Citation Nr: 21013072 Decision Date: 03/08/21 Archive Date: 03/08/21 DOCKET NO. 14-35 433 DATE: March 8, 2021 ORDER Entitlement to an initial rating in excess of 30 percent prior to August 3, 2013 and from December 1, 2013, to September 13, 2016 for asthma with a history of multiple spontaneous pneumothorax is denied. Entitlement to an initial rating in excess of 60 percent from September 13, 2016, for asthma with a history of multiple spontaneous pneumothorax is denied. FINDING OF FACT 1. From November 5, 2011 to August 3, 2013, and from December 1, 2013 to September 13, 2016, the Veteran’s asthma with a history of multiple spontaneous pneumothorax involved a need for daily inhalational therapy and daily oral bronchodilator therapy; at worst, prior to his hospitalization, he had an FEV-1 of 87.2 percent with an FEV-1/FVC of 75 percent and a DLCO of 60.5 percent. 2. From September 13, 2016, the Veteran’s asthma with a history of multiple spontaneous pneumothorax is manifested by chronic low dose (maintenance) corticosteroids, daily inhalational bronchodilator therapy, monthly physician visits for care of asthma exacerbations, a DLCO of 43 percent of predicted value, and an FEV-1/FVC of 99 percent predicted. CONCLUSION OF LAW 1. The criteria for entitlement to an initial rating in excess of 30 percent from November 5, 2011 to August 3, 2013, and from December 1, 2013 to September 13, 2016 for asthma with a history of multiple spontaneous pneumothorax have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97a, Diagnostic Codes (Code) 6602, 6603. 2. The criteria for entitlement to a disability rating in excess of 60 percent beginning September 13, 2016 for asthma with a history of multiple spontaneous pneumothorax have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. § 4.97a, Codes 6602, 6603. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served in the Marines from November 2007 to November 2011. This matter comes before the Board of Veterans’ Appeals (Board) on appeal from a June 2013 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). This claim was last before the Board in July 2020 where it was remanded for additional development. As the Veteran received a 100 percent disability rating for his asthma from August 3, 2013, to November 30, 2013, and received special monthly compensation under 38 U.S.C. § 1114(s) for the same period, the Board will not address the period in the current appeal. 1. Entitlement to an initial rating in excess of 30 percent from November 5, 2011 to August 3, 2013, and from December 1, 2013 to September 13, 2016 and an initial rating in excess of 60 percent thereafter for asthma with a history of multiple spontaneous pneumothorax. Disability ratings are assigned in accordance with the VA’s Schedule for Rating Disabilities and are intended to represent the average impairment of earning capacity resulting from disability. See 38 U.S.C. § 1155 (West 2014); 38 C.F.R. §§ 3.321(a), 4.1 (2016). Separate diagnostic codes identify the various disabilities. See 38 C.F.R. Part 4 (2016). 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. See 38 C.F.R. § 4.7 (2016). “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); Fenderson v. West, 12 Vet. App. 119 (1999). Service connection for asthma with s/p right spontaneous total pneumothorax was granted in a rating decision and a 30 percent disability rating was assigned, effective November 5, 2011 pursuant to 38 C.F.R. § 4.97, Code 6602 (bronchial asthma). A February 2015 rating decision temporarily assigned a 100 percent disability rating following spontaneous pneumothorax from the date of hospital admission, effective August 3, 2013, and a 30 percent disability rating was assigned, effective December 1, 2013. A June 2017 rating decision assigned a 60 percent disability rating, effective September 13, 2016. Diagnostic Code 6602 is used to rate bronchial asthma. Under Code 6602, a 30 percent rating is assigned for FEV1 of 56- to 70-percent predicted, or; FEV1/FVC of 56 to 70 percent or daily inhalational or oral bronchodilator therapy, or; inhalational anti-inflammatory medication. A 60 percent rating is assigned for FEV1 of 40- to 55-percent predicted, or; FEV1/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 assigned for FEV1 less than 40-percent predicted, or; Forced Expiratory Volume in one second to Forced Vital Capacity (FEV1/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 immunosuppressive medications. Diagnostic Code 6603 is used to rate pulmonary emphysema. Under Code 6603, a 30 percent rating contemplates FEV-1 of 56- to 70-percent predicted, or; FEV-1/FVC of 56 to 70 percent, or; DLCO (SB) 56- to 65-percent predicted. A 60 percent rating contemplates FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). A 100 percent rating is warranted for FEV-1 less than 40 percent of predicted value, or; the ratio of FEV-1/FVC less than 40 percent, or; DLCO (SB) less than 40-percent predicted, or; maximum exercise capacity less than 15 ml/kg/min oxygen consumption (with cardiac or respiratory limitation), or; cor pulmonale (right heart failure), or; right ventricular hypertrophy, or; pulmonary hypertension (shown by Echo or cardiac catheterization), or; episode(s) of acute respiratory failure, or; requires outpatient oxygen therapy. 38 C.F.R. § 4.97, Diagnostic Code 6603. When evaluating based on PFTs (pulmonary function tests), use post-bronchodilator results in applying the evaluation criteria in the rating schedule unless the post-bronchodilator results were poorer than the pre-bronchodilator results. In those cases, use the pre-bronchodilator values for rating purposes. When there is disparity between the results of different PFTs so that the level of evaluation would differ depending on which test result is used, use the test result that the examiner states most accurately reflects the level of disability. 38 C.F.R. § 4.96(d)(5), (6). At a January 2013 VA examination, the VA examiner noted that the Veteran’s respiratory condition requires chronic low dose (maintenance) corticosteroids and a daily use of inhalational bronchodilator therapy. It was noted that the Veteran had a spontaneous total pneumothorax that resulted in hospitalization from April 25, 2011 to May 1, 2011. A 2011 computed tomography (CT) revealed few apical blebs. He had not had any asthma attacks with episodes of respiratory failure in the past 12 months. He had not had any physician visits for required care of exacerbations. A pulmonary function test (PFT) was given. The VA examiner stated that the FEC of 100 percent predicted most accurately reflects the level of disability. The VA examiner also indicated that the respiratory conditions did not impact his ability to work. At a March 2013 VA examination, the VA examiner noted that the Veteran’s respiratory condition required the use of daily inhalational bronchodilator therapy. The VA examiner noted that the Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months or had any physician visits for required care of exacerbations. A PFT was not given and no other significant diagnostic test findings were reported. The VA examiner concluded that the Veteran’s respiratory condition impacted his ability to work and stated that “limited tolerance with breathing during activity such as climbing stairs causes him to have flare ups of his asthma,” and “sedentary employment would not be affected.” See March 2013 VA examination. An April 2013 PFT assessment revealed FEV-1 of 87.2 percent with a FEV-1/FVC of 75 percent and a DLCO of 60.5 percent. The Veteran was hospitalized in August 2013 because of a spontaneous pneumothorax. A chest x-ray demonstrated a near total pneumothorax on the right. See August 2013 Treatment Records. At an April 2015 VA examination, the Veteran reported that the quality of his symptoms was the same but the quantity of his symptoms was a little worse in terms of pain in chest and dyspnea on exertion (DOE). He reported that he had trouble playing basketball, walking up hills, and sleeping on his right side. The VA examiner noted that the Veteran’s asthma required intermittent inhalational bronchodilator therapy. It was further noted that a chest x-ray had shown emphysema when the Veteran was hospitalized. A PFT was given. The VA examiner concluded that the FEV-1 of 94 percent predicted most accurately reflected the level of disability. The VA examiner also indicated that the Veteran’s respiratory conditions did not impact his ability to work. The VA examiner remarked that the Veteran had mild chest wall pain, mild OCC DOE. An April 2015 treatment record reported the Veteran’s lungs auscultated, were clear throughout, and he appeared to be in no respiratory distress. A September 2015 x-ray showed nonspecific density right upper lobe, mild emphysematous changes of the lungs and mild scarring of the right lung. In an August 2015 Decision Review Officer (DRO) Hearing, the Veteran reported that he had taken Albuterol and a Budesonide inhaler with Formoterol more than once a day since he was hospitalized in August 2013. See August 2015 Hearing Testimony. He further testified that he needed to use a nebulizer machine daily. Id. A September 2016 VA examination noted that the Veteran’s respiratory condition required chronic low dose (maintenance) corticosteroids and daily inhalational bronchodilator therapy. The VA examiner noted that the Veteran had not had any asthma attacks with episodes of respiratory failure in the past 12 months. The Veteran had monthly physician visits for required care of asthma exacerbations. An October 2015 CT scan revealed emphysema, probable fibrosis. The VA examiner noted that the Veteran’s April 2013 PFT DLCO result of 44.66 percent predicted most accurately reflected the Veteran’s level of disability. However, in a December 2016 Addendum Opinion, the VA examiner noted that the correct DLCO result from this April 2013 PFT was actually 60.05 percent predicted. See April 2013 PFT. Looking at the April 2013 VA treatment records, they confirm that the correct DLCO result was 60.5 percent of the predicted value. The 44.66 measurement was listed as the predicted value, with the actual measurement being 27.00. The 27.00 measurement was 60.5 percent of the predicted value of 44.66. Lastly, regarding functional impact, the VA examiner concluded that the Veteran’s respiratory condition impacted his ability to work and noted that the “Veteran has dyspnea with moderate activity.” See September 2016 VA examination. A January 2017 VA examination and February 2017 PFTs showed a DLCO of 43 percent. An April 2019 VA examination noted that the Veteran’s April 2019 PFT FEV-1/FVC of 99 percent most accurately reflects the Veteran’s level of disability. Based on the record, the Board finds that the criteria for an initial disability rating in excess of 30 percent for the Veteran’s asthma with s/p right spontaneous total pneumothorax prior to September 13, 2016 have not been met under either Diagnostic Code 6602 or Diagnostic Code 6603. The record does not show that he has had an FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted. Nor does it show that he had monthly visits to a physician for required care of exacerbations, intermittent (at least three per year) courses of systemic oral or parenteral corticosteroids, or maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit) during this period. He required intermittent or daily inhalational therapy and oral bronchodilator therapy and, at worst, prior to his hospitalization, he had a FEV-1 of 87.2 percent with an FEV-1/FVC of 75 percent and a DLCO of 60.5 percent. Such findings most nearly approximate the 30 percent criteria. Regarding the period beginning September 13, 2016, the Board finds that the criteria for a disability rating in excess of 60 percent for the Veteran’s asthma with s/p right spontaneous total pneumothorax have not been met. The evidence does not show that he had an FEV-1 less than 40-percent predicted, 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 immunosuppressive medications. Nor does it show that he had an FEV-1 of 40- to 55-percent predicted, or; FEV-1/FVC of 40 to 55 percent, or; DLCO (SB) of 40- to 55-percent predicted, or; maximum oxygen consumption of 15 to 20 ml/kg/min (with cardiorespiratory limit). He required chronic low dose (maintenance) corticosteroids and daily inhalational bronchodilator therapy and had monthly physician visits for care of asthma exacerbations, but he did not have any asthma attacks with episodes of respiratory failure. A PFT showed a DLCO of 43 percent and an FEV-1/FVC of 99 percent predicted. Such findings more nearly approximate the 60 percent criteria under Code 6603. The Board has also considered the Veteran’s assertions as to the nature and severity of his symptoms. While the Veteran is competent (qualified) to observe his symptoms, he does not have the training or credentials to determine the current nature, extent, and severity of those symptoms, as reflected by the applicable diagnostic criteria. Additionally, he does not have the training or credentials to determine the proper disability evaluations concerning his disability. See Jandreau v. Nicholson, 492 F.3d 1372, 1377 (Fed. Cir. 2007). The objective medical evidence including the PFT results and the Veteran’s objectively noted treatment is found to be more probative. (Continued on the next page)   In his October 2013 Notice of Disagreement (NOD), the Veteran reported that he had difficulty sleeping and felt pain in his abdomen when lifting objects over 20 pounds; however, the Board notes that the Veteran is already in receipt of a 100 percent rating for the period during which his NOD was submitted. While in his October 2014 VA Form 9 he reported that he had had an episode in April 2011 and requested refills of his inhalational bronchodilator medication that were never prescribed, the Board notes that the period on appeal in this case begins on November 5, 2011. Marissa Caylor Acting Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board G. N. Wilson, 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.