Citation Nr: 21013238 Decision Date: 03/09/21 Archive Date: 03/09/21 DOCKET NO. 14-43 235 DATE: March 9, 2021 ORDERS Entitlement to a 60 percent schedular evaluation for bronchial asthma on and after July 17, 2015 is granted. Entitlement to a schedular evaluation higher than 30 percent for bronchial asthma prior to July 17, 2015 is denied. REMANDED Entitlement to an extraschedular evaluation higher than 60 percent on and after July 17, 2015 for bronchial asthma is remanded. FINDINGS OF FACT 1. From July 17, 2015, the service-connected bronchial asthma required treatment with corticosteroids 3 times per year, daily inhalational medication, physician visits less than monthly, and outpatient oxygen therapy. 2. Prior to July 17, 2015, the service-connected bronchial asthma required treatment with daily inhalational therapy, but the Veteran did not have monthly visits for exacerbations and he was not prescribed corticosteroids at least 3 times per year for exacerbations. CONCLUSIONS OF LAW 1. From July 17, 2015, the criteria for a 60 percent schedular evaluation for bronchial asthma have been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.96, 4.97 Diagnostic Code (DC) 6602. 2. Prior to July 17, 2015, the criteria for an evaluation higher than 30 percent for bronchial asthma have not been met. 38 U.S.C. §§ 1155, 5107; 38 C.F.R. §§ 4.3, 4.96, 4.97 Diagnostic Code (DC) 6602. REASONS AND BASES FOR FINDING AND CONCLUSION The Veteran served honorably on active duty in the U.S. Army from July 1971 to July 1974. This matter comes to the Board of Veterans’ Appeals (Board) on appeal from a September 2012 rating decision of a Department of Veterans Affairs (VA) Regional Office (RO). In July 2018, the Veteran testified at a Board hearing before the undersigned Veterans Law Judge and a transcript of the proceeding is of record. All requirements for hearing officers have been met. 38 C.F.R. § 3.103 (c)(2); Bryant v. Shinseki, 23 Vet. App. 488 (2010). This matter was remanded in March 2019, and there has been compliance with the remand directives. See Stegall v. West, 11 Vet. App. 268 (1998). Neither the Veteran nor his representative has raised any issues with the duty to notify or duty to assist. See Scott v. McDonald, 789 F.3d 1375, 1381 (Fed. Cir. 2015) (holding that “the Board’s obligation to read filings in a liberal manner does not require the Board... to search the record and address procedural arguments when the veteran fails to raise them before the Board”); Dickens v. McDonald, 814 F.3d 1359, 1361 (Fed. Cir. 2016) (applying Scott to a duty to assist argument). 1. Entitlement to an increased evaluation for bronchial asthma, evaluated at 30 percent prior to December 9, 2017 and at 60 percent on and after that date. The Veteran seeks higher evaluations for bronchial asthma. He asserts a higher evaluation is warranted because during the appeal period his daily medications were increased, he was seeing a pulmonary specialist, he was increasingly sensitive to environmental triggers, and he was treated with corticosteroids 3 times per year. See July 2018 hearing testimony. Disability ratings are determined by applying the criteria set forth in the VA Schedule for Rating Disabilities (Schedule), found in 38 C.F.R. Part 4. The Schedule is primarily a guide in the evaluation of disability resulting from all types of diseases and injuries encountered as a result of or incident to military service. The ratings are intended to compensate, as far as can practicably be determined, the average impairment of earning capacity resulting from such diseases and injuries and their residual conditions in civilian occupations. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. 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 for that rating. Otherwise, the lower rating will be assigned. 38 C.F.R. § 4.7. When reasonable doubt arises as to the degree of disability, such doubt will be resolved in the Veteran’s favor. 38 C.F.R. § 4.3. In considering the severity of a disability, it is essential to trace the medical history of the Veteran. 38 C.F.R. §§ 4.1, 4.2, 4.41. Consideration of the whole-recorded history is necessary so that a rating may accurately reflect the elements of any disability present. 38 C.F.R. § 4.2; Peyton v. Derwinski, 1 Vet. App. 282 (1991). Although the regulations do not give past medical reports precedence over current findings, the Board is to consider the Veteran’s medical history in determining the applicability of a higher rating for the entire period in which the appeal has been pending. Powell v. West, 13 Vet. App. 31, 34 (1999). Where entitlement to compensation has been established and an increase in the disability rating is at issue, the present level of disability is of primary concern. Francisco v. Brown, 7 Vet. App. 55, 58 (1994). If later evidence indicates that the degree of disability increased or decreased following the assignment of the initial rating, staged ratings may be assigned for separate periods of time. Fenderson, 12 Vet. App. at 126; Hart v. Mansfield, 21 Vet. App. 505 (2007) (noting that staged ratings are appropriate whenever the factual findings show distinct time periods in which a disability exhibits symptoms that warrant different ratings). Bronchial asthma is listed in the rating schedule for diseases of the respiratory system and rated according to DC 6602 at 38 C.F.R. § 4.97. Under DC 6602, a 10 percent evaluation is warranted for forced expiratory volume in one second (FEV-1) of 71- to 80-percent predicted, or; FEV-1/forced vital capacity (FVC) of 71 to 80 percent, or; intermittent inhalational or oral bronchodilator therapy. A 30 percent evaluation is warranted for FEV-1 of 56- to 70-percent predicted, or; 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 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 evaluation is warranted for 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 immuno-suppressive medications. In this case, the most relevant time period for consideration is from December 2010, one year prior to when the Veteran filed his claim for increase. See Hart, 21 Vet. App. at 509; see December 2011 statement in support of claim. a) Prior to July 17, 2015. The evidence of record does not show that the service-connected bronchial asthma warranted an evaluation higher than 30 percent prior to July 17, 2015. During this time, the Veteran did not have monthly visits for exacerbations and he was not prescribed corticosteroids at least 3 times per year for exacerbations. See January 2012 VA examination. Available private treatment records document the Veteran was seen in January 2012 in an emergency setting for an asthma exacerbation. He was prescribed a corticosteroid, but the record does not reflect he was prescribed corticosteroids 3 times or more per year. Pulmonary function tests (PFTs) prior to July 17, 2015 did not show FEV-1 or FEV-1/FVC values of 55 or below to warrant an evaluation higher than 30 percent. See January 2012 VA examination report; see April 2015 private PFT. In sum, the criteria for an evaluation higher than 30 percent prior to July 17, 2015 are not met. b) On and after July 17, 2015. On and after July 17, 2015, the evidence shows bronchial asthma required treatment with corticosteroids at least 3 times per year. Private pharmacy records document that corticosteroids were prescribed on July 17, 2015, in August 2015, and in December 2015. The Veteran’s private respiratory treatment provider completed a disability benefits questionnaire (DBQ) in March 2018. On that DBQ, the provider noted they had treated the Veteran since March 2015, and that the Veteran generally had 2 to 3 exacerbations per year. The private medical records note corticosteroids were prescribed on three occasions in 2015 beginning July 17, 2015 and the March 2018 DBQ indicates the Veteran continued to have 2 to 3 exacerbations per year. These findings warrant a 60 percent evaluation from July 17, 2015 for intermittent corticosteroid therapy at least 3 times per year. To this degree, the claim for increase is granted. The evidence does not show that service-connected bronchial asthma warranted a schedular evaluation higher than 60 percent for this period. Specifically, the preponderance of the evidence does not show more than one attack per week with episodes of respiratory failure, that asthma was treated with daily high dose corticosteroids or immuno-suppressive medications, or that FEV-1 or FEV-1/FVC values were 55 or less. A May 2018 VA examination report did document the Veteran had 3 episodes of attacks with respiratory failure in past 12 months, which conflicted with the March 2018 private DBQ that reported no history of respiratory failure. The Board remanded the matter for clarification, and in a December 2019 VA examination report from the same VA examiner found the Veteran did not have a history of respiratory failure. Available VA and private treatment records do show regular treatment for asthma and asthma exacerbations, but do not reflect any episodes of respiratory failure. Overall, the preponderance of the evidence does not show that asthma caused respiratory failure during the appeal period. Also, while the Veteran continued to receive intermittent treatment with corticosteroids and he had daily inhalational therapy, the evidence does not show daily high dose corticosteroids or immuno-suppressive medications. See March 2018 DBQ; see May 2018 and December 2019 VA examination reports. The PFTs completed during this period did not show FEV-1 or FEV-1/FVC values of 55 or less. See May 2017, February 2018, and May 2019 private PFTs. The Veteran’s testimony of increased environmental triggers, increased daily medications (other than corticosteroids or immuno-suppressive medications), and increased medical visits for treatment is contemplated by the 60 percent and lesser criteria and do not support a claim to an evaluation higher than 60 percent. In sum, the criteria for a schedular 60 percent evaluation but no higher are met from July 17, 2015. REASONS FOR REMAND 1. Entitlement to an extraschedular evaluation higher than 60 percent on and after July 17, 2015 for bronchial asthma is remanded. In exceptional cases where schedular disability ratings are found to be inadequate, consideration of an extra-schedular disability rating is made. 38 C.F.R. § 3.321(b)(1). There is a three-step analysis for determining whether an extra-schedular disability rating is appropriate. Thun v. Peake, 22 Vet. App. 111 (2008). First, there must be a comparison between the level of severity and symptomatology of the Veteran’s service-connected disability and the established criteria found in the rating schedule to determine whether the Veteran’s disability picture is adequately contemplated by the rating schedule. Thun, 22 Vet. App. 111. If not, the second step is to determine whether the Veteran’s exceptional disability picture exhibits other related factors identified in the regulations as governing norms. Thun, 22 Vet. App. 111; 38 C.F.R. § 3.321(b)(1) (governing norms include marked interference with employment and frequent periods of hospitalization). If the factors of step two are found to exist, the third step is to refer the case to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for a determination concerning whether, to accord justice, the Veteran’s disability picture requires the assignment of an extra-schedular rating. Thun, 22 Vet. App. 111. First, the Veteran’s bronchial asthma has required supplemental outpatient oxygen therapy since at least 2016, although the Veteran’s compliance has been poor. See August 2016 VA treatment note (reporting the Veteran was prescribed supplemental nocturnal outpatient oxygen therapy for hypoxemia); see March 2017 VA treatment note (reporting the Veteran was not using his outpatient oxygen therapy on a daily basis because he did not like the sound of the machine). The rating criteria for bronchial asthma does not contemplate the use of outpatient oxygen therapy, although other DCs such as those for chronic bronchitis (DC 6600) and emphysema (DC 6603) include outpatient oxygen therapy in the 100 percent rating criteria. Thus, the rating criteria for asthma fails to contemplate the symptom of outpatient oxygen therapy. Second, the evidence indicates there may be marked interference with employment or frequent periods of hospitalization. The March 2018 DBQ noted the Veteran’s asthma would functionally impair his ability to work to the extent he would potentially need time off for rest, therapy, pulmonary follow up, and aggressive bronchodilators. June 2018 private treatment notes document the Veteran’s breathing impairment impacted his activity. The evidence also shows the Veteran presented to private emergency departments for treatment of exacerbations on multiple occasions, although it does not appear that he had any prolonged hospitalization. Nevertheless, the record indicates there may be marked interference with employment or frequent hospitalizations. Thus, the matter is referred to the Under Secretary for Benefits or the Director of the Compensation and Pension Service for extraschedular consideration. The matters are REMANDED for the following action: Refer the Veteran’s claim for an increased rating for bronchial asthma on and after July 17, 2015 to VA’s Director of Compensation Service for extraschedular consideration. K. MILLIKAN Veterans Law Judge Board of Veterans’ Appeals Attorney for the Board C. Smith, 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.