1. The criteria for entitlement to a rating more than 60 percent for bronchial asthma with obstructive sleep apnea (OSA), to include entitlement to separate ratings have not been met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 4.1 , 4.2, 4.3, 4.96, 4.97 Diagnostic Codes (DC) 6602, 6847 (2019). 2. The criteria for entitlement to service connection for high blood pressure have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107 (2012); 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309 (2019). 3. The criteria for entitlement to service connection for left shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 4. The criteria for entitlement to service connection for right shoulder disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 5. The criteria for entitlement to service connection for left knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. 6. The criteria for entitlement to service connection for right knee disorder have not been met. 38 U.S.C. §§ 1110, 1112, 1113, 1137, 5103, 5103A, 5107; 38 C.F.R. §§ 3.102, 3.159, 3.303, 3.307, 3.309. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran had active duty service from February 1997 to April 2000. In February 2019, the Veteran testified before a Veterans Law Judge (VLJ) who is no longer employed by the Board. A transcript of the hearing is of record. In a September 2020 letter, the Veteran was notified that the VLJ who conducted the Board hearing was no longer employed by the Board and that the Veteran had the right to another Board hearing. The Veteran was given 30 days to respond, and later that month, the Veteran responded that he did not wish to appear at another Board hearing so that appeal could be considered on the evidence of record. In an August 2019 decision, the Board reopened and denied several issues and remanded the remaining issues for development. During development, a July 2020 rating decision granted entitlement to multiple issues and they are no longer before the Board. The remaining issues, as they have been characterized above, have since been returned to the Board for further consideration. As a result of development during Remand, a total rating based on individual unemployability has been assigned from December 2013, and a 100 percent schedular rating has been assigned since April 2015. Increased Ratings Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities, found in 38 C.F.R. Part 4. The percentage ratings are based on the average impairment of earning capacity as a result of a service-connected disability, and separate diagnostic codes identify the various disabilities and the criteria for specific ratings. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. If two disability evaluations are potentially applicable, the higher evaluation will be assigned if the disability picture more nearly approximates the criteria for that rating; otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. All reasonable doubt as to the degree of disability will be resolved in favor of the claimant. 38 C.F.R. § 4.3. The evaluation of the same disability under several diagnostic codes, known as pyramiding, must be avoided; however, separate ratings may be assigned for distinct disabilities resulting from the same injury so long as the symptomatology for one condition is not duplicative of or overlapping with the symptomatology of the other condition. 38 C.F.R. § 4.14 (2019); Esteban v. Brown, 6 Vet. App. 259, 262 (1994). While it is necessary to consider the complete medical history of the Veteran’s condition in order to evaluate the level of disability and any changes in condition, where an increase in the level of a service-connected disability is at issue, the primary concern is the present level of disability. Schafrath v. Derwinski, 1 Vet. App. 589, 594 (1991); Francisco v. Brown, 7 Vet. App. 55 (1994). In deciding the Veteran’s increased evaluation claim, the Board has considered the determinations in Fenderson v. West, 12 Vet. App. 119 (1999) and Hart v. Mansfield, 21 Vet. App. 505 (2007), and whether the Veteran is entitled to an increased evaluation for separate periods based on the facts found during the appeal period. 1. Entitlement to a rating more than 60 percent for bronchial asthma with obstructive sleep apnea (OSA), to include entitlement to separate ratings The Veteran’s bronchial asthma with OSA is rated at 60 percent disabling under Diagnostic Code 6602. As discussed above, a July 2020 rating decision awarded service connection for OSA and stated that a 50 percent rating, effective March 17, 2014 would be appropriate. It also found that the Veteran’s bronchial asthma should be increased to 60 percent disabling, effective January 30, 2012 (date VA records show at least monthly visits to a physician for treatment and care). Since the bronchial asthma was determined to be more severe than the OSA, a single rating for the predominant disability was assigned. To that end, ratings under DCs 6600 through 6817 and 6822 through 6847 will not be combined with each other. Where there is lung or pleural involvement, ratings under DCs 6819 and 6820 will not be combined with each other or with DCs 6600 through 6817 or 6822 through 6847. A single rating will be assigned under the DC which reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. 38 C.F.R. § 4.96. Bronchial asthma is rated under DC 6602. Under DC 6602, a 10 percent evaluation is warranted for an FEV-1 of 71 to 80 percent of predicted value, or, an FEV-1/FVC of 71 to 80 percent, or, intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is warranted for an FEV-1 of 56 to 70 percent of predicted value, or, an FEV-1/FVC of 56 to 70 percent, or, daily inhalational or oral bronchodilator therapy, or, inhalational anti-inflammatory medication. A 60 percent evaluation is warranted for an FEV-1 of 40 to 55 percent of predicted value, or, an 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 maximum 100 percent disability rating is assigned for an FEV-1 less than 40 percent of the predicted value, or, FEV-1/FVC less than 40 percent, or, more than one attack per week with episodes of respiratory failure, or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. 38 C.F.R. § 4.97, DC 6602. Pulmonary Function Test (PFT) results are generally reported before and after the administration of bronchodilator therapy. VA regulations require the use of post-bronchodilator results in determining disability ratings for DC 6600, 6603, 6604, 6825-6833, and 6840-6845, unless post-bronchodilator results are poorer than pre-bronchodilator results. 38 C.F.R. § 4.96(d)(4). There are no regulations specifying whether pre- or post-bronchodilator results should be used when determining disability ratings under DC 6602. As a matter of convenience, this decision relates pre- and post-bronchodilator scores alike in summarizing PFT studies. DC 6847 pertains to OSA. Under the diagnostic criteria, a noncompensable rating is assigned for asymptomatic OSA but with documented sleep disorder breathing. A 30 percent rating is warranted for OSA manifested by persistent day-time hypersomnolence. A 50 percent evaluation is assigned for OSA requiring the use of a breathing assistance device such as a continuous airway pressure (CPAP) machine. A 100 percent evaluation is assigned for OSA with chronic respiratory failure with carbon dioxide retention or cor pulmonale, or; requiring a tracheostomy. 38 C.F.R. § 4.97, DC 6847. Upon reviewing the evidence of record, the Board finds the evidence is against a finding of a rating in excess of the currently assigned 60 percent rating for the Veteran’s service-connected bronchial asthma with OSA. A treatment note from January 30, 2012 showed the Veteran was advised to receive monthly injections of Xolair due to his asthma being refractory to other inhalational treatments. In a statement from Dr. W.-S. dated August 28, 2012, it was stated that the Veteran’s asthma had been improved considerably due to the Xolair, which removes a protein, IgE, from the blood stream. It is a drug that is reserved for only the most severe patients. Prior to this treatment, he was required to be on bronchodilators three to four times per day. The Veteran has been on Xolair since January 2012. He was able to reduce inhalational therapy from four times a day to once a day or every other day. A statement from Dr. W.R.M. noted the Veteran continues to have severe persistent asthma and continues to have difficulty with almost any level of physical activity, even mild exertion. The Veteran’s symptoms were consistent with uncontrolled asthma. It was stated that the combined therapies of inhalational medication, corticosteroids and long acting bronchodilators, immediate acting inhaler, environmental control measures to avoid asthma triggers and allergens, allergen immunotherapy, and monoclonal Anti IgE injections have been helpful to a degree but not to anormal exam or functional level. The Veteran received a VA respiratory examination in April 2012, wherein a diagnosis of asthma was confirmed. The examiner stated that the asthma does not require the use of oral or parenteral corticosteroid medications, but requires daily use of inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. No asthma attacks with respiratory failure were reported in the past 12 months and the asthma was not noted to have required physician visits for care or exacerbations. A pulmonary function test showed the Veteran’s FEV-1 was 97 percent and his FEV-1/FVC was 72 percent predicted pre-bronchodilator and his FEV-1 was 108 percent and his FEV-1/FVC was 77 percent predicted post- bronchodilator. The examiner indicated that the FEV-1/FVC results most accurately reflected the Veteran’s level of disability. A sleep study from August 2013 showed the Veteran has moderate to severe obstructive sleep apnea for which requires CPAP therapy for treatment. Additional sleep studies show continued use of a CPAP machine and indicate that the Veteran suffered from sleep disturbances and fatigue. The Veteran received another VA respiratory examination in March 2019. The examiner stated that the asthma requires intermittent courses of bursts of systemic corticosteroids at a rate of 3 bursts every 12 months. It also requires daily inhalational bronchodilator therapy and daily inhalational anti-inflammatory medication. Daily oral bronchodilator use was also reported. No asthma attacks with respiratory failure were noted in the past 12 months and no physician visits for required care were indicated. A pulmonary function test showed the Veteran’s FEV-1 was 75 percent and his FEV-1/FVC was 68 percent predicted pre-bronchodilator and his FEV-1 was 102 percent and his FEV-1/FVC was 77 percent predicted post- bronchodilator. The examiner indicated that the FEV-1/FVC results most accurately reflected the Veteran’s level of disability. Pursuant to the Board’s August 2019 remand, the Veteran underwent a VA OSA examination in February 2020, wherein he was diagnosed with OSA dated August 2013. The examiner stated that the condition requires continuous medication and use of a CPAP machine. Symptoms were described as persistent daytime hypersomnolence and irritability, lack of concentration/focus, and headaches. No other complications were reported. The examiner determined that the Veteran’s OSA is secondary to his service-connected bronchial asthma and as a result, service connection for OSA was later granted with what would be a 50 percent evaluation, effective March 17, 2014. The Board acknowledges that the Agency of Original Jurisdiction (AOJ) then noted that a single rating will be assigned under the DC that reflects the predominant disability with elevation to the next higher evaluation where the severity of the overall disability warrants such elevation. In this instance, his bronchial asthma, rated as 60 percent disabling, was determined to be the more severe disability compared to OSA that would warrant a 50 percent rating. Here, the evidence of record indicates that the Veteran’s OSA, if rated alone, would warrant no greater than a 50 percent rating. The Veteran uses a CPAP for his OSA. Under DC 6847, a 50 percent rating is assigned for use of a CPAP. The record does not show that the Veteran meets the criteria for a 100 percent rating as he does not have chronic respiratory failure and has not required a tracheostomy. The evidence of record also indicates that the Veteran’s bronchial asthma is consistent with a 60 percent rating. In this instance, it appears that his bronchial asthma has been assigned a 60 percent rating due to 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. There is nothing of record to suggest a maximum 100 percent disability rating as the pulmonary function testing does not indicate FEV-1 less than 40 percent of the predicted value, or, FEV-1/FVC less than 40 percent, or, more than one attack per week with episodes of respiratory failure, or, requires daily use of systemic (oral or parenteral) high dose corticosteroids or immune-suppressive medications. In summary, the Veteran’s bronchial asthma has been determined to be the predominant disability because it is evaluated as 60 percent disabling and the OSA would be rated at no higher than 50 percent disabling. To the extent that the Veteran asserts that the assignment of separate ratings under DC 6602 and DC 6847 are warranted because OSA and asthma present with distinct manifestations (i.e., symptoms), as has been noted above the Board is bound by 38 C.F.R. § 4.96, which specifically prohibits the assignment of separate evaluations for these co-existing respiratory conditions. Accordingly, the criteria for a rating in excess of 60 percent for the Veteran’s bronchial asthma with OSA have not been met, and the Veteran’s claim is denied. Service Connection Service connection may be granted for a disability resulting from disease or injury incurred in or aggravated by active military, naval, or air service. 38 U.S.C. §§ 1110, 1131; 38 C.F.R. § 3.303(a). Service connection may be granted for any disease diagnosed after discharge, when all the evidence, including that pertinent to service, establishes that the disease was incurred in-service. 38 C.F.R. § 3.303(d). As a general matter, service connection for a disability requires evidence of: (1) the existence of a current disability; (2) the existence of the disease or injury in-service, and; (3) a relationship or nexus between the current disability and any injury or disease during service. Shedden v. Principi, 381 F.3d 1163 (Fed. Cir. 2004); see also Hickson v. West, 12 Vet. App. 247, 253 (1999). Service connection for certain chronic diseases, hypertension and arthritis, may be presumed if they are manifest to a compensable degree within one year following the date of separation from active service. 38 U.S.C. §§ 1101, 1112, 1113 (2012); 38 C.F.R. §§ 3.307, 3.309. For the showing of chronic disease in-service there is required a combination of manifestations sufficient to identify the disease entity and sufficient observation to establish chronicity at the time, as distinguished from merely isolated findings or diagnosis including the word “chronic.” Continuity of symptomatology is required where the condition noted during service is not, in fact, shown to be chronic or when the diagnosis of chronicity may be legitimately questioned. When the fact of chronicity in-service is not adequately supported then a showing of continuity of symptomatology after discharge from service is required to support the claim. 38 C.F.R. § 3.303(b). But to establish entitlement to service connection based on continuity of symptomatology, the claimant must have one of the “chronic” diseases specifically enumerated in 38 C.F.R. § 3.309(a). Walker v. Shinseki, 708 F.3d 1331 (Fed. Cir. 2013). Except as otherwise provided by law, a claimant has the responsibility to present and support a claim for benefits. VA shall consider all information and lay and medical evidence of record in a case and when there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall give the benefit of the doubt to the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49, 53 (1990). To deny a claim on its merits, the evidence must preponderate against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996). 2. Entitlement to service connection for high blood pressure Under 38 C.F.R. § 4.104, hypertension or isolated systolic hypertension must be confirmed by readings taken two or more times on at least three different days. The term hypertension means the diastolic blood pressure is predominantly 90 or greater, and isolated systolic hypertension means the systolic blood pressure is predominantly 160 or greater with a diastolic blood pressure of less than 90. The Veteran testified at the February 2019 Board hearing that he did not have problems with high blood pressure during service but was told his high blood pressure was secondary to the medication to treat his asthma. A review of the post-service treatment records did not reveal a diagnosis of hypertension but did show several instances where diastolic blood pressure was 90 or greater. Pursuant to the Board’s August 2019 remand, the Veteran had a VA hypertension examination in February 2020. Upon examination, blood pressure readings were 140 (systolic)/90 (diastolic); 142/94; and 140/94. Based on these findings and a review of the entirety of the Veteran’s claims file, the examiner determined that the Veteran does not demonstrate and is not diagnosed with hypertension for VA purposes. It is noted that this opinion appears consistent with the other evidence of record. Review of medical records reveals occasional readings slightly in excess of 140/90, with multiple readings less than that. This includes a review of service treatment records and post-service treatment records. It is not shown that high blood pressure has been a concern in treatment rendered to the Veteran nor is there any indication that medication has ever been prescribed in an attempt to control high blood pressure. As such, evidence of hypertension for VA purposes has not been shown. Importantly, service connection requires a showing of a current disability. Brammer v. Derwinski, 3 Vet. App. 223, 225 (1992). A current disability is shown if the claimed condition is demonstrated at the time of the claim or while the claim is pending. McClain v. Nicholson, 21 Vet. App. 319 (2007). In essence, the evidence of a current diagnosis of high blood pressure is limited to statements from the Veteran and his general complaints. The Board finds that diagnosing a disability such as hypertension requires medical expertise and knowledge because such a diagnosis involves clinical testing and evidence which is beyond the scope of observable symptoms. Thus, while the Veteran is competent to report his experience and symptoms in-service and thereafter, his reports are not competent to relate such to his military service. Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011). In light of the absence of any competent evidence of chronic, clinically diagnosed high blood pressure, the claim must be denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. 3. Entitlement to service connection for left shoulder disorder 4. Entitlement to service connection for right shoulder disorder 5. Entitlement to service connection for left knee disorder 6. Entitlement to service connection for right knee disorder The Veteran testified at the February 2019 Board hearing that during service, he fell through a hatch and injured his shoulders and knees. He stated he went to sick call but was not treated or x-rayed. He stated he started complaining about his bilateral shoulders since he separated from service and has been continuous since. He also experienced symptoms in his knees such as swelling and flare-ups. Initially, the Board notes that the Veteran’s service records are silent as to any complaints of or treatment for the above conditions. Similarly, a VA examination of January 2000 was negative for complaints, findings, or diagnoses of shoulder or knee pain or problems. The Board further notes that the has received VA and private treatment for multiple conditions, including complaints of joint pain post-service. Pursuant to the Board’s August 2019 remand, the Veteran received VA orthopedic-type examinations in February 2020, wherein he was diagnosed with bilateral shoulder strain and bilateral knee strain. The Board notes that while etiological opinions were provided, addendums were required because the examiner did not provide any rationale. These addendum opinions were obtained in July 2020. The examiner provided the following remarks: Veteran’s [bilateral should disorder] less likely than not had its onset in service or is otherwise linked to service to include [bilateral] shoulder conditions during service. Veteran’s dates of service were from 02/12/97-04/20/2000. Although veteran has a shoulder condition at this time, medical records do not show condition occurred while in service. In veteran’s records in a Preventive & health maintenance medicine note dated 06/04/10 it notes the veteran with pain to bilateral shoulders. In a C & P Gulf War Protocol note dated 11/26/08 it notes, “Other joint pain- Knee and shoulder pain intermittently”. Veteran’s [bilateral knee disorder] less likely than not had its onset in service or is otherwise linked to service to include [bilateral] knee conditions during service. Veteran’s dates of service were from 02/12/97-04/20/2000. Although veteran has a knee condition at this time, medical records do not show condition occurred while in service. In veteran’s records in a Preventive & health maintenance medicine note dated 06/04/10 it notes the veteran with pain to bilateral shoulders. In a C & P Gulf War Protocol note dated 11/26/08 it notes, “Other joint pain- Knee and shoulder pain intermittently”. In light of the above, the Board determines that a preponderance of the evidence shows that the Veteran’s bilateral shoulder and knee disorders were not incurred in or aggravated by service. The Board finds the reasoning of the July 2020 VA examiner highly probative as he indicated a detailed review of the evidence, provided a fully supported rationale consistent with the evidence, and considered the Veteran’s claims regarding his shoulder and knee symptoms and onset. The July 2020 examiner remarked that is no evidence of a shoulder or knee injury during the Veteran’s service and instead found that the first reports of any shoulder or knee joint pain were long after discharge from service. In sum, the most probative evidence of record is against showing that the Veteran’s bilateral shoulder disorder and bilateral knee disorder are related to service. In making this decision the Board notes that the Veteran is competent to report joint pain and the circumstances surrounding such. The Board also acknowledges the Veteran’s lay statements asserting that his issues started while in-service. Although lay persons are competent to provide opinions on some medical issues, see Kahana v. Shinseki, 24 Vet. App. 428, 435 (2011), the specific issue in this case, the etiology of the Veteran’s bilateral shoulder and knee disorders, falls outside the realm of common knowledge of a lay person. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 n.4 (Fed. Cir. 2007) (explaining in footnote 4 that a Veteran is competent to provide a diagnosis of a simple condition such as a broken leg, but not competent to provide evidence as to more complex medical questions). For the above reasons, the Veteran’s claim with respect to these issues is denied. In reaching this decision the Board considered the doctrine of reasonable doubt, however, as the preponderance of the evidence is against the Veteran’s claim, the doctrine is not for application. 38 U.S.C. § 5107. MICHAEL D. LYON Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board M. Miller, 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.